At Massachusetts Municipal Association’s upcoming annual convention scheduled for January 21-22, MMLA’s president Ellen Callahan Doucette and MMLA board of directors member Donna Brewer, of Miyares & Harrington, will be making presentations. A casualty of the COVID-19 pandemic, the traditional gathering at Hynes Auditorium will be replaced by the now-familiar “virtual” meeting. MMLA’s contributions include its traditional “Municipal Law Update.” As in the past, there are numerous informative and timely workshops on a myriad of local government issues.
We are profoundly sorry to report on the passing of Michael Lehane, one of the founding partners of Murphy, Hesse, Toomey & Lehane of Quincy. Mike was a longtime management labor and employment law attorney who always generously shared his sage counsel and advice with many, especially MMLA members. He was a longtime MMLA member and active in the Association and listserv. Those of us who attended the annual MMA member trade shows will likely remember being cordially greeted by Mike at his firm’s booth. He represented several communities as Town Counsel and many more as special counsel. He was a “go to person” for many personnel and municipal matters and always went out of his way to help local counsel. His expertise extended beyond employment matters and he was a strong advocate for local government. The MMLA offers its most sincere condolences to his family and many friends.
DOWNLOAD the firm’s release, and the published obituary.
Keywords – Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Liability for tort, Governmental immunity. Negligence, Governmental immunity, Ambulance. Practice, Civil, Motion to dismiss
Excerpt: “SACKS, J. The defendant city of Taunton (city) appeals, under the doctrine of present execution, see Brum v. Dartmouth, 428 Mass. 684, 687-688 (1999), from a Superior Court judge’s order denying the city’s motion to dismiss the plaintiff’s claims under the Massachusetts Tort Claims Act. The plaintiff alleges that city employees negligently delayed in responding to her 911 call reporting that she and her mother had been stabbed by an intruder, and that this delay caused the mother’s wrongful death and the plaintiff’s emotional distress. We conclude, applying the plain language of G. L. c. 258, § 10 (j), that these harms were “not originally caused by” the city’s delayed response, but instead were caused by “the violent or tortious conduct of a third person” — the intruder — and thus that § 10 (j) bars the claims. We also must reject the plaintiff’s argument that the claims fall within an exception to § 10 (j) for harm caused by negligent medical treatment. Accordingly, the claims should have been dismissed.”
Keywords: Public Records. District Attorney. Statute, Construction. Words, “Receive”
As the year ends tonight, the SJC on December 31, 2020 issued an important public records case, Rahim v. District Attorney for the Suffolk District. The issue was over whether documents the DA received from the FBI as part of an investigation of a shooting were subject to the public records law or exempt as they were not “made or received” and/or exempt under the investigatory exemption. Among other points, the SJC ruled that some of the records in dispute were exempt under the investigatory exemption, and others needed further analysis bty the trial court. The SJC also ruled that “received” does not mean thus now owned. Relatedly, the SJC acknowledged, as many municipal attorneys have argued, “[t]here remains understandable confusion concerning the burden of proof that a record custodian bears when claiming an exemption from the public records law.” Herr is an excerpt from the Court’s decision:
[Excerpt] – “During the course of investigating a fatal shooting by Federal and State law enforcement officials, the office of the district attorney for the Suffolk district (district attorney) requested and received assorted materials related to the incident from the Federal Bureau of Investigation (FBI). We now decide whether these materials qualify as public records under G. L. c. 66, § 10 (a), of the Massachusetts public records law (public records law) and, if so, whether they are exempt from disclosure under either G. L. c. 4, § 7, Twenty-sixth (a) (exemption [a]), or G. L. c. 4, § 7, Twenty-sixth (f) (exemption [f]). . . . We now hold that the FBI materials qualify as “public records” under the public records law; that the materials do not qualify for exemption (a); and that some of the materials qualify for exemption (f), but the rest must be remanded to determine whether exemption (f) applies.”
Keywords: Constitutional Law, Freedom of speech and press. Statute, Severability. Practice, Civil, Declaratory proceeding
[Excerpt] – “Under G. L. c. 85, § 17A, sometimes referred to as the “panhandling” statute, a person who signals to a motor vehicle on a public way, causes the vehicle to stop, or accosts an occupant of the vehicle “for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise” is generally subject to criminal prosecution and a fine. The statute permits the same conduct when undertaken for other purposes, however, such as selling newspapers, and it specifically exempts activity that would otherwise fall within the statute’s sweep if conducted by a nonprofit organization with a permit from the local chief of police. We conclude that G. L. c. 85, § 17A, is unconstitutional on its face under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, because the statute is a content-based regulation of protected speech in a public forum that cannot withstand strict scrutiny.
DOWNLOAD – Appeals Court Decision
Keywords: Libel and Slander. Municipal Corporations, Officers and employees. Privileged Communication. Practice, Civil, Summary judgment
“The plaintiff, Diane Lawless, a former municipal employee, appeals from the entry of summary judgment in favor of a former subordinate, the defendant, Cheryl Estrella, on the plaintiff’s claim of defamation. We conclude that an opinion based on disclosed, nondefamatory facts is not defamatory and that many of the allegedly defamatory statements constitute such opinions. Further concluding that an employee has a conditional privilege to provide information concerning another employee upon the request of a supervisor and that the plaintiff failed to raise a genuine issue of material fact that would allow a jury to find that this privilege was abused regarding the other statements, we affirm.”
The SJC upheld the Governor’s authority under public health statutes to issue state of emergency and orders. Assistant Attorney General Margaret Hurley stated: “A huge congratulations to my colleagues in the Attorney General’s Office who worked very hard on this case (and many other similar cases)!” [Excerpt] – “We conclude that the CDA provides authority for the Governor’s March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders; the emergency orders do not violate art. 30 of the Massachusetts Declaration of Rights; and the emergency orders do not violate the plaintiffs’ Federal or State constitutional rights to procedural and substantive due process or free assembly.”