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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
Gallagher v. First Assistant Clerk-Magistrate of the Newburyport District Court, et al. (Lawyers Weekly No. 10-190-14)
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-11592 ROBERT GALLAGHER vs. FIRST ASSISTANT CLERK-MAGISTRATE OF THE NEWBURYPORT DISTRICT COURT & others.[1] November 28, 2014 Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Attorney’s fees, Small claims procedure. District Court, Small claims procedure. Robert Gallagher appeals from a judgment of a single justice of this court dismissing his petition for relief under G. L. c. 211, § 3. In his petition, he sought relief from final judgments entered in two cases in the District Court Department. In one of the cases, after Gallagher prevailed on a complaint brought against him under the harassment prevention statute, G. L. c. 258E, the judge failed to act on his request for attorney’s fees. In the other case, judgment was entered against him on a G. L. c. 93A claim that he brought in the small claims session. As to the former case, Gallagher had, but did not pursue, adequate alternative remedies, both in the trial court and through the ordinary appellate process.[2] “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.” Votta v. Police Dep’t of Billerica, 444 Mass. 1001, 1001 (2005). See Foley v. Lowell Div. of the Dist. Ct. Dep’t, 398 Mass. 800, 802 (1986), and cases cited (“Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied”). As to the latter case, it is well established that “a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment.” Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 (2014), and cases cited. The single justice properly declined to grant extraordinary relief.[3] Judgment affirmed. The case was submitted on briefs. Robert J. Gallagher, pro se. Bryan F. Bertram, Assistant Attorney General, for the Commonwealth. [1] A Justice of the Lawrence District Court, the clerk-magistrate of the Lawrence District Court, Stephen D’Angelo, Mary McCauley-Manzi, and Catherine W. Wnek. [2] For example, Gallagher could have moved […]
Superintendent-Director of Assabet Valley Regional Vocational School District v. Speicher (Lawyers Weekly No. 10-159-14)
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-11563 SUPERINTENDENT-DIRECTOR OF ASSABET VALLEY REGIONAL VOCATIONAL SCHOOL DISTRICT vs. ANN MARIE SPEICHER. Suffolk. May 5, 2014. – September 11, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Arbitration, Authority of arbitrator, Judicial review, Award, School committee. Education Reform Act. Statute, Construction. School and School Committee, Arbitration, Suspension from employment. Public Employment, Suspension. Civil action commenced in the Superior Court Department on May 18, 2011. The case was heard by Paul E. Troy, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Tim D. Norris for the plaintiff. Sheilah F. McCarthy for the defendant. Will Evans & Quesiyah S. Ali, for Massachusetts Teachers Association, amicus curiae, submitted a brief. SPINA, J. In this case we are asked to decide whether an arbitrator exceeded his authority by reviewing the merits of a twenty-day suspension of a school librarian having professional teacher status. The librarian had been suspended for “conduct unbecoming” the librarian, pursuant to G. L. c. 71, § 42D. The arbitrator applied a just cause standard of review and overturned the suspension on the ground that the school district failed to meet its burden of proof. The school district filed an action to vacate the arbitrator’s award under G. L. c. 150C, § 11, and for declaratory relief under G. L. c. 231A. A judge in the Superior Court denied the school district’s motion for judgment on the pleadings, and allowed the librarian’s cross-motion for judgment on the pleadings, thereby confirming the arbitrator’s award. The school district appealed, and we transferred the case from the Appeals Court on our own motion. We hold that the arbitrator did not exceed his authority by reviewing the merits of the suspension. We further hold that the proper standard of review is whether the district sustained its burden of proving by a preponderance of the evidence the particular reason cited for the suspension. We affirm the judgment of the Superior Court.[1] 1. Background. The librarian, Ann Marie Speicher, had been employed as a school librarian for at least three consecutive school years by the Assabet Valley Regional School District (district) as of October 29, 2009. As such, she was considered a “teacher” under G. L. c. 71, § 41, and entitled to professional teacher status under […]
Doe, et al. v. Acton-Boxborough Regional School District, et al. (Lawyers Weekly No. 10-078-14)
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‑11317 JANE DOE[1] & others[2] vs. ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT & others.[3] Middlesex. September 4, 2013. ‑ May 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Equal protection of laws, Equal Rights Amendment, Education. School and School Committee, Regional school district. Civil action commenced in the Superior Court Department on November 10, 2010. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Eric C. Rassbach, of the District of Columbia (Diana M. Verm, of the District of Columbia, & J. Patrick Kennedy with him) for the interveners. Geoffrey R. Bok for the defendants. David A. Niose for the plaintiffs. The following submitted briefs for amici curiae: Andrew P. Blake, David S. Petron, Judith C. Gallagher, & Christopher R. Mills, of the District of Columbia, for Steven Palazzo & others. David A. Cortman, of Georgia, Jeremy D. Tedesco, of Arizona, & Andrew D. Beckwith for Alliance Defending Freedom & another. Jay Alan Sekulow, Stuart J. Roth, & Colby M. May, of the District of Columbia, Erik M. Zimmerman, of Virginia, & Carly F. Gammill, of Tennessee, for American Center for Law and Justice. Ronald A. Lindsay & Karla Grossenbacher, of the District of Columbia, for Center for Inquiry. Thomas R. McCarthy & Brendan J. Morrissey, of the District of Columbia, Kelly J. Shackelford & Hiram S. Sasser, III, of Texas, & Gregory D. Cote for The American Legion & another. Martha Coakley, Attorney General, & Amy Spector, Assistant Attorney General, for the Commonwealth. IRELAND, C.J. This case presents two questions of State constitutional and statutory law: first, whether the daily recitation of our Nation’s pledge of allegiance (pledge) in the defendants’ schools violates the plaintiffs’ equal protection rights under the Massachusetts Constitution, because the pledge includes the words “under God”; and second, whether the recitation of the pledge violates G. L. c. 76, § 5, which prohibits discrimination in Massachusetts public school education. We hold that the recitation of the pledge, which is entirely voluntary, violates neither the Constitution nor the statute. 1. Procedural background. The plaintiffs, Jane Doe and John Doe, commenced this action in the Superior Court challenging the practice by which the pledge is […]
Diatcehnko v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-202-13)
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‑11453 GREGORY DIATCHENKO vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[1] Suffolk. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Retroactivity of judicial holding. Due Process of Law, Sentence, Parole. Parole. Retroactivity of Judicial Holding. Homicide. Practice, Criminal, Sentence, Parole, Retroactivity of judicial holding, Capital case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another. The following submitted briefs for amici curiae: Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. Annie L. Owens, of the District of Columbia, & Emily R. Schulman for Massachusetts Association of Criminal Defense Lawyers & others. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 P.M. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.[2] On direct appeal, this court affirmed Diatchenko’s conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.[3] Id. at 721-727. Diatchenko’s conviction thus became final.[4] Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) […]
Commissioners of the Bristol County Mosquito Control District v. State Reclamation and Mosquito Control Board, et al. (Lawyers Weekly No. 10-184-13)
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‑11320 COMMISSIONERS OF THE BRISTOL COUNTY MOSQUITO CONTROL DISTRICT[1] vs. STATE RECLAMATION AND MOSQUITO CONTROL BOARD & another.[2] Bristol. September 3, 2013. ‑ October 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mosquito Control. Statute, Construction. Moot Question. Civil action commenced in the Superior Court Department on October 8, 2009. The case was heard by Raymond P. Veary, Jr., J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Burke, Jr., for the plaintiffs. Amy Spector, Assistant Attorney General, for the defendants. BOTSFORD, J. The dispute in this case concerns the authority of the plaintiff commissioners of the Bristol County Mosquito Control Project (Bristol project), an entity that operates under G. L. c. 252 and is subject to oversight by the defendant State Reclamation and Mosquito Control Board (board), to establish unilaterally the compensation rates for the individuals who are employed by the Bristol project to carry out its mosquito control programs and functions. At the heart of this dispute is the meaning of G. L. c. 252, § 14D (§ 14D), which was enacted in 2008. The plaintiffs initiated this action in 2009, seeking a declaration that under § 14D, they have the authority to hire and set the compensation rates for the project’s employees and to retain legal counsel; they also sought an order of mandamus requiring the defendant Treasurer and Receiver General (Treasurer) to pay those employees the salary increases due to them. On cross-motions for summary judgment, a Superior Court judge allowed the board’s motion and dismissed the complaint. We conclude that the summary judgment record is insufficient to determine whether the plaintiffs are entitled as matter of law to the relief they seek. Accordingly, we vacate the judgment of the Superior Court and remand for further proceedings. Statutory scheme. General Laws c. 252 governs the structure and function of the board as well as local mosquito control districts and projects such as the Bristol project. We summarize its relevant provisions. The board is established by G. L. c. 252, § 2, and, pursuant to that section, exists within the State agency formerly known, and referred to in § 2, as the Department of Food […]
Leder v. Superintendent of Schools of Concord & Concord-Carlyle Regional School District, et al. (Lawyers Weekly No. 10-095-13)
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‑11224 PAUL LEDER[1] vs. SUPERINTENDENT OF SCHOOLS OF CONCORD & CONCORD-CARLYLE REGIONAL SCHOOL DISTRICT & others.[2] Middlesex. February 7, 2013. ‑ May 31, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. School and School District. School and School Committee, Superintendent of schools, Regional school district. Municipal Corporations, Contracts. Contract, Bidding for contract, Regional school district. Injunction. Practice, Civil, Preliminary injunction. State Ethics Commission. Conflict of Interest. Civil action commenced in the Superior Court Department on August 15, 2011. A motion for preliminary injunctive relief was heard by Garry V. Inge, J. A petition for interlocutory review was heard in the Appeals Court by Elspeth B. Cypher, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kwabena B. Abboa-Offei for the plaintiff. Adam Simms for the defendants. Andrew P. Botti & David K. Moynihan, for David K. Moynihan & another, amici curiae, submitted a brief. Martha Coakley, Attorney General, & Deirdre Roney, Special Assistant Attorney General, for State Ethics Commission, amicus curiae, submitted a brief. GANTS, J. The issue on appeal is whether, under G. L. c. 268A, § 21 (a), as appearing in by St. 2009, c. 28, § 80, a party may obtain declaratory or injunctive relief rescinding an action taken by a municipal agency based on an alleged violation of G. L. c. 268A, § 23, where the State Ethics Commission (commission) has made no finding of a violation and where the municipal agency has not requested this relief. We conclude that a finding of a violation of § 23 by the commission after an adjudicatory proceeding and a request for rescission by the municipal agency are both prerequisites to the filing of a complaint seeking rescission under G. L. c. 268A, § 21 (a). Because neither prerequisite has been met in this case, we affirm the denial of the plaintiff’s motion for a preliminary injunction and remand the case to the Superior Court with instructions to dismiss the complaint.[3] Background. The facts are not materially in dispute. The plaintiff, Paul Leder, doing business as Spencer Brook Strings (SBS), operates a musical instrument sale and rental business that rents string instruments to students in various school districts throughout Massachusetts, including the Concord public schools and the Concord-Carlisle Regional School District (collectively, school district). Since […]
Lee and Linehan Will Face Off for South End City Council District
It’s official: As of Tuesday’s deadline for signatures, candidates Suzanne Lee and incumbent Bill Linehan had turned in the required numer of signatures to qualify for this year’s city council election. Lee, of Chinatown, and Linehan, of South Boston, are the only two candidates in the race for the District 2 City Council Seat, which includes the South End, Chinatown, South Boston and Bay Village. The 2013 race is an exact copy of the 2011 race, which Linehan won over Lee by less than 100 votes. “I am confident that my first six years in office will stand up in comparison to anyone who has held office both as a State or City elected official from the neighborhoods of South Boston, South End, Chinatown, Bay Village, Downtown and look forward to continuing my efforts and improve on my ability to deliver for the people of District 2,” said Linehan in a statement. “As I’ve continued to talk to residents throughout the district, I still hear concerns about jobs and liveable wages, about ensuring that every child has a quality education and about making Boston a place where families can find affordable housing options,” Lee said. “As City Councilor, I will build on my years of service to our communities and work hard to deliver the results that our families deserve.” The next step in the process is for the registrar to verify all 200 signatures for each candidate by June 25th. The preliminary election will be held on Sept. 24th, with the final election to be held on November 5. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Two Candidates in Race for South End’s City Council District
As of Monday, May 13, which was the last day to pull nomination papers, two candidates were in the race for the South End’s District 2 city council race. Those candidates are South Boston’s Bill Linehan and Chinatown’s Suzanne Lee. If those names sound like deja vu, that’s because they are. The 2013 race is an exact copy of the 2011 race, which Linehan won over Lee by less than 100 votes. “I am confident that my first six years in office will stand up in comparison to anyone who has held office both as a State or City elected official from the neighborhoods of South Boston, South End, Chinatown, Bay Village, Downtown and look forward to continuing my efforts and improve on my ability to deliver for the people of District 2,” said Linehan in a statement. “As I’ve continued to talk to residents throughout the district, I still hear concerns about jobs and liveable wages, about ensuring that every child has a quality education and about making Boston a place where families can find affordable housing options,” Lee said. “As City Councilor, I will build on my years of service to our communities and work hard to deliver the results that our families deserve.” The two candidates have until May 21 to file their nomination papers at the Boston Election Department. Each needed 200 certified signatures to be elligible to run for office. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
District Attorney Conley Announces Bid for Mayor
In a statement sent to the press, Suffolk County District Attorney Daniel F. Conley declared his candidacy for mayor on Wednesday afternoon. “Boston is a great city, and with the right leadership and vision, its best days are still ahead,” his statement said. “So today I am officially declaring that I am a candidate for Mayor of Boston.” In his announcement, Conley said Boston needs to find a balance between the poor and vulnerable, middle class families, and economic hope and mobility, all while staying transparent and accountable. “Boston can only reach its full promise and potential when every one of its residents has a fair chance to reach theirs,” he said. “I intend to put my heart and soul (and several pairs of shoes) into this campaign.” Read Conley’s full announcement here: Boston is a great city, and with the right leadership and vision, its best days are still ahead. So today I am officially declaring that I am a candidate for Mayor of Boston. My entire career has been dedicated to giving voice to the voiceless and hope to the most poor and vulnerable among us. Boston needs to be a city where long-time residents and those fixed on incomes can feel secure, and where middle class families aren’t priced out. It means making Boston a place where younger residents can start careers and families, and where our poorest neighbors can find real economic hope and mobility. To make Boston the city we want it to be requires a mayor who can make tough decisions, even when they offend powerful interests and upset the status quo. It’s going to require a mayor who leads with integrity, for whom transparency is a way of doing business and not just a buzzword, and who will ensure that city government is responsive and accountable to the people it serves. We’ll need a mayor who can manage and innovate in good times and tough times. We’ll need a mayor who has worked with residents and businesses in every neighborhood and has built partnerships with every conceivable constituency. Finally, we need a mayor who recognizes Boston as a city defined not by old divisions and superficial differences but by our shared hopes and aspirations. I’ve done these things. These qualities are the hallmarks of my career and the leadership I will bring to the Mayor’s office. So if you are like me and love this city and want to see it live up to its full promise and potential, then my campaign is your campaign. Boston can only reach its full promise and potential when every one of its residents has a fair chance to […]