Massachusetts Law Updates

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2010-04-23T13:24:00.001-04:00

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2010-04-23T13:16:00.000-04:00

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A Real Fish Story

2010-04-21T13:30:00.000-04:00

New in 2010 Massachusetts saltwater recreational anglers are now required to register for a saltwater fishing permit. For this year only, the registration is free and is through the National Marine Fisheries Service.

In 2011, the permit fee will be $10 through our state program; whereas the federal program will be charging a permit fee $25. Because Massachusetts has enacted its own registration law, state anglers will be exempt from the higher federal fee next year.

Also exempt will be anglers who are younger than 16, or disabled, or who fish only on permitted for-hire vessels like charters boats, do not have to register in 2010 or obtain a state permit in 2011. Anglers that are 60 years and older will need to obtain a state permit in 2011 but there will be no fee.

Visit the Mass. Division of Marine Fisheries for a Saltwater Permit FAQ

Home Improvement Time

2010-04-08T13:16:00.002-04:00

Spring is often the time homeowners embark on home improvement projects. Here are a few new regulations to keep in mind when you start that project:

40 CFR 745. Lead Paint. Under new federal regulations effective April 1, 2010, "contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination."
527 CMR 10.15 Floor refinishing. Effective June 1, 2010, provides strict new guidelines for floor refinishing.

And if you are preparing your home for sale,

527 CMR 32 Smoke Detectors. Effective April 5, 2010, details new requirements for smoke detectors with which you must comply in order to sell your home.

The Attorney General has a useful consumer guide to home improvement, and we have links to the home improvement contractor law and regulations, as well as helpful forms and websites, at Law About Home Improvement.

Corporate election contributions in Mass.

2010-03-30T09:31:00.003-04:00

The Office of Campaign and Political Finance has issued a statement on the Citizens United decision by the Supreme Court and how it relates to our chapter 55 section 8. The Globe has an analysis here. See our original post here.
In addition, there were changes to local campaign finance laws that went into effect in January. Chapter 28 of the acts of 2009 amended the campaign finance laws, the open meetings laws and the lobbying restrictions. The Office has an overview of how the law is applied in a variety of elections in their newsletter.
And, as always check our pages on Elections and Open Meetings.

Expungement of Criminal Records

2010-03-26T11:19:00.001-04:00

Yesterday, in Comm. v. Boe, the Massachusetts Supreme Judicial Court ruled that a judge does not have the authority "to order the Commissioner of Probation (commissioner) to expunge a defendant's record where the criminal complaint was dismissed because its issuance was premised on a mistake." "Massachusetts appellate decisions have construed the unambiguous language of G.L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court records of dismissed prosecutions." Similarly, in 2002 the court ruled in Comm. v. Gavin G., 437 Mass. 470, that "a Juvenile Court judge lacked the authority to expunge the probation record of a juvenile."

These cases contrast with Comm. v. S.M.F., 40 Mass. App. Ct. 42 (1996), in which expungement was allowed in a case in which the person charged had assumed the identity of a wholly innocent person. "In the unique circumstances of S.M.F., where the deliberate act of prosecution was not against S.M.F., the court concluded that G.L. c. 276, § 100C, was inapplicable, and, therefore, the trial court could invoke its inherent power to expunge the criminal records under the name of S.M.F...Expungement was an appropriate remedy because the facts of the case did not place it within the categories of dispositions contemplated by the sealing statutes--criminal proceedings were never initiated against the "real" S.M.F."

More information on sealing and expungement of criminal records is available at Mass. Law About Criminal Records.

SJC to evaluate foreclosures and Ibanez

2010-03-24T08:30:00.002-04:00

In March of 2009, the Land Court held that a foreclosure was invalid because the notice in the newspaper did not list the holder of the mortgage at the time of the notice. The case is U.S. Bank National Association v. Ibanez and the court held that the sale was void as a matter of law. The Boston Globe has a review of the case here.
Since Ibanez, mortgage companies have delayed deals, and title insurance has been difficult to obtain.
This could impact thousands of cases. The hope is that any changes will not be retroactive, calling into question the ownership of homes sold years ago.

Superior Court Standing Orders

2010-03-22T14:43:00.000-04:00

We've added Superior Court Standing Orders to our site.

Recent Decisions Impacted by Melendez-Diaz

2010-03-19T14:56:00.002-04:00

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.
Some subsequent decisions:

Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167 Defendant argued that his RMV record was submitted and he did not have a chance to cross examine the employee who signed the RMV record. The Appeals Court found RMV records are maintained independently of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records.

Commonwealth v. Madera, 76 Mass. App. Ct. 154 The Appeals Court affirmed the decision. Madera claimed under Melendez-Diaz that his right to confront the drug analyst was violated. The Appeals Court agreed but decided that the evidence was overwhelming against the defendant. Importantly, the prosecution did not make the reports central to its case and Appeals Court noted they made no mention of the certificates in their closing arguments. Therefore the denial under Melendez-Diaz was not strong enough to overturn the decision.

Commonwealth v. Perez, 76 Mass. App. Ct. 439 (2010) Defendant was convicted of drug trafficking. The judgment was reversed following Melendez-Diaz. Drug certificates were introduced, despite defense objection, and the defendant was not able to cross examine the drug analyst.

Commonwealth v. Rivera, 76 Mass. App. Ct. 304 Ballistic certificates were entered into evidence despite objections by defense. The defendant was found guilty. Appeals Court reversed the decision based on the violation of the defendant’s right to confrontation provided by Melendez-Diaz.

Amended Massachusetts Court Rules

2010-03-16T13:50:00.000-04:00

Three Massachusetts court rules were recently amended, effective May 1, 2010.

Mass. Rule of Appellate Procedure 20 "has been amended to require attorneys to include their e-mail addresses, if any, on the front cover of briefs and appendices."

Similarly, Mass. Rule of Civil Procedure 11 "has been amended to require attorneys and unrepresented parties to include their e-mail addresses, if any, on pleadings."

Finally, Mass. Rule of Civil Procedure 10 has a new subsection (e) which states that "The text of any document may appear on both sides of the page."

Access to Justice state and federal issue

2010-02-26T10:03:00.002-05:00

The phrase "Access to Justice" has taken on greater import on the state and federal levels this week. The Massachusetts court system has announced a new commission to study issues of the self represented litigant in the state courts. The Globe reports that Harvard Law Professor Lawrence Tribe will be heading a federal commission on Access to Justice focusing on increasing legal access for the poor.
The Trial Court Law Libraries applaud these efforts, and hope to be part of the solutions. Recently a national conference on public libraries and access to justice was held in Texas with a team from Massachusetts in attendance.
We know that our Law by Subject pages, our IM and email reference, and our free document delivery reach thousands of people. Our 17 brick and mortar locations reach thousands more. We look forward to being part of the discussion on access to justice at all levels.

Cinema of Law Film Series Again On Tuesdays in March

2010-02-25T08:12:00.001-05:00

Films about the law will be shown in the auditorium of the Berkshire Athenaeum again this year on Tuesdays in March sponsored by the Berkshire Law Library, Berkshire Bar Association and the Friends of the Berkshire Athenaeum. Each of the films in the series, “The Cinema of Law” will be introduced by a member of the Berkshire Bar. No admission will be charged.

Dates, films and speakers are as follows:

March 2 The Devil and Daniel Webster introduced by Attorney Chris Dodig
March 9 Philadelphia introduced by Attorney Michael Hinkley
March 16 A Man with a Plan introduced by Register Andrea Nuciforo
March 23 Mr. Smith Goes to Washington to be introduced by Hon. Fredric Rutberg

A presentation will begin at 6 p.m., and the movies will follow. Free Popcorn will be served, and there will be a display of law books related to the subject of the movie from the Law Library’s collection.

Bullying Legislation Moves Forward

2010-02-24T09:46:00.000-05:00

The Joint Committee on Education yesterday voiced their support for H483, An Act Relative to the Prevention of Bullying, together with S228, An Act Relative to Bullying. The bill, which contains provisions that address both traditional bullying and cyberbullying, now moves to the Senate. According to the Boston Globe, "Massachusetts is among less than a dozen states that have not passed a law to prevent bullying - a problem school administrators say has grown more hostile and pervasive in recent years as students harass others via social websites and cellphones equipped with text messaging and cameras."

More information on bullying and the law is available at Massachusetts Law About Bullying.

Help for Haiti

2010-02-23T10:17:00.000-05:00

Governor Patrick has put up a web page called Help for Haiti to assist our Haitian community here in Massachusetts and the people of Haiti following the aftermath of the earthquake on Jan. 10, 2010. The page includes information on both how to help and how to get help.

Additionally, Haitian nationals who cannot return to Haiti due to the earthquake may be eligible to apply for Temporary Protective Status (TPS), due to a special 18-month designation by the Department of Homeland Security (DHS) Secretary, Janet Napolitano. For more information, see Temporary Protected Status – Haiti, and the Application for Temporary Protected Status available from the U. S. Citizenship and Immigration Services.

Finally, late last month, Gov. Deval Patrick signed Executive Order 520 which establishes a "catastrophic leave donation program to support Commonwealth employees impacted by the tragedy in Haiti." Under this program, "Commonwealth employees may donate earned vacation and personal leave to co-workers, who have relatives in Haiti, for the purpose of travel to the country of Haiti, or to care for family members impacted by the recent tragedy in Haiti."

Changes to credit card laws

2010-02-17T10:13:00.002-05:00

February 22 marks the effective date of the new federal law regulating credit card disclosure called the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act of 2009. Among other things, the act requires the lender to notify you 45 days before any changes to your terms and conditions. Your monthly credit card bill will include information on how long it will take you to pay off your balance if you only make minimum payments. It regulates the issuance of cards to people under 21, and puts limits on fees for gift cards as well.
The Federal Reserve has more details on the changes with some samples of what kind of information you will see.
See our page on Credit and Banking for related information.

New law extends reach of restraining order.

2010-02-10T08:50:00.003-05:00

Massachusetts has a new law extending protection to victims of harassment. The new law, chapter 258E of the General laws is for victims of harassment which are often not persons covered under our existing 209A protective restraining order statute.
The complainant should have experienced 3 instances of harassment which is defined here in section 1 : "...acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272."
This protective order can be issued against people who are not domestic partners or family members. Violations of a protective order are criminal offenses.
An article in the Globe here gives some history to the issue.

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

2010-02-01T08:54:00.002-05:00

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

2010-01-27T08:45:00.003-05:00

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

2010-01-21T11:40:00.011-05:00

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.

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.