LENK , J. We are called upon in this case chiefly to consider whether G. L. c. 149, 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C. 14501(c). The plaintiffs, who contracted with the defendants through small corporations that the plaintiffs apparently formed for this purpose, performed services in Massachusetts as furniture delivery drivers. They brought this putative class action against the...
LOWY , J. Clifford E. George and Jacquelyn A. George married in 1989 and divorced in 2002. 1 Their separation agreement, and the judgment that followed, provided that Clifford would pay Jacquelyn monthly alimony. In 2013, Clifford filed a complaint for modification of the divorce judgment that sought, among other things, to modify his alimony obligation based on G. L. c. 208, 49 ( b ), part of the Alimony Reform Act, St. 2011, c. 124 (act), which became effective on March 1, 2012,...
LENK , J. This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012. Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are "privatization contracts" subject to the requirements of the Massachusetts privatization statute, G. L. c. 7, 52-55 (Pacheco Law). The Pacheco Law...
LENK , J. In February, 2010, a Boston police detective investigating an armed robbery and shooting at a convenience store went to the defendant's high school, after suspicion had focused on the defendant as one of the three perpetrators. The detective spoke with a school administrator, who informed him that, pursuant to school policy, she was holding the defendant's cellular telephone. After consultation with his supervisor, the detective seized the telephone to prevent the defendant from...
LENK , J. In March, 2003, the defendant was convicted by a Superior Court jury of murder in the first degree, on a theory of deliberate premeditation, in the 1994 shooting death of Joseph O'Reilly in Quincy. On direct appeal from that conviction, the defendant argues that the judge erred in not allowing the admission of testimony by an expert on eyewitness identification, and in allowing the admission of testimony concerning a stocking cap with eye holes that was seized from a vehicle the...
SPINA , J. In this case, here on a reservation and report from a single justice of the county court, we consider whether the Commonwealth, by means of an anticipatory search warrant, can obtain possession of a cellular telephone that the defendant, Aaron Hernandez, gave to his attorney for the purpose of obtaining legal advice. For the reasons that follow, we conclude that, pursuant to G. L. c. 276, 1, a search warrant may issue for the seizure of the telephone because, absent such...
GANTS , C.J. Under G. L. c. 278, 29D, where a judge fails to advise a defendant during the plea colloquy that conviction may have the consequence of exclusion from admission to the United States, the conviction must be vacated upon motion of the defendant if the defendant shows that his or her conviction "may have" that consequence. The issue on appeal is what the defendant must show to establish that his conviction "may have" the consequence of exclusion from admission to the United...
CORDY , J. On the evening of September 25, 2006, James Cadet was shot and killed. The defendant, David T. Miller, who lived in the same apartment complex as the victim, was indicted for the murder three months later after several witnesses, as well as evidence seized during a search of his apartment building, linked him to the crime. The trial began in February, 2009. The defendant was allowed to conduct the trial pro se but standby counsel, who had been appointed to assist him, actively...
SPINA , J. The plaintiffs appeal from a judgment of the Land Court dismissing without prejudice their action to quiet title under G. L. c. 240, 6-10, for lack of subject matter jurisdiction. 3 The thrust of their action is that a railroad easement formerly owned by the Pennsylvania Central Transportation Co. (Penn Central) across portions of their lands was abandoned when the United States Railway Association (USRA), acting pursuant to the Regional Rail Reorganization Act of 1973,...
DUFFLY , J. This case requires us to decide whether the petitioner, Robert Wade, who filed a motion in the Superior Court seeking postconviction testing of biological material pursuant to G. L. c. 278A ("An Act providing access to forensic and scientific analysis") (act), see St. 2012, c. 38, has satisfied the requirements of the act and therefore is entitled to the testing he seeks. The Legislature enacted G. L. c. 278A to create a process "separate from the trial and any subsequent...
GANTS , C.J. In this appeal, we decide whether the Attorney General properly certified an initiative petition that seeks to amend G. L. c. 23K to authorize the Gaming Commission (commission) to award one additional license for a slot machine parlor. Article 48 of the Amendments to the Massachusetts Constitution, which governs the process for presenting proposed laws directly to Massachusetts voters through popular initiatives, sets forth certain standards for initiative petitions. In this...
DUFFLY , J. After a spill of hazardous materials within a specified radius of a public water supply, Department of Environmental Protection (DEP) regulations require that those deemed to be liable undertake cleanup and monitoring actions to ensure the spill does not pose a danger to that water supply. See 310 Code Mass. Regs. 40.0801, 40.0810, 40.0993(3)(a) (2014); 40.1030(2)(e) (2015). An exemption promulgated in 2007, however, exempts "oil" from some of these requirements when other...
GANTS , C.J. On the evening of October 20, 2009, the defendant's six month old daughter, Jahanna, was rushed to the emergency room, unconscious and unresponsive. She was diagnosed with traumatic brain injury, and scans of her brain showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as "the triad" associated with shaken baby syndrome. The defendant, who was the baby's sole caretaker when she became unconscious, claimed that Jahanna accidentally fell...
CORDY , J. On October 6, 2014, a grand jury returned six indictments against the defendant, Carlos Stevenson: one charging aggravated rape of a child with force, G. L. c. 265, 22B; and five charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, 13B. 1 The defendant filed a motion to dismiss the indictments, arguing, as is relevant to this appeal, that the evidence presented to the grand jury was insufficient because the Commonwealth offered only...
CORDY , J. In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, 3 ( d ) ( 3 [ d ]), which provides that the department "shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions." By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c....
HINES , J. In January, 2012, a Superior Court jury convicted the defendant, Santiago Navarro, on thirty indictments, ten each charging armed robbery while masked, in violation of G. L. c. 265, 17; home invasion, in violation of G. L. c. 265, 18C; and kidnapping, in violation of G. L. c. 265, 26. The indictments stemmed from an incident during which the defendant and an accomplice invaded a home in North Andover and robbed the players in a high stakes poker game. The defendant...
SPINA , J. In Guardianship of V.V., 470 Mass. 590 (2015), we held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, 5-206, and who cannot afford counsel has a right to have counsel appointed and to be so informed. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a...
RESCRIPT This case is before us on a report from a judge in the Probate and Family Court. It concerns a guardianship of a minor child pursuant to G. L. c. 190B. Specifically, the question is whether an indigent parent who petitions to remove a guardian and regain custody of her child, or to establish visitation with the child, has a right to counsel on those petitions. We discharge the report as moot. The guardian was appointed in accordance with G. L. c. 190B, 5-206, in May, 2014. The...
SPINA , J. In this case, we are asked to determine whether an affidavit submitted pursuant to G. L. c. 231, 60J (commonly referred to as the dram shop act), must be a sworn statement based upon personal knowledge. 4 Section 60J prescribes the procedural requirements applicable to "[e]very action for negligence in the distribution, sale or serving of alcoholic beverages to a minor or to an intoxicated person." 5 Pursuant to 60J, within ninety days of filing his or her complaint, a...
CORDY , J. This case arises out of a decision made by the defendants, the principals and owners of Burbank Apartments (Burbank), not to renew Burbank's project-based Section 8 housing assistance payments contract (HAP) with the United States Department of Housing and Urban Development (HUD) when its forty-year mortgage subsidy contract expired on March 31, 2011. In lieu of those project-based subsidies, the defendants opted instead to accept from its tenants Section 8 enhanced vouchers,...
