Amicus announcements posted
From time to time, the Supreme Judicial Court solicits amicus
("friend of the court") briefs or memoranda from parties not
directly involved in a case, but that may have an interest or
opinion about a case pending before the court.
Interested parties may file their briefs in the Office of the Clerk for the Commonwealth, John Adams
Courthouse, Suite 1-400, One Pemberton Square, Boston MA
02108-1724. Phone: 617-557-1020
Parties filing amicus briefs are expected to comply with the
requirements of Rules 17,19 and 20 of the Massachusetts Rules of Appellate Procedure.
Amicus briefs, to assist the court, should focus on the
ramifications of a decision and not solely on the interests of the
parties filing such briefs. Amicus submissions are due no later
than two weeks before the first day of the sitting in which the
case is scheduled for argument.
The Supreme Judicial Court is soliciting amicus briefs or
memoranda from interested parties in the following matters pending
before the court:
March 2017 Announcements
Care and Protection of Joseph C.
1. Whether, at a "72-hour hearing," where the trial court is
considering whether a child will remain in the custody of the
Department of Children and Families pending a final hearing on the
merits of a care and protection petition, the judge must comply
with the certification and determination requirements of G. L. c.
119, § 29C (regarding the department's reasonable efforts to
eliminate the need for removal of the child from the home); whether
the certification and determination requirements apply only at the
initial, ex parte hearing or also at the 72-hour hearing.
2. Where G. L. c. 119, § 29C, delineates certain exceptions
from the "reasonable efforts" requirement, none of which applies in
the circumstances of the case, whether DCF may be excused on any
other basis from making reasonable efforts to eliminate the need
for removal of the child from his home.
Commonwealth vs. A Juvenile
Whether, under G. L. c. 119, § 54, an offense causing serious
bodily injury to a nonhuman animal qualifies as an offense that
"involves the infliction . . . of serious bodily harm" for purposes
of supporting a youthful offender indictment.
John Doe No. 209081 vs. Sex Offender Registry Board
Whether the person appointed to conduct a final classification
hearing, pursuant to G. L. c. 6, § 178L, must inquire of the sex
offender as to whether the sex offender's purported waiver of the
statutory right to counsel is knowing, intelligent and
Omari Peterson vs. Commonwealth
Where a defendant's criminal conviction was vacated on direct
appeal on the ground that certain evidence should have been
suppressed, but the appellate court did not reach his alternative
argument that the knife he was convicted of possessing was not
unlawful under G. L. c. 269, § 10 (b), whether he may establish
preliminary eligibility under the erroneous conviction statute, G.
L. c. 258D, § 1 (B) (ii), by alleging that he was innocent of the
Timothy Deal & another vs. Commissioner of
1. Whether the Department of Correction in conducting
classification hearings as part of an "individualized determination
of a juvenile offender's suitability for placement in minimum
security," Deal v. Commissioner of Correction, 475 Mass. 307,
318 (2016), must provide certain procedural protections, including,
but not limited to, access to counsel, at the hearing.
2. Whether the department impermissibly applies
discretionary classification override codes in making its
classification decisions, specifically, the decision of whether a
juvenile offender qualifies for placement in minimum security, in
violation of G. L. c. 119, § 72B.
Sreynuon Lunn vs. Commonwealth
1. Whether a State court in Massachusetts has the
authority temporarily to hold an individual, or otherwise order or
arrange for him to be held, solely on the basis of a so-called "ICE
detainer," after the criminal charges against him have been
dismissed (or after he has posted bail or been ordered released on
2. Whether the detention of an individual pursuant to an ICE
detainer that was issued without a prior determination of probable
cause by a neutral magistrate, and without there having been an
opportunity for the individual to challenge the issuance of the
detainer, violates the individual's Federal and State
3. Whether, as a matter of Federal law, a State court is
required to comply with an ICE detainer; if not, in what
circumstances can a court comply with the detainer voluntarily
without violating the individual's Federal and State constitutional
(Amicus briefs on or before March 10, 2017).
Energy Express, Inc. vs. Department of Public
Where G. L. c. 164, § 94F, provides, in part, that "the
[Department of Public Utilities] . . . may order [a] gas company to
refund to its customers any sums refunded to said gas company . . .
and may impose such restrictions, limitations, terms and conditions
in such order as are considered necessary by it," whether the
department permissibly ordered Bay State Gas Company, to return a
portion of a refund that it received from an interstate pipeline,
which was valued at approximately $30 million, to ratepayers, but
not to natural gas marketers, including Energy Express, Inc., which
purportedly paid excessive rates.
Beacon Residential Management, LP vs. Kaylem Pipkin &
Pursuant to the Federal Violence Against Women Act, 42 U.S.C. §
14043e-11 (b) (1), whether a person who is (1) the spouse of
a tenant in a rent-subsidized apartment, but not herself a lawful
occupant of the apartment, and (2) the mother of two minor children
who are lawful occupants of the apartment, has a right to intervene
in a summary process action against the tenant to assert either her
own right to tenancy or the children's rights to tenancy; whether
such a person may be disqualified from intervening in the action
because of her alleged fraud or misconduct.
January 2017 Announcements
D & H Distributing Co. v. Commissioner of
Where, in a three-party sales transaction involving a consumer
located in the Commonwealth; a retailer located outside of the
Commonwealth; and a wholesale distributor engaged in business in
the Commonwealth, the wholesaler "drop ships" merchandise directly
to the consumer at the retailer's request, whether, for purposes of
G. L. c. 64H, §§ 1 and 8 (a), the wholesaler or the Commissioner of
Revenue has the burden to prove that the retailer is not engaged in
business in the Commonwealth such that the wholesaler, rather than
the retailer, is the "vendor" responsible for remitting sales tax
on sold merchandise.
Commonwealth vs. Moses Ehiabhi
1. "Does G. L. c. 94C, § 32A, vest improper discretion in
the prosecutor to determine what subsection an individual will be
charged under [i.e., G. L. c. 94C, § 32A (b) or § 32A (d),]
particularly in light of the statement made to [the trial judge]
that generally, prosecutors charge individuals under the more
stringent subsections of the statute without further explanation or
justification; and/or is the statute ambiguous in imposing
contradictory mandatory minimum sentences on the same subsequent
offense, requiring application of the rule of lenity."
2. Whether the arresting officer had adequate training and
experience and a sufficient basis to believe that the defendant was
operating his motor vehicle under the influence of marijuana, or
that his operation was impaired as a result of ingestion of
marijuana, therefore justifying the exit order and pat frisk.
Commonwealth vs. Michael J. Wolfe
Whether the Appeals Court's holding in Commonwealth v. Downs, 53
Mass. App. Ct. 195 (2001) (concluding that there was no error in
instructing the jury, in prosecution for operating under the
influence of alcohol, that they were not to consider absence of
evidence of breathalyzer test results), is incorrect and should be
Commonwealth vs. Kevin A. Mauricio
Whether an officer's viewing of photographs on a digital camera
found in the defendant's possession at the time he was arrested
violated the Fourth Amendment and art. 14 of the Declaration of
Rights, where her stated reason for viewing the photographs
allegedly was not investigatory but was to look for information
that might identify the owner of the camera, which the officer
believed may have been stolen, but where she did so without a
warrant, after the defendant had been booked and the camera was
already secured in police custody.
Commonwealth vs. Richard D. Jones
Whether a judge erred or abused his discretion in denying the
defendant's request for a summons, pursuant to Mass. R. Crim. P. 17
(a) (2), for the alleged victim's counseling records; whether, as
the defendant requests, "[t]he Dwyer-Lampron protocol should be
modified to require a minimal showing of relevance for the issuance
of rule 17 (a) (2) summonses and protected review by counsel, and a
higher standard for use of the evidence at trial."
135 Wells Ave, LLC vs. Housing Appeals Committee &
Whether amendments and waivers of the city's restrictive covenant
on the Wells Avenue property are essentially "permits or approvals"
for purposes of the comprehensive permit act, G. L. c. 40B, §§ 21
Scott Phillips vs. Equity Residential Management
"With respect to the Massachusetts Security Deposit Law, Mass.
Gen. Laws ch. 186, § 15B, when a lessor violates the terms of
Section 15B (4) (iii), does the lessor's corresponding violation of
Section 15B (6) (b) , which 'forfeit[s] his right to retain any
portion of the security deposit for any reason,' id. § 15B (6),
also constitute a violation of Section 15B (6) (e) - 'fail[ing] to
return to the tenant the security deposit or balance thereof to
which the tenant is entitled . . . within thirty days after
termination of the tenancy' - thereby triggering the statute's
treble damages provision, Section 15B (7)?" (Certified
question from Court of Appeals for the First Circuit)
Robert Ajemian, individually and as co-administrator & another
vs. Yahoo!, Inc.
Whether the Federal Stored Communications Act, 18 U.S.C. § 2702,
prohibits disclosure -- by an entity that provides electronic mail
message services -- of the contents of a deceased account
holder's account, including the communications contained therein,
to the administrators of his or her estate.
Derek L. Young vs. Joy Young
Whether and under what circumstances the Alimony Reform Act, G. L.
c. 208, §§ 48-55, permits a judge to award general term alimony in
an amount based on a percentage of the payor's income.
Commonwealth vs. Casandra B. Littles
Whether G. L. c. 266, § 37, and the model jury instruction on
larceny by check deprived the defendant of due process by
permitting the jury to infer the defendant's knowledge of
insufficient funds and intent to defraud based on her failure to
repay the dishonored checks within two days of being notified that
they were dishonored.
Matter of E.C.
When a person has been found incompetent to stand trial on
criminal charges, and ordered committed pursuant to G. L. c. 123, §
16 (b), whether dismissal of the criminal charges terminates any
basis to seek further commitment of the person pursuant to G. L. c.
123, § 16 (c), or to continue the commitment pursuant to G. L. c.
123, § 6, while a § 16 (c) petition is pending.
George T. Koshy vs. Anypam Sachdev
On a petition filed pursuant to G. L. c. 156D, § 14.30 (2), under
what circumstances a judge may order the dissolution of a
corporation on the ground that a deadlock exists and that
irreparable injury to the corporation is threatened or being
suffered; what constitutes a deadlock within the meaning of G. L.
c. 156D, § 14.30 (2).
Joanne M. Popp vs. Robert L. Popp
Whether, on a complaint for modification of a divorce judgment the
predates the Alimony Reform Act, the retroactive imposition of the
durational limits set forth in G. L. c. 208, § 49 (b), violates the
recipient's right to due process by depriving her of her
substantive right to alimony or unconstitutionally changes the
burden of proof by permitting such a modification without proof of
a material change in circumstances. The case will be paired for
oral argument with Susan P. Van Arsdale vs. William R. Van Arsdale,
S.J.C. No. 12228, DAR-24738, A.C. No. 16-P-1315.
Great Divide Ins. Co. vs. Lexington Ins. Co.
"Where there is a motor vehicle accident and the primary
commercial automobile liability insurance policy issued to the
owner of the vehicle involved in the accident is exhausted, what is
the priority of coverage between
"(1) a second primary commercial automobile liability insurance
policy insuring the driver of the vehicle, which contains an other
insurance/non-owned vehicle clause providing
"(a) that, with respect to motor vehicles that insured owns, this
insurance is primary,
"(b) that, with respect to motor vehicles the insured does not own,
this policy is excess and
"(c) that 'when this coverage form and any other coverage form or
policy covers on the same basis, either excess or primary, we will
pay only our share' and
"(2) a true excess liability insurance policy insuring the owner of
the vehicle that contains another insurance clause providing that
'if other valid and collectible insurance applies to damages that
are also covered by this policy, this policy will apply excess of
the "other insurance"'?"
Virginia B. Smith & others vs. City of Westfield &
Whether land can be designated for the purposes of article 97 of
the Amendments to the Massachusetts Commonwealth in a manner
sufficient to invoke that article's protection by means other than
a deed or other recorded restriction on the land; specifically,
whether the city sufficiently designated certain property for
article 97 purposes, without recording any document so stating, by
(1) passing an ordinance recognizing the property as a playground
and naming it as such; (2) accepting a Federal grant to upgrade the
property, which required a Statewide comprehensive outdoor
recreation plan stating that land acquired or developed with the
grant funds becomes protected under article 97; and (3) endorsing
an open space and recreation plan that identified the property as
Cristina Barbuto vs. Advantage Sales and Marketing LLC &
Whether the termination of an employee's employment based
on her lawful use of medical marijuana outside the workplace
violates G. L. c. 151B, § 4, or is otherwise wrongful; whether the
medical marijuana act and the regulations promulgated thereunder
create a private right of action for an employee who has been
terminated because of her use of medical marijuana.
Commonwealth vs. Dasheem L. Dew
Whether a witness's in-court identification of a
defendant is inadmissible where it was preceded by an unequivocal
pretrial identification by the witness that allegedly was the
product of a suggestive procedure (although, apparently, not so
suggestive as to require suppression); whether the degree of the
suggestiveness of the pretrial identification is relevant in
determining whether that identification was "unequivocal."
Proposed amendments to SJC Rule 1:11, relative to the disposal of
old court papers and records
The Supreme Judicial Court Rules Committee solicits comments on
proposed amendments to SJC Rule 1:11, Rule Relative to the Disposal
of Old Court Papers and Records. In light of improvements in
electronic storage and limited space to store paper records, the
Supreme Judicial Court appointed a committee to review the
requirements of Rule 1:11. The Court asked the committee to
consider whether changes were warranted regarding the scope of case
records required to be retained permanently and whether any records
might be retained electronically.
Based on the committee's recommendations and further
modifications as suggested by the SJC Rules Committee, the major
proposed revisions to Rule 1:11 would:
- Allow courts to maintain most case records electronically, once
paper records have been converted to, and stored in, an approved
archival digital format;
- Allow every trial court to dispose of and retain records based
upon sampling, eliminating the requirement that certain Superior
Courts retain all of their records permanently;
- Simplify the public notice required before disposing of records
by allowing notice to be posted on the Courts' website rather than
published in local newspapers;
- Permit the destruction of dockets related to proceedings
involving minor offenses, such as civil motor vehicle infractions,
as long as minimal sampling rules are followed; and
- Bring the disposal of case records in the Supreme Judicial
Court and Appeals Court within the scope of Rule 1:11, which
currently only governs Trial Court records.
As amended, Rule 1:11 would remain permissive and not require
the destruction of any records.
The proposed amendments appear at the link below. Comments
should be directed to Christine P. Burak, Supreme Judicial Court,
John Adams Courthouse, One Pemberton Square, Boston, MA 02108 on or
before May 26, 2017. Comments received will be made available to the public.
Proposed SJC Rule 1:11