April, the month that wasn’t.
 
It may be spring but it seems more akin to Groundhog Day. Nevertheless, news springs year-round, so let’s get to non-COVID-19 developments of interest in this April edition of the Miyares and Harrington LLP newsletter. You can continue to stay up-to-date with COVID-19 guidance by reviewing the Client Alerts on our website or by signing up for the Client Alerts.
 
Congratulations to Rebekah Lacey, elected as the President of the Massachusetts Association of Conservation Commissions. Rebekah has extensive experience with all wetlands, stormwater, and public water supply issues, and the MACC will be well-served by her expertise and dedication to the field.
 
Congratulations as well to Katie Stock. Katie has accepted an invitation to serve on the board of directors of the Environmental Leadership Program, a national non-profit that trains and supports emerging leaders seeking solutions for a just and sustainable future. This honor recognizes Katie’s significant experience in the environmental field and her commitment to encourage others to develop social justice and climate solutions.
 
Finally, kudos to Alexandra Rubin, who presented to the Massachusetts Municipal Lawyers Association weekly conference call on COVID-19 issues on April 22, 2020. Alex advised the participants on the legal requirements and constraints on isolation and quarantine.

This month's newsletter features:
  • The Community Caretaker Doctrine Extends to Warrantless Entry of a Residence

  • Section 12 Alcohol License – Any Illegality Puts the License at Risk

  • Town Meeting Warrants – How Specific Do the Articles Need to Be?

  • Trivia
The Community Caretaker Doctrine Extends to Warrantless Entry of a Residence
Police serve many critical community functions other than law enforcement: crowd control, responding to accidents and other emergencies, big and small, and providing public safety assistance in the aftermath of natural or man-made catastrophes, to name just a few. These functions are described generally as “community caretaking.” When performed reasonably and in limited circumstances, a police officer engaged in community caretaking will be immune to claims of constitutional violation.
 
In Caniglia v. Strom, No. 19-1764 (1st Cir. March 13, 2020), the First Circuit held that community caretaker immunity extends to police officers performing community caretaker functions on private property. In this case, police had entered a home, removed a person thought to be a danger to himself or another, and seized his firearms. They had been called to the home by a woman who had spent the night at a hotel after a domestic dispute, during which her husband had pulled out one of his guns and told her to shoot him. She was unable to reach the husband by phone the next day and told the police that she feared that he had committed suicide. The police spoke to the husband and convinced him to go to the hospital for evaluation. They then entered the home and confiscated the weapons, directed to their location by the wife.
 
Community caretaker immunity provides police officers with discretion to act reasonably when circumstances require immediate attention in non-investigatory settings. In a footnote, the Court explained the difference between community caretaker immunity and other immunities that the law recognizes for exigent circumstances and emergency aid. While noting that it was not drawing “crisp” distinctions among these circumstances, the Court stated that community caretaker immunity requires neither an immediate or imminent need for action nor the least intrusive response.
 
The opinion was written by Senior Judge Bruce M. Selya. The opinion’s SAT words include “salmagundi,” “tamisage,” “asseverational,” “pellucid,” “curtilage,” “apocryphal,” “conduces,” “supererogatory,” “weal,” “centripetal,” “carapace,” “encincture,” and “peradventure.” You earn a gold star if you know them all. And then near the end, we are provided with this lovely conclusion: “This claim consists of more cry than wool.” You earn extra credit if you know the derivation of that expression.

 
Section 12 Alcohol License – Any Illegality Puts the License at Risk
A bar with an all-alcohol license, issued under M.G.L. c. 138, §12, which permits the premises to serve alcohol to patrons on site, also held a separate automatic amusement device license. The amusement device license, issued by the City of Revere pursuant to M.G.L.c.140, §177A, allows premises to have gaming machines for entertainment only; monetary payouts are not allowed. Investigators of the Alcoholic Beverages Control Commission determined that the bar was violating the law by making cash payouts. The ABCC therefore suspended the Section 12 license for five days, two days to be served and the remainder held in abeyance for two years. It also banned from the premises any gaming machines as a condition of maintaining the Section 12 license.
 
The bar owner did not appeal the suspension of the license. However, it challenged the condition that it not have any gaming machines on site, arguing that that was an impermissible restriction on its amusement device license. In RK&E Corp. v. Alcoholic Beverages Control Commission, No. 19-P-240 (April 21, 2020), the Appeals Court disagreed and affirmed the judgment in favor of the ABCC. It noted that the ABCC has broad discretion to approve, disapprove, or approve with conditions a license to sell alcohol. The failure of the City to take enforcement action for violation of the Section 177A license did not affect the ABCC’s independent authority to take action on the Section 12 license. The conditions attached to a license following a suspension need only be reasonably related to preventing the unlawful activity on the premises. The condition imposed in this case was held to be reasonably related and therefore affirmed. While the condition may have the effect of negating the value of the Section 177A license, it was not an impermissible usurpation of the authority of the local licensing board.



Town Meeting Warrants – How Specific Do the Articles Need to Be?
The Supreme Judicial Court recently had occasion to review and affirm the adequacy of a Town Meeting Warrant article that the Town itself claimed was misleading such that the vote taken under it should be invalidated.
 
In Boss v. Town of Leverett, SJC-12780 (April 23, 2020), a retired employee claimed that she was entitled to payment from the Town of 50% of her health insurance premiums for her husband’s coverage. The Town had accepted, by Town Meeting vote and by ballot, M.G.L. c.32B, §9A, which requires the Town to pay half the cost of the health insurance premium that the retiree pays. The Town presented the question of acceptance of the statute via two warrant articles. The first proposed adoption of specific language regarding retirees’ premiums and appropriated money for payment of premiums, and the second contained the ballot question. The Town claimed that the first article, which described the topic to be considered to be whether the Town would pay 50% of an individual health plan premium, misled the voters to such a degree that the vote of acceptance should be invalidated.
 
The Supreme Judicial Court disagreed and held that the warrant article was sufficient. It outlined the limited reasons for which a Town Meeting vote may be invalidated due to a defect in the warrant: The warrant is misleading; the language of the warrant substantially alters the article’s meaning, or the warrant fails to state sufficiently the nature of the matter to be taken up by the voters. It cited with approval several decisions holding that, under M.G.L. c. 39, §10, warrants are sufficient if “‘they indicate with substantial certainty the nature of the business to be acted on.’” Id., quoting Coffin v. Lawrence, 143 Mass. 110, 112 (1886). The Court also quoted Burlington v. Dunn, 318 Mass. 216, 219, cert. denied, 326 U.S. 739 (1945) (“[G.L. c.39, §10] does not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon [announced] subjects”). The Court found that the Town provided no evidence that the voters had not clearly understood what they were voting on, and noted that the voters approved at the ballot the exact acceptance language required by the statute.



Trivia!
 
Question: You may all be binge-watching television, so let’s have a TV-related trivia question. The 2020 Netflix original Spenser Confidential, starring Mark Wahlberg, is based loosely based on a novel by Ace Atkins, the title of which is derived from an MBTA stop. Please name the novel.
 
Last issue's question: What is the largest copyrighted work of art in the world?
 
Answer: The gas tank in Dorchester seen from the Southeast Expressway. Fun fact: The tank on which the artwork is now found is not the original painted tank. Have you spotted Ho Chi Minh?
 
Winner: We are pleased to congratulate Mark Abrahams of the Abrahams Group for once again being the first to respond with the correct answer. Welcome back to your winning ways, Mark!


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