Municipal Law News


DOWNLOAD – Appeals Court Decision


In Donahue v. Trial Court of the Commonwealth, the Appeals Court today upheld the dismissal of FLSA, Wage Act, overtime and common law claim against the MA Court system.  The Court found, among other points, that the Court was protected by sovereign immunity from those claims.  The decision provides a helpful discussion of sovereign immunity and how these statutes and the common law claims made cannot be made against the Commonwealth.

“Balancing the Scales” – Social Law Library Event – Recommended by MMLA

MMLA recommends for your attention an upcoming virtual event to be hosted by the Social Law Library ( MMLA’s web-host).  It is entitled “Balancing the Scales.”  It is scheduled for March 23rd.

Based on interviews conducted over two decades, Balancing the Scales is an insightful look at the story of women lawyers in America. The interviewees include a broad array of lawyers and judges across five generations, including Supreme Court Justice Ruth Bader Ginsburg, civil rights attorney Gloria Allred, and Roe v. Wade attorney Margie Pitts Hames. Interviews also include state Supreme Court and Appellate Court justices, women equity partners, minority women, associates, and students. They tell their own remarkable and often hilarious stories, from pioneers who paved the way for today’s law students, who don’t yet understand the difficulties they will face in the workplace. It explores how discrimination has shifted from overt to subtle, and why women are leaving the profession in droves. It highlights the deep cultural biases and the ingrained presumptions about both the “work” and the “life” parts of the work-life balance. Finally, the film explains why the promotion of women to top positions is good for both society and firms’ bottom lines.  Further details and registration information is available at Social Law Library’s website;  but here is a direct download link  to the SSL website:   DOWNLOAD LINK.

Hon. Amy Blake, 
Massachusetts Appeals Court; Hon. Janine Rivers, Probate and Family Court; Lisa Cukier, Esq., Burns & Levinson, LLP; Lizette Pérez-Deisboeck, Esq., Battery-Ventures; Sharon Rowen, Esq., Rowen & Klonoski, P.C., Filmmaker (moderator)


DOWNLOAD the SJC Decision

KeywordsIndemnity. Contract, Municipality, Indemnity, Construction of contract. Notice. Practice, Civil, Summary judgment. Waiver. Proximate Cause. Estoppel. Judicial Estoppel

The Supreme Judicial Court today issued an important decision concerning indemnification language in a municipal contract and the duty to indemnify.  In this case  the court discussed, among other issues, the indemnity language in a contract between the City and the plaintiff.  The Plaintiff had claimed that the City did not initiate the indemnification process properly and a Superior Court agreed in a summary judgment motion.  The SJC however reversed.  This is an important case on indemnification, defense, and hold harmless clauses.

[Excerpt] – “Where, as here, the parties do not specify the proper form of notice or what would constitute the opportunity to defend, we must decide what constitutes, as a matter of law, the provision of such notice and opportunity.  See Browning-Ferris Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300, 312 (2011), quoting Fay, Spofford & Thorndike, Inc. v. Massachusetts Port Auth., 7 Mass. App. Ct. 336, 342 (1979) (“Where the parties to a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances will be supplied by the court”).  We conclude that, in the absence of any specific contractual provisions by the parties, a simple statement of claims that are encompassed by the indemnification clause is sufficient to trigger the obligation to assume the defense; the notice need not be in writing or in any particular form of words, and the indemnitee need not explicitly ask for the assumption of the defense or to hold the indemnitee harmless.  Once notice has been received, the burden shifts to the indemnitor proactively to attempt to assume the defense.  To attempt proactively to assume the defense entails good faith efforts promptly to assume and control the defense of the claims asserted.[5]

Given this, and on the record before us, we conclude that Psychemedics did not meet its burden to establish by undisputed facts that it was entitled to judgment as a matter of law.  Accordingly, the allowance of summary judgment and the entry of a declaratory judgment in Psychemedics’s favor were incorrect.”

MMLA to Present at Upcoming MMLA Annual Convention

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.

If you community is a member of the MMA, and most are, you can register for the virtual MMA Annual Meeting for the low price of $105.00, and attend the 2 days of programs and events.  Well worth it!
While MMLA will not be having its usual booth at the trade show, MMLA is supporting the MMA Annual Meeting and urges its members to sign up.
More information on the MMA Annual Meeting, including registration information, can be found at the MMA website ( or at this Annual Meeting link- .

Michael Lehane of Murphy, Hesse, Toomey & Lehane has died

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.



DOWNLOAD the Appeals Court decision

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.[3]  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.”



KeywordsPublic 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.”