Posts tagged "Board"

New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   16-P-654                                        Appeals Court   NEW BEDFORD EDUCATORS ASSOCIATION  vs.  CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]).     No. 16-P-654.   Middlesex.     May 4, 2017. – August 23, 2017.   Present:  Trainor, Vuono, & Sullivan, JJ.     Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review.  Declaratory Relief.  Mandamus.  Board of Education.  Commonwealth, Education.  Education.  School and School Committee.  Labor, Public employment.     Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014.   After consolidation, motions to dismiss were heard by Kimberly S. Budd, J.     Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants.     VUONO, J.  In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J.  The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3]  The unions sought declaratory relief pursuant to G. L. c. 231A.  NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction.  Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions.  On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing.  For the reasons […]

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Posted by Massachusetts Legal Resources - August 23, 2017 at 2:33 pm

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Athanasiou, et al. v. Board of Selectmen of Westhampton, et al. (Lawyers Weekly No. 11-107-17)

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 15-P-894 Appeals Court GEORGE ATHANASIOU & another1 vs. BOARD OF SELECTMEN OF WESTHAMPTON & another.2 No. 15-P-894. Suffolk. January 12, 2017. – August 22, 2017. Present: Vuono, Milkey, & Henry, JJ. Adverse Possession and Prescription. Easement. Municipal Corporations, Adverse possession. Way. Real Property, Easement, Adverse possession. Practice, Civil, Summary judgment. Civil action commenced in the Land Court Department on May 20, 2013. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Harry L. Miles (Michael Pill also present) for the plaintiffs. Janelle M. Austin for the defendants. 1 Louanne Athanasiou. 2 Town of Westhampton. 2 VUONO, J. The issue in this case is whether the town of Westhampton (town) has acquired an easement by prescription over a triangular parcel of land (triangle) and an abutting roadway (way), together the “disputed area,” owned by the plaintiffs, Louanne and George Athanasiou. On cross motions for summary judgment,3 a Land Court judge determined that the public’s use of the way for a continuous period in excess of twenty years, coupled with the town’s maintenance of the disputed area to provide for such public use, was sufficient to establish a prescriptive easement over the disputed area for the benefit of the town and its inhabitants. The plaintiffs appeal. Background. The following facts are not in dispute. The way is an unnamed, paved roadway that connects North Road and Southampton Road in the rural town. The roads merge at an intersection located at the tip of the triangle, and the way provides a convenient connection between the two roads (known in 3 The plaintiffs commenced this action by filing a complaint in the Land Court seeking, among other things, a declaration that they are the rightful fee title owners of the disputed area. The defendants counterclaimed, asserting that the town had acquired a prescriptive easement over the disputed area. The defendants subsequently filed a motion for summary judgment after which the plaintiffs cross-moved for summary judgment on the defendants’ counterclaim. Ultimately, summary judgment entered in favor of the plaintiffs on their claim of ownership and in favor of the defendants on their counterclaim. The defendants have not cross-appealed; therefore, the issue of ownership is not before us. 3 common parlance as a “cut-through”). The way is wide enough to accommodate traffic in both directions and has been used by the public […]

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Posted by Massachusetts Legal Resources - August 22, 2017 at 5:05 pm

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Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17)

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-12270   JAMES RIVA  vs.  MASSACHUSETTS PAROLE BOARD.     August 18, 2017.     Supreme Judicial Court, Superintendence of inferior courts.  Parole.  Practice, Criminal, Discovery.     The petitioner, James Riva, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.   Riva is currently serving a life sentence for second degree murder.  After the parole board (board) denied him parole in January, 2015, he filed a complaint in the Superior Court seeking certiorari review and a declaratory judgment in connection with claimed constitutional violations that occurred in the course of the proceedings before the board.  The board’s motion to dismiss the complaint was allowed as to the declaratory judgment claim but denied as to the certiorari claim.  Riva’s subsequently-filed motion to compel discovery was initially denied, but, on Riva’s motion for reconsideration, the motion judge indicated that the motion was allowed “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.”  Riva then filed a “motion for relief,” which also pertained to certain discovery.  After this motion was denied, Riva filed his G. L. c. 211, § 3, petition in the county court.  In the petition, he argued that his case could not proceed in the trial court without the requested discovery.  The single justice denied the petition without a hearing.   The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision 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 (2).  Riva has not made, and cannot make, such a showing.  He argues that the board has been “allowed” to “disobey a compelled discovery order” and that, essentially, if the board is allowed to continue to do so, the issue will eventually become moot by the time he is again eligible for parole.  There is no reason, however, why the rulings related to discovery cannot adequately be addressed in an appeal from any adverse judgment, including the mootness issue.  See, e.g., Madison v. Commonwealth, 466 Mass. 1033, 1033 (2013), and cases cited.   The single justice did not err or abuse his discretion in denying relief under […]

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Posted by Massachusetts Legal Resources - August 18, 2017 at 11:39 pm

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G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)

COMMONWEALTH OF MASSACHUSETTS   NORFOLK, ss.                                                                      SUPERIOR COURT                                                                                                 CIVIL ACTION 17-0882     G6 HOSPITALITY PROPERTY LLC   vs.   TOWN OF BRAINTREE BOARD OF HEALTH   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION   In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1]  At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits.  Its application and motion are thus DENIED.   FACTS The relevant facts in the administrative record provided to this Court are as follows: Procedural History:  On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.” Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol.  Accordingly, G6 requested a continuance of the hearing.  The Board approved the Motel’s request.  The Motel voluntarily closed June 1.  The hearing was rescheduled for July 13, 2017.  Prior to the July 13 hearing, a public notice was published in the local newspaper. Facts Disclosed at the July 13, 2017 Hearing:  At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony […]

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Posted by Massachusetts Legal Resources - August 18, 2017 at 5:46 am

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Gund, et al. v. Planning Board of Cambridge, et al. (Lawyers Weekly No. 11-091-17)

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   15-P-1339                                       Appeals Court   GRAHAM GUND & others[1]  vs.  PLANNING BOARD OF CAMBRIDGE & others.[2]     No. 15-P-1339.   Suffolk.     October 7, 2016. – July 19, 2017.   Present:  Agnes, Maldonado, & Desmond, JJ.     Courthouse.  Zoning, Nonconforming use or structure, Governmental use.  Governmental Immunity.  County, Municipal zoning by-laws.  Municipal Corporations, Governmental immunity, By-laws and ordinances.       Civil action commenced in the Land Court Department on November 19, 2014.   Motions for summary judgment were heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him.     Mark Bobrowski for the plaintiffs. Kevin P. O’Flaherty for LMP GC Holdings, LLC. Vali Buland, Assistant City Solicitor, for planning board of Cambridge. Adam Hornstine, Assistant Attorney General, for the Commonwealth.     MALDONADO, J.  The Edward J. Sullivan Court House (court house) was constructed by Middlesex County (county) between 1968 and 1974 on land owned by the county on Thorndike Street in Cambridge (city).  First owned by the county and then, after 1997, by the Commonwealth, the court house was immune from the local zoning ordinance when it was built, and in the ensuing years when it housed the Superior Court, the Cambridge Division of the District Court Department, and associated court offices through 2009, and a jail facility through 2014.  Defendant LMP GP Holdings, LLC (developer), is a private entity that has entered into a purchase and sale agreement with the Commonwealth to purchase the court house and has taken steps to obtain approvals to redevelop it.  The sole issue on appeal is whether the court house, when it loses its governmental immunity by transfer to the developer, will constitute a preexisting nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a) of the relevant zoning ordinance such that redevelopment may be approved by special permit.[3]  A judge of the Land Court concluded on summary judgment in a well-reasoned decision that c. 40A, § 6, and § 8.22.2(a) of the zoning ordinance govern the developer’s efforts to redevelop the property, and we affirm.[4] Background.  The background facts are not in dispute and are largely derived from an agreed statement of facts.  On October 30, 2014, the planning board of Cambridge (planning board) granted four special permits to the developer authorizing the redevelopment of the court house to include twenty stories and 476,303 gross square feet of office, […]

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Posted by Massachusetts Legal Resources - July 19, 2017 at 8:56 pm

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Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)

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   16-P-1158                                       Appeals Court   ESSEX REGIONAL RETIREMENT BOARD  vs.  JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2]     No. 16-P-1158.   Essex.     March 8, 2017. – July 12, 2017.   Present:  Grainger, Blake, & Neyman, JJ.[3]     Public Employment, Retirement, Forfeiture of pension.  Police, Retirement.  Pension.  Constitutional Law, Public employment, Excessive fines clause.  County, Retirement board.  Practice, Civil, Action in nature of certiorari.  District Court, Appeal to Superior Court.       Civil action commenced in the Superior Court Department on July 14, 2015.   The case was heard by James F. Lang, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow.     GRAINGER, J.  The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow.  The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4).  We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4).  We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background.  We summarize the procedural history and the underlying relevant facts which are undisputed.  In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department.  At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service.  Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point.  After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan.  He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car.  The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs.  Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt.  He began screaming […]

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Posted by Massachusetts Legal Resources - July 12, 2017 at 8:47 pm

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Padmanabhan v. Board of Registration in Medicine, et al. (Lawyers Weekly No. 10-111-17)

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-12119   BHARANIDHARAN PADMANABHAN  vs.  BOARD OF REGISTRATION IN MEDICINE & another.[1]     June 27, 2017.     Board of Registration in Medicine.  Administrative Law, Decision.   The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of the county court dismissing his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4.  On May 18, 2017, we issued an order affirming the single justice’s judgment and indicated that this opinion would follow.   In 2010, Padmanabhan, a medical doctor, was terminated from his position at Cambridge Health Alliance, a termination that he alleges was based on false claims that he harmed patients and in retaliation for certain actions that he took, including reporting purported insurance fraud.  Subsequent to his termination, the Board of Registration in Medicine (board) commenced disciplinary proceedings against him, and referred the matter to the Division of Administrative Law Appeals (DALA).[2]  Following an evidentiary hearing that spanned eight days, the DALA magistrate issued his recommended decision in August, 2015.  The board subsequently remanded the case to the magistrate, in January, 2016, asking the magistrate to elaborate on certain parts of his decision and, among other things, to include credibility determinations and clarify certain inconsistencies in the decision.  In March, 2016, the magistrate issued an order indicating that he was preparing a revised recommended decision for the board in response to the remand order.   Shortly thereafter, Padmanabhan filed a “Renewed Complaint in the Nature of a Petition for a Writ of Certiorari” in the county court.  In the petition he argued that his due process rights had been violated in various ways during the course of the board proceedings.  He also argued that the recommended decision issued by the magistrate in August, 2015, became final in February, 2016, pursuant to 801 Code Mass. Regs. § 1.01(11)(c)(3) (1998), and that his petition thus did not stem from, or seek relief from, an interlocutory ruling but rather what was, in effect, a final decision of the board.  The board moved to dismiss the petition on the basis that the proceedings before it had not yet concluded and that it had not yet issued a final decision.  The single justice dismissed the petition without a hearing.[3]   In his appeal, Padmanabhan continues to argue that the magistrate’s recommended decision became the board’s final decision pursuant to 801 […]

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Posted by Massachusetts Legal Resources - June 27, 2017 at 3:50 pm

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Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)

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-12182   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573  vs.  SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]).       Suffolk.     February 7, 2017. – June 23, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Sex Offender.  Sex Offender Registration and Community Notification Act.  Internet.       Civil action commenced in the Superior Court Department on November 21, 2014.   A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court.   The Supreme Judicial Court granted an application for direct appellate review.   Civil action commenced in the Superior Court Department on June 22, 2015.   A motion for a preliminary injunction was heard by Heidi E. Brieger, J.   A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J.  The Supreme Judicial Court granted an application for direct appellate review.     Andrew S. Crouch for John Doe, Sex Offender Registry Board No. 326573, & another. John P. Bossé for the defendant. Dana Goldblatt, for Committee for Public Counsel Services, amicus curiae, submitted a brief.     GANTS, C.J.  In Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014), we permanently enjoined the Sex Offender Registry Board (SORB) “from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender.”  SORB contends in these two cases that, when it unsuccessfully seeks after July 12, 2013, to reclassify a level two sex offender as a level three sex offender, the individual is reclassified a level two sex offender for purposes of Moe, and SORB may therefore publish the individual’s registry information on the Internet.  We disagree.  We conclude that, under Moe, a sex offender is “reclassified” only where a hearing officer allows SORB’s motion to increase his or her classification based on new information indicating an increased risk of sexual recidivism, not, as here, where the hearing officer denied SORB’s motion for reclassification and retained the earlier level two classification.  We therefore remand these cases to the Superior Court for the issuance of a permanent injunction barring publication of each plaintiff’s registry […]

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Posted by Massachusetts Legal Resources - June 23, 2017 at 3:15 pm

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Langan v. Board of Registration in Medicine (Lawyers Weekly No. 10-103-17)

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-12242   MICHAEL L. LANGAN  vs.  BOARD OF REGISTRATION IN MEDICINE.     June 13, 2017.     Board of Registration in Medicine.  Doctor, License to practice medicine.  Practice, Civil, Action in nature of certiorari.     Michael L. Langan appeals from a judgment of the county court denying his petition for relief in the nature of certiorari from a decision of the Board of Registration in Medicine (board).  We affirm.   Background.  Langan is a board-certified physician in geriatrics and internal medicine.  In 2008, after he had tested positive for various controlled substances, he and the board entered into a letter of agreement, under which he agreed to certain conditions in order to continue practicing medicine, including refraining from the use of alcohol and controlled substances without a prescription and submitting to substance use monitoring by Massachusetts Physician Health Services (PHS).  The letter of agreement provided that violating its terms would “constitute sufficient grounds for the immediate suspension of [Langan’s] license,” and that Langan had a right to an adjudicatory hearing as to any violation found by the board.   After Langan entered into the letter of agreement, PHS reported three positive tests, at low levels, for ethyl glucuronide (EtG) and ethyl sulfate (EtS), two alcohol biomarkers.  The board took no action at that time.  In June and July, 2011, however, Langan tested positive for the same biomarkers, at higher levels.[1]  As a result of these positive tests, PHS requested that Langan undergo an inpatient evaluation, and the board asked him to enter into a voluntary agreement not to practice pending completion of such an evaluation.  Langan refused at first, causing the board to find him in violation of the letter of agreement.  Langan then underwent the inpatient evaluation in September, 2011.   On February 1, 2012, Langan, represented by counsel, signed an addendum to his letter of agreement requiring, in particular, that he “participate in a minimum of three (3) 12-step meetings per week” and “submit proof of said participation to PHS.”  In October, 2012, PHS reported that Langan had misrepresented attending meetings.  In November, 2012, Langan again tested positive for EtS and EtG.  Langan entered into a voluntary agreement not to practice and was asked to produce documentation that he had attended all required meetings.  He did not do so, and in February, 2013, the board determined, based […]

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Posted by Massachusetts Legal Resources - June 13, 2017 at 3:32 pm

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Crowell v. Massachusetts Parole Board (Lawyers Weekly No. 10-078-17)

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-12203   RICHARD CROWELL  vs.  MASSACHUSETTS PAROLE BOARD.       Suffolk.     January 6, 2017. – May 15, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Parole.  Practice, Criminal, Parole.  Americans with Disabilities Act.  Practice, Civil, Action in nature of certiorari, Motion to dismiss.       Civil action commenced in the Superior Court Department on April 2, 2014.   A motion to dismiss was heard by Raffi N. Yessayan, J., and a motion for reconsideration was considered by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Tabitha Cohen (John D. Fitzpatrick also present) for the plaintiff. Todd M. Blume, Assistant Attorney General, for the defendant. James R. Pingeon, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.          BUDD, J.  On April 2, 2014, the plaintiff, Richard Crowell, filed a complaint in the nature of certiorari in the Superior Court, alleging that, in denying his petition for parole, the Parole Board (board) had violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate State provisions, art. 114 of the Amendments to the Massachusetts Constitution and G. L. c. 93, § 103.  A judge of that court allowed the board’s motion to dismiss and denied the plaintiff’s motion for reconsideration.  We reverse and remand for further development of the record.[1]  Further, we conclude that, contrary to the plaintiff’s assertion, his commuted life sentence remains a “life sentence” within the meaning of 120 Code Mass. Regs. § 301.01(5) (1997). Background.  The limited record before us, presented in the form of exhibits to the plaintiff’s complaint, includes the following facts, which are undisputed by the parties. Prior parole proceedings.  The plaintiff pleaded guilty to murder in the second degree in 1962 in connection with an armed robbery that resulted in a homicide.[2]  He was sentenced to life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2.[3]  In 1974 the plaintiff’s life sentence was commuted to one that was from “[thirty-six] years to life.”  He was paroled in November, 1975.  Between 1975 and 1990 the plaintiff was returned to custody on five occasions (1977, 1980, 1982, 1989, and 1990) for failing to adhere to his conditions of parole, including repeated problems with alcohol […]

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Posted by Massachusetts Legal Resources - May 15, 2017 at 9:01 pm

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