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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
The First Marblehead Corporation, et al. v. Commissioner of Revenue (Lawyers Weekly No. 10-122-16)
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-11609 THE FIRST MARBLEHEAD CORPORATION & another[1] vs. COMMISSIONER OF REVENUE. Suffolk. May 3, 2016. – August 12, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Financial Institution. Taxation, Excise, Apportionment of tax burden. Constitutional Law, Taxation, Commerce clause, Interstate commerce. Interstate Commerce. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Donald-Bruce Abrams (John S. Brown with him) for the taxpayer. Brett M. Goldberg, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for Commissioner of Revenue. The following submitted briefs for amici curiae: Margaret Winterkorn Meyers, of New York, David W.T. Daniels, of the District of Columbia, & Emily M. Kelley, for Michael S. Knoll & another. Helen Hecht, Bruce Fort, Sheldon Laskin, & Lila Disque, of the District of Columbia, for Multistate Tax Commission. BOTSFORD, J. In The First Marblehead Corp. v. Commissioner of Revenue, 470 Mass. 497, 498 (2015) (First Marblehead), this court affirmed a decision of the Appellate Tax Board (board) concerning the tax liability of the taxpayer GATE Holdings Inc. (Gate), under the Commonwealth’s financial institution excise tax (FIET). Gate was a wholly owned subsidiary of The First Marblehead Corporation (FMC),[3] id. at 497-498, and “played an integral role in the FMC student loan securitization process[,]” as the holder of beneficial interests in all the separate trusts that effectively owned the securitized student loans. Id. at 499. Gate had no employees, no office space, and no tangible assets; it was essentially a holding company. Id. Gate’s taxable property consisted of its interests in the securitized student loans held in the trusts. Id. In its decision, the board determined, and this court agreed, that all of Gate’s interests in the securitized loans were properly assigned to Massachusetts under the FIET’s apportionment rules set forth in G. L. c. 63, § 2A, resulting in a greater tax liability than Gate had calculated. Id. at 498. Gate filed a petition for a writ of certiorari in the United States Supreme Court. On October 13, 2015, the Court granted Gate’s petition, vacated this court’s rescript in the case, and remanded the case for further consideration in light of Comptroller of the Treasury of Md. […]
Categories: News Tags: 1012216, Commissioner, Corporation, First, Lawyers, Marblehead, Revenue, Weekly
First Bostonview Management, LLC v. Bostonview Corporation, et al. (Lawyers Weekly No. 11-118-15)
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 13-P-1237 Appeals Court FIRST BOSTONVIEW MANAGEMENT, LLC vs. BOSTONVIEW CORPORATION & others.[1] No. 13-P-1237. Norfolk. October 1, 2014. – August 19, 2015. Present: Berry, Hanlon, & Carhart, JJ. Charity. Corporation, Charitable corporation, Religious, Sale of assets, Officers and agents, Board of directors. Sale, Of corporate property, Real estate. Contract, Sale of real estate, Ratification. Real Property, Purchase and sale agreement. Agency, Ratification. Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Kenneth J. Fishman, J., on a motion for summary judgment, and a separate and final judgment was ordered by him. David B. Summer (Elliot M. Sherman with him) for the plaintiff. Carole C. Cooke (Nicholas B. Carter with her) for Bostonview Corporation. BERRY, J. The plaintiff, First Bostonview Management, LLC (First Bostonview), appeals from the judgment entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), after the allowance of the summary judgment motion by the defendant, Bostonview Corporation (Bostonview), a charitable corporation, on First Bostonview’s claims stemming from its attempt to purchase substantially all of Bostonview’s real property. We affirm the judgment. As is further discussed herein in more particularized detail, the corporate board of directors of a charity and the powers of corporate officers in a charitable organization, such as Bostonview, are subject to strict fiduciary standards in the conduct of the charity’s business affairs. The Supreme Judicial Court has made clear that only specific authorization can bind a charitable corporation to an “extraordinary transaction” entered into by its corporate officers, and that authority to enter into a contract which would divest the charitable corporation “of the very essence” of its existence lies beyond the power of the charitable corporate board to delegate to corporate officers. Boston Athletic Assn. v. International Marathons, Inc., 392 Mass. 356, 364-367 (1984). In this case, the sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an “extraordinary transaction,” and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation, organized “exclusively for religious, charitable, scientific and education purposes” subject to the holding of the church property and the […]
Categories: News Tags: 1111815, Bostonview, Corporation, First, Lawyers, Management, Weekly
The First Marblehead Corporation, et al. v. Commissioner of Revenue (Lawyers Weekly No. 10-010-15)
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-11609 THE FIRST MARBLEHEAD CORPORATION & another[1] vs. COMMISSIONER OF REVENUE. Suffolk. October 7, 2014. – January 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Financial Institution. Taxation, Excise, Apportionment of tax burden. Constitutional Law, Taxation. Notice, Tax taking. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John S. Brown (Donald-Bruce Abrams with him) for the taxpayer. Brett M. Goldberg (Daniel J. Hammond, Assistant Attorney General, with him) for Commissioner of Revenue. Helen Hecht, Bruce Fort, Sheldon Laskin, & Lila Disque, of the District of Columbia, for Multistate Tax Commission, amicus curiae, submitted a brief. BOTSFORD, J. The taxpayers appeal from a decision of the Appellate Tax Board (board) issued pursuant to G. L. c. 58A, § 7, and G. L. c. 62C, § 39 (c); their focus is on the financial institution excise tax (FIET) liability of the taxpayer GATE Holdings, Inc. (Gate), that was at all relevant times a wholly owned subsidiary of the taxpayer The First Marblehead Corporation (FMC).[2] In its decision, the board accepted Gate’s position that it qualified as a “financial institution” under G. L. c. 63, § 1, and was entitled to apportion its income pursuant to G. L. c. 63, § 2A (§ 2A). The board, however, disagreed with Gate that in applying the apportionment rules of § 2A, all of Gate’s taxable property, which consisted of securitized student loans, should be assigned to States outside the Commonwealth. Rather, the board determined that all such property was properly assigned to Massachusetts, resulting in a greater FIET liability than Gate had calculated. We affirm the board’s decision.[3] Facts.[4] At issue here are the tax years ending June 30, 2004; June 30, 2005; and June 30, 2006 (tax years at issue). FMC was a publicly traded Delaware corporation with its principal offices in Boston, and during the tax years at issue was the principal tax-reporting corporation for itself, Gate, and a number of other subsidiaries. FMC was involved in the growing industry facilitating private loans to students seeking to finance the cost of their postsecondary education.FMC did not make any loans directly to student borrowers, but rather brought together various parties involved in lending, including postsecondary schools, banks that issued loans […]
Categories: News Tags: 1001015, Commissioner, Corporation, First, Lawyers, Marblehead, Revenue, Weekly
Gallagher v. First Assistant Clerk-Magistrate of the Newburyport District Court, et al. (Lawyers Weekly No. 10-190-14)
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-11592 ROBERT GALLAGHER vs. FIRST ASSISTANT CLERK-MAGISTRATE OF THE NEWBURYPORT DISTRICT COURT & others.[1] November 28, 2014 Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Attorney’s fees, Small claims procedure. District Court, Small claims procedure. Robert Gallagher appeals from a judgment of a single justice of this court dismissing his petition for relief under G. L. c. 211, § 3. In his petition, he sought relief from final judgments entered in two cases in the District Court Department. In one of the cases, after Gallagher prevailed on a complaint brought against him under the harassment prevention statute, G. L. c. 258E, the judge failed to act on his request for attorney’s fees. In the other case, judgment was entered against him on a G. L. c. 93A claim that he brought in the small claims session. As to the former case, Gallagher had, but did not pursue, adequate alternative remedies, both in the trial court and through the ordinary appellate process.[2] “Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.” Votta v. Police Dep’t of Billerica, 444 Mass. 1001, 1001 (2005). See Foley v. Lowell Div. of the Dist. Ct. Dep’t, 398 Mass. 800, 802 (1986), and cases cited (“Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied”). As to the latter case, it is well established that “a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment.” Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 (2014), and cases cited. The single justice properly declined to grant extraordinary relief.[3] Judgment affirmed. The case was submitted on briefs. Robert J. Gallagher, pro se. Bryan F. Bertram, Assistant Attorney General, for the Commonwealth. [1] A Justice of the Lawrence District Court, the clerk-magistrate of the Lawrence District Court, Stephen D’Angelo, Mary McCauley-Manzi, and Catherine W. Wnek. [2] For example, Gallagher could have moved […]
When’s The First Day of School for Boston Public Schools?
Find out when the kids go back, and other important dates for the upcoming school year. South End Patch News
There’s a Joke in Here Somewhere: State House Gets First Lightning Rod
The cupola's pine cone will receive a new metal cap that will act as a lightning rod. South End Patch News
When’s The First Day of School for Boston Public Schools?
Bookmark this page for use and reference throughout the school year. Click here for a full calendar view of the Boston Public Schools calendar for the 2013-14 South End Patch News
South End Residents Among First Responders Receiving Tickets Donated by Outside the Box
Ted Cutler, founder and chairman of Outside the Box, has donated tickets to first responders and medical staff throughout Boston to a special Doo Wop Show at the Cutler Majestic Theatre on the first Sunday of the festival. Tickets have South End Patch News
Deutsche Bank National Association v. First American Title Insurance Company (Lawyers Weekly No. 10-124-13)
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‑11265 DEUTSCHE BANK NATIONAL ASSOCIATION,[1] trustee,[2] vs. FIRST AMERICAN TITLE INSURANCE COMPANY. Suffolk. March 7, 2013. ‑ July 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Insurance, Title insurance, Insurer’s obligation to defend. Real Property, Title insurance. Civil action commenced in the Superior Court Department on December 11, 2009. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Briansky (Jeffrey J. Pyle with him) for the plaintiff. Jason A. Manekas for the defendant. CORDY, J. In the present appeal, we consider whether the terms of a title insurance policy require First American Title Insurance Company (First American) to defend Deutsche Bank National Association (Deutsche Bank) in a lawsuit brought by a third party, Karla Brown,[3] seeking rescission of a note and first mortgage securing that note, originated by Deutsche Bank’s predecessor in interest in connection with the purchase of Brown’s home. Following First American’s denial of coverage, Deutsche Bank instituted this action seeking a judgment declaring that First American has a duty to defend it in Brown’s lawsuit and seeking statutory damages. We transferred the case here on our own motion following Deutsche Bank’s appeal from a Superior Court judge’s order granting summary judgment in favor of First American. On appeal, Deutsche Bank argues that the policy is susceptible to an interpretation that it covers the claims alleged in Brown’s complaint and that two exclusions contained within the policy do not preclude coverage.[4] Based on these arguments, Deutsche Bank contends that First American is under a contractual duty to defend it in the Brown lawsuit. In addition, Deutsche Bank renews its claim for damages under G. L. c. 93A due to First American’s alleged violation of G. L. c. 176D, § 3.[5] In response, First American argues that the allegations in Brown’s complaint do not trigger its duty to defend because they relate to a predatory lending scheme concerning the validity of the underlying note and not the enforceability of Deutsche Bank’s mortgage interest. Alternatively, First American argues that it need not defend Deutsche Bank because Brown’s claims are excluded by the policy. For the reasons discussed below, we conclude that the allegations in […]