Massachusetts Law Updates

Low-Speed Vehicles

2010-02-03T09:22:00.000-05:00

Since last July, Massachusetts has had a law (MGL c.90, s.1F-1I, added by St.2008, c.523) which allows operation of low-speed vehicles (those that do not travel more than 25 mph) on certain roads, and also requires registration of those vehicles. Yet, according to Sunday's Boston Globe, only 10 such vehicles have been registered in the state so far. More information on Low-Speed Vehicles is available from the Registry of Motor Vehicles.

Older Oil Burners Must be Upgraded to Prevent Leaks

2010-02-01T08:54:00.000-05:00

A law enacted over a year ago (St. 2008, c.453) requires homeowners with oil burners installed before 1990 to make a small change to their systems by July 1, 2010 to prevent leaks. According to the Mass. DEP, under the Homeowner Oil Heating System Upgrade and Insurance Law, "Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve... Installation of these devices must be performed by a licensed oil burner technician." "It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time."

The good news is that the law also requires insurers who offer homeowner's insurance to also offer coverage for oil leaks to those who have certified that they have made the repairs or are exempt from the requirement.

More information, including a diagram of necessary repairs, is available at the Mass. Department of Environmental Protection site.

Texting banned for commercial bus and truck drivers

2010-01-27T08:45:00.002-05:00

Tuesday, the U.S. Dept. of Transportation banned texting by commercial drivers. The regulatory guidance is published in the January 26 Federal Register and relates to 49 CFR 390.17.
Federal employees are banned from texting by an executive order dated October 1, 2009. The DOT also has a web site called Distraction.gov and a blog called The Fast Lane which have other research on these issues.
Massachusetts has yet to ban texting or cell phone use for all drivers. The Federal ban would apply to all commercial vehicles.

Supreme Court rules corporations can participate in elections

2010-01-21T11:40:00.006-05:00

The Supreme Court today overturned some elements of the campaign finance laws in Citizens United v. Federal Elections Commission. You might recall this issue arose in 2008 with a film about Hillary Clinton. The 183 page opinion includes four addition opinions concurring and dissenting. The ruling concerns 2 UCS 441(b), contributions by banks, corporations and unions. The decision removes limits on independent expenditures that are not coordinated with candidates' campaigns. It leaves in place a prohibition on direct contributions to candidates from corporations and unions. Disclaimer and disclosure requirements were held to be valid restrictions. For an brief history and analysis from Nina Totenberg, listen here.
The Globe reports here.
Don't forget our Elections page for more elections law.
This could mean our own statute, chapter 55 section 8 is unenforceable.

New "sale" regulations in effect for retailers

2010-01-19T08:44:00.002-05:00

The Attorney General's office regulates retail advertising as part of it's consumer protection responsibilities. Some of them include the need to disclose terms in an audible manner and at a speed equal to the other speech in the advertisement. Print ads can't contain important language that is too small, or hard to read due to lack of contrast. They have recently softened the requirements for marking items on sale. Now the stores can mark an item on sale even though the item has been at the reduced price for most of the year. In the past, it had to have been at full price for the majority of the time. The new regulations are here. The regulations also cover "buy one get one free", "if purchases separately" and gifts. The Globe has an overview of the regulations here. For more information check our page on Shopping and Returns, and Consumer Protection.

School Committee emails violate Open Meeting Law

2010-01-04T15:33:00.006-05:00

On December 31, 2009, the SJC released their opinion in District Attorney for the Northern District vs. School Committee of Wayland, opining that the School Committee had indeed violated the state's Open Meeting Law by emailing amongst themselves comments on the performance of their superintendent of schools. The Court went on to say that in order to cure this violation, the school committee must release the written comments of the individual school board members. (See Footnote 9 of above-mentioned case.)

See our Massachusetts Law About Open Meeting Law for more information on this subject.

Noteworthy Impact of Melendez-Diaz

2009-12-18T11:15:00.003-05:00

In Melendez-Diaz v. Massachusetts (129 S. Ct. 2527) the Supreme Court found the introduction of state forensic-lab reports is testimonial evidence requiring the appearance at trial of lab technicians.

Here is a list of some subsequent decisions:

Commonwealth v. Sanders (Lawyers Weekly No. 82-271-09)
Defendant was found guilty of drug trafficking. The case has been remanded because the drug test technician was not present for cross-examination.

Commonwealth v. Nixon (Lawyers Weekly No. 82-092-09)
The judge admitted, over a defense objection, a drug certificate and testimony of the police that the substance ‘appeared to be a derivative of cocaine.’ The case has been ordered to a new trial since it was a violation of Melendez-Diaz.

Commonwealth v. Chery, 75 Mass. App. Ct. 909
In a firearm and ammunition possession case, a ballistics certificate was admitted into evidence. This case has also been ordered to a new trial.

Commonwealth v. Connolly, 454 Mass. 808
The defendant appealed a drug trafficking conviction asserting that the search warrant had attached affidavits from informants. Since the informants were not made available for cross-examination the defendant sought to exclude evidence found. The appeal was denied. Probable cause was sufficient for the search and informants had the right to confidentiality.

Commonwealth v. Brown, 75 Mass. App. Ct. 361
In another firearm case, the defendant was found in possession of an unloaded pistol. The prosecution entered a ballistics certificate that stated Brown was in illegal possession of a working firearm. Again this case has been sent to retrial for violation of right to cross-examination granted under Melendez-Diaz.

New Text Messaging Service

2009-11-30T11:19:00.000-05:00

We have just added another way for you to reach us! In addition to live chat, email, phone, and (of course!) coming in to the library, you can now text a question from your cell phone to 978- 6 LAWLIB (978-652-9542). Questions will be answered Monday-Friday 8:30-4:30, but feel free to send a text during evenings and weekends as well, and we'll get back to you the next business day.

Texting works best for short questions, like questions about library hours, renewing books, or basic facts, like "Who are the current Supreme Court Justices?". If you do text a question that can't be easily answered in 160 characters, be sure to include your email address so we can give you a proper reply.

Patient and Family Advisory Councils

2009-11-19T10:55:00.001-05:00

New regulations (105 CMR 130.1800-.1801) require hospitals to set up Patient and Family Advisory Councils by October, 2010. According to the Department of Public Health's advisory to hospitals, "The formation of a PFAC is intended to facilitate patient and family participation in hospital care and decision-making, information sharing, and policy and program development. The Institute for Family Centered Care has identified core concepts of patient and family-centered care as dignity and respect, information sharing, participation and collaboration." According to the regulations, the purpose of a council is "to advise the hospital on matters including, but not limited to, patient and provider relationships, institutional review boards, quality improvement initiatives, and patient education on safety and quality matters to the extent allowed by state and federal law." Links to this and other health-related issues are available at Mass. Law About Health Care.

Free Caselaw from Google

2009-11-18T12:59:00.003-05:00

The legal research community is buzzing about Google's announcement yesterday of a free database of full-text cases from federal and state courts via Google Scholar. The cases are well-formatted, include pagination, and include links to all cited cases that are also in the database. Here's what's included:

State Appellate and Supreme Court Cases since 1950
Federal District, Appellate, Tax and Bankruptcy Cases since 1923
US Supreme Court Cases since 1791

Here's how to use it:

To search the whole database, just go to Google Scholar, select Legal Opinions and Journals and start searching. But often you'll want to narrow your search, so instead, click on Advanced Scholar Search.
Type in your search terms in the boxes at the top of the page.
At the bottom of the page, select the juridiction(s) you'd like to search and click on Search Scholar.

Here's how to explore more content:

Once you have a case you like, click on How Cited at the top of the screen.
The right column will include Cited By and Related Documents, giving you additional cases, articles and books

How to use library services to get the most out of the database:

Find a case you like and use our "Ask a Librarian" service to have it Shepardized.
If you are in one of our libraries and click on a law review article from the "How Cited" page, it will bring you right into that article in Hein Online.
If you are at home, jot down the article citation and the go into Hein Online via our remote access service to read the article.
Click on the title of a book in the "How Cited" page, and then click Find in a Library in the left column to locate your nearest library that owns the book and request a copy.

It isn't clear how current the coverage is. Doing a quick search, we easily found cases from a few months ago, but were unable to find very recent cases. For Massachusetts cases from 1930 (or earlier) to 1950, or for cases from the past few months, we recommend Mass. Cases. For cases from the last few weeks, your best bet is slip opinions from Mass Reports.

Land Court Cases

2009-11-18T09:17:00.002-05:00

Massachusetts Land Court Cases from July 2009 to date are now available online. Additional cases are being added daily. Cases can be accessed by name, docket number or date. They can also be searched full-text.

New Protection for Utility Consumers

2009-11-17T10:54:00.001-05:00

Earlier this week, Gov. Patrick signed St.2009, c.133: An Act Relative to Public Utility Companies. This new law is largely a reaction to the extended power outage in the Lunenburg area after last December's ice storm. According to the press release, the law "strengthens consumer protections, provides the necessary tools to the Department of Public Utilities (DPU) to levy financial penalties if utilities do not follow approved storm plans, and puts into law existing requirements for utility storm restoration plans."

"This new law will help protect people when power outages due to extreme weather strike," Speaker Robert DeLeo said. "With its passage, Governor Patrick, Senate President Murray and I are standing together to ensure that the state has the right tools to address weather-related utility problems and that utilities make adequate plans to prepare for severe storms."

More information on utility service is available at our Mass. Law About Utility Service.

Proposed Bullying Prevention Legislation

2009-11-16T08:59:00.001-05:00

The Boston Globe reported yesterday that "After years of delays, the Legislature appears poised to crack down on bullying among schoolchildren." A hearing will be held tomorrow on a bill sponsored by Rep. John Rogers, H483: An Act Relative to the Prevention of Bullying. The proposed law would require all school districts to "adopt a policy prohibiting discrimination..., harassment, intimidation, bullying and cyberbullying," based on a model policy that the Department of Elementary and Secondary Education would create. The Joint Committee on Education will be holding the hearing on the bill tomorrow at 1:00 PM in Hearing Room A1. More information on bullying is available at Mass. Law About Bullying and Cyberbullying.

Regs for LPs and LLCs updated

2009-11-02T13:42:00.003-05:00

The regulations for Limited Partnerships (950 CMR 108) and Limited Liability Companies (950 CMR 112) have been updated as of October 30, 2009. The Secretary of State posts some of their regulations on the web, but not all. They have not posted the new regulations as of this post, so don't forget our document delivery service. We can fax you the latest regulations from the Mass. Register. Our links from our Limited Liability Companies page at this time are to the older regulations. We are always glad to send documents at no charge.

California to fund right to counsel for civil matters

2009-10-28T13:09:00.006-04:00

California became the first state in the nation to adopt a broad policy to fund the right to counsel for certain civil cases, deemed to be basic human needs. It will be funded by an increase in court fees, and be expended through legal aide groups and grants. While it is a pilot project, actually becoming a working project in 2011, it's goals are high. It is also aimed at encouraging lawyers to meet the pro bono requirements for attorneys in the state. It will likely cover areas such as fighting eviction, loss of child custody, domestic abuse or neglect of the elderly or disabled, and has identified child custody as a key issue. It addresses "...the substantial inequities in timely and effective access to justice that often give rise to an undue risk of erroneous decision because of the nature and complexity of the law and the proceeding or disparities between the parties in education, sophistication, language proficiency, legal representation, access to self-help, and alternative dispute resolution services." The Sargent Shriver Civil Counsel Act was signed by Governor Schwarzenegger last week. Read the LA Times here and the Wall Street Journal here. For information on how Massachusetts deals with the issue of unrepresented litigants, see our Pro Se page here.

Landlord's Liability for Bite by Tenant's Pit Bull

2009-10-20T10:23:00.002-04:00

Yesterday, in Nutt v. Florio, the Mass. Appeals Court ruled on a case in which a dog bite victim sued the landlord of the owner of the dog, a pit bull. The court said "Under the common-law principles applicable here, the plaintiff cannot recover from the defendants without evidence that they knew or reasonably should have known that the dog had dangerous propensities...As a general principle, knowledge of the mere presence of the dog on the landlord's property is insufficient, as '[d]ogs are regarded by the common law as ordinarily harmless animals.'"

However, in Comm. v. Santiago, 452 Mass. 573, a criminal case, the SJC stated that the pit bull is a breed "commonly known to be aggressive." Therefore, "while the defendants may not be held strictly liable by virtue of Tiny's breed, knowledge of that breed and its propensities may properly be a factor to be considered in determining whether the defendants were negligent under common-law principles." "Here, questions of fact exist as to Tiny's dangerous propensities as well as the defendants' knowledge of those propensities in light of the complaints claimed to have been made by the plaintiff's parents to the defendants," and so the case was remanded to Superior Court for further proceedings.

Governor's Authority to Make New Law Effective Immediately

2009-09-24T08:18:00.000-04:00

If a law does not have an emergency preamble, it is typically effective 90 days after enactment. The newly-passed law permitting the governor to appoint an interim senator does not have such a preamble. Yet a provision in the state constitution appears to give the governor the authority to determine that the law should take effect immediately by including a letter to the secretary of state explaining his reasoning. Mass. Constitution Articles of Amendment XLVIII, Part II Emergency Measures, says in part "...if the governor, at any time before the election at which it is to be submitted to the people on referendum, files with the secretary of the commonwealth a statement declaring that in his opinion the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith and that it is an emergency law and setting forth the facts constituting the emergency, then such law, if not previously suspended as hereinafter provided, shall take effect without suspension...".

Details on New Small Claims Procedure

2009-09-22T11:04:00.000-04:00

The District Court recently released Small Claims Changes Effective October 1, 2009, Mass. District Court Transmittal 1026, Sept. 11, 2009. This 38-page document includes everything you need to know about new small claims procedures, including "a one-page chart summarizing the amendments to the rules, a one-page checklist for entering default judgments, a redlined version of the rules and commentary, highlighting the changes, five new forms which will be used in implementing the new changes..., and revised instructions for the back of the “STATEMENT OF SMALL CLAIM AND NOTICE OF TRIAL” (DC-SC-1) form, which will be introduced when the form is next reprinted." More information on Small Claims is available at Mass. Law About Small Claims.

SJC Rules GPS Monitoring of Car is Okay

2009-09-18T10:40:00.010-04:00

The Mass. Supreme Judicial Court ruled yesterday that police may secretly break into a suspect's vehicle and install a GPS tracking device if the state first obtains a valid warrant.

In an unanimous decision, the court decided in Commonwealth v. Connolly, that the covert placement of such a device into a private car is a seizure. However, it also said it is not a violation of the Massachusetts Declaration of Rights' ban on unreasonable searches and seizures as long as the state establishes “before a magistrate, probable cause to believe that a particularly described offense has been...or is about to be committed, and that GPS monitoring of the vehicle will produce evidence...or will aid in the apprehension of a person" who police believe is responsible for that offense.

While most search warrants are valid for seven days, the court said that GPS monitoring can last up to fifteen days.

Praising our own "Unsung Heroes"

2009-09-10T14:36:00.004-04:00

For the 5th year, Lawyers Weekly is saluting "unsung heroes" by honoring professionals in various areas. This year, two of our own have been nominated as Law Librarians : Richard Adamo and Meg Hayden.
Richard Adamo, Essex Law Library : "When Richie took over the library, it was a disaster. He turned it into one of the finest law libraries anywhere. He is also a model civil servant. He will drop everything to help a patron and will not stop until he finds an answer. If that means going to another library for the resource, it is done. He also treats everyone the same. If a non-lawyer or pro se litigant comes in for help, they are treated as well or better than the attorneys. He is a true gentleman and a fine librarian."
Meg Hayden, Electronic Resources Librarian : "Meg serves as electronic resources librarian for the Massachusetts Trial Court Law Libraries. In addition to keeping all of the TCLLs connected, Meg has designed a top-notch website that provides access to laws and legal information ranging from abortion to zoning. Meg has spent many a long weekend and evening developing and refining the cases database to insure free access to Supreme Judicial court and Appeals Court cases. Meg's vision of customer service has been an inspiration to us all in the Trial Court Law Libraries."
The luncheon for all the nominees is Friday, September 18th. We know you will join us in offering Meg and Richard a hearty congratulations for their nominations. They are the best!

Holy Moses!

2009-09-10T14:35:00.004-04:00

The Worcester legal community is going to party for Moses next Thursday at the Worcester Law Library! Mass. Lawyers Weekly reports that the deadline to RSVP for the festivities is tomorrow. For more information, you can call the Worcester Law Library at 508-831-2525.

Ticket Scalping Law Remains Unclear

2009-08-27T11:24:00.003-04:00

The issue of what fees are allowable under MGL c.140 s.185D, the ticket scalping law, is not yet resolved. In Herman v. Admit One Ticket Agency, the SJC ruled today that the plaintiff, who had not actually purchased a ticket, lacked standing. The court acknowledged that "Requiring a prospective buyer to purchase an illegally priced ticket would effectively preclude those unable to pay an unlawful ticket price from seeking redress for a defendant's unfair conduct...Thus, where, as here, a c. 93A action is directly or indirectly based on a statute regulating the price of a particular product or service to be sold to a consumer, a plaintiff normally has standing to assert a c. 93A claim if he or she is ready, willing, and able to purchase the product or service at a price consistent with the relevant statute."

However, "Given the complexity of determining the amount of fees a ticket reseller may legitimately charge, proof of standing, normally a threshold issue,... requires essentially a prima facie case. The cost of litigation is dear, considerably greater than the cost of a ticket. In order to keep a proper perspective on the merits of the case, and in light of the variable nature of the fees a ticket reseller may impose pursuant to § 185D, we hold that to obtain standing, a plaintiff must purchase a ticket to maintain a c. 93A claim premised on a violation of the policy embodied in § 185D. "

In dissent, Justice Cowin wrote "the court demands that, in order to obtain standing, the plaintiff must show in advance that he will win the case."

RECAP: "Turning PACER Around"

2009-08-24T10:08:00.006-04:00

We are always excited when a new tool or website becomes available to provide free access to public documents. RECAP is a plugin for Firefox for PACER users that makes PACER documents available for free.

Here's how it works:

First, when you are using PACER and purchase a document, RECAP makes it easy for you to download a copy of the document to their repository.

Then, when you are searching PACER for a document and somebody else has already added that document to RECAP, you'll be notified that the document is already available for free. The people at RECAP (a project of the Center for Information Technology Policy at Princeton University) have pre-loaded documents from PublicResource.org, so there are already over a million documents available.

See their site for more information about copyright, privacy, fee waivers, and other issues regarding the use of RECAP.

Sex offender GPS monitoring ruling applied

2009-08-20T08:40:00.003-04:00

Recently, the SJC ruled that sex offenders who committed their crimes prior to the changes in MGL ch. 127 s. 133 D1/2 or ch.265 s. 47 cannot be required to wear a global positioning system device (GPS) as a condition of probation or parole. The court found in Commonwealth v. Cory (August 18th, 2009) that Chapter 303 of the 2006 Acts "...is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses committed before the statute's effective date..." The effective date was December 21, 2006.
Yesterday, Judge Tuttman in Lowell Superior court, refused to order GPS for a level 3 sex offender on probation, applying the new ruling to Ralph Goodwin, convicted in 1990 of child molestation. Globe story here.
For more information on the topic, see our page on Sex Offenders.

Credit Card Reforms Effective Today

2009-08-20T08:16:00.002-04:00

While most of the Credit CARD Act of 2009 (PL111-24) doesn't take effect until next February, two provisions become effective today. Credit card bills must now be sent at least 21 days before they are due (up from 14 days), and card issuers have to provide notice of changes 45 days before they take effect. For more information, see Credit Card Reform.org or our Law About Credit and Banking.