Posts tagged "Commissioner"

Carey, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-067-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12369   MICHAEL CAREY & others[1]  vs.  COMMISSIONER OF CORRECTION.       Suffolk.     January 8, 2018. – April 19, 2018.   Present:  Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.     Commissioner of Correction.  Regulation.  Administrative Law, Agency’s interpretation of regulation, Administrative Procedure Act.  State Administrative Procedure Act.       Civil action commenced in the Superior Court Department on January 2, 2014.   The case was heard by Joseph F. Leighton, Jr., J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Leonard M. Singer for the plaintiffs. William D. Saltzman for the defendant.     BUDD, J.  In 2013, the Department of Correction (department) announced that visitors to correctional facilities would be subject to search by drug-detecting dogs.  The plaintiffs, who are visitors to correctional facilities who are not attorneys, allege that this canine search policy (policy) violated the department’s existing regulations and that the department failed to follow requirements of the Administrative Procedure Act (APA), G. L. c. 30A, §§ 1 et seq., in implementing this new policy.  The defendant Commissioner of Correction (commissioner) contends that the policy is consistent with the department’s existing regulations and is exempt from the APA. We conclude that although the policy is not inconsistent with the department’s existing regulations, it is not exempt from the APA.  Given the policy’s substantial impact on institutional security, however, entry of judgment shall be stayed for 180 days to permit the department to take action consistent with this opinion, during which time the department may continue to enforce the policy. Background.  In early 2013, the department announced that it would begin subjecting prison visitors to search by drug-detecting dogs.[2]  The plaintiffs commenced this action to prevent the department from implementing the new policy.  The plaintiffs sought a judgment declaring that the policy was not authorized by the department’s existing regulations, as well as a preliminary injunction to enjoin the department from implementing the policy without its being promulgated pursuant to the APA.[3]  A judge in the Superior Court denied the plaintiffs’ motion for a preliminary injunction, concluding that the wording of the regulation governing visits by members of the general public was broad enough to allow for canine searches. The policy was thereafter implemented.  The dogs performing the searches are not aggressive and […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 5:18 pm

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Dental Service of Massachusetts, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-059-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12346   DENTAL SERVICE OF MASSACHUSETTS, INC.  vs. COMMISSIONER OF REVENUE.       Suffolk.     December 5, 2017. – April 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Taxation, Abatement, Insurance company, Excise.  Practice, Civil, Abatement.  Insurance, Health and accident, Group, Coverage.  Statute, Construction.  Words, “Covered persons.”       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     David C. Kravitz, Assistant State Solicitor, for Commissioner of Revenue. Daniel P. Ryan (David J. Nagle also present) for the taxpayer. James Roosevelt, Jr., & Rachel M. Wertheimer, for Massachusetts Association of Health Plans, amicus curiae, submitted a brief.          BUDD, J.  The taxpayer, Dental Service of Massachusetts, Inc.,[1] is an insurer that provides dental coverage through preferred provider arrangements (PPAs).[2]  Pursuant to G. L. c. 176I, § 11, insurers operating PPAs are obligated to pay annually an excise tax equal to a specified percentage “of the gross premiums received during the preceding calendar year for coverage of covered persons residing in this [C]ommonwealth” (emphasis added).  The term “[c]overed person” is defined in the statute as “any policy holder or other person on whose behalf the organization is obligated to pay for or provide health care services.”  G. L. c. 176I, § 1. The taxpayer and the Commissioner of Revenue (commissioner) disagree regarding whether “covered persons” may sometimes refer to the employer-organizations that contract with insurers, or instead refers only to the individuals receiving health care services (in this case, dental care).[3]  That is, when an employer purchases group insurance on behalf of its employees, does the insurer owe tax on premiums paid by or on behalf of only those individuals who live in Massachusetts, as the taxpayer contends, or does the insurer owe tax on all premiums received from the Massachusetts-based employer regardless of where its individual employees reside, as the commissioner contends.  We agree with the Appellate Tax Board (board), and conclude that “covered persons” as used in G. L. c. 176I, § 11, refers solely to natural persons who, as employees, receive insurance coverage for health care services under a group insurance plan, rather than employer entities.[4] Background.  The statute governing PPAs, G. L. c. 176I, was enacted in 1988.  St. 1988, c. 23, § 65.  Chapter 176I includes an assessment provision that requires “[e]very organization . . . […]

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Posted by Massachusetts Legal Resources - April 14, 2018 at 1:21 am

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WorldWide TechServices, LLC v. Commissioner of Revenue, et al. (and three consolidated cases) (Lawyers Weekly No. 10-032-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12328   WORLDWIDE TECHSERVICES, LLC  vs.  COMMISSIONER OF REVENUE & another[1] (and three consolidated cases[2]).       Suffolk.     November 7, 2017. – February 22, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Taxation, Abatement, Sales and use tax.  Practice, Civil, Abatement, Intervention.  Administrative Law, Intervention.  Due Process of Law, Intervention in civil action.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Edward D. Rapacki for the intervener. John A. Shope (Michael Hoven also present) for the taxpayers. Daniel J. Hammond, Assistant Attorney General (Daniel A. Shapiro also present) for Commissioner of Revenue. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.     KAFKER, J.  Fifteen years and three Supreme Judicial Court decisions ago, this protracted case commenced regarding taxes imposed on computer service contracts.  The litigation began when purchasers of the service contracts filed a putative class action against the sellers,[3] claiming under G. L. c. 93A that the imposition of these taxes was unlawful and an unfair and deceptive practice.  The sellers successfully moved to compel arbitration pursuant to the terms of the computer service contracts, and a judge in the Superior Court eventually confirmed the award.  The next chapter in this tax saga, and the one we are required to decide today, then ensued. For the sole and express purpose of hedging their bets in response to the class action, the sellers had applied for tax abatements from the Commissioner of Revenue (commissioner) beginning in 2004.  The commissioner denied the applications, and the sellers petitioned the Appellate Tax Board (board).  The appellant, Econo-Tennis Management Corp., doing business as Dedham Health and Athletic Complex (Dedham Health), one of the consumers who purchased these service contracts, moved to intervene in the proceedings, which the board allowed.  Thereafter, the board, with certain exceptions, reversed the decision of the commissioner and allowed the abatements, ordering the parties to compute the amounts to be abated.  Taxes totaling $ 215.55 were imposed on the service contracts purchased by Dedham Health.[4]  After the class action litigation on the claims under G. L. c. 93A ended in the sellers’ favor, the sellers withdrew their tax abatement petitions with prejudice.  Dedham Health moved to strike the withdrawals.  The […]

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Posted by Massachusetts Legal Resources - February 22, 2018 at 4:04 pm

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Deal, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-180-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12246   TIMOTHY DEAL & another[1]  vs.  COMMISSIONER OF CORRECTION.       Suffolk.     April 3, 2017. – November 9, 2017.   Present:  Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.[2]     Commissioner of Correction.  Due Process of Law, Prison classification proceedings.  Imprisonment, Reclassification of prisoner.  Youthful Offender Act.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2016.   The case was reported by Botsford, J.     Barbara Kaban for the petitioner. Benjamin H. Keehn, Committee for Public Counsel Services (Dulcineia Goncalves, Committee for Public Counsel Services, also present) for the intervener. Charles W. Anderson, Jr., for the respondent. James R. Pingeon, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief.          BUDD, J.  The Department of Correction (department) has adopted procedures to determine, on a periodic basis, the security classification of every inmate, including juvenile homicide offenders.[3]  Approximately one year ago we examined the department’s then procedure used to classify juvenile homicide offenders, and concluded that, as pertaining to that cohort, the procedure violated G. L. c. 119, § 72B, as amended by St. 2014, c. 189, § 2, which prohibits the department from categorically barring juvenile homicide offenders from being placed in minimum security facilities.  See Deal v. Commissioner of Correction, 475 Mass. 307, 312 (2016) (Deal I).  The department has since developed a modified process for classifying juvenile homicide offenders, which the petitioner and intervener in this case (collectively, petitioners) — juvenile homicide offenders who also were petitioners in Deal I — continue to challenge. Applying our holding in Deal I to these updated procedures, we conclude that the department still falls short of the requirements of § 72B.  Given that the department continues to block the majority of objectively qualifying juvenile homicide offenders from placement in a minimum security facility, its written explanations for doing so do not go far enough to ensure that the classification procedure is actually individualized and that no juvenile homicide offender is categorically barred from classification to a minimum security facility.  We also conclude that the department must make a recording of the initial classification hearing and make that recording (or a transcription of that recording) available at any subsequent stage of review so that the final classification decision may include the same level […]

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Posted by Massachusetts Legal Resources - November 10, 2017 at 4:03 am

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Koe v. Commissioner of Probation, et al. (Lawyers Weekly No. 10-153-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12160   KRISTI KOE[1]  vs.  COMMISSIONER OF PROBATION & another.[2]       Suffolk.     May 1, 2017. – September 27, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &  Cypher, JJ.[3]     Sex Offender.  Practice, Criminal, Record.  Due Process of Law, Sex offender, Retroactive application of statute.  Statute, Retroactive application.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 18, 2016.   The case was reported by Hines, J.     Beth Eisenberg (Catherine J. Hinton also present) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendants.          CYPHER, J.  In this case, we confront part of a statute that retroactively prohibits the plaintiff from ever sealing the record of her sex offenses because she was once classified as a level two sex offender, even though the Sex Offender Registry Board (SORB) has determined that the plaintiff no longer poses any cognizable degree of dangerousness or risk of reoffending, no longer believes that she should be classified as a level two sex offender, and has relieved her of the obligation to register as a sex offender.  The plaintiff argues that, as a applied to her, the retroactive statutory prohibition on sealing sex offenses violates her due process rights under the Massachusetts Declaration of Rights.  Because we agree with the plaintiff that the challenged portion of this statute, as applied to her, is retroactive and unreasonable, we conclude that it cannot be enforced against her. Background.  We summarize the following facts from findings made by a Superior Court judge and by a SORB hearing panel, as well as from other record materials. Underlying offense and classification.  In 1995, Kristi Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B.  The offenses occurred in 1990, when Koe was twenty-two years old.  The victim was a twelve year old girl who was then living with Koe and Koe’s sister.  Over a ten-day period, Koe engaged in various sexual acts with the victim. As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender, pursuant to […]

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Posted by Massachusetts Legal Resources - September 27, 2017 at 3:20 pm

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D & H Distributing Company v. Commissioner of Revenue (Lawyers Weekly No. 10-124-17)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us   SJC-12260   D & H DISTRIBUTING COMPANY  vs.  COMMISSIONER OF REVENUE.       Suffolk.     April 3, 2017. – July 31, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.     Taxation, Sales and use tax.  Internet.  Constitutional Law, Commerce clause, Interstate commerce, Taxation.  Interstate Commerce.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Philip S. Olsen (Jonathan A. Block also present) for the taxpayer. Julie E. Green, Assistant Attorney General, for Commissioner of Revenue.          CYPHER, J.  If a consumer enters his or her neighborhood sporting goods store in Massachusetts and purchases a baseball glove, the store, as the “vendor,” collects the Massachusetts sales tax owed from the consumer and remits it to the Department of Revenue (department).  See G. L. c. 64H, §§ 1, 2.  This case evaluates a more complex transaction in which a Massachusetts consumer instead finds a hypothetical baseball glove online, and purchases it from an out-of-State retailer who then orders the glove from a Massachusetts wholesaler and directs the wholesaler to deliver the glove directly to the doorstep of the Massachusetts consumer.  In that more complicated transaction, known as a “drop shipment sale,” the wholesaler is considered to be the vendor, and is obligated to collect sales tax and remit it to the department. The taxpayer, D & H Distributing Company (D & H), is a company in the position of the hypothetical wholesaler just described.  It appeals from a decision of the Appellate Tax Board (board) in which the board concluded that under a provision of the Massachusetts sales tax statute known as the “drop shipment rule,” D & H was responsible for collecting and remitting the sales tax due on products it sold to the out-of-State retailers and then delivered to consumers.  G. L. c. 64H, § 1.  We agree with the board’s conclusion, and also reject D & H’s argument that the statutory drop shipment rule violates the dormant commerce clause of the United States Constitution.  Accordingly, we affirm the decision of the board. Statutory framework.  a.  Sales tax.  General Laws c. 64H distinguishes between retail sales transactions and sales-for-resale transactions.  Retail sales of goods and services are subject to tax in Massachusetts.  G. L. c. 64H, § 2.  […]

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Posted by Massachusetts Legal Resources - August 1, 2017 at 2:18 am

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Rosado v. Commissioner of Correction, et al. (Lawyers Weekly No. 11-062-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-680                                        Appeals Court   CHRISTIAN ROSADO  vs.  COMMISSIONER OF CORRECTION & another.[1]     No. 16-P-680.   Middlesex.     February 7, 2017. – May 22, 2017.   Present:  Green, Meade, & Agnes, JJ.     Imprisonment, Safe environment.  Constitutional Law, Imprisonment.  Administrative Law, Judicial review.  Practice, Civil, Relief in the nature of certiorari, Motion to dismiss.  Due Process of Law, Prison regulation.  Libel and Slander.       Civil action commenced in the Superior Court Department on May 11, 2015.   A motion to dismiss was considered by Kenneth J. Fishman, J.     Christian Rosado, pro se. Katherine W. Briggs for the defendants.     GREEN, J.  The pro se plaintiff, an inmate in the custody of the Department of Correction, appeals from a judgment of the Superior Court, dismissing his complaint against the defendants, the Commissioner of Correction and the chief of the office of investigative services (investigative services chief).  In his complaint, the plaintiff asserted various claims stemming from the defendants’ designation of him as a member of the “Latin Kings,” a “security threat group” (STG).  The plaintiff denies that he is a member of the Latin Kings, and that his false designation as such subjects him to various harms entitling him to relief.  We agree with the judge that the plaintiff’s claim for certiorari relief, pursuant to G. L. c. 249, § 4, does not lie because the designation was a discretionary administrative decision rather than an adjudicatory or quasi adjudicatory one, and that his due process claim fails because his designation as a member of an STG does not infringe upon a protected liberty interest.[2]  We accordingly affirm the judgment of dismissal. Background.  “We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom.  Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), and cases cited.  We may also consider exhibits attached to the complaint and items appearing in the record.  Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).”  Lipsitt v. Plaud, 466 Mass. 240, 241 (2013). As we observed in the introduction, the plaintiff is an inmate in the custody of the Department of Correction.[3]  In November, 2014, a search of his cell uncovered pictures of a number of […]

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Posted by Massachusetts Legal Resources - May 22, 2017 at 5:36 pm

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Commissioner of Administration and Finance v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-076-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12208   COMMISSIONER OF ADMINISTRATION AND FINANCE  vs.  COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.[1]       Suffolk.     January 5, 2017. – May 12, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Commonwealth Employment Relations Board.  Labor, Unfair labor practice, Duty to bargain.  Commonwealth, Financial matters, Collective bargaining.       Appeal from a decision of the Division of Labor Relations.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Robert L. Quinan, Jr., Assistant Attorney General, for the plaintiff. Jane Gabriel for the defendant. Alan H. Shapiro (John M. Becker also present) for the intervener. Mathew D. Jones, for Massachusetts Teachers Association, amicus curiae, submitted a brief.     LOWY, J.  In June, 2010, near the height of the global economic downturn that became known as the Great Recession, the Secretary of the Executive Office of Administration and Finance (Secretary) submitted to the Legislature a request for an appropriation to fund collective bargaining agreements between the Commonwealth and two public employee unions reached more than thirteen months earlier.  In the letter containing the request, the Secretary informed the Legislature that several similar requests for salary increases had been rejected by the Legislature; that attempts to renegotiate the agreements with the unions had failed; and that approval of the request would require renegotiating several other collective bargaining agreements that the Legislature had already approved. The unions both filed a charge of prohibited practice with the Department of Labor Relations (department), arguing, in essence, that the letter was a violation of the Commonwealth’s purported duty to support an appropriation’s request pursuant to G. L. c. 150E, § 7 (b), and also that the letter constituted a failure to bargain in good faith, in violation of G. L. c. 150E, § 10 (a) (5).  In January, 2014, a hearing officer with the department agreed with the unions and found that the Commonwealth had violated its § 7 (b) duty and had committed a prohibited practice under § 10 (a) (5) by failing to bargain in good faith.  The Commonwealth Employment Relations Board (board)[2] affirmed, the Commonwealth appealed from the decision, and we transferred the case to this court on our own motion. We reverse the board’s decision and conclude that the Secretary’s inclusion of information about the anticipated fiscal effects of a legislative decision to fund […]

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Posted by Massachusetts Legal Resources - May 13, 2017 at 4:37 am

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Genentech v. Commissioner of Revenue (Lawyers Weekly No. 10-012-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12083   GENENTECH, INC.  vs.  COMMISSIONER OF REVENUE.       Suffolk.     October 7, 2016. – January 12, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Taxation, Corporate excise, Manufacturing corporation.  Constitutional Law, Taxation, Commerce clause, Interstate commerce.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Catherine A. Battin, of Illinois (Richard C. Call also present) for the taxpayer. Brett M. Goldberg (Jamie E. Szal also present) for Commissioner of Revenue.     BOTSFORD, J.  Under the Massachusetts corporate excise tax statute, G. L. c. 63, corporations that generate business income in Massachusetts and other States pay taxes on that income according to a statutory formula that seeks to apportion and tax the corporation’s income generated in the Commonwealth.  Beginning in 1996, for a “manufacturing corporation,” the apportionment formula has been based solely on the corporation’s sales, see G. L. c. 63, § 38 (l), inserted by St. 1995, c. 280, § 2.  The taxpayer Genentech, Inc., is a Delaware corporation with a principal place of business in California and earns business income in the Commonwealth as well as other States.  In this appeal from a decision of the Appellate Tax Board (board), Genentech challenges the board’s determination that it qualified as a manufacturing corporation for the tax years 1998 through 2004 (tax years at issue); it also challenges the board’s rejection of its claim that application of § 38 (l)’s single-factor apportionment formula based on sales to the company violated the commerce clause of the United States Constitution.  We affirm the decision of the board. Facts.  We summarize the findings of fact made by the board.  See G. L. c. 58A, § 13 (“The decision of the board shall be final as to findings of fact”). Genentech is a biotechnology company that develops drugs derived from proteins produced by living cells.  Through a four-step process, Genentech employees modify the genetic codes of living cells to produce “proteins of interest” with desired pharmacologic effects.[1]  First, Genentech scientists and other employees alter the deoxyribonucleic acid (DNA) of the selected cells to instruct them to produce a specific “protein of interest.”  Second, employees facilitate the production of the protein of interest by placing the genetically altered […]

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Posted by Massachusetts Legal Resources - January 12, 2017 at 5:48 pm

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LaChance v. Commissioner of Correction (Lawyers Weekly No. 10-167-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12016   EDMUND LaCHANCE  vs.  COMMISSIONER OF CORRECTION & others.[1]       Essex.     March 10, 2016. – October 21, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]     Civil Rights, Attorney’s fees.  Practice, Civil, Attorney’s fees.       Civil action commenced in the Superior Court Department on June 20, 2006.   Following review by this court, 463 Mass. 767 (2012), a motion for attorney’s fees was heard by Robert A. Cornetta, J., and a motion for reconsideration was considered by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     William D. Saltzman for the defendants. James R. Pingeon for the plaintiff.   GANTS, C.J.  This appeal concerns an award of attorney’s fees under the Federal Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988(b), in a civil rights action brought by a Massachusetts prison inmate, Edmund LaChance.  LaChance claimed that the defendants violated his constitutional due process rights by holding him in essentially solitary confinement in a special management unit (SMU) for ten months, without a hearing, while waiting to transfer or reclassify him.  That litigation eventually resulted in our decision in LaChance v. Commissioner of Correction, 463 Mass. 767 (2012) (LaChance I), where we announced “for the first time that segregated confinement on awaiting action status for longer than ninety days gives rise to a liberty interest entitling an inmate to notice and a hearing,” and a written posthearing decision.  Id. at 778.  See id. at 776-777.  On remand, a Superior Court judge entered declaratory judgment in favor of LaChance and awarded him $ 28,578.69 in attorney’s fees and costs under 42 U.S.C. § 1988(b).  The defendants are challenging that award in this appeal. The principal issue before us is whether LaChance qualified for an award of fees as a “prevailing party” under § 1988(b), even though he had already been discharged in 2006 from the SMU detention that was the subject of his suit, long before he won any relief in his favor.  The defendants argue that, in these circumstances, LaChance was not a prevailing party because the declaratory judgment he ultimately won was moot, and did not directly benefit him or materially alter his relationship with the defendants, at the time it was entered.  We conclude, however, […]

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Posted by Massachusetts Legal Resources - October 21, 2016 at 8:32 pm

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