Posts tagged "Public"

Committee for Public Counsel Services, et al. v. Attorney General of Massachusetts, et al. (Lawyers Weekly No. 10-051-18)

SUFFOLK, ss. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2017-347 COMMITTEE FOR PUBLIC COUNSEL SERVICES, HAMPDEN COUNTY LAWYERS FOR JUSTICE, INC., HERSCHELLE REAVES, and NICOLE WESTCOTT vs. ATTORNEY GENERAL of MASSACHUSETTS, DISTRICT ATTORNEY for BERKSHIRE COUNTY, DISTRICT ATTORNEY for BRISTOL COUNTY, DISTRICT ATTORNEY for the CAPE and ISLANDS, DISTRICT ATTORNEY for ESSEX COUNTY, DISTRICT ATTORNEY for HAMPDEN COUNTY, DISTRICT ATTORNEY for MIDDLESEX COUNTY, DISTRICT ATTORNEY for NORFOLK COUNTY, DISTRICT ATTORNEY for the NORTHWESTERN DISTRICT, DISTRICT ATTORNEY for PLYMOUTH COUNTY, DISTRICT ATTORNEY for SUFFOLK COUNTY, and DISTRICT ATTORNEY for WORCESTER COUNTY DECLARATORY JUDGMENT This matter came before the court, Gaziano, J., on a petition pursuant to G L. c. 211, § 3, seeking relief for defendants affected by the misconduct of state chemist Sonja Farak. As an initial matter, the respondents — the Attorney General and the offices of the Massachusetts District Attorneys — have agreed to vacate certain convictions obtained using drug certificates signed by Sonja Farak. The respondents have filed with the court, and served on the petitioners, formatted interim lists identifying the defendants and their convictions, delinquency or youthful offender adjudications, or other adverse dispositions that the respondents agree should be vacated and dismissed with prejudice. The convictions, adjudications, or other dispositions of those cases are addressed in this orcler. Final lists are to be provided by the respondents and filed with this court no later than April 30, 2018. Those lists may result in additional dismissals. Accordingly, it is ORDERED that the convictions of drug offenses under G. L. 94C that have been so identified by the respondents in the interim lists filed with this court on or before March 30,2018, shall be and are hereby VACATED AND DISMISSED WITH PREJUDICE, and any outstanding warrants associated with those convictions are recalled. The clerk shall provide copies of the formatted lists to the Judicial Information Services Department of the trial comi fmihwith in order to effectuate the dismissals. Entered: April 5, 2018 ~ Comi (Gaz.·ia./n.o, J.), fiJ1{y- , ‘\ (‘ – . f;} – /8 r. ;/ . I !f~{A /1 2~U lriaura S. Doy~~re~J I /~ ‘4 Full-text Opinions

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Posted by Massachusetts Legal Resources - April 6, 2018 at 12:09 am

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Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12331   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]       Suffolk.     November 6, 2017. – February 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Public Employee Retirement Administration Commission.  Contributory Retirement Appeal Board.  Retirement.  Public Employment, Retirement, Sick leave benefits, Vacation pay, Worker’s compensation.  Words, “Regular compensation.”       Civil action commenced in the Superior Court Department on May 14, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Judith A. Corrigan, Special Assistant Attorney General, for the plaintiff. Michael Sacco for retirement board of Swampscott.          CYPHER, J.  The plaintiff, the Public Employee Retirement Administration Commission (PERAC), appeals from a Superior Court judge’s decision affirming a determination by the Contributory Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in G. L. c. 32, § 1.  PERAC argues that CRAB’s decision is incorrect as a matter of law.  We disagree, and for the following reasons we affirm the decision of the Superior Court judge. Background.  The relevant facts are not in dispute.  From September 30, 1985, to July 7, 2012, Robert Vernava worked for the town of Swampscott’s department of public works.  On June 13, 2010, Vernava sustained injuries while performing job-related duties.  He began receiving workers’ compensation benefits the same day.  In addition to the workers’ compensation benefits, under G. L. c. 152, § 69, Vernava also received two hours per week of sick or vacation pay (supplemental pay) in order to maintain his union membership and life insurance.[2] Pursuant to G. L. c. 32, § 7, on February 1, 2012, the town of Swampscott filed an application seeking to retire Vernava involuntarily for accidental disability.  On June 28, 2012, the retirement board of Swampscott (board) approved the application and voted to involuntarily retire Vernava due to accidental disability.  Vernava received his workers’ compensation benefits and supplemental pay until July 7, 2012. Under G. L. c. 32, § 7 (2), the effective date of an employee’s accidental disability retirement is the latest of the following:  (1) “the date the injury was sustained;” (2) “the date […]

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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Millis Public Schools v. M.P., et al. (Lawyers Weekly No. 10-023-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12384   MILLIS PUBLIC SCHOOLS  vs.  M.P. & others.[1]       Norfolk.     October 2, 2017. – February 6, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Child Requiring Assistance.  Statute, Construction.  Words, “Wilfully.”       Petition filed in the Norfolk County Division of the Juvenile Court Department on November 30, 2016.   The case was heard by Mary M. McCallum, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Katrina McCusker Rusteika, Committee for Public Counsel Services, for M.P.     LENK, J.  The children requiring assistance (CRA) statute, G. L. c. 119, §§ 21, 39E-39I, confers jurisdiction upon the Juvenile Court to intervene in the custody arrangements of children who are, inter alia, “habitually truant,” meaning that they “willfully fail[] to attend school for more than [eight] school days in a quarter.”  G. L. c. 119, § 21.  The statute is aimed at children who exhibit “misbehavior which is not violative of any criminal statute, but which is the cause for concern that it is indicative of problems or tendencies that may eventually lead to delinquent or criminal activity.”  R.L. Ireland & P. Kilcoyne, Juvenile Law § 4.1 (2d ed. 2006 & Supp. 2017) (Ireland & Kilcoyne, Juvenile Law).  In such cases, the Juvenile Court is tasked with examining the children’s circumstances and determining whether changing or placing conditions on their custody arrangements will help deter their potentially harmful behaviors.  Id.  The party that initiates a CRA proceeding must prove the allegations beyond a reasonable doubt.  G. L. c. 119, § 39G. In this case, we decide whether a child, M.P., who has failed continually to attend school due to a combination of physical and mental disabilities, including a severe bladder condition and autism, was properly adjudicated as a child requiring assistance on the basis of a habitual truancy CRA petition filed by the Millis public schools (school district).[2] To make this determination, we must address the novel question of what it means for a child to “willfully fail[] to attend school.”  In light of the CRA statute’s goal of deterring delinquency, the statutory requirement that a child’s failure to attend school be wilful reflects legislative concern as to why the child is regularly skipping school:  it contemplates purposeful conduct by the child.  The wilfulness requirement thus necessitates judicial inquiry into and assessment […]

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Posted by Massachusetts Legal Resources - February 6, 2018 at 8:49 pm

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Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 16-805-C                                                                         JASON BROWN                                                                                v.                                                      WOODS MULLEN SHELTER/                                        BOSTON PUBLIC HEALTH COMMISSION                                        MEMORANDUM OF DECISION AND ORDER ON                            DEFENDANT’S MOTION FOR SUMMARY JUDGMENT     Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston.  All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1]  As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property.  According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances.  The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.”  (Henderson Aff. at para. 6)(emphasis supplied).[2]  Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police.  When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing. Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations.  These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3]  The defendant has moved for summary judgment on all counts.  The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments.  For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART. DISCUSSION The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive.  The Court agrees. Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose.  In the case of the Boston Public Health Commission, the chief executive […]

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Posted by Massachusetts Legal Resources - September 27, 2017 at 6:54 pm

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Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)

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-12121   DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1]  vs.  ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT.       Suffolk.     November 9, 2016. – May 24, 2017.   Present:  Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.     Committee for Public Counsel Services.  District Court, Drug court session.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016.   The case was reported by Duffly, J.     Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant.     HINES, J.  This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3.  The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).  The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.”  The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant.  We recognize that the success of drug court outcomes depends in large part […]

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Posted by Massachusetts Legal Resources - May 24, 2017 at 7:41 pm

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Middlesex Integrative Medicine, Inc. v. Massachusetts Department of Public Health (Lawyers Weekly No. 12-180-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-2727-BLS1 MIDDLESEX INTEGRATIVE MEDICINE, INC. vs. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS The plaintiff, Middlesex Integrative Medicine, Inc. (MIM), filed this action in the nature of certiorari under G. L. c. 249, § 4 against the defendant, the Massachusetts Department of Public Health (Department), after the Department denied each of MIM’s three applications to operate Registered Marijuana Dispensaries (RMDs) in Massachusetts. MIM and the Department have each moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). On November 21, 2016, this court held a hearing on the motions. For the reasons stated below, MIM’s motion for judgment on the pleadings is DENIED and the Department’s motion for judgment on the pleadings is ALLOWED. BACKGROUND In November, 2012, Massachusetts voters approved a ballot initiative allowing for the medical use of marijuana for qualifying patients. Thereafter, the Legislature enacted Chapter 369 of the Acts of 2012, known as “An Act for the Humanitarian Medical Use of Marijuana” (Act). St. 2012, c. 369. The Act authorized the Department to register at least one, and up to five, RMDs in each Massachusetts county, up to a total of 35 statewide, during the first year after the law’s effective date (January 1, 2013). G. L. c. 94C, App. § 1-9. Pursuant to the Act, the Department promulgated regulations (105 Code Mass. Regs. § 725.001 et seq.) which established, among other things, a two phase application process. In Phase 1, the applicant paid a non-refundable fee and submitted basic information that was reviewed by the Department. See 105 Code Mass. Regs. § 725.100(B)(1). If the applicant submitted all of the required information in a timely fashion, the applicant was notified that it could proceed to Phase 2. See id. at § 725.100(B)(2). In this phase, the applicant paid a nonrefundable $ 30,000 fee and submitted an application containing much more detailed information about its proposed dispensary, after which the Department evaluated and scored the application. See id. at § 725.100(B)(3)-(5). MIM sought to operate three RMDs – one in Middlesex County (Everett), one in Norfolk County (Norwood), and one in Worcester County (Shrewsbury). In August 2013, MIM filed a a Phase 1 application for each location and, along with other applicants, MIM was invited by the Department to submit Phase 2 applications. On November 21, 2013, MIM paid the Department $ 90,000 and filed three Phase 2 applications. Out of a possible 163 points, MIM received scores of 118, 127, and 118 on its three applications. On January 31, 2014, the Department announced the selection of 20 applicants to receive […]

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Posted by Massachusetts Legal Resources - January 5, 2017 at 10:28 am

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Chadwick v. Duxbury Public Schools, et al. (Lawyers Weekly No. 10-158-16)

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-12054   NANCY CHADWICK  vs.  DUXBURY PUBLIC SCHOOLS & others.[1]       Plymouth.     May 3, 2016. – October 4, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]     Privileged Communication.  Evidence, Privileged communication.  Practice, Civil, Discovery.  Public Employment, Collective bargaining.  Labor, Collective bargaining.       Civil action commenced in the Superior Court Department on December 8, 2014.   A motion to compel discovery was heard by Raffi Yessayan, J.   A question of law presented in a petition for leave to prosecute an interlocutory appeal in the Appeals Court was reported by Andrew R. Grainger, J.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff. John J. Cloherty, III, for the defendants. The following submitted briefs for amici curiae: Ava R. Barbour, of Michigan, Matthew D. Jones, Ira C. Fader, James A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E. Dwyer, Eric P. Klein, & Katherine D. Shea for Massachusetts Teachers Association & others. Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massachusetts. Stephen J. Finnegan & Christopher J. Petrini for Massachusetts Association of School Committees, Inc., & another.     HINES, J.  In this appeal, we consider an issue of first impression:  whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity.  The issue arises on interlocutory review of a discovery dispute in a Superior Court action brought by the plaintiff, Nancy Chadwick, alleging claims of discrimination and retaliation against the defendants.[3]  The plaintiff objected to certain of the defendants’ discovery requests, asserting a “union member-union” privilege.  A Superior Court judge rejected the plaintiff’s claim and entered an order compelling production of the requested discovery.  The plaintiff filed an application for relief under G. L. c. 231, § 118, and a single justice of the Appeals Court reported the issue to a panel of the Appeals Court.[4]   We transferred the case to this court on our own motion. In her challenge to the defendant’s discovery requests, the plaintiff concedes that a union member-union privilege has never been recognized in Massachusetts.  She argues, however, that G. L. c. 150E, […]

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Posted by Massachusetts Legal Resources - October 4, 2016 at 8:40 pm

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Goodwin v. Lee Public Schools, et al. (Lawyers Weekly No. 10-133-16)

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-11977   KATELYNN GOODWIN  vs.  LEE PUBLIC SCHOOLS & others.[1]       Berkshire.     March 10, 2016. – August 23, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]     School and School Committee, Enforcement of discipline.  Education, Disciplinary matter.  Practice, Civil, Dismissal.  Administrative Law, Exhaustion of remedies.       Civil action commenced in the Superior Court Department on December 30, 2014.   A motion to dismiss was heard by C. Jeffrey Kinder, J., and a motion for reconsideration was considered by him.   The Supreme Judicial Court granted an application for direct appellate review.     Joseph N. Schneiderman for the plaintiff. David S. Monastersky for the defendants. Sky Kochenour & Jenny Chou, for Center for Law and Education & another, amici curiae, submitted a brief.     DUFFLY, J.  The plaintiff, Katelynn Goodwin, was a high school student at the Lee Middle and High School in the town of Lee (town) when she was suspended from school for conduct that purportedly took place not on school grounds, pursuant to a school policy, based on G. L. c. 71, § 37H1/2 (§ 37H1/2), which provided that students who had been charged with felonies would be suspended.  The principal ordered the suspension in the mistaken belief that the plaintiff had been charged with a felony, stealing, or being involved in the theft of, a firearm.  Ultimately, the suspension lasted for the entire final semester of what would have been the plaintiff’s senior year, and she was unable to graduate with her class, but eventually obtained her high school diploma.  She thereafter commenced this action in the Superior Court against the Lee public schools, the superintendent of the Lee schools, and the town. The question confronting the court is whether the judge erred in allowing the defendants’ motion to dismiss based on the failure to exhaust the administrative remedies available under § 37H1/2.  We conclude that, because the tort recovery a student may seek under G. L. c. 76, § 16, provides a separate and distinct remedy from that available under § 37H1/2, a statute that establishes an expedited process by which a student may seek readmission to school, the plaintiff was not obligated to exhaust the statute’s administrative remedies before pursuing a tort claim under G. L. c. 76, § 16. Background.  The plaintiff was in her senior year of high school when […]

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Posted by Massachusetts Legal Resources - August 23, 2016 at 4:10 pm

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ENGIE Gas & LNG LLC v. Department of Public Utilities (and another case) (Lawyers Weekly No. 10-128-16)

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-12051 SJC-12052   ENGIE GAS & LNG LLC[1]  vs.  DEPARTMENT OF PUBLIC UTILITIES (and another case[2]).       Suffolk.     May 5, 2016. – August 17, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3]       Department of Public Utilities.  Practice, Civil, Review of order of Department of Public Utilities.  Electric Company. Public Utilities, Electric company, Judicial review.  Gas. Administrative Law, Judicial review, Rulemaking, Agency’s authority, Rate regulation.  Statute, Construction.       Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on October 26 and November 2, 2015.   The cases were reported by Cordy, J.     Thaddeus A. Heuer (Adam P. Kahn & Jesse Harlan Alderman with him) for ENGIE Gas & LNG LLC. David K. Ismay for Conservation Law Foundation. Seth Schofield, Assistant Attorney General, for the Attorney General. Thomas H. Hayman, Special Assistant Attorney General (Francis R. Powell, Special Assistant Attorney General, with him) for the Department of Public Utilities. Cheryl M. Kimball & Matthew A. Sanders, for NSTAR Electric Company & others, amici curae, submitted a brief.     CORDY, J.  These consolidated appeals are before us on a single justice’s reservation and report of challenges made to an order of the Department of Public Utilities (department).  Those challenges raise the question of the department’s authority to review and approve ratepayer-backed, long-term contracts entered into by electric distribution companies for additional natural gas pipeline capacity in the Commonwealth pursuant to G. L. c. 164, § 94A, which requires gas and electric companies to receive departmental approval for any contract for the purchase of gas or electricity lasting longer than one year. The plaintiffs, ENGIE Gas & LNG LLC and Conservation Law Foundation, contend that the order amounted to improper rulemaking in violation of the Administrative Procedure Act, G. L. c. 30A.  They also argue that the department’s determination that it has authority pursuant to G. L. c. 164, § 94A, to approve such contracts constitutes an error of law because it contravenes G. L. c. 164, § 94A, as amended through St. 1997, c. 164 (restructuring act).[4] We disagree that the order of the department is an improperly promulgated rule or regulation.  We nevertheless reach the statutory question presented by the plaintiffs, and conclude that the order is invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring […]

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Posted by Massachusetts Legal Resources - August 17, 2016 at 8:38 pm

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Schubert v. Committee for Public Counsel Services (Lawyers Weekly No. 10-117-16)

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-12044   GREG T. SCHUBERT   vs.  COMMITTEE FOR PUBLIC COUNSEL SERVICES.     August 9, 2016.     Supreme Judicial Court, Superintendence of inferior courts.       The petitioner, attorney Greg T. Schubert, filed papers in the county court entitled “writ of mandamus” and “writ of certiorari” that a single justice treated as a petition pursuant to G. L. c. 211, § 3, and denied.  Schubert appeals, and we  affirm.   The matter stems from a billing dispute between Schubert and the respondent, the Committee for Public Counsel Services (CPCS).  Essentially, CPCS conducted an audit of bills that Schubert submitted for payment to CPCS in connection with legal services that he provided for an indigent defendant.  Pursuant to the CPCS Assigned Counsel Manual, certain administrative proceedings followed the audit, culminating in a hearing.  The hearing officer ultimately rendered a decision adverse to Schubert, after which Schubert filed two separate complaints in the Hampden County Superior Court:  one in the nature of certiorari (HDCV2013-00881) and one for a declaratory judgment (HDCV2014-00141).  CPCS filed a motion to dismiss in each action.  A judge denied the motion in the certiorari action because, at the hearing on the motion, CPCS agreed to give Schubert additional time to file a motion for judgment on the pleadings, as required by Superior Court Standing Order 1-96.  Schubert had not filed such a motion because he did not believe that the standing order applied to his case.  In the declaratory judgment action, the judge did allow CPCS’s motion to dismiss, on the bases that CPCS cannot be sued under G. L. c. 231A, § 2, for a declaratory judgment, and that the individual defendants named in that action were immune from suit.   Schubert then filed his pleadings in this court, which a single justice denied without a hearing.  After the single justice denied his request for relief, Schubert filed several motions to supplement his pleadings with additional documents, which the single justice treated as motions for reconsideration and denied.  Additionally, CPCS again moved to dismiss the certiorari action in the trial court, this time for failure to prosecute.  The motion was allowed.   It is incumbent on Schubert, as the petitioner, to demonstrate that “review of the trial court decision[s] cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  S.J.C. Rule 2:21 […]

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Posted by Massachusetts Legal Resources - August 9, 2016 at 3:50 pm

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