Kain, et al. v. Department of Environmental Protection (Lawyers Weekly No. 10-066-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11961 ISABEL KAIN & others[1] vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION. Suffolk. January 8, 2016. – May 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Department of Environmental Protection. Environment, Air pollution. Regulation. Administrative Law, Regulations. Declaratory Relief. Statute, Construction. Civil action commenced in the Superior Court Department on August 12, 2014. The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Jennifer K. Rushlow (Susan J. Kraham, of New York, & Veronica S. Eady with her) for Conservation Law Foundation & another. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Phelps Turner & C. Dylan Sanders, for Isabel Kain & others, were present but did not argue. The following submitted briefs for amici curiae: Stephanie R. Parker for Clean Water Action & others. Edward J. DeWitt for Association to Preserve Cape Cod. Arthur P. Kreiger & Jessica A. Wall for William R. Moomaw & others. Robert J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth. CORDY, J. In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, § 3 (d) (§ 3 [d]), which provides that the department “shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c. 298 (act), these regulations were to be issued by January 1, 2012, to take effect on January 1, 2013, and to expire on December 31, 2020. See St. 2008, c. 298, § 16. The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 (d) to limit greenhouse gas emissions[2] in the Commonwealth. The department held a public hearing on June 13, 2013, to consider the petition. Shortly thereafter, it issued a written statement addressing the petitioners’ concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 (d). The statement also referenced […]
Categories: News Tags: 1006616, department, Environmental, Kain, Lawyers, Protection, Weekly
Ainooson v. Department of Correction (Lawyers Weekly No. 10-063-16)
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-11780 JUSTICE E. AINOOSON vs. DEPARTMENT OF CORRECTION. May 5, 2016. Supreme Judicial Court, Superintendence of inferior courts. Justice E. Ainooson appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. In 2013, Ainooson commenced an action in the Superior Court against a number of individual defendants. After receiving additional time to effect service, Ainooson filed a motion to waive service or to deem the defendants served. That motion was allowed. However, the judge vacated her allowance of the motion after the defendants filed a motion for reconsideration. A different Superior Court judge subsequently ordered Ainooson to make service by regular mail at his own expense, with no further extensions to be allowed. Ainooson’s G. L. c. 211, § 3, petition challenged these rulings. After Ainooson filed his petition, but before the single justice ruled on it, a judgment entered in the Superior Court dismissing the complaint. Ainooson timely filed a notice of appeal in the Superior Court. Ainooson’s petition sought relief from one or more interlocutory rulings of the trial court. When he filed his petition, his case in the Superior Court was still pending. As noted above, however, the case thereafter went to final judgment. Passing the question whether Ainooson was obligated in these circumstances to file a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), it is clear on the record before us that he had adequate alternative remedies, namely, a petition to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., at the time of the Superior Court rulings, see Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996), and a direct appeal to the Appeals Court from the final judgment of the Superior Court. Indeed, the record indicates that he is pursuing one of those remedies.[1] Accordingly, the single justice neither erred nor abused his discretion by denying extraordinary relief. ”Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.” E.g., Fennick v. Kittredge, 460 Mass. 1012 (2011), […]
Categories: News Tags: 1006316, Ainooson, Correction, department, Lawyers, Weekly
L.B., et al. v. Chief Justice of the Probate and Family Court Department, et al. (Lawyers Weekly No. 10-060-16)
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-11892 L.B. & another[1] vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.[2] Suffolk. October 5, 2015. – May 4, 2016. Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Probate Court, Guardian. Due Process of Law, Assistance of counsel. Constitutional Law, Assistance of counsel. Practice, Civil, Assistance of counsel. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 2015. The case was reported by Botsford, J. Laura Williams Gal (Christina L. Paradiso with her) for L.B. & another. Norah E. Kane for the minor children of L.B. Jo Ann Shotwell Kaplan, Assistant Attorney General, for Chief Justice of the Probate and Family Court Department. Deborah W. Kirchwey for the minor child of C.L. Jamie Ann Sabino, Susan R. Elsen, Mary K. Ryan, & Melanie V. Woodward, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief. Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Susan M. Finnegan, Sandra J. Badin, & Geoffrey A. Friedman, for S.D., amicus curiae, submitted a brief. Richard M. Page, Jr., for Boston Bar Association, amicus curiae, joined in a brief. SPINA, J. In Guardianship of V.V., 470 Mass. 590 (2015), we held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, § 5-206, and who cannot afford counsel has a right to have counsel appointed and to be so informed. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a right to counsel for certain of those types of petitions. We also offer some guidance to the Probate and Family Court, where these private guardianships occur, for the development of rules and policies to implement this right to counsel. Procedural history. The plaintiffs, L.B. and C.L., are the mothers of minor children for whom guardians were appointed, in 2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206. They commenced this action in the county court in 2015, challenging a written policy of the Chief Justice of the Probate and […]
Charbonneau v. Presiding Justice of the Holyoke Division of the District Court Department (Lawyers Weekly No. 10-009-16)
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-11908 JOSHUA CHARBONNEAU vs. PRESIDING JUSTICE OF THE HOLYOKE DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. October 8, 2015. – January 22, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Supreme Judicial Court, Superintendence of inferior courts. District Court. Practice, Criminal, Plea. Statute, Construction. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 13, 2015. The case was reported by Botsford, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, with him) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendant. William C. Newman, Chauncey B. Wood, & Joseph N. Schneiderman, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. HINES, J. In this appeal, we determine whether a standing order of the Holyoke Division of the District Court Department (Holyoke District Court), prohibiting the tender of a so-called “defendant-capped” plea on the day of trial, contravenes the guilty plea procedure mandated in G. L. c. 278, § 18, and Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004). Joshua Charbonneau, who stands charged in the Holyoke District Court with larceny over $ 250, challenges the standing order on statutory and constitutional grounds. He contends that the standing order violates his right to tender a defendant-capped plea at any time prior to trial because neither G. L. c. 278, § 18, nor Mass. R. Crim. P. 12 imposes a time limit on such tenders. He also asserts that the judicially imposed time limit unconstitutionally burdens his right to due process. We conclude that the standing order conflicts with and impairs a defendant’s right to tender a defendant-capped plea as provided in G. L. c. 278, § 18, and Mass. R. Crim. P. 12. Consequently, we vacate the standing order on that ground and bypass Charbonneau’s constitutional claim.[1] 1. Background. On February 19, 2015, the presiding justice of the Holyoke District Court[2] (presiding justice) promulgated a standing order applicable to trials beginning with the June, 2015, jury-of-six session. In accordance with the standing order, a defendant who intended to proffer a defendant-capped plea was required to do so at the final pretrial status conference which, in the Holyoke District Court, is scheduled for the Wednesday two weeks prior to […]
Magazu, et al. v. Department of Children and Families (Lawyers Weekly No. 10-001-16)
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-11864 GREGORY T. MAGAZU & another[1] vs. DEPARTMENT OF CHILDREN AND FAMILIES. Worcester. September 10, 2015. – January 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Department of Children & Families. Adoption, Foster parents. Constitutional Law, Freedom of religion. Religion. Administrative Law, Substantial evidence. Civil action commenced in the Superior Court Department on July 25, 2013. The case was heard by Brian A. Davis, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David P. Bodanza (Amanda M. Mastalerz with him) for the plaintiffs. Annapurna Balakrishna, Assistant Attorney General, for the defendant. SPINA, J. Gregory T. Magazu and his wife, Melanie, appeal from a judgment of the Superior Court that dismissed their appeal from a final decision of the Department of Children and Families (department) denying their application to become foster and preadoptive parents because of their use of corporal punishment as a form of discipline in their home. The Magazus argue that the department’s decision is inconsistent with its regulations, is arbitrary and capricious, and is not supported by substantial evidence where they were willing to agree not to use corporal punishment on a foster child. They also contend that, because physical discipline is an integral aspect of their Christian faith, the department’s decision impermissibly infringes on their constitutional right to the free exercise of religion. We transferred the case to this court on our own motion. For the reasons that follow, we conclude that the department’s decision to deny the Magazus’ application is based on a reasonable interpretation of its enabling legislation and related regulations, is not arbitrary or capricious, and is supported by substantial evidence. We also conclude that although the department’s decision imposes a substantial burden on the Magazus’ sincerely held religious beliefs, this burden is outweighed by the department’s compelling interest in protecting the physical and emotional well-being of foster children. Accordingly, we affirm the judgment of the Superior Court. 1. Statutory and regulatory framework. We begin with an overview of the relevant statutory and regulatory provisions that govern the foster care proceedings in this case. The Legislature has vested the department with the authority to provide substitute care for […]
DeFelice Corporation v. Department of Public Utilities (Lawyers Weekly No. 11-164-15)
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 14-P-1056 Appeals Court DeFELICE CORPORATION vs. DEPARTMENT OF PUBLIC UTILITIES. No. 14-P-1056. Suffolk. May 6, 2015. – October 19, 2015. Present: Berry, Kafker, & Cohen, JJ. Department of Public Utilities. “Dig Safe” Statute. Penalty. Administrative Law, Adjudicatory proceeding, Findings, Agency’s interpretation of statute, Evidence, Substantial evidence. Evidence, Prima facie evidence. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 18, 2013. The case was reported by Gants, J., and the appeal was transferred by him to the Appeals Court. Ben N. Dunlap (Patrick E. McDonough with him) for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the defendant. COHEN, J. On November 3, 2010, DeFelice Corporation (DeFelice), a contractor engaged in removing and reinstalling water mains, struck an underground natural gas service line while excavating on Danny Road in the Hyde Park neighborhood of Boston. The ensuing explosion and fire destroyed a single family home at 17 Danny Road, and badly damaged other nearby residences.[1] The pipeline and engineering safety division (division) of the Department of Public Utilities (department) investigated DeFelice’s operations on Danny Road, as well as its operations at a nearby site on Como Road. As a result of the division’s investigation, it issued notices of probable violations (NOPVs) of the “dig safe” law, G. L. c. 82, §§ 40-40E,[2] and associated regulations, for each of the two sites. DeFelice contested the NOPVs and, after receiving adverse informal review decisions as to both matters, requested a formal adjudicatory hearing. The cases were consolidated, and a hearing was held before a three-member panel of department commissioners. In a thirty-nine page decision and order, the department found DeFelice responsible for four violations of the dig safe law and imposed the maximum statutory penalty allowed for each violation, resulting in a total fine of $ 31,000. As to both the Como Road and Danny Road excavations, the department determined that DeFelice had violated G. L. c. 82, § 40A, which requires an excavator to provide proper advance notice of its planned work to the telephone call center of Dig Safe System, Inc. (call center), an information clearinghouse and communications system statutorily required to be maintained by various utility companies. See G. L. c. 164, § 76D. Specifically, the department found that DeFelice’s notification to the call center failed to provide information needed to “accurately […]
Categories: News Tags: 1116415, Corporation, DeFelice, department, Lawyers, Public, Utilities, Weekly
Ellis v. Commissioner of the Department of Industrial Accidents, et al. (Lawyers Weekly No. 11-148-15)
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 13-P-402 Appeals Court JAMES ELLIS[1] vs. COMMISSIONER OF THE DEPARTMENT OF INDUSTRIAL ACCIDENTS & another.[2] No. 13-P-402. Suffolk. October 10, 2013. – September 18, 2015. Present: Berry, Green, & Trainor, JJ. Workers’ Compensation Act, Lump-sum settlement, Attorney’s fees. Administrative Law, Judicial review. Practice, Civil, Frivolous action. Civil action commenced in the Superior Court Department on May 28, 2008. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment. Teresa Brooks Benoit for the plaintiff. Timothy J. Casey, Assistant Attorney General, for Commissioner of the Department of Industrial Accidents. Michael K. Landman, for Landman, Akashian & White, P.C., was present but did not argue. BERRY, J. Reduced to essentials, in this latest appellate foray, the plaintiff, James Ellis, contends that, in considering whether to approve a lump sum agreement under § 48 of G. L. c. 152, the Workers’ Compensation Act (act), for injuries to a worker, an administrative judge of the Department of Industrial Accidents (department) or a law judge on the department’s reviewing board (reviewing board) (hereinafter collectively referred to as administrative judge) is absolutely foreclosed from reviewing the authenticity of the legal expenses and from adjusting those expenses downward, leaving more money for the injured worker under the lump sum settlement payment. We reject Ellis’s contentions regarding total unreviewability of the claimed legal expenses. Ellis offers no precedent, i.e., no caselaw or statutory authority, for this proposition. See note 8, infra. We conclude that an administrative judge — in review of a proposed lump sum awarded and to be paid in settlement to an injured worker — does have the authority to review and adjust downward unsubstantiated or unreasonably excessive attorney’s fees and expenses. Put another way, it is within the purview of an administrative judge to modify the amount allocated in the lump sum settlement to an employee’s attorney for attorney’s fees and necessary expenses where the fees and expenses, upon review, are insufficiently supported or deemed not necessary, and the administrative judge, by such an adjustment, neither increases the burden on the insurer nor decreases the net sum to be paid to the employee. In the past five years alone, Ellis or his legal assistants (collectively, Ellis) have filed over one hundred and fifty workers’ compensation appeals in this court. In a substantial number […]
Categories: News Tags: 1114815, Accidents, Commissioner, department, Ellis, Industrial, Lawyers, Weekly
Navy Yard Four Associates, LLC v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-130-15)
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 14-P-607 Appeals Court NAVY YARD FOUR ASSOCIATES, LLC vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 14-P-607. Suffolk. April 2, 2015. – September 4, 2015. Present: Kafker, C.J., Kantrowitz, & Hanlon, JJ. Harbors. Real Property, Harbors, Restrictions, Littoral property, License. Trust, Public trust. License. Department of Environmental Protection. Administrative Law, Agency’s authority, Regulations, Agency’s interpretation of statute, Agency’s interpretation of regulation. Regulation. Statute, Construction. Words, “Tidelands.” Civil action commenced in the Superior Court Department on December 20, 2011. The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings and for partial summary judgment. Donald R. Pinto, Jr., for the plaintiff. Seth Schofield, Assistant Attorney General, for Department of Environmental Protection. John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief. KAFKER, C.J. This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF). The property is an approximately 2.6-acre parcel of land in Charlestown abutting Boston Harbor. It is the site of a 224-unit apartment building development known as Harborview. DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.” One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation. In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G. L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth. DEP declined to grant the amendment, and NYF appealed DEP’s decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming both DEP and the Commonwealth as defendants. The Superior Court affirmed DEP’s denial of NYF’s requested c. 91 license amendment and rejected NYF’s request for a declaratory […]
Categories: News Tags: 1113015, Associates, department, Environmental, Four, Lawyers, Navy, Protection, Weekly, Yard
Pugsley v. Police Department of Boston, et al. (Lawyers Weekly No. 10-133-15)
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-11740 SEAN PUGSLEY vs. POLICE DEPARTMENT OF BOSTON & others.[1] Suffolk. January 6, 2015. – July 31, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Boston. Municipal Corporations, Police. Police, Hiring. Anti-Discrimination Law, Sex, Bona fide occupational qualification. Employment, Discrimination. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on June 2, 2011. The case was heard by Carol S. Ball, J., on motions for summary judgment, and entry of final judgment was ordered by Frances A. McIntyre, J. The Supreme Judicial Court granted an application for direct appellate review. Joseph L. Sulman (David Isaac Brody with him) for the plaintiff. Nicole I. Taub for police department of Boston. Nicholas A. Ogden, Assistant Attorney General (Ronald F. Kehoe, Assistant Attorney General, with him) for Human Resources Division & another. The following submitted briefs for amici curiae: Jamie Ann Sabino & Leah Kaine for The Women’s Bar Association of Massachusetts. Ralph C. Martin & Lisa A. Sinclair for Northeastern University. Simone R. Liebman & Constance M. McGrane for Massachusetts Commission Against Discrimination. CORDY, J. The plaintiff, Sean Pugsley, brought a claim of sex discrimination against defendants Boston police department (department) and the Commonwealth’s Human Resources Division (division) alleging a violation of G. L. c. 151B and of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I. The plaintiff’s claim arises from the department’s preferential treatment of females in hiring candidates for the December, 2010, police academy class. Summary judgment was entered for the defendants on the discrimination claim, G. L. c. 151B.[2] For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case for entry of a judgment of dismissal for lack of standing. 1. Background. Under G. L. c. 31 and the division’s personnel administration rules (rules), the department appoints entry-level police officers from a “main certification” list generated by the division at the department’s request. The division creates this list by ranking candidates on an eligibility list according to their scores on the most recent civil service examination (examination). The eligibility list is then augmented by candidates for “reemployment,”[3] and candidates who possess statutory preferences, including veterans’ preferences. The candidates for reemployment are required to be placed first on the main certification list, followed by those with statutory preferences,[4] […]
Fitzgerald v. District Court Department of the Trial Court (Lawyers Weekly No. 10-044-15)
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-11648 STEVEN FITZGERALD vs. DISTRICT COURT DEPARTMENT OF THE TRIAL COURT.[1] March 13, 2015 Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Plea. Steven Fitzgerald appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. Because we agree with the single justice that Fitzgerald is not entitled to extraordinary relief under G. L. c. 211, § 3, we affirm. Fitzgerald pleaded guilty to certain criminal offenses in the District Court in 2013. In his petition before the single justice, he argued that he was forcibly medicated when he tendered his pleas. He also complained that he has not been able to obtain a copy of the court file of the earlier, related proceedings conducted under G. L. c. 123, §§ 8B and 16 (b), which resulted in orders that he be involuntarily committed and treated with antipsychotic medications. On appeal, Fitzgerald primarily presses his claim that he was improperly ordered to take antipsychotic medications before he pleaded guilty.[2] It appears that at some point before the plea hearing, a District Court judge had granted a petition of the medical director of Bridgewater State Hospital to involuntarily commit Fitzgerald pursuant to G. L. c. 123, § 16 (b), and also granted the medical director’s separate petition seeking authority to treat him with antipsychotic medications pursuant to G. L. c. 123, § 8B. Then, in March, 2013, a second judge held the plea hearing at which Fitzgerald was represented by counsel. After finding him competent to stand trial,[3] and conducting a plea colloquy, the judge accepted his guilty pleas and sentenced him. To the extent that Fitzgerald now seeks through his G. L. c. 211, § 3, petition to have his pleas vacated, on the ground that he was improperly forced to take antipsychotic medications, and was under the influence of those medications when he tendered his guilty pleas, his request is misplaced. Such a request should be made in a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), which, if denied, is subject to review in the normal appellate process. A motion for a new trial filed in the trial court, and not a petition for general superintendence relief in this court, is the appropriate remedy. See Commonwealth v. Colon, 439 Mass. 519, 524 (2003), quoting Commonwealth v. Huot, […]
Categories: News Tags: 1004415, court, department, District, Fitzgerald, Lawyers, Trial, Weekly