Walter E. Fernald Corporation v. The Governor, et al. (Lawyers Weekly No. 10-087-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11801 WALTER E. FERNALD CORPORATION vs. THE GOVERNOR & others.[1] Suffolk. February 5, 2015. – May 29, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Corporation, Charitable corporation. Real Property, Ownership. Governmental Immunity. Agency, Public agent. Civil action commenced in the Land Court Department on September 8, 2010. The case was heard by Keith C. Long, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph Callanan, Assistant Attorney General (John M. Donnelly, Assistant Attorney General, with him) for the defendants. Thomas J. Frain (C. Alex Hahn with him) for the plaintiff. LENK, J. The Walter E. Fernald Corporation (corporation), established in 1850, is a charitable organization devoted to serving the needs of the developmentally disabled. The corporation brought an action in the Land Court, seeking, among other things, a declaration under G. L. c. 231A, § 1 (declaratory judgment act), that it is the owner of certain parcels of recorded land. The parcels are located on Norcross Hill in Templeton (Templeton parcels). As defendants in its suit, the corporation named the Governor, the Department of Developmental Services, and the Division of Capital Asset Management (collectively, the Commonwealth); the Commonwealth had asserted ownership of the Templeton parcels by, among other things, naming several of them in a statute designating an expanse of land for conservation and public recreational purposes. See St. 2002, c. 504. A judge of the Land Court denied the Commonwealth’s motion to dismiss the corporation’s suit on grounds of sovereign immunity. Subsequently, the judge allowed the corporation’s motion for summary judgment. The judge concluded that there could be no genuine dispute that, although a school established by the corporation became an agency of the Commonwealth in the early Twentieth Century, the corporation itself remained independent of the Commonwealth, and purchased the Templeton parcels on its own behalf. The judge therefore entered judgment declaring the corporation’s ownership of the parcels. We affirm, holding that sovereign immunity does not apply to the particular type of action brought here and adopting the same analysis of the facts taken by the judge below. 1. Background. We outline the facts that gave rise to this litigation, reserving the details for later discussion. The corporation was created by […]
McCarthy, et al. v. The Governor, et al. (Lawyers Weekly No. 10-050-15)
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-11625 MICHAEL J. McCARTHY & another[1] vs. THE GOVERNOR & another.[2] April 7, 2015. Governor. Council. Constitutional Law, Governor. Secretary of the Commonwealth. Judge. Jurisdiction, Equitable. The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.[3] The plaintiffs alleged, in part, that when the Governor “nominates” a candidate for judicial office, the nominee automatically is “appointed” without further gubernatorial action when a majority of the Executive Council’s members records its advice and consent to the nomination. The plaintiffs alleged that that is what happened here. They further alleged that the Governor, once a nominee has been confirmed by the Council, is required to sign a commission, and that the Secretary of the Commonwealth is obligated to issue the commission, but that the Governor and the Secretary failed to perform these duties in McCarthy’s situation. The plaintiffs sought relief in the nature of mandamus, declaratory relief, and, in the alternative, equitable relief. A single justice of this court allowed the Governor’s and the Secretary’s motion to dismiss. The plaintiffs appeal. We affirm the judgment of the single justice. Background. On August 23, 2012, the Governor nominated McCarthy for the position of Associate Justice in the Southern Berkshire Division of the District Court Department. The Executive Council held a hearing on McCarthy’s nomination on September 19, 2012, and the Council’s members voted on it at their next weekly meeting, on September 26, 2012. Three councillors voted in favor of the nomination, three councillors voted against the nomination, and one councillor, plaintiff Mary-Ellen Manning, abstained.[4] The nomination thus failed to garner the necessary votes for confirmation. Although the Council met again on October 10 and 17, 2012, it took no further action concerning the McCarthy nomination at those meetings. However, on October 17, Manning, who had initially abstained from voting, delivered a letter to the Governor stating that she now “advise[d] in favor of and consent[ed] to the appointment of” McCarthy, and that the “Council Register will so reflect.” Neither the Governor nor the Secretary took any further steps concerning McCarthy’s August 23, 2012, […]
Fmr. Governor Paul Cellucci Dies
Former Massachusetts Gov. Paul Cellucci died today at age 65. Cellucci battled amyotrophic lateral sclerosis, or ALS for five years. He passed away at his Hudson home, according to Boston.com. Cellucci was diagnosed with the disease in 2008, but did not make it public until January 2011, according to the news site. He served as governor of Massachusetts from 1997 to 2001. He was U.S. Ambassador to Canada during the George W. Bush administration. A service for Cellucci will be held in Hudson at a date to be determined, according to Boston.com. South End Patch
Governor, Mayor Extend ‘Shelter In Place’ Order Through Entire City
Governor Deval Patrick and Police Commissioner Ed David (Speaking for Mayor Tom Menino) have extended the “Shelter in Place” recommendation to all of Boston. “We’re asking people to shelter in place. In other words, to stay indoors with their doors locked and not to open their door for anyone other than a properly identified law enforcement officer,” said Patrick in a press conference in Watertown this morning. The order is an extension of the previous shelter recommendation, which included Watertown, Waltham, Newton, Belmont, Cambridge and Allston/Brighton. The new order means there are approximately 935,000 people are now locked in their homes. “Please understand we have an armed and dangerous person(s) still at large and police actively pursuing every lead in this active emergency event. Please be patient and use common sense until this person(s) are apprehended,” read a statement from the mayor’s office. South End Patch
Governor Shuts Down T Service as Bomber Manhunt Continues
After a bloody night and multiple gunfights, one suspected bomber is dead and the other remains at large. Governor Deval Patrick requested the MBTA suspend service until further notice as a safety precaution. Officials asked anyone at a T station or bus to go home. Residents of Watertown, Newton, Waltham, Belmont, Cambridge, Alston/Brighton are asked to stay at home and indoors, businesses to remain closed and avoid mass transit. South End Patch
Should Scott Brown Run for Governor?
Results of a UMass Lowell/Boston Herald poll this week show former Senator Scott Brown is more popular than he was when he lost his re-election bid last fall and is in a strong position to run for governor in 2014. The independent, nonpartisan poll surveyed 600 Massachusetts registered voters between Saturday, March 2 and Tuesday, March 5. With regard to Brown, the poll – which asked voters for their opinions on whether they would vote for Brown if he runs for governor – showed he has considerable bipartisan support, with 32.7 percent saying they are very likely to vote for him and 26 percent somewhat likely. Results showed that Brown, who garnered support of 92.2 percent of Republicans polled and 36.7 percent of Democrats, had more name recognition than other possible candidates, including Charlie Baker (67.2 percent combined said they had no opinion/never heard of Baker), former Lt. Gov. Kerry Healey (58.4 percent combined no opinion/never heard of) and state Treasurer Steve Grossman (79.5 percent no opinion/never heard of). So tell us, what do you think? Would you vote for Scott Brown for governor? Or is there another potential candidate out there who you think would be a better fit for the seat? Tell us in the comments below. South End Patch