Cases scheduled to be heard in November

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Following is a list of the cases scheduled to be argued before the Supreme Judicial Court in November. The summaries of the issues presented in the cases have been prepared by Lawyers Weekly. The SJC, in cooperation with Suffolk University Law School, provides live and archived webcasts of its arguments at www.suffolk.edu/sjc.

MONDAY, NOV. 3

Commonwealth v. Berry
SJC-13789

The issues include whether a single justice correctly affirmed a Superior Court judge’s decision denying the defendant’s motion to vacate an order allowing a court-ordered psychiatric evaluation.

Elizabeth Caddick for the defendant-appellant
David D. McGowan and Elisabeth Martino, for the commonwealth

Campbell v. Mystic Valley Regional Charter School
SJC-13769

At issue is whether a “commonwealth charter school” is subject to the provisions of the Massachusetts Public Records Law.

KerryAnne Kilcoyne for the plaintiff-appellee
Charles M. Waters and Matthew Campbell, for the defendant-appellant

Commonwealth v. Tanner
SJC-13647

The issue is whether G.L.c. 278A permits post-conviction forensic testing when the defendant dies after such testing is ordered but before it is completed.

David B. Mark for the commonwealth
Jessica Dormitzer, John Langa, India Mazzarelli, Laura Carey, Radha Natarajan, Kari Cincotta and Daniel McCaughey, for the defendant-appellant

Galvin v. Roxbury Community College, et al.
SJC-13754

The issue is whether the Superior Court erred in ruling that the plaintiff was entitled to summary judgment on the question of whether he engaged in whistleblowing as defined in G.L.c. 149, §185(b)(3), including whether the requirement under §185(b)(3) — that an employee “reasonably believe” an activity violates the law — is satisfied per se when it is undisputed that the activity in question violated the law.

Orestes G. Brown, Bailey Buchanan and Derek Sullivan, for the plaintiff-appellee
Daniel G. Cromack and Eric Martignetti, for defendant-appellant Roxbury Community College
James J. Horgan, Howard R. Meshnick and Daniel G. Cromack, for defendants Linda Edmons Turner, Chuks Okoli and Alexander P. Paul

WEDNESDAY, NOV. 5

Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts, et al.
SJC-13824

At issue is whether and under what circumstances the Supreme Judicial Court, an SJC single justice or any trial court judge is authorized to order increased compensation rates beyond those provided in G.L.c. 211D, §11(a), for attorneys accepting representation of indigent criminal defendants.

Rebecca A. Jacobstein, Benjamin H. Keehn and Holly T. Smith, for the petitioner-appellant
Janis DiLoreto Smith, Bethany Stevens, Jennifer K. Zalnasky, Nicole M. Nixon, Marina Pullerits, Daniel P. Sullivan and Emily O. Cannon, for the respondents-appellees
Elisabeth Martino, David D. McGowan and Ian MacLean, for the intervener-appellee

Commonwealth v. A Juvenile
SJC-13800

The justices are soliciting amicus briefs on the following issue: “Whether, in cases where a juvenile has been adjudicated a youthful offender and has been sentenced pursuant to G.L.c. 119, §58 par. 3(b), to a combination of commitment to the Department of Youth Services until age 21 with a sentence to a house of correction or state prison suspended pending successful completion of probation, a judge subsequently imposing the suspended adult portion of the sentence after a probation violation has the authority to apply credit from time spent in secure confinement during the DYS commitment portion of the sentence.”

Catherine L. Semel and Emily Jarmolowicz, for the commonwealth
Lisa Lana, Scott M Hulgan and Brian J. Anderson, for the defendant-appellant

Ryan v. Mary Ann Morse Healthcare Corp.
SJC-13726

At issue is whether the defendant, an assisted living residence, violated the security deposit statute (G.L.c. 186, §15B) by charging new residents an upfront “community fee,” in violation of Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612 (2019) (Ryan I), or whether the fees in question were proper because they were used to fund services designed specifically for assisted living residences.

Matthew T. LaMothe, Joshua N. Garick, John R. Yasi and Kevin J. McCullough, for the plaintiff-appellee
AiVi Nguyen and Brian Edmonds, for the defendant-appellant

Fontaine v. Phillip Morris USA Inc.
SJC-13778

The issues are: whether the defendant is entitled to a new trial, rather than a remittitur, on the ground that the jury’s award of $1 billion in punitive damages was motivated by passion and prejudice; whether the remitted award, which is seven times the amount of compensatory damages, is constitutionally excessive and should be reduced; whether a trial judge must impose safeguards to prevent an excessive punitive damages award, namely, (1) a requirement that a punitive damages award must be supported by clear and convincing evidence, as the appellant contends is required in a majority of states outside Massachusetts, and (2) bifurcation of the trial to separate the assessment of the amount of punitive damages from the other issues in the case; whether the jury should have been instructed that the warnings mandated by the Federal Cigarette Labeling and Advertising Act are adequate as a matter of law to warn consumers, including the plaintiff’s decedent, about the risks of smoking; and whether such evidence was improperly admitted at trial because the Labeling Act preempts the imposition of liability for failure to include additional or more clearly stated warnings.

Andrew Rainer, Mark Gottlieb, Kevin Donovan, Meredith K. Lever, ShanShan Guo and Celene H. Humphries, for the plaintiff-appellee
Scott A. Chesin, Melissa Nott Davis, John Lyons, Laura Whitmore, Bryan Thompson and Mary Olson, for the defendant-appellant

Commonwealth v. Agostini
SJC-13827

The issue is whether the orders committing the defendant for dangerousness pursuant to G.L.c. 276, §58A, should be vacated, including whether the defendant, who was charged with armed robbery and making a bomb or hijack threat, was charged with a crime that qualified as a predicate offense under §58A.

Christine Letsche, David B. Mark and Rachel J. Eisenhaure, for the commonwealth
Jennifer Magaw and Haylie Jacobson, for the defendant-appellant

MONDAY, NOV. 10

Commonwealth v. Moscaritolo
SJC-13575

The issues are (1) whether the commonwealth proved the defendant’s guilt beyond a reasonable doubt under the deliberate premeditation theory, (2) whether the defendant is entitled to a new trial because the lower court failed to instruct the jury on involuntary manslaughter, (3) whether the defendant is entitled to a new trial because the lower court improperly allowed totem pole hearsay under the joint venture exception to the hearsay rule, and (4) whether the defendant’s conviction for burglary with injury to an occupant should be vacated as duplicative of the defendant’s first-degree felony murder conviction.

Carolyn A. Burbine and Melissa Weisgold Johnsen, for the commonwealth
Patricia A. DeJuneas for the defendant-appellant

Commonwealth v. Ferguson
SJC-13574

The defendant argues that (1) he was entitled to an instruction on involuntary manslaughter, (2) the trial court erred in declining to grant a mistrial after the commonwealth made several improper and prejudicial statements during closing argument, (3) his five firearm convictions must be vacated since the commonwealth did not introduce proof that he lacked a license to carry a firearm, and (4) either the unarmed burglary or unarmed robbery conviction must be vacated as duplicative of the felony-murder conviction.

Carolyn A. Burbine and Arne Hantson, for the commonwealth
Michael Tumposky and Andrew Courossi, for the defendant-appellant