Commonwealth v. Morgan (Lawyers Weekly No. 10-058-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12114 COMMONWEALTH vs. JOEL D. MORGAN. Middlesex. December 6, 2016. – April 18, 2017. Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Veteran. Motor Vehicle, Operating under the influence. Controlled Substances. Practice, Criminal, Continuance without a finding, Dismissal. Complaint received and sworn to in the Lowell Division of the District Court Department on October 3, 2014. A motion for pretrial diversion was heard by Barbara S. Pearson, J., and questions of law were reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. Elizabeth Hugetz, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the defendant. John C. Mooney, for John C. Mooney & another, amici curiae, submitted a brief. LENK, J. This case comes to us on two reported questions and calls upon us to construe for the first time the so-called VALOR Act, St. 2012, c. 108, entitled “An Act relative to veterans’ access, livelihood, opportunity and resources.” The VALOR Act was enacted in 2012 in the aftermath of protracted American military engagements in Afghanistan and Iraq. In recognition of the toll thereby taken on many who served in the military, the VALOR Act, among other things, amended the statute providing young adults with pretrial diversion, G. L. c. 276A (pretrial diversion statute), to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts. We address first whether, under the pretrial diversion statute, as amended by the VALOR Act, a judge is authorized to dismiss or to continue such charges without a finding upon a defendant’s successful completion of an approved pretrial diversion program. We conclude that the judge is so authorized, rejecting the Commonwealth’s view that the VALOR Act amendments permit only a continuance of court proceedings, on the flawed view that, while military defendants could seek treatment through court-approved programs, they would face resumed prosecution of the charged offenses even after the successful completion of such a program. We go on to address the reported questions and consider whether the pretrial diversion statute, as amended by the VALOR Act, permits a […]
Morgan v. Massachusetts Homeland Insurance Company (Lawyers Weekly No. 11-005-17)
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-216 Appeals Court ANTHONY G. MORGAN vs. MASSACHUSETTS HOMELAND INSURANCE COMPANY. No. 16-P-216. Hampden. November 9, 2016. – January 20, 2017. Present: Kafker, C.J., Kinder, & Lemire, JJ. Consumer Protection Act, Class action, Insurance. Practice, Civil, Class action, Consumer protection case. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Settlement of claim, Regulation, Amount of recovery for loss. Words, “Actual cash value,” “Retail book value.” Civil action commenced in the Superior Court Department on March 8, 2012. Motions for class certification and for summary judgment were heard by Edward J. McDonough, Jr., J.; and the case was heard by Bertha D. Josephson, J. Brett J. Vottero (Eric D. Applebaum also present) for the plaintiff. Michael S. Batson (Michael C. Kinton also present) for the defendant. KAFKER, C.J. The plaintiff, Anthony G. Morgan, brought this civil action against the defendant, Massachusetts Homeland Insurance Company (Homeland or insurer), alleging that Homeland engaged in unfair or deceptive claim settlement practices in violation of G. L. c. 176D, § 3(9), and G. L. c. 93A, in the course of settling his total loss auto insurance claim.[1] See G. L. c. 93A, §§ 2, 9. Even though the claim was settled within two months of the accident, with the plaintiff’s acceptance of the insurer’s offer, the plaintiff claimed that the insurer violated c. 176D and c. 93A because it did not take into account the “retail book value” of his vehicle, as required by 211 Code Mass. Regs. § 133.05(1)(a) (2003). The plaintiff also filed a motion to certify a class action pursuant to G. L. c. 93A, § 9(2). A judge of the Superior Court (motion judge) denied class certification and entered a summary judgment on that count of the complaint. After a jury-waived trial on the plaintiff’s individual c. 93A claim, the trial judge (who was not the motion judge) found that, although Homeland had violated c. 93A, the plaintiff was not injured by the violation, and entered judgment for Homeland on that count of the complaint. On appeal, the plaintiff argues that the judges erred by (1) denying his motion for class certification; and (2) concluding that he was not injured by Homeland’s c. 93A violation. Homeland cross-appeals, challenging the trial judge’s ruling that it violated c. 93A. We conclude that the motion for class certification was properly denied, and […]
Commonwealth v. Morgan RV Resorts, LLC, et al. (and five companion cases) (Lawyers Weekly No. 11-089-13)
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 13‑P‑119 Appeals Court COMMONWEALTH vs. MORGAN RV RESORTS, LLC, & others[1] (and five companion cases[2]). No. 13‑P‑119. Suffolk. May 23, 2013. ‑ July 9, 2013. Present: Cypher, Kafker, & Sullivan, JJ. Judge. Practice, Civil, Disqualification of judge. Civil action commenced in the Superior Court Department on August 22, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on February 17, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on December 14, 2010. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on July 31, 2009. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on March 3, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on January 5, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Leave to prosecute interlocutory appeals was allowed in the Appeals Court by Kafker, J., and Sullivan, J. Christa A. Arcos (Scott D. Burke with her) for Carmel Gilberti. Jonathan B. Engel, Assistant Attorney General (Mychii Snape, Assistant Attorney General, with him) for the Commonwealth. KAFKER, J. The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge’s personal involvement in the lawsuit, the amount at stake, and the judge’s inconsistent rulings on prior recusal motions, “an objective appraisal of whether this was ‘a proceeding in which [her] impartiality might reasonably be questioned’” compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972). Accordingly, we reverse […]