Posts tagged "Matter"

In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-086-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12249

IN THE MATTER OF A GRAND JURY INVESTIGATION.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Moot Question.

The petitioner, R.C., appealed from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3.  R.C. has been indicted for possessing and distributing child pornography.  In his petition, he sought relief from an order of a Superior Court judge authorizing computers and digital storage devices (digital material) seized from his home to be searched for child pornography.  R.C., who is an attorney, argued that the digital material may contain privileged data provided to him by his clients and that the Superior Court judge’s order did not adequately protect any such privileged data because it does not conform to the protocol set forth in Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810 (2013).  After the single justice denied relief, R.C. moved to stay the Superior Court order pending this appeal.  We denied that motion, thereby allowing the search to proceed.  The Commonwealth has moved to dismiss this appeal as moot.  It represents that the search has taken place pursuant to the protocol set forth in the Superior Court order, that files allegedly containing child pornography were transmitted to R.C.’s counsel, and that R.C. does not claim that any of those files are protected by the attorney-client privilege.  R.C. has not disputed these representations or filed any response to the motion within the time set forth in Mass. R. A. P. 15 (a), 365 Mass. 859 (1974).  R.C.’s challenge to the Superior Court order has become moot, as that order has been fully carried out.  See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008).  No effective relief can be provided.  Moreover, we see no reason to believe that the issue is capable of repetition, yet evading review, and R.C. has offered none. read more

Posted by Stephen Sandberg - May 26, 2017 at 12:19 am

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In the Matter of an Application for a Criminal Complaint (Lawyers Weekly No. 10-088-17)

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; SJCReportersjc.state.ma.us

SJC-12062

IN THE MATTER OF AN APPLICATION FOR A CRIMINAL COMPLAINT.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Complaint, Standing.  Police Officer.

The petitioner appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3.  We affirm the judgment.

The petitioner, who was a Boston police officer, filed an application for a criminal complaint in the West Roxbury Division of the Boston Municipal Court (BMC), alleging that the respondent, her supervisor, committed an assault and battery against her.  The respondent was the commander of the police station falling within that court’s jurisdiction.  After a hearing, a clerk-magistrate denied the application for lack of probable cause.  G. L. c. 218, § 35A.  The petitioner moved for reconsideration and change of venue.  The application was transferred to the Charlestown Division of the BMC for rehearing by a clerk-magistrate, although it appears that the application was not docketed until almost one year later.  The petitioner requested that the matter be transferred out of Suffolk County to Bristol County.  That request was denied.  The respondent also requested a new hearing and change of venue on the ground that he had a business relationship with all the divisions of the BMC.  As a result, the application was transferred to the Dedham Division of the District Court Department, nearly three years after the application was transferred to the Charlestown Division of the BMC.[1]  A clerk-magistrate of that court denied the application, finding no probable cause.  The petitioner then filed her G. L. c. 211, § 3, petition, seeking both a rehearing on her application and a broader ruling requiring that applications for criminal complaints made against police officers be automatically transferred to a judge outside the police officer’s jurisdiction, rather than being heard by a clerk-magistrate in the first instance.  The single justice denied relief without a hearing. read more

Posted by Stephen Sandberg - May 25, 2017 at 8:44 pm

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In the Matter of Zak, David (Lawyers Weekly No. 10-055-17)

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-12073

IN THE MATTER OF DAVID ZAK.

April 10, 2017.

Attorney at Law, Disciplinary proceeding, Commingling of funds, Fee-sharing agreement, Advertising, Disbarment.

The respondent attorney, David Zak, appeals from a judgment of a single justice of this court disbarring him from the practice of law.[1]  We affirm.

Background.  Bar counsel filed a seven-count petition for discipline with the Board of Bar Overseers (board) against the respondent arising out of the respondent’s solicitation and handling of a substantial number of mortgage loan modification cases over more than a four-year period.  See note 10, infra.  Count one alleged that the respondent made payments to others to recommend his services and to solicit professional employment for the respondent from prospective clients;[2] shared fees with nonlawyers;[3] failed to instruct and supervise his employees and agents adequately;[4] and engaged in the practice of law with a person who was not a lawyer.[5]  Count two charged that the respondent made false and misleading advertisements about himself, his law firm, and his loan modification services, in Massachusetts and other jurisdictions.[6]  Count three alleged that the respondent charged and collected advance fees for loan modification services, in violation of Federal and State statutes and regulations, and that the fees he charged were either excessive or illegal, or both.[7]  Count four alleged that the respondent provided or caused to be provided to clients false, deceptive or misleading information about his loan modification services.[8]  Counts five, six, and seven alleged misconduct during the respondent’s handling of three specific loan modification matters, and in connection with bar counsel’s investigation of complaints filed by those clients. read more

Posted by Stephen Sandberg - April 10, 2017 at 4:40 pm

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In the Matter of N.L. (Lawyers Weekly No. 10-044-17)

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-12183

IN THE MATTER OF N.L.

Middlesex.     December 5, 2016. – March 14, 2017.

Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Mental Health.  Practice, Civil, Commitment of mentally ill person, Continuance, Moot case.  Moot Question.

Petitions for civil commitment and to authorize medical treatment filed in the Cambridge Division of the District Court Department on November 3, 2014.

A motion for a continuance was heard by Roanne Sragow, J., and the petitions were also heard by her. read more

Posted by Stephen Sandberg - March 14, 2017 at 5:05 pm

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Matter of Greene (Lawyers Weekly No. 10-184-16)

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-11935

MATTER OF EVAN A. GREENE.

December 2, 2016.

Attorney at Law, Disciplinary proceeding, Suspension.

The respondent attorney, Evan A. Greene, appeals from the order of a single justice of this court indefinitely suspending him from the practice of law.[1]  We affirm.

Background.  Bar counsel filed an amended three-count petition for discipline with the Board of Bar Overseers (board) against the respondent arising out of his participation in certain residential mortgage foreclosure “rescue transactions” during 2005 and 2006.  At the time, the respondent worked with his father, Attorney Barry D. Greene, at a law firm specializing in real estate transactions.[2]  Count one of the petition described seven similar transactions.  In each instance, a mortgage broker referred to the Greenes a homeowner who had either defaulted on a mortgage or was facing foreclosure, or both, but who had substantial equity in the property.  The broker was paid a referral fee.  The respondent (or his father) arranged for financing to purchase the property, and then entered into a purchase and sale agreement with the homeowner.  The respondent (or his father) also entered into a lease with the former owner, whereby he or she could remain in the property, and a one-year option-to-repurchase agreement.  In most cases, the lease payments exceeded the amount of the monthly mortgage payments.  In addition, each option agreement required the homeowner to pay a nonrefundable fee ranging from $ 27,000 to $ 50,000.  All of the homeowners defaulted on their monthly payments; only one homeowner exercised the option to repurchase. read more

Posted by Stephen Sandberg - December 2, 2016 at 5:54 pm

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In the Matter of Diviacchi (Lawyers Weekly No. 10-172-16)

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-12025

IN THE MATTER OF VALERIANO DIVIACCHI.

November 2, 2016.

Attorney at Law, Disciplinary proceeding, Suspension, Contingent fee agreement, Attorney-client relationship.  Supreme Judicial Court, Superintendence of inferior courts.  Administrative Law, Substantial evidence.  Board of Bar Overseers.

The respondent, Valeriano Diviacchi, appeals from an order of a single justice of this court suspending him from the practice of law for twenty-seven months, as recommended by the Board of Bar Overseers (board).  We affirm. read more

Posted by Stephen Sandberg - November 2, 2016 at 6:51 pm

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In the Matter of E.C. (Lawyers Weekly No. 11-095-16)

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
15-P-964 Appeals Court
IN THE MATTER OF E.C.
No. 15-P-964.
Plymouth. May 11, 2016. – August 3, 2016.
Present: Grainger, Meade, & Hanlon, JJ.
Incompetent Person, Commitment. Practice, Civil, Civil
commitment.
Petition for civil commitment filed in the Brockton
Division of the District Court Department on March 4, 2013.
The case was heard by Beverly J. Cannone, J., and a motion
for reconsideration was also heard by her.
Edward J. O’Donnell for the petitioner.
Joseph A. Robinson, Committee for Public Counsel Services,
for the respondent.
MEADE, J. Following a hearing pursuant to G. L. c. 123,
§ 16(b), a judge of the Dorchester Division of the Boston
Municipal Court Department (BMC) found E.C. incompetent to stand
trial and committed him to Bridgewater State Hospital (BSH) for
six months. After the § 16(b) commitment expired and the
2
underlying criminal charges against E.C. were dismissed, a judge
of the Brockton Division of the District Court Department
(Brockton District Court) denied BSH’s timely petition to extend
the commitment under G. L. c. 123, § 16(c). The judge also
denied BSH’s motion to amend that petition to one pursuant to
G. L. c. 123, §§ 7 and 8, seeking continued civil commitment of
a mentally ill person whose discharge from BSH would create a
likelihood of serious harm. The Appellate Division of the
District Court affirmed. On appeal, BSH claims error in the
denial of the original and amended petitions. We reverse.
Background. The material facts are not in dispute. On May
30, 2012, E.C. was charged in the BMC with malicious destruction
of property having a value greater than $ 250 in violation of
G. L. c. 266, § 127. Following a hearing pursuant to G. L.
c. 123, § 15(a), a judge ordered E.C. hospitalized pursuant to
G. L. c. 123, § 15(b), in order to evaluate his competency to
stand trial. Based on the resulting § 15(b) report, the judge
on August 7, 2012, found E.C. incompetent to stand trial.
Thereafter, pursuant to BSH’s G. L. c. 123, § 16(b), petition,
E.C. was committed to BSH for six months.1
1 General Laws c. 123, § 16(b), as amended by St. 1992,
c. 286, § 190, states in pertinent part:
“During the period of observation of a person believed to
be incompetent to stand trial or within sixty days after a
person is found to be incompetent to stand trial or not
3
As the expiration of the G. L. c. 123, § 16(b), commitment
drew near, on March 4, 2013, BSH petitioned in Brockton District
Court,2 pursuant to G. L. c. 123, § 16(c), for E.C.’s further
commitment. On March 7, 2013, when the initial six-month
§ 16(b) commitment expired,3 but prior to the hearing on BSH’s
§ 16(c) petition, the criminal charge pending in the BMC against
E.C. was dismissed over the Commonwealth’s objection. Shortly
after the dismissal, BSH filed a motion in the Brockton District
guilty of any crime by reason of mental illness or other
mental defect, the district attorney, the superintendent of
a facility or the medical director of the Bridgewater state
hospital may petition the court having jurisdiction of the
criminal case for the commitment of the person to a
facility or to the Bridgewater state hospital. However,
the petition for the commitment of an untried defendant
shall be heard only if the defendant is found incompetent
to stand trial, or if the criminal charges are dismissed
after commitment. If the court makes the findings required
by paragraph (a) of section eight it shall order the person
committed to a facility; if the court makes the findings
required by paragraph (b) of section eight, it shall order
the commitment of the person to the Bridgewater state
hospital; otherwise the petition shall be dismissed and the
person discharged. An order of commitment under the
provisions of this paragraph shall be valid for six
months.”
2 The Brockton District Court has been designated as the
site for all District Court civil commitment proceedings
pursuant to G. L. c. 123. See G. L. c. 123, § 5; G. L. c. 218,
§ 43A.
3 The Appellate Division determined that the period ended on
or around March 4, 2013, based on a docket entry explaining that
E.C. had been found incompetent and would not be brought to
court as scheduled on September 6, 2012. From this entry, the
Appellate Division presumed the six-month commitment would have
begun by that September 6 date at the latest and that the period
would have therefore concluded by March 4.
4
Court to amend its § 16(c) petition to one pursuant to G. L.
c. 123, §§ 7 and 8. On March 20, 2013, the judge denied the
motion to amend and determined that, following the dismissal of
the criminal case, the § 16(c) petition could “no longer serve
as a valid basis to detain [E.C.].” The judge also concluded
that after the criminal charge was dismissed, BSH lacked a valid
basis to retain E.C. and therefore could not pursue his
commitment under §§ 7 and 8 because he was no longer a patient.
The judge denied BSH’s subsequent motion for reconsideration.
As a result, E.C. was immediately released from BSH.4
BSH appealed the judge’s orders to the Appellate Division
of the District Court, which affirmed. In affirming the judge’s
decisions, the Appellate Division determined that the dismissal
of the criminal charge against E.C. terminated BSH’s authority
to proceed against him under G. L. c. 123, § 16(c), because the
“issue of E.C.’s competenc[y] was no longer before the court
once the criminal case was dismissed.”
The Appellate Division relied on G. L. c. 123, § 16(b),
which provides for continued commitment of a defendant following
the dismissal of criminal charges, and determined that G. L.
4 We agree with the parties’ assessment that, although E.C.
has been released, this case is not moot because the question it
presents falls within an exception to the mootness doctrine
because it is “capable of repetition, yet evading review.”
Karchmar v. Worcester, 364 Mass. 124, 136 (1973), quoting from
Southern Pac. Terminal Co. v. Interstate Commerce Commn., 219
U.S. 498, 515 (1911).
5
c. 123, § 16(c), which contains no such reference, does not
similarly apply. Therefore, the Appellate Division determined
that a pending criminal charge was a prerequisite for continued
retention, and applied that reasoning to § 16(c) to conclude
that BSH could not pursue further commitment following the
dismissal of E.C.’s charge. As BSH had moved to amend its
petition from one under § 16(c) to one under G. L. c. 123, §§ 7
and 8, the Appellate Division suggested that BSH recognized this
prerequisite. In the end, the Appellate Division affirmed,
reasoning that once the § 16(b) commitment period had run, BSH
lacked the authority to detain E.C. because he was no longer a
“patient” and, therefore, could not be subject to a petition
pursuant to §§ 7 and 8.
In addition, the Appellate Division held there was no
support in the record for BSH’s argument that the BMC judge
expected that E.C. would remain at BSH pending the hearing on
the G. L. c. 123, § 16(c), petition. Although the Appellate
Division acknowledged the logistical issues BSH faced in being
informed of the status of criminal charges where BSH itself is
not a party to those proceedings, the court nevertheless agreed
that the statutory framework did not allow for E.C.’s continuing
commitment under § 16(c) or §§ 7 and 8. This appeal followed.
Discussion. On appeal, BSH claims the denial of its
petition to commit E.C. was based on an erroneous interpretation
6
of G. L. c. 123, § 16(c). We agree. The proper interpretation
of § 16(c) is a question of law, which we review de novo. See
Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997).
“It is a fundamental principle of statutory construction that
‘statutory language should be given effect consistent with its
plain meaning and in light of the aim of the Legislature unless
to do so would achieve an illogical result.’” Commonwealth v.
Hatch, 438 Mass. 618, 622 (2003), quoting from Sullivan v.
Brookline, 435 Mass. 353, 360 (2001). Where the text is unclear
or ambiguous, “a statute must be interpreted according to the
intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.” Telesetsky v. Wight, 395 Mass. 868, 872
(1985), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328
(1983). Under these principles of statutory construction, we
evaluate the reach and limits of § 16(c) based on its plain
language and in the context of the statutory framework.
To begin, G. L. c. 123, § 6(a), inserted by St. 1986,
c. 599, § 38, states that “[n]o person shall be retained at a
facility or at the Bridgewater state hospital except . . .
during the pendency of a petition for commitment” (emphasis
7
supplied). As § 6(a) unambiguously authorizes retention of an
individual while a commitment petition is pending, and neither
makes reference to nor requires the condition of pending
criminal charges, BSH explicitly retained authority over E.C.
where it filed the G. L. c. 123, § 16(c), petition prior to or
concurrently with the expiration of the G. L. c. 123, § 16(b),
commitment. Pursuant to § 6, the subsequent dismissal of the
criminal charge against E.C. did nothing to alter the validity
of BSH’s pending commitment petition or its authority to retain
E.C while the petition was pending. See Commonwealth v. Hatch,
supra.
Furthermore, the underlying purpose of G. L. c. 123, § 16,
supports BSH’s claim that it retained the appropriate authority
over E.C. to proceed on the § 16(c) petition for his commitment.
However, the Appellate Division determined that because § 16(c),
in contrast with § 16(b), contains no reference to the effect
dismissal of criminal charges has on commitment, it therefore
does not provide for continuing commitment after that dismissal.
We disagree. Section 16(c), inserted by St. 1986, c. 599, § 38,
provides in relevant part:
“After the expiration of a commitment under paragraph (b)
of this section, a person may be committed for additional
one year periods under the provisions of sections seven and
eight of this chapter, but no untried defendant shall be so
committed unless in addition to the findings required by
sections seven and eight the court also finds said
defendant is incompetent to stand trial. If the person is
8
not found incompetent, the court shall notify the court
with jurisdiction of the criminal charges, which court
shall thereupon order the defendant returned to its custody
for the resumption of criminal proceedings.”
Although we do not read language from § 16(b) into a provision
from which it is absent, see Commonwealth v. Dodge, 428 Mass.
860, 865 (1999) (“[w]here the Legislature has employed specific
language in one [section of an act], but not in another, the
language should not be implied where it is not present”
[quotation omitted]), the statute nonetheless “should be read as
a whole to produce an internal consistency.” Telesetsky v.
Wight, supra at 873.
Moreover, because “we must read the statute in a way to
give it a sensible meaning,” Beeler v. Downey, 387 Mass. 609,
616 (1982), we do not read G. L. c. 123, § 16(c), to require a
patient’s immediate release after dismissal of underlying
criminal charges where § 16 generally acknowledges BSH’s
continuing authority and ability to petition for further
commitment after the dismissal. Specifically, G. L. c. 123,
§ 16(b), permits a petition to commit an untried defendant for
six months “only if the defendant is found incompetent to stand
trial, or if the criminal charges are dismissed after
commitment.”5 If dismissal of criminal charges immediately
5 E.C. suggests that G. L. c. 123, § 16(b), should be read
as follows: “[T]he petition for the commitment of an untried
defendant shall be heard only if the defendant is found
9
terminated the commitment order and BSH’s authority over a
patient under § 16(c) as a matter of law, the § 16(b) reference
to pursuing further commitment of an untried defendant following
the dismissal would be rendered meaningless, particularly
because § 16(c) extends the § 16(b) six-month commitment by
additional one-year periods based on the same considerations.6
See Bynes v. School Comm. of Boston, 411 Mass. 264, 267-268
(1991). Therefore, the dismissal of criminal charges does not
immediately terminate BSH’s authority over a patient.
Other subsections of G. L. c. 123, § 16, lend support to
our conclusion that the dismissal of criminal charges neither
requires immediate discharge of a patient nor terminates BSH’s
ability to petition for further commitment after the dismissal.
incompetent to stand trial, or [if found competent,] the
criminal charges are dismissed after commitment.” He claims
that because only the district attorney will know when criminal
charges will be dismissed after a commitment hearing, only the
district attorney, not BSH, has the authority to file a petition
for continued commitment after charges are dismissed.
Therefore, he claims, § 16(b) is inapplicable to our
interpretation of § 16(c). This interpretation reads a
limitation into the statute that does not exist. This we cannot
do. Rather, “where two or more statutes relate to the same
subject matter, they should be construed together so as to
constitute a harmonious whole consistent with the legislative
purpose.” Board of Educ. v. Assessor of Worcester, 368 Mass.
511, 513-514 (1975).
6 Both G. L. c. 123, §§ 7(b) and 8(b), to which G. L.
c. 123, § 16(b) and (c), refer, provide for the commitment to
BSH of a mentally ill male patient where the failure to retain
an individual in “strict security” or “strict custody” would
pose a “likelihood of serious harm.”
10
For example, the first sentence of § 16(e), inserted by St.
1986, c. 599, § 38, provides that “[a]ny person committed to a
facility under the provisions of this section may be restricted
in his movements to the buildings and grounds of the facility at
which he is committed by the court which ordered the
commitment.” However, the concluding sentence of § 16(e)
states: “This paragraph shall not apply to persons originally
committed after a finding of incompetenc[y] to stand trial whose
criminal charges have been dismissed.” Thus, the Legislature
clearly contemplated circumstances where a patient’s commitment
could continue after the dismissal of criminal charges.
Similarly, G. L. c. 123, § 16(f),7 does not call for a
patient’s immediate discharge following the dismissal of
7 Section 16(f) of G. L. c. 123, inserted by St. 1986,
c. 599, § 38, states:
“If a person is found incompetent to stand trial, the court
shall send notice to the department of correction which
shall compute the date of the expiration of the period of
time equal to the time of imprisonment which the person
would have had to serve prior to becoming eligible for
parole if he had been convicted of the most serious crime
with which he was charged in court and sentenced to the
maximum sentence he could have received, if so convicted.
For purposes of the computation of parole eligibility, the
minimum sentence shall be regarded as one half of the
maximum sentence potential sentence. Where applicable, the
provisions of sections one hundred and twenty-nine, one
hundred and twenty-nine A, one hundred and twenty-nine B,
and one hundred and twenty-nine C of chapter one hundred
and twenty-seven shall be applied to reduce such period of
time. On the final date of such period, the court shall
dismiss the criminal charges against such person, or the
11
criminal charges. To the contrary, § 16(f) supports the
interpretation that, under G. L. c. 123, § 16(c), BSH retained
authority over E.C. after the dismissal. Although the Appellate
Division concluded that § 16(f) contains language that suggests
that the existence of a criminal case is a statutory condition
precedent to commit a patient under § 16, we disagree because
the pendency of criminal charges is separate from the procedure
for discharging a patient. Indeed, § 16(f) provides that the
court must send a notice to the Department of Correction when a
person is found to be incompetent to stand trial, in order to
establish the date on which the charges must be dismissed.
Section 16(f) does not require the immediate discharge of a
patient or termination of a pending petition for further
commitment. If the Legislature intended a § 16 commitment to
terminate upon dismissal of the underlying criminal charges, it
presumably would have inserted in § 16(f) the same clear
instruction to release that is found in G. L. c. 123, § 18(c).8
In contrast, § 16(c) provides for one-year, renewable periods of
commitment based on incompetency to stand trial and the findings
court in the interest of justice may dismiss the criminal
charges against such person prior to the expiration of such
period.”
8 Section 18(c) of G. L. c. 123 provides the commitment
sentence for mentally ill prisoners, calculates the appropriate
period of hospitalization based on the prisoner’s sentence, and
permits discharge on that specified calculated date. Section 16
makes no such reference to an immediate discharge.
12
required by G. L. c. 123, §§ 7 and 8, not the underlying
criminal charges and accompanying sentences.
Furthermore, nothing in G. L. c. 123, § 16(f), requires
immediate discharge of a patient or terminates BSH’s authority
after dismissal of criminal charges, nor do we read such a
requirement into that section of the statute. See Commonwealth
v. Dodge, 428 Mass. at 865. Despite the absence of any explicit
reference to dismissal of criminal charges in G. L. c. 123,
§ 16(c), the relevant provisions of § 16, read together,
indicate that dismissal does not automatically terminate the
commitment order or BSH’s authority.
In addition, the Appellate Division erred by holding that
E.C. was no longer a patient once his criminal charge had been
dismissed. The Appellate Division’s view of who qualified as a
patient was too narrow. Pursuant to G. L. c. 123, § 1, as
amended through St. 1989, c. 117, § 3, a “patient” is defined as
“any person with whom a licensed mental health professional has
established a mental health professional-patient relationship.”
After E.C.’s relationship with the licensed mental health
professionals had commenced, the dismissal of the criminal
charge underlying his commitment did nothing to alter his
patient relationship with BSH.
As discussed above, the dismissal of the criminal charge
did not automatically discharge E.C., nor did it terminate BSH’s
13
authority over E.C. or its ability to petition for his
continuing commitment. E.C.’s argument, and the Appellate
Division’s conclusion, that he was no longer a “patient” under
G. L. c. 123 is contrary to the plain meaning of § 1.9 See
Commonwealth v. Ray, 435 Mass. 249, 252 (2001) (“when the text
of a statute is clear and unambiguous, it must be construed in
accordance with its plain meaning”). Because the dismissal of
the criminal charge did not require E.C.’s immediate discharge,
BSH retained authority over E.C. as a “patient,” and the
Appellate Division erred in concluding otherwise.
Finally, although the Appellate Division held that E.C.’s
competency was no longer at issue once the charge had been
dismissed, the G. L. c. 123, § 16(c), petition was an
appropriate vehicle to seek his continued confinement. Because
commitment under § 16(c) explicitly requires the same findings
required by G. L. c. 123, §§ 7 and 8, there is no substantive
distinction between the standards governing an extended
commitment under § 16(c) and the commitment of persons under
§§ 7 and 8. Thus, it was not necessary for BSH to amend its
9 To the extent the Appellate Division’s case law defines
“patient” otherwise, we are not bound by it. See Matter of
C.B., 2013 Mass. App. Div. 42. In any event, the narrow
definition of “patient” accepted in C.B. contemplated the
commitment of an individual who, unlike E.C., was found
competent to stand trial prior to BSH’s petition under G. L.
c. 123, § 16(c).
14
petition to one pursuant to §§ 7 and 8, and we do not reach the
issue whether it was error to deny the motion to amend.
Conclusion. The decision and order of the Appellate
Division is reversed. A new order shall enter modifying the
Brockton District Court order to provide that BSH is authorized
to seek additional commitment pursuant to G. L. c. 123, § 16(c).
So ordered. read more

Posted by Stephen Sandberg - August 3, 2016 at 11:55 pm

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In the Matter of Weiss (Lawyers Weekly No. 10-039-16)

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-11890

IN THE MATTER OF RICHARD S. WEISS.

March 17, 2016.

Attorney at Law, Suspension, Reinstatement.

The petitioner, Richard S. Weiss, appeals from the judgment of a single justice of this court denying his petition for reinstatement to the bar.  We affirm.

After Weiss “stipulated to facts warranting the conclusion that he violated the applicable disciplinary rules,” see Matter of Weiss, 460 Mass. 1012, 1013 (2011), he was suspended from the practice of law for one year and one day, effective May 20, 2011His first petition for reinstatement was denied by a single justice of this court in 2013, and he was given leave to reapply for reinstatement on or after January 1, 2014.  See S.J.C. Rule 4:01, § 18 (8), as appearing in 453 Mass. 1315 (2009).  He filed a second petition for reinstatement on June 25, 2013.  The single justice denied the petition without prejudice to filing a new petition on or after January 1, 2014.  The petition he filed thereafter, his third, is the subject of this appeal. read more

Posted by Stephen Sandberg - March 17, 2016 at 9:50 pm

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In the Matter of Chalupowski (Lawyers Weekly No. 10-191-15)

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-11548

IN THE MATTER OF MALGORZATA CHALUPOWSKI.

December 1, 2015.

Attorney at Law, Admission to practice, Bar application.  Supreme Judicial Court, Membership in the bar.  Practice, Civil, Membership in the bar.

On May 16, 2008, Malgorzata Chalupowski applied for admission to the Massachusetts bar.  She took and passed the written bar examination in July, 2008.  After reviewing the disclosures included in her application, the Board of Bar Examiners (board) requested a meeting to address certain areas of concern.  Chalupowski attended an informal meeting with the board in November, 2008, after which the board notified her that it was going to conduct a hearing to determine whether she “is of good moral character and sufficient acquirements and qualifications” for admission to the bar.  G. L. c. 221, § 37.  See S.J.C. Rule 3:01, § 5.1, as appearing in 411 Mass. 1321 (1992).  The board then appointed a special counsel to conduct an investigation prior to the hearing, which included, among other things, meeting with Chalupowski, interviewing various individuals regarding Chalupowski’s character and fitness to practice law, and reviewing numerous documents and other materials. read more

Posted by Stephen Sandberg - December 1, 2015 at 5:26 pm

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In the Matter of G.P. (Lawyers Weekly No. 10-179-15)

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-11911

IN THE MATTER OF G.P.

Suffolk.     September 10, 2015. – November 5, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Practice, Civil, Civil commitment, Standard of proof, Hearsay, Appeal, Moot case.  Uniform Trial Court Rules for Civil Commitment Proceedings.  Moot Question.  Words, “Likelihood of serious harm,” “Very substantial risk.”

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 1, 2015. read more

Posted by Stephen Sandberg - November 5, 2015 at 3:18 pm

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