author: KAFKER, J.

text:
    John DOE, Sex Offender Registry Board No. 76819 & others v. SEX OFFENDER REGISTRY BOARD.
    SJC-12462
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued April 3, 2018. Decided August 1, 2018.
    Christopher M. Bova (William H. Burke, Special Assistant Attorney General, also present) for the defendant.
    Eric B. Tennen, Boston (Kate A. Frame, Salem, & Andrew S. Crouch, Boston, also present) for the plaintiffs.
    John Reinstein, Boston, for the intervener, was present but did not argue.
    Nancy A. Dolberg, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      John Does, Sex Offender Registry Board Nos. 293109, 22306, 21890, 1719, 208025, 3687l, 21916, 11751, 645, 22023, 5165, 34293, 20594, 37783, 54040, 6063, 96160, 7320, 11596, 151563, 276695, 35451, 31337, and 156025; and Alexander H., intervener.

   KAFKER, J.

In this companion case to Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. ----, 102 N.E.3d 409, 2018 WL 3637075 (2018) ( Noe No. 5340 ), we consider the burden and quantum of proof in cases in which sex offenders seek termination of their duty to register under the State's sex offender registry law, G. L. c. 6, §§ 178C - 178Q. We also address the requirement imposed on the Sex Offender Registry Board (board) to hold hearings in reclassification and termination proceedings requested by the sex offender within a reasonable amount of time. Finally, we address various other procedural and jurisdictional questions raised by the parties.

The plaintiffs, sex offenders seeking reclassification or termination of their duty to register, sought relief from a single justice of this court, challenging both the board's allocation of the burden of proof in these proceedings and the board's failure to timely conduct offender-initiated reclassification and termination hearings. The board moved to dismiss the petition and complaint, arguing that the single justice did not have jurisdiction to hear the matter. The board further contended that its delay was justified by its duty to prioritize other cases, pursuant to G. L. c. 6, § 178K (3), and its interest in the resolution of the pending Noe No. 5340 litigation.

The single justice reserved and reported to the full court so much of the case as involved the board's motion to dismiss. Additionally, the single justice reserved and reported the following question: "What is the quantum of proof required at a hearing where a sex offender requests reclassification or termination of his or her status as a registered sex offender?"

For the reasons discussed below, the motion to dismiss is denied. Additionally, for substantially the reasons discussed in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, we conclude that due process requires that the appropriate quantum of proof in termination proceedings, as in reclassification proceedings, is clear and convincing evidence, and that the burden is imposed on the board, not the sex offender. The sex offender does, however, retain an initial burden of production to introduce evidence of changed circumstances showing that he or she "does not pose a risk to reoffend or a danger to the public." See 803 Code Mass. Regs. § 1.30(1) (2016). We further conclude that such hearings on reclassifications and terminations must take place within a reasonable period of time after the issuance of the rescript in this case.

1. Background. a. Statutory scheme. Under the sex offender registry law, an individual convicted of an enumerated sex offense may be required to register as a sex offender in the Commonwealth. See G. L. c. 6, § 178E. Offenders are classified in one of three levels depending on their risk of reoffense and degree of dangerousness. See G. L. c. 6, § 178K (2). A sex offender is classified as level one where "the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability" of registration information. G. L. c. 6, § 178K (2) (a ). A sex offender is classified as level two where "the board determines that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information." G. L. c. 6, § 178K (2) (b ). A sex offender is classified as level three where "the board determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination" of registration information. G. L. c. 6, § 178K (2) (c ).

Pursuant to the sex offender registry law, the board prepares a recommended classification for each sex offender. G. L. c. 6, § 178L (1). If an offender objects to the board's recommendation, he or she is entitled to request an evidentiary hearing for a final determination as to his or her registration and classification. See G. L. c. 6, § 178L (1) (a ), (2). The sex offender registry law requires that the hearing officer "determine by a preponderance of evidence such sex offender's duty to register and final classification." G. L. c. 6, § 178L (2). In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311, 41 N.E.3d 1058 (2015) ( Doe No. 380316 ), this court concluded that the statutory provision requiring only a preponderance of the evidence to determine an offender's duty to register and classification level violated the offender's procedural due process rights. We held that the board was instead constitutionally required to prove the appropriateness of an offender's initial classification by clear and convincing evidence. Id.

No sooner than three years after initial classification, an offender may seek to be reclassified at a lower level. See G. L. c. 6, § 178L (3) ; 803 Code Mass. Regs. § 1.31(2)(a) (2016). After our decision in Doe No. 380316, the board amended its regulations to require that offenders prove the appropriateness of downward reclassification by clear and convincing evidence, rather than a preponderance of the evidence. See 803 Code Mass. Regs. § 1.31(2)(c). Today, in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, we held that the regulation placing the burden of proof on the offender in downward reclassification hearings violated the offender's procedural due process rights. We concluded that the burden of proof must remain with the board to prove the appropriateness of an offender's existing classification by clear and convincing evidence. See id. The offender does, however, have an initial burden of production to provide "new information" of a decreased risk of reoffense or degree of dangerousness. See id. ; G. L. c. 6, § 178L (3).

At least ten years after initial classification, an offender may seek to have his or her duty to register terminated. See G. L. c. 6, § 178G. Here, we are confronted with the question of the appropriate quantum and burden of proof in the context of such termination hearings. Pursuant to G. L. c. 6, § 178G :

"A person required to register with the sex offender registry board may make an application to said board to terminate the obligation upon proof, by clear and convincing evidence, that the person has not committed a sex offense within ten years following conviction, adjudication or release from all custody or supervision, whichever is later, and is not likely to pose a danger to the safety of others."

To answer the reported question from the single justice, we must determine whether placing the burden of proof on an offender in termination hearings, by clear and convincing evidence, is in violation of procedural due process.

2. Discussion. a. Reported question. For substantially the same reasons outlined in our decision in Noe No. 5340, we now conclude that the appropriate quantum of proof in termination proceedings is also clear and convincing evidence and that the burden is imposed on the board. We further conclude, as we did in Noe No. 5340, that the offender retains an initial burden of production to provide new evidence. In so doing, we balance "the private interests affected, the risk of erroneous deprivation, the probable value of additional or substitute safeguards, and the governmental interests involved." Doe No. 380316, 473 Mass. at 311, 41 N.E.3d 1058, quoting Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100, 697 N.E.2d 512 (1998) ( Doe No. 972 ).

i. Private interests. As we stated in Doe No. 380316, 473 Mass. at 311, 41 N.E.3d 1058, the private interests at stake in sex offender registration and classification are significant. A sex offender faces "increasingly stringent affirmative reporting requirements" and is "likely to confront stigma and legal restrictions that will make it harder for him to find stable housing or employment, and may even face threats of physical harm." Id.

Although an offender who is already registered is in a different position from that of an individual who has not yet registered, the private interests at stake remain significant. See Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409. The sex offender registry law requires sex offenders to register annually. See G. L. c. 6, § 178F. Such registration information is transmitted to local law enforcement where the offender lives and works, as well as law enforcement where the offender attends an institution of higher learning. See G. L. c. 6, § 178K (2) ; 803 Code Mass. Regs. § 1.05(9) (2016). The information is also disseminated to the Federal Bureau of Investigation and may also be provided to numerous State agencies. See G. L. c. 6, § 178K (2) ; 803 Code Mass. Regs. § 1.05(9)(c). In other words, "the Commonwealth [is required] annually to inform local and Federal law enforcement officers that, in its view, [the offender] presents a risk of committing a sex offense," despite any subsequent conduct to the contrary (emphasis in original). Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 790-791, 882 N.E.2d 298 (2008). A sex offender's continued duty to register thus remains "a continuing, intrusive, and humiliating regulation of the person himself." Doe v. Attorney Gen., 426 Mass. 136, 149, 686 N.E.2d 1007 (1997) (Fried, J., concurring). Accordingly, sex offenders seeking termination of their continued duty to register, and the significant consequences that follow from such registration, have substantial privacy and liberty interests at stake.

ii. Risk of erroneous deprivation. As we stated in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, "the risk of erroneous classification and deprivation remains in reclassification proceedings and ... that risk must continue to be borne by the government." Therefore, in reclassification proceedings the ultimate burden of proof must remain with the board to prove by clear and convincing evidence that the existing classification is current and correct. Id. See Doe No. 380316, 473 Mass. at 313, 41 N.E.3d 1058, quoting Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (offenders "should not be asked to share equally with society the risk of error" in initial classification proceedings).

We further concluded, however, that there is a burden of production on the offender seeking reclassification to demonstrate some change in his or her circumstances indicating a reduced risk of reoffense or degree of dangerousness, as he or she is in the best position to provide such evidence. Noe No. 5340, supra at ----, 102 N.E.3d 409. The same essential reasoning applies to terminations as well.

Termination, like reclassification, is not "a mere continuation of the original classification" proceedings, designed to verify the board's initial determination. Id. at ----, 102 N.E.3d 409. An offender may not apply for termination unless the offender "has not committed a sex offense within ten years following conviction, adjudication or release from all custody or supervision, whichever is later." G. L. c. 6, § 178G. Subsequent requests for termination may be made three years after the board has denied the last motion for termination. See 803 Code Mass. Regs. § 1.30(9). Thus, at minimum, a sex offender only becomes eligible to apply for termination ten years after his or her initial offense.

By including a decade-long waiting period for initial termination requests, the Legislature recognized that an offender may no longer pose a danger to others after the passage of such a significant period of time. See G. L. c. 6, § 178G. See also 803 Code Mass. Regs. § 1.33(29), (30), (31) (2016) (recognizing that likelihood of recidivism and dangerousness decreases with additional offense-free time in community, advanced age, and debilitating illness). This ten-year waiting period is significantly longer than the three-year reclassification waiting period that we concluded amounted to a "significant passage of time and thus a meaningful waiting period" in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409. Over the course of ten years, it is even more possible that an offender has undergone a significant change in his or her degree of dangerousness than over the course of three years. Thus, rather than a continuation of the original classification hearing, a termination hearing is an independent proceeding designed to determine whether an offender currently poses a danger to the safety of others, taking into account this significant passage of time and the new evidence provided by the offender. See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 483, 35 N.E.3d 698 (2015).

Given that passage of time, the production of new evidence by the sex offender, and the difficulty of assessing an offender's degree of dangerousness, there is a risk of erroneous classification. See Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409. As we have concluded in Doe No. 380316 and Noe No. 5340, that risk must be borne by the government. Placing the burden of proof on the board by clear and convincing evidence, as is necessary in original classification and reclassification hearings, appropriately reduces the risk of erroneous deprivation. See Noe No. 5340, supra at ----, 102 N.E.3d 409; Doe No. 380316, 473 Mass. at 311-314, 41 N.E.3d 1058.

Offenders do have a burden of production to show a change in circumstances indicating that they do not pose a risk to reoffend or a danger to the public. See 803 Code Mass. Regs. § 1.30(1). Placing the burden of proof on the board and the burden of production on the offender seeking termination further minimizes the risk of error. See Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409. Offenders are in the best position to provide such information and thus have a duty to do so if they want their registration requirement terminated.

iii. Government interests. The State has a public safety interest in protecting "children and other vulnerable people from recidivistic sex offenders." Doe No. 380316, 473 Mass. at 313, 41 N.E.3d 1058, quoting Doe No. 972, 428 Mass. at 103, 697 N.E.2d 512. In passing the sex offender registry law, the Legislature found "the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, to be grave and that the protection of the public from these sex offenders is of paramount interest to the government." St. 1999, c. 74, § 1. That government interest is best accomplished, however, by accurately classifying each offender. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391, 995 N.E.2d 73 (2013).

In Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, we stated that the "government interest in accurate classifications applies equally to reclassifications and to original classifications." So too does that interest apply to termination hearings. A sex offender's continued duty to register, despite no longer posing a risk to reoffend or a danger to the public, "distracts the public's attention from those offenders who pose a real risk of reoffense, and strains law enforcement resources." Doe No. 380316, 473 Mass. at 313-314, 41 N.E.3d 1058. See Doe No. 972, 428 Mass. at 107, 697 N.E.2d 512 (Marshall, J., concurring in part and dissenting in part) ("As observed in an altogether different context but oddly apropos of this classification system as well, 'when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless' " [citation omitted] ).

iv. Balancing. Balancing the factors specified above, we conclude that the significant private interests at stake, the need to avoid erroneous classification, and the government's own overarching interest in accurate classification require that the burden of proof remain with the board in termination hearings. In balancing these factors in Doe No. 380316, 473 Mass. at 314-315, 41 N.E.3d 1058, we determined that procedural due process required that the board have the burden of proving the appropriateness of an offender's initial classification by clear and convincing evidence. We reached this conclusion in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, with regard to reclassification hearings, so long as the offender satisfies his or her initial burden of production to establish changed circumstances justifying reclassification, and we reach the same conclusion here as to termination hearings.

An individual's ongoing duty to register as a sex offender implicates significant liberty and privacy interests for as long as the individual is required to register as a sex offender. Applying a clear and convincing evidence standard, with the burden on the board, throughout the classification, reclassification, and termination process provides "greater certainty that the burdens placed on [the offender] ... are warranted," by providing greater protection against erroneous classification. Doe No. 380316, 473 Mass. at 314, 41 N.E.3d 1058. The government's public safety responsibilities are also best served by accurate classification, not overclassification, which "both distracts the public's attention from those offenders who pose a real risk of reoffense, and strains law enforcement resources." Id. at 313-314, 41 N.E.3d 1058.

Accordingly, we conclude that G. L. c. 6, § 178G, unconstitutionally places the burden of proof in termination hearings on the sex offender. Procedural due process requires that the burden of proof remain with the board to demonstrate the continued appropriateness of the offender's duty to register, by clear and convincing evidence. See Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409 ; Doe No. 380316, 473 Mass. at 314-315, 41 N.E.3d 1058. The offender's burden is only one of production, to introduce credible evidence of changed circumstances demonstrating that he or she is no longer a risk to public safety.

For the reasons discussed above, and for the reasons stated in our decision in Noe No. 5340, 480 Mass. at ----, 102 N.E.3d 409, we answer the reported question as follows: the quantum of proof required at a hearing where a sex offender requests reclassification or termination of his or her status as a registered sex offender is clear and convincing evidence, with the burden of proof on the board. An offender seeking reclassification has a burden of production to show a change in circumstances indicating that the offender poses a decreased risk of reoffense or degree of dangerousness. Id. An offender seeking termination has a burden of production to show a change in circumstances indicating that the offender no longer poses a risk to reoffend or a danger to the public.

b. Motion to dismiss. In addition to the reported question, the single justice also reported this case to the full court on the motion to dismiss. "Factual allegations are sufficient to survive a motion to dismiss if they plausibly suggest that the plaintiff is entitled to relief." A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424, 95 N.E.3d 547 (2018). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief"). The board's motion to dismiss asserts lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. We address each argument in turn.

i. Subject matter jurisdiction. Although the parties disagree over the grounds on which this court has subject matter jurisdiction, there is no question that this case is properly before us. Pursuant to G. L. c. 231A, § 1, this court "may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby." See generally Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600, 6 N.E.3d 530 (2014) (single justice reserved and reported complaint seeking declaratory and injunctive relief to full court). More particularly, we have previously held that declaratory relief is the proper mechanism for challenging the constitutionality of the board's regulations. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629, 947 N.E.2d 9 (2011) ("A challenge to the constitutionality of a regulation of general application is appropriately presented as an action for declaratory judgment"). Additionally, pursuant to G. L. c. 214, § 1, the Supreme Judicial Court has "original and concurrent jurisdiction of all cases and matters of equity cognizable under the general principles of equity jurisprudence." Thus, the plaintiffs' claims for declaratory and injunctive relief are properly before this court.

ii. Failure to state a claim. Under the sex offender registry law, reclassification hearings must be conducted "in a reasonable time." G. L. c. 6, § 178L (3). The board's regulations further require that sex offenders must be provided with notification of the board's reclassification or termination decision "as soon as practicable." See 803 Code Mass. Regs. §§ 1.30(8)(a), 1.31(7)(a). General Laws c. 6, § 178K (3), also creates a specific prioritization scheme for conducting initial classifications that the board must follow.

Subsequent to our decision in Doe No. 380316, 473 Mass. at 314 n.26, 41 N.E.3d 1058, hundreds of initial classification proceedings then pending before the board, the Superior Court, and the appellate courts were remanded to the board to apply the appropriate quantum of proof. In light of our ruling, and the board's statutory duty to prioritize certain cases under G. L. c. 6, § 178K (3), the board "triaged" its caseload, prioritizing this backlog of initial classifications. See G. L. c. 6, § 178K (3). Less than two years later, when the Superior Court judge in the case underlying Noe No. 5340 declared that placing the burden of proof on offenders in reclassification hearings was unconstitutional, the board elected not to resume reclassification hearings pending a definitive resolution of that case by this court. As of February, 2018, approximately 1,115 sex offenders were waiting for a hearing on their request for downward reclassification or termination.

On appeal, the board argues that the plaintiffs' claims for equitable relief must be dismissed because the board was lawfully acting within its own discretion in prioritizing initial classification hearings and awaiting the outcome of Noe No. 5340 before resuming reclassification or termination hearings.

We recognize the practical constraints placed on the board by our decision in Doe No. 380316, as well as the board's interest in awaiting the outcome of Noe No. 5340 before reinitiating reclassification and termination hearings, which may otherwise have to be remanded to the board to apply a different quantum or burden of proof. Further, we recognize the board's statutory mandate to prioritize particular hearings under G. L. c. 6, § 178K (3). However, Noe No. 5340 has now been decided and the board properly conceded at oral arguments that it has worked through the backlog generated by Doe No. 380316, with only a "handful" of those cases left. Thus, the reasons cited by the board for failing to conduct offender-initiated reclassification and termination hearings no longer exist. More importantly, a significant backlog of such hearings has been created with lengthy delays for individual offenders, some of whom have waited over four years for a hearing. Given this backlog, and the lengthy delays for individual offenders, we conclude that the motion to dismiss is properly denied.

We do not consider the "reasonable time" standard to be a rigid one; rather, it requires a "fair consideration of the total circumstances of the case." School Comm. of Boston v. Board of Educ., 363 Mass. 20, 28, 292 N.E.2d 338 (1973). However, it does not provide the board with unfettered discretion to delay offender-initiated reclassification and termination hearings, particularly given that the Doe No. 380316 backlog no longer exists and Noe No. 5340 has now been decided. The board must promptly begin to confront this large backlog of offender-initiated reclassification and termination hearings, and conduct such hearings in a reasonable time after the issuance of this rescript. The board shall report to the single justice on its plan for addressing this backlog within thirty days from issuance of this rescript. The single justice shall determine whether the plan satisfies the reasonable time standard and, if it does not, shall issue appropriate orders to ensure compliance with that standard, consistent with this opinion.

3. Conclusion. The motion to dismiss the plaintiffs' claims is denied. The case is remanded to the single justice for further proceedings consistent with this opinion, as appropriate.

So ordered.

      We acknowledge the amicus brief submitted by the Committee for Public Counsel Services in support of the plaintiffs.

      While the amended complaint focuses largely on declaratory and injunctive relief, the plaintiffs continue to argue for relief under G. L. c. 211, § 3, as well as for mandamus under G. L. c. 249, § 5, both in their opposition to the board's motion to dismiss and in their brief to the full court. The board argues on appeal that the plaintiffs are foreclosed from seeking relief under G. L. c. 211, § 3, or G. L. c. 249, § 5. We agree. Our superintendence authority under G. L. c. 211, § 3, "is to be used sparingly, and 'should be exercised only in exceptional circumstances and where necessary to protect substantive rights in the absence of an alternative, effective remedy.' " MacDougall v. Commonwealth, 447 Mass. 505, 510, 852 N.E.2d 1080 (2006), quoting Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977). Similarly, a claim seeking mandamus under G. L. c. 249, § 5, "does not lie if any other effective remedy exists." County Comm'rs of Middlesex County v. Sheriff of Middlesex County, 361 Mass. 89, 90-91, 278 N.E.2d 751 (1972). Here, the plaintiffs have other available remedies, namely declaratory and equitable relief, and thus are not entitled to relief under G. L. c. 211, § 3, or G. L. c. 249, § 5. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629, 947 N.E.2d 9 (2011) ("A challenge to the constitutionality of a regulation of general application is appropriately presented as an action for declaratory judgment"). Further, G. L. c. 211, § 3, only empowers us to exercise superintendence over "courts of inferior jurisdiction," not executive agencies.

      General Laws c. 6, § 178K (3), provides in relevant part:
      "The sex offender registry board shall make a determination regarding the level of risk of reoffense and the degree of dangerousness posed to the public of each sex offender listed in said sex offender registry and shall give immediate priority to those offenders who have been convicted of a sex offense involving a child or convicted or adjudicated as a delinquent juvenile or as a youthful offender by reason of a sexually violent offense or of a sex offense of indecent assault and battery upon a mentally retarded person pursuant to [G. L. c. 265, § 13F ], and who have not been sentenced to incarceration for at least [ninety] days, followed, in order of priority, by those sex offenders who (1) have been released from incarceration within the past [twelve] months, (2) are currently on parole or probation supervision, and (3) are scheduled to be released from incarceration within six months."

      Downward reclassification hearings constituted 12.8 per cent of the total number of hearings conducted by the board in 2014; 23.7 per cent of the hearings conducted in 2015; and 1.8 per cent of the hearings conducted in 2016.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. DELMORE D., a juvenile.
    SJC-12426
    Supreme Judicial Court of Massachusetts.
    August 6, 2018
    The case was submitted on briefs.
    Colby M. Tilley, Assistant District Attorney, for the Commonwealth.
    Brandon L. Campbell for the juvenile.
    Based on an allegation that the juvenile robbed an individual of his cellular telephone at knifepoint, the juvenile was charged by complaint in the Juvenile Court with delinquency by reason of armed robbery and assault by means of a dangerous weapon. He moved to suppress an identification that one of the alleged victims made shortly after the incident, near the scene of the offense, when the juvenile was arrested. The arresting officer positioned the juvenile between three plainclothes police officers and asked the alleged victim whether he was able to make an identification. The alleged victim identified the juvenile by his clothing. A judge in the Juvenile Court ordered the identification suppressed on the ground that this was an improperly suggestive lineup.
    The Commonwealth obtained leave to pursue an interlocutory appeal from the suppression ruling. A panel of the Appeals Court, in an unpublished decision, reversed, concluding that the identification procedure was a showup rather than a lineup, and that it was not conducted in an unnecessarily suggestive manner. Commonwealth v. Delmore D., 91 Mass. App. Ct. 1120, 86 N.E.3d 245 (2017). We granted the juvenile's application for further appellate review. On the Commonwealth's motion, we now dismiss its appeal as moot.
    1. The juvenile was born on April 30, 1997, and attained the age of twenty on April 30, 2017, a few days before the Appeals Court panel issued its decision. Accordingly, the complaints against him may not now be adjudicated in the Juvenile Court and must be dismissed. See G. L. c. 119, § 58. Because the Commonwealth's appeal involves an interlocutory issue in a case that has for all intents and purposes become moot, the juvenile no longer has a continuing stake in the outcome of this appeal, and the appeal also must be dismissed as moot. See Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976).

      A pseudonym assigned by the Appeals Court.

      The juvenile acknowledges that, because he has turned twenty years old, he cannot be adjudicated delinquent pursuant to G. L. c. 119, § 58, on the original complaint. He argues, however, that he continues to have a stake in the proceeding because, if the Juvenile Court charges are dismissed, the Commonwealth could recharge the juvenile and then seek a transfer hearing permitting prosecution in adult court. See Commonwealth v. Mogelinski, 473 Mass. 164, 171 & n.5, 40 N.E.3d 544 (2015), citing G. L. c. 119, § 72A. The argument is misplaced. The issue before us is limited to the Commonwealth's interlocutory appeal from the Juvenile Court judge's order allowing the juvenile's motion to suppress. The juvenile's argument that he might be recharged is speculative and insufficient to confer a stake in the outcome of this particular appeal.

   2. We decline the juvenile's invitation to decide the appeal notwithstanding its mootness. A challenge to this type of identification procedure may be capable of repetition, as the juvenile claims, but it will not necessarily evade appellate review. Although we recognize that the issue is significant and has constitutional implications, the most prudent course is to defer deciding the issue until we are presented with a case where there is a live controversy. See Lockhart v. Attorney Gen., 390 Mass. 780, 783-784, 459 N.E.2d 813 (1984) ("Where a moot issue ... is not apt to evade review ... we have declined to decide the issue"; also noting general "practice ... of not unnecessarily deciding constitutional questions").

3. For these reasons, a rescript shall issue from this court stating that the Commonwealth's appeal from the November 3, 2015, order of the Juvenile Court judge allowing the juvenile's motion to suppress his identification is moot. We express no view as to whether the identification procedure employed in this case was constitutionally permissible and, if so, how such a procedure is to be evaluated. That remains an open issue to be resolved in a case where the identification is a live issue. Nothing in our disposition should be read as an indorsement of the Appeals Court's decision on that point.

So ordered.


author: CYPHER, J.

text:
    COMMONWEALTH v. Thomas A. WOODS.
    SJC-12324
    Supreme Judicial Court of Massachusetts, Plymouth..
    Argued April 5, 2018 Decided August 7, 2018
    Myles D. Jacobson, Northampton, for the defendant.
    Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
   CYPHER, J.

The defendant, Thomas A. Woods, appeals from the denial of his motion for a new trial. In 2009, the defendant was convicted of murder in the first degree and sentenced to life in prison. On direct appeal, he challenged the admission of his grand jury testimony -- later used as substantive evidence at trial -- arguing that it was illegally obtained, because he was not informed before testifying either that he was a target of a grand jury investigation, or that he had a right against self-incrimination. The court concluded that the trial judge did not err in finding that the defendant was not a target of the grand jury when he was called before the grand jury to testify, and affirmed his conviction. See Commonwealth v. Woods, 466 Mass. 707, 709, 716-720, 1 N.E.3d 762, cert. denied, --- U.S. ----, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014) ( Woods I ). In doing so, the court also announced a prospective rule, pursuant to its superintendence authority, requiring that grand jury witnesses who are targets or likely targets of a criminal investigation be given self-incrimination warnings before testifying. Id. at 719-720, 1 N.E.3d 762.

Following Woods I, the defendant moved for a new trial, contending that facts not before the trial judge or this court during his direct appeal establish that the defendant was a target of a grand jury investigation; accordingly, the defendant argued, his grand jury testimony was improperly admitted, and he deserved a new trial. The motion judge, who was not the trial judge, disagreed, concluding that although the new facts raised in the defendant's motion establish that he was a target of the investigation, this court's holding in Woods I"was not dependent on the finding that the defendant was not a target." The defendant then filed a petition before a single justice of the county court pursuant to G. L. c. 278, § 33E, asking that his appeal from the denial of his motion be considered by the full court. The single justice granted the petition in March, 2017, concluding that it "present[ed] a new and substantial question which ought to be determined by the full court." G. L. c. 278, § 33E.

For the reasons that follow, we discern no error in the motion judge's conclusion, and affirm the denial of the defendant's motion for a new trial.

Background. The facts underlying the defendant's conviction of murder in the first degree are fully set forth in Woods I, 466 Mass. at 709-712, 1 N.E.3d 762. We review only those facts pertinent to the defendant's postconviction proceedings.

1. Grand jury investigation. In February, 2006, the defendant appeared as the fifth witness to testify before a grand jury investigating the December, 2005, shooting death of Paul Mullen in Brockton. Prior to testifying, the defendant had been interviewed by police twice. Four witnesses testified before the grand jury prior to the defendant, and two of those witnesses -- David Sheff and Nicole Derochea -- stated that they had had heard, secondhand, that the defendant had threatened to shoot the victim before the killing occurred. When the defendant appeared to testify, he was not informed that he was a target of the investigation or that he had a right against self-incrimination. In his grand jury testimony, he provided an exculpatory version of events on the night of the shooting, and explained certain inconsistencies between this version of events and what he had said during his prior interviews with police. At the end of a nine-month investigation that involved approximately forty witnesses and generated 1,700 pages of transcripts, the grand jury returned an indictment against the defendant in October, 2006.

2. Defendant's pretrial motion in limine. In March, 2009, the defendant filed a motion in limine to exclude his grand jury testimony from use at his trial, arguing that he was "not informed that [he] was a target of the grand jury investigation" or that he could exercise his right not to testify. The motion stated the date of the defendant's grand jury appearance (February 10, 2006). The Commonwealth sought to introduce that testimony in order to illustrate "wide-ranging inconsistencies and implausibilities in [the defendant's] account[ ]" of the night of the shooting. See Woods I, 466 Mass. at 712, 1 N.E.3d 762 ("His grand jury testimony was admitted in evidence ... to illustrate his conflicting stories and outright lies").

3. Commonwealth's pretrial motion in limine. On April 24, 2009, the Commonwealth filed its own motion in limine seeking to admit evidence of prior bad acts by the defendant. The motion described the testimony of five grand jury witnesses, including Derochea, who were expected to testify at trial regarding threats made by the defendant against the victim. The Commonwealth attached to the motion the transcripts of the five witnesses' testimony. It is not clear from the record, however, the form in which those transcripts were presented -- specifically, whether the attachments clarified the date of each witness's testimony -- because those attachments were not included with the Commonwealth's motion as part of the instant record.

4. Pretrial hearing on the motions. On April 27, 2009, the trial judge held a hearing on both motions. Defense counsel reiterated the position that the defendant's testimony was involuntary because he was a target of the investigation but did not receive "any warnings that he didn't have to submit to that questioning or that he could assert his Fifth Amendment privilege."

He argued that the issue was "whether or not the government was under any obligation to inform [the defendant] he was the target of the investigation and ... that he had a Fifth Amendment privilege." Counsel acknowledged that he "ha[d]n't found a state case directly on point," and stated that his argument was based on his own practical experience, having never witnessed a situation where a grand jury target was not informed of that status or given warnings before testifying. Before asking the Commonwealth for its position, the trial judge likewise stated, "I didn't realize this was an issue, so I haven't researched the law on it. I know in the federal system if somebody's going to be a target, they're told. But I haven't researched this whole issue, but I will."

The trial judge asked the prosecutor, who had also been responsible for the grand jury investigation: "At the time -- if you can say this, because it would change the whole way that I'd have to view this, in your opinion, was [the defendant] a target of the investigation when you brought him to the grand jury?" The prosecutor replied that although the defendant's inconsistencies in his earlier statements to police made him "a person of interest" -- "[t]here were things that weren't adding up ... that he seemed to know a lot more than he was letting on. And so that was the nature of our inquiry with [the defendant]" -- the Commonwealth did not consider him a "target" until additional "witnesses came in and testified about threatening statements ... that [the defendant] had made to [the victim], and additional information was gathered about [the defendant] as the investigation went on in subsequent months leading up to [the] October" indictment. The prosecutor added that had the defendant been a target, he would have received a letter informing him of that status.

On May 6, 2009, the trial judge issued an oral ruling denying the defendant's motion. He found that "[b]ased upon the evidence before [him], the defendant ... was not a target, but [the Commonwealth] believed that he knew more than he told and he was not being fully truthful." The judge also found that the defendant was not under the influence of drugs or alcohol, threatened, coerced, or offered false promises when appearing before the grand jury, and "was treated appropriately," such that his testimony was free and voluntary under the totality of the circumstances.

5. Defendant's direct appeal. At trial, the jury found the defendant guilty of murder in the first degree. On direct appeal, he continued to press his objection to the introduction of his grand jury testimony, arguing that it infringed on his "federal and state law rights against compelled self-incrimination." We rejected the argument that self-incrimination warnings were legally required at the time, thus upholding the trial judge's denial of the defendant's motion in limine. Woods I, 466 Mass. at 716-720, 1 N.E.3d 762. We discerned no error in the trial judge's finding that the defendant was not a target, and added that "[e]ven if the defendant were a 'target,' the Commonwealth was under no obligation to warn him of that status" under Federal or State law. Id. at 717, 1 N.E.3d 762, citing United States v. Washington, 431 U.S. 181, 188-190, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), and Commonwealth v. D'Amour, 428 Mass. 725, 743, 704 N.E.2d 1166 (1999).

We then "consider[ed] for the first time" what we perceived as "the defendant's separate argument that the Commonwealth must advise targets or potential targets of the grand jury's investigation of their right not to incriminate themselves." Woods I, 466 Mass. at 717-718, 1 N.E.3d 762. Concluding that a grand jury summons "is a form of compulsion," we "adopt[ed] a rule that where, at the time a person appears to testify before a grand jury, the prosecutor has reason to believe that the witness is either a 'target' or is likely to become one, the witness must be advised, before testifying, that (1) he or she may refuse to answer any question if a truthful answer would tend to incriminate the witness, and (2) anything that he or she does say may be used against the witness in a subsequent legal proceeding" (footnote omitted). Id. at 719-720, 1 N.E.3d 762. We clarified that the rule is nonconstitutional and therefore "is only required to be applied prospectively." Id. at 720, 1 N.E.3d 762.

6. Motion for a new trial. The defendant subsequently moved for a new trial, where he focused primarily on refuting the trial judge's factual determination that he was not a target of the investigation. The defendant attached the grand jury testimony of the four witnesses who had testified before the defendant during the grand jury investigation, but whose testimony was largely unknown to the trial judge, and therefore was not a part of the record in Woods I. Two of those witnesses --Sheff and Derochea -- testified to hearsay statements they had heard about threats the defendant had made against the victim before the shooting. The motion judge agreed that the grand jury testimony of these two witnesses constituted "substantial evidence" linking the defendant to the crime, thus rendering him "a target or potential target of the investigation." The judge declined to grant the defendant a new trial on that basis, however, concluding that this court's decision in Woods I was not dependent on the factual finding that the defendant was not a target of the investigation.

Discussion. A single justice's determination that a petition raises a "new and substantial question" under G. L. c. 277, § 33E, is "final and unreviewable." Commonwealth v. Scott, 437 Mass. 1008, 1008, 770 N.E.2d 474 (2002). We review the denial of the defendant's motion for a new trial for "a significant error of law or other abuse of discretion" (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 441, 845 N.E.2d 274 (2006). The defendant argues that the motion judge made such an error in concluding that this court's decision in Woods I upholding the admission of the defendant's grand jury testimony did not depend on the factual finding that the defendant was not a target of the investigation. The motion judge did not err.

First, the language of Woods I makes clear that the motion judge was correct. On direct appeal, the defendant raised the very same legal argument that he puts before us now: because he was a target of the grand jury, he was entitled to self-incrimination warnings. The court specified in Woods I, 466 Mass. at 717, 1 N.E.3d 762, that "[e]ven if the defendant were a 'target,' the Commonwealth was under no obligation to warn him of that status" (emphasis added). Likewise, addressing "the defendant's separate argument" regarding self-incrimination warnings, the court acknowledged that it was considering the issue "for the first time" -- meaning that nothing prior to Woods I required self-incrimination warnings as a matter of law. Id. at 717-718, 1 N.E.3d 762. In other words, just as the Commonwealth was under no obligation to warn the defendant of his target status, even if he were a target, so too was the Commonwealth under no obligation at that time to advise the defendant of his right against self-incrimination. The court adopted that very requirement in the defendant's case, and stated that it was to apply only prospectively, "to grand jury testimony elicited after the issuance of the rescript in [that] case." Id. at 720, 1 N.E.3d 762. Thus, irrespective of the defendant's target status, he was not entitled to the new rule.

As the motion judge recognized, the sole difference between the defendant's argument on direct and his argument on collateral review is the factual basis for his claim that he was a target: now, in addition to his own testimony, he offers the testimony of the four witnesses who appeared before him during the grand jury investigation (and whose testimony the motion judge deemed "substantial evidence" establishing that the defendant was a target). At the core of the defendant's instant argument are the dual suggestions that, had the trial judge been made aware that two witnesses (Sheff and Derochea) testified at the grand jury before the defendant did, regarding prior threats the defendant had made against the victim, the trial judge (1) would have found that the defendant was a "target" by the time he testified, and (2) would have granted on that basis the defendant's motion to exclude the defendant's grand jury testimony.

We are in no position to engage in such speculation. First, the fact that the motion judge concluded, based on this new testimony, that the defendant was a target does not automatically establish that the trial judge would have reached the same conclusion. Both Sheff and Derochea's testimony involved hearsay, and this may well have affected the weight that the trial judge would have assigned their testimony when determining whether it constituted "substantial evidence" that the defendant was a target when he testified. It was not until after the defendant testified that the grand jury heard from additional witnesses who described hearing the defendant's threats firsthand.

Second, even assuming that the trial judge would have concluded based on this additional testimony that the defendant was a target, we cannot say that he would have excluded the defendant's grand jury testimony on that basis. The defendant focuses extensively, and exclusively, on the trial judge's comment at the motion in limine hearing that the defendant's status as a target "would change the whole way that [he would] have to view this" issue. What the defendant omits is the trial judge's additional comment, made at the very outset of the hearing, that he had not yet researched the law regarding the defendant's position that target warnings were required. As our above discussion makes clear, had the trial judge done so, he would have discovered that such warnings were not legally required at that time, and thus the Commonwealth's failure to provide the defendant with such a warning did not preclude them from using that testimony at trial.

Conclusion. We decline to grant the defendant a new trial on collateral review based on an alleged violation of a right that simply did not exist at the time of his trial. We affirm the denial of the defendant's motion for a new trial.

So ordered.

      The motion was also directed at the defendant's prior statements to police, but the defendant raises no claim of error with respect to those statements.

      We can nevertheless conclude that the Commonwealth provided these transcripts to the trial judge because the Commonwealth's motion stated that the grand jury transcripts for the witnesses were attached and, at the hearing on the motion, the Commonwealth asked the judge to impound those attachments.

      Defense counsel's pretrial argument that the defendant was a target was based solely on the defendant's own grand jury testimony: "[I]f you read [the defendant's grand jury testimony], it's abundantly clear that he was a target .... [H]e is being confronted by the prosecutor in a way that is designed to further build the case against him that they already have, in their mind, made.... It's not a well, what happened, what did you see, and what did you do; it's a confrontational interview or interrogation in front of the grand jury where he's not represented by counsel. And he's clearly the target of the investigation at that point." The prosecutor responded that he had taken the same approach to examining the defendant as he had with other grand jury witnesses who had provided inconsistent statements to police, and that such "a vigorous examination of a witness [in] a grand jury investigation ... doesn't make the person a target at the time of the examination." At the hearing, the trial judge indicated that he agreed with the Commonwealth: "[W]hen I read the grand jury, it didn't jump out to me that he was a target.... I got the impression, clearly, that they felt he knew more than he was saying, and that was the gist of the question[ing]."

      As for what the trial judge had before him when making this determination, it appears from the available record that the judge had received the date and transcript of the defendant's own grand jury testimony, established through the defendant's motion in limine and the submission of the transcript of the defendant's testimony. In addition (albeit in connection with the Commonwealth's separate motion to admit evidence of the defendant's prior bad acts), the trial judge had received the transcripts of five additional grand jury witnesses (including Nicole Derochea); however, because the Commonwealth's attachments are not a part of the instant record, we cannot discern how informed the judge might have been as to the content and date of each of those five witness's testimony.

      The court adopted the United States Attorney's Manual definition of "target," as "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Commonwealth v. Woods, 466 Mass. 707, 716, 719 n.12, 1 N.E.3d 762 (2014) (Woods I ), quoting United States Attorneys' Manual § 9-11.151 (2009).

      The defendant contended that the trial judge's finding that the defendant was not a target resulted from ineffective assistance of counsel or prosecutorial misconduct. The defendant separately argued that he was "deprived of a fair opportunity for proper application of the Humane Practice Rule," but he does not continue to pursue that claim before us.

      The defendant submitted the grand jury testimony of the four witnesses who had testified at the grand jury prior to his own testimony, including David Sheff and Derochea, with his motion for a new trial. Although the trial judge had received Derochea's testimony in some manner (as part of the Commonwealth's motion in limine to admit prior bad act evidence, see note 4, supra ), it does not appear that the transcripts of the testimony of Sheff and the other two witnesses were provided to the trial judge.

      Notwithstanding the language of Woods I, the defendant suggests in a single sentence of his brief that he is entitled to the retroactive benefit of the Woods I rule, based on the court's opinion in Commonwealth v. Adjutant, 443 Mass. 649, 667, 824 N.E.2d 1 (2005). See Commonwealth v. Candelario, 446 Mass. 847, 859, 848 N.E.2d 769 (2006), quoting Commonwealth v. Donahue, 430 Mass. 710, 714 n.1, 723 N.E.2d 25 (2000) (single sentence stating claim with citation "[in]adequate for appellate consideration" under Mass. R. A. P. 16 [a] [4], as amended, 367 Mass. 921 [1975] ). He expands on this argument somewhat in a postargument letter prompted by a question during oral argument concerning Adjutant's potential application. In Adjutant, the court announced a new common-law rule of evidence, and concluded that the defendant should be given the benefit of the new rule -- thus entitling her to a new trial -- because the defendant had alleged the error and argued for the new rule on direct appeal. Adjutant, supra, citing Commonwealth v. Dagley, 442 Mass. 713, 721 n.10, 816 N.E.2d 527 (2004), cert. denied, 544 U.S. 930, 125 S.Ct. 1668, 161 L.Ed.2d 494 (2005). Adjutant is inapposite because that case involved a defendant's direct appeal, whereas this case involves the defendant's postconviction proceedings. The defendant offers no authority to support the claim that he is entitled to the retroactive benefit, on collateral review, of a nonconstitutional rule first announced in his direct appeal, where the court specified that the rule would apply "only ... to grand jury testimony elicited after the issuance of the rescript in [Woods I.]" Woods I, 466 Mass. at 720, 1 N.E.3d 762. We likewise reject the defendant's related assertion that the Woods I rule is in fact constitutional, not procedural, on the ground that it is "based in" the constitutional protection against self-incrimination. See id. at 720, 1 N.E.3d 762 ("This rule is not a new constitutional rule, but rather an exercise of our power of superintendence").

      In ruling on the defendant's pretrial motion in limine, the trial judge rejected the defendant's argument (which he continues to argue before us) that the defendant's own grand jury testimony, and the nature of the prosecutor's questioning, also demonstrate that he was a target. See note 3, supra.

      In light of our conclusion that the Woods I rule did not hinge on the defendant's target status, we need not address the defendant's related arguments that the trial judge's finding that the defendant was not a target was the product of ineffective assistance of counsel, prosecutorial misconduct, or both.


author: BUDD, J.

text:
    PHONE RECOVERY SERVICES, LLC, v. VERIZON OF NEW ENGLAND, INC., & others.
    SJC-12410
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued February 5, 2018 Decided August 7, 2018
    David H. Rich (Christopher Weld, Jr., & Alycia Kennedy also present), Boston, for the plaintiff.
    Gregory L. Skidmore, of North Carolina (William A. Worth, Laura Steinberg, David B. Chaffin, & J. William Codinha, Boston, also present) for Verizon of New England, Inc., & others.
    Jonathan G. Cedarbaum, of the District of Columbia, Steven P. Lehotsky, & Janine M. Lopez, Boston, for Chamber of Commerce of the United States of America, amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ.

      On behalf of itself and the Commonwealth.

      All subsidiaries and related entities of Verizon of New England, Inc.; XO Massachusetts, Inc., and all subsidiaries and related entities; United Business Telephone, Inc., doing business as Century Link, doing business as Qwest, and all subsidiaries and related entities; YMAX Communications Corp., and all subsidiaries and related entities; Paetec Communications, Inc., and all subsidiaries and related entities; Comcast Business Communications, LLC; and John Does Nos. 1 through 75.

   BUDD, J.

The plaintiff, Phone Recovery Services, LLC (PRS), a New Jersey limited liability corporation, commenced this qui tam action on behalf of the Commonwealth against the defendants, Verizon of New England, Inc., and several other communication service providers, pursuant to the Massachusetts False Claims Act (act), G. L. c. 12, §§ 5A - 5O. PRS claimed that the defendants failed to collect from their customers, and remit to the Commonwealth, a surcharge for 911 emergency telephone service (911 service surcharge), as required by G. L. c. 6A, § 18H. In so doing, PRS alleged that the defendants knowingly provided false information to the Commonwealth to avoid certain financial obligations.

A Superior Court judge allowed the defendants' motion to dismiss on the basis that the 911 surcharge is a tax and that, as such, it is not subject to the act. PRS appealed, and we transferred the case here on our own initiative. Because we conclude that PRS, as a corporation, does not have standing to bring suit under the act, we remand the matter to the Superior Court for a judgment dismissing the case for lack of subject matter jurisdiction.

Background. The Commonwealth's enhanced 911 services are funded, in part, with a monthly surcharge paid by communication services customers. Pursuant to G. L. c. 6A, § 18H (a ), "[t]here shall be imposed on each subscriber or end user whose communication services are capable of accessing and utilizing an enhanced 911 system, a surcharge in the amount of 75 cents per month." Furthermore, that "surcharge shall be collected by the communication service provider and shall be shown on the subscriber's or end user's bill as 'Disability Access/Enhanced 911 Service Surcharge.' " Id. Surcharges collected by the providers are to be remitted "to the state treasurer for deposit in the Enhanced 911 Fund." G. L. c. 6A, § 18H (d ). On the basis of its belief that the defendants were not meeting the statutory requirements to bill, collect, and remit the surcharges, and that this failure constituted a false claim pursuant to the act, PRS filed this complaint on behalf of itself and the Commonwealth.

In the complaint, PRS averred, among other things, that the defendants engaged in a practice that has resulted in the undercollection, and underpayment to the Commonwealth, of the 911 surcharge. In particular, PRS focused on landline (i.e., nonmobile) telephone lines. Based on data from the Federal Communications Commission (FCC), PRS stated that in 2012, the Commonwealth anticipated collecting approximately $80 million per year in 911 surcharges, approximately $30.4 million of which would be from landlines (the remainder coming from mobile telephones). PRS further stated that the Commonwealth "experienced an annual shortfall" in the collection of the 911 surcharge of approximately $36 million from landlines alone, again based on FCC data. If successful in its claims against the defendants, PRS is entitled to share in any proceeds recovered and collected. See G. L. c. 12, § 5F (4) ("If the attorney general does not proceed with an action ..., the relator bringing the action ... shall receive an amount which the court decides is reasonable ...").

The defendants moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In doing so, they raised four possible bases: (1) PRS did not plead its claim under the act with the particularity required; (2) PRS does not meet the definition of "relator" and therefore cannot bring a claim under the act; (3) PRS's claim is precluded by the act's so-called "public disclosure bar;" and (4) PRS's claim is precluded by the act's so-called "tax bar." The judge considered only the fourth issue, pertaining to the "tax bar," and after determining that PRS's claim was barred on that basis, he did not reach the other issues. Although we agree with the judge that the complaint must be dismissed, we do so, as noted above, for a different reason: namely, that the court lacks subject matter jurisdiction. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997) (appellate court may affirm on grounds other than those relied on by judge below).

Discussion. Our consideration whether the court has subject matter jurisdiction depends, in this case, upon whether PRS has standing to pursue its claims. Because "[t]he issue of 'standing' is closely related to the question whether an 'actual controversy' exists, ... we have treated it as an issue of subject matter jurisdiction." Doe v. Governor, 381 Mass. 702, 705, 412 N.E.2d 325 (1980). In general,

"[t]he question of standing is one of critical significance. From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government." (Quotations and citation omitted).

Ginther v. Commissioner of Ins., 427 Mass. 319, 322, 693 N.E.2d 153 (1998).

Furthermore, such issues "should be given priority -- since if there is no jurisdiction there is no authority to sit in judgment of anything else." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (considering jurisdictional issues under Federal False Claims Act, including relator standing under art. III of United States Constitution). If a plaintiff lacks standing, the complaint must be dismissed. See, e.g., Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703, 695 N.E.2d 650 (1998).

To determine whether PRS has standing, we look to the statute itself. See, e.g., 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700, 964 N.E.2d 318 (2012) (statute defines who has standing; under G. L. c. 40A, party must be "person aggrieved"). The act imposes liability on "[a]ny person" who defrauds the Commonwealth by certain delineated means. See G. L. c. 12, § 5B (a ) (setting forth various false or fraudulent claims for which person shall be liable). The act also provides an incentive for an individual, referred to as a relator, with "direct and independent knowledge of information that an entity is defrauding the Commonwealth to come forward by awarding to such individuals a percentage of the Commonwealth's recovery from the defrauding entity." Scannell v. Attorney Gen., 70 Mass. App. Ct. 46, 48, 872 N.E.2d 1136 (2007). To be entitled to a recovery, "an individual in possession of such knowledge must attain the status of a 'relator' by filing suit against the defrauding entity in Superior Court in the name of the Commonwealth or a subdivision thereof" (citation omitted). Id. at 48-49, 872 N.E.2d 1136.

The question of standing, therefore, turns on whether PRS is a "relator." Other than the Attorney General, only a relator, defined as "an individual," may bring an action under the statute. See G. L. c. 12, § 5A. See also G. L. c. 12, § 5C (2) ("An individual, hereafter referred to as relator, may bring a civil action in superior court ... on behalf of the relator and the commonwealth ..."). The heart of the issue here is whether PRS is an "individual" for purposes of the statute. We conclude that it is not.

Although the statute does not include a definition of the word "individual," it does include a definition of the word "person." Pursuant to the statute, a "person" is "a natural person, corporation, partnership, association, trust or other business or legal entity." G. L. c. 12, § 5A. By that definition, PRS is a "person," but, as the defendants note, the Legislature expressly did not use the word "person" to define "relator" or, importantly, to identify who could bring an action pursuant to the statute. If the Legislature had intended to provide both natural persons and corporations with a right of action, it would have simply used the word "person," a defined term, in defining "relator." It did not do so. Rather, the statute defines "relator," as previously noted, as "an individual who brings an action under [ G. L. c. 12, § 5C (2) ]" (emphasis added). G. L. c. 12, § 5A.

The use of the word "person" in other sections of the statute further highlights the distinction between "person" and "individual." Section 5B, for example, refers to a "person" who violates the statute. In that context, it makes perfect sense that either a natural person or a corporation (or any of the other entities included in the definition of the word "person") could violate the statute. If the Legislature had intended the same to apply to a relator, it could have defined "relator" as a "person," not an "individual." See Commonwealth v. Gagnon, 439 Mass. 826, 833, 792 N.E.2d 119 (2003), quoting 2A N.J. Singer, Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev. 2000) ("where the legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded"). Similarly, § 5N, which addresses, among other things, the Attorney General's authority to demand certain documentary evidence relevant to a false claims investigation, also refers to a "person." See, e.g., G. L. c. 12, § 5N (1). The use of the word "person" in this context also makes logical sense where either a natural person or a corporation might be in possession of such information.

Notwithstanding the distinct uses of the terms "individual" and "person" in the statute, PRS maintains that it is a relator. On the basis that there is little decisional law addressing the act, PRS urges us to look to the analogous Federal False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq., on which the act is modeled. See Scannell, 70 Mass. App. Ct. at 49 n.4, 872 N.E.2d 1136 (because there is little decisional law interpreting act and scant legislative history, court looked for guidance to cases and treatises interpreting FCA). However, this course does not aid PRS.

PRS is correct that both natural persons and corporations may pursue claims pursuant to the FCA. See, e.g., United States, ex rel. Ven-A-Care of the Florida Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d 932, 939-942 (1st Cir. 2014) (action by corporate relator precluded action by individual relators); United States, ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 15-16 (1st Cir. 2009), cert. denied, 561 U.S. 1005, 130 S.Ct. 3454, 177 L.Ed.2d 1054 (2010) (relators were natural persons); United States of Am., ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 647 (D.C. Cir. 1994) (corporate relator). Unlike the act, however, the FCA uses the word "person," not "individual," to describe who may act as a relator. The FCA provides that "[a] person may bring a civil action ... for the person and for the United States Government" (emphasis added). 31 U.S.C. § 3730(b)(1). Although the word "person" is not specifically defined in the FCA, as it is in the act, it is defined generally for Federal statutory construction purposes to include both natural persons and corporations. See 1 U.S.C. § 1 ("the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals"). On the other hand, the act, as noted above, specifically defines the word "person," and does so to include corporations, yet then uses the word "individual," not "person," to define a relator. For purposes of determining who is a relator under the act, this is no small difference.

Having determined that "individual" means an individual person, and that PRS is not such an individual, we conclude that PRS does not qualify as a relator for purposes of the act. PRS thus has no standing to bring this action, and we, in turn, have no jurisdiction to consider anything further. "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Vermont Agency of Natural Resources, 529 U.S. at 778-779, 120 S.Ct. 1858, quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868).

Conclusion. For the foregoing reasons, we remand the matter to the Superior Court for a judgment dismissing the case for lack of subject matter jurisdiction.

So ordered.

      A "qui tam" action "is an action brought by an informer sometimes called a 'whistle blower' " whose "motive is to expose and redress a wrong, generally a fraud or false claim against the government and also to collect his bounty for his action." Scannell v. Attorney Gen., 70 Mass. App. Ct. 46, 49, 872 N.E.2d 1136 (2007), quoting J.R. Nolan & L.J. Sartorio, Equitable Remedies § 476A, at 139 (2d ed. 2003 & Supp. 2006).

      We acknowledge the amicus brief submitted by the Chamber of Commerce of the Unites States of America.

      The "[e]nhanced 911 service" is
      "a service consisting of communication network, database and equipment features provided for subscribers or end users of communication services enabling such subscribers or end users to reach a [public safety answering point] by dialing the digits 911, or by other means approved by the [State 911 Department], that directs calls to appropriate [public safety answering points] based on selective routing and provides the capability for automatic number identification and automatic location identification."
      G. L. c. 6A, § 18A.

      Phone Recovery Services, LLC (PRS), initially filed the complaint under seal and served it only on the Attorney General, as required by the Massachusetts False Claims Act (act): "When a relator brings an action ... a copy of the complaint ... shall be served on the attorney general .... The complaint shall be filed under seal and shall remain so for 120 days after service upon the attorney general." G. L. c. 12, § 5C (3). The Attorney General declined to take over the action, and PRS therefore proceeded on its own. See G. L. c. 12, § 5C (4) ("Before the expiration of the initial 120 day period, ... the attorney general shall: [i] assume control of the action ... or [ii] notify the court that [s]he declines to take over the action, in which case the relator shall have the right to conduct the action").

      We need not go into detail regarding the projected amounts of 911 surcharges to be collected, what the Commonwealth actually collected, and any shortfall. Suffice it to say that PRS alleges that the defendants purposely failed to provide accurate information to the Commonwealth and that the Commonwealth was thus unaware of any amounts not collected.

      PRS takes the position that it can cure its standing problem by filing a second amended complaint naming a new, individual plaintiff. In the trial court, before the defendants filed their motion to dismiss, PRS filed a motion for leave to file a second amended complaint in which PRS intended to substitute Roger Schneider, whom PRS refers to as its managing member, as the plaintiff. The defendants argued below, and maintain now, that the act precludes adding a plaintiff, as it provides that "[w]hen a relator brings an action pursuant to this section, no person other than the attorney general may intervene or bring a related action based on the facts underlying the pending action."G. L. c. 12, § 5C (6). A judge denied the motion without prejudice and noted that, depending on the resolution of the then-pending motion to dismiss, the judge would hold a hearing on whether to allow the motion for leave to file a second amended complaint. No further proceedings occurred because the motion to dismiss was allowed.
      We are skeptical of the defendants' argument pursuant to § 5C (6), which they refer to as the "first to file bar." As PRS notes, if it is not a proper relator and the complaint is dismissed on that basis, then no relator has yet brought an action and a new complaint from an individual plaintiff would not be problematic. Indeed, "[a] complaint that is dismissed for lack of jurisdiction is not an adjudication on the merits.... It is thus inappropriate to attach preclusive effects to the dismissal beyond the matter actually decided -- the absence of subject matter jurisdiction" (citation omitted). Bevilacqua v. Rodriguez, 460 Mass. 762, 780, 955 N.E.2d 884 (2011).


text:
    COMMONWEALTH v. Kalise FITZGERALD.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Donald DUSTIN.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Branden MATTIER.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Corey D. PATTERSON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Craig KUZIA, Jr.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Christopher R. BEDNARZ.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Arthur W. CRAIG.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Trent LINDBERG.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Khavon C. JOHNSON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Eduardo E. LOPEZ.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. John MURRAY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Marc A. MANSON-HING.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Anderson Kenol MASSILLON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


author: Mr. Justice Kafker did not participate.

text:
    COMMONWEALTH v. Terry Lynn OWENS.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review granted.
   Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. David G. HOWES.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Scott COOPER.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jorge DELAROSA.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Randall D. TREMBLAY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review granted.
   Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. Eduardo K. FERNANDEZ.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Anthony OLBROT.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Julio GARAY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Donna J. ADAMS.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jose ORTIZ-DEJESUS.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Tarayiah Delois HUNT.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Joseph D. HAFFORD.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Sandra A. BEZIO.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Juan GUZMAN.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Peter C. DEGENNARO.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    ADOPTION OF LEROY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Paul A. NOWICKI.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    CITY OF BEVERLY v. BASS RIVER GOLF MANAGEMENT, INC., & Another.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.
   Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. HOUSTON H., a Juvenile.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Rachel M. LEE.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Stanley J. JOHNSON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Christian CARDONA v. ENCOMPASS INSURANCE COMPANY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Rafael FERNANDEZ.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Joel MOLINA.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Peter B. ELDRIDGE.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Max CHARLES, Jr.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    C.R.S. v. J.M.S.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.
   Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. Michael GONSALVES.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Kevin J. CONNOR.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Pamela FERRIE.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Lawrence KNOWLES.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Pompesky ASPILL.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Francisco J. BARRIOS.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Christopher J. BRUNET.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Preston JACKSON.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    ADOPTION OF ANNE.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Hemchand DEODAT.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jose Antonio CARRION.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Thomas ESTEP.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Raymond J. GRENIER.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Roger FORCIER.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. HO HUYNH.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Rafael HENRIQUEZ.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jose L. ARIAS.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review granted.
    Mme. Justice Cypher and Mr. Justice Kafker did not participate.


text:
    STATE BOARD OF RETIREMENT v. Brian O'HARE & another.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review granted.


text:
    ADOPTION OF CIARA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    LEI YIN v. YAN LIN.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Johnson M. WACHIRA.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    RED ROCK TRADING CO., INC., & others v. Lawrence SHUTZER & others.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Denise M. CLIFFORD v. UNIVERSAL HEALTH SERVICES, INC., & others.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Joshua VIERA.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Ellen JOHNSON v. PROMUTUAL GROUP, INC., & another.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    EVERBANK v. Gerardo CHACON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Gary R. THORNTON.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Alisa G. SLAYMAN.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Ralph CORDOPATRI v. US BANK, N.A.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Jacques SAADE v. HOMEWARD RESIDENTIAL, INC., & others.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Margaret J. REICHENBACH & another v. Timothy G. HAYDOCK & another.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Anthony QUINK.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Ralph F. SBROGNA v. Judith L. SBROGNA.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    ADOPTION OF YOLANE.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Anthony A. RUSS.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Brian L. VILLA v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Christian ROSADO v. Carol HIGGINS-O'BRIEN & another.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.
   Mr. Justice Kafker did not participate.


text:
    Bodhisattva SKANDHA v. Joan T. KENNEDY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jordan WILLIAMS.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Mikkel THORUP v. Lauren HODGES.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    Angel SHELTON v. BOSTON HOUSING AUTHORITY.
    Supreme Judicial Court of Massachusetts.
    March 2, 2018
    Appellate review denied.


text:
    ADOPTION OF GARRET (and two companion cases).
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Hakeem COOPER.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Vladimir MARCELLUS.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Ramona HERNANDEZ.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    ADOPTION OF FERN.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Gregory A. CARTER.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Ilya ZINOV.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Sheldon SCHWARTZ v. HRI HOSPITAL, INC., & others.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Susan SHEA v. Michael CAMERON.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Luis SALDANA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Emory G. SNELL v. Lois RUSSO & others.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    NINETY SIX, LLC v. WAREHAM FIRE DISTRICT.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Heather P. WHITLEY.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Carlos RIVERA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Kelvin SANTIAGO & others v. RICH PRODUCTS CORPORATION & others.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Robert C. RANSOW v. AETNA CASUALTY & SURETY CO.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Cindy KING v. Kathleen SPOFFORD & others.
    Supreme Judicial Court of Massachusetts.
    March 30, 2018
    Appellate review granted.
   Mme. Justice Cypher did not participate.


text:
    COMMONWEALTH v. Steven P. PEASE.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Wayne ROGERS.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Michael DELL'ISOLA v. STATE BOARD OF RETIREMENT & another.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    L.B. & others v. Elin M. HOWE.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Julio C. RAMON VALERIO.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. William J. RAMIREZ.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Charles E. TODESCA v. Albert M. TODESCA & others.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Carleb R. MESADIEU.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Edilson B. MENEZES.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Richard PANEPINTO.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Hector PARRILLA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Steven E. STEPHEN.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    TOWN OF HINGHAM v. AQUARION WATER COMPANY OF MASSACHUSETTS, INC., & another.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Alan B. WOOD.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Bodhisattva SKANDHA v. Joseph W. DUSZAK.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Paul A. MARRAMA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Yasmani QUEZADA.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Paul SULLIVAN v. CORA OPERATIONS, INC., & another.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Lee-Ann WILLWERTH v. Bruce STRAYTON.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Thomas S. OLIVER v. Alyssa PARENT.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    Robert CREMONE v. David LIBASSI.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.


text:
    P. GIOIOSO & SONS, INC. v. LIBERTY MUTUAL INSURANCE COMPANY.
    Supreme Judicial Court of Massachusetts.
    March 29, 2018
    Appellate review denied.