Posts tagged "Probation"

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

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

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

Categories: News   Tags: , , , ,

Brown v. Office of the Commissioner of Probation (Lawyers Weekly No. 10-161-16)

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-11987   HELEN BROWN  vs.  OFFICE OF THE COMMISSIONER OF PROBATION.       Suffolk.     March 7, 2016. – October 11, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Governmental Immunity.  Commonwealth, Claim against.  Judgment, Interest.  Interest.  Damages, Interest, Punitive, Attorney’s fees.  Practice, Civil, Interest, Costs, Attorney’s fees.       Civil action commenced in the Superior Court Department on August 13, 2007.   Following review by the Appeals Court, 84 Mass. App. Ct. 1109 (2013), a motion for postjudgment interest was considered by Paul E. Troy, J., and judgment was entered by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff. Sally A. VanderWeele, Assistant Attorney General, for the Office of the Commissioner of Probation. Jamie Goodwin, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief.     LENK, J.  In this case, we consider whether sovereign immunity bars a plaintiff who is awarded punitive damages, costs, and attorney’s fees as part of a judgment under G. L. c. 151B, § 9, from recovering postjudgment interest on those awards from a public employer.  The trial judge denied a request by the plaintiff, Helen Brown, for such interest, concluding that sovereign immunity has not been waived with respect to such interest, and judgment was entered accordingly.  A divided panel of the Appeals Court affirmed the judgment, see Brown v. Office of the Commissioner of Probation, 87 Mass. App. Ct. 729, 735 (2015), and we allowed the plaintiff’s application for further appellate review.  Because we conclude that G. L. c. 151B, § 9, does not waive sovereign immunity from liability for postjudgment interest, either expressly or by necessary implication, we affirm.[2] Background.  We recite only those facts necessary for understanding in context the question of law at issue here.  The plaintiff and a colleague sued the defendant, the office of the Commissioner of Probation, for sex discrimination, race discrimination, and retaliation, pursuant to the procedure set forth in G. L. c. 151B, § 9.  On February 9, 2011, a Superior Court jury found for the plaintiff on her retaliation claim,[3] and awarded $ 6,000 in compensatory damages and $ 500,000 in punitive damages.  The award of punitive damages was reduced to $ 108,000 by an order of remittitur.  […]

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Posted by Massachusetts Legal Resources - October 12, 2016 at 12:24 am

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Goe v. Commissioner of Probation (Lawyers Weekly No. 10-035-16)

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-11841   GEORGE GOE[1]  vs.  COMMISSIONER OF PROBATION & another.[2]       Suffolk.     November 2, 2015. – March 14, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Practice, Criminal, Probation.  Interstate Compact for Adult Offender Supervision.  Global Positioning System Device.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 29, 2015.   The case was reported by Cordy, J.     Beth L. Eisenberg, Committee for Public Counsel Services (Lily Lockhart, Committee for Public Counsel Services, & Spencer Lord with her) for the petitioner. Steven R. Strom, of Connecticut, for the intervener. Sarah M. Joss, Special Assistant Attorney General, for Commissioner of Probation. U. Gwyn Williams, Laura Carey, & Charles Stones, for Citizens for Juvenile Justice & another, amici curiae, submitted a brief.     GANTS, C.J.  This case comes to us on a reservation and report from the single justice asking the following questions: “(1) Whether the Massachusetts courts are the appropriate forum for challenging additional probation conditions imposed on a probationer transferred to Massachusetts pursuant to the Interstate Compact for Adult Offender Supervision; and, if so, what is the proper mechanism for mounting such a challenge?   “(2) Whether a transferee probationer is entitled to actual notice of mandatory [global positioning system (GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from the sentencing judge, or whether such notice is implied or waived by a petitioner’s voluntary transfer to Massachusetts[?]   “(3) Whether mandatory GPS monitoring for crimes committed as a minor constitutes cruel and unusual punishment, where the minor was convicted as an adult in another jurisdiction?   “(4) Whether the Commissioner of Probation’s Policy on the Issuance of Travel Permits is ultra vires; and, if not, whether the application of that policy to the petitioner violated his right to interstate travel?”   In answer to the first question, we conclude that, where a probationer whose supervision is transferred to Massachusetts under the Interstate Compact for Adult Offender Supervision (compact) contends that a special condition of probation that was added by Massachusetts is not mandated by Massachusetts law or is unconstitutional, this determination is appropriately made by a Massachusetts court, and the appropriate mechanism to obtain such a determination is through a complaint for declaratory relief.  We also conclude that […]

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Posted by Massachusetts Legal Resources - March 14, 2016 at 3:07 pm

Categories: News   Tags: , , , ,

Wing v. Commissioner of Probation (Lawyers Weekly No. 10-204-15)

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-11842   ELMER WING  vs.  COMMISSIONER OF PROBATION. Suffolk.     September 8, 2015. – December 28, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Criminal Records.  Evidence, Criminal records, Disclosure of evidence, Impeachment of credibility.  Practice, Criminal, Record, Disclosure of evidence, Discovery, Witness, Confrontation of witnesses.  Statute, Construction.  Constitutional Law, Access to criminal records, Witness, Confrontation of witnesses.  Due Process of Law, Disclosure of evidence, Impeachment by prior conviction.  Witness, Impeachment.  Destruction of Property.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 12, 2015.   The case was reserved and reported by Cordy, J.     Adam M. Bond for the plaintiff. Sarah M. Joss, Special Assistant Attorney General, for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth.        HINES, J.  In this appeal we decide whether a criminal defendant’s right to disclosure of a prospective witness’s criminal record under the mandatory discovery provisions of G. L. c. 218, § 26A, and Mass. R. Crim. P. 14 (a) (1) (D), as amended, 444 Mass. 1501 (2005), extends to a criminal record sealed under G. L. c. 276, § 100A.  Elmer Wing, who stands charged with malicious destruction of property over $ 250 on a complaint issued in the Wareham Division of the District Court Department, sought an order compelling production of the complaining witness’s sealed criminal record.  A judge denied the motion.  The matter is now before us on a single justice’s reservation and report of Wing’s petition for relief under G. L. c. 211, § 3, to the full court. Wing claims that the mandatory disclosure required by G. L. c. 218, § 26A, and rule 14 (a) (1) (D) is not subject to an exception for sealed criminal records.  He also claims that disclosure is necessary to effect his constitutional right to confrontation of the complaining witness.  Reading the potentially conflicting statutes harmoniously, as we are obliged to do, we conclude that G. L. c. 218, § 26A, and rule 14 (a) (1) (D) do not require disclosure of criminal records sealed pursuant to G. L. c. 276, § 100A.[1]  We conclude also that Wing has failed to establish a constitutional right to disclosure for confrontation purposes where he seeks only impeachment based on the witness’s prior criminal conviction. Background.  We summarize only those aspects of the procedural history pertinent to the resolution of the issues presented in this appeal.  Although the facts underlying the charge of malicious […]

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Posted by Massachusetts Legal Resources - December 28, 2015 at 5:00 pm

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Brown v. Office of the Commissioner of Probation (Lawyers Weekly No. 11-086-15)

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-1055                                       Appeals Court   HELEN BROWN  vs.  OFFICE OF THE COMMISSIONER OF PROBATION. No. 14-P-1055. Suffolk.     April 21, 2015. – August 4, 2015.   Present:  Green, Fecteau, & Agnes, JJ.     Public Employment.  Governmental Immunity.  Judgment, Interest. Damages, Punitive, Interest, Attorney’s fees.  Interest. Waiver.  Practice, Civil, Interest, Waiver, Attorney’s fees, Costs.       Civil action commenced in the Superior Court Department on August 13, 2007.   Following review by this court, 84 Mass. App. Ct. 1109 (2013), a motion for postjudgment interest was considered by Paul E. Troy, J., and judgment was entered by him.     Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff. Sally A. VanderWeele, Assistant Attorney General, for the defendant. David A. Russcol, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.      FECTEAU, J.  This case presents the novel issue of whether a plaintiff who recovers punitive damages as part of a judgment under the provisions of G. L. c. 151B, § 9, against a subdivision of the Commonwealth may be awarded postjudgment interest on that award and on the award of attorney’s fees and costs, or whether sovereign immunity bars such interest.[1]  The statutes relevant to the issue, including those under which the punitive damages were awarded, i.e., c. 151B, and G. L. c. 235, § 8 (interest on judgments), are silent on the matter.  Neither the Appeals Court nor the Supreme Judicial Court has squarely addressed the issue in a published opinion with respect to     c. 151B.  In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 465 Mass. 584, 597‑598 (2013), the Supreme Judicial Court stated, “the general rule is that ‘the Commonwealth . . . is not liable for postjudgment interest in the absence of a clear statutory waiver of sovereign immunity in that regard,’” and “entities entitled to sovereign immunity are not liable for interest under G. L. c. 235, § 8, absent an unequivocal statutory waiver,” citing Chapman v. University of Mass. Med. Center, 423 Mass. 584, 586 (1996).  Thus, we must discern whether this case presents an exception to the general rule. In Todino v. Wellfleet, 448 Mass. 234, 238 (2007) (Todino), the court generally observed that “[m]unicipal liability implicates the doctrine of sovereign immunity, which protects the public treasury from unanticipated money judgments.  Sovereign immunity prohibits liability against the Commonwealth [and] . . . its instrumentalities […]

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Posted by Massachusetts Legal Resources - August 4, 2015 at 2:45 pm

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