Volume 1975 Article 3

Transcription

1 Annual Survey of Massachusetts Law Volume 1975 Article Table of Contents Boston College Annual Survey of Massachusetts Law Follow this and additional works at: Recommended Citation Boston College Annual Survey of Massachusetts Law (1975) "Table of Contents," Annual Survey of Massachusetts Law: Vol. 1975, Article 3.

2 Boston College Annual Survey of Massachusetts Law: Table of Contents IN MEMORIAM: John D. O'Reilly, Jr. CHAPTER 1 TORTS A B c D. 1.7 E. 1.8 F NEGLIGENCE Overruling Established Common Law: Retroactivity Product Ltability: Evidence of Post-Sale, Pre-Accident Improvements IMMUNITY Immunity: Commonwealth of Massachusetts Charitable Immunity: Non-Retroactivity MOTOR VEHICLES Pain and Suffering: Proof of Medical Expenses Pain and Suffering: Non-Resident Drivers DEFAMATION Libel: Application of Gertz Doctrine MEDICAL MALPRACTICE Medical Malpractice: Preliminary Determination of Sufficiency of Evidence INTEREST ON DAMAGES Interest on Damages STUDENT COMMENT Wrongful Death: Mone v. Greyhound Lines, Inc CHAPTER 2 WORKMEN'S COMPENSATION LAW 2.1 Double Compensation: Serious and Wilful Misconduct of One Exercising Superintendence Death of Employee at Place of Employment: Prima Facie Evidence: Compensability Specific Compensation: Loss of Hearing: Loss of Binocular Vision by Injury to One Eye Only 45 Published by Digital Boston College Law School,

3 Annual Survey of Massachusetts Law, Vol [1975], Art. 3 viii CHAPTER 3 INSURANCE LAW A B. 3.3 COURT DECISIONS No-fault Insurance: Recovery for Pain and S~ffering 49 Property Protection Insurance: Interinsurer Subrogation 53 LEGISLATION Medical Malpractice 55 CHAPTER 4 CONTRACTS Real Estate Broker's Commission: New Rule Employee Covenants Not to Compete. Guarantor's Liability: BankDeposit: Set Off' Public Contract: Binding: Damages Specific Performance: Misrepresentation: Estoppel CHAPTER 5 TRUSTS AND ESTATES 5.1 Reopening Fiduciary Accounts on Grounds of Technical Fraud Interpretation of Wills: Exercise of Power o~ Appointment and Conflict of Laws Power of Appointment and Applicability of Statutory Rules of Construction Equating Adopted Issue with Biological Issue Interpretation of Wills and Trusts: Testator's Intention to Have Marital Trust Qualify for Federal Estate Tax Marital Deduction 81 DOMESTIC RELATIONS CHAPTER 6 A COURT DECISIONS Divorce: Counsel Fees: Equal Protection Divorce: Jurisdiction to Award Child Support!

4 Boston College Annual Survey of Massachusetts Law: Table of Contents ix 6.3 ' B Divorce: Merger of Separation Agreements 90 Divorce: Contempt: Payment of Support by Collateral Sources 91 Divorce: Contempt: Nature and Specificity of Charge 94 Divorce: Financial Obligations Discharged by Bankruptcy 96 Divorce: Presumption of Gift to Joint Fund Rebutted 98 Divorce: Appeal from Decree Nisi 99 Separate Support: Factors to be Considered 104 LEGISLATION Divorce: Jurisdiction 105 Divorce: Orders to Vacate the Marital Home 106 CHAPTER 7 CRIMINAL LAW AND PROCEDURE 7.1 Trial De Novo 7.2 The Role of the Jury in a Criminal Case 7.3 Pre-Trial Discovery STUDENT COMMENT Instructing the Jury on the Consequences of an Acquittal by Reason of Insanity: Commonwealth v. Mutina 135 LABOR LAW CHAPTER 8 A. UNITED STATES SUPREME COURT DECISIONS 8.1 Antitrust Exemption of Labor Unions Veterans' Rights Right of Minority Workers to Engage in Separate Bargaining Employees' Right to Union Representation During an Investigatory Interview Recognition on the Basis of Authorization Cards 154 B. MASSACHUSETTS DECISIONS 8.6 Power of Labor Relations Commission to Order Binding Arbitration Authority of an Arbitrator Grooming Codes Published by Digital Boston College Law School,

5 Annual Survey of Massachusetts Law, Vol [1975], Art. 3 X c LABOR RELATIONS COMMISSION DECISIONS Managerial Employees Bargaining Unit Determinations Subjects of Bargaining CHAPTER 9 CONSUMER LAW Chapter 93A, The Consumer Protection Act Consumer Protection: Limitation on Actions, Money and Property Exempt from Creditors Credit Card Users' Claims and Defenses: Federal Limitations Correction of Erroneous Billings Door-to-Door Sales: Cancellation of Contracts Warranties Debt Collections CHAPTER 10 STATE AND LOCAL GOVERNMENT A. DISTRIBUTION OF POWERS 10.1 Powers of the Attorney General 10.2 Legislative Control of Agency Action 10.3 Legislation: Meetings of Governmental Bodies B. ELECTIONS 10.4 Campaign Financing 10.5 Voter Registration c. PUBLIC EMPLOYEES 10.6 Civil Service Appointment Priorities 10.7 Grooming Codes 10.8 Permissible Scope of Inquiry into Off-Duty Conduct 10.9 Political Activity by Police Officers Conflict of Interest Statute: Implied Private Right of Action Municipal Treasurers: Deposit of Funds D. HOMERULE Validity of Municipal Ordinance Altering form of Plan- ~&~ I ~~ 4

6 Boston College Annual Survey of Massachusetts Law: Table of Contents xi Validity of Hybrid Charter Powers of School Committee: Sick Leave Bank Charter Revision: Term of Office of Mayor 200 CHAPTER 11 STATE AND LOCAL TAXATION 11.1 A : B c Introduction 202 REAL AND PERSONAL PROPERTY TAXES Equalized Valuations 202 Disproportionate Assessments 207 Real Estate Tax: Methods of Valuation 212 Abatement Applications: Time for Filing 213 Exemption for Property of Another Municipality 214 Charitable Exemption: Use of Property on January Charitable Exemption: Foreign Charitable Corporations 217 Charitable Exemption: Cemeteries 219 Charitable Exemption: Parsonages 220 Personal Property Tax: Exemption for Household Effects 220 SALES AND USE TAXES Sales Tax: Immunity of Federal Reserve Banks Use Tax on Ships Built Outside Massachusetts Sales and Use Tax: Prizes Awarded in Amusement Games 224 Sales Tax: Credit Sales 224 Sales and Use Taxes: Newspaper Advertising Supplements 225 Sales and Use Taxes: Property Purchased and Shipped to Out-of-State Branch Offices: Commercial Art Work 226 Sales Tax: Purchase or Lease of Motion Pictures For Television Broadcasting 228 Sales Tax: Materials, Supplies and Machinery Purchased by a Heating Contractor 228 PERSONAL INCOME TAXES Income from Out-of-State Real Estate 229 Chapter 555 of the Acts of 1971: Deductions Against Income Taxable at the Rate of 9 Percent 235 Chapter 555 of the Acts of 1971: Trusts With Transferable Shares 238 Published by Digital Boston College Law School,

7 Annual Survey of Massachusetts Law, Vol [1975], Art. 3 xii Fiduciaries: Income Accumulated for Nonresidents Appeal from Denial of Abatement Application: Time Requirements Administrative Rulings Relating to ERISA 245 D. CORPORATE EXCISE TAXES Security Corporations Apportionment Percentage: Sales Factor Classification as Business Corporation or Manufacturing Corporation Estimated Tax Payments 251 E. INHERITANCE TAXES Life Estates with Power to Invade Principal Widow's Benefits 253 F. MISCELLANEOUS DEVELOPMENTS New Administrative Provisions Appellate Tax Board: Practice Procedure 254 CONSTITUTIONAL LAW CHAPTER 12 Prejudgment Possessory Remedies and Due Process: Review of Supreme Court Decisions Prejudgment Possessory Remedies: Self-Help and State Action Retroactivity of Supreme Court Holdings on Prejudgment Attachments 271 Official Inquiry into Off-Duty Conduct of Police Officers 278 Anonymous Publication of Election-Related Material 284 Requirement of Parental Consent to Minor's Abortion 287 Exclusion of Employables from General Relief: Irrebuttable Presumptions and the Right to Welfare Warrantless Arrests in a Dwelling 304 STUDENT COMMENT 12.9 State Action-Seizures under Authorization of Lessors' Lien Statutes: Davis v. Richmond and Porter v. Fleischhacker

8 Boston College Annual Survey of Massachusetts Law: Table of Contents XIII CHAPTER 13 CIVIL PRACTICE AND PROCEDURE Introduction: A Year of Practice under the New Rules 332 Interpretation of Massachusetts Rules of Civil Procedure 332 The Doctrines of Primary Jurisdiction and Exhaustion of Administrative Remedies 334 Class Actions: Mootness 340 Discovery: Equitable Bill 344 Summary Affirmance of Appeals 347 The New District/Municipal Courts Rules of Civil Procedure 352 CHAPTER 14 EVIDENCE 14.1 Introduction Relevancy: Evidence of Post-Scale, Pre- Accident Improvements Impeachment: Records ofjuvenile Offenses Impeachment: Civil Cases: Records of Prior Convictions Implied Admissions: Failure to Call a Witness Attorney-Client Privilege Scientific Evidence: Results of Breathalyzer Test 376 STUDENT COMMENT 14.8 Admissibility of Expert Testimony Based on Voice Spectrograms: Commonwealth v. Lykus 377 CHAPTER 15 EDUCATION LAW 15.1 A Introduction DESEGREGATION Overview Published by Digital Boston College Law School,

9 Annual Survey of Massachusetts Law, Vol [1975], Art. 3 xiv B The Contempt Order 397 Developing the Phase II Desegregation Plan 400 The Court's Phase II Plan 404 Teacher Desegregation 411 OTHER DEVELOPMENTS Racial Balance 413 Special Education: Chapter 766, 417 Special Education: Application of Appropri4tted Fungs 418 Student's Rights 420 School Officials: Liability for Damages 421 Elementary and Secondary Education Act of 1965: Title III 423 Aid to Parochial Schools: Constitutionality 425 Legislation 429 CHAPTER 16 PROPERTY AND CONVEYANCING Recording: Chain of Title: Deeds Out from a Common Grantor 431 Real Estate Broker's Commission: When Earned 434 Recording: Modification of Recorded Instruments 436 Recording: Notice of Lease and Option to Rurchase 440 Effect of a Change in Zoning in the Marketabitity of a Title 442 Leases: Effect of a Taking by Eminent Domain 446 Exercise of Option: Notice 448 Mortgages: Foreclosures 448 Condominiums: Conversion and Rent Conttol 450 Condominiums: Unit Restrictions 451 Conveyances between Spouses 453 Public Housing 453 CHAPTER 17 CORPORATIONS The Impact of Donohue v. Rodd Electrotype Co. on the La~ of Corporate Freeze-Outs Closely Held Corporations: Fiduciary Duty rf Majority Stockholders

10 Boston College Annual Survey of Massachusetts Law: Table of Contents XV CHAPTER 18 ENVIRONMENTAL LAW Introduction 477 Environmental Impact Review: Introduction 477 NEPA Amendment: Environmental Impact Statements Prepared by State Agencies 479 MEPA Regulations: Executive Office of Environmental Affairs: Revised Guideline Regulations 481 MEPA Enforcement: Massport II 482 MEP A: Portents 488 Regulations of Pesticides in Massachusetts: Pending Developments 488 Safe Drinking Water Act: Introduction 490 Safe Drinking Water Act: Background 491 Safe Drinking Water Act: Analysis of Principal Sections 492 Safe Drinking Water Act: Federal Implementation 498 Air Pollution: Introduction 503 Air Pollution: Train v. Natural Resources Defense Council 503 Air Pollution: Bicknell v. City of Boston 505 The Boston Transportation Control Plan 510 ZONING AND LAND USE A. ZONING CHAPTER 19 Exclusionary Zoning 513 Interim Zoning: Moratorium on Apartment Construction 519 Spot Zoning: General Welfare as Justification 524 Zoning Amendment: Applicability to Building Permit Under Appeal 525 Special Permits: Standing to Challenge: Person Aggrieved; Waiver of Notice Requirement 526 Special Permit: Power in the Superior Court to Remand a Case to the Local Board; Power to Modify Defective Permit 529 Special Permits: Failure to Comply with Notice Provisions 531 Zoning: Access Roads 533 Jurisdiction: Failure to File Decision Within Sixty Days 536 Remedies: Destruction of a Noncomplying Building 537 Remedies: Invalid Variance for Federally Funded Housing 539 Published by Digital Boston College Law School,

11 Annual Survey of Massachusetts Law, Vol [1975], Art. 3 xvi Public Utilities: Extent of Local Authority! Subdivision Plan: Applicability of Zoning APiendment Pending Trailer Park Use: Effect of Zoning Amendment 547 B. SUBDIVISION CONTROL Subdivision Control: Dead-End Streets Subdivision Control: Constructive Approval of Submitted Plan 550 Subdivision Control: Applicability of Anti-Sfob Zoning Law 551 c. EMINENT DOMAIN Eminent Domain: Concurrent Remedies Eminent Domain: Admissibility of Assessed!valuation Eminent Domain: Assessment of Damages Government Land Bank 556 D. RENT CONTROL Rent Control: Revocation of Acceptance Rent Control: Applicability of Rollback Pro~ision to Pre-Existing Leases I Rent Control: Condominiums Rent Control: Scope of Judicial Review 566 E. WETLANDS Wetlands Legislation