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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Touher, et al. v. Town of Essex (Lawyers Weekly No. 11-099-15)
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-796 Appeals Court BRIAN M. TOUHER[1] & others[2] vs. Town of Essex. No. 14-P-796. Essex. March 24, 2015. – August 10, 2015. Present: Kantrowitz, Blake, & Massing, JJ. Real Property, Lease. Contract, Lease of real estate, Unjust enrichment. Personal Property, Ownership. Landlord and Tenant, Fixture. Unjust Enrichment. Civil action commenced in the Superior Court Department on May 11, 2012. The case was heard by Richard E. Welch, III, J., and motions to alter or amend the judgment and for a new trial or to amend the judgment were considered by him. Christopher Weld, Jr. (Suzanne Elovecky with him) for the plaintiffs. Gregg J. Corbo for the defendant. MASSING, J. This appeal arises from a series of disputes between the seasonal residents of Conomo Point and the town of Essex (town), which owns and rents them the land on which they reside. Four sets of plaintiff residents filed a complaint seeking a declaration that they owned the buildings they had erected on the town’s land. After a jury-waived trial, a Superior Court judge entered a declaration that two sets of plaintiffs owned their cottages as personal property, but that the more substantial homes that the two other sets of plaintiffs had built were fixtures that belonged to the town. The latter ‑- the decedent Paul Touher (Touher), and Sarah Wendell and David R. Wendell, Jr., as trustees of the David R. Wendell 1993 Revocable Trust (the Wendell Trust) (collectively, plaintiffs) — appeal from that judgment, as well as the judge’s posttrial decision that they had no equitable claim against the town to recover the value of the houses.[3] Largely for the reasons that the trial judge set forth in his detailed memorandum and order, we affirm. Background. 1. Historical perspective. For more than one century, the town has been leasing desirable plots of waterfront or near-waterfront property on Conomo Point — once the location of the town’s “poor farm” — to seasonal residents. The lessees, at their own expense, built seasonal cottages on these properties. In addition to the rent they paid to lease the land, the residents were assessed and paid real estate taxes on the cottages. At various times the town[4] has sought to alter its economic relationship with the Conomo Point residents. In 1987, the town took steps […]
Herrick v. Essex Regional Retirement Board, et al. (Lawyers Weekly No. 10-132-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11239 ROBERT D. HERRICK vs. ESSEX REGIONAL RETIREMENT BOARD & another.[1] Essex. March 5, 2013. ‑ July 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Public Employment, Retirement benefits, Forfeiture of pension. Judgment, Interest. Practice, Civil, Interest. Municipal Corporations, Pensions. County, Retirement board. Contract, Damages. Civil action commenced in the Superior Court Department on March 24, 2005. Following review by the Appeals Court, 77 Mass. App. Ct. 645 (2010), a motion for assessment of damages was heard by Howard J. Whitehead, J., and corrected judgment was entered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Sacco for Essex Regional Retirement Board. H. Ernest Stone for the plaintiff. GANTS, J. The questions on appeal are whether plaintiff Robert Herrick, a member of a public employee contributory retirement system governed by G. L. c. 32, §§ 1-28, inclusive, is entitled to prejudgment interest on a retroactive award of superannuation retirement benefits and, if so, at what rate of interest. We hold that the plaintiff is not entitled to interest at a rate of twelve per cent per annum pursuant to G. L. c. 231, § 6C, because his suit was not an action “based on contractual obligations.” We further hold that the plaintiff is not entitled to twelve per cent annual interest pursuant to G. L. c. 231, § 6H, because interest in this case is “otherwise provided by law” under G. L. c. 32, § 20 (5) (c) (2). We interpret § 20 (5) (c) (2) to provide that, where, as here, a retirement board makes a legal error in denying retirement benefits that is corrected by a court, the plaintiff is entitled to a rate of interest determined by the board’s actuary “so that the actuarial equivalent of the pension or benefit to which the member or beneficiary was correctly entitled shall be paid.” Background. The plaintiff worked for twenty-seven years as a custodian and maintenance mechanic for the Wenham Housing Authority and was a member of the Essex Regional Retirement System.[2] On May 1, 2003, he was charged with sexually assaulting his daughter and, that same day, resigned his position. On May 6, he submitted an application for voluntary superannuation retirement pursuant to G. L. c. 32, § 5 (1) (a). On […]