Category Archives: MA Courts

Rhode Island Justice pens First Circuit Opinion on Transgender Prisoner Rights

In a ruling applauded by transgender advocates, the First Circuit Court of Appeals affirmed that transgender inmates have a constitutional right to access transition-related care, including gender-confirming surgeries

Here is a link to the opinion in Kosilek v. Spencer. The opinion was written by the Rhode Island Justice on the Court, Judge O. Rogeriee Thompson.

The case involved, Michelle Kosilek, a transgender woman currently serving a life sentence for murder of Cheryl McCaul. The Advocate has reaction from the LGBT community:

“The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care,” said Jenifer Levi, director of Gay and Lesbian Advocates and Defenders’ Transgender Rights Project, in a statement Friday. “If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender.”

“Today’s decision affirms the increasing consensus among the courts that transgender-related healthcare is just healthcare and that people behind bars, including transgender people, have a constitutional right to healthcare,” said Mara Keisling, executive director of the National Center for Transgender Equality. “Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities.”

The Court concluded as follows:

We are assuredly mindful of the difficult tasks faced by prison officials every day. But as the Supreme Court has cautioned, while sensitivity and deference to these tasks is warranted, “[c]ourts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all ‘persons,’ including prisoners.'” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)). And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.

Here the trial judge had the opportunity to preside over two lawsuits involving the same players and similar allegations, to hear evidence in this case over the course of a twenty-eight day trial, to question witnesses, to assess credibility, to review a large volume of exhibits, and, in general, to live with this case for twelve years (twenty years if you count Kosilek I). The judge was well-placed to make the factual findings he made, and there is certainly evidentiary support for those findings. Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights. The court did not err in granting Kosilek the injunctive relief she sought.

First Circuit Stays Part of Worcester Panhandling Ordinance

The United States Court of Appeals for the First Circuit has granted an injunction against a portion of two anti-panhandling ordinance that went into effect in Worcester earlier this year.  While the Court reviews the entire appeal, the portion of the city ordinance that bans “soliciting any person in public after dark, which shall mean the time from one-half hour before sunset to one-half hour after sunrise” cannot be enforced by city officials.

“We are grateful for this first step,” ACLU Foundation of Massachusetts cooperating attorney Kevin Martin, of the law firm Goodwin Procter LLP, said via a statement issued by the ACLU. “If the Court had not issued this order, people – including not only the homeless but also others such as Salvation Army volunteers – would have been barred from seeking charitable donations starting at about 4 p.m. each day during this holiday season.”

In May 2013, the ACLU of Massachusetts filed suit in federal court in Worcester on behalf of three Worcester residents to block two anti-panhandling ordinances enacted by the City of Worcester, claiming the ordinances violate the constitutional right to peacefully solicit donations in public and to engage the public in political and other speech. The federal district court denied their motion for a preliminary injunction—which would have prevented the City from enforcing the ordinances while our suit proceeded—and they appealed in November 2013 to the U.S. Court of Appeals for the First Circuit.

The full appeal is expected to be argued in January.

Massachusetts Supreme Judicial Court makes written fee arrangements mandatory effective January 1, 2013

Word comes from David Mackey, chair of the Board of Bar Overseers for Massachusetts:

On October 24, 2012, the Supreme Judicial Court issued an order amending Mass. R. Prof. C. 1.5(b) to require in paragraph (b)(1) that, in most circumstances, the scope of the representation and basis or rate of the fee and expenses be communicated to the client in writing. The amendment is a major change from the prior version of Rule 1.5(b), which required only that fee arrangements “preferably” be communicated in writing.  No change has been made to Rule 1.5(c), which has always required that contingent fee agreements be in writing.  The effective date of the amendment is January 1, 2013.

New comment 2 to the rule elaborates on what is required, stating that “a simple memorandum or copy of the lawyer’s customary fee schedule is sufficient if the scope of the representation and the basis or rate of the fee is set forth.”  (The more prudent course, however, is for the lawyer to have a fee agreement signed by the client to prevent any misunderstanding as to whether the client was furnished with the required writing.)   The comment further notes that the lawyer ordinarily should send the written fee statement to the client before any substantial services are rendered.

There are a few exceptions to the mandate of a writing. Section (b)(2) of the revised rule creates exemptions to the requirement of a written statement for a single-session legal consultation and for a situation in which the lawyer reasonably expects the total fee to the client will be under $500. This section additionally specifies that, where an indigent representation fee is imposed by a court, a writing is not required because no fee agreement has been entered into between a lawyer and a client.

Finally, the same SJC order also amends Mass. R. Prof. C. 6.5, concerning non-profit and court-annexed limited legal services programs, by adding a new paragraph (a)(1) indicating that lawyers providing short-term limited legal services under the auspices of such programs are not subject to Rule 1.5(b).

These amendments to Rule 1.5 are more fully discussed in an article on the BBO website.


Jury Finds Tobacco Company Liable for Racial Targeting in Smoker’s Death

The Boston Globe reports that a Suffolk County Superior Court jury found the Lorillard Tobacco Company “liable for the death of a Roxbury woman who said that, at age 9, she received free samples of Newport cigarettes in a targeted marketing campaign.”

The estate of the deceased Marie Evans and her son, who filed a wrongful death suit in 2004, won a combined $71 million award.

In videotaped depositions, Marie Evans “testified that Lorillard representatives drove around the Orchard Park apartments in a white box truck-similar to an ice cream truck-passing out Newports to her and other children.”

The jury found Lorillard “negligent in marketing Newports to children such as Evans and failing to warn her of the health risks.”

The Globe adds, “The verdict sets up a second phase of deliberations in which the jury could also award Evans’s estate and family punitive damages, which often are a multiple of the amounts awarded in the compensatory phase.”

Governor Deval Patrick Makes Historic Nomination of Roderick Ireland as Chief Justice of Superme Judicial Court

This just in from the Boston Globe:

Governor Deval Patrick announced this morning that he is nominating veteran associate justice Roderick L. Ireland as chief justice of the Massachusetts Supreme Judicial Court, an appointment that would make Ireland the first black person ever to lead the venerable body.

“We are making history again,” Patrick said to applause at a State House news conference with Ireland that included some of Ireland’s oldest friends from his native Springfield.

Patrick lauded Ireland for his “wisdom and genuine concern for each and every litigant that comes before his court.”

“My nomination says that anything is possible,” said the 65-year-old Ireland, whose school guidance counselor decades ago suggested he become an auto mechanic. He had already made history as the first black associate justice on the court when he was appointed in 1997.

Chief Justice Margaret Marshall announced her retirement from the state’s highest court earlier this year, saying she wanted to spend more time with her husband, Anthony Lewis. The former New York Times columnist has been diagnosed with Parkinson’s disease.

The Blunt versus the Cigar

In USA v. Timothy Brown, the First Circuit recently distinguished between a “marijuana blunt” and a “cigar” in the context of a police officer having “reasonable suspicion” to approach the car.

Rhode Island’s own, Justice O. Rogeriee Thompson, wrote the 29-page opinion:

…Brown argues that the reported observation of an individual smoking a “blunt marijuana cigarette,” absent any evidence of the detection of odor or other suspicious activity, and evaluated in conjunction with (1) the testimony of an officer that visual observation is insufficient to distinguish between a tobacco filled blunt and a marijuana filled blunt and (2) the absence of any observations of smoking or suspicious activity by Dineen and Waters, is insufficient to justify the stop.

Continue reading

Providence Lawyer Involved with first-of-its-kind Marijuana Case

RI Lawyers Weekly reports that Providence lawyer, Josh Macktaz, has found himself at the center of a case that could serve as an important wake-up call to authorities in this new era of marijuana-friendly legislation.

Q. Tell me about the case.

A. My client is a Massachusetts resident who went to California on a job search. While he was there, he obtained a medical marijuana license. He returned home and was stopped for speeding by police in Cranston. He explained that he had 29.5 grams of marijuana in the car and showed them his license. But when the officers found $4,400 in $20s and $50s in the glove box — money given to him by family members for an investment — he was arrested and charged with simple possession. The police seized the marijuana and turned the money over to the federal authorities — the DEA — for forfeiture.