No child in grade seven or under shall play, practice, or otherwise participate in organized tackle football; provided however, that nothing within this section shall prohibit children in grade seven or under from playing, practicing, or otherwise participating in any form of football which does not involve tackling.
The bill proposes a fine of $2,000 for the first violation and a $5,000 fine for the second violation. It would also impose a fine of $10,000 “if the violation results in serious physical harm to any participant or participants.”
The senate has concurred with the bill and the proposed legislation has been submitted to the committee on public health for further study and investigation. See H.5090.
The last thing anyone wants is another article about COVID-19. I’m tired of reading them and I’m reluctant to write one. But I feel the need to speak out on behalf of my children and other parents who share my beliefs.
Two bills have been presented in our state legislature seeking to amend or replace the state’s current school vaccine law.
The current law (M.G.L. c. 76, § 15) is plainly worded and easy for any parent to understand. A child must be immunized against certain common diseases (e.g., measles, polio, tetanus, etc.) before attending school. The statute provides two exemptions. First, a child is exempt if his or her doctor certifies that the child’s health would be endangered by vaccination. Second, a child is also exempt if his or her parent states in writing that vaccination conflicts with the family’s religious beliefs.
House Bill H.2411 would amend the current statute by deleting, in its entirety, the religious-belief exemption. A separate senate bill (S.1517) seeks to completely replace the existing statute with a new series of laws that should concern all parents.
The proposed senate bill, entitled “An Act promoting community immunity”, would greatly expand the scope of the existing immunization law which currently applies to only schools. If enacted, the bill would impose immunization requirements on almost every childhood group activity: day cares, preschools, recreational camps, etc.
It would eliminate the narrowly defined diseases that the existing law covers and, instead, authorize the Department of Public Health to choose what vaccinations are needed on an ad hoc basis.
It seeks to replace the straight-forward exemption criteria with a convoluted bureaucratic application process which gives the public health department authority to deny religious-belief exemptions.
Finally, it turns child programs into data collection agencies. All of the groups covered by the proposed law must collect and report immunization data to the Department of Public Health on a regular basis. If a program has a higher than average rate of unvaccinated participants, it will be targeted by public health officials as an “elevated risk program.” Such programs must then disseminate “elevated risk” notices to their participants and may be subjected to “outreach” efforts by health officials.
Thus, the overall purpose of the proposed law is to tighten or eliminate exemptions, expand government power, and generally make life difficult for those who are unwilling to submit to the state’s agenda. It’s also glaringly obvious that these proposed laws are laying the groundwork to mandate COVID-19 vaccinations in schools and most other youth activities.
At what point is the COVID fear and hysteria going to stop? I believe that it’s time to draw the line when it comes to our children. If you are a parent who is unwilling to subject your child to a highly potent, hastily prepared vaccine, then I’m asking you to speak out against these bills.
Contact your state representative and tell him or her to reject H.2411. Likewise, tell your state senator that you oppose S.1517. Lastly, make it known to the governor himself that he should veto these bills or any version of them that appears on his desk for approval.
On behalf of your children, it’s time to speak up.
According to the law, no child shall be admitted to school unless the school is first provided with a physician’s certificate showing that the child has been immunized against the following viruses:
pertussis (whooping cough)
and “such other communicable diseases as may be specified from time to time by the department of public health.”
The law provides two exceptions.
First, a student may present the school with a certification from his or her physician stating that the student’s health could be endangered if he or she received a required vaccine. Such a certification must be submitted by the student each school year. The doctor in charge of the school system’s health program may contest the certification. If that happens, the matter is referred to the department of public health, whose decision is final.
Second, a student may object to being vaccinated on religious ground. According to the statute,
In the absence of an emergency or epidemic of disease declared by the department of public health, no child whose parent or guardian states in writing that vaccination or immunization conflicts with his sincere religious beliefs shall be required to present said physician’s certificate in order to be admitted to school.
A recent bill (Bill H.2411) has been presented to the state legislature seeking to remove the religious exemption from the statute, thus forcing the vaccine requirements on all residents regardless of their religious beliefs.
I would be presumptuous, indeed, to present myself against the distinguished gentlemen to whom you have listened if this were but a measuring of ability; but this is not a contest among persons. The humblest citizen in all the land when clad in the armor of a righteous cause is stronger than all the whole hosts of error that they can bring. I come to speak to you in defense of a cause as holy as the cause of liberty—the cause of humanity. When this debate is concluded, a motion will be made to lay upon the table the resolution offered in commendation of the administration and also the resolution in condemnation of the administration. I shall object to bringing this question down to a level of persons. The individual is but an atom; he is born, he acts, he dies; but principles are eternal; and this has been a contest of principle.
Never before in the history of this country has there been witnessed such a contest as that through which we have passed. Never before in the history of American politics has a great issue been fought out as this issue has been by the voters themselves.
On the 4th of March, 1895, a few Democrats, most of them members of Congress, issued an address to the Democrats of the nation asserting that the money question was the paramount issue of the hour; asserting also the right of a majority of the Democratic Party to control the position of the party on this paramount issue; concluding with the request that all believers in free coinage of silver in the Democratic Party should organize and take charge of and control the policy of the Democratic Party. Three months later, at Memphis, an organization was perfected, and the silver Democrats went forth openly and boldly and courageously proclaiming their belief and declaring that if successful they would crystallize in a platform the declaration which they had made; and then began the conflict with a zeal approaching the zeal which inspired the crusaders who followed Peter the Hermit. Our silver Democrats went forth from victory unto victory, until they are assembled now, not to discuss, not to debate, but to enter up the judgment rendered by the plain people of this country.
But in this contest, brother has been arrayed against brother, and father against son. The warmest ties of love and acquaintance and association have been disregarded. Old leaders have been cast aside when they refused to give expression to the sentiments of those whom they would lead, and new leaders have sprung up to give direction to this cause of freedom. Thus has the contest been waged, and we have assembled here under as binding and solemn instructions as were ever fastened upon the representatives of a people.
We do not come as individuals. Why, as individuals we might have been glad to compliment the gentleman from New York [Senator Hill], but we knew that the people for whom we speak would never be willing to put him in a position where he could thwart the will of the Democratic Party. I say it was not a question of persons; it was a question of principle; and it is not with gladness, my friends, that we find ourselves brought into conflict with those who are now arrayed on the other side. The gentleman who just preceded me [Governor Russell] spoke of the old state of Massachusetts. Let me assure him that not one person in all this convention entertains the least hostility to the people of the state of Massachusetts.
But we stand here representing people who are the equals before the law of the largest cities in the state of Massachusetts. When you come before us and tell us that we shall disturb your business interests, we reply that you have disturbed our business interests by your action. We say to you that you have made too limited in its application the definition of a businessman. The man who is employed for wages is as much a businessman as his employer. The attorney in a country town is as much a businessman as the corporation counsel in a great metropolis. The merchant at the crossroads store is as much a businessman as the merchant of New York. The farmer who goes forth in the morning and toils all day, begins in the spring and toils all summer, and by the application of brain and muscle to the natural resources of this country creates wealth, is as much a businessman as the man who goes upon the Board of Trade and bets upon the price of grain. The miners who go 1,000 feet into the earth or climb 2,000 feet upon the cliffs and bring forth from their hiding places the precious metals to be poured in the channels of trade are as much businessmen as the few financial magnates who in a backroom corner the money of the world.
We come to speak for this broader class of businessmen. Ah. my friends, we say not one word against those who live upon the Atlantic Coast; but those hardy pioneers who braved all the dangers of the wilderness, who have made the desert to blossom as the rose—those pioneers away out there, rearing their children near to nature’s heart, where they can mingle their voices with the voices of the birds—out there where they have erected schoolhouses for the education of their children and churches where they praise their Creator, and the cemeteries where sleep the ashes of their dead—are as deserving of the consideration of this party as any people in this country.
It is for these that we speak. We do not come as aggressors. Our war is not a war of conquest. We are fighting in the defense of our homes, our families, and posterity. We have petitioned, and our petitions have been scorned. We have entreated, and our entreaties have been disregarded. We have begged, and they have mocked when our calamity came.
We beg no longer; we entreat no more; we petition no more. We defy them!
The gentleman from Wisconsin has said he fears a Robespierre. My friend, in this land of the free you need fear no tyrant who will spring up from among the people. What we need is an Andrew Jackson to stand as Jackson stood, against the encroachments of aggregated wealth.
They tell us that this platform was made to catch votes. We reply to them that changing conditions make new issues; that the principles upon which rest Democracy are as everlasting as the hills; but that they must be applied to new conditions as they arise. Conditions have arisen and we are attempting to meet those conditions. They tell us that the income tax ought not to be brought in here; that is not a new idea. They criticize us for our criticism of the Supreme Court of the United States. My friends, we have made no criticism. We have simply called attention to what you know. If you want criticisms, read the dissenting opinions of the Court. That will give you criticisms.
They say we passed an unconstitutional law. I deny it. The income tax was not unconstitutional when it was passed. It was not unconstitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind; and we cannot be expected to know when a judge will change his mind.
The income tax is a just law. It simply intends to put the burdens of government justly upon the backs of the people. I am in favor of an income tax. When I find a man who is not willing to pay his share of the burden of the government which protects him, I find a man who is unworthy to enjoy the blessings of a government like ours.
He says that we are opposing the national bank currency. It is true. If you will read what Thomas Benton said, you will find that he said that in searching history he could find but one parallel to Andrew Jackson. That was Cicero, who destroyed the conspiracies of Cataline and saved Rome. He did for Rome what Jackson did when he destroyed the bank conspiracy and saved America.
We say in our platform that we believe that the right to coin money and issue money is a function of government. We believe it. We believe it is a part of sovereignty and can no more with safety be delegated to private individuals than can the power to make penal statutes or levy laws for taxation.
Mr. Jefferson, who was once regarded as good Democratic authority, seems to have a different opinion from the gentleman who has addressed us on the part of the minority. Those who are opposed to this proposition tell us that the issue of paper money is a function of the bank and that the government ought to go out of the banking business. I stand with Jefferson rather than with them, and tell them, as he did, that the issue of money is a function of the government and that the banks should go out of the governing business.
They complain about the plank which declares against the life tenure in office. They have tried to strain it to mean that which it does not mean. What we oppose in that plank is the life tenure that is being built up in Washington which establishes an office-holding class and excludes from participation in the benefits the humbler members of our society. . . .
Let me call attention to two or three great things. The gentleman from New York says that he will propose an amendment providing that this change in our law shall not affect contracts which, according to the present laws, are made payable in gold. But if he means to say that we cannot change our monetary system without protecting those who have loaned money before the change was made, I want to ask him where, in law or in morals, he can find authority for not protecting the debtors when the act of 1873 was passed when he now insists that we must protect the creditor. He says he also wants to amend this platform so as to provide that if we fail to maintain the parity within a year that we will then suspend the coinage of silver. We reply that when we advocate a thing which we believe will be successful we are not compelled to raise a doubt as to our own sincerity by trying to show what we will do if we are wrong.
I ask him, if he will apply his logic to us, why he does not apply it to himself. He says that he wants this country to try to secure an international agreement. Why doesn’t he tell us what he is going to do if they fail to secure an international agreement. There is more reason for him to do that than for us to expect to fail to maintain the parity. They have tried for thirty years—thirty years—to secure an international agreement, and those are waiting for it most patiently who don’t want it at all.
Now, my friends, let me come to the great paramount issue. If they ask us here why it is we say more on the money question than we say upon the tariff question, I reply that if protection has slain its thousands the gold standard has slain its tens of thousands. If they ask us why we did not embody all these things in our platform which we believe, we reply to them that when we have restored the money of the Constitution, all other necessary reforms will be possible, and that until that is done there is no reform that can be accomplished.
Why is it that within three months such a change has come over the sentiments of the country? Three months ago, when it was confidently asserted that those who believed in the gold standard would frame our platforms and nominate our candidates, even the advocates of the gold standard did not think that we could elect a President; but they had good reasons for the suspicion, because there is scarcely a state here today asking for the gold standard that is not within the absolute control of the Republican Party.
But note the change. Mr. McKinley was nominated at St. Louis upon a platform that declared for the maintenance of the gold standard until it should be changed into bimetallism by an international agreement. Mr. McKinley was the most popular man among the Republicans ; and everybody three months ago in the Republican Party prophesied his election. How is it today? Why, that man who used to boast that he looked like Napoleon, that man shudders today when he thinks that he was nominated on the anniversary of the Battle of Waterloo. Not only that, but as he listens he can hear with ever increasing distinctness the sound of the waves as they beat upon the lonely shores of St. Helena.
Why this change? Ah, my friends. is not the change evident to anyone who will look at the matter? It is because no private character, however pure, no personal popularity, however great, can protect from the avenging wrath of an indignant people the man who will either declare that he is in favor of fastening the gold standard upon this people, or who is willing to surrender the right of self-government and place legislative control in the hands of foreign potentates and powers. . . .
We go forth confident that we shall win. Why? Because upon the paramount issue in this campaign there is not a spot of ground upon which the enemy will dare to challenge battle. Why, if they tell us that the gold standard is a good thing, we point to their platform and tell them that their platform pledges the party to get rid of a gold standard and substitute bimetallism. If the gold standard is a good thing, why try to get rid of it? If the gold standard, and I might call your attention to the fact that some of the very people who are in this convention today and who tell you that we ought to declare in favor of international bimetallism and thereby declare that the gold standard is wrong and that the principles of bimetallism are better—these very people four months ago were open and avowed advocates of the gold standard and telling us that we could not legislate two metals together even with all the world.
I want to suggest this truth, that if the gold standard is a good thing we ought to declare in favor of its retention and not in favor of abandoning it; and if the gold standard is a bad thing, why should we wait until some other nations are willing to help us to let it go?
Here is the line of battle. We care not upon which issue they force the fight. We are prepared to meet them on either issue or on both. If they tell us that the gold standard is the standard of civilization, we reply to them that this, the most enlightened of all nations of the earth, has never declared for a gold standard, and both the parties this year are declaring against it. If the gold standard is the standard of civilization, why, my friends, should we not have it? So if they come to meet us on that, we can present the history of our nation. More than that, we can tell them this, that they will search the pages of history in vain to find a single instance in which the common people of any land ever declared themselves in favor of a gold standard. They can find where the holders of fixed investments have.
Mr. Carlisle said in 1878 that this was a struggle between the idle holders of idle capital and the struggling masses who produce the wealth and pay the taxes of the country; and my friends, it is simply a question that we shall decide upon which side shall the Democratic Party fight. Upon the side of the idle holders of idle capital, or upon the side of the struggling masses? That is the question that the party must answer first; and then it must be answered by each individual hereafter. The sympathies of the Democratic Party, as described by the platform, are on the side of the struggling masses, who have ever been the foundation of the Democratic Party.
There are two ideas of government. There are those who believe that if you just legislate to make the well-to-do prosperous, that their prosperity will leak through on those below. The Democratic idea has been that if you legislate to make the masses prosperous their prosperity will find its way up and through every class that rests upon it.
You come to us and tell us that the great cities are in favor of the gold standard. I tell you that the great cities rest upon these broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic. But destroy our farms and the grass will grow in the streets of every city in the country.
My friends, we shall declare that this nation is able to legislate for its own people on every question without waiting for the aid or consent of any other nation on earth, and upon that issue we expect to carry every single state in the Union.
I shall not slander the fair state of Massachusetts nor the state of New York by saying that when citizens are confronted with the proposition, “Is this nation able to attend to its own business?”—I will not slander either one by saying that the people of those states will declare our helpless impotency as a nation to attend to our own business. It is the issue of 1776 over again. Our ancestors, when but 3 million, had the courage to declare their political independence of every other nation upon earth. Shall we, their descendants, when we have grown to 70 million, declare that we are less independent than our forefathers? No, my friends, it will never be the judgment of this people. Therefore, we care not upon what lines the battle is fought. If they say bimetallism is good but we cannot have it till some nation helps us, we reply that, instead of having a gold standard because England has, we shall restore bimetallism, and then let England have bimetallism because the United States have.
If they dare to come out in the open field and defend the gold standard as a good thing, we shall fight them to the uttermost, having behind us the producing masses of the nation and the world. Having behind us the commercial interests and the laboring interests and all the toiling masses, we shall answer their demands for a gold standard by saying to them, you shall not press down upon the brow of labor this crown of thorns. You shall not crucify mankind upon a cross of gold.
Source: Official Proceedings of the Democratic National Convention Held in Chicago, Illinois, July 7, 8, 9, 10, and 11, 1896, (Logansport, Indiana, 1896), 226–234. Reprinted in The Annals of America, Vol. 12, 1895–1904: Populism, Imperialism, and Reform (Chicago: Encyclopedia Britannica, Inc., 1968), 100–105.
Earlier this week the Supreme Judicial Court (SJC) upheld a trial court decision validating an Israeli law firm’s judgment against a Massachusetts defendant.
According to the court’s opinion, the defendant agreed to pay the Israeli law firm for legal services in Israel. After the services were provided the defendant refused to pay the law firm’s bill despite numerous email requests.
This prompted the law firm to file suit against the defendant in Israel. The law firm attempted to serve notice on the defendant at her residence in Massachusetts. However, the defendant evade all efforts made by the sheriff’s department to serve her personally with the court summons. (The sheriff’s office went to the defendant’s residence four times to no avail. They also spoke to the defendant over the phone and she told them that she would not accept service of the summons.)
Despite the sheriff’s failure to serve the defendant with notice, the Israeli court entered a default judgment in favor of the law firm.
The law firm then filed an action in Massachusetts Superior Court seeking to enforce the Israeli judgment pursuant to the Uniform Foreign Money-Judgments Recognition Act, M.G.L. c. 235, section 23A, which states, in part, that
any foreign judgment that is final and conclusive and enforceable where rendered…shall be conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment shall be enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.
The defendant contested this enforcement of the judgment arguing that the law firm failed to properly serve her with notice of the lawsuit (Mass.R.Civ.P. 4(d)) and that enforcement of the Israeli judgment would be contrary to public policy.
The Superior Court rejected both of these arguments and the SJC affirmed the decision.
According to the SJC, the fact that the sheriff’s office did not serve the defendant personally with the initial summons is insufficient to render the judgment invalid.
whether a particular method of notice is reasonable depends on the particular circumstances. The absence of service of process is not dispositive….The defendant received adequate notice. After the defendant orally agreed to guarantee the legal fees, the plaintiff repeatedly notified her when these came due, making clear that it would hold her personally liable. The defendant certainly received at least one of these requests, as she responded to the demand sent in July 2013, even apologizing for the delay. Apologies aside, this would be the last that the plaintiff heard from the defendant during these exchanges. More alerts about possible litigation followed, but the defendant continued not to respond. Although these facts alone are not sufficient notice, they contextualize what happened next: four attempts to serve the defendant, one of which included a telephone conversation between the defendant and the process server in which the defendant informed the server that she would not accept the papers. Throughout these efforts, the defendant cloaked herself in a veil of ignorance, leading the Israeli and Superior Court judges to make their respective findings about notice.
Next the court rejected the defendant’s claim that the Israeli judgment was contrary to the Commonwealth’s public policy and thus unenforceable according to the Uniform Foreign Money-Judgments Recognition Act. The defendant’s claim was based on the fact that she did business through a corporate entity and that she, therefore, could not be personally liable for the judgment owed. The judgment was, according to the defendant, repugnant to public policy.
In rejecting this claim, the court wrote,
Repugnancy is strong medicine, best administered sparingly. A judgment will offend public policy when the original claim is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought…In the classic formulation, a judgment that ‘tends clearly’ to undermine the public interest, the public confidence in the administration of the law, or security for individual rights of personal liberty or of private property is against public policy…The Israeli judgment is not repugnant. This judgment was premised on the plaintiff asking the Israeli court to pierce the…corporate veil and hold the defendant personally liable. As both the Superior Court judge and other courts have noted, Israeli courts take corporate veil piercing seriously.
Arthur Conan Doyle, the author of the Sherlock Holmes stories, died on this day in 1930. In 1904 he gave a lecture on the topic of law and crime in America at the Author’s Club in London. The lecture was written down by an American reporter and published two days later in Baltimore’s newspaper, The Sun. Below is the text of that article.
Novelist Doyle On Uncle Sam’s Homicidal Mania
Sir Arthur Conan Doyle, who is better known to Americans as Dr. Conan Doyle, fiction writer, made a brief speech recently at the Authors’ Club in London, in which he gave certain interesting observations on the prevalence of crime in the United States. A verbatim report of Dr. Doyle’s remarks attributes the following statements to him
The British, army in South Africa lost during three years 22,000 men from all causes ; in three years the United States lost 31,000 men from homicide. London, with 6,000,000 inhabitants, had 24 murders last year; Chicago, with less than 2,000,000, had 128. Of London’s 24 9 were hanged, of Chicago’s 128 1 was hanged. The single States of Georgia and South Carolina had each more murders than the whole British Empire. Nor was this due to emigrants ; it was most marked in the purely American States.
It is undeniable that the number of homicides in the United States every year is vastly in excess of those in Great Britain or any European country which publishes statistics of crime.
Whether measured by robbery, divorce or any other symptom, asserts Dr. Doyle, the irregular state of things in the United States bids fair to exceed all European countries combined.
What is the remedy? The British author suggests that in this Republic
the law is loosely administered ; that judges are not as free as they are in Great Britain ; that they are influenced by political motives that there is a pull hither and thither and justice is not administered. Assuredly, he concludes, in the establishment, of a pure, independent judiciary throughout America there is the best possible scope for the energy of Roosevelt.
Of course the versatile novelist, like most foreigners who discuss American affairs, had to make the inevitable slip. He seems to think that President Roosevelt appoints all of our judges instead of the comparatively few jurists who constitute the Federal judiciary. The error is immaterial, however. Ills assumption that judges are mainly responsible for the failure to punish men guilty of homicidal crimes is not borne out by the facts. The responsibility rests chiefly upon juries. In communities in which human life is rated too cheaply and in which there is a public opinion which looks with leniency upon the settlement of personal quarrels with deadly weapons, juries will not be influenced solely by the law or the evidence or the court’s instructions. The judge may seek with all his powers to secure the enforcement of the law. Re will not succeed if public sentiment and local traditions constitute an “unwritten law” stronger than the statutes. In other cases, where the community believes the ends of justice would be served by the conviction and punishment of the accused, the latter by appeals to higher courts and by resorting to the various expedients known to all resourceful lawyers escapes the penalty which he seemed to deserve. There are thoughtful American lawyers, including a justice of the Supreme Court of the United States, who bold that there should be restrictions on the right of appeal. If abuses exist because appeals are almost unlimited, it is also true that there have been tearful miscarriages of justice in England because the right of appeal in criminal cases is recognized to a very limited degree there and practically depends upon the consent of the judge in whose court the accused was convicted.
Many Americans will agree with Dr. Doyle that the number of homicides in this country every year is a cause for deep concern to the people of the United States. The homicidal mania is not sectional. It knows no geographical limitations. It can be stamped out only by a stern enforcement of the law. It is gratifying to note a recent tendency on the part of the people of our several geographical subdivisions to sweep before their own doors before they start out to cleanse the premises of their neighbors. Homicide is, indeed, the great national crime. It ought to be checked in the North. the South, the East and the West. It is not argument for the pot to call the kettle black, and hence it is not in that spirit that Americans might call the attention of Dr. Doyle to certain weaknesses of his British brethren. It is said that some years ago President Roosevelt, who then held a less exalted position under the Government than be now fills, was at a banquet at which Rudyard Kipling was a guest. Mr. Kipling expatiated forcibly and at length upon the national crime of Americans, the thousands of homicides every year. Mr. Roosevelt, so the story goes, listened to him attentively and then observed: “I agree with you, Mr. Kipling, we as a nation are guilty of crime. We kill men.” Mr. Kipling was pleased. “But,” added Mr. Rposevelt, “Great Britain also has its national crime. Would you like me to tell you what it is?” Mr. Kipling signified that he would like to have the information. “Well,” replied Mr. Roosevelt, “the British national crime is wife-beating. We kill men ; you beat women.”
In England, according to Mr. Labouchere’s magazine, London Truth, judges make a broad distinction between crimes against property and assault and battery. The man who beats another, or pummels his wife, any female relative or member of the weaker sex, stands a much better chance for a light sentence than the man who shoots or snares a rabbit on property that does not belong to him, or steals goods from his neighbor. Of course this distinction may indicate a more subtle power of discrimination than that which prevails in the United States. But to the impartial observer it would seem that John Bull and Jonathan would be more respected if the former put an end to wife-beating and the later to the killing of men. Both crimes are a disgrace to civilization in the twentieth century.
Almost every real estate attorney has had his or her legal advice contradicted by a presumptuous real estate agent. Typically, the lawyer sees a potential problem with some technical aspect of the closing (a tax issue, a boundary-line encroachment, a title problem, etc.) and informs the client of the need to fix the matter before the closing proceeds. This sends some real estate agents into a panic as they see their commission check put into jeopardy. In responds, the real estate agent may downplay the problem and give his or her uninformed legal advice which usually goes against what the lawyer said.
Such actions violate both Massachusetts’ statutory law prohibiting the unauthorized practice of law as well as the Massachusetts’ professional standards for real estate agents and the ethics code for REALTORS.
No individual, other than a member, in good standing, of the bar of this commonwealth shall practice law, or, by word, sign, letter, advertisement or otherwise, hold himself out as authorized, entitled, competent, qualified or able to practice law.
REALTORS® shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it.
Lastly, 254 CMR 3.00, the Professional Standards of Practice for real estate brokers and salesmen in Massachusetts states that
a broker or salesperson shall only assume those duties and responsibilities for which he/she has adequate preparation and for which competency has been acquired and maintained.
The word “mortgage” derives from French and can be translated to mean “death pledge”: mort (death) and gage (pledge). Despite this ominous name, mortgages do have expiration dates either contained in their terms or imposed on them by statutory law.
The average residential mortgage has a term of 15 or 30 years. Typically, within the first page or two of the mortgage, you can find language such as:
Borrower has promised to pay this debt in regular periodic payments and to pay the debt in full not later than July 1, 2051.
The date of July 1, 2051 is the maturity date. Most mortgages are paid off and discharged at the registry of deeds before the maturity date. However, some mortgages go without being discharged for one reason or another. In these cases, the bank’s power to foreclose the mortgage (i.e., the “power of sale”) extinguishes five years after the maturity date pursuant to M.G.L. 260, Section 33. The statute states, in pertinent part, that
A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of…in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date…
It should be noted that a mortgagee can extend the maturity date by recording an affidavit at the registry of deeds within that five year period between the maturity date and the date of expiration.
When a mortgage fails to state a maturity date, it will expire (or become “obsolete”) 35 years after the date it was recorded at the registry. Again, M.G.L. 260, Section 33 states:
A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of, in the case of a mortgage in which no term of the mortgage is stated, 35 years from the recording of the mortgage.
Once the mortgage is considered obsolete by the terms of the statute it shall be considered discharged and no further action is needed unless it is registered land. In that case an additional fee must be paid to Land Court in order for the discharge to become effective.
The vast majority of mortgages in Massachusetts name MERS as the mortgagee (i.e., the entity that holds the mortgage) while designating the bank that loaned money to the homebuyer as simply “the lender.” Here is an except from a typical residential mortgage:
(C) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.
“Lender” is PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION Lender is a banking institution organized and existing under the laws of the UNITED STATES.
This distinction between nominee and lender creates uncertainty amongst borrowers, lawyers, and even courts.
MERS is a registration system that allows banks and investors to assign mortgages among themselves while avoiding the cost and confusion of recording the assignments in local registries throughout the country.
This became especially valuable in the early 21st century when investors started buying and selling mortgage-backed securities which may be traded frequently.
Real estate law and real estate transactions in the US are subject to state regulations and county level recordation requirements. That made it quite cumbersome for financial companies to develop a smooth operation of a market based on mortgages in the early 1980s. This is because every time a financial instrument containing mortgages is sold, various state laws may require that the sale of each such mortgage (or deed of trust) be recorded in the local county courts in order to preserve certain rights (e.g., the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees. So, the financial industry, eager to trade in mortgage-backed securities, needed to find a way around these recordation requirements, and this is how the MERS system was born to replace public recordation with a private one.
The problem for lawyers and litigants is knowing how to treat MERS when it comes to legal documents and lawsuits.
When it comes to legal documents, MERS should be treated as the mortgagee. Thus, if a document such as a mortgage discharge or assignment is recorded at the registry of deeds, it should be executed by a MERS agent and not by the original lender. Likewise, the registry index should show MERS–and not the lender–as the mortgagee.
Anyone involved in litigation against their mortgage holder should name both their lender and MERS as a party in the case. I personally name MERS as a defendant while other lawyers name MERS simply as a “Party in Interest.” In my opinion, naming MERS as anything less than a defendant creates unneeded confusion and gives the opposing attorney an opportunity to challenge the “Party in Interest” designation.
For more discussion on MERS as it relates to real estate law refer to REBA Title Standard No. 72 and Massachusetts Land Court Guideline 42.
Yesterday the Massachusetts Appeals Court upheld a police chief’s decision to deny the renewal of a man’s license to carry (LTC) a firearm based on the man’s involvement with illegal drug sales.
The LTC applicant was observed by police in two drug transactions in 2011, though no charges were made. A year later, in 2012, the LTC applicant was stopped by police and then arrested for possessing a small bag of heroin. The stop was later deemed illegal and all charges were dropped.
In 2019 the applicant sought to renew his license to carry a firearm and the police chief denied his renewal based on the 2011 and 2012 incidents.
The decision was contested in District Court where the judge reversed the police chief’s decision noting both the age of the incidents and the fact that no criminal findings were ever made against the applicant.
The police chief appealed to the Superior Court which reversed the District Court’s ruling. The applicant then brought the matter before the Appeals Court.
The Appeals Court affirmed the decisions made by the Superior Court and the chief of police.
Their discussion on Massachusetts’ gun licensing laws is as follows:
The purpose of G. L. c. 140, § 131 [gun licensing law], is to limit access to deadly weapons by irresponsible persons…Accordingly, a licensing authority may deny an LTC application “if, in a reasonable exercise of discretion,” it determines that the applicant is unsuitable, “based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.” G. L. c. 140, § 131 (d). The “suitable person” standard “confers upon a licensing authority considerable latitude or broad discretion in making a licensing decision”
Furthermore, a District Court judge may reverse a police chief’s decision on gun licensing (pursuant to G.L.c. 140, section 131f),
only upon a showing by the applicant that the licensing authority’s refusal was arbitrary, capricious, or an abuse of discretion.
According to the Appeals Court, the District Court judge failed to adhere to this standard.
Rather, she re-evaluated the evidence and decided that it was “too thin” and “too stale” to constitute a palpable risk. This was error because, as we have previously said, “[t]he [hearing] judge . . . may not second guess the licensing authority’s decision to take one reasonable action over another.
Therefore, the Appeals Court affirmed the Superior Court’s judgment and the police chief’s decision to revoke the LTC.