Date: Tue, 18 Jul 95 14:34:14 PDT From: bjb@macsch.com (Bryan J. Blumberg) ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH CHAPTER 6. The Governor, Lieutenant Governor and Council, Certain Officers Under the Governor and Council, and State Library [COMMITTEE ON EDUCATIONAL POLICY] Mass. Ann. Laws ch. 6, @ 18B (1994) @ 18B. Public Education Nominating Council; Duty; Membership; Vacancies; Consideration of Candidates. (a) A public education nominating council is hereby established to advise the governor with respect to appointments to the board of education, the higher education coordinating council, and all boards of trustees of community colleges, state colleges, and the University of Massachusetts, other than the student and alumni trustees elected pursuant to section twenty-one of chapter fifteen A, and in the case of the university, pursuant to section one A of chapter seventy-five. Said council shall consist of not fewer than twelve nor more than fifteen members and shall act with the concurrence of at least a majority of its members. (b) Members of the council shall be appointed to serve without compensation for terms coterminous with that of the governor. Members may be reimbursed for all expenses reasonably incurred in the performance of their duties. Any succeeding appointments and vacancies on the council shall be filled by the governor. A member of the council shall be considered a "person employed by the commonwealth for compensation" for the purposes of section thirteen of chapter fifty-five. (c) The governor shall from time to time select one member to serve as chair of the council. The council shall adopt and make public by-laws for the conduct of its affairs. All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the council but shall be available to the governor and the governor's representatives. (d) Whenever a vacancy occurs or is expected to occur on the board of education, the higher education coordinating council or on a board of trustees, the governor shall notify the council. The council shall submit to the governor a list of persons who, in the judgment of the council, are qualified and willing to serve as members or trustees. Said list shall include at least twice as many names as there are vacant positions. The governor may appoint any person whose name is forwarded to him by the council. If the governor declines to appoint a person from any such list, the council shall submit additional names for that vacancy. (e) In considering candidates, the council shall seek persons of the highest quality who, by experience, temperament, ability and integrity will provide policy direction and oversight for the commonwealth's educational system and its community colleges, state colleges, and the University of Massachusetts. Candidates shall be evaluated according to law and without regard to race, religion, sex, age, national or ethnic origin, or political affiliation. There shall be persons from diverse cultural, racial, social, geographic and ethnic backgrounds on the council. No member of the council may be considered for appointment to any board while a member of the council. HISTORY: Added by 1991, 142, @ 3, approved July 11, 1991, effective by act of Governor, Aug 9, 1991. LEVEL 1 - 2 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH CHAPTER 22C. The Department of State Police Mass. Ann. Laws ch. 22C, @ 32 (1995) @ 32. Definitions Applicable to Sections 33 through 35. For the purposes of sections thirty-three to thirty five, inclusive, the following words shall have the following meanings:-- "Crime reporting unit", a joint project of the department of state police and the criminal history systems board charged with the responsibility of collecting incident reports submitted by state, local and campus police departments and other law enforcement authorities and disseminating periodic reports analyzing and interpreting crime rates and trends in the commonwealth. "Hate crime", any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation. Hate crime shall also include, but not be limited to, acts that constitute violations of sections thirty-seven and thirty-nine of chapter two hundred and sixty-five, section one hundred and twenty-seven A of chapter two hundred and sixty-six and chapter two hundred and seventy two. "Hate crime data", information, incident reports, records and statistics relating to hate crimes, collected by the crime reporting unit. "Incident report", an account of occurrence of a hate crime received or collected by the crime reporting unit. HISTORY: Added by 1991, 412, @ 22, approved Dec 27, 1991, by @ 139, effective July 1, 1992. Amended by 1992, 59, approved June 3, 1992, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1992 amendment rewrote the definition of "Hate crime" by inserting after "ethnic, handicap" the word ", gender". CROSS REFERENCES-- Direction that criminal justice training council provide instruction for police officers in responding to hate crimes as defined in this section, ALM GL c 6 @ 116B. ANNOTATIONS-- Validity, construction, and effect of "hate crimes" statutes, "ethnic intimidation" statutes, or the like. <<=1>> 22 ALR5th 261. LEVEL 1 - 3 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 71. Public Schools SCHOOLHOUSES Mass. Ann. Laws ch. 71, @ 89 (1995) @ 89. Charter Schools. A charter school shall be a public school, operated under a charter granted by the secretary of education, which operates independently of any school committee and is managed by a board of trustees. The board of trustees of a charter school, upon receiving a charter from the secretary of education, shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. The purposes for establishing charter schools are: (1) to stimulate the development of innovative programs within public education; (2) to provide opportunities for innovative learning and assessments; (3) to provide parents and students with greater options in choosing schools within and outside their school districts; (4) to provide teachers with a vehicle for establishing schools with alternative, innovative methods of educational instruction and school structure and management; (5) to encourage performance-based educational programs and; (6) to hold teachers and school administrators accountable for students' educational outcomes. Persons or entities eligible to submit an application to establish a charter school shall include, but not be limited to, a business or corporate entity, two or more certified teachers or ten or more parents. Said application may be filed in conjunction with a college, university, museum or other similar entity. Private and parochial schools shall not be eligible for charter school status. The secretary of education shall establish the information needed in an application for the approval of a charter school; provided, however, that said application shall include the method for admission to a charter school. There shall be no application fee for admission to a charter school. Applications to establish a charter school shall be submitted each year by February fifteenth. The secretary of education shall review the applications no later than March fifteenth. The secretary of education shall make the final determination on granting charter school status and may condition charters on the charter school's taking certain actions or maintaining certain conditions. No more than twenty-five charter schools shall be allowed to operate in the commonwealth at any time. Of these, no more than five shall be located in the city of Boston; no more than five shall be located in the city of Springfield; and no more than two shall be located in any other city or town. Under no circumstances shall the total number of students attending charter schools in the commonwealth be allowed to be greater than three-quarters of one percent of the total number of students attending public schools in the commonwealth. A charter school established under a charter granted by the secretary shall be a body politic and corporate with all powers necessary or desirable for carrying out its charter program, including, but not limited to, the following: (a) to adopt a name and corporate seal; provided, however, that any name selected must include the words "charter school"; (b) to sue and be sued, but only to the same extent and upon the same conditions that a town can be sued; (c) to acquire real property, from public or private sources, by lease, lease with an option to purchase, or by gift, for use as a school facility; (d) to receive and disburse funds for school purposes; (e) to make contracts and leases for the procurement of services, equipment and supplies; provided, however, that if the board intends to procure substantially all educational services under contract with another person, the terms of such a contract must be approved by the secretary, either as part of the original charter or by way of an amendment thereto; provided, further, that the secretary shall not approve any such contract terms, the purpose or effect of which is to avoid the prohibition of this section against charter school status for private and parochial schools; (f) to incur temporary debt in anticipation of receipt of funds; (g) to solicit and accept any grants or gifts for school purposes; (h) to have such other powers available to a business corporation formed under chapter one hundred and fifty-six B that are not inconsistent with this chapter. Charter schools shall be open to all students, on a space available basis, and shall not discriminate on the basis of race, color, national origin, creed, sex, ethnicity, mental or physical disability, age, ancestry, athletic performance, special need, or proficiency in the English language, and academic achievement. Charter schools may limit enrollment to specific grade levels or areas of focus of the school, such as mathematics, science or the arts. A charter school may establish reasonable academic standards as a condition for eligibility for applicants. Preference for enrollment in a charter school shall be given to students who reside in the city or town in which the charter school is located. If the total number of students who are eligible to attend and apply to a charter school and who reside in the city or town in which the charter school is located, or are siblings of students already attending said charter school is greater than the number of spaces available, then an admissions lottery shall be held to fill all of the spaces in that school from among said students. If there are more spaces available than eligible applicants from the city or town in which said charter school is located and who are siblings of current students, and more eligible applicants than spaces left available, then a lottery shall be held to determine which of said applicants shall be admitted. There shall be no tuition charge for students attending charter schools. A student may withdraw from a charter school at any time and enroll in a public school where said student resides. A student may be expelled from charter school based on criteria determined by the board of trustees, and approved by the secretary of education, with the advice of the principal and teachers. A charter school may be located in part of an existing public school building, in space provided on a private work site, in a public building, or any other suitable location. A charter school may own, lease or rent its space. A charter school shall operate in accordance with its charter and the provisions of law regulating other public schools; provided, however, that the provisions of sections forty-one and forty-two shall not apply to employees of charter schools. Charter schools shall comply with the provisions of chapters seventy-one A and seventy-one B; provided, however, that the fiscal responsibility of any special needs student currently enrolled in or determined to require a private day or residential school shall remain with the school district where the student resides. Students in charter schools shall be required to meet the same performance standards, testing and portfolio requirements set by the board of education for students in other public schools. The board of trustees, in consultation with the teachers, shall determine the school's curriculum and develop the school's annual budget. Employees of charter schools shall be considered public employees for purposes of tort liability under chapter two hundred and fifty-eight and for collective bargaining purposes under chapter one hundred and fifty E. The board of trustees shall be considered the public employer for purposes of tort liability under said chapter two hundred and fifty-eight and for collective bargaining purposes under said chapter one hundred and fifty E. Teachers employed by a charter school shall be subject to the state teacher retirement system under chapter thirty-two and service in a charter school shall be "creditable service" within the meaning thereof. Each local school district shall be required to grant a leave of absence to any teacher in the public schools system requesting such leave in order to teach in charter schools. A teacher may request a leave of absence for up to two years. At the end of the two year period, the teacher may make a request to the superintendent that such leave be extended for an additional two years, and approval for said request shall not be unreasonably withheld or he may return to his former teaching position. At the end of the fourth year, the teacher may either return to his former teaching position or, if he chooses to continue teaching at the charter school, resign from his school district position. Notwithstanding section fifty-nine C, the internal form of governance of a charter school shall be determined by the school's charter. A charter school shall comply with all applicable state and federal health and safety laws and regulations. The children who reside in the school district in which the charter school is located shall be provided transportation to the charter school by the resident district's school committee on the same terms and conditions as transportation is provided to children attending local district schools. Students who do not reside in the district in which the charter school is located shall be eligible for transportation in accordance with section twelve B of chapter seventy-six. Each charter school shall submit to the secretary, to each parent or guardian of its enrolled students, and to each parent or guardian contemplating enrollment in that charter school an annual report. The annual report shall be issued no later than August first of each year for the preceding school year. The annual report shall be in such form as may be prescribed by the secretary of education and shall include at least the following components: (a) discussion of progress made toward the achievement of the goals set forth in the charter; (b) a financial statement setting forth by appropriate categories, the revenue and expenditures for the year just ended. Individuals or groups may complain to a charter school's board of trustees concerning any claimed violation of the provisions of this section by the school. If, after presenting their complaint to the trustees, the individuals or groups believe their complaint has not been adequately addressed, they may submit their complaint to the secretary of education who shall investigate such complaint and make a formal response. A charter granted by the secretary of education shall be for five years. The secretary of education may revoke a school's charter if the school has not fulfilled any conditions imposed by the secretary of education in connection with the grant of the charter or the school has violated any provision of its charter. The secretary may place the charter school on probationary status to allow the implementation of a remedial plan after which, if said plan is unsuccessful, the charter may be summarily revoked. The secretary shall develop procedures and guidelines for revocation and renewal of a school's charter. Notwithstanding the foregoing, no school building assistance funds, so-called, shall be awarded to a charter school for the purpose of constructing, reconstructing or improving said school. Charter schools shall be funded as follows: If a student attending a charter school resides in a community with a positive foundation gap, the district of the city or town in which said student resides shall pay to the charter school an amount equal to the average cost per student in said district. If a student attending a charter school resides in a community that does not have a positive foundation gap pursuant to chapter seventy, the district of the city or town in which said student resides shall pay to the charter school an amount equal to the lesser of: (1) the average cost per student in said district; and (2) the average cost per student in the district in which the charter school is located. HISTORY: Added by 1993, 71, @ 55, approved, with emergency preamble, June 18, 1993 (see Editorial note below) . NOTES: EDITORIAL NOTE-- Sections 67, 77 and 104, of the inserting act provide as follows: Section 67. This act shall apply to all cities, towns, and regional school districts, notwithstanding section twenty-seven C of chapter twenty-nine of the General Laws and without regard to any acceptance or appropriation by a city, town, or regional school district or to any appropriation by the general court. Section 77. The provisions of sections one J and one K of chapter sixty-nine of the General Laws and sections forty-one, forty-two, and eighty-nine of chapter seventy-one of the General Laws shall not apply to employees subject to collective bargaining agreements executed prior to the effective date of this act insofar as such collective bargaining agreements are in conflict with said sections. Collective bargaining agreements effective after the date of this act shall be subject to the provisions of said sections. Section 104. No charter school, established pursuant to section eighty-nine of chapter seventy-one of the General Laws may be authorized to open prior to the school year beginning in the fall of nineteen hundred and ninety-five. In the year nineteen hundred and ninety-eight, the general court shall study the effects of the limits on the number of charter school students and shall consider possible increases or decreases. Notwithstanding any reduction in the limit on the number of students allowed to attend charter schools, students enrolled in charter schools shall have a right to continue in that school through its highest grade level unless expelled for cause. CODE OF MASSACHUSETTS REGULATIONS-- Procedures for the establishment of charter schools, 601 CMR 1.00. LEVEL 1 - 4 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 76. School Attendance Mass. Ann. Laws ch. 76, @ 5 (1995) @ 5. Place of Attendance; Discrimination Prohibited. Every person shall have a right to attend the public schools of the town where he actually resides, subject to the following section. No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, religion, national origin or HISTORY: 1849, 117, @ 4; 1855, 256, @ 1; 1857, 132; GS 41, @@ 3, 9; PS 47, @@ 4, 10; 1894, 498, @@ 4, 11; 1898, 496, @ 7; RL 44, @ 3; 1911, 268, @ 1; 1913, 779, @ 3; 1971, 622, @ 1; 1973, 925, @ 9A. Amended by 1993, 282, approved Dec 10, 1993, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1971 amendment rewrote the section, to prohibit discrimination on the basis of sex or national origin as well as of race, color, or religion, in admission to, and in privileges, courses, etc. available in, any public school. The 1973 amendment affected the first and second sentences, changing "child" to "person". The 1993 amendment added "or at the end of the second sentence. CROSS REFERENCES-- Admittance of unvaccinated children to public schools, @ 15, infra. Duties of the school committee, ALM GL c 71 @ 37. FEDERAL ASPECTS-- Desegregation of public education, generally, <<=1>> 42 USCS @@ 2000c et seq. CODE OF MASSACHUSETTS REGULATIONS-- Access to equal educational opportunity, 603 CMR 26.01 et seq. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 15 Am Jur 2d, Civil Rights @@ 60--92. 68 Am Jur 2d, Schools @@ 219 et seq. ANNOTATIONS-- Racial segregation. <<=3>> 38 ALR2d 1188. De facto segregation of races in public schools. <<=4>> 11 ALR3d 780. Discrimination in provision of municipal services or facilities as civil rights violation. <<=5>> 51 ALR3d 950. Federal court regulation of school construction or facility so as to avoid school segregation. <<=6>> 4 ALR Fed 979. Application of Title IX of the Education Amendments of 1972 <<=7>> (20 USCS @@ 1681 et seq.) to sex discrimination in educational employment. <<=8>> 54 ALR Fed 522. Racial discrimination in education--Supreme court cases. <<=9>> 24 L Ed 2d 765. LAW REVIEWS-- Discrimination and antidiscrimination in Massachusetts law. 44 B U L Rev 30. Leubsdorf, Completing the desegregation remedy. 56 B U L Rev 39. The Boston school desegregation case. 62 Mass L Q 137. FORM See forms in printed version. CASE NOTES 1. In general 2. Discrimination based on sex 3. Discrimination based on religion 1. In general RL 1902, ch. 44, @ 3, from which present section derives, was to be read in connection with Stats 1907 c 215, from which the present ALM GL c 76 @ 15 derives. <<=13>> Spofford v Carleton (1921) 238 Mass 528, 131 NE 314. Under the provisions of ALM GL c 71 @ 37 and ALM GL c 76 @ 5, which provisions have been construed broadly in favor of school committees, school committee may make all reasonable rules and regulations relative to discipline, management and government of the schools, and it may exclude child from school for sufficient cause. <<=14>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. Under ALM GL c 71 @ 37 and ALM GL c 76 @ 5 school committees, school administrators and teachers are not restricted in maintaining discipline and decorum in classrooms to rules formally adopted by school committee and publicized before being put into effect but verbal directive of school principal followed by letter and later by ratification of school committee is sufficient. <<=15>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. School children were not entitled to attend public schools in Town of Hamilton, although substantial portions of house lot were located both in Towns of Hamilton and Essex, because house itself was almost fully situated in Essex. <<=16>> Teel v Hamilton-Wenham Regional School Dist. (1982) 13 Mass App 345, 433 NE2d 907. Municipality is not required to provide school facilities for children living within its boundaries but on Federal reservation. 6 Op AG 593. There is a distinction between "actually resides," as used in this statute, and "where he has his domicile." 1947 Op AG 85. Board of Education may issue regulations under anti-discrimination law, ALM GL c 76 @@ 5 and 6, even though neither statute explicitly authorizes such regulations. 1974--1975 Op AG No. 1. 2. Discrimination based on sex School committee may properly find that length and appearance of hair of male student is such that he should be excluded from school until he has his hair cut, and this is so even though length and appearance of student's hair is essential to him in his profession as musician and vocalist. <<=19>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. Proposed special legislation which would prohibit male students of particular high school from exercising rights under ALM GL c 75 @ 5 would be invalid. <<=20>> Opinion of Justices to Senate (1977) 373 Mass 883, 366 NE2d 733. Proposed legislation barring participation of girls and boys jointly in contact sports in public schools would violate state Equal Rights Amendment. <<=21>> Opinion of Justices to Governor (1977) 373 Mass 915; <<=22>> 371 NE2d 422, 90 ALR3d 1333. Rule of interscholastic athletic association imposing absolute bar on boys playing on a girls' team was intentional use of sex as discriminant and was forbidden by Equal Rights Amendment. <<=23>> Atty. Gen. v Massachusetts Interscholastic Athletic Asso. (1979) 378 Mass 342, 393 NE2d 284. Level of protection against sex discrimination provided by ALM GL c 76 @ 5 and Equal Rights Amendment to Massachusetts Constitution is same. <<=24>> Atty. Gen. v Massachusetts Interscholastic Athletic Asso. (1979) 378 Mass 342, 393 NE2d 284. Board of Education regulations providing in essence that participation on all extracurricular athletic teams, including contact sports, be free from restrictions based on sex and that entire physical education curriculum be free from restriction based on sex were valid exercise of board's authority and in accord with ALM GL c 76 @@ 5 and 16. 1975--1976 Op AG No. 66. 3. Discrimination based on religion Under this section it would not be competent for a school committee to pass order or regulation requiring pupils to conform to any religious rite or observance, or to go through with any religious forms or ceremonies, which were inconsistent with or contrary to their religious convictions or conscientious scruples. Spiller v Woburn (1866) 94 Mass 127. The pledge of allegiance to flag is an acknowledgment of sovereignty, promise of obedience, recognition of authority above will of the individual, to be respected and obeyed; it has nothing to do with religion. <<=26>> Nicholls v Lynn (1937) 297 Mass 65, 7 NE2d 577, 110 ALR 377. LEVEL 1 - 5 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 76. School Attendance Mass. Ann. Laws ch. 76, @ 12B (1995) @ 12B. School Choice Program; Attendance at Schools in Other Districts; Determination of Space Availability; Funding; Information System. (a) As used in this section, the following terms shall have the following meanings: "Above foundation reimbursement amount", (i) for fiscal year nineteen hundred and ninety-four, fifty percent of the net losses due to the provisions of this section; provided, however, that if the amount lost by said district pursuant to subsection (f) is greater than two percent of the total school budget of said district, the amount of said reimbursement shall be equal to seventy-five percent of the net losses due to the provisions of this section; (ii) for fiscal year nineteen hundred and ninety-five, twenty-five percent of the net losses due to the provisions of this section; (iii) for all fiscal years after nineteen hundred and ninety-five, zero. "Receiving district", any city, town or regional school district within the commonwealth in which a child does not reside, but in which that child attends public school under the provisions of this section. "Sending district", any city, town or regional school district within the commonwealth in which a child resides, but in which that child does not attend public school under the provisions of this section. "State school choice limit", in fiscal year nineteen hundred and ninety-four, one percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-five, one and one-half percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-six, one and three-quarters percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-seven and thereafter, two percent of the total number of students attending public schools in the commonwealth; provided, however, that students enrolled under the program for the elimination of racial imbalance as provided in section twelve A shall not be counted toward these limits. (b) Notwithstanding the provisions of section twelve, or any other special or general law to the contrary, any child may attend a public school, in a city or town where he does not reside; provided, however, that the receiving district shall be paid by the commonwealth a tuition rate as established in subsection (f) . (c) Not later than May first of every year, the school committee of each city, town or regional school district shall submit a report to the department stating: (1) The capacity of each school in said city, town or regional school district for the following academic year. (2) The number of students expected to attend each school in said city, town or regional school district in the following academic year. (3) The number of students attending said school district under the terms of this section in the prior school year and the number of those students who are expected no longer to be attending said school district in the next school year. (4) The number of additional seats therefore available to non-resident students reduced by the number of students enrolled under the program for the elimination of racial imbalance as provided in section twelve A, in said charter school or each school in said city, town or regional school district. The board may require every district to update this report in whatever manner is required to effectuate the objectives of this section. (d) Each city, town or regional school district shall enroll non-resident students at the school of such non-resident student's choice; provided, however, that such receiving district has seats available as stated in said report; provided, however, that this obligation to enroll non-resident students shall not apply to a district for a school year in which its school committee, prior to June first, after a public hearing, adopts a resolution withdrawing from said obligation, for the school year beginning the following September. Any such resolution of a school committee shall state the reasons therefor, and such resolution with said reasons shall be filed with the department of education; provided, however, that said department shall have no power to review any such decision by a school committee. If the city, town or regional school district operates an intra-district choice plan, non-resident students may apply for schools on the same basis as resident students, but the intra-district choice plan may give preference to resident students in assigning students to schools. (e) Not later than the first day of July, each city, town or regional school district shall each year submit a non-resident attendance report to the board and to the state treasurer, certifying the number of non-resident applicants for each available seat in each school, the disposition of their applications, how many of said applicants will be attending the district in the next school year, the identity of the sending districts for those students, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence. The board may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. In addition to the foregoing, all said districts shall, on October first and April first, report to the board and certify to the state treasurer accurate and up to date reports of all the information required in the non-resident attendance report. If the total number of students admitted to receiving districts pursuant to this section is greater than the state school choice limit, the board shall notify all districts that no more students may be accepted pursuant to this section. [Until June 30, 1995, subsections (f) and (g) read as follows:] (f) For each student enrolling in a receiving district, there shall be a school choice tuition amount. Said tuition amount shall be equal to seventy-five percent of the actual per pupil spending amount in the receiving district for such education as is required by such non-resident student, but not more than five thousand dollars; provided, however, that for special education students whose tuition amount shall remain the expense per student for such type of education as is required by such non-resident student. The state treasurer is hereby authorized and directed to deduct said school choice tuition amount from the total education aid, as defined in chapter seventy, of said student's sending district, prior to the distribution of said aid. In the case of a child residing in a municipality which belongs to a regional school district, the school choice tuition amount shall be deducted from said chapter seventy education aid of the school district appropriate to the grade level of the child. If, in a single district, the total of all such deductions exceeds the total of said education aid, this excess amount shall be deducted from other aid appropriated to the city or town. If, in a single district, the total of all such deductions exceeds the total state aid appropriated, the commonwealth shall appropriate this excess amount; provided, however, that if said district has exempted itself from the provisions of chapter seventy by accepting section fourteen of said chapter, the commonwealth shall assess said district for said excess amount. (g) The state treasurer is further directed to disburse to the receiving district an amount equal to each student's school choice tuition as defined in subsection (f) ; provided, however, that each public school district which admits children under the provisions of this section shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; and, provided further, that such certification shall be made on October first of each year and April first of each year. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. [From and after June 30, 1995, subsections (f) and (g) are amended to read as follows:] (f) For each student enrolling in a receiving district, there shall be a school choice tuition amount. Said tuition amount shall be equal to seventy-five percent of the actual per pupil spending amount in the receiving district for such education as is required by such non-resident student, but not more than five thousand dollars; provided, however, that for special education students whose tuition amount shall remain the expense per student for such type of education as is required by such non-resident student. The state treasurer is hereby authorized and directed to deduct said school choice tuition amount from the total education aid, as defined in chapter seventy, of said student's sending district, prior to the distribution of said aid and to deposit said aid in the School Choice Tuition Trust Fund established by section twelve C. In the case of a child residing in a municipality which belongs to a regional school district, the school choice tuition amount shall be deducted from said chapter seventy education aid of the school district appropriate to the grade level of the child. If, in a single district, the total of all such deductions exceeds the total of said education aid, this excess amount shall be deducted from other aid appropriated to the city or town. If, in a single district, the total of all such deductions exceeds the total state aid appropriated, the commonwealth shall appropriate this excess amount; provided, however, that if said district has exempted itself from the provisions of chapter seventy by accepting section fourteen of said chapter, the commonwealth shall assess said district for said excess amount. (g) The state treasurer is further directed to disburse to the receiving district, from the School Choice Tuition Trust Fund established by section twelve C, an amount equal to each student's school choice tuition as defined in subsection (f) ; provided, however, that each public school district which admits children under the provisions of this section shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; and, provided further, that such certification shall be made on October first of each year and April first of each year. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. (h) There shall be a parent information system established, maintained and developed by the board of education to disseminate to parents detailed and comparable information about each school system participating in the school choice program, so-called, which shall include, but not be limited to, information on special programs offered by the school, philosophy of the school, number of spaces available, transportation plans, class sizes, teacher/student ratios, and data and information on school performance that indicate its quality. Said information shall include the school profiles, so-called, developed pursuant to section one B of chapter sixty-nine. The board may include information regarding regional choice initiatives as deemed appropriate. The system shall have as its primary goal to ensure that all parents have an equal opportunity to participate in the program of interdistrict choice. The board of education, when disseminating this information shall encourage the parent and student to make at least one visit to the school of choice as part of the application procedure. (i) Subject to appropriation, the board of education shall develop and administer a school choice transportation reimbursement program for the purpose of providing reimbursement for the transportation of pupils enrolled under the provisions of this section. Pupils eligible for said reimbursement must be eligible to receive free or reduced cost lunches under eligibility guidelines promulgated by the federal government under <<=1>> 42 USC section 1758. The board may limit said reimbursement to a yearly amount. The types of transportation to be reimbursed pursuant to said program shall include, but need not be limited to, the following: (1) transportation by school buses provided by the sending or receiving district; (2) transportation provided by the parent or guardian of the child; (3) transportation provided by public transportation. All eligible pupils who attend a school district contiguous to the school district of residence of such pupil shall be eligible for said reimbursement. If cost-effective transportation alternatives exist for pupils who attend districts not contiguous to the school districts of residence of such pupil, the board may provide a transportation reimbursement. Said reimbursements may be paid to the district in which the pupil is enrolled, the district of residence of the student, or the parent, guardian or person acting as guardian of the student; provided, however, that said district or parent provide documentation of the transportation expenditure. The board of education shall promulgate regulations for the program to be placed on file with the joint committee on education, arts and humanities of the general court. The board of education shall disseminate information to parents and school systems detailing the availability of said transportation reimbursements. A full description of said school choice transportation reimbursement program shall be submitted to the house and senate committees on ways and means and shall not become effective until ninety days after said submission. Notwithstanding the second paragraph of section one, nothing in this section shall confer upon any student attending a private school any right to transportation or reimbursement therefor. (j) School committees may establish terms for accepting non-resident students; provided, however, that if the number of non-resident students applying for acceptance to said district exceeds the number of available seats, said school committee shall select students for admission on a random basis; provided, further, that said school committee shall conduct said random selection twice: one time prior to July first and one time prior to November first; provided, further, that no school committee shall discriminate in the admission of any child on the basis of race, color, religious creed, national origin, sex, age, ancestry, athletic performance, physical handicap, special need or academic performance or proficiency in the English language. The Massachusetts commission against discrimination, established by section fifty-six of chapter six, shall have jurisdiction to enforce the provisions of this section; provided, however, that all students described in subsection (m) shall be entitled to remain in the receiving districts they are attending or have been accepted to attend. Any school committee that accepts non-resident students under the provisions of this section shall notify each district from which it has accepted a non-resident student of its acceptance of that student; provided, however, that a school committee may not publicly release the names of students leaving or entering a district under the provisions of this section. Notwithstanding the preceding provisions of this paragraph, any sibling of a student already enrolled in the receiving district shall receive priority for admission to said district. (k) Any child accepted to attend a public school in a community other than the one in which he resides pursuant to this section shall be permitted to remain in that school system until his high school graduation, unless there is a lack of funding of the program as authorized by said sections. (l) Notwithstanding the provisions of this section or any general or special law to the contrary, any school district which admitted children on a private tuition basis prior to June thirtieth, nineteen hundred and ninety-one may continue, on that basis, to admit any child who attended its school system prior to that date, as well as any sibling or step-sibling of such child and any foster child residing in the home of such child. (m) Any student who, pursuant to the provisions of this section, has been attending or has been admitted to attend a public school of a city or town in which he does not reside and for whom the commonwealth has been paying tuition or, in the case of a student recently admitted, would be required to pay tuition in the coming year, shall be deemed to be a student admitted pursuant to paragraph (j) , and shall be subject to all of the provisions of this section; provided, however, that said students shall be allowed to remain in said school notwithstanding any determination of capacity or decision by the receiving district to withdraw made pursuant to this section. (n) Subject to appropriation, any sending district for which the provisions of subsection (f) result in a reduction in state aid shall be eligible to apply for a school choice reimbursement from the commonwealth. If net school spending in a sending district is greater than said foundation budget as defined in chapter seventy, the amount of said reimbursement shall be the above foundation reimbursement amount for that fiscal year. If net school spending in a sending district is less than said foundation budget, the amount of said reimbursement shall be equal to one hundred percent of the positive difference, if any, between (i) the amount transferred pursuant to subsection (f) , and (ii) the product of the number of students leaving the sending district and the average per pupil expenditure in the sending district for such education as is required by such nonresident student, for the period the child shall attend; provided, however, that if any district has exempted itself from the provisions of said chapter seventy by accepting section fourteen of said chapter seventy, the district shall be ineligible for a reimbursement under this subsection; provided, further, that if any district in which net school spending is greater than the foundation budget becomes a sending district for the first time in fiscal year nineteen hundred and ninety-five or any year thereafter, the reimbursement amount for that district in the first year that it is a sending district shall be the fiscal year nineteen hundred and ninety-four reimbursement amount; the reimbursement amount for the district in its second year as a sending district shall be the fiscal year nineteen hundred and ninety-five reimbursement amount. Said reimbursement application shall be submitted to the department of education on or before October first of each year together with an educational corrective action plan containing information, recommendations and suggestions relative to: (1) areas needing improvement within the school system of the applicant; (2) methods of improvement to be employed; (3) goals and objectives of said improvement; (4) evaluation and control methods to be used; (5) personnel to be engaged in such improvement; (6) results intended to be accomplished within one year from the date of application; and (7) methods of increasing parental involvement to be employed; provided, however, that any community or regional school district that has a previously approved plan need not refile said plan; and, provided further, that approval of said plan by said board shall act as a condition precedent to the distribution of said reimbursement to the applicant community or regional school district. Under no circumstances shall the total amount expended pursuant to subsections (h) and (i) and to reimburse sending districts pursuant to this paragraph, be greater than twenty million dollars. If, in any year, the total amount that would be required to reimburse said cities at said rates would be greater than twenty million dollars, then the reimbursement rates shall be reduced proportionately to those rates at which the total cost does not exceed twenty million dollars. (o) The commonwealth and the school committee of any town may accept funds from the federal government for the purposes of this section. Any amounts received by the school committee of any town from the federal government, from the commonwealth or from a charitable foundation or private institution shall be deposited with the treasurer of such town and held as a separate account, and may be expended by said school committee without further appropriation, notwithstanding the provisions of section fifty-three of chapter forty-four. Whenever such funds are received after the submission of the annual school budget, all or any portion thereof may be expended by the school committee without further appropriation, but shall be accounted for in the next annual school budget. HISTORY: 1966, 506; 1968, 622, @ 2; 1968, 735. Amended by 1991, 6, @ 23, approved March 22, 1991, by @ 96(a) , effective June 30, 1991; 1993, 71, @ 61, approved, with emergency preamble, June 18, 1993, by @ 105, effective upon passage; 1993, 151, @@ 39--41, approved Aug 19, 1993, by @ 150, effective upon passage; 1994, 60, @@ 97, 98, approved July 10, 1994, by @ 311B, effective June 30, 1995 (see 1994 note below) ; 1994, 60, @ 99, approved July 10, 1994, by @ 315, effective July 1, 1994. NOTES: EDITORIAL NOTE-- The first 1968 amendment struck out, in the first sentence of the second paragraph, "pursuant to the provisions of Public Law 89--10 of the Eighty-ninth Congress". The second 1968 amendment affected only the first paragraph, substituting "set and be paid a tuition rate which rate shall not exceed" for "be paid a sum equal to", and adding at the end of the paragraph a proviso relating to the acceptance of the sum set as tuition rate in a regional school district. The 1991 amendment rewrote the first paragraph, following "twelve,", inserting "or any other general or special law to the contrary,", preceding the first and second occurrences of "town", inserting "city or", following "fix,", inserting "if it chooses to admit nonresident students", substituting "provided, that" for "provided, however,", following "paid", inserting "by the commonwealth", following "tuition rate which", deleting "rate", following "for such school,", inserting "for such type of education as is required by such nonresident student,", substituting "and provided, further,", for "provided, however,", and added the second through the fifth sentences to the paragraph. The first 1993 amendment rewrote this section. Sections 67 and 105 of the amending act provide as follows: Section 67. This act shall apply to all cities, towns, and regional school districts, notwithstanding section twenty-seven C of chapter twenty-nine of the General Laws and without regard to any acceptance or appropriation by a city, town, or regional school district or to any appropriation by the general court. Section 105. Section sixty-one of this act shall take effect upon its passage; provided, however, that the provisions of subsections (c) , (d) , (h) , and (i) , and the requirement of random selection for admission in subsection (j) , of section twelve B of chapter seventy-six of the General Laws shall not apply with respect to the school year beginning in September of nineteen hundred and ninety-three. The second 1993 amendment, by @ 39, in the second sentence of subsection (f) , following "district" inserted "for such education as is required by such non-resident student"; by @ 40, in subsection (g) , added the proviso at the end of the first sentence and added the second through fourth sentences; and, by @ 41, substituted subsection (n) for one which read: "Subject to appropriation, any sending district for which the provisions of subsection (f) result in a reduction in state aid shall be eligible to apply for a school choice reimbursement from the commonwealth. If said sending district does not have a positive foundation gap, as defined in chapter seventy, the amount of said reimbursement shall be the above foundation reimbursement amount for that fiscal year. If said sending district does have a positive foundation gap, the amount of said reimbursement shall be equal to one hundred percent of the positive difference, if any, between (i) the amount transferred pursuant to subsection (f) , and (ii) the product of the number of students leaving the sending district and the average per pupil expenditure in the sending district; provided, however, that if any district has exempted itself from the provisions of said chapter seventy by accepting section fourteen of said chapter seventy, the district shall be ineligible for a reimbursement under this subsection; provided, further, that if any district that does not have a positive foundation gap becomes a sending district for the first time in fiscal year nineteen hundred and ninety-five or any year thereafter, the reimbursement amount for that district in the first year that it is a sending district shall be the fiscal year nineteen hundred and ninety-four reimbursement amount; the reimbursement amount for that district in its second year as a sending district shall be the fiscal year nineteen hundred and ninety-five reimbursement amount. Said reimbursement application shall be submitted to the department of education on or before October first of each year together with an educational corrective action plan containing information, recommendations, and suggestions relative to (1) areas needing improvement within the school system of the applicant, (2) methods of improvement to be employed, (3) goals and objectives of said improvement, (4) evaluation and control methods to be used, (5) personnel to be engaged in such improvement, (6) results intended to be accomplished within one year from the date of application, and (7) methods of increasing parental involvement to be employed; provided, however, that any community or regional school district that has a previously approved plan need not refile said plan; provided, further, that approval of said plan by said board shall act as a condition precedent to the distribution of said reimbursement to the applicant community or regional school district. Under no circumstances shall the total amount expended pursuant to subsections (h) and (i) and to reimburse sending districts, pursuant to this paragraph, be greater than twenty million dollars. If, in any year, the total amount that would be required to reimburse said cities at said rates would be greater than twenty million dollars, then the reimbursement rates shall be reduced proportionately to those rates at which the total cost does not exceed twenty million dollars.". The 1994 amendment, by @ 97, in subsection (f) , in the third sentence, added the words "and to deposit said aid in the School Choice Tuition Trust Fund established by section twelve C"; by @ 98, in subsection (g) , in the first sentence, after the words "receiving district", inserted ", from the School Choice Tuition Trust Fund established by section twelve C,"; and by @ 99, in subsection (j) , added a sentence which reads: "Notwithstanding the preceding provisions of this paragraph, any sibling of a student already enrolled in the receiving district shall receive priority for admission to said district." Section 311B of the amending act provides as follows: Section 311B. Sections ninety-seven, ninety-eight and one hundred shall take effect on June thirtieth, nineteen hundred and ninety-five. (Added by 1994, 126, @ 47, approved Sept 1, 1994, by @ 75, effective July 1, 1994) . Acts 1992, ch. 133, @ 6, entitled "An act making appropriations for the fiscal year nineteen hundred and ninety-three for the maintenance of the departments, boards, commissions, institutions and certain activities of the commonwealth, for interest, sinking fund and serial bond requirements and for certain permanent improvements", which was approved July 20, 1992, by @ 599, effective July 1, 1992, provides as follows: Section 6. Each public school district which admits children under the provisions of section twelve B of chapter seventy-six of the General Laws, as amended by section twenty-three of chapter six of the acts of nineteen hundred and ninety-one, shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; provided, however, that notwithstanding the provisions of said section twelve B of said chapter seventy-six for the fiscal year nineteen hundred and ninety-three the amount of tuition payable for an individual student shall be limited to seventy-five percent of the amount otherwise payable under the provisions of said section twelve B of said chapter seventy-six, but in no event shall said amount exceed five thousand dollars; except for special education students whose tuition shall remain that which is payable under the provisions of said section twelve B of said chapter seventy-six; and provided further, that such certification shall be made on October first, nineteen hundred and ninety-two and April first, nineteen hundred and ninety-three; and provided further, that, notwithstanding the provisions of section three of this act to the contrary, including its notwithstanding clause, or section sixteen of this act, the state treasurer shall deduct said itemized amounts from the distributions to be made to each city or town from item 7061-0008 of section two of this act prior to said distribution; and provided further, that the amounts so deducted shall be credited to item 0610-1500 of section two of this act. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of said section twelve B of said chapter seventy-six and this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. Notwithstanding the provisions of this section or any general or special law to the contrary, any school district which admitted children on a private tuition basis prior to June thirtieth, nineteen hundred and ninety-one may continue, on that basis, to admit any child who attended its school system prior to that date, as well as any sibling or step- sibling of such child and any foster child residing in the home of such child; provided, that any school system which admits children under the terms of this provision may also choose, or not choose, to admit children for whom the commonwealth pays the tuition required by section twelve B of chapter seventy-six of the General Laws. This paragraph shall not preclude any school system from admitting children, including those described above, under the provisions of said section twelve B of said chapter seventy-six of the General Laws. Notwithstanding the provisions of said section twelve B of said chapter seventy-six, or any other general or special law to the contrary, any child accepted to attend a public school in a community other than the one in which he resides may remain in that school system until the point of high school graduation regardless of any changes that may occur in the decision of the municipality to participate in this program, except a change which is based upon a lack of funding of the program as authorized by this section. There shall be a parent information system established, maintained and developed by the secretary of education to disseminate to parents detailed and comparable information about each school system participating in the school choice program, so called, which shall include, but not be limited to, information on special programs offered by the school, philosophy of the school, number of spaces available, transportation plans, class sizes, teacher/student ratios, and data and information on school performance that indicate its quality. The secretary of education, when disseminating this information shall encourage the parent and the student to make at least one on-site visit to the school of choice as part of the application procedure. FEDERAL ASPECTS-- Prohibition against use of appropriated federal funds for busing, <<=2>> 20 USCS @ 1228. Assignment or transportation of students generally, <<=3>> 20 USCS @@ 1651 et seq. Equal education opportunities and the transportation of students, <<=4>> 20 USCS @@ 1701 et seq. Desegregation of public education, generally, <<=5>> 42 USCS @@ 2000c et seq. CODE OF MASSACHUSETTS REGULATIONS-- School choice transportation reimbursement, 603 CMR 43.00 et seq. ANNOTATIONS-- Relief against school board's "busing" plan to promote desegregation. <<=7>> 50 ALR3d 1089. LEVEL 1 - 6 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 78A. Youth Conservation and Service Corps Mass. Ann. Laws ch. 78A, @ 6 (1994) @ 6. Requirements for Operation of Corps. In addition to other requirements established by the commission, the corps shall: (a) require members without a high school diploma to enroll in a program to attain a general equivalency diploma; (b) require sponsors to provide pre-service and in-service training, along with general education that increases members academic, vocational, and social skills; (c) comply with federal, state, and local health and safety standards; (d) have the endorsement of the regional employment board chair representing the geographic area where the members serve; (e) require sponsors to provide career and educational guidance and training; (f) demonstrate that special-needs populations have been offered the opportunity to enroll in corps programs; (g) not allow corps funds to be used to supplant or replace paid employees; and (h) take steps to insure that no member or member applicant is discriminated against because of the individual's race, color, religious creed, ancestry, sex, national origin, or disability. HISTORY: Added by 1993, 19, @ 19, approved March 9, 1993, by @ 50, effective upon passage. LEVEL 1 - 7 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 1 (1995) @ 1. Definitions. As used in this chapter 1. The term "person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and the commonwealth and all political subdivisions, boards, and commissions thereof. 2. The term "employment agency" includes any person undertaking to procure employees or opportunities to work. 3. The term "labor organization" includes any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment. 4. The term "unlawful practice" includes only those unlawful practices specified in section four. 5. The term "employer" does not include a club exclusively social, or a fraternal association or corporation, if such club, association or corporation is not organized for private profit, nor does it include any employer with fewer than six persons in his employ, but shall include the commonwealth and all political subdivisions, boards, departments and commissions thereof. Notwithstanding the provisions of any general or special law nothing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from giving preference in hiring or employment to members of the same religion or from taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained. 6. The term "employee" does not include any individual employed by his parents, spouse or child, or in the domestic service of any person. 7. The term "commission", unless a different meaning clearly appears from the context, means the Massachusetts commission against discrimination, established by section fifty-six of chapter six. 8. The term "age" unless a different meaning clearly appears from the context, includes any duration of time since an individual's birth of greater than forty years. 9. The term "housing or housing accommodations" includes any building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings. 10. The term "publicly assisted housing accommodations" includes all housing accommodations in (a) housing constructed after July first, nineteen hundred and fifty, and (1) which is exempt in whole or in part from taxes levied by the commonwealth or any of its political subdivisions; (2) which is constructed on land sold below cost by the commonwealth or any of its political subdivisions or any agency thereof, pursuant to the federal housing act of nineteen hundred and forty-nine; (3) which is constructed in whole or in part on property acquired or assembled by the commonwealth or any of its political subdivisions or any agency thereof through the power of condemnation or otherwise for the purpose of such construction; or (4) for the acquisition, construction, repair or maintenance of which the commonwealth or any of its political subdivisions or any agency thereof supplies funds or other financial assistance; (b) housing which is located in a multiple dwelling, the acquisition, construction, rehabilitation, repair or maintenance of which is, after October first, nineteen hundred and fifty-seven, financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof; provided, that such a housing accommodation shall be deemed to be publicly assisted only during the life of such loan and such guaranty or insurance; and (c) housing which is offered for sale, lease or rental by a person who owns or otherwise controls the sale of the same, and which is part of a parcel of ten or more housing accommodations located on land that is contiguous, exclusive of public streets, if (1) the acquisition, construction, rehabilitation, repair or maintenance of such housing accommodations is after October first, nineteen hundred and fifty-seven, financed in whole or in part by a loan whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof; provided, that such a housing accommodation shall be deemed to be publicly assisted only during the life of such loan and guaranty or insurance; or (2) a commitment issued by a government agency after October first, nineteen hundred and fifty-seven, is outstanding that acquisition of such housing accommodations may be financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof. 11. The term "multiple dwelling" means a dwelling which is usually occupied for permanent residence purposes and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. A "multiple dwelling" shall not be deemed to include a hospital, convent, monastery, asylum or public institution, or a fireproof building used wholly for commercial purposes except for not more than one janitor's apartment and not more than one penthouse occupied by not more than two families. The term "family", as used herein, means (a) a person occupying a dwelling and maintaining a household either alone or with not more than four boarders, roomers or lodgers; or (b) two or more persons occupying a dwelling, either living together and maintaining a common household, or living together and maintaining a common household with not more than four boarders, roomers or lodgers. A "boarder", "roomer" or "lodger" residing with a family means a person living within the household who pays a consideration for such residence and does not occupy such space within the household as an incident of employment therein. 12. The term "contiguously located housing" means (1) housing which is offered for sale, lease or rental by a person who owns or at any time has owned, or who otherwise controls or at any time has controlled, the sale of ten or more housing accommodations located on land that is contiguous (exclusive of public streets) , and which housing is located on such land, or (2) housing which is offered for sale, lease or rental and which at any time was one of ten or more lots of a tract whose plan has been submitted to a planning board as required by THE SUBDIVISION CONTROL LAW, as appearing in sections eighty-one K to eighty-one GG, inclusive, of chapter forty-one. 13. The term "other covered housing accommodations" includes all housing accommodations not specifically covered under subsections 10, 11 and 12 which are directly or through an agent made generally available to the public for sale or lease or rental, by advertising in a newspaper or otherwise, by posting of a sign or signs or a notice or notices on the premises or elsewhere, by listing with a broker, or by any other means of public offering. 14. The term "commercial space" means any space in a building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied for the manufacture, sale, resale, processing, reprocessing, displaying, storing, handling, garaging or distribution of personal property; and any space which is used or occupied, or is intended, arranged or designed to be used or occupied as a separate business or professional unit or office in any building, structure or portion thereof. 15. The term "housing development" means multi-apartment units operated as contiguously located housing accommodations. 16. The term "qualified handicapped person" means a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap. 17. The term "handicap" means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment. 18. The term "sexual harassment" shall mean sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment. 19. The term "handicapped person" means any person who has a handicap. 20. The term "major life activities" means functions, including, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 21. The term "accessible" means that housing is functional for and can be safely and independently used by a physically or mentally handicapped person and complies with rules or regulations established by the commission. HISTORY: 1946, 368, @ 4; 1950, 697, @@ 1, 2; 1957, 426, @@ 1, 6; 1959, 239, @ 1; 1962, 627; 1963, 197, @ 1; 1963, 469; 1963, 613, @ 1; 1965, 213, @ 1; 1966, 405; 1969, 216; 1979, 710, @ 1; 1983, 533, @ 2; 1984, 266, @ 4; 1986, 588, @ 2, approved December 9, 1986, effective 90 days thereafter; 1987, 473, @ 2, approved November 3, 1987, effective 90 days thereafter. Amended by 1989, 516, @ 1, approved Nov 15, 1989, effective 90 days thereafter; 1989, 722, @@ 11, 12, approved Jan 13, 1990, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- Section 1 of the inserting act provides as follows: Section 1. The right to work without discrimination because of race, color, religious creed, national origin or ancestry is hereby declared to be a right and privilege of the inhabitants of the commonwealth. The 1950 amendment, by @ 1, added to paragraph 5 "in all respects except with respect to age", and by @@ 2, inserted paragraph 8. The 1957 amendment by @ 1 added subdivisions 9 through 11 (relative generally to housing accommodations) , and by @ 4 changed "unlawful employment practice" to "unlawful practice" twice in subdivision 4. The 1959 amendment added subsection 12. The 1962 amendment, in subsection 5, deleted at the end thereof, "in all respects except with respect to age". The first 1963 amendment added subsection 13. The second 1963 amendment, in subsection 7, changed the designation "Massachusetts fair employment practice commission" to "Massachusetts commission against discrimination". The third 1963 amendment, in subsection 9, substituting "housing or housing accommodations" for "housing accommodation". The 1965 amendment inserted subsection 14. The 1966 amendment rewrote subsection 8, making the term "age" include anyone between 40 and 65, in place of the former 45 and 65. The 1969 amendment rewrote subsection 5 to provide that a religious institution or organization which limits membership, enrollment, etc., to members of that religion may give preference in hiring or employment to members of the same religion. The 1979 amendment added subsection 15, "housing development.". The 1983 amendment added subsections 16 and 17, defining, respectively, a "qualified handicapped person" and a "handicapped person". The 1984 amendment rewrote the definition of "age" in subsection 8. The 1986 amendment added subsection 18 defining "sexual harassment". The 1987 amendment, in the opening clause of the first sentence of subsection 18, preceding "physical conduct", inserted "verbal or" and, in clause (b) , preceding "work performance", substituted "individual's" for "individuals". The first 1989 amendment, in the second sentence of subsection 5, defining "employer", inserted "Notwithstanding the provisions of any general or special law" at the beginning of the sentence, and added at the end a provision allowing religious or denominational groups to take action with respect to employment, discipline, faith, etc. on religious grounds. Sections 17 through 20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. The second 1989 amendment, by @ 11, in subsection 17, substituted the definition of "handicap" for "handicapped person", and by @ 12, added subsections 19-21, defining "handicapped person", "major life activities" defining "accessible", respectively. Acts 1994, 37, @@ 1--10, entitled "An act empowering the Boston Fair Housing Commission to impose civil penalties and enforce by judicial power the provisions of title VIII", which was approved June 7, 1994, by @ 11, effective upon passage, provide as follows: Section 1. The following words used in this act shall have the following meanings: "Aggrieved person", any person who claims to have been injured by a discriminatory housing practice or believes such person will be injured by a discriminatory housing practice that is about to occur. "Commission", the Boston Fair Housing Commission. "Housing accommodations", any building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied as the home, residence or sleeping place of one or more human beings and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof. "Person", includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and the commonwealth and all political subdivisions and boards or commissions thereof. "Source of income", shall not include income derived from criminal activity. Section 2. Subject to the provisions of section five, classes protected by this act shall include race, color, religious creed, marital status, handicap, military status, children, national origin, sex, age, ancestry, and source of income. Section 3. All housing accommodations in the city of Boston shall be subject to this act, except as hereinafter provided. Nothing in this act shall apply to housing accommodations which are specifically exempted from coverage by this act, Title VIII of the Civil Rights Act of 1988, as amended, <<=1>> 42 U.S.C. Sections 3601 et seq. or chapter one hundred and fifty- one B of the General Laws. Nothing in this act shall apply to the leasing or rental to two or fewer roomers, boarders, or lodgers who rent a unit in a licensed lodging house. Section 4. Nothing in this act shall prohibit a religious organization, association or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of housing accommodations which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, marital status, handicap, military status, children, national origin, sex, age, ancestry, or source of income. Section 5. In the city of Boston, discriminatory housing practices are prohibited; provided, however, that no practice shall be prohibited hereunder unless such practice is also prohibited by the federal Fair Housing Act or chapter one hundred and fifty-one B of the General Laws. Section 6. Any person who violates the provisions of this act as to discriminatory housing practices shall, pursuant to the provisions of section seven, be subject to orders, temporary, equitable and legal, including compensatory damages, punitive damages or civil penalties and attorney's fees and costs. Section 7. The commission, established pursuant to chapter ten of the city of Boston Ordinance of 1982, as amended, shall, in addition to every other power heretofore or hereafter provided by statute or ordinance, have jurisdiction of all housing accommodations subject to this act. The commission shall have the following powers and duties as to such housing accommodations, except as to those housing accommodations in any building or structure containing one, two, three or four dwelling units, one of which is occupied by the owner thereof as his permanent residence. At any time after the filing of a complaint, and before or after the final disposition of a complaint, the commission may file a petition in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth seeking appropriate preliminary, temporary and/or injunctive relief against such respondent including orders or decrees restraining and enjoining the selling, renting or otherwise making unavailable to the complainant any housing accommodations with respect to which the complaint is made, pending the final determination of proceedings under this act. If the commission, after hearing, finds that a respondent has engaged in any unlawful practice as set forth in section five, it shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful practice or violation. Such cease and desist orders and orders for affirmative relief may be issued to operate prospectively. Any such cease and desist order shall be subject to judicial review pursuant to section eight of this act. If the commission, after hearing, shall find that a respondent has engaged in any unlawful practice relative to housing or real estate, as set forth in section five, in addition to any other action it may take under this act, the commission may: (1) Award damages to the aggrieved party which damages shall include, but shall not be limited to, the expense incurred by the aggrieved party for obtaining alternate housing or space, for storage of goods and effects, for moving and for other costs actually incurred as a result of such unlawful practice or violation. Damages for emotional distress may also be awarded to the aggrieved party. Any respondent aggrieved by such an award of damages may, within ten days of notice of such award, bring a petition in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth addressed to the justice of the court, praying that the action of the commission in awarding damages be reviewed by said court; (2) Assess a civil penalty against the respondent, (a) in an amount not to exceed ten thousand dollars if the respondent has not been adjudged to have committed a prior discriminatory housing practice; (b) in an amount not to exceed twenty-five thousand dollars if the respondent has been adjudged to have committed one other discriminatory housing practic during the five year period ending on the date of the filing of the complaint; and (c) in an amount not to exceed fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven year period ending on the date of the filing of the complaint. Any such penalties assessed hereunder shall be deposited in a trust fund to be administered by the city of Boston to be used solely for programs that benefit publicly assisted housing residents in the city of Boston; (3) Arrange to have adjudicated in court, at the commission's expense, the award of punitive damages against such respondent; and. (4) Arrange to have adjudicated in court, the allowance of reasonable attorney's fees and costs to any prevailing aggrieved person unless special circumstances make the recovery of such fees and costs unjust. The complainant alleging violations of this act shall be liable for attorney's fees and costs to the extent that his participation was frivolous, vexatious or for the purpose of harassment. The commission shall promulgate rules and regulations consistent with those of the Massachusetts commission against discrimination to effectuate the goals, policies and provisions of this act. The Massachusetts law of evidence shall apply in all proceedings before the commission. Section 8. The actions of the commission shall be subject to judicial review upon application as provided herein by any party aggrieved by a final order of the commission. Judicial review of a final commission order shall be in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth which shall have the authority to grant to any party, such temporary relief, restraining order, or other order as the court determines is just and proper. The reviewing court shall affirm, modify, or set aside, in whole or in part, the order, or remand the order for further proceedings and enforce the order to the extent that the order is affirmed or modified. Section 9. An aggrieved person, with or without filing a complaint at the commission and without regard to the status of such complaint, may commence a civil action in a court of competent jurisdiction not later than two years after the occurrence or termination of a discriminatory housing practice, or the breach of a conciliation agreement entered into with the commission, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach; provided, however, that if an aggrieved person has consented to a conciliation agreement, such aggrieved person may not file a civil action with respect to the alleged discriminatory housing practice which forms the basis for such complaint except for the purpose of enforcing such agreement; and provided, further, that an aggrieved person may not commence a civil action with respect to an alleged discriminatory housing practice if a hearing commissioner determines that probable cause exists and a hearing has commenced before the commission. The computation of such two year period as to an alleged discriminatory housing practice, but not as to a breach of a conciliation agreement, shall not include any time during which an administrative proceeding is pending with respect to a complaint based upon such discriminatory housing practice. If the court finds that a discriminatory housing practice has occurred or is about to occur, an aggrieved person shall have available any and all remedies pursuant to this act. This section does not preclude the right of any aggrieved person to seek relief under chapter one hundred and fifty-one B of the General Laws. Section 10. This act is to be interpreted consistent with the provisions of Title VIII of the Civil Rights Act of 1988, as amended, <<=2>> 42 U.S.C. Sections 3601 et seq. and chapter one hundred and fifty-one B of the General Laws. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:21, 8:33, 8:38. ANNOTATIONS-- Power of municipal corporation to enact civil rights ordinance. <<=3>> 93 ALR2d 1028. Civil rights: actionability under state statutes of discrimination because of complaining party's association with persons of different race, color, or the like. <<=4>> 35 ALR3d 859. Construction and operation of "equal opportunities clause" requiring pledge against racial discrimination in hiring under construction contract. <<=5>> 44 ALR3d 1283. Discrimination in provision of municipal services or facilities as civil rights violation. <<=6>> 51 ALR3d 950. What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. <<=7>> 33 ALR4th 964. Exclusion or expulsion from association or club as violation of state civil rights act. <<=8>> 38 ALR4th 628. Award of attorneys' fees under @ 706(k) of Civil Rights Act of 1964 <<=9>> (4 2 USCS @ 2000e-5(k) ) authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission or United States, reasonable attorney's fee as part of costs in action under equal employment opportunities part of Act. <<=10>> 16 ALR Fed 643. Exhaustion of state administrative remedies as prerequisite to federal civil rights action based on <<=11>> 42 USCS @ 1983. <<=12>> 47 ALR Fed 15. Right of employee under Title VII of Civil Rights Act of 1964 <<=13>> (42 USCS @ 2000e) to remedy for present and continuing loss of benefits resulting from past discrimination for which Title VII relief is not available. <<=14>> 49 ALR Fed 693. Employer's discharge of employee as unlawful employment practice in violation of @ 704(a) of Civil Rights Act of 1964 <<=15>> (42 USCS @ 2000e-3(a) ) where basis for discharge is employee's opposition to discriminatory conduct of co-worker. <<=16>> 49 ALR Fed 712. Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 <<=17>> (42 USCS @ 2000e(b) ) for action against "employer." <<=18>> 49 ALR Fed 900. Circumstances in Title VII employment discrimination cases <<=19>> (42 USCS @@ 2000e et seq.) which warrant finding of "constructive discharge" of discriminatee who resigns employment. <<=20>> 55 ALR Fed 418. Admissibility, in action under Title VII of the Civil Rights Act of 1964 <<=21>> (42 USCS @@ 2000e et seq.) , of evidence of discriminatory practices predating the Act. <<=22>> 63 ALR Fed 891. Validity, construction, and application of provisions of @ 702 of Civil Rights Act of 1964 <<=23>> (42 USCS @ 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. <<=24>> 67 ALR Fed 874. Meaning of term "employer" as defined in @ 701(b) of Title VII of Civil Rights Act of 1964, as amended <<=25>> (42 USCS @ 2000e(b) ) , <<=26>> 69 ALR Fed 191. Who is "employee" within meaning of Age Discrimination in Employment Act <<=27>> (29 USCS @@ 621-634) , <<=28>> 69 ALR Fed 700. "Bona fide employee benefit plan" exception to general prohibition of age discrimination in employment <<=29>> (29 USCS @ 623(f) (2) ) . <<=30>> 70 ALR Fed 110. Employee committee or similar group as "labor organization" under the National Labor Relations Act <<=31>> (29 USCS @@ 151 et seq.) . <<=32>> 75 ALR Fed 262. What constitutes violation of <<=33>> 18 USCS @ 245(b) , prohibiting interference with civil rights. <<=34>> 76 ALR Fed 816. LAW REVIEWS-- Daly, Some runs, some hits, some errors--keeping score in the affirmative action ballpark from Weber v Johnson. 30 Boston College L Rev 1, December, 1988. 1987-1988 annual survey of labor relations and employment discrimination law. 30 Boston College L Rev 99, December, 1988. George, The back door: legitimizing sexual harassment claims. <<=35>> 73 BU L Rev 1, January 1993. The right to equal treatment: Administrative enforcement of antidiscrimination legislation. 74 Harvard L Rev 526. Schreiber, Massachusetts employment discrimination law. 63 Mass L Rev 247, December, 1978. Rousseau, The AIDS epidemic and the issues in the workplace. 72 Mass L Rev 51, June, 1987. Sager, Rights protected by the Massachusetts Civil Rights Act against interference on account of race or color. 17 Suffolk U L Rev 53, Spring, 1983. FORM See forms in printed version. CASE NOTES ALM GL c 151B @ 4(6) prohibits discrimination because of race, creed, color or national origin in renting or leasing of accommodations in multiple dwellings as defined in ALM GL c 1518 @ 1 clause 11. <<=40>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. For case where apartment was found to come within meaning of "other covered housing accommodations" under paragraph 13 of this section, see La Pierre v Massachusetts Com. against <<=41>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Labor union was not "person aggrieved" by company's discriminatory practice but could have standing in certain circumstances to represent members who suffered injury. Massachusetts Electric Co. v Massachusetts Com. against <<=42>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Denial of promotion to public employee because of her sex is constitutionally impermissible and violates statutory proscriptions. <<=43>> Blue Hills Regional Dist. School Committee v Flight (1981) 383 Mass 642, 421 NE2d 755. Common-law rule that labor unions as unincorporated voluntary associations are not legal entities for the purpose of suing or being sued abrogated. <<=44>> Diluzio v United Electrical, Radio & Machine Workers (1982) 386 Mass 314, 435 NE2d 1027, 95 CCH LC 55362, later app <<=45>> 391 Mass 211, 461 NE2d 766. Provisions of ALM GL c 151B were not applicable in case of alleged sexual harassment by employee's supervisor, because employer had fewer than 6 employees. <<=46>> O'Connell v Chasdi (1987) 400 Mass 686, 511 NE2d 349. Legislature's definition of sexual harassment in work place is applicable to sexual harassment in context of housing. Gnerre v Massachusetts Com. against <<=47>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Amendment made by St. 1989 c 516 @@ 1, 14 broadened statutory exemption previously accorded religious institutions and organizations and certain affiliated charitable or educational organizations from anti-discrimination provisions of ALM GL c 151B. <<=48>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Effect of 1989 amendment (St. 1989, c 516, @@ 1, 14) is that, where action involved is calculated to promote religious principles for which organization is established or maintained, religion and affiliated organizations are not subject to various provisions of ALM GL c 151B. <<=49>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Where telephone company employee who had suffered cognitive deficits after motor vehicle accident failed to carry his burden of proving that "gaff climbing" (climbing pole with pointed blades attached to legs) was not essential function of job he sought and failed gaff climbing test on two occasions, judge properly found that employee was not "qualified handicapped person" entitled to protection of ALM GL c 151B. <<=50>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Employee who was not "qualified handicapped person" capable of performing job of "splice service technician" for telephone company was not entitled to relief under ALM GL c 151B. <<=51>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Court may look to Federal Rehabilitation Act of 1973 [<<=52>> 29 USCS @ 794] and decisions construing and applying it for guidance in construing and applying Massachusetts employment discrimination statute in which discrimination on account of handicap is alleged. <<=53>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Whether job function is "essential" or accommodation is "reasonable" for purposes of statute prohibiting employment discrimination against handicapped persons is legal conclusion subject to review. <<=54>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. 51-year-old plaintiff was within class of persons protected by age discrimination laws. <<=55>> Fontaine v Ebtec Corp. (1993) 415 Mass 309, 613 NE2d 881, summary op at (Mass) 21 M.L.W. 2637. Massachusetts Commission Against Discrimination correctly dismissed complaint against employer for alleged sexual discrimination on three distinct grounds, sexual harassment, unequal pay and denial of promotion, where employee did not take offense to or decline to participate in sexually-oriented conversations and activities, and therefore did not establish prima facie case of sexual discrimination. <<=56>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Employee claiming that employer refused to promote him to higher level of management prior to his retirement did not introduce enough evidence to make out prima facie case. <<=57>> Connors v New England Tel. & Tel. Co. (1986) 22 Mass App 243, 492 NE2d 1188, review den <<=58>> 398 Mass 1101, 495 NE2d 310. Person with heart disease known to employer at time of hiring and otherwise able to perform work qualifies for special protections of ALM GL c 151B @ 4(16) , prohibiting discrimination in employment because of handicap. <<=59>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. Unless target of discrimination complaint elects judicial determination after Massachusetts Commission Against Discrimination makes finding of probable cause of unlawful conduct, Commission adjudicates complaint. <<=60>> Commonwealth v Dowd (1994) 37 Mass App 164, 638 NE2d 923. The provisions of public construction contract forbidding discrimination in employment on basis of race, color, creed, etc. and requiring that maximum percentage of employees in all categories (if such qualified persons could be found) shall be members of minority group is not unconstitutional and is compatible with provisions of ALM GL c 151B. <<=61>> Associated General Contractors, Inc. v Altshuler (DC Mass) 361 F Supp 1293, affd (CA1 Mass) <<=62>> 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=63>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Provision of public building construction contract in Massachusetts which required contractors to maintain minimum of 20 percent minority workers in each job category, while failing to make provision unconstitutional, placed burden on contractor to show he made every possible effort to comply with provision. <<=64>> Associated General Contractors, Inc. v Altshuler (1973, DC Mass) 361 F Supp 1293, 5 BNA FEP Cas 1105, 6 CCH EPD 8992, affd (CA1 Mass) <<=65>> 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=66>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Claim for relief under ALM GL c 151B @ 1 is stated by untenured elementary school teacher who sues school committee and others alleging that defendant violated federal and state laws by denying teaching opportunity because of plaintiff's sex and by subjecting her to retaliation for making complaints to state antidiscrimination commission where school teacher alleges that, following return from pregnancy resignation and reactivation of her application for permanent position, she was not assigned position of employment although positions for which she qualified were available and where she alleges that principal told her she was "2-time loser" and that he would not recommend her for full time or permanent teaching position in referring to fact that she was pregnant for third time. <<=67>> Mamos v School Committee of Wakefield (1983, DC Mass) 553 F Supp 989, 30 BNA FEP Cas 1051. Handicap discrimination claim of former coordinator of machine parts control (MPC) unit of envelope maker must be denied summarily, where coordinator was laid off as part of force reduction involving substantial curtailment or even elimination of MPC unit, even though 7 of 8 employees tied to serious health conditions like coordinator's heart condition were also laid off, because coordinator does not dispute that in past employer had been supportive and accommodating with regard to work absences due to condition, and nothing in record besides weak statistical evidence permits inference that condition was considered in decision to terminate him. <<=68>> Martin v Envelope Div. of Westvaco Corp. (1994, DC Mass) 850 F Supp 83, 3 AD Cas 372, summary op at (DC Mass) 22 M.L.W. 1784. LEVEL 1 - 8 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 3 (1994) @ 3. Functions, Powers and Duties of Commission. The commission shall have the following functions, powers and duties: 1. To establish and maintain its principal office in the city of Boston and such other offices within the commonwealth as it may deem necessary. 2. To meet and function at any place within the commonwealth. 3. To appoint such attorneys, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties. 4. To obtain upon request and utilize the services of all executive departments and agencies. 5. To adopt, promulgate, amend, and rescind rules and regulations suitable to carry out the provisions of this chapter, and the policies and practice of the commission in connection therewith. 6. To receive, investigate and pass upon complaints of unlawful practices, as hereinafter defined, alleging discrimination because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, children, marital status, veteran status or membership in the armed services, the receiving of public assistance, or handicap of any person alleging to be a qualified handicapped person. The term " shall mean having an orientation for or being identified as having an orientation for heterosexuality, bisexuality, or homosexuality. The commission through its chairman may appoint a single commissioner to hold public hearings, as hereinafter provided, and to otherwise act on its behalf in connection therewith; provided, however, that a person aggrieved by the decision of said single commissioner may, within ten days of said decision, file an appeal for rehearing or review by the commission. 7. To hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the commission. The commission may make rules as to the issuance of subpoenas by individual commissioners. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the commission, on the ground that the testimony or evidence required by him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. 8. To create such local or regional advisory boards as in its judgment will aid in effectuating the purposes of this chapter. Each advisory board shall consist of not less than eleven members. To the extent reasonably possible the members of each board shall include representatives of owners and brokers of residential property; major lending and credit institutions; major private employers; a local personnel or civil service administrator; local post-secondary educational institutions; local labor organizations; minority racial, ethnic and linguistic groups; women; elderly and handicapped persons; and recipients of public assistance. The members of such advisory boards shall serve without pay but shall be reimbursed for their actual and necessary expenses. The commission may provide technical and clerical assistance to the advisory boards. 9. To issue such publication and such results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry. 10. To render each year to the governor and to the general court a full written report of its activities and of its recommendations. 11. To adopt an official seal. 12. To give its opinion upon questions submitted to it by any employer, employment agency or labor organization concerning whether any existing or proposed requirement for employment or for membership in such organization is a bona fide occupational qualification. Copies of such opinion shall be maintained in the files of the commission at its office and shall be available during regular business hours for public inspection. An opinion, or a request therefor, given under this subsection shall not operate to interfere with any proceeding under section five. 13. To adopt, promulgate, amend, and rescind rules and regulations, jointly with the attorney general, for the purpose of carrying out the provisions of subsection 13 of section four, including special regulations applicable to neighborhoods or areas found by the commission, with the concurrence of the attorney general, to be threatened with deterioration or instability associated with the entry or prospective entry into such neighborhoods or areas of a person or persons of a particular age, race, color, religion, national or ethnic origin, or economic level. 14. To accept gifts, contributions or bequests of funds or other aid from any source, whether public or private and from federal, state or other governmental bodies for the purpose of furthering the commissions mandate; provided, however, that all amounts received pursuant to this paragraph shall be deposited with the treasurer and made available to the commission for expenditure for any purposes authorized by this chapter. HISTORY: 1946, 368, @ 4; 1950, 697, @@ 3, 4, 5; 1960, 163, @ 1; 1965, 397, @@ 1, 2, 3; 1966, 410; 1968, 218; 1969, 877; 1971, 923; 1972, 786, @ 1; 1976, 463, @ 2; 1983, 533, @ 3. Amended by 1989, 516, @@ 2, 3, approved Nov 15, 1989, effective 90 days thereafter; 1990, 150, @@ 318, 319, approved Aug 1, 1990, by @ 383, effective July 1, 1990; 1991, 323, @ 1, approved Nov 27, 1991, effective 90 days thereafter; 1992, 286, @ 221, approved, with emergency preamble, Dec 23, 1992. NOTES: EDITORIAL NOTE-- The 1950 amendment, in paragraph 6, 8 and 9, inserted "age". The 1960 amendment, in paragraph 6, following "complaints", inserted "of unlawful practices, as hereinafter defined," and following "discrimination", deleted "in employment". The 1965 amendment made paragraphs 6, 8 and 9 cover discrimination because of sex. The 1966 amendment added paragraph 12. The 1968 amendment rewrote the second sentence of paragraph 12 to provide that copies of opinions shall be maintained in the files of the commission and shall be available for public inspection. The 1969 amendment, in paragraph 1, provided for the establishment of an office in Worcester. The 1971 amendment added a sentence to paragraph 6 relative to the appointment of a commissioner to hold hearings, and to an appeal from his decision. The 1972 amendment added paragraph 13. Section 3 of the amending act provides as follows: Section 3. The provisions of this act shall not be construed as limiting or impairing the provisions of any other law, rule, regulation, ordinance, or by-law designed to protect sellers or buyers of residential property or to prevent conduct inimical to the stability, development, or safety of residential areas. The 1976 amendment rewrote paragraph 8 to provide for the creation of local or regional advisory boards of at least 11 members with specified community representation, rather than local, regional or state-wide advisory agencies and conciliation councils as formerly, and to delete an enumeration of certain problems which the commission might empower such groups to study. The 1983 amendment rewrote the first sentence of paragraph 6, including therein discrimination because of the handicap of any person alleging to be a qualified handicapped person. The 1989 amendment, by section 2, in the first sentence of paragraph 6, inserted the reference to and inserted a new second sentence defining ", and by section 3, in paragraph 9, changed "publications" to "publication", and inserted the reference to Sections 17-20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. The 1990 amendment, by @ 318, in paragraph 1, deleted "an office in the city of Worcester", and by @ 319, added paragraph 14. The 1991 amendment, in the first sentence of paragraph6 inserted ", children, marital status, veteran status or membership in the armed services, the receiving of public assistance," following "ancestry". The 1992 amendment substituted paragraph 1, for one which read: "To establish and maintain its principal office in the city of Boston,, and such other offices within the commonwealth as it may deem necessary.". CODE OF MASSACHUSETTS REGULATIONS-- Commission against discrimination; rules of procedure, 804 CMR 1.01 et seq. Discrimination in housing, 804 CMR 2.01 through 2.04. Guidelines for discrimination in employment, 804 CMR 3.01. Sex discrimination in employment, 804 CMR 3.02. Discrimination in credit, 804 CMR 7.01 et seq. Sex discrimination in employment with respect to maternity leave, 804 CMR 8.01. Hearings on compliance with equal employment policy and anti-discrimination and affirmative action plan, 804 CMR 9.01 et seq. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:59, 8:66, 8:77. ANNOTATIONS-- Application of state law to sex discrimination in employment. <<=8>> 87 ALR3d 93. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. <<=9>> 76 ALR4th 310. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. <<=10>> 78 ALR4th 265. Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap. <<=11>> 81 ALR4th 144. Age discrimination claimant's right to suit in federal court as affected by manner and timeliness of claimant's resort to state remedies under @ 14(b) of Age Discrimination in Employment Act <<=12>> (29 USCS @ 633(b) ) . <<=13>> 56 ALR Fed 627. When will Federal Government employee be excused from 30-day limitation period, established by Equal Employment Opportunity Commission regulation (29 CFR @ 1613.214(a) (1) (i) ) , for bringing matters relating to employment discrimination to attention of Equal Employment Opportunity Counselor. <<=14>> 57 ALR Fed 116. Validity, construction, and application of provisions of @ 702 of Civil Rights Act of 1964 <<=15>> (42 USCS @ 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. <<=16>> 67 ALR Fed 874. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended <<=17>> (42 USCS @@ 2000e et seq.) . <<=18>> 78 ALR Fed 252. LAW REVIEWS-- Schreiber, Massachusetts Employment Discrimination Law. 63 Mass L Rev 247, December, 1978. Schreiber, Employment Applications--What Massachusetts Employers Can and Cannot Ask. 65 Mass L Rev 69, March--April, 1980. FORM See forms in printed version. CASE NOTES Massachusetts Commission Against Discrimination has power to issue subpoena duces tecum for production of books and records during investigation and before finding of probable cause, as well as during hearing stage of proceedings. Massachusetts Com. against Discrimination v Liberty Mut. Ins. Co. (1976) <<=21>> 371 Mass 186, 356 NE2d 236, 14 BNA FEP Cas 733, 13 CCH EPD 11494. Massachusetts Commission Against Discrimination is not authorized by statute or rule to allow bringing of class action. Massachusetts Electric Co. v Massachusetts Com. against <<=22>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. When rehearing before full commission of single commissioner's finding is not sought, function of full commission is to review record before single commissioner, and full commission may reach different ultimate conclusions and apply principles of law differently but may not disregard basic factual findings of single commission supported by record. Smith College v Massachusetts Com. against <<=23>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. Massachusetts Commission Against Discrimination rule on continuing violations, allowing filing of complaint within 6 months of alleged unlawful conduct, is not inconsistent with limitation expressed in ALM GL c 151B @ 5. Rock v Massachusetts Com. against <<=24>> Discrimination (1981) 384 Mass 198, 424 NE2d 244, 41 BNA FEP Cas 1351, 27 CCH EPD 32163. Massachusetts Commission Against Discrimination may issue interrogatories and apply default sanctions pursuant to Rule 11 of its procedural rules. University Hospital, Inc. v Massachusetts Com. against <<=25>> Discrimination (1986) 396 Mass 533, 487 NE2d 506, 40 BNA FEP Cas 225, 43 CCH EPD 37050. Massachusetts Commission Against Discrimination is given authority to adjudicate discrimination claims. <<=26>> Brunson v Wall (1989) 405 Mass 446, 541 NE2d 338. Full commission of Massachusetts Commission Against Discrimination is required, on appeal, to review record which was before hearing commissioner, and should accept facts found by hearing commissioner unless they are unsupported by substantial evidence. <<=27>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Person who feels that his or her rights under ALM GL c 151B @ 4(1) have been violated may file complaint with Massachusetts Commission Against Discrimination which has power to hold hearings and render judgments regarding claims of unlawful discrimination. <<=28>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Where plaintiff lied to employer at time of interview about her intention of having more children, discharge of plaintiff two months later when plaintiff told employer she was pregnant was lawful. <<=29>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. Evidence of plaintiff's emotional distress was admissible on issue of damages but not on issue of liability for unlawful discrimination in employment because of sex. <<=30>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. Proceedings of Commission Against Discrimination are judicial in nature; party subject to adjudicatory proceedings at Commission will have full and fair opportunity to litigate constitutional concerns, such as pre-emption and Commerce Clause Claims, in those proceedings, as well as in courts of Commonwealth in reviewing any decision of Commission, such that federal court will not enjoin adjudicatory proceedings of Commission. Brotherhood of Locomotive Engineers v Commonwealth of Massachusetts Com. against <<=31>> Discrimination (1988, DC Mass) 695 F Supp 1321, 48 BNA FEP Cas 25, 47 CCH EPD 38366. Subsections 6 and 7 of ALM GL c 151B @ 3 provide ample authority for issuance of subpoenas in connection with investigation. 1968-1969 Op AG 95. Chairman of Massachusetts Commission Against Discrimination, in acting on complaints pursuant to said commissioner's duties under ALM GL c 151B, may consider residency requirements of Commonwealth's public housing units as unconstitutionally discriminatory. 1971-1972 Op AG 30. LEVEL 1 - 9 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 4 (1995) @ 4. Unlawful Practices; Certain Records to be Kept; Employer, etc., Not Required to Grant Preferential Treatment to Any Individual or Group. It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. 1A. It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual. No individual who has given notice as hereinafter provided shall be required to remain at his place of employment during any day or days or portion thereof that, as a requirement of his religion, he observes as his sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his place of employment and his home, provided, however, that any employee intending to be absent from work when so required to his or her creed or religion shall notify his or her employer not less than ten days in advance of each absence, and that any such absence from work shall, wherever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time. Nothing under this subsection shall be deemed to require an employer to compensate an employee for such absence. "Reasonable Accommodation", as used in this subsection shall mean such accommodation to an employee's or prospective employee's religious observance or practice as shall not cause undue hardship in the conduct of the employer's business. The employee shall have the burden of proof as to the required practice of his creed or religion. Undue hardship, as used herein, shall include the inability of an employer to provide services which are required by and in compliance with all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee's presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee's presence is needed to alleviate an emergency situation. The employer shall have the burden of proof to show undue hardship. 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. 1C. For the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law. 2. For a labor organization, because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, or ancestry of any individual, or because of the handicap of any person alleging to be a qualified handicapped person, to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer unless based upon a bona fide occupational qualification. 3. For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry or record in connection with employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry, or the handicap of a qualified handicapped person or any intent to make any such limitation, specification or discrimination, or to discriminate in any way on the ground of race, color, religious creed, national origin, sex, age, ancestry or the handicap of a qualified handicapped person, unless based upon a bona fide occupational qualification. 3A. For any person engaged in the insurance or bonding business, or his agent, to make any inquiry or record of any person seeking a bond or surety bond conditioned upon faithful performance of his duties or to use any form of application in connection with the furnishing of such bond, which seeks information relative to the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, or ancestry of the person to be bonded. 3B. For any person whose business includes granting mortgage loans or engaging in residential real estate-related transactions to discriminate against any person in the granting of any mortgage loan or in making available such a transaction, or in the terms or conditions of such a loan or transaction, because of race, color, religion, sex, which shall not include persons whose involves minor children as the sex object, children, national origin, ancestry, age or handicap. Such transactions shall include, but not be limited to: (1) the making or purchasing of loans or the provision of other financial assistance for purchasing, constructing, improving, repairing, or maintaining a dwelling; or the making or purchasing of loans or the provision of other financial assistance secured by residential real estate; or (2) the selling, brokering, or appraising of residential real estate. In the case of age, the following shall not be an unlawful practice: (1) an inquiry of age for the purpose of determining a pertinent element of credit worthiness; (2) the use of an empirically derived credit system which considers age; provided, however, that such system is based on demonstrably and statistically sound data; and provided, further, that such system does not assign a negative factor or score to any applicant who has reached age sixty-two; (3) the offering of credit life insurance or credit disability insurance, in conjunction with any mortgage loan, to a limited age group; (4) the failure or refusal to grant any mortgage loan to a person who has not attained the age of majority; (5) the failure or refusal to grant any mortgage loan the duration of which exceeds the life expectancy of the applicant as determined by the most recent Individual Annuity Mortality Table. Nothing in this subsection prohibits a person engaged in the business of furnishing appraisals of real property from taking into consideration factors other than those hereinabove proscribed. 3C. For any person to deny another person access to, or membership or participation in, a multiple listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against such person in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, which shall not include persons whose involves minor children as the sex object, children, national origin, ancestry, age, or handicap. 4. For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five. 4A. For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter. 5. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so. 6. For the owner, lessee, sublessee, licensed real estate broker, assignee or managing agent of publicly assisted or multiple dwelling or contiguously located housing accommodations or other person having the right of ownership or possession or right to rent or lease, or sell or negotiate for the sale of such accommodations, or any agent or employee of such a person or any organization of unit owners in a condominium or housing cooperative (a) to refuse to rent or lease or sell or negotiate for sale or otherwise to deny to or withhold from any person or group of persons such accommodations because of the race, religious creed, color, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, or marital status of such person or persons or because such person is a veteran or member of the armed forces, or because such person is blind, or hearing impaired or has any other handicap; (b) to discriminate against any person because of his race, religious creed, color, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, or marital status or because such person is a veteran or member of the armed forces, or because such person is blind, or hearing impaired or has any other handicap, in the terms, conditions or privileges of such accommodations or the acquisitions thereof, or in the furnishings of facilities and services in connection therewith, or because such a person possesses a trained dog guide as a consequence of blindness, or hearing impairment; (c) to cause to be made any written or oral inquiry or record concerning the race, religious creed, color, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry or marital status of the person seeking to rent or lease or buy any such accommodation, or concerning the fact that such person is a veteran or a member of the armed forces or because such person is blind or hearing impaired or has any other handicap. The word "age" as used in this subsection shall not apply to persons who are minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons fifty-five or over or sixty-two or over, on one parcel or on contiguous parcels of land, totalling at least five acres in size. For the purpose of this subsection, housing intended for occupancy by persons fifty-five or over and sixty-two or over shall comply with the provisions set forth in <<=1>> 42 USC 3601 et seq. For purposes of this subsection, discrimination on the basis of handicap includes, but is not limited to, in connection with the design and construction of: (1) all units of a dwelling which has three or more units and an elevator which are constructed for first occupancy after March thirteenth, nineteen hundred and ninety-one; and (2) all ground floor units of other dwellings consisting of three or more units which are constructed for first occupancy after March thirteenth, nineteen hundred and ninety-one, a failure to design and construct such dwellings in such a manner that (i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors are designed to allow passage into and within all premises within such dwellings and are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (a) an accessible route into and through the dwelling; (b) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (c) reinforcements in bathroom walls to allow later installation of grab bars; and (d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 7. For the owner, lessee, sublessee, real estate broker, assignee or managing agent of other covered housing accommodations or of land intended for the erection of any housing accommodation included under subsection 10, 11, 12, or 13 of section one, or other person having the right of ownership or possession or right to rent or lease or sell, or negotiate for the sale or lease of such land or accommodations, or any agent or employee of such a person or any organization of unit owners in a condominium or housing cooperative: (a) to refuse to rent or lease or sell or negotiate for sale or lease or otherwise to deny or withhold from any person or group of persons such accommodations or land because of race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, or marital status, veteran status or membership in the armed forces, blindness, hearing impairment, or because such person possesses a trained dog guide as a consequence of blindness or hearing impairment or other handicap of such person or persons; (b) to discriminate against any person because of his race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, or marital status, veteran status or membership in the armed services, blindness, or hearing impairment, or because such person possesses a trained dog guide as a consequence of blindness or hearing impairment or other handicap in the terms, conditions or privileges of such accommodations or land or the acquisition thereof, or in the furnishing of facilities and services in the connection therewith or (c) to cause to be made any written or oral inquiry or record concerning the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, marital status, veteran status or membership in the armed services, blindness, hearing impairment or other handicap or because such person possesses a trained dog guide as a consequence of blindness or hearing impairment, of the person seeking to rent or lease or buy any such accommodation or land; provided, however, that this subsection shall not apply to the leasing of a single apartment or flat in a two family dwelling, the other occupancy unit of which is occupied by the owner as his residence. The word "age" as used in this subsection shall not apply to persons who are minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons fifty-five or over or sixty-two or over, on one parcel or on contiguous parcels of land, totalling at least five acres in size. For the purpose of this subsection, housing intended for occupancy by persons fifty-five or over and sixty-two or over shall comply with the provisions set forth in <<=2>> 42 USC 3601 et seq. 7A. For purposes of subsections 6 and 7 discrimination on the basis of handicap shall include but not be limited to: (1) a refusal to permit or to make, at the expense of the handicapped person, reasonable modification of existing premises occupied or to be occupied by such person if such modification is necessary to afford such person full enjoyment of such premises; provided, however, that, in the case of publicly assisted housing, multiple dwelling housing consisting of ten or more units, or contiguously located housing consisting of ten or more units, reasonable modification shall be at the expense of the owner or other person having the right of ownership; provided, further, that, in the case of public ownership of such housing units the cost of such reasonable modification shall be subject to appropriation; and provided, further, that, in the case of a rental, the landlord may, where the modification to be paid for by the handicapped person will materially alter the marketability of the housing, condition permission for a modification on the tenant agreeing to restore or pay for the cost of restoring, the interior of the premises to the condition that existed prior to such modification, reasonable wear and tear excepted; (2) a refusal to make reasonable accomodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling; and (3) discrimination against or a refusal to rent to a person because of such person's need for reasonable modification or accommodation. Reasonable modification shall include, but not be limited to, making the housing accessible to mobility-impaired, hearing-impaired and sight-impaired persons including installing raised numbers which may be read by a sight-impaired person, installing a door bell which flashes a light for a hearing-impaired person, lowering a cabinet, ramping a front entrance of five or fewer vertical steps, widening a doorway, and installing a grab bar; provided, however, that for purposes of this subsection, the owner or other person having the right of ownership shall not be required to pay for ramping a front entrance of more than five steps or for installing a wheelchair lift. Notwithstanding any other provisions of this subsection, an accommodation or modification which is paid for by the owner or other person having the right of ownership is not considered to be reasonable if it would impose an undue hardship upon the owner or other person having the right of ownership and shall therefore not be required. Factors to be considered shall include, but not be limited to, the nature and cost of the accommodation or modification needed, the extent to which the accommodation or modification would materially alter the marketability of the housing, the overall size of the housing business of the owner or other person having the right of ownership, including but not limited to, the number and type of housing units, size of budget and available assets, and the ability of the owner or other person having the right of ownership to recover the cost of the accommodation or modification through a federal tax deduction. Ten percent shall be the maximum number of units for which an owner or other person having the right of ownership shall be required to pay for a modification in order to make units fully accessible to persons using a wheelchair pursuant to the requirements of this subsection. In the event a wheelchair accessible unit becomes or will become vacant, the owner or other person having the right of ownership shall give timely notice to a person who has, within the previous twelve months, notified the owner or person having the right of ownership that such person is in need of a unit which is wheelchair accessible, and the owner or other person having the right of ownership shall give at least fifteen days notice of the vacancy to the Massachusetts rehabilitation commission, which shall maintain a central registry of accessible apartment housing under the provisions of section seventy-nine of chapter six. During such fifteen day notice period, the owner or other person having the right of ownership may lease or agree to lease the unit only if it is to be occupied by a person who is in need of wheelchair accessibility. Notwithstanding any general or special law, by-law or ordinance to the contrary, there shall not be established or imposed a rent or other charge for such handicap-accessible housing which is higher than the rent or other charge for comparable nonaccessible housing of the owner or other person having the right of ownership. 7B. For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement or advertisement, with respect to the sale or rental of multiple dwelling, contiguously located, publicly assisted or other covered housing accommodations that indicates any preference, limitation, or discrimination based on race, color, religion, sex, which shall not include persons whose involves minor children as the sex object, national origin, ancestry, children, marital status, public assistance recipiency, or handicap or an intention to make any such preference, limitation, or discrimination except where otherwise legally permitted. 8. For the owner, lessee, sublessee, or managing agent of, or other person having the right of ownership or possession of or the right to sell, rent or lease, commercial space: (1) To refuse to sell, rent, lease or otherwise deny to or withhold from any person or group of persons such commercial space because of race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, handicap or marital status of such person or persons. (2) To discriminate against any person because of his race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, handicap or marital status in the terms, conditions or privileges of the sale, rental or lease of any such commercial space or in the furnishing of facilities or services in connection therewith. (3) To cause to be made any written or oral inquiry or record concerning the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, handicap or marital status of a person seeking to rent or lease or buy any such commercial space. The word "age" as used in this subsection shall not apply to persons who are minors, nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in self-contained retirement communities constructed expressly for use by the elderly and which are at least twenty acres in size and have a minimum age requirement for residency of at least fifty-five years. 9. For an employer, himself or through his agent, in connection with an application for employment, or the terms, conditions, or privileges of employment, or the transfer, promotion, bonding, or discharge of any person, or in any other matter relating to the employment of any person, to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information. No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection. Nothing contained herein shall be construed to affect the application of section thirty-four of chapter ninety-four C, or of chapter two hundred and seventy-six relative to the sealing of records. 9A. For an employer himself or through his agent to refuse, unless based upon a bonafide occupational qualification, to hire or employ or to bar or discharge from employment any person by reason of his or her failure to furnish information regarding his or her admission, on one or more occasions, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that such person has been discharged from such facility or facilities and can prove by a psychiatrist's certificate that he is mentally competent to perform the job or the job for which he is applying. No application for employment shall contain any questions or requests for information regarding the admission of an applicant, on one or more occasions, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that such applicant has been discharged from such public or private facility or facilities and is no longer under treatment directly related to such admission. 10. For any person furnishing credit, services or rental accommodations to discriminate against any individual who is a recipient of federal, state, or local public assistance, including medical assistance, or who is a tenant receiving federal, state, or local housing subsidies, including rental assistance or rental supplements, because the individual is such a recipient, or because of any requirement of such public assistance, rental assistance, or housing subsidy program. 11. For the owner, sublessees, real estate broker, assignee or managing agent of publicly assisted or multiple dwelling or contiguously located housing accommodations or other covered housing accommodations, or other person having the right of ownership or possession or right to rent or lease or sell such accommodations, or any agent or employee of such person or organization of unit owners in a condominium or housing cooperative, to refuse to rent or lease or sell or otherwise to deny to or withhold from any person such accommodations because such person has a child or children who shall occupy the premises with such person or to discriminate against any person in the terms, conditions, or privileges of such accommodations or the acquisition thereof, or in the furnishing of facilities and services in connection therewith, because such person has a child or children who occupy or shall occupy the premises with such person; provided, however, that nothing herein shall limit the applicability of any local, state, or federal restrictions regarding the maximum number of persons permitted to occupy a dwelling. When the commission or a court finds that discrimination in violation of this paragraph has occurred with respect to a residential premises containing dangerous levels of lead in paint, plaster, soil, or other accessible material, notification of such finding shall be sent to the director of the childhood lead poisoning prevention program. This subsection shall not apply to: (1) Dwellings containing three apartments or less, one of which apartments is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. For purposes of this subsection, an "elderly person" shall mean a person sixty-five years of age or over, and an "infirm person" shall mean a person who is disabled or suffering from a chronic illness. (2) The temporary leasing or temporary subleasing of a single family dwelling, a single apartment, or a single unit of a condominium or housing cooperative, by the owner of such dwelling, apartment, or unit, or in the case of a subleasing, by the sublessor thereof, who ordinarily occupies the dwelling, apartment, or unit as his or her principal place of residence. For purposes of this subsection, the term "temporary leasing" shall mean leasing during a period of the owner's or sublessor's absence not to exceed one year. (3) The leasing of a single dwelling unit in a two family dwelling, the other occupancy unit of which is occupied by the owner as his residence. (4) [Stricken.] 11A. For an employer, by himself or his agent, to refuse to restore certain female employees to employment following their absence by reason of a maternity leave taken in accordance with section one hundred and five D of chapter one hundred and forty-nine or to otherwise fail to comply with the provisions of said section, or for the commonwealth and any of its boards, departments and commissions to deny vacation credit to any female employee for the fiscal year during which she is absent due to a maternity leave taken in accordance with said section or to impose any other penalty as a result of a maternity leave of absence. 12. For any retail store which provides credit or charge account privileges to refuse to extend such privileges to a customer solely because said customer had attained age sixty-two or over. 13. For any person to directly or indirectly induce, attempt to induce, prevent, or attempt to prevent the sale, purchase, or rental of any dwelling or dwellings by: (a) implicit or explicit representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular age, race, color, religion, sex, national or ethnic origin, or economic level or a handicapped person, or a person having a child, or implicit or explicit representations regarding the effects or consequences of any such entry or prospective entry; (b) unrequested contact or communication with any person or persons, initiated by any means, for the purpose of so inducing or attempting to induce the sale, purchase, or rental of any dwelling or dwellings when he knew or, in the exercise of reasonable care, should have known that such unrequested solicitation would reasonably be associated by the persons solicited with the entry into the neighborhood of a person or persons of a particular age, race, color, religion, sex, national or ethnic origin, or economic level or a handicapped person, or a person having a child; (c) implicit or explicit false representations regarding the availability of suitable housing within a particular neighborhood or area, or failure to disclose or offer to show all properties listed or held for sale or rent within a requested price or rental range, regardless of location; or (d) false representations regarding the listing, prospective listing, sale, or prospective sale of any dwelling. 14. For any person furnishing credit or services to deny or terminate such credit or services or to adversely affect an individual's credit standing because of such individual's sex, marital status, age or which shall not include persons whose involves minor children as the sex object; provided that in the case of age the following shall not be unlawful practices: (1) an inquiry of age for the purpose of determining a pertinent element of creditworthiness; (2) the use of empirically derived credit systems which consider age, provided such systems are based on demonstrably and statistically sound data and provided further that such systems do not assign a negative factor or score to any applicant who has reached age sixty-two; (3) the offering of credit life insurance or credit disability insurance, in conjunction with any credit or services, to a limited age group; (4) the denial of any credit or services to a person who has not attained the age of majority; (5) the denial of any credit or services the duration of which exceeds the life expectancy of the applicant as determined by the most recent Individual Annuity Mortality Table; or (6) the offering of more favorable credit terms to students, to persons aged eighteen to twenty-one, or to persons who have reached the age of sixty-two. Any person who violates the provisions of this subsection shall be liable in an action of contract for actual damages; provided, however, that, if there are no actual damages, the court may assess special damages to the aggrieved party not to exceed one thousand dollars; and provided further, that any person who has been found to violate a provision of this subsection by a court of competent jurisdiction shall be assessed the cost of reasonable legal fees actually incurred. 15. For any person responsible for recording the name of or establishing the personal identification of an individual for any purpose, including that of extending credit, to require such individual to use, because of such individual's sex or marital status, any surname other than the one by which such individual is generally known. 16. For any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business. In determining whether an accommodation would impose an undue hardship on the conduct of the employer's business, factors to be considered include:-- (1) the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets; (2) the type of the employer's operation, including the composition and structure of the employer's workforce; and (3) The nature and cost of the accommodation needed. Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job. An employer may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped individual or as to the nature or severity of the handicap, except that an employer may condition an offer of employment on the results of a medical examination conducted solely for the purpose of determining whether the employee, with reasonable accommodation, is capable of performing the essential functions of the job, and an employer may invite applicants to voluntarily disclose their handicap for purposes of assisting the employer in its affirmative action efforts. 16A. For an employer, personally or through its agents, to sexually harass any employee. 17. Notwithstanding any provision of this chapter, it shall not be an unlawful employment practice for any person, employer, labor organization or employment agency to: (a) observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this section, except that no such employee benefit plan shall excuse the failure to hire any person, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any person because of age except as permitted by paragraph (b) . (b) require the compulsory retirement of any person who has attained the age of sixty-five and who, for the two year period immediately before retirement, is employed in a bona fide executive or high policymaking position, if such person entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings or deferred compensation plan, or any combination of such plans, of the employer, which equals, in the aggregate, at least forty-four thousand dollars. (c) require the retirement of any employee who has attained seventy years of age and who is serving under a contract of unlimited tenure or similar arrangement providing for unlimited tenure at an independent institution of higher education, or to limit the employment in a faculty capacity of such an employee, or another person who has attained seventy years of age who was formerly employed under a contract of unlimited tenure or similar arrangement, to such terms and to such a period as would serve the present and future needs of the institution, as determined by it; provided, however, that in making such a determination, no institution shall use as a qualification for employment or reemployment, the fact that the individual is under any particular age. 18. For the owner, lessee, sublessee, licensed real estate broker, assignee, or managing agent of publicly assisted or multiple dwelling or contiguously located housing accommodations or other covered housing accommodations, or other person having the right of ownership or possession, or right to rent or lease, or sell or negotiate for the sale of such accommodations, or any agent or employee of such person or any organization of unit owners in a condominium or housing cooperative to sexually harass any tenant, prospective tenant, purchaser or prospective purchaser of property. Notwithstanding the foregoing provisions of this section, it shall not be an unlawful employment practice for any person, employer, labor organization or employment agency to inquire of an applicant for employment or membership as to whether or not he or she is a veteran or a citizen. Notwithstanding the provisions of any general or special law nothing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting admission to or giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained. Notwithstanding the foregoing provisions of this section, (a) every employer, every employment agency, including the department of employment and training in the executive office of economic affairs, and every labor organization shall make and keep such records relating to race, color or national origin as the commission may prescribe from time to time by rule or regulation, after public hearing, as reasonably necessary for the purpose of showing compliance with the requirements of this chapter, and (b) every employer and labor organization may keep and maintain such records and make such reports as may from time to time be necessary to comply, or show compliance with, any executive order issued by the President of the United States or any rules or regulations issued thereunder prescribing fair employment practices for contractors and subcontractors under contract with the United States, or, if not subject to such order, in the manner prescribed therein and subject to the jurisdiction of the commission. Such requirements as the commission may, by rule or regulation, prescribe for the making and keeping of records under clause (a) shall impose no greater burden or requirement on the employer, employment agency or labor organization subject thereto, than the comparable requirements which could be prescribed by Federal rule or regulation so long as no such requirements have in fact been prescribed, or which have in fact been prescribed for an employer, employment agency or labor organization under the authority of the Civil Rights Act of 1964, from time to time amended. This paragraph shall apply only to employers who on each working day in each of twenty or more calendar weeks in the annual period ending with each date set forth below, employed more employees than the number set forth beside such date, and to labor organizations which have more members on each such working day during such period. Minimum Employees Period Ending. or Members. June 30, 1965 ......................... 100 June 30, 1966 ......................... 75 June 30, 1967 ......................... 50 June 30, 1968 and thereafter ........... 25 Nothing contained in this chapter or in any rule or regulation issued by the commission shall be interpreted as requiring any employer, employment agency or labor organization to grant preferential treatment to any individual or to any group because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry of such individual or group because of imbalance which may exist between the total number or percentage of persons employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization or admitted to or employed in, any apprenticeship or other training program, and the total number or percentage of persons of such race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry in the commonwealth or in any community, section or other area therein, or in the available work force in the commonwealth or in any of its political subdivisions. HISTORY: 1946, 368, @ 4; 1947, 424; 1950, 697, @@ 6--8; 1955, 274; 1957, 426, @@ 2, 3; 1959, 239, @ 2; 1960, 163, @ 2; 1961, 128; 1963, 197, @ 2; 1965, 213, @ 2; 1965, 397, @@ 4--6; 1966, 361; 1969, 90; 1969, 314; 1971, 661; 1971, 726; 1971, 874, @@ 1--3; 1972, 185; 1972, 428; 1972, 542; 1972, 786, @ 2; 1972, 790, @ 2; 1973, 168; 1973, 187, @@ 1--3; 1973, 325; 1973, 701, @ 1; 1973, 929; 1973, 1015, @@ 1--3; 1974, 531; 1975, 84; 1975, 367, @ 3; 1975, 637, @@ 1, 2; 1978, 89; 1978, 288, @@ 1, 2; 1979, 710, @ 2; 1980, 343; 1983, 533, @@ 4-6; 1983, 585, @ 7; 1983, 628, @@ 1-3; 1984, 266, @@ 5-7; 1985, 239; 1986, 588, @ 3, approved December 9, 1986, effective 90 days thereafter; 1987, 270, @ 1, 2, approved July 15, 1987, effective 90 days thereafter; 1987, 775, @ 11, approved January 15, 1988, effective 90 days thereafter. Amended by 1989, 516, @@ 4-14, approved Nov 15, 1989, effective 90 days thereafter; 1989, 544, approved Nov 21, 1989, effective 90 days thereafter; 1989, 722, @@ 13-23, approved Jan 13, 1990, effective 90 days thereafter; 1990, 177, @ 341, approved, with emergency preamble, Aug 7, 1990; 1990, 283, @@ 2, 3, approved Dec 10, 1990, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1947 amendment added the paragraph relative to inquiries concerning citizen or veteran status. The 1950 amendment, in subsections 1, 2 and 3, inserted in each "age". The 1955 amendment inserted subsection 3A. The 1957 amendment, by @ 2, added subsection 6, and by @ 3, added an unnumbered paragraph at the end of the section. The 1959 amendment, in subsection 6, inserted "or multiple dwelling or contiguously located". The 1960 amendment added subsection 3B. The 1961 amendment rewrote subsection 6 to extend the application thereof to the purchase or acquisition of certain real estate. The 1963 amendment inserted subsection 7. The first 1965 amendment inserted subsection 8. The second 1965 amendment made subsections 1, 2 and 3 cover discrimination on account of sex. The 1966 amendment added two new paragraphs, to provide that the keeping of certain required employment records on the basis of race, color or national origin shall not be unlawful under this chapter, and to provide further that no employer, employment agency or labor organization shall be required to give preferential treatment to an individual on the basis of race, color, creed, etc. The first 1969 amendment rewrote subsection 6 to prohibit discrimination against a veteran or member of the armed forces in the sale or leasing of residential real estate. The second 1969 amendment added subsection 9, prohibiting unlawful discrimination by the use of certain criminal records against persons seeking employment. The first 1971 amendment rewrote subsections 6, 7, and 8, primarily to add prohibitions against discrimination on account of age, sex, or national ancestry, with a proviso as to the application of "age". The second 1971 amendment added subsection (10) relative to eliminating discrimination in credit, services, or rental accommodations to certain recipients of of public assistance. The third 1971 amendment rewrote subsections 3A and 3B to include sex as a basis of the discrimination prohibited, and added subsection 11. The first 1972 amendment rewrote subsection 6 to include a prohibition against discrimination against blind persons in the sale or leasing of residential real property. The second 1972 amendment rewrote subsection 9, changing and expanding the categories of arrests, the failure to give information of which may not be a cause for discrimination in employment. The third 1972 amendment added subsection (12) to provide that a retail store extending credit or charge account privileges shall not deny them to a customer because he is age sixty-two or over. The fourth 1972 amendment added subsection 13. The fifth 1972 amendment added subsection 11A. The first 1973 amendment added subsection 14, forbidding discrimination, in furnishing credit or services, because of sex or marital status. The second 1973 amendment rewrote subsections 6, 7 and 8 to prohibit discrimination because of marital status in the sale, rental and leasing of residential real property, and of commercial space. The third 1973 amendment added a sentence to subsection 14 providing for recovery of damages for discrimination because of sex or marital status in the furnishing of credit and services. The fourth 1973 amendment inserted subsection 9A. The fifth 1973 amendment added subsection 1A. The sixth 1973 amendment rewrote the last sentences of subsections 6, 7 and 8 to make "age" as used therein inapplicable to residency in self-contained retirement communities. The 1974 amendment rewrote subsection 9 concerning discrimination by employers regarding use of criminal records of employees or applicants. The first 1975 amendment added subsection 15. The second 1975 amendment rewrote subsection 15 to delete the specific reference to registration of voters. The third 1975 amendment added in subsections 3B and 14 provisions relative to age discrimination. The first 1978 amendment rewrote clause (b) of subsection 6, prohibiting discrimination against blind persons, possessing dog guides, in the rental or sale of certain housing accommodations. The second 1978 amendment rewrote subsection 3B and the first paragraph of subsection 14, further delineating the circumstances in which age may be considered in denying mortgage loans (subsection 3B) or in denying or terminating credit or services (subsection 14) . The 1979 amendment, in subsection 11, added a paragraph relative to exemption of developments having 100 or more units in which at least 50% of the tenants are children. Sections 3 and 4 of the amending act provide as follows: Section 3. No family living in any such apartment contained in the development prior to the effective date of this act shall be evicted or otherwise have its tenancy affected as a result of this act. Section 4. The department of community affairs shall conduct a study of the housing needs of persons with children and the effects of this subsection, if any, on the availability of housing to persons with children. The department shall issue its report within two years from the effective date of this act and shall file a copy of the same with the clerk of the house of representatives. The 1980 amendment rewrote subsection 11A forbidding the Commonwealth to deny vacation credit to female employees taking a maternity leave of absence. The first 1983 amendment rewrote subsections 2 and 3, incorporating therein reference to a handicapped person alleging to be a qualified handicapped person, and added subsection 16. The second 1983 amendment rewrote subsection 6 so as to include deaf persons within its provisions. The third 1983 amendment made the following changes: rewrote subsection 6, adding "or any organization of unit owners in a condominium or housing co-operative" and included hearing impaired persons to the discrimination prohibition stated therein, in subsection 7 added "or any organization of unit owners in a condominium or housing co-operative" after "or any agent or employee of such a person" and extended the prohibition against discrimination to veterans, members of the armed services, blind persons, hearing impaired persons or such persons possessing a trained guide dog as a result of such blindness or hearing impairment, and in subsection 11, added "or other covered housing accommodations" after "or contiguously located housing accommodations", added "or organization of unit owners in a condominium or housing co-operative" after "or any agent or employee of such person", and added two additional situations in which this subsection shall not apply, to wit: temporary leases or temporary subleases and the leasing of a single dwelling unit in a two family dwelling where the other occupancy unit is occupied by the owner as his residence. The 1984 amendment deleted "age" from subsection 1, and added subsections 1B, 1C, and 17 concerning discrimination based on age. The 1985 amendment, revised paragraph (b) of subsection (17) by increasing the specified dollar amount from "twenty-seven" thousand to "forty-four" thousand. The 1986 amendment added subsection 16A. The first 1987 amendment substantially rewrote in identical terms the second sentences of subsections 6 and 7, deleting the qualification of retirement communities as self contained, adding language relating to one or more structures located on single or contiguous parcels, reducing the minimum parcel size from 20 acres to 10 acres, and adding language relating to the number of persons under 55 who may occupy any unit. The second 1987 amendment inserted the second sentence, relating to notification of findings of discrimination. The first 1989 amendment, in subsections 1, 2, 3, 3A, 6, 7, 8, and the opening paragraph of subsection 14 of the first paragraph, and in the last paragraph, inserted the phrase " which shall not include persons whose involves minor children as the sex object," wherever it appears, inserted " in subsection 3, and rewrote the third paragraph relative to taking any action with respect to matters of employment, discipline, faith, etc. on religious grounds. Sections 17-20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. The second 1989 amendment, in the first paragraph, added subsection 18. The third 1989 amendment, effective April 13, 1990, by @ 13, rewrote subsection 3B, and added subsection 3C; by @ 14, added subsection 4A, by @ 15, in subsection 6, clauses (a) , (b) and (c) , following "impaired", inserted "or has any other handicap"; by @ 16, in subsection 6, added the second paragraph defining discrimination on the basis of handicap; by @ 17, in subsection 7, in clauses (a) , (b) and (c) , following "impairment", inserted "or other handicap"; by @ 18, added subsections 7A and 7B, by @ 19, in subsection 8, following "ancestry,", inserted "handicap", wherever appearing, by @ 19A, in subsection 10, substituted the first appearance of "rental" for "renting" and following "recipient", inserted ", or because of any requirement of such public assistance, rental assistance, or housing subsidy program", by @ 20, in the first sentence of subsection 11, inserted at the end the words beginning with "or to discriminate against any person . . ."; by @ 21, deleted clause (4) of subsection 11, relative to housing developments containing 100 or more apartments; by @ 22, in clauses (a) and (b) of subsection 13, following "religion", inserted ", sex"; and by @ 23, in clauses (a) and (b) of subsection 13, following "level", inserted "or a handicapped person, or a person having a child". The first 1990 amendment, in the first sentence of the fourth paragraph, substituted "department of employment and training in the executive office of economic affairs" for "division of employment security of the department of labor and industries". The second 1990 amendment, in the second sentence of subsections 6 and 7, defining "age", deleted references directed to housing for retirement communities for the elderly, and making such subsections applicable to housing for persons 55 or over or 62 or over, and that such housing shall be in compliance with the provisions of <<=3>> 42 USC @@ 3601 et seq., in each instance. CODE OF MASSACHUSETTS REGULATIONS-- Housing general provisions, 804 CMR 2.01. Housing discrimination against persons with children, 804 CMR 2.02. Housing discrimination in credit services or rental accommodations, 804 CMR 2.03. Housing discrimination in granting of mortgage loans, 804 CMR 2.04. Guidelines for discrimination in employment, 804 CMR 3.01. Sex discrimination in employment, 804 CMR 3.02. Discrimination in credit, 804 CMR 7.01 et seq. Sex discrimination in employment with respect to maternity leave, 804 CMR 8.01. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 12 Mass Jur, Family Law @@ 1:4, 1:5. Mass Jur, Personal Injury and Torts @@ 8:6, 8:16, 8:22, 8:27--8:41, 8:43--8:52, 8:54--8:58, 8:61, 8:82, 8:86, 8:93, 8:98. 8 Mass Jur, Property @@ 25:485, 504. 1 Mass Proc, Civil Procedure @ 1:377. 15 Am Jur 2d, Civil Rights @@ 154 to 192. 43 Am Jur Trials 1, Constitutional Employment Litigation:; Political Discharge Case. 2 Am Jur Proof of Facts 2d, Racial Discrimination in Employment (In general; use of statistics) . 2 Am Jur Proof of Facts 2d, Racial Discrimination in Employment--Recruiting and Hiring Practices. 2 Am Jur Proof of Facts 2d, Racial Discrimination in Employment--Testing and Educational Requirements, Proof No. 1, (Proof of lack of validation of testing and education requirements) ; Proof No. 2 (Proof of improper validation of tests) . 4 Am Jur Proof of Facts 2d, Racial Discrimination in Post-Hiring Practices. ANNOTATIONS-- Validity and construction of labor legislation prohibiting discrimination on account of age. <<=12>> 29 ALR3d 1407. Nature of alternative employment which employee must accept to minimize damages for wrongful discharge. <<=13>> 44 ALR3d 629. Construction and operation of "equal opportunities clause" requiring pledge against racial discrimination in hiring under construction contract. <<=14>> 44 ALR3d 1283. Discrimination in provision of municipal services or facilities as civil rights violation. <<=15>> 51 ALR3d 950. Employee's arbitrary dismissal as breach of employment contract terminable at will. <<=16>> 62 ALR3d 271. Reduction in rank or authority or change of duties as breach of employment contract. <<=17>> 63 ALR3d 539. Workmen's compensation: recovery for discharge in retaliation for filing claim. <<=18>> 63 ALR3d 979. Right of corporation to discharge employee who asserts right as stockholder. <<=19>> 84 ALR3d 1107. Application of state law to sex discrimination in employment. <<=20>> 87 ALR3d 93. Judicial construction and application of state legislation prohibiting religious discrimination in employment. <<=21>> 91 ALR3d 155. Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. <<=22>> 96 ALR3d 497. Identification of jobseeker by race, religion, national origin, sex, or age, in "situation wanted" employment advertising as violation of state civil rights laws. <<=23>> 99 ALR3d 154. Refusal to rent residential premises to persons with children as unlawful discrimination. <<=24>> 30 ALR4th 1187. What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. <<=25>> 33 ALR4th 964. What constitutes employment discrimination on basis of "marital status" for purposes of state civil rights laws. <<=26>> 44 ALR4th 1044. Discipline or discharge for sexual conduct as violative of state fair employment laws. <<=27>> 47 ALR4th 863. Award of front pay under state job discrimination statutes. <<=28>> 74 ALR4th 746. Damages and other relief under state legislation forbidding job discrimination on account of handicap. <<=29>> 78 ALR4th 435. State civil rights legislation prohibiting sex discrimination in housing. <<=30>> 81 ALR4th 205. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. <<=31>> 82 ALR4th 26. Validity and construction of state statutes requiring construction of handicapped access facilities in buildings open to public. <<=32>> 82 ALR4th 121. Racial discrimination in the hiring, retention, and assignment of teachers--federal cases. <<=33>> 3 ALR Fed 325. Actionability under Federal Civil Rights Acts, of discrimination because of complaining party's association with persons of different race, color, or the like. <<=34>> 6 ALR Fed 973. Construction and application of @ 704(a) of Civil Rights Act of 1964 <<=35>> (42 USC @ 2000e 3(a) ) , making it unlawful employment practice to discriminate against individual for participation in equal employment opportunity proceedings or activities. <<=36>> 11 ALR Fed 316. Construction and application of provisions of Title VII of Civil Rights Act of 1964 <<=37>> (42 USCS @@ 2000e et seq.) making sex discrimination in employment unlawful. <<=38>> 12 ALR Fed 15. Referendum relating to low- or moderate-income housing projects as constituting racial discrimination in violation of Federal Constitution. <<=39>> 15 ALR Fed 613. Educational requirement as unlawful employment practice violative of Title VII of Civil Rights Act of 1964 <<=40>> (42 USCS @@ 2000e et seq.) . <<=41>> 30 ALR Fed 258. Right to maintain private employment discrimination action under Executive Order 11246, as amended, prohibiting employment discrimination by government contractors and subcontractors. <<=42>> 31 ALR Fed 108. Consideration of arrest record as unlawful employment practice violative of Title VII of Civil Rights Act of 1964 <<=43>> (42 USCS @@ 2000e et seq.) . <<=44>> 33 ALR Fed 263. Applicability of <<=45>> 42 USCS @ 1981 to national origin employment discrimination cases. <<=46>> 43 ALR Fed 103. Sufficiency of state remedy under <<=47>> 42 USCS @ 2000e-5(c) to require 60-day deferral by Equal Employment Opportunity Commission to allow state time to act. <<=48>> 45 ALR Fed 347. Sexual advances by employee's superior as sex discrimination within Title VII of Civil Rights Act of 1964, as amended <<=49>> (42 USCS @@ 2000e et seq.) . <<=50>> 46 ALR Fed 224. Dissemination of adverse employment references by former employer as unlawful employment practice under Title VII of Civil Rights Act of 1964 <<=51>> (42 USCS @ 2000e-2(a) (1) ) . <<=52>> 50 ALR Fed 722. Sex discrimination in law enforcement and corrections employment. <<=53>> 53 ALR Fed 31. Discrimination against credit applicant on basis of marital status under Equal Credit Opportunity Act <<=54>> (15 USCS @@ 1691 et seq.) . <<=55>> 55 ALR Fed 458. Application to tenured positions in educational institutions of provisions of Civil Rights Act of 1964, as amended <<=56>> (42 USCS @@ 2000e et seq.) prohibiting discrimination on basis of sex. <<=57>> 55 ALR Fed 842. Age discrimination claimant's right to suit in federal court as affected by manner and timeliness of claimant's resort to state remedies under @ 14(b) of Age Discrimination in Employment Act <<=58>> (29 USCS @ 633(b) ) . <<=59>> 56 ALR Fed 627. Sex discrimination in United States Armed Forces. <<=60>> 56 ALR Fed 850. Backpay as recoverable in action for refusal to hire in violation of <<=61>> 42 USCS @ 1983. <<=62>> 58 ALR Fed 667. Effect of customer's interest or preference on establishing bona fide occupational qualification under Title VII of Civil Rights Act of 1964 <<=63>> (42 USCS @ 2000e-2(e) ) . <<=64>> 63 ALR Fed 402. Age as bona fide occupational qualification "reasonably necessary" for normal conduct of business under @ 4(f) (1) of Age Discrimination in Employment Act <<=65>> (29 USCS @ 623(f) (1) ) . <<=66>> 63 ALR Fed 610. Commencement of action by Equal Employment Opportunity Commission to enforce provisions of Equal Pay Act <<=67>> (29 USCS @ 206(d) ) on behalf of individual as affecting that individual's right to sue employer under Civil Rights Act of 1964 <<=68>> (42 USCS @@ 2000e et seq.) . <<=69>> 64 ALR Fed 961. Prohibition of discrimination against, or discharge of, employee because of exercise of right afforded by Occupational Safety and Health Act, under @ 11(c) (1) of the Act <<=70>> (29 USCS @ 660(c) (1) ) . <<=71>> 66 ALR Fed 650. Propriety, under unfair labor practice provisions of National Labor Relations Act <<=72>> (29 USCS @ 158(a) ) , of employer's selective discipline of employees who are union officials and who participated in unauthorized strike. <<=73>> 66 ALR Fed 801. Exclusion of women from employment involving risk of fetal injury as violative of Title VII of Civil Rights Act of 1964 <<=74>> (42 USCS @@ 2000e et seq.) . <<=75>> 66 ALR Fed 968. Validity, construction, and application of provisions of @ 702 of Civil Rights Act of 1964 <<=76>> (42 USCS @ 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. <<=77>> 67 ALR Fed 874. Disparate impact test for sex discrimination in employment under Title VII of Civil Rights Act of 1964 <<=78>> (42 USCS @@ 2000e et seq.) . <<=79>> 68 ALR Fed 19. Protection of debtor from acts of discrimination by governmental units under @ 525 of Bankruptcy Code of 1978 <<=80>> (11 USCS @ 525) . <<=81>> 68 ALR Fed 137. "Bona fide employee benefit plan" exception to general prohibition of age discrimination in employment <<=82>> (29 USCS @ 623(f) (2) ) . <<=83>> 70 ALR Fed 110. "Redlining," consisting of denial of home loans or insurance coverage in certain neighborhoods, as discrimination in violation of @@ 804 and 805 of Fair Housing Act <<=84>> (42 USCS @@ 3604, 3605) . <<=85>> 73 ALR Fed 899. Award of "front pay" under @ 7 of Age Discrimination in Employment Act of 1967 <<=86>> (29 USCS @ 626) . <<=87>> 74 ALR Fed 745. Action under Title VII of 1964 Civil Rights Act <<=88>> (42 USCS @@ 2000e et seq.) as precluding action under <<=89>> 42 USCS @ 1983 for employment discrimination by state or local government. <<=90>> 78 ALR Fed 492. Requirement that employees speak English in workplace as discrimination in employment under Title VII of Civil Rights Act of 1964 <<=91>> (42 USCS @@ 2000e et seq.) . <<=92>> 90 ALR Fed 806. Racial discrimination in connection with transfer or ownership of real property or interest therein. <<=93>> 24 L Ed 2d 889. TEXTS-- 2 Proof of Cases in Massachusetts @ 1211 LAW REVIEWS-- George, The back door: legitimizing sexual harassment claims. <<=94>> 73 BU L Rev 1, January 1993. Case Comment, The status of weight-based employment discrimination under the Americans with Disabilities Act after Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals. <<=95>> 74 BU L Rev 667, Sept 1994. Seniority and testing under fair employment laws: A general approach to objective criteria of hiring and promotion. 82 Harv L Rev 1598. Schreiber, Wrongful termination of at-will employees. 68 Mass L Rev 22, March, 1983. A General Introduction to Privacy. 61 Mass L Q 10. Schreiber, Massachusetts Employment Discrimination Law. 63 Mass L Rev 247, December, 1978. Schreiber, Employment applications--What Massachusetts employers can and cannot ask. 65 Mass L Rev 69, March--April, 1980. Rousseau, The AIDS epidemic and the issues in the workplace. 72 Mass L Rev 51, June, 1987. Alfred and Clements, The public policy exception to the at-will employment rule. 78 Mass L Rev 88, September, 1993. The Massachusetts fair housing practices law. 47 Mass LQ 295. Sager, Rights protected by the Massachusetts Civil Rights Act against interference on account of race or color. 17 Suffolk U L Rev 53, Spring, 1983. FORM See forms in printed version. CASE NOTES 1. In general 2. Definitions 3. Practice and procedure 4. Defenses 5. Discrimination in housing 6. Discrimination in employment; In general 7. Race discrimination 8. Sex discrimination--In general 9. -Hiring, promotion, and firing 10. -Pregnancy and maternity benefits 11. -Sexual harassment 12. Age discrimination 13. Religious discrimination 14. Other unlawful practices 1. In general City ordinance establishing and granting certain powers to Human Rights Commission was valid and was not violative of Home Rule Amendment and Home Rule Procedures Act as being inconsistent with ALM GL c 151B @ 4 and c 151C @ 3, making unlawful certain discriminatory practices and unfair educational practices involving discrimination and granting certain powers to Massachusetts Commission Against Discrimination, or as being inconsistent with ALM GL c 233 @ 8 concerning subpoena power of local boards, committees, and commissions. <<=105>> Bloom v Worcester (1973) 363 Mass 136, 293 NE2d 268. Section proscribes not only overt discrimination, but practices which are fair in form but discriminatory in operation. School Committee of Braintree v Massachusetts Com. against <<=106>> Discrimination (1979) 377 Mass 424, 386 NE2d 1251, 21 BNA FEP Cas 923, 19 CCH EPD 9110. Anti-discrimination statute protects people only against defined unlawful practices. Macauley v Massachusetts Com. against <<=107>> Discrimination (1979) 379 Mass 279, 397 NE2d 670, 21 CCH EPD 30552. Legislature intended that employer be liable for discrimination committed by those on whom it confers authority, without additional notice requirement. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=108>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Employee retaliation against person who complains of discrimination is prohibited. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=109>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. ALM GL c 151B should be interpreted in harmony with other statutes which appear to call for affirmative action programs. <<=110>> Drinkwater v School Committee of Boston (1990) 406 Mass 756, 550 NE2d 385, 53 CCH EPD 39895. Act (St. 1989 c 516) making unlawful discrimination in housing, employment and granting of credit on basis of was not subject to referendum petition, because exception from anti-discrimination provision related to religion, religious practices or religious institutions. <<=111>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Analysis of discrimination claim is essentially the same under state and federal statutes. <<=112>> White v University of Massachusetts (1991) 410 Mass 553, 574 NE2d 356. Judgments recovered by two former female employees against employer for unlawful employment discrimination on the basis of sex were not covered by comprehensive general liability insurance policies issued to employer and providing coverage for accidentally-caused bodily injury or property damage not expected or intended from the standpoint of the insured, since employer's acts of discrimination were intentional. <<=113>> Rideout v Crum & Forster Commercial Ins. (1994) 417 Mass 757, 633 NE2d 376, 64 BNA FEP Cas 1741, summary op at (Mass) 22 M.L.W. 1852. Ban on discrimination applies to fraternal benefits society which is closely affiliated with city police department and which provides insurance benefits to police employees; general ban on sex discrimination is applicable to discrimination in offering of insurance coverage and fraternal benefits societies are not exempt from general prohibition where they are not primarily private groups but have close affiliation with public employer. <<=114>> Franklin v Order of United Commercial Travelers (1984, DC Mass) 590 F Supp 255. Bookkeeper who resigned her at-will employment with real estate management enterprise due to supervisor's sexual harassment, and then was fired, is precluded from bringing action against enterprise and supervisor for breach of employment contract, citing violation of Massachusetts public policy against sexual harassment, where her supervisor made sexual suggestive comments and physical advances to bookkeeper for over 3 months, because ALM GL c 151B @ 4 note 1, ALM GL c 12 @@ 11H, 11I, and ALM GL c 214 @ 1C already provides remedial framework for handling sexual harassment claims and therefore new common-law cause of action will not be created. <<=115>> Bergeson v Franchi (1992, DC Mass) 783 F Supp 713. Bookkeeper who resigned employment with real estate management enterprise due to supervisor's sexual harassment, and then was fired, is precluded from bringing action against enterprise and supervisor for violating Massachusetts Civil Rights Act ("Act") , ALM GL c 12, @@ 11H, 11I, where bookkeeper filed action under both the Act and Massachusetts discrimination statute, ALM GL c 151B @ 4(1) , because to permit such duplication of remedies may cripple procedural prerequisites of ALM GL c 151B. <<=116>> Bergeson v Franchi (1992, DC Mass) 783 F Supp 713. Only those who are alleged to have violated statute for profit can be named as respondents under ALM GL c 151B @ 4; as so limited, statute is not so vague as to be void and unenforceable. 1972--1973 Op AG 35. Amendment making it unlawful to discriminate on basis of (Acts 1989, ch 516) may not be subject of referendum petition under Article 48 of Amendments to Massachusetts Constitution because of Amendment's inclusion of two provisions relating to discrimination of any type by religious institutions. Op AG 89/90-2. 2. Definitions In case where both complaint before Commission and Commission's findings asserted discrimination against prospective tenant based on national origin where complainant, as Puerto Rican, was American by national origin, but where it was implicit both in complaint and in findings that asserted discrimination was because of complainant's ancestry, term "national origin" is broad enough to include "national ancestry" unless controlled by context, use of two terms in this section did not require conclusion that term "national origin" was restricted by use of term "national ancestry," and in view of ALM GL c 151B @ 9 providing for liberal interpretation of this chapter, complaint stated offense under statute. La Pierre v Massachusetts Com. against <<=118>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Phrase "other covered housing accommodations" as used in subsection 7 of this section is defined in 13 of @ 1, supra. See La Pierre v Massachusetts Com. against <<=119>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Legislature's definition of sexual harassment in work place is applicable to sexual harassment in context of housing. Gnerre v Massachusetts Com. against <<=120>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Term "marital status" is commonly used to refer to both individuals and couples in inquiring about their situations with respect to marriage. Worcester Housing Authority v Massachusetts Com. against <<=121>> Discrimination (1989) 406 Mass 244, 547 NE2d 43. Court does not review Massachusetts Commission Against Discrimination Commissioner's judgment concerning credibility of witnesses. <<=122>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Application for renewal of insurance broker's license does not constitute "application for employment" within meaning of ALM GL 151B @ 4(9) . <<=123>> Commonwealth v McDuffee (1979) 7 Mass App 129, 386 NE2d 754, superseded <<=124>> 379 Mass 353, 398 NE2d 463. In light of statutory mandate that act shall be liberally construed, word "individual" does not limit Massachusetts Commission Against Discrimination's power of investigation to situations where specifically named person is said to be object of unlawful practice. 1968--1969 Op AG 95. 3. Practice and procedure Complaint shows unlawful discrimination by establishing unanswered prima facie case of discrimination by proving by preponderance of evidence that respondent's facially proper reasons given for actions against complainant were not real reason for action. Wheelock College v Massachusetts Com. against <<=126>> Discrimination (1976) 371 Mass 130, 355 NE2d 309, 20 BNA FEP Cas 1457, 13 CCH EPD 11508. Award of attorney fees is not permitted but MCAD may make award for emotional distress, pain and suffering to employee against whom employer retaliated for employee's filing of complaint with Commission. Bournewood Hospital, Inc. v Massachusetts Com. against <<=127>> Discrimination (1976) 371 Mass 303, 358 NE2d 235, 14 BNA FEP Cas 710, 13 CCH EPD 11405. Evidence was sufficient for Massachusetts Commission Against Discrimination Commissioner to find that pregnancy-related disability had lasted 6 weeks. School Committee of Brockton v Massachusetts Com. against <<=128>> Discrimination (1979) 377 Mass 392, 386 NE2d 1240, 21 BNA FEP Cas 918, 19 CCH EPD 9089. Employee proved prima facie case with evidence that as member of racial minority, he was discharged as truckdriver and white man was hired to drive his route. <<=129>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Damages for emotional distress resulting from sexual harassment are not compensable solely under Workmens Compensation Act. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=130>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Where Massachusetts Commission Against Discrimination Commissioner died after hearing but before making decision and another MCAD commissioner was appointed to review record and make decision, Superior Court judge properly vacated decision and remanded to MCAD for new hearing, because only two witnesses testified and their testimony was conflicting on issues material to determining whether complainant was bypassed because of his race. Salem v Massachusetts Com. against <<=131>> Discrimination (1989) 404 Mass 170, 534 NE2d 283, 49 BNA FEP Cas 554. In racial discrimination case based on ALM GL c 151B, plaintiff has burden of persuading factfinder that employer intentionally discriminated against him on account of race, and that defendant would not have taken action "but for" unlawful discrimination. <<=132>> McKenzie v Brigham & Women's Hospital (1989) 405 Mass 432, 541 NE2d 325, 50 BNA FEP Cas 1489. In racial discrimination case based on ALM GL c 151B, plaintiff meets burden of proof by establishing unanswered prima facie case of discrimination, for example, by showing that he belongs to racial minority, he was employed by defendant in position for which he was qualified, he was suspended or terminated, and employer thereafter sought to fill position with similarly qualified person. <<=133>> McKenzie v Brigham & Women's Hospital (1989) 405 Mass 432, 541 NE2d 325, 50 BNA FEP Cas 1489. If employer answers plaintiff's prima facie case by advancing lawful grounds for action taken and produces evidence of supporting facts, plaintiff, in order to prevail, must persuade fact-finder by fair preponderance of evidence that employer's asserted reasons were not real reasons for action. <<=134>> McKenzie v Brigham & Women's Hospital (1989) 405 Mass 432, 541 NE2d 325, 50 BNA FEP Cas 1489. Final decision of Massachusetts Commission Against Discrimination dismissing complaint of racial discrimination in employment, which was not appealed under ALM GL c 151B @ 6, precluded plaintiff from relitigating claims de novo in Superior Court under ALM GL c 151B @ 9. <<=135>> Brunson v Wall (1989) 405 Mass 446, 541 NE2d 338. Complainant must show prima facie case of discrimination, which then shifts burden of production to respondent to show lawful reason for its action. <<=136>> Drinkwater v School Committee of Boston (1990) 406 Mass 756, 550 NE2d 385, 53 CCH EPD 39895. Where ALM GL c 151B is applicable, employee alleging discriminatory conduct by employer must comply with administrative requirements of ALM GL c 151B and failure to do so precludes action by employee based on equal rights acts [ALM GL c 93 @@ 102, 103]. <<=137>> Charland v Muzi Motors (1994) 417 Mass 580, 631 NE2d 555, 64 BNA FEP Cas 1629, summary op at (Mass) 22 M.L.W. 1732. Employee alleging termination of his employment because of discrimination on account of age or national origin who did not file complaint with Massachusetts Commission Against Discrimination within required 6-month period was precluded from filing action based on equal rights act [ALM GL c 93 @@ 102, 103]. <<=138>> Charland v Muzi Motors (1994) 417 Mass 580, 631 NE2d 555, 64 BNA FEP Cas 1629, summary op at (Mass) 22 M.L.W. 1732. Federal Court's exercise of jurisdiction in sex discrimination case did not hinge on prior action by Massachusetts Commission Against Discrimination. <<=139>> Municipal Lighting Com. v Stathos (1982) 13 Mass App 990, 433 NE2d 95. Employee who is wrongfully terminated on grounds of age discrimination may not bring action against employer without following procedure in ALM GL c 151B. <<=140>> Melley v Gillette Corp. (1985) 19 Mass App 511, 475 NE2d 1227, 41 BNA FEP Cas 1320, 1 BNA IER Cas 720, affd <<=141>> 397 Mass 1004, 491 NE2d 252, 41 BNA FEP Cas 1322, 1 BNA IER Cas 722. Unless target of discrimination complaint elects judicial determination after Massachusetts Commission Against Discrimination makes finding of probable cause of unlawful conduct, Commission adjudicates complaint. <<=142>> Commonwealth v Dowd (1994) 37 Mass App 164, 638 NE2d 923. Evidence of corporate state-of-mind or discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with particular actors or time frame involved in specific events that generated claim of discriminatory treatment; evidence of institutional state-of-mind may be presented for consideration of trier-of-fact because employer's willingness to consider impermissible factors such as race, age, sex, national origin, or religion while engaging in one set of presumably neutral employment decisions might tend to support inference that such impermissible considerations may have entered into another area of ostensibly neutral employment decisions. <<=143>> Conway v Electro Switch Corp. (1987, CA1 Mass) 825 F2d 593, 44 BNA FEP Cas 753, 43 CCH EPD 37264, 23 Fed Rules Evid Serv 1024, ctfd ques ans <<=144>> 402 Mass 385. Circumstantial evidence may support inference of discrimination. <<=145>> Conway v Electro Switch Corp. (1987, CA1 Mass) 825 F2d 593, 44 BNA FEP Cas 753, 43 CCH EPD 37264, 23 Fed Rules Evid Serv 1024, ctfd ques ans <<=146>> 402 Mass 385. In action against employer alleging violations of federal Civil Rights Act and Massachusetts discrimination in civil rights statutes, it was appropriate for District Court to consider applicable federal standards in fashioning interest award, and District Court did not err in awarding plaintiff 8-percent interest on award of lost backpay and benefits, notwithstanding that Massachusetts interest statute provides higher rate of interest. <<=147>> Conway v Electro Switch Corp. (1987, CA1 Mass) 825 F2d 593, 44 BNA FEP Cas 753, 43 CCH EPD 37264, 23 Fed Rules Evid Serv 1024, ctfd ques ans <<=148>> 402 Mass 385. In action by former employee against employer and 2 of its supervisory employees for, inter alia, wrongful discharge under Massachusetts law, since plaintiff had already established cause of action for breach of contract, no new cause of action based on theory of wrongful discharge need be created to remedy alleged wrong, and consequently, defendants' motion to dismiss for failure to state claim upon which relief may be granted should be allowed. <<=149>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. Amendment making it unlawful to discriminate on basis of (Acts 1989, ch 516) may not be subject of referendum petition under Article 48 of Amendments to Massachusetts Constitution because of Amendment's inclusion of two provisions relating to discrimination of any type by religious institutions. Op AG 89/90-2. 4. Defenses Once prima facie case of unlawful discrimination is shown, respondent has burden of producing lawful explanation for its employment decision and credible evidence that reasons advanced are real reasons. Wheelock College v Massachusetts Com. against <<=150>> Discrimination (1976) 371 Mass 130, 355 NE2d 309, 20 BNA FEP Cas 1457, 13 CCH EPD 11508. Cost considerations alone cannot constitute defense to violation of ALM GL c 151B @ 4. Massachusetts Electric Co. v Massachusetts Com. against <<=151>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Since anticipated cost of granting sick leave benefits to pregnant employees would not justify disparate treatment of pregnancy, single commissioner was correct in excluding offer to prove such cost as irrelevant. School Committee of Brockton v Massachusetts Com. against <<=152>> Discrimination (1979) 377 Mass 392, 386 NE2d 1240, 21 BNA FEP Cas 918, 19 CCH EPD 9089. Bona fide occupational qualification is affirmative defense and is to be narrowly applied in situation where essence of business operation would be undermined by not hiring members of one race exclusively. <<=153>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Bona fide occupational defense must be based on objective evidence, and is invoked when employer shows that it has factual basis for believing that all or substantially all members of excluded race would be unable to perform safely and efficiently duties of job. <<=154>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Hearsay evidence of employer's conversation with gasoline station attendant who witnessed single attack on truck by white youths did not establish bona fide occupational qualifications so as to justify discharge of black truckdriver. <<=155>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Although plaintiff, who was black woman discharged after taking unapproved 2 month leave of absence to do missionary work for her church, established prima facie case of racial discrimination, employer articulated legitimate, nondiscriminatory reasons for discharge (inability to fill plaintiff's supervisory position) , and plaintiff did not prove that employer's explanation was pretextual. <<=156>> Lewis v Area II Homecare for Senior Citizens, Inc. (1986) 397 Mass 761, 493 NE2d 867. Amendment made by St. 1989 c 516 @@ 1, 14 broadened statutory exemption previously accorded religious institutions and organizations and certain affiliated charitable or educational organizations from anti-discrimination provisions of ALM GL c 151B. <<=157>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Effect of 1989 amendment (St. 1989, c 516, @@ 1, 14) is that, where action involved is calculated to promote religious principles for which organization is established or maintained, religion and affiliated organizations are not subject to various provisions of ALM GL c 151B. <<=158>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Under dual motive standard, if employer articulates lawful reason for hiring decision, employee has burden of persuasion on 2 distinct points: (1) reason was not actual, independent force in decision, and (2) reason was not supported by facts. Buckley Nursing Home, Inc. v Massachusetts Com. against <<=159>> Discrimination (1985) 20 Mass App 172, 478 NE2d 1292, 46 BNA FEP Cas 752, review den <<=160>> 395 Mass 1103, 482 NE2d 328. 5. Discrimination in housing Subsection 6 of this section prohibits discrimination because of race, creed, color or natural origin in renting or leasing of accommodations in multiple dwellings as defined in ALM GL c 151B @ 1, clause 11. <<=161>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Subsection 6 of this section is aimed at preventing discrimination in business of housing, in its application to privately financed multiple dwelling in contiguously located housing accommodations it seeks to reach leasing and selling when conducted as business, as such it is in pattern with other anti-discrimination legislation such as ALM GL c 272 @@ 92A and 98, and as such it is not unconstitutional as exceeding limits of police power under Part II, c 1, @ 1, art. 4, which results in violation of art. 1 of Declaration of Rights under Massachusetts Constitution or in deprivation of property without due process of law under Fourteenth Amendment of Federal Constitution. <<=162>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Prohibition of discrimination in renting of multiple dwellings contained in ALM GL c 151B @ 4, subsection 6, does not constitute taking of property without compensation in violation of Article 10 of Declaration of Rights of Massachusetts Constitution. <<=163>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Prohibition of discrimination in renting of multiple dwelling is not unconstitutional on ground of lack of relationship to public health and safety. <<=164>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Prohibition against discrimination in renting of multiple housing unit not violative of constitutional rights of rental agent. <<=165>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. For case where conclusion that landlord of apartment had refused to negotiate in good faith with prospective tenant and his wife and to rent apartment to them was based upon findings tending to show that landlord "did not negotiate" with prospective tenant and his wife "as he did with others," that "if he had done so, he would have rented the apartment to them," that "he sought to avoid any occasion for negotiation," and that "he postponed declaring a decision as to renting by insisting, not in good faith, on a credit check" of prospective tenants, see La Pierre v Massachusetts Com. against <<=166>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Upon review of conclusion of Commission that landlord of apartment had refused to negotiate in good faith and had withheld apartment from prospective tenant because of latter's national origin, (it being stipulated that he was Puerto Rican) , appellate court reviewed evidence and decided that findings on which were based conclusion of refusal to negotiate in good faith were supported by substantial evidence as required by ALM GL c 30A @ 14(8) (e) but that conclusion that refusal to negotiate was due to landlord's knowledge on particular date that prospective tenant was Puerto Rican was not supported by substantial evidence. La Pierre v Massachusetts Com. against <<=167>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. ALM GL c 151B @ 4(10) , prohibiting landlords from discriminating against recipients of public assistance or housing subsidies, was not in conflict with, and not pre-empted by, @ 8 of United States Housing Act of 1937 <<=168>> (42 USCS @ 1437f(a) ) . <<=169>> Atty. Gen. v Brown (1987) 400 Mass 826, 511 NE2d 1103. Housing Court judge erred in granting summary judgment in Attorney General's discrimination action against landlord who owned 800 apartments within rental category for federal @ 8 housing program and who refused to rent to @ 8 certificate holders (who were blacks and minorities) , because genuine issues of material fact existed as to whether landlord had legitimate business reasons for its action. <<=170>> Atty. Gen. v Brown (1987) 400 Mass 826, 511 NE2d 1103. Landlord's sexual harassment of tenant constituted discrimination in housing even if no adverse housing action (i.e., eviction, refusal to rent, rent increase) is threatened or taken. Gnerre v Massachusetts Com. against <<=171>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Plaintiff states prima facie case of sexual harassment in violation of ALM GL c 151B @ 4(6) by demonstrating (1) that landlord subjected him or her to unsolicited harassment of sexual nature, and (2) harassment was of such nature that it would make tenancy significantly less desirable to reasonable person in plaintiff's position. Gnerre v Massachusetts Com. against <<=172>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Landlord's sexual harassment of tenant significantly reduced desirability of tenancy because tenant was reluctant to have landlord enter her apartment to make repairs and to use porch because landlord was often in area, because tenant altered her pattern of coming and going from apartment in order to avoid landlord, and because tenant was afraid to invite guests to apartment for fear that landlord would make sexually offensive comments in presence of guests. Gnerre v Massachusetts Com. against <<=173>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Sexual harassment in housing context is not limited only to demands for sexual favors. Gnerre v Massachusetts Com. against <<=174>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Policy of Worcester Housing Authority denying public housing benefits to unmarried couples on sole basis that they are not married is prohibited by ALM GL c 151B @ 4(6) and (7) , making unlawful refusal to rent public housing because of marital status. Worcester Housing Authority v Massachusetts Com. against <<=175>> Discrimination (1989) 406 Mass 244, 547 NE2d 43. Use of plural "persons" in ALM GL c 151B @ 4(6) and (7) signifies legislative determination that 2 persons cannot be denied housing accommodations or benefits solely on account of their race, age, sex or marital status. Worcester Housing Authority v Massachusetts Com. against <<=176>> Discrimination (1989) 406 Mass 244, 547 NE2d 43. Landlord violated ALM GL c 151B @ 4(7) by refusing to rent apartment to woman who proposed to occupy it with man friend. <<=177>> Commonwealth v Dowd (1994) 37 Mass App 164, 638 NE2d 923. Commission is not required under subdivisions (6) and (7) of this section to order every respondent who has been found to have discriminated against the complainant to offer housing accommodation (if available) to such complainant, irrespective of any other circumstances which may exist. 1963--1964 Op AG 220. 6. Discrimination in employment; In general Burden-shifting principles enunciated in U.S.Supreme Court case of <<=179>> McDonnell Douglas Corp. v Green (1973) 411 US 792, 36 LEd2d 668, 93 SCt 1817, are inappropriate in disparate impact employment discrimination case. <<=180>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Upon complaint of discrimination in connection with discharge from employment, where prior to filing of complaint, complainant had received hearing under union agreement wherein discharge was upheld, question before Commission under @@ 4 and 5 of this chapter was solely as to whether there had been unlawful practice based on discrimination under @ 4, par 1, and not as to correctness of prior disposition of labor dispute. <<=181>> Strong v Massachusetts Com. Against Discrimination (1967) 351 Mass 554, 222 NE2d 885, 1 BNA FEP Cas 163, 1 CCH EPD 9761. Private employer which discharged at-will employees for their refusal to answer questionnaire was not liable, because employer had right to ask particular questions which were either relevant to job qualifications or were not an invasion of privacy rights. <<=182>> Cort v Bristol-Myers Co. (1982) 385 Mass 300, 431 NE2d 908, 115 BNA LRRM 5127. Where there was no genuine issue of material fact as to whether employer's asserted reason for terminating plaintiff's employment was merely pretext, judge properly granted summary judgment for hospital on plaintiff-employee's claim under ALM GL c 151B. <<=183>> McKenzie v Brigham & Women's Hospital (1989) 405 Mass 432, 541 NE2d 325, 50 BNA FEP Cas 1489. Judge properly dismissed employee's claim under <<=184>> 42 USCS @ 1981 whether limitation of actions in ALM GL c 151B @ 5 or ALM GL c 260 @ 2A was applicable, since plaintiff failed to present evidence that employer's stated reason for termination was only pretext for intentional discrimination. <<=185>> McKenzie v Brigham & Women's Hospital (1989) 405 Mass 432, 541 NE2d 325, 50 BNA FEP Cas 1489. Person who feels that his or her rights under ALM GL c 151B @ 4(1) have been violated may file complaint with Massachusetts Commission Against Discrimination which has power to hold hearings and render judgments regarding claims of unlawful discrimination. <<=186>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Employer who misapplies affirmative action plan may be engaging in illegal "reverse" discrimination. <<=187>> Drinkwater v School Committee of Boston (1990) 406 Mass 756, 550 NE2d 385, 53 CCH EPD 39895. Where there was material factual issue as to qualifications of minority candidate to fill staff attorney position for school committee, as required by facially valid affirmative action plan, summary judgment should not have been granted for school committee in action brought by unsuccessful white candidate for illegal racial discrimination. <<=188>> Drinkwater v School Committee of Boston (1990) 406 Mass 756, 550 NE2d 385, 53 CCH EPD 39895. Laws protecting handicapped civil service employees against discrimination may limit authority of department head in some circumstances to deny approval of reinstatement of employee retired on accidental disability. <<=189>> Milton v Personnel Admr. of Dept. of Personnel Admin. (1990) 406 Mass 818, 551 NE2d 14. Where telephone company employee who had suffered cognitive deficits after motor vehicle accident failed to carry his burden of proving that "gaff climbing" (climbing pole with pointed blades attached to legs) was not essential function of job he sought and failed gaff climbing test on two occasions, judge properly found that employee was not "qualified handicapped person" entitled to protection of ALM GL c 151B. <<=190>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Employee who was not "qualified handicapped person" capable of performing job of "splice service technician" for telephone company was not entitled to relief under ALM GL c 151B. <<=191>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Court may look to Federal Rehabilitation Act of 1973 [<<=192>> 29 USCS @ 794] and decisions construing and applying it for guidance in construing and applying Massachusetts employment discrimination statute in which discrimination on account of handicap is alleged. <<=193>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Burden of proving inability to accommodate handicaped persons rests with employer but is triggered only after plaintiff produces sufficient evidence to make facial showing that reasonable accommodation is possible. <<=194>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. ALM GL c 151B provides detailed framework to protect citizens of Commonwealth against employment discrimination, by defining terms and prohibited activities and establishing procedures for filing, investigating, and disposition of complaints. <<=195>> Charland v Muzi Motors (1994) 417 Mass 580, 631 NE2d 555, 64 BNA FEP Cas 1629, summary op at (Mass) 22 M.L.W. 1732. Dismissal of 51-year old employee with heart condition after missing work for four days due to hospitalization with chest pain constituted discrimination on basis of handicap, where employee was ready to return to work without restrictions; employee entitled to recover $10,000 for emotional distress as result of discharge, $5000 in back pay (after deducting workers compensation recovery) and $3450.40 in lost pension benefits. <<=196>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. To prove case of handicap discrimination under ALM GL c 151B @ 4(16) , employee has burden of persuading fact-finder that employee (1) is handicapped person, (2) is otherwise capable of performing essential functions of position, and (3) is being excluded from position solely by reason of handicap. <<=197>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. Person with heart disease known to employer at time of hiring and otherwise able to perform work qualifies for special protections of ALM GL c 151B @ 4(16) , prohibiting discrimination in employment because of handicap. <<=198>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. To defeat summary judgment, once an employer has articulated presumptively legitimate reason for allegedly discriminatory conduct, plaintiff employee must do more than cast doubt on wisdom of employer's justification but must introduce evidence that real reason for employer's action was discrimination; but there is no absolute rule that plaintiff must adduce evidence in addition to that comprising prima facie case and rebuttal of defendant's justification, in order to prevail either at summary judgment or at trial; rather evidence as a whole, whether direct or indirect, must merely be sufficient for reasonable factfinder to infer that employer's decision was motivated by discriminatory animus. <<=199>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. Where plaintiff raises initial inference of discrimination by adducing proof, among other things, that he was candidate for tenure and qualified under university's standards, practices, or customs, plaintiff need only show that his qualifications were at least comparable to those of middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise by the tenure decision making body. Plaintiff made out prima facie case of discriminatory denial of tenure by showing he was brown-skinned male Mexican American, age 44, among "middle group" of tenure candidates, and turned down for tenure while others were approved in same general time period; but college tenure committee's finding that plaintiff was not "sufficiently excellent" in any of 5 categories used by college to evaluate tenure potential, was legitimate and nondiscriminatory reason for denial of tenure. <<=200>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. Laid off yardmaster cannot pursue claim under ALM GL c 151B @ 4 against railroad/employer which disqualified him from "bumping" less senior employee to take desired stevedore position due to his lack of right hand, where former yardmaster has fully availed himself of grievance and dispute resolution remedies under Railway Labor Act (RLA) <<=201>> (45 USCS @@ 151 et seq.) , because permitting him to relitigate issue of his physical fitness by way of claim under state physical handicap discrimination law would clearly conflict with "prompt, orderly, and final settlement of grievances" sought by Congress in enacting RLA. <<=202>> O'Brien v Conrail (1992, CA1 Mass) 972 F2d 1, 59 BNA FEP Cas 803, 140 BNA LRRM 3014, 59 CCH EPD 41647, 123 CCH LC 10344, cert den (US) <<=203>> 122 L Ed 2d 134, 60 BNA FEP Cas 888. Propriety of office furniture seller's firing of depressed salesman is upheld, where salesman, in filing for disability benefits four months after being granted 2 leaves of absence but denied other accommodations on account of his major depression, conceded that he was totally disabled at all relevant times, because he cannot now establish that he was "qualified handicapped person" and thus cannot make prima facie case required to prevail on his claim under ALM GL c 151B @ 4(16) . <<=204>> August v Offices Unlimited, Inc. (1992, CA1 Mass) 981 F2d 576, 2 <<=205>> AD Cas 401, 60 CCH EPD 41904, 124 CCH LC 57202. ALM GL c 151B does not eliminate individual's common law rights to bring employment discrimination suit for recovery for intentional infliction of emotional distress, even though court may award damages for emotional distress to plaintiff who has prevailed in suit brought under ALM GL 151B. <<=206>> Egger v Local 276, Plumbers & Pipefitters Union (1986, DC Mass) 644 F Supp 795, 41 BNA FEP Cas 1465, 41 CCH EPD 36631 later proceeding (DC Mass) <<=207>> 46 BNA FEP Cas 1855, 44 CCH EPD 37347, affd (CA1 Mass) <<=208>> 843 F2d 18, 47 BNA FEP Cas 323, 46 CCH EPD 37908, 25 Fed Rules Evid Serv 47. Claim by former employee for wrongful termination was pre-empted by ERISA, since employee's state law wrongful discharge claim clearly related to employee benefit plan, and arose under wrongful discharge provision contained in ERISA. <<=209>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. In action by former employee against former employer for wrongful termination in which former employee alleged deceit, former employee pled damages with sufficient particularity in its action; however, employee failed to allege damages cognizable in claim for deceit based on representation that employee would have secure and continued employment. <<=210>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. In action for wrongful termination, employee could not recover as damages wages or benefits relating to future services beyond that which would accrue during period covered by retraining program and pretermination procedures. <<=211>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. In wrongful termination action, future wages and benefits are not recoverable damages for breach of promise to apprise employee of unsatisfactory work performance or that termination was imminent; further, employee cannot recover future wages and benefits for breach of promises to retrain and to provide opportunity to improve job performance beyond period of time filled by such promises. <<=212>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. In wrongful termination action, absent independent duty imposed by laws, former employee did not state action in tort by alleging injury caused by former employer's negligent performance of its promises to retrain him or to perform job evaluations; in addition, to extent that duty of care in performance of promises of retaining and in conducting job evaluations arose solely from promises and intentions of parties, no tort duty arises; to extent law imposed duty of care on employer, such duty is defined by covenant of good faith and fair dealing, and breach of such covenant sounds in contract, not tort. <<=213>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. Employer did not commit actionable discrimination against handicapped by requiring secretary suffering from scoliosis who had been on disability for approximately 1 1/2 years to take typing test when she requested to return to work and in refusing to rehire her based on results of typing test. <<=214>> Conway v Boston Edison Co. (1990, DC Mass) 745 F Supp 773. Even after person has become employee inquiries concerning his race, color, religious creed, national origin, or ancestry continue to be unlawful labor practices; however, although employer is prohibited from making inquiries or keeping records of ages of applicants, he must keep such records of actual employees. 1963--1964 Op AG 198. 7. Race discrimination Massachusetts Commission Against Discrimination finding that black patrolman who was first on civil service list for promotion to sergeant was passed over for reasons of racial discrimination was supported by evidence. Springfield Board of Police Comrs. v Massachusetts Com. against <<=216>> Discrimination (1978) 375 Mass 782, 375 NE2d 710, 20 BNA FEP Cas 1654. Discharge of black truckdriver for reasons of safety (to avoid attacks in white neighborhood) was not nondiscriminatory and was violation of ALM GL c 151B, even though employer did not intend to discriminate and did not act with racial hostility or animosity. <<=217>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Discharge of teachers on basis of seniority and without consideration of minority affirmative action goals was not in violation of ALM GL c 151B @ 4. <<=218>> Concerned Minority Educators v School Committee of Worcester (1984) 392 Mass 184, 466 NE2d 114, 35 BNA FEP Cas 128, 116 BNA LRRM 3010, 38 CCH EPD 35629. Black woman established prima facie case of racial discrimination in employment with allegations that after short-term disability leave, she was terminated although qualified for position and for newly-created successor position not offered to her, and that white woman was hired to replace her; summary judgment for employer reversed. <<=219>> Harrison v Boston Fin. Data Servs. (1994) 37 Mass App 133, 638 NE2d 41. Provision in public construction contract, inserted by authority of executive order and ALM GL c 6A @ 24 and ALM GL c 149 @ 44A, that contractor was to take "every possible measure" to employ certain percentage of minority workers, and further providing that Massachusetts Commission Against Discrimination could make, pursuant to regulations promulgated by Secretary of Transportation, ex parte findings of non-compliance and recommendations of sanctions, did not involve Massachusetts Commission Against Discrimination in actions prohibited by anti-preference statute, ALM GL c 151B @ 4. <<=220>> Associated General Contractors, Inc. v Altshuler (1973, CA1 Mass) 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=221>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Anti-preference clause of this section applied only to regulations issued by Massachusetts Commission Against Discrimination and not to investigations and recommendations as to racial imbalance of contractor's work force under publicly funded construction contract; clause applies only to authority vested by statute itself, while authority for requirement of lack of discrimination in work force comes from Governor's Executive Order No. 74 and ALM GL c 6A @ 24 and ALM GL c 149 @ 44A. <<=222>> Associated General Contractors, Inc. v Altshuler (1973, CA1 Mass) 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=223>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Authority for minority hiring quota in state construction contract was derived from ALM GL c 149 @ 44A, and ALM GL c 6A @ 24, as well as Executive Order; thus, such hiring quota did not violate anti-preference provisions of ALM GL c 151B @ 4. <<=224>> Associated General Contractors, Inc. v Altshuler (1973, CA1 Mass) 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=225>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. To defeat summary judgment, once an employer has articulated presumptively legitimate reason for allegedly discriminatory conduct, plaintiff employee must do more than cast doubt on wisdom of employer's justification but must introduce evidence that real reason for employer's action was discrimination; but there is no absolute rule that plaintiff must adduce evidence in addition to that comprising prima facie case and rebuttal of defendant's justification, in order to prevail either at summary judgment or at trial; rather evidence as a whole, whether direct or indirect, must merely be sufficient for reasonable factfinder to infer that employer's decision was motivated by discriminatory animus. <<=226>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. Where plaintiff raises initial inference of discrimination by adducing proof, among other things, that he was candidate for tenure and qualified under university's standards, practices, or customs, plaintiff need only show that his qualifications were at least comparable to those of middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise by the tenure decision making body. Plaintiff made out prima facie case of discriminatory denial of tenure by showing he was brown-skinned male Mexican American, age 44, among "middle group" of tenure candidates, and turned down for tenure while others were approved in same general time period; but college tenure committee's finding that plaintiff was not "sufficiently excellent" in any of 5 categories used by college to evaluate tenure potential, was legitimate and nondiscriminatory reason for denial of tenure. <<=227>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. ALM GL c 151B @ 4, proscribing Massachusetts Commission Against Discrimination from requiring preferential treatment because of racial imbalance, did not apply to proposed provision of contract for public improvement requiring 20 percent minority work force where Commission was acting in investigative power only and authority for such contractual provision came from executive order and authority to accept and reject bids given to director of Bureau of Building Construction by ALM GL c 6A @ 24 and c 149 @@ 44A et seq. <<=228>> Associated General Contractors, Inc. v Altshuler (1973, DC Mass) 361 F Supp 1293, 5 BNA FEP Cas 1105, 6 CCH EPD 8992, affd (CA1 Mass) <<=229>> 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=230>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Black loading dock worker who alleged racially motivated discharge, harassment on the job, and interference with his attempts to obtain unemployment benefits could not institute cause of action under ALM GL c 12 @ 11(I) because his harassment and termination claims were covered by ALM GL c 151B, and the alleged interference with attempts to obtain unemployment benefits was not shown to have been done through threats, intimidation or coercion. <<=231>> Bester v Roadway Express, Inc. (1990, DC Mass) 741 F Supp 321, 53 BNA FEP Cas 834. 8. Sex discrimination--In general Pursuant to provision of federal Civil Rights Act of 1964 prohibiting employer from discriminating against individual on basis of sex, when workplace is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter conditions of victim's employment and create abusive working environment, Title VII is violated; this standard takes middle path between making actionable any conduct that is merely offensive, and requiring conduct to cause tangible psychological injury; so long as environment would reasonably be perceived and is so perceived as hostile or abusive, there is no need for environment also to be psychologically injurious; whether environment is "hostile" or "abusive" can be determined only by looking at all circumstances. With respect to case at hand, it was improper for District Court to rely on whether company president's conduct had seriously affected plaintiff worker's psychological well being or had led her to suffer injury, for such inquiry might needlessly focus on concrete psychological harm, and Court's application of these incorrect standards might have influenced its ultimate conclusion. <<=232>> Harris v Forklift Sys. (1993, US) 126 L Ed 2d 295, 114 S Ct 367, 93 CDOS 8330, 93 <<=233>> Daily Journal DAR 14212, 63 BNA FEP Cas 225, 62 CCH EPD 42623, 7 FLW Fed S 655 as stated in <<=234>> Saxton v American Tel. & Tel. Co. (CA7) 1993 US App LEXIS 31599. Discrimination against homosexuals is not discrimination because of "sex" which is taken to mean discrimination between men and women. Macauley v Massachusetts Com. against <<=235>> Discrimination (1979) 379 Mass 279, 397 NE2d 670, 21 CCH EPD 30552. Denial of promotion to public employee because of her sex is constitutionally impermissible and violates statutory proscriptions. <<=236>> Blue Hills Regional Dist. School Committee v Flight (1981) 383 Mass 642, 421 NE2d 755. ALM GL c 151B @ 4(17) (a) did not apply to case of discrimination on basis of sex. <<=237>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. In case alleging sex discrimination in employment, plaintiff has burden of persuading fact-finder that employer intentionally discriminated against him or her on account of sex and that, but for discrimination, employer would not have taken complained-of action, but, once plaintiff establishes prima facie case, employer may answer by producing evidence of lawful grounds for action taken, in which event plaintiff must then persuade fact-finder that employer's asserted reasons were not real reasons for action. <<=238>> Brunner v Stone & Webster Engineering Corp. (1992) 413 Mass 698, 603 NE2d 206, 60 BNA FEP Cas 985. Judge incorrectly granted defendant's motion for directed verdict in case brought by female employee over age 40 for discrimination in employer's refusal to transfer or promote employee, where employee had established prima facie case of sexual discrimination. <<=239>> Radvilas v Stop & Shop, Inc. (1984) 18 Mass App 431, 466 NE2d 832. In action by employee for discrimination suffered at hands of employer, no prejudicial error occurred in allowing testimony as to sex-biased statements made by 2 of defendant's managers, since statements tended to highlight atmosphere and institutional state-of-mind present at employer during plaintiff's period of employment. <<=240>> Conway v Electro Switch Corp. (1987, CA1 Mass) 825 F2d 593, 44 BNA FEP Cas 753, 43 CCH EPD 37264, 23 Fed Rules Evid Serv 1024, ctfd ques ans <<=241>> 402 Mass 385. Although antidiscrimination laws of Commonwealth (ALM GL c 151B @ 4) cannot be held to prohibit restrictions on employment of women contained in ALM GL c 149 @@ 67 and 69--73, ALM GL c 149 @ 67 is pre-empted by Civil Rights Act of 1964 <<=242>> (42 USCS @@ 2000 et seq.) to extent that it establishes minimum ages for employment of women which are more stringent than for employment of men; otherwise, claims as to discriminatory effect of particular sections of ALM GL c 149 must be considered on case-by-case basis. 1971--1972 Op AG 38. ALM GL c 23 @ 1, providing that assistant commissioner of labor and industries shall be a woman, violates equal protection clause of Fourteenth Amendment, Title VII of 1964 Civil Rights Act, <<=244>> 42 USCS @@ 2000(e) et seq., and Massachusetts Fair Practices Act, ALM GL c 151B @ 4. 1975--<<=245>> 1976 Op AG 59. 9. -Hiring, promotion, and firing Where petitioner who held rank of policewoman in State Police contended that failure to promote her to grade of staff sergeant discriminated against her solely because of sex in violation of Federal Constitution and of ALM GL c 151B @ 4(1) , as amended, no such discrimination was shown where it appeared that only two persons were promoted to fill vacancies while petitioner was one of top three candidates for promotion to staff sergeant upon promotion list under c 22 @ 90, and that both of those persons promoted were higher on list than petitioner, and where there was nothing to show that persons so promoted were not qualified. <<=246>> Johnson v Commissioner of Public Safety (1968) 355 Mass 94, 243 NE2d 157. Case of female college professors' claim of sex discrimination in college's denial of tenure status remanded to Massachusetts Commission Against Discrimination for further determination of whether professors proved prima facie case of sex discrimination in college tenure decision, i. e., whether there existed independent, nondiscriminatory reasons for tenure committee's adverse determination (lack of qualification) or whether discriminatory motives, inferred from differences in treatment of two groups, existed. Smith College v Massachusetts Com. against <<=247>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. Case of sex discrimination is not proved by female faculty member of college if decision to grant tenure would have been negative despite sex. Smith College v Massachusetts Com. against <<=248>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. ALM GL c 151B @ 4(1) prohibits discrimination in terms, conditions or privileges of employment on the basis of an employee's sex. <<=249>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. In order to establish prima facie case of sex discrimination resulting in termination of employment, plaintiff must establish (1) she is member of protected group, (2) she performed the job at acceptable level, (3) she was terminated, and (4) her employer sought replacement with similar qualifications. <<=250>> White v University of Massachusetts (1991) 410 Mass 553, 574 NE2d 356. Judge properly granted summary judgment for university and administrator in action brought by pregnant woman alleging wrongful termination from her teaching position because of her sex, since there was no evidence that plaintiff was terminated from her position. <<=251>> White v University of Massachusetts (1991) 410 Mass 553, 574 NE2d 356. Where employer's reason for discharging plaintiff (shortage of work and lack of training and capability in contrast to employees with less seniority) was nondiscriminatory and where plaintiff would be unable to show that such reason was pretext, summary judgment was properly entered for employer. <<=252>> Brunner v Stone & Webster Engineering Corp. (1992) 413 Mass 698, 603 NE2d 206, 60 BNA FEP Cas 985. Massachusetts Commission Against Discrimination correctly dismissed complaint against employer for alleged sexual discrimination on three distinct grounds, sexual harassment, unequal pay and denial of promotion, where employee did not take offense to or decline to participate in sexually-oriented conversations and activities, and therefore did not establish prima facie case of sexual discrimination. <<=253>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Pay discrepancy between female plaintiff who was sales manager for bus company and man employed in same position with another bus company did not constitute gender discrimination, where Commissioner found that discrepancy was justified by other employee's greater experience and boader range of duties and other company's larger customer base. <<=254>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Company's hiring of man to fill position to which female plaintiff sought to be promoted did not constitute sexual discrimination, where employer presented evidence that plaintiff was not qualified for position and plaintiff offered no evidence indicating that this reason was pretext. <<=255>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Female applicant for full-time police officer who had served for 2 years as auxiliary police officer and had passed civil service test and met all other statutory eligibility requirements, and who was by-passed for appointment on grounds she was "an introvert" established discrimination by reason of sex. <<=256>> Riffelmacher v Board of Police Comrs. (1989) 27 Mass App 159, 535 NE2d 1280. Massachusetts Commission Against Discrimination determined that restaurant had engaged in unlawful sex discrimination by deterring 2 women from applying for advertised position as bartender. J. C. Hillary's v Massachusetts Com. against <<=257>> Discrimination (1989) 27 Mass App 204, 536 NE2d 1104. In action alleging sex discrimination in violation of <<=258>> 42 USCS @@ 2000 et seq. and ALM GL c 151B @ 4, plaintiff, a plumber, made prima facie case of discrimination and satisfied ultimate burden of proof by showing by fair preponderance of evidence that defendant's proffered explanation for plaintiff's lay-off, namely lack of work, was unworthy of credence; plaintiff established that defendant's foreman was disturbed that union sent her to work, that foreman laughed at and told gender-related jokes in plaintiff's presence and at her expense, that foreman closely supervised plaintiff's work and thus demeaned her demonstrable plumbing skills, that foreman laid off plaintiff but protected job for male worker, and that defendant continued to maintain and add to his plumbing force after plaintiff had been laid off. <<=259>> Hallquist v Local 276, Plumbers & Pipefitters Union (1988, CA1 Mass) 843 F2d 18, 47 BNA FEP Cas 323, 46 CCH EPD 37908, 25 Fed Rules Evid Serv 47. Female university English professor successfully proved discriminatory reasons behind denial of her tenure based on her sex, meriting $15,000 damages award and reinstatement to professorship with tenure. <<=260>> Brown v Trustees of Boston University (1989, CA1 Mass) 891 F2d 337, 51 BNA FEP Cas 815, 133 BNA LRRM 2013, 52 CCH EPD 39497, 114 CCH LC 11840, 29 <<=261>> Fed Rules Evid Serv 642, reh den (CA1) 133 BNA LRRM 2443, 114 CCH LC 11841, reported in full (CA1) <<=262>> 52 CCH EPD 39707, cert den (US) <<=263>> 110 L Ed 2d 664, 110 S Ct 3217, 53 CCH EPD 40000. Employer's managers constructively discharged waitress where in retaliation for continued insistence on promotion which was denied because of sex, they reduced work schedule from three shifts per week to one, effectively cutting wages by two-thirds, and thereby violated ALM GL c 151B @ 4. <<=264>> Thurber v Jack Reilly's, Inc. (1981, DC Mass) 521 F Supp 238, 32 BNA FEP Cas 1508, 26 CCH EPD 32109, affd (CA1 Mass) <<=265>> 717 F2d 633, 32 BNA FEP Cas 1511, 32 CCH EPD 33810, cert den <<=266>> 466 US 904, 80 L Ed 2d 153, 104 S Ct 1678, 34 BNA FEP Cas 544, 33 CCH EPD 34228. 10. -Pregnancy and maternity benefits Construction of ALM GL c 151B @ 4, which precludes exclusion of pregnancy-related disabilities from comprehensive disability plan, is not preempted by Federal Labor Law. Massachusetts Electric Co. v Massachusetts Com. against <<=267>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Electric company's exclusion of temporary disabilities relating to pregnancy from comprehensive disability plan constitutes unlawful sex discrimination in employment in violation of ALM GL c 151B @ 4. Massachusetts Electric Co. v Massachusetts Com. against <<=268>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Interpretation of ALM GL c 151B @ 4 requiring inclusion of pregnancy-related disabilities in employer's comprehensive disability plan is not inconsistent with expressed purpose of Federal legislation prohibiting inequality in employment opportunity. Massachusetts Electric Co. v Massachusetts Com. against <<=269>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. School committee's policy denying female employees accrued sick leave for pregnancy related disabilities constitutes unlawful sex discrimination in employment. School Committee of Brockton v Massachusetts Com. against <<=270>> Discrimination (1979) 377 Mass 392, 386 NE2d 1240, 21 BNA FEP Cas 918, 19 CCH EPD 9089. Inclusion of unpaid maternity leave of absence in collective bargaining agreement was not waiver by teachers of right to receive sick pay while absent from school by reason of pregnancy. School Committee of Brockton v Massachusetts Com. against <<=271>> Discrimination (1979) 377 Mass 392, 386 NE2d 1240, 21 BNA FEP Cas 918, 19 CCH EPD 9089. Maternity leave regulation of Massachusetts Commission Against Discrimination, requiring employees to treat pregnancy like other disabilities, do not impermissibly conflict with ALM GL c 140 @ 105D, which requires employer to grant maternity leave but does not require employer to establish disability benefits program for females taking maternity leaves. School Committee of Brockton v Massachusetts Com. against <<=272>> Discrimination (1979) 377 Mass 392, 386 NE2d 1240, 21 BNA FEP Cas 918, 19 CCH EPD 9089. School committee's refusal to permit teachers to utilize accrued sick leave for pregnancy related disabilities which occur at outset of extended maternity leaves constitutes unlawful sex discrimination. School Committee of Braintree v Massachusetts Com. against <<=273>> Discrimination (1979) 377 Mass 424, 386 NE2d 1251, 21 BNA FEP Cas 923, 19 CCH EPD 9110. School committee rule barring use of sick leave during all extended leaves of absences operates to particular disadvantage of woman teachers who are pregnant and constitutes unlawful sex discrimination. School Committee of Braintree v Massachusetts Com. against <<=274>> Discrimination (1979) 377 Mass 424, 386 NE2d 1251, 21 BNA FEP Cas 923, 19 CCH EPD 9110. Pregnant teachers' entitlement to sick leave benefits is limited to period of time during which they are actually disabled by pregnancy. School Committee of Braintree v Massachusetts Com. against <<=275>> Discrimination (1979) 377 Mass 424, 386 NE2d 1251, 21 BNA FEP Cas 923, 19 CCH EPD 9110. Teacher union's failure to credit two teachers with seniority prior to their resignations under illegal maternity leave policy was continuing violation, releasing complainants from 6 month limitation for filing complaints with Massachusetts Commission Against Discrimination. <<=276>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Teachers' showing that seniority system placed unique burden on female employees who were unlawfully forced to resign due to their pregnancies established prima facie case of deliberate discrimination based on illegal considerations. <<=277>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Where plaintiff lied to employer at time of interview about her intention of having more children, discharge of plaintiff two months later when plaintiff told employer she was pregnant was lawful. <<=278>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. Evidence of plaintiff's emotional distress was admissible on issue of damages but not on issue of liability for unlawful discrimination in employment because of sex. <<=279>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. 11. -Sexual harassment Pursuant to provision of federal Civil Rights Act of 1964 prohibiting employer from discriminating against individual on basis of sex, when workplace is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter conditions of victim's employment and create abusive working environment, Title VII is violated; this standard takes middle path between making actionable any conduct that is merely offensive, and requiring conduct to cause tangible psychological injury; so long as environment would reasonably be perceived and is so perceived as hostile or abusive, there is no need for environment also to be psychologically injurious; whether environment is "hostile" or "abusive" can be determined only by looking at all circumstances. With respect to case at hand, it was improper for District Court to rely on whether company president's conduct had seriously affected plaintiff worker's psychological well being or had led her to suffer injury, for such inquiry might needlessly focus on concrete psychological harm, and Court's application of these incorrect standards might have influenced its ultimate conclusion. <<=280>> Harris v Forklift Sys. (1993, US) 126 L Ed 2d 295, 114 S Ct 367, 93 CDOS 8330, 93 <<=281>> Daily Journal DAR 14212, 63 BNA FEP Cas 225, 62 CCH EPD 42623, 7 FLW Fed S 655 as stated in <<=282>> Saxton v American Tel. & Tel. Co. (CA7) 1993 US App LEXIS 31599. Sexual harassment may constitute discrimination in violation of ALM GL c 151B @ 4(1) . College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=283>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Where supervisor of female employee had over period of several months engaged in pattern of unwelcome sexual conduct toward employee, including offensive comments, touching and sexual propositions, employee was subjected to sexually harassing work environment, creating barrier based solely on gender to employee's full participation in workplace. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=284>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Substantial evidence supported finding that employer's attempted transfer and subsequent discharge of female employee who complained of sexual harassment was retaliatory. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=285>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Provisions of ALM GL c 151B were not applicable in case of alleged sexual harassment by employee's supervisor, because employer had fewer than 6 employees. <<=286>> O'Connell v Chasdi (1987) 400 Mass 686, 511 NE2d 349. Landlord who sexually harassed tenant during course of 7 year tenancy discriminated against tenant on basis of sex in violation of ALM GL c 151B @ 4(6) . Gnerre v Massachusetts Com. against <<=287>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Massachusetts Commission Against Discrimination correctly dismissed complaint against employer for alleged sexual discrimination on three distinct grounds, sexual harassment, unequal pay and denial of promotion, where employee did not take offense to or decline to participate in sexually-oriented conversations and activities, and therefore did not establish prima facie case of sexual discrimination. <<=288>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Sexual harassment may constitute violation of ALM GL c 151B @ 4(1) , which prohibits employment discrimination on basis of gender. <<=289>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Employee who alleges sexual harassment must show that employer's conduct was intentionally or in effect hostile, intimidating, or humiliating to plaintiff in way which affected her performance or conditions of her employment. <<=290>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Plaintiff complaining of sexual harassment in workplace may not evade requirement of filing administrative complaint prior to bringing suit by initiating action under Massachusetts Rights Act. <<=291>> Contaxes v Eusey Press, Inc. (1983, Mass Super Ct) 32 CCH EPD 33874. 12. Age discrimination Age discrimination not shown on part of employer who offered early retirement benefits to employees over age 55 but not to those between ages of 40 and 55 at time of plant close-down. Rock v Massachusetts Com. against <<=292>> Discrimination (1981) 384 Mass 198, 424 NE2d 244, 41 BNA FEP Cas 1351, 27 CCH EPD 32163. Massachusetts Commission Against Discrimination could interpret governing statute to require plaintiff alleging age discrimination to prove some harm or injury to expected employment benefit due to age. Rock v Massachusetts Com. against <<=293>> Discrimination (1981) 384 Mass 198, 424 NE2d 244, 41 BNA FEP Cas 1351, 27 CCH EPD 32163. Intent of Legislature in enacting ALM GL c 151B @ 4(17) (a) was to focus exclusively on problems of age discrimination in work place. <<=294>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Jury was warranted in finding that discharge of 51-year-old corporate vice-president for poor job performance was pretext for discharge based on concerns about his age and that discharge accordingly was in violation of age discrimination laws. <<=295>> Fontaine v Ebtec Corp. (1993) 415 Mass 309, 613 NE2d 881, summary op at (Mass) 21 M.L.W. 2637. Principles and procedures applicable to age discrimination under ALM GL c 151B and <<=296>> 29 USCS @@ 621 et seq. appear to be generally comparable. <<=297>> Radvilas v Stop & Shop, Inc. (1984) 18 Mass App 431, 466 NE2d 832. Where public policy against age discrimination is protected by comprehensive legislative scheme, new common law action based on same policy would interfere with remedial scheme and would not be judicially created. <<=298>> Melley v Gillette Corp. (1985) 19 Mass App 511, 475 NE2d 1227, 41 BNA FEP Cas 1320, 1 BNA IER Cas 720, affd <<=299>> 397 Mass 1004, 491 NE2d 252, 41 BNA FEP Cas 1322, 1 BNA IER Cas 722. <<=300>> Melley v Gillette Corp. (1985) 19 Mass App 511, 475 NE2d 1227, 41 BNA FEP Cas 1320, 1 BNA IER Cas 720, affd <<=301>> 397 Mass 1004, 491 NE2d 252, 41 BNA FEP Cas 1322, 1 BNA IER Cas 722, holds that remedy for at-will employee who asserts wrongful termination on grounds of age discrimination lies exclusively in claim brought in accordance with procedures set forth in ALM GL c 151B, the Anti-Discrimination Law. <<=302>> Mouradian v General Electric Co. (1987) 23 Mass App 538, 503 NE2d 1318, 43 BNA FEP Cas 240, 1 BNA IER Cas 1691, review den <<=303>> 399 Mass 1105, 507 NE2d 1056. Summary judgment correctly awarded against 55 year old plaintiff claiming age discrimination after he was dismissed from at-will employment and replaced by 39 year old person, since employer articulated nondiscriminatory reason of poor performance as cause of discharge and plaintiff could not show that such reason was pretext concealing intent to discriminate. <<=304>> Gregory v Raytheon Service Co. (1989) 27 Mass App 1170, 540 NE2d 694. Discharge of 50 year old salesman 9 months after he was hired was not for age discrimination. <<=305>> Johansen v NCR Comten, Inc. (1991) 30 Mass App 294, 568 NE2d 611, 55 BNA FEP Cas 983. Discharged employee did not demonstrate prima facie case of age discrimination when employer dismissed employee 63 years of age during reduction in force because employee was higher paid employee and duties could be taken over by other employees, as choosing for discharge higher paid employees is not in itself de facto act of age discrimination, as although salary may be directly related to seniority when comparing persons occupying same position, seniority as function of age is dependent upon age at which employee began to work for company. <<=306>> Holt v Gamewell Corp. (1986, CA1 Mass) 797 F2d 36, 41 BNA FEP Cas 585, 40 CCH EPD 36334. To defeat summary judgment, once an employer has articulated presumptively legitimate reason for allegedly discriminatory conduct, plaintiff employee must do more than cast doubt on wisdom of employer's justification but must introduce evidence that real reason for employer's action was discrimination; but there is no absolute rule that plaintiff must adduce evidence in addition to that comprising prima facie case and rebuttal of defendant's justification, in order to prevail either at summary judgment or at trial; rather evidence as a whole, whether direct or indirect, must merely be sufficient for reasonable factfinder to infer that employer's decision was motivated by discriminatory animus. <<=307>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. Where plaintiff raises initial inference of discrimination by adducing proof, among other things, that he was candidate for tenure and qualified under university's standards, practices, or customs, plaintiff need only show that his qualifications were at least comparable to those of middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise by the tenure decision making body. Plaintiff made out prima facie case of discriminatory denial of tenure by showing he was brown-skinned male Mexican American, age 44, among "middle group" of tenure candidates, and turned down for tenure while others were approved in same general time period; but college tenure committee's finding that plaintiff was not "sufficiently excellent" in any of 5 categories used by college to evaluate tenure potential, was legitimate and nondiscriminatory reason for denial of tenure. <<=308>> Villanueva v Wellesley College (1991, CA1 Mass) 930 F2d 124, 55 BNA FEP Cas 1058, 56 CCH EPD 40723. Dismissed teacher's claim that his contractual tenure rights were breached is not barred by <<=309>> 29 USCS @ 633(a) when such claim is also brought in federal age discrimination action, as Age Discrimination in Employment Act <<=310>> (29 USCS @@ 621 et seq.) does not clearly and unambiguously pre-empt state law. <<=311>> Linn v Andover Newton Theological School (1985, DC Mass) 642 F Supp 11, 44 BNA FEP Cas 814, 2 BNA IER Cas 1268, summary judgment gr (DC Mass) <<=312>> 638 F Supp 1114, 1 BNA IER Cas 684. In wrongful termination action in which former employee maintained claim for interference with advantageous relationship by terminating him because of his age, motion to dismiss by defendants should be denied since ALM GL c 151B does not foreclose claim for interference with advantageous relations in which age discrimination is pled as element of willful act without justifiable cause. <<=313>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. In action by former employee against former employer and 2 of its supervisory employees, wherein employee alleged, inter alia, that he was terminated because of his age in violation of ALM GL c 151B @ 4 and ALM GL c 149 @ 24A, there is no cause of action for wrongful termination on grounds of age discrimination apart from procedures provided by ALM GL c 151B @ 4; consequently, defendants' motion to dismiss for failure to state claim upon which relief can be granted should be allowed; in addition, since plaintiff failed to file charge within 6-month period required by ALM GL c 151B @ 5, plaintiff's claim under @ 4 is dismissed. <<=314>> Treadwell v John Hancock Mut. Life Ins. Co. (1987, DC Mass) 666 F Supp 278, 44 BNA FEP Cas 344, 44 CCH EPD 37315. Prohibitions against discrimination on account of age provided in this section do not affect operation of ALM GL c 32 @ 3 restricting benefits to persons becoming employed under age 60. 1963--1964 Op AG 118. 13. Religious discrimination Claim of religious discrimination under ALM GL c 151B @ 4(1A) was not made out by employer's refusal to allow employee to take 2 month leave of absence to do missionary work for her church. <<=316>> Lewis v Area II Homecare for Senior Citizens, Inc. (1986) 397 Mass 761, 493 NE2d 867. ALM GL c 151B @ 4(1A) prohibits employer from requiring employee as condition of employment to violate or forego practices of religion, as required by religion. <<=317>> Lewis v Area II Homecare for Senior Citizens, Inc. (1986) 397 Mass 761, 493 NE2d 867. Although plaintiff showed that missionary work was essential part of her religion, she did not show that religion imposed obligation that she perform missionary work for 2 months in summer of 1983; therefore, ALM GL c 151B @ 4(1A) was not violated by employer's refusal to grant her leave of absence for such missionary work. <<=318>> Lewis v Area II Homecare for Senior Citizens, Inc. (1986) 397 Mass 761, 493 NE2d 867. Employer's requirement that employee attend seminar as condition for continuing her employment did not constitute unlawful discriminatory practice, since employee was not compelled to violate or forego any required religious practice or belief. <<=319>> Kolodziej v Smith (1992) 412 Mass 215, 588 NE2d 634, 7 BNA IER Cas 778, 58 CCH EPD 41530. It would be contrary to laws of Massachusetts to deny public employment as teacher to any person solely because of his religion, his religious beliefs, or his clerical status. 1966--1967 Op AG 37. 14. Other unlawful practices Provision of subsections 3A and 3B of ALM GL c 151B @ 4 making it unlawful to discriminate on grounds of color in issuing surety bonds or in granting mortgage loans does not prevent application of antidiscrimination provisions of ALM GL c 272 @@ 92A and 98, contention that former statute would have been unnecessary if latter statute covered same area being answered by L 151B @ 9, which provides that nothing in c 151B shall be deemed to repeal any other law relating to discrimination because of color. Local Finance Co. v Massachusetts Com. against <<=321>> Discrimination, 355 Mass 10, 242 NE2d 536. City and town clerks have no right to insist that particular surnames be retained or assumed for purposes of official recording; consequently, common law principle that person may change his name at will without resort to legal proceedings by merely adopting another name, provided there is no fraudulent or dishonest purpose, applies to various situations involving recording of births, marriages and legitimations, i.e., married and divorced persons may retain, assume, or resume any name they choose, parents may choose as surname of child name borne by one, both or neither of them, and mother of illegitimate child has right to control initial surname of child. <<=322>> Secretary of Commonwealth v City Clerk of Lowell (1977) 373 Mass 178, 366 NE2d 717. Discrimination in employment because of homosexuality or is not within jurisdiction of Massachusetts Commission Against Discrimination. Macauley v Massachusetts Com. against <<=323>> Discrimination (1979) 379 Mass 279, 397 NE2d 670, 21 CCH EPD 30552. Physician who is not enrolled in Medicaid program does not violate ALM GL c 151B @ 4(10) , prohibiting discrimination against recipient of public assistance, by refusing to treat Medicaid recipient. <<=324>> Hennessey v Berger (1988) 403 Mass 648, 531 NE2d 1268. Police commissioner violated ALM GL c 151B @ 4(9A) in asking questions on applications for appointment as police officer seeking information about applicant's admission to facility for care and treatment of mentally ill persons, and had no authority to discharge police officer for giving false answers to questions commissioner had no right to ask. <<=325>> Kraft v Police Comr. of Boston (1991) 410 Mass 155, 571 NE2d 380. Police commissioner could have determined applicant's qualification to carry gun without violating ALM GL c 151B @ 4(9A) , prohibiting prospective employer from requesting on application information concerning applicant's admission to facility for care and treatment of mentally ill persons. <<=326>> Kraft v Police Comr. of Boston (1991) 410 Mass 155, 571 NE2d 380. Rights set forth in ALM GL c 151B @ 4(9A) , prohibiting prospective employer from requesting on application information concerning applicant's admission to facility for care and treatment of mentally ill persons, may not be waived. <<=327>> Kraft v Police Comr. of Boston (1991) 410 Mass 155, 571 NE2d 380. ALM GL c 151B @ 4(11) provides, with certain exceptions, that it is unlawful for owner of real estate to refuse to rent or to lease to anyone with children. <<=328>> Underwood v Risman (1993) 414 Mass 96, 605 NE2d 832. The Executive Office of Manpower Affairs may ask applicants for CETA positions whether they have criminal records but it must inform such applicants that certain Massachusetts statutes permit them to decline certain types of information, and if it desires to corroborate information furnished by applicants concerning criminal histories, it must first receive certification for such access pursuant to ALM GL c 6 @ 172(b) . 1974/1975 Op AG, No. 56. Amendment making it unlawful to discriminate on basis of (Acts 1989, ch 516) may not be subject of referendum petition under Article 48 of Amendments to Massachusetts Constitution because of Amendment's inclusion of two provisions relating to discrimination of any type by religious institutions. Op AG 89/90-2. LEVEL 1 - 10 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 6 (1995) @ 6. Judicial Review of Order of Commission; Injunctive Relief. Any complainant, respondent or other person aggrieved by such order of the commission may obtain judicial review thereof, and the commission may obtain an order of court for its enforcement, in a proceeding as provided in this section. Such proceeding shall be brought in the superior court of the commonwealth within any county wherein the unlawful practice which is the subject of the commission's order occurs or wherein any person required in the order to cease and desist from an unlawful practice or to take other affirmative action resides or transacts business. Such proceeding shall be initiated by the filing of a petition in such court, together with a written transcript of the record upon the hearing before the commission, and issuance and service of an order of notice as in proceedings in equity. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony and proceedings set forth in such transcript an order or decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the commission, with full power to issue injunctions against any respondent and to punish for contempt thereof. No objection that has not been urged before the commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. Any party may move the court to remit the case to the commission in the interests of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon, provided he shows reasonable grounds for the failure to adduce such evidence before the commission. The order or decision of the commission shall be reviewed in accordance with the standards for review provided in paragraph (7) of section fourteen of chapter thirty A. All such proceedings shall be heard and determined by the court as expeditiously as possible and shall take precedence over all other matters before it, except matters of like nature. The jurisdiction of the superior court shall be exclusive and its final order or decree shall be subject to review by the supreme judicial court in the same manner and form and with the same effect as in appeals from a final order or decree in proceedings in equity. The commission's copy of the testimony shall be available at all reasonable times to all parties for examination without cost and for the purposes of judicial review of the order of the commission. The review shall be heard on the record without requirement of printing. The commission may appear in court by one of its attorneys. A proceeding under this section when instituted by any complainant, respondent or other person aggrieved must be instituted within thirty days after the service of the order of the commission. HISTORY: 1946, 368, @ 4; 1954, 681, @ 13; 1957, 426, @ 5; 1987, 465, @ 38, approved with emergency preamble, November 3, 1987. NOTES: EDITORIAL NOTE-- The 1954 amendment rewrote the seventh sentence. The 1957 amendment deleted "employment" from this section. The 1987 amendment, in the seventh sentence, substituted "paragraph (7) of section fourteen of chapter thirty A" for "paragraph (8) of section fourteen of chapter 30A". CODE OF MASSACHUSETTS REGULATIONS-- Housing general provisions, 804 CMR 2.01. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:78--8:81. 7 Mass Jur, Property @ 19:41. ANNOTATIONS-- Power of school district or board to employ counsel. <<=2>> 75 ALR2d 1339. Discrimination in provision of municipal services or facilities as civil rights violation. <<=3>> 51 ALR3d 950. Punitive damages in actions for violations of Title VII of Civil Rights Act of 1964 <<=4>> (42 USCS @@ 2000e et seq.) . <<=5>> 43 ALR Fed 208. What circumstances are sufficient to warrant granting of injunctive relief under "Boys Markets" exception to operation of anti-injunction provisions of Norris-LaGuardia Act <<=6>> (29 USCS @ 104) . <<=7>> 66 ALR Fed 11. CASE NOTES 1. In general 2. Scope of review 3. Standards of review 4. Enforcement of reward 5. Other remedies 6. Particular cases 1. In general Orders of commission, made pursuant to ALM GL c 151B @ 5, may be enforced under this section. <<=8>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Massachusetts Commission Against Discrimination is not authorized by statute or rule to allow bringing of class action. Massachusetts Electric Co. v Massachusetts Com. against <<=9>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Party aggrieved by Massachusetts Commission Against Discrimination decision does not have election between judicial review pursuant to ALM GL c 151B @ 6 and de novo hearing pursuant to ALM GL 151B @ 9. <<=10>> Brunson v Wall (1989) 405 Mass 446, 541 NE2d 338. Final decision of Massachusetts Commission Against Discrimination dismissing complaint of racial discrimination in employment, which was not appealed under ALM GL c 151B @ 6, precluded plaintiff from relitigating claims de novo in Superior Court under ALM GL c 151B @ 9. <<=11>> Brunson v Wall (1989) 405 Mass 446, 541 NE2d 338. Proceedings of Commission Against Discrimination are judicial in nature; party subject to adjudicatory proceedings at Commission will have full and fair opportunity to litigate constitutional concerns, such as pre-emption and commerce clause claims, in those proceedings, as well as in courts of Commonwealth in reviewing any decision of Commission, such that federal court will not enjoin adjudicatory proceedings of Commission. Brotherhood of Locomotive Engineers v Commonwealth of Massachusetts Com. against <<=12>> Discrimination (1988, DC Mass) 695 F Supp 1321, 48 BNA FEP Cas 25, 47 CCH EPD 38366. 2. Scope of review Under this section, parties should raise before commission any issues which they intend to present upon judicial review of commission's decision, and ordinarily judicial review will be limited to issues raised before commission. <<=13>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Under this section, no issue as to findings and order of commission will be considered on judicial review where such issues were not raised before commission. <<=14>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Under ALM GL c 151B @ 6 and ALM GL c 214 @ 31, where proceeding to enforce order of commission is reported without decision by judge of Superior Court for determination by appellate court upon pleadings, statement of agreed facts, and transcript of hearing before commission, appellate court is in same position as was Superior Court at time of filing of enforcement petition, and this includes power to make and enter order or decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part order of commission and power to remit case to commission in interests of justice for purpose of adducing additional evidence. <<=15>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Upon petition under ALM GL c 151B @ 6 for enforcement of order of commission that had ordered respondent to cease discrimination and had made award of damages, Superior Court is empowered to review damage award even though respondent had not sought review of such award either under ALM GL c 151B @ 5 or @ 6, and in such case Superior Court may refuse to enforce damage award if it finds award to be improper. Massachusetts Com. against <<=16>> Discrimination v Franzaroli (1970) 357 Mass 112, 256 NE2d 311. Failure to raise before Massachusetts Commission Against Discrimination issue that complaint was vague and overbroad precludes later judicial review of issue. Katz v Massachusetts Com. against <<=17>> Discrimination (1974) 365 Mass 357, 312 NE2d 182. Function of Superior Court Judge is not to decide case anew. Wheelock College v Massachusetts Com. against <<=18>> Discrimination (1976) 371 Mass 130, 355 NE2d 309, 20 BNA FEP Cas 1457, 13 CCH EPD 11508. Failure of electric company to raise before Massachusetts Commission Against Discrimination issue of whether interest in minimizing costs of electricity justified disparate treatment between pregnancy and other temporary disabilities precluded raising of issue in court. Massachusetts Electric Co. v Massachusetts Com. against <<=19>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Courts must defer to administrative agency's fact-finding role, including its right to draw reasonable inferences from facts found, and may not weigh evidence and reach own conclusions on the facts. Smith College v Massachusetts Com. against <<=20>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. Arguments on appeal are confined to questions actually tried to judge. J. C. Hillary's v Massachusetts Com. against <<=21>> Discrimination (1989) 27 Mass App 204, 536 NE2d 1104. 3. Standards of review This section provides that order or decision of commission shall be reviewed in accordance with standards for review provided in ALM GL c 30A @ 14(8) , which allows remand to agency in certain circumstances, as where substantial rights of party may have been prejudiced, or where agency decision is in excess of statutory authority. <<=22>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Upon appeal by commission from Superior Court decree ordering dismissal of complaint before commission for lack of substantial evidence to support decision of commission, appeal, under this section, afforded review "in the same manner and form and with the same effect as in appeals from a final order or decree in proceedings in equity." La Pierre v Massachusetts Com. against <<=23>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. This section provides that "order or decision of the commission shall be reviewed in accordance with the standards for review provided in paragraph (8) [of ALM GL c 30A @ 14]". Massachusetts Com. against <<=24>> Discrimination v Franzaroli (1970) 357 Mass 112, 256 NE2d 311, footnote 1. Function of Supreme Judicial Court is to review decision of Massachusetts Commission Against Discrimination in accordance with standards of review expressed in Administrative Procedure Act, ALM GL c 30A @ 14. Smith College v Massachusetts Com. against <<=25>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. Judicial review of decision of Massachusetts Commission Against Discrimination is in accordance with standards expressed in ALM GL c 30A @ 14 and ALM GL c 151B @ 6. <<=26>> Sarni Original Dry Cleaners, Inc. v Cooke (1983) 388 Mass 611, 447 NE2d 1228, 32 CCH EPD 33662. Court will affirm decision and order of Massachusetts Commission Against Discrimination, unless findings and conclusions are unsupported by substantial evidence or based on error of law, and will defer to Commission's fact-finding role, including its right to draw reasonable inferences from facts found. <<=27>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. When decision of full commission of Massachusetts Commission Against Discrimination is appealed to Superior Court, standard of review in Administrative Procedure Act applies, requiring court to defer to facts found by Commission where there is substantial evidence to support findings and where there is no error of law. <<=28>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. 4. Enforcement of reward Superior Court, on review of damage award under this section, may not refuse to enforce damage award if award was supported by substantial evidence and was not tainted by error of law. Massachusetts Com. against <<=29>> Discrimination v Franzaroli (1970) 357 Mass 112, 256 NE2d 311. Upon petition under ALM GL c 151B @ 6 for enforcement of order of commission that had ordered respondent to cease discrimination and had made award of damages, Superior Court is empowered to review damage award even though respondent had not sought review of such award either under ALM GL c 151B @ 5 or @ 6, and in such case Superior Court may refuse to enforce damage award if it finds award to be improper. Massachusetts Com. against <<=30>> Discrimination v Franzaroli (1970) 357 Mass 112, 256 NE2d 311. 5. Other remedies Although ALM GL c 151B @ 5 provides simple expeditious review of damage award in District Court where only that portion of order is challenged, such review in District Court under @ 5 is not exclusive but review of damage award may also be had in Superior Court under ALM GL c 151B @ 6, this result following from provision of @ 5 that review under @ 5 may be had "notwithstanding the provisions of section six". Massachusetts Com. against <<=31>> Discrimination v Franzaroli (1970) 357 Mass 112, 256 NE2d 311. Party involved in "actual controversy" with Massachusetts Commission Against Discrimination may not seek relief in Superior Court under ALM GL c 231A prior to exhausting administrative remedies in proceedings before Commission under ALM GL c 151B @@ 5 and 6. East Chop Tennis Club v Massachusetts Com. against <<=32>> Discrimination (1973) 364 Mass 444, 305 NE2d 507. 6. Particular cases For case where order of commission was reviewed under this section, and it was held that certain portions of order enforcing prohibition against discrimination in renting of multiple dwelling was valid, but that portion of order compelling owner and rental agent of dwelling to execute written lease offering substantially same terms as most favored tenant in dwelling was stricken, see <<=33>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. For petition filed in Superior Court for review, under ALM GL c 30A @ 11(8) and this section, of decision of Commission dismissing complaint on ground that no discrimination had been shown, which decision was upheld by Superior Court and later by Supreme Judicial Court, see <<=34>> Strong v Massachusetts Com. Against Discrimination (1967) 351 Mass 554, 222 NE2d 885, 1 BNA FEP Cas 163, 1 CCH EPD 9761. For petitions for review filed in Superior Court under this section and ALM GL c 30A @ 14(8) to review orders of commission, see La Pierre v Massachusetts Com. against <<=35>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Substantial evidence supported finding by Massachusetts Commission Against Discrimination that black applicant for apartment was rejected solely because of his color, when white applicant presented classifications alike in every important particular except race and was speedily accepted. Katz v Massachusetts Com. against <<=36>> Discrimination (1974) 365 Mass 357, 312 NE2d 182. Proposed legislation that would impose criminal penalties for discrimination based on " in public accommodations would not be unconstitutionally vague. <<=37>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. Due process rights were not violated by interrogatory and default provisions of rules of Massachusetts Commission Against Discrimination, where judicial review of administrative proceedings was available. University Hospital, Inc. v Massachusetts Com. against <<=38>> Discrimination (1986) 396 Mass 533, 487 NE2d 506, 40 BNA FEP Cas 225, 43 CCH EPD 37050. Hearing commissioner's conclusion that employer's investigation of employee's complaint of sexual harassment was deferential and inadequate was supported by substantial evidence. College-Town, Div. of Interco, Inc. v Massachusetts Com. against <<=39>> Discrimination (1987) 400 Mass 156, 508 NE2d 587, 46 BNA FEP Cas 1406. Statutory scheme whereby employer's access to judicial system is postponed at option of complainant, until after Massachusetts Commission Against Discrimination has issued preliminary determination and ordered remedy based on findings of fact, does not deny employer any fundamental right and does not violate Fourteenth Amendment to United States Constitution. New York & Massachusetts Motor Service, Inc. v Massachusetts Com. against <<=40>> Discrimination (1988) 401 Mass 566, 517 NE2d 1270. Court reviewing decision of Massachusetts Commission Against Discrimination applies substantial evidence test. New York & Massachusetts Motor Service, Inc. v Massachusetts Com. against <<=41>> Discrimination (1988) 401 Mass 566, 517 NE2d 1270. Substantial evidence supported Massachusetts Commission Against Discrimination finding that black woman applying for nurse's aide position at nursing home was treated differently from other applicants and was rejected due to considerations of her race. Buckley Nursing Home, Inc. v Massachusetts Com. against <<=42>> Discrimination (1985) 20 Mass App 172, 478 NE2d 1292, 46 BNA FEP Cas 752, review den <<=43>> 395 Mass 1103, 482 NE2d 328. When ALM GL c 151B required filing of claim within 6 months of nonpromotion, civil rights action commenced by applicant nearly 3 years after announcement of promotion list was not timely. <<=44>> Burns v Sullivan (1980, CA1 Mass) 619 F2d 99, 24 BNA FEP Cas 39, 22 CCH EPD 30848, cert den <<=45>> 449 US 893, 66 L Ed 2d 121, 101 S Ct 256, 24 BNA FEP Cas 63, 24 CCH EPD 31256. LEVEL 1 - 11 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 8 (1994) @ 8. Penalty for Interfering With Commission, etc., Violating Final Order or Filing False Complaint. Any person, employer, labor organization or employment agency, who or which shall wilfully resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of duty under this chapter, or shall wilfully violate a final order of the commission, shall be punished for each offense by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or by both; but procedure for the review of the order shall not be deemed to be such wilful conduct. HISTORY: 1946, 368, @ 4. Amended by 1989, 722, @ 30, approved Jan 13, 1990, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1989 amendment, following "order of the commission,", deleted "or who willfully file a false complaint". CODE OF MASSACHUSETTS REGULATIONS-- Housing general provisions, 804 CMR 2.01. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Criminal Law @ 10:12. CASE NOTES " refers to male or female homosexuality, heterosexuality, or bisexuality. <<=2>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. Proposed legislation that would impose criminal penalties for discrimination based on " in public accommodations would not be unconstitutionally vague. <<=3>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. LEVEL 1 - 12 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXII. CORPORATIONS CHAPTER 175I. Insurance Information and Privacy Protection Mass. Ann. Laws ch. 175I, @ 2 (1995) @ 2. Definitions. As used in this chapter the following words shall, unless the context otherwise requires have the following meanings:-- "Adverse underwriting decision", (1) any of the following actions with respect to insurance transactions involving insurance coverage which is individually underwritten: (i) a declination of insurance coverage; (ii) a termination of insurance coverage; (iii) failure of an insurance representative to apply for insurance coverage with a specific insurance institution which the insurance representative represents and which is requested by an applicant; or (iv) in the case of a life, health or disability insurance coverage, an offer to insure at higher than standard rates. (2) Notwithstanding the provisions of clause (1) , the following actions shall not be considered adverse underwriting decisions but the insurance institution or insurance representative responsible for their occurrence shall nevertheless provide the applicant or policyholder with the specific reason or reasons for their occurrence: (i) the termination of an individual policy form on a class or statewide basis; (ii) a declination of insurance coverage solely because such coverage is not available on a class or statewide basis; or (iii) the rescission of a policy. "Affiliate" or "affiliated", a person who directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with another person. "Applicant", any person who seeks to contract for insurance coverage other than a person seeking group insurance that is not individually underwritten. "Commissioner", the commissioner of insurance or his designee. "Consumer report", a written, oral or other communication of information bearing on a natural person's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living which is used or expected to be used in connection with an insurance transaction. "Consumer reporting agency", any person who: (1) regularly engages, in whole or in part, in the practice of assembling or preparing consumer reports for a monetary fee; (2) obtains information primarily from sources other than insurance institutions; and (3) furnishes consumer reports to other persons. "Control", including the terms "controlled by" or "under common control with", the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. "Declination of insurance coverage", a denial, in whole or in part, by an insurance institution or insurance representative of requested insurance coverage. "Individual", any natural person who: (1) in the case of life, health or disability insurance, is a past, present or proposed principal insured or certificate holder; (2) is a past, present or proposed policy owner; (3) is past or present applicant; (4) is a past or present claimant; or (5) derived, derives or is proposed to derive insurance coverage under an insurance policy or certificate subject to this chapter. "Institutional source", any person or governmental entity that provides information about an individual to an insurance representative, insurance institution or insurance-support organization, other than: (1) an insurance representative; (2) the individual who is the subject of the information; or (3) a natural person acting in a personal capacity rather than in a business or professional capacity. "Insurance institution", any corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyd's insurer, fraternal benefit society or other person engaged in the business of insurance, including health maintenance organizations, medical service plans and hospital service plans, preferred provider arrangements and Savings Bank Life Insurance as defined in chapters one hundred and seventy-five, one hundred and seventy-six, one hundred and seventy-six A, one hundred and seventy-six B, one hundred and seventy-six C, one hundred and seventy-six G, one hundred and seventy-six I, one hundred and seventy-eight and one hundred and seventy-eight A. "Insurance institution" shall not include insurance representatives or insurance-support organizations. "Insurance-support organization": (1) any person who regularly engages, in whole or in part, in the practice of assembling or collecting information about natural persons for the primary purpose of providing the information to an insurance institution or insurance representative for insurance transactions, including: (i) the furnishing of consumer reports or investigative consumer reports to an insurance institution or insurance representative for use in connection with an insurance transaction; or (ii) the collection of personal information from insurance institutions, insurance representatives or other insurance-support organizations for the purpose of detecting or preventing fraud or material misrepresentation in connection with insurance underwriting or insurance claim activity. (2) Notwithstanding the provisions of subparagraph (1) , the following persons shall not be considered "insurance-support organizations" for purposes of this chapter: insurance representatives, government institutions, insurance institutions, medical care institutions and medical professionals. "Insurance representative", an agent, broker, advisor, adjuster or other person engaged in activities described in sections one hundred and sixty-two to one hundred and seventy-seven D, inclusive, of chapter one hundred and seventy-five. "Insurance transaction", any transaction involving life, health or disability insurance which entails: (1) the determination of an individual's eligibility for an insurance coverage, benefit or payment; or (2) the servicing of an insurance application, policy, contract or certificate. "Investigative consumer report", a consumer report or portion thereof in which information about a natural person's character, general reputation, personal characteristics or mode of living is obtained through personal interviews with the person's neighbors, friends, associates, acquaintances or others who may have knowledge concerning such items of information, provided; however, that it shall be unlawful for any such report to contain any information designed to determine the of an applicant, proposed insured, policyholder, beneficiary or any other person, or for such persons, information relating to counseling for Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related Complex (ARC) as defined by the Centers for Disease Control of the United States Public Health Service. For purposes of this subsection, "counseling" shall not mean diagnosis of or treatment for AIDS or ARC. "Medical-care institution", any facility or institution that is licensed to provide health care services to natural persons, including but not limited to health-maintenance organizations, home-health agencies, hospitals, medical clinics, public health agencies, rehabilitation agencies and skilled nursing facilities. "Medical professional", any person licensed or certified to provide health care services to natural persons, including, but not limited to, a chiropractor, clinical dietician, clinical psychologist, dentist, nurse, occupational therapist, optometrist, pharmacist, physical therapist, physician, podiatrist, psychiatric social worker or speech therapist. "Medical-record information", personal information which: (1) relates to an individual's physical or mental condition, medical history or medical treatment; and (2) is obtained from a medical professional or medical-care institution, from the individual, or from such individual's spouse, parent or legal guardian; Medical-record information shall not include information relating to counseling for Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related Complex (ARC) as defined by the Centers for Disease Control of the United States Public Health Service. For purposes of this definition, "counseling" shall not mean diagnosis of or treatment for AIDS or ARC. "Person", any natural person, corporation, association, partnership or other legal entity. "Personal information", any individually identifiable information gathered in connection with an insurance transaction from which judgments can be made about an individual's character, habits, avocations, finances, occupation, general reputation, credit, health or any other personal characteristics. "Personal information" shall include an individual's name and address and "medical-record information" but shall not include "privileged information". "Policyholder", any person who: (1) in the case of individual life, health or disability insurance, is a present policyholder; or (2) in the case of group life, health or disability insurance which is individually underwritten, is a present group certificate holder. "Pretext interview", an interview by a person who attempts to obtain information about a natural person and who commits one or more of the following acts: (1) pretends to be someone he is not; (2) pretends to represent a person he is not in fact representing; (3) misrepresents the true purpose of the interview; or (4) refuses to identify himself upon request. "Privileged information", any individually identifiable information that: (1) relates to a claim for insurance benefits or a civil or criminal proceeding involving an individual; and (2) is collected in connection with or in reasonable anticipation of a claim for insurance benefits or civil or criminal proceeding involving an individual; provided, however, that information otherwise meeting the requirements of this definition shall nevertheless be considered "personal information" under this chapter if it is disclosed in violation of section thirteen. "Termination of insurance coverage" or "termination of an insurance policy", either a cancellation or nonrenewal of an insurance policy, in whole or in part, for any reason other than t he failure to pay a premium as required by the policy. "Unauthorized insurer", an insurer not lawfully admitted to issue policies of insurance or an annuity or pure endowment contract, except as provided in section one hundred and sixty of chapter one hundred and seventy-five. HISTORY: Added by 1991, 516, @ 1, approved Jan 7, 1992; by @ 3, effective July 1, 1992. NOTES: TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 43 Am Jur 2d, Ins @@ 91, 92. 43 Am Jur 2d, Insurance @@ 201, 204. 62A Am Jur 2d, Privacy @@ 15, 57, 63. 12A Am Jur Pl & Pr Forms (Rev) , Fright, Shock, and Mental Disturbance, Form 45.1. 13A Am Jur Pl & Pr Forms (Rev) , Hospitals, Form 42.1. 20 Am Jur Pl & Pr Forms (Rev) , Privacy, Form 97.1. 25 Am Jur Pl & Pr Forms (Rev) , Workmen's Compensation, Form 193.1. 14 Am Jur Pl & Pr Forms, Rev, Insurance, Forms 43, 45. ANNOTATIONS-- Exchange among insurers of medical information concerning insured or applicant for insurance as invasion of privacy. <<=1>> 98 ALR3d 561. What constitutes insolvency of insurance company justifying state dissolution proceedings and the like. <<=2>> 17 ALR4th 16. LEVEL 1 - 13 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXII. CORPORATIONS CHAPTER 175I. Insurance Information and Privacy Protection Mass. Ann. Laws ch. 175I, @ 7 (1995) @ 7. Prerequisites for Preparation or Acquisition of Investigative Consumer Report. (a) No insurance institution, insurance representative or insurance-support organization may prepare or request an investigative consumer report about an individual in connection with an insurance transaction involving an application for insurance, a policy renewal, a policy reinstatement or a change in insurance benefits unless the insurance institution or insurance representative informs the individual: (1) that each individual may request to be interviewed in connection with the preparation of the investigative consumer report; and (2) that upon a request pursuant to section eight, such individual is entitled to receive a copy of the investigative consumer report. (b) If an investigative consumer report is to be prepared by an insurance institution or insurance representative, such insurance institution or insurance representative shall institute reasonable procedures to conduct a personal interview requested by an individual. (c) If an investigative consumer report is to be prepared by an insurance-support organization, the insurance institution or insurance representative desiring such report shall inform the insurance-support organization whether a personal interview has been requested by the individual. The insurance-support organization shall institute reasonable procedures to conduct such reviews, if requested. (d) No investigative consumer report shall contain any information designed to determine the of an applicant, proposed insured, policyholder, beneficiary or any other person, or for such persons, information relating to counseling for Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related Complex (ARC) as defined by the Centers for Disease Control of the United States Public Health Service. For purposes of this subsection, "counseling" shall not mean diagnosis of or treatment for AIDS or ARC. HISTORY: Added by 1991, 516, @ 1, approved Jan 7, 1992; by @ 3, effective July 1, 1992. NOTES: TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 43 Am Jur 2d, Ins @@ 91, 92. 43 Am Jur 2d, Insurance @@ 201, 204. 62A Am Jur 2d, Privacy @@ 15, 57, 63. 12A Am Jur Pl & Pr Forms (Rev) , Fright, Shock, and Mental Disturbance, Form 45.1. 13A Am Jur Pl & Pr Forms (Rev) , Hospitals, Form 42.1. 20 Am Jur Pl & Pr Forms (Rev) , Privacy, Form 97.1. 25 Am Jur Pl & Pr Forms (Rev) , Workmen's Compensation, Form 193.1. 14 Am Jur Pl & Pr Forms, Rev, Insurance, Forms 43, 45. ANNOTATIONS-- Exchange among insurers of medical information concerning insured or applicant for insurance as invasion of privacy. <<=1>> 98 ALR3d 561. What constitutes insolvency of insurance company justifying state dissolution proceedings and the like. <<=2>> 17 ALR4th 16. LEVEL 1 - 14 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXII. CORPORATIONS CHAPTER 175I. Insurance Information and Privacy Protection Mass. Ann. Laws ch. 175I, @ 12 (1994) @ 12. Invalid Grounds for Adverse Underwriting Decision. No insurance institution or insurance representative may base an adverse underwriting decision in whole or in part: (1) on the fact of a previous adverse underwriting decision or on the fact that an individual previously obtained insurance coverage through a residual market mechanism; provided, however, that an insurance institution or insurance representative may base an adverse underwriting decision on further information obtained from an insurance institution or insurance representative responsible for a previous adverse underwriting decision; (2) on personal information received from an insurance-support organization whose primary source of information is insurance institutions; provided, however, that an insurance institution or insurance representative may base an adverse underwriting decision on further personal information obtained as the result of information received from such insurance-support organization; or (3) on the basis of provided, however, that neither the national origin, marital status, lifestyle or living arrangements, occupation, gender, medical history, beneficiary designation, nor zip code or other territorial classification of the applicant may be used to establish, or aid in establishing, the applicant's HISTORY: Added by 1991, 516, @ 1, approved Jan 7, 1992; by @ 3, effective July 1, 1992. NOTES: TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 43 Am Jur 2d, Insurance @@ 201, 204. 62A Am Jur 2d, Privacy @@ 15, 57, 63. 12A Am Jur Pl & Pr Forms (Rev) , Fright, Shock, and Mental Disturbance, Form 45.1. 13A Am Jur Pl & Pr Forms (Rev) , Hospitals, Form 42.1. 20 Am Jur Pl & Pr Forms (Rev) , Privacy, Form 97.1. 25 Am Jur Pl & Pr Forms (Rev) , Workmen's Compensation, Form 193.1. ANNOTATIONS-- Exchange among insurers of medical information concerning insured or applicant for insurance as invasion of privacy. <<=1>> 98 ALR3d 561. LEVEL 1 - 15 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXII. CORPORATIONS CHAPTER 176I. Preferred Provider Arrangements Mass. Ann. Laws ch. 176I, @ 4 (1994) @ 4. Discrimination Prohibited in Refusal to Enter into Arrangement; Selection of Providers; Terms and Conditions of Offer Subject to Disapproval of Commissioner. An organization shall not refuse to enter into a preferred provider arrangement with a health care provider on the basis of religion, race, color, national origin, age, sex, marital status, or such provider's relationships with any other organization. The selection of preferred providers shall be based primarily on cost, availability and quality of covered services. The terms and conditions offered by an organization that must be met or agreed to by physicians and other professional providers of health care services desiring to enter into a preferred provider arrangement shall be subject to the disapproval of the commissioner if said terms and conditions are not consistent with the purposes, policies and provisions of this chapter. HISTORY: Added by 1988, 23, @ 65, approved April 21, 1988; by @ 92, effective January 1, 1989; effective by act of Governor, April 21, 1988. LEVEL 1 - 16 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE III. DOMESTIC RELATIONS CHAPTER 210. Adoption of Children and Change of Names ADOPTION OF CHILDREN Mass. Ann. Laws ch. 210, @ 1 (1994) @ 1. Situations Where Adoption Authorized. A person of full age may petition the probate court in the county where he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife or husband, or brother, sister, uncle or aunt, of the whole or half blood. A minor may likewise petition, or join in the petition of his or her wife or husband, for the adoption of a natural child of one of the parties. If the petitioner has a husband or wife living, competent to join in the petition, such husband or wife shall join therein, and upon adoption the child shall in law be the child of both. If a person not an inhabitant of this commonwealth desires to adopt a child residing here, the petition may be made to the probate court in the county where the child resides. The district or juvenile court may, if it appears necessary or convenient, exercise the powers authorized by this chapter, but only in respect to a pending proceeding before such district or juvenile court. HISTORY: 1851, 324, @@ 1, 4; GS 1860, 110, @ 1; 1871, 310, @ 1; 1876, 213, @@ 10, 11; PS 1882, 148, @ 1; RL 1902, 154, @ 1; 1941, 44; 1966, 370; 1992, 379, @ 59, approved Jan 13, 1993, effective 30 days thereafter. NOTES: EDITORIAL NOTE-- The 1966 amendment rewrote the second sentence of the first paragraph to cover the adoption of a child of either of the parties, whereas it had formerly covered the adoption of a child of only a minor party. The 1992 amendment added the second paragraph. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 12 Mass Jur, Family Law @@ 6:1--5, 17--20. 2 Mass Proc, Civil Procedure @ 11:25. 2 Am Jur 2d, Adoption @@ 10, 11. 1A Am Jur Pl & Pr Forms, (Rev) , Adoption, Forms 1--145, 351--354. ANNOTATIONS-- Right of adopted child to inherit from kindred of adoptive parent. <<=1>> 43 ALR2d 1183. Mental illness and the like of parents as ground for adoption of their children. <<=2>> 45 ALR2d 1379. Conflict of laws as to contract to adopt. <<=3>> 81 ALR2d 1128. Adoption of adult.<<=4>> 21 ALR3d 1012. Requirements as to residence or domicil of adoptee or adoptive parent for purposes of adoption. <<=5>> 33 ALR3d 176. Validity and enforcement of agreement by foster parents that they will not attempt to adopt foster child. <<=6>> 78 ALR3d 770. Age of prospective adoptive parent as factor in adoption proceedings. <<=7>> 84 ALR3d 665. Modern status of law as to equitable adoption or adoption by estoppel. <<=8>> 97 ALR3d 347. Marital status of prospective adopting parents as factor in adoption proceedings.<<=9>> 2 ALR4th 555. Standing of foster parent to seek termination of rights of foster child's natural parents.<<=10>> 21 ALR4th 535. Race as factor in adoption proceedings. <<=11>> 34 ALR4th 167. Natural parent's parental rights as affected by consent to child's adoption by other natural parent. <<=12>> 37 ALR4th 724. Necessity and sufficiency of consent to adoption by spouse of adopting parent.<<=13>> 38 ALR4th 768. Marital or sexual relationship between parties as affecting right to adopt. <<=14>> 42 ALR4th 776. Required parties in adoption proceedings. <<=15>> 48 ALR4th 860. Action for wrongful adoption based on misrepresentation of child's mental or physical condition or parentage. <<=16>> 56 ALR4th 375. CASE NOTES 1. In general 2. Nature of adoption permitted by section 1. In general The adoption statute of New Hampshire did not apply to the case of an adoption, in that state, of a child domiciled there, by persons then and since domiciled in Massachusetts. Foster v Waterman (1878) 124 Mass 592. Parents have no absolute right of property in their minor children of which they cannot be deprived without their consent. <<=18>> Purinton v Jamrock (1907) 195 Mass 187, 80 NE 802. This and the following sections relating to adoption are in alteration of the common law and must be followed strictly in all essential particulars. <<=19>> Purinton v Jamrock (1907) 195 Mass 187, 80 NE 802. If a man so dominates his wife's will as to force her against her will to bring a petition in court for the adoption by her of his son by a former wife, and procures a decree for such adoption, he commits a gross fraud upon his wife and such a fraud upon the court that upon the presentation of a proper case the decree will be set aside. <<=20>> Phillips v Chase (1909) 203 Mass 556, 89 NE 1049, error dismd (1910) <<=21>> 216 US 616, 54 L Ed 639, 30 S Ct 577. The obvious purpose of the amendment of the section in 1941 by incorporating therein the second sentence was to permit adoption by a minor of his or her natural child, thus extending to a minor in this particular type of case the privilege of adoption conferred in other types of cases only upon a "person of full age." There is no conceivable reason for extending this privilege to a parent who is a minor and denying it to a parent who is a "person of full age." <<=22>> Petition of Curran (1943) 314 Mass 91, 49 NE2d 432. The granting of the petition for adoption is not precluded by the fact that the petitioner is the person whose consent to the adoption is required by the following section. <<=23>> Petition of Curran (1943) 314 Mass 91, 49 NE2d 432. In <<=24>> In re Adoption of Minor (1961) 343 Mass 292, 178 NE2d 264. Where the mother of an illegitimate child allowed the mother's sister to take and bring up the child for a number of years during which the child became a part of the household of the sister, it was held, upon examination of all the circumstances, that the welfare of the child dictated that the sister's petition for adoption should be allowed as against a petition for adoption by the mother, even though the mother had subsequently married and was able to provide a home for the child, and that this was so despite an agreement by the mother and the sister at the time the child was taken by the sister that the child would be returned to the mother if the latter "ever got married and was able to provide a home for the child", the latter agreement being "subject always to the supreme inquiry as to the requirements of the welfare of the child." <<=25>> In re Adoption of Minor (1961) 343 Mass 292, 178 NE2d 264. If the divorce decree of a foreign State court was silent as to the custody of a child of the marriage, and the mother, after she remarried, brings the child into Massachusetts, a Massachusetts Probate Court has jurisdiction under c. 215, @ 3 and c. 210 over a petition for adoption of the child by the mother and the stepfather, as against the contention that jurisdiction over the child remained exclusively in the foreign State court. <<=26>> Adoption of A Minor (1970) 357 Mass 490, 258 NE2d 567. Decree dispensing with parental consent does not consummate adoption, and petition for adoption under GL c. 210 @ 1 remains necessary. <<=27>> Petition of New England Home for Little Wanderers (1975) 367 Mass 631, 328 NE2d 854. Section deals with age limitation. <<=28>> Adoption of Thomas (1990) 408 Mass 446, 559 NE2d 1230. Law of adoption is purely statutory, and governing statute is to be strictly followed in all its essential particulars. <<=29>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. Jurisdictional requirement of adoption statute is that if married person files petition for adoption, spouse must freely consent to join in petition. <<=30>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. 2. Nature of adoption permitted by section It is no objection to the maintenance of a petition by a husband and wife to the probate court, for the adoption of a child, alleged to be of unknown parentage and a foundling, that the petition does not also allege that the child is not one of the class excepted in this section. In re Edds (1884) 137 Mass 346. Under this section a request for a ruling that "it is not competent under the adoption law for a person in the senile age of life to adopt persons in the prime and vigor of life" is rightly refused. <<=32>> Collamore v Learned (1898) 171 Mass 99, 50 NE 518. This section is intended to permit the adoption of resident children by petitioners who were domiciled in another state, and was not merely to remove the necessity of the petitioner being both an inhabitant and a domiciled resident. <<=33>> Stearns v Allen (1903) 183 Mass 404, 67 NE 349; <<=34>> Farnsworth v Goebel (1921) 240 Mass 18, 132 NE 414. Under this section, there is no such thing in this commonwealth as an adopted child of one spouse alone where at the time of the adoption both the husband and the wife were living and were competent to join in the petition. <<=35>> Davis v McGraw (1910) 206 Mass 294, 92 NE 332. Probate courts are courts of superior and general jurisdiction, and it must be assumed, in the absence in the record of facts to the contrary, that all the essential jurisdictional facts were proved at a hearing for adoption, and it cannot be said that an adoption was invalid by reason of the insufficiency of a petition in alleging the place of residence of the petitioners or of the child. <<=36>> Farnsworth v Goebel (1921) 240 Mass 18, 132 NE 414. One other than husband or wife of petitioner is not proper party to petition. <<=37>> Lee v Wood (1932) 279 Mass 293, 181 NE 229. Whether the welfare of the child requires that the child be adopted is a matter of fact to be determined by the probate judge; where the judge has decided in favor of adoption, in the absence of a report of the evidence, opposing considerations urged by appellants, not appearing in the record, cannot be considered. <<=38>> Von Horn v Curran (1933) 284 Mass 120, 187 NE 223. "Resides", as used in this statute, signifies domicile. <<=39>> Krakow v Department of Public Welfare (1950) 326 Mass 452, 95 NE2d 184. Where a petition for revocation of a decree of adoption was filed on the ground that the adopting parents had no domicile in the county in which they filed a petition for adoption, and consequently that the probate court for that county had no jurisdiction under the instant section, it was held that the action of the court below in dismissing the petition for revocation was supported by findings that the adopting parents had a domicile in the county in which the petition for adoption had been filed, at the time of such filing. <<=40>> In re Petition for Adoption of A Minor (1960) 341 Mass 734, 171 NE2d 162. Probate Court had jurisdiction to enter judgment on joint petition for adoption brought by two unnamed female cohabitants, one of whom was biological mother of child to be adopted. <<=41>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. Statute permits adoption by child's natural parent. <<=42>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. Nothing in adoption statute prohibits adoption based on gender or <<=43>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. Statutory and judicially-imposed limitation on adoption restricts adoption to those who have been found by judge to be in best interests of subject child. <<=44>> Adoption of Tammy (1993) 416 Mass 205, 619 NE2d 315, summary op at (1993, Mass) 22 M.L.W. 10. LEVEL 1 - 17 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE I. CRIMES AND PUNISHMENTS CHAPTER 272. Crimes against Chastity, Morality, Decency and Good Order Mass. Ann. Laws ch. 272, @ 92A (1995) @ 92A. Places of Accommodation or Resort Not to Discriminate Because of Religious Sect, Creed, Class, Race, Color, Denomination, Sex, Nationality, Deafness, or Blindness. No owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement shall, directly or indirectly, by himself or another, publish, issue, circulate, distribute or display, or cause to be published, issued, circulated, distributed or displayed, in any way, any advertisement, circular, folder, book, pamphlet, written or painted or printed notice or sign, of any kind or description, intended to discriminate against or actually discriminating against persons of any religious sect, creed, class, race, color, denomination, sex, which shall not include persons whose involves minor children as the sex object, nationality, or because of deafness or blindness, or any physical or mental disability, in the full enjoyment of the accommodations, advantages, facilities or privileges offered to the general public by such places of public accommodation, resort or amusement. A place of public accommodation, resort or amusement within the meaning hereof shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be (1) an inn, tavern, hotel, shelter, roadhouse, motel, trailer camp or resort for transient or permanent guests or patrons seeking housing or lodging, food, drink, entertainment, health, recreation or rest; (2) a carrier, conveyance or elevator for the transportation of persons, whether operated on land, water or in the air, and the stations, terminals and facilities appurtenant thereto; (3) a gas station, garage, retail store or establishment, including those dispensing personal services; (4) a restaurant, bar or eating place, where food, beverages, confections or their derivatives are sold for consumption on or off the premises; (5) a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool, except such rest room, bathhouse or seashore facility as may be segregated on the basis of sex; (6) a boardwalk or other public highway; (7) an auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings; (8) a place of public amusement, recreation, sport, exercise or entertainment; (9) a public library, museum or planetarium; or (10) a hospital, dispensary or clinic operating for profit; provided, however, that with regard to the prohibition on sex discrimination, this section shall not apply to any corporation or entity authorized, created or chartered by federal law for the express purpose of promoting the health, social, educational vocational, and character development of a single sex; provided, further, that with regard to the prohibition of sex discrimination, those establishments which rent rooms on a temporary or permanent basis for the exclusive use of persons of the same sex shall not be considered places of public accommodation and shall not apply to any other part of such an establishment. Any person who shall violate any provision of this section, or who shall aid in or incite, cause or bring about, in whole or in part, such a violation shall be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than thirty days, or both. HISTORY: 1933, 117; 1953, 437; 1971, 418, @ 1; 1975, 338, @ 1; 1978, 331; 1979, 595, @ 1; 1989, 516, @ 15, approved Nov 15, 1989, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1953 amendment rewrote, and greatly enlarged, the second paragraph of this section. The 1971 amendment rewrote the section to prohibit discrimination on the basis of sex, with certain exceptions, and to eliminate from the last sentence of the first paragraph a provision as to private communications. The 1975 amendment added deafness or blindness as prohibited grounds of discrimination. The 1978 amendment rewrote clause (10) , adding an exception that the section shall not apply to any corporation or entity created or authorized by federal law for the express purpose of promoting the health, social, educational, etc. development of a single sex; and further defining places of public accommodation as relating to establishments renting rooms for use of persons of the same sex. The 1979 amendment added the phrase relative to any physical or mental disability. The 1989 amendment, in the first paragraph, following "sex,", inserted " which shall not include persons whose involves minor children as the sex object," Sections 17 through 20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. Acts 1971, ch. 910, entitled "An act further regulating the patronage of women in taverns", provides as follows: Section 1. A tavern as defined in section one of chapter one hundred and thirty-eight of the General Laws shall not be deemed a place of public accommodation, resort or amusement within the meaning of section ninety-two A of chapter two hundred and seventy-two of the General Laws, as appearing in section one of chapter four hundred and eighteen of the acts of nineteen hundred and seventy-one. Section 2. The provisions of this act shall cease to be operative on January the first, nineteen hundred and seventy-three. CROSS REFERENCES-- Discrimination in admission to place of public accommodation, see @ 98. Discrimination of military right, see ALM GL c 33 @ 12. Refusal to provide for travelers, see ALM GL c 140 @ 7. Bar to proceedings, see ALM GL c 151B @ 5. Complaint, see ALM GL c 151B @ 5. Fair educational practices, see ALM GL c 151C @@ 1 et seq. FEDERAL ASPECTS-- Civil rights, <<=1>> 18 USCS @@ 241 et seq. CODE OF MASSACHUSETTS REGULATIONS-- Discrimination in public accommodations, 804 CMR 5.01. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:18, 8:19, 8:45, 8:61. Mass Jur, Criminal Law @@ 10:4, 10:7, 10:9. 15 Am Jur 2d, Civil Rights @@ 261, 262. 5A Am Jur Pl & Pr Forms (Rev) , Civil Rights, Forms 71--73. ANNOTATIONS-- Exclusion of or discrimination against physician or surgeon by hospital. <<=3>> 37 ALR3d 645. Validity and construction of statute or ordinances forbidding treatment in health clubs or massage salons by persons of the opposite sex. <<=4>> 51 ALR3d 936. Application of state law to sex discrimination in sports. <<=5>> 66 ALR3d 1262. Trailer park as place of public accommodation within meaning of state civil rights statutes. <<=6>> 70 ALR3d 1142. State laws prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages. <<=7>> 89 ALR3d 7. Propriety of exclusion of persons from horseracing traceks for reasons other than color or race. <<=8>> 90 ALR3d 1361. Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law. <<=9>> 38 ALR4th 339. Award of attorneys' fees under @ 204(b) of Civil Rights Act of 1964 <<=10>>(4 2 USCS @ 2000a-3(b) ) authorizing court to allow prevailing party, other than United States, reasonable attorney's fee as part of costs in action under public accommodations part of Act. <<=11>> 16 ALR Fed 621. Action of private hospital as state action under <<=12>> 42 USCS @ 1983 or Fourteenth Amendment. <<=13>> 42 ALR Fed 463. Who is "qualified" handicapped person protected from employment discrimination under Rehabilitation Act of 1973 <<=14>> (29 USCS @@ 701 et seq.) and regulations promulgated thereunder. <<=15>> 80 ALR Fed 830. Criminal liability, under <<=16>> 18 USC @@ 241, 242, for depriving, or conspiring to deprive, a person of his civil rights--<<=17>> Supreme Court cases. 20 L Ed 2d 1454. Racial discrimination in establishments or public accommodations serving food or furnishing lodging--<<=18>> Supreme Court cases. 26 L Ed 2d 835. Racial discrimination involving recreational facilities--<<=19>> Supreme Court cases. 29 L Ed 2d 1028. TEXTS-- 2 Proof of Cases in Massachusetts @ 1211 LAW REVIEWS-- Fox, Discrimination and Antidiscrimination in Massachusetts Law. 44 BU L Rev 30, Winter, 1964. Baker-Kamalay, Employment Discrimination Against the Handicapped: Analysis of Statutory and Constitutional Protections in Massachusetts. 21 New England L Rev 305, 1985--1986. CASE NOTES 1. Generally 2. Place of public accommodation --generally 3. -Particular places as 4. or orientation 5. Gender 6. Educational institution 7. Miscellaneous 1. Generally Person was permitted to recover in actions of tort because of discrimination in "place of public accommodation, resort or amusement" as defined in instant section. <<=22>> Crawford v Robert L. Kent, Inc. (1960) 341 Mass 125, 167 NE2d 620. Sections 92A and 98 of instant chapter are anti-discrimination legislation which is in pattern with c 151D, @ 4, subsection 6 of which is aimed at preventing discrimination in business of housing. <<=23>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. Conventional "place of public accommodation" statutes cover discrimination in membership policy which denies access to particular place but not discriminatory membership policy itself. United States Jaycees v Massachusetts Com. against <<=24>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Since nonprofit rod and gun club did not have selective process for admittance to membership, application of anti-discrimination statute to club did not impair members' First Amendment rights of intimate association. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=25>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Public accommodations law is not unconstitutionally vague and overbroad. <<=26>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. 2. Place of public accommodation --generally When instant section was first enacted, term "place of public accommodation" was narrowly defined term but by 1953 Amendment scope of term was materially broadened especially by inclusion of words "any place. . . which is open to and accepts or solicits the patronage of the general public". Local Finance Co. v Massachusetts Com. against <<=27>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. In accordance with tendency in other jurisdictions to give to antidiscrimination statute similar to instant section broad inclusive interpretation, words "any place. . . which is open to and accepts or solicits the patronage of the general public" in definition of place of public accommodation in instant section, when read in light of obviously broad legislative purpose, should be given broad interpretation, and following portions of section enumerating specific examples of places of public accommodation should not be taken to restrict preceding general language or to provide basis for applying principle of ejusdem generis. Local Finance Co. v Massachusetts Com. against <<=28>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. Place of public accommodation has obligation to treat each member of public equally, except for good cause. Smith v Suburban Restaurants, Inc. (1978) <<=29>> 374 Mass 528, 373 NE2d 215. Common definition of "place" is physical environment, locality, site, or building. United States Jaycees v Massachusetts Com. against <<=30>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Conventional "place of public accommodation" statutes cover discrimination in membership policy which denies access to particular place but not discriminatory membership policy itself. United States Jaycees v Massachusetts Com. against <<=31>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Where defendant was arrested for trespassing after refusing to leave supermarket following dispute over whether he was entitled to item free of charge but did not rely at trial on any recognizable civil right under GL c 272 @ 98, judge was not obliged to instruct jury on theory advanced by defendant on appeal, i.e., that he could be guilty of trespassing in place of public accommodation only if there was "good cause" for ordering him to leave. <<=32>> Commonwealth v Lapon (1990) 28 Mass App 681, 554 NE2d 1225, review den (1990) <<=33>> 408 Mass 1101, 557 NE2d 1385. 3. -Particular places as In view of broad definition in instant section of place of public accommodation, office of finance company which is open during business hours to applicants for loans comes within phrase "any place. . . which is open to and accepts or solicits the patronage of the general public" and is place of public accommodation under @ 92A and @ 98 of instant chapter, nor is that result altered by fact that c 151B, @ 4, subsecs 3A and 3B make it unlawful practice to discriminate on grounds of color in issuing surety bonds or in granting mortgage loans, argument that latter statute would have been unnecessary if c 272, @ 92A and @ 98 covered same area being answered by @ 9 of c 151B which provides that nothing in c 151B shall be deemed to repeal any other law relating to discrimination because of color. Local Finance Co. v Massachusetts Com. against <<=34>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. Although United States Jaycees was not place of public accommodation, it may not discriminate on basis of sex in its admission or treatment of any person in place of public accommodation, including property of Massachusetts Jaycees which in unappealed decision of Massachusetts Commission Against Discrimination was found to be "place of public accommodation." United States Jaycees v Massachusetts Com. against <<=35>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. United States Jaycees, nonprofit membership organization which limits individual membership to men between ages of 18 and 35, is not "place of public accommodation" within meaning of GL c 272 @@ 92A and 98. United States Jaycees v Massachusetts Com. against <<=36>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Nonprofit rod and gun club which carried out activities in clubhouse and surrounding grounds was place of public accommodation required to admit women to membership, given club's total absence of genuine selectivity in membership. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=37>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Superior Court judge correctly affirmed decision of Massachusetts Commission Against Discrimination requiring rod and gun club to admit female to full membership in club and to afford females same benefits of membership as are afforded males. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=38>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. St. Patrick's Day-Evacuation Day parade on public streets in South Boston falls within scope of public accommodations law. <<=39>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Tavern is place of public accommodation within meaning of section, so that tavern keeper became liable to Negro, when he charged Negro more for beverage than was customarily charged to white patrons, such action constituting unlawful discrimination. Ferguson v Windsor Court Restaurant, Inc. (1967) 38 Mass App Dec 120. 4. or orientation Proposed legislation that would impose criminal penalties for discrimination based on " in public accommodations would not be unconstitutionally vague. <<=41>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. " refers to male or female homosexuality, heterosexuality, or bisexuality. <<=42>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. Act (St. 1989 c 516) making unlawful discrimination in housing, employment and granting of credit on basis of was not subject to referendum petition, because exception from anti-discrimination provision related to religion, religious practices or religious institutions. <<=43>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743, 55 CCH EPD P 40389. Public accommodations law prohibits discrimination based on in admission to or treatment in any place of public accommodation, resort or amusement. <<=44>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Sponsors of St. Patrick's Day-Evacuation Day parade in South Boston enjoined from discriminating against social organization consisting of homosexual and bisexual persons of Irish or Irish-American identity on basis of by denying group's application to participate in parade. <<=45>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. 5. Gender Anti-discrimination statute did not require that women be admitted to rod and gun club, which was place of public accommodations, simply because they are women; it only prevented their exclusion simply because they are women. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=46>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Sex discrimination legislation (GL c 272, @@ 92A and 98) impliedly repeals provisions of GL c 112, @ 87F (registration of barbers) and GL c 112, @ 87T (registration of hairdressers) which limit barber from offering same services to females which are performed for males, and which limit hairdresser from offering to males same services as offered to females; specifically, words "male" and "female" are eliminated from GL c 112, @@ 87F and 87T, respectively, and word "person" substituted therefor. 1971--1972 Op AG, No. 7. 6. Educational institution Organization conducting dancing school, operated for profit, is not organization operated for "educational purposes" so as to fall within exception created by instant section, because organization operated for educational purposes, within meaning of statute, must be educational in ordinary sense, and it does not include commercial enterprise providing instruction in dancing. <<=47>> Crawford v Robert L. Kent, Inc. (1960) 341 Mass 125, 167 NE2d 620. 7. Miscellaneous Upon evidence which was found sufficient to justify Commission in finding that certain code "boxes" used by finance company in its loan applications were used to record race of applicant and that on at least one recent occasion company declined to consider loan to Negro on ground of color, Commission was warranted in concluding that company was guilty of violating @ 98 of instant chapter and in ordering company to desist from practices specified by Commission. Local Finance Co. v Massachusetts Com. against <<=48>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. Superior Court has no jurisdiction to grant declaratory relief under GL c 231A while there is pending before Massachusetts Commission Against Discrimination proceedings governed by GL c 151B @ 5 and seeking to determine if discriminatory practices in violation of GL c 272 @@ 92A, 98 have occurred. East Chop Tennis Club v Massachusetts Com. against <<=49>> Discrimination (1973) 364 Mass 444, 305 NE2d 507. Physician who was not enrolled in Medicaid program and who refused to treat plaintiff/Medicaid recipient did not engage in unlawful discrimination in violation of public accommodations law. <<=50>> Hennessey v Berger (1988) 403 Mass 648, 531 NE2d 1268. Where judge found that organizers of St. Patrick's Day-Evacuation Day parade in South Boston were not exercising First Amendment rights of free speech or association, application of public accommodations law to parade did not violate First Amendment to United States Constitution. <<=51>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Where defendant was arrested for trespassing after refusing to leave supermarket following dispute over whether he was entitled to item free of charge but did not rely at trial on any recognizable civil right under GL c 272 @ 98, judge was not obliged to instruct jury on theory advanced by defendant on appeal, i.e., that he could be guilty of trespassing in place of public accommodation only if there was "good cause" for ordering him to leave. <<=52>> Commonwealth v Lapon (1990) 28 Mass App 681, 554 NE2d 1225, review den (1990) <<=53>> 408 Mass 1101, 557 NE2d 1385. Racially discriminatory provision in charter of fraternal order.--Fact that purpose clause set forth in articles of organization of fraternal society limits membership thereof to persons of Caucasian race is not, of itself, sufficient ground for disapproval of charter of such organization. 1967--1968 Op AG 51. LEVEL 1 - 18 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE I. CRIMES AND PUNISHMENTS CHAPTER 272. Crimes against Chastity, Morality, Decency and Good Order Mass. Ann. Laws ch. 272, @ 98 (1995) @ 98. Discrimination as to Race, Color, Religious Creed, National Origin, Sex, Deafness, Blindness, Physical or Mental Disability or Ancestry; Penalties. Whoever makes any distinction, discrimination or restriction on account of race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, deafness, blindness or any physical or mental disability or ancestry relative to the admission of any person to, or his treatment in any place of public accommodation, resort or amusement, as defined in section ninety-two A, or whoever aids or incites such distinction, discrimination or restriction, shall be punished by a fine of not more than twenty-five hundred dollars or by imprisonment for not more than one year, or both, and shall be liable to any person aggrieved thereby for such damages as are enumerated in section five of chapter one hundred and fifty-one B; provided, however, that such civil forfeiture shall be of an amount not less than three hundred dollars; but such person so aggrieved shall not recover against more than one person by reason of any one act of distinction, discrimination or restriction. All persons shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement subject only to the conditions and limitations established by law and applicable to all persons. This right is recognized and declared to be a civil right. HISTORY: 1865, 277; 1866, 252; PS 207, @ 69; 1885, 316; 1893, 436; 1895, 461; RL 212, @ 89; 1934, 138; 1950, 479, @ 3; 1963, 613, @ 5; 1971, 418, @ 2; 1975, 338, @ 2; 1979, 595, @ 2; 1983, 628, @ 7; 1989, 516, @ 16, approved Nov 15, 1989, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1950 amendment made the section applicable to religious distinction, discrimination, etc.; enlarged the classes of structures to which it relates; and added the last two sentences. The 1963 amendment broadened this section to make it cover discrimination because of national origin. The 1971 amendment rewrote the first sentence to provide a penalty for discrimination on the basis of sex. The 1975 amendment added deafness or blindness as bases for discrimination for which penalty may be imposed. The 1979 amendment added the phrase relative to any physical or mental disability. The 1983 amendment rewrote this section, increasing the fine from not more than $300 to not more than $2500, adding language further defining civil liability to any person aggrieved, and placing a minimum of $300 on any civil forfeiture. The 1989 amendment, in the first sentence, following "sex,", inserted " which shall not include persons whose involves minor children as the sex object," Sections 17 through 20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approved or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. CROSS REFERENCES-- Discrimination of military right, see ALM GL c 33 @ 12. Refusal to provide for travelers, see ALM GL c 140 @ 7. Bar to proceedings, see ALM GL c 151B @ 5. Complaint, see ALM GL c 151B @ 5. Fair educational practices, see ALM GL c 151C @@ 1 et seq. FEDERAL ASPECTS-- Civil rights, <<=1>> 18 USCS @@ 241 et seq. CODE OF MASSACHUSETTS REGULATIONS-- Massachusetts Commission Against Discrimination, 804 CMR 1.00. Commission against discrimination; rules of procedure, 804 CMR 1.01 et seq. Discrimination in public accommodations, 804 CMR 5.0. Discrimination in credit, 804 CMR 7.01 et seq. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:16, 8:20, 8:45, 8:61, 8:74. Mass Jur, Criminal Law @@ 10:4, 10:6. 5 Mass Proc, Civil Procedure @ 54:12. 15 Am Jur 2d, Civil Rights @@ 261, 262. 5A Am Jur Pl & Pr Forms (Rev) , Civil Rights, Forms 81 et seq. 2 Am Jur Proof of Facts 2d 187, Racial Discrimination in Employment (In General; Use of Statistics) . 2 Am Jur Proof of Facts 2d 237, Racial Discrimination in Employment: Testing and Education Requirements. 3 Am Jur Proof of Facts 2d 221, Racial Discrimination in Employment: Recruiting and Hiring. ANNOTATIONS-- Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. <<=6>> 85 ALR3d 351. Community residence for mentally disabled persons as violation of restrictive covenant. <<=7>> 41 ALR4th 1216. Actionability under Federal Civil Rights Acts, of discrimination because of complaining party's association with persons of different race, color, or the like. <<=8>> 6 ALR Fed 973. Validity, construction, and application of @ 201(b) (3) and related provisions of the Civil Rights Act of 1964 <<=9>> (42 USC @ 2000a(b) (3) , prohibiting discrimination or segregation in motion-picture houses, theaters, concert halls, sports arenas, stadiums, or other places of exhibition or entertainment. <<=10>> 7 ALR Fed 415. Validity, construction and application of @ 201(b) (1) and related provisions of the Civil Rights Act of 1964 <<=11>> (42 USC @ 2000a(b) (1) ) , prohibiting discrimination or segregation in inns, hotels, motels, or other establishments providing lodging to transient guests. <<=12>> 7 ALR Fed 450. Award of attorneys' fess under @ 204(b) of Civil Rights Act of 1964 <<=13>>(4 2 USCS @ 2000a-3(b) ) authorizing court to allow prevailing party, other than United States, reasonable attorney's fee as part of costs in action under public accommodations part of Act. <<=14>> 16 ALR Fed 621. Action of private hospital as state action under <<=15>> 42 USCS @ 1983 or Fourteenth Amendment. <<=16>> 42 ALR Fed 463. Actions, under <<=17>> 42 USCS @ 1983, for violations of federal statutes pertaining to rights of handicapped persons. <<=18>> 63 ALR Fed 215. Who is "qualified" handicapped person protected from employment discrimination under Rehabilitation Act of 1973 <<=19>> (29 USCS @@ 701 et seq.) and regulations promulgated thereunder. <<=20>> 80 ALR Fed 830. Criminal liability, under <<=21>> 18 USC @@ 241, 242, for depriving, or conspiring to deprive, a person of his civil rights. <<=22>> 20 L Ed 2d 1454. TEXTS-- 2 Proof of Cases in Massachusetts @ 1419 LAW REVIEWS-- Discrimination and antidiscrimination in Massachusetts law. 44 BU L Rev 30. Rousseau, The AIDS epidemic and the issues in the workplace. 72 Mass L Rev 51, June, 1987. CASE NOTES 1. Generally 2. Place of public accommodation 3. Gender 4. or orientation 5. Procedure, evidence and proof 6. Miscellaneous 1. Generally No indictment can be maintained against keeper of billiard room for refusing to allow Negro to play therein, on account of his color, unless billiard room was licensed, under Gen Sts c 88, @ 69. Commonwealth v Sylvester (1866) 95 Mass 247. There can be no doubt as to validity of statute denouncing under penalty discrimination on account of race or color in admission to theatres and other places of amusement. <<=26>> Re Opinion of Justices (1924) 247 Mass 589, 143 NE 808. Holders of licenses as common victuallers are required to supply food to stranger or traveller without discrimination as to race or color. <<=27>> Liggett Drug Co. v Board of License Com'rs (1936) 296 Mass 41, 4 NE2d 628. Person was permitted to recover in action of tort because of discrimination in violation of instant section in "place of public accommodation, resort or amusement" as defined in @ 92A. <<=28>> Crawford v Robert L. Kent, Inc. (1960) 341 Mass 125, 167 NE2d 620. Sections 92A and 98 of instant chapter are antidiscrimination legislation which is in pattern with c 151D, @ 4, subsection 6 of which is aimed at preventing discrimination in business of housing. <<=29>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. In accordance with tendency in other jurisdictions to give to antidiscrimination statute similar to instant section broad inclusive interpretation, words "any place. . . which is open to and accepts or solicits the patronage of the general public" in definition of place of public accommodation in instant section, when read in light of obviously broad legislative purpose, should be given broad interpretation, and following portions of section enumerating specific examples of places of public accommodation should not be taken to restrict preceding general language or to provide basis for applying principle of ejusdem generis. Local Finance Co. v Massachusetts Com. against <<=30>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. Superior Court has no jurisdiction to grant declaratory relief under GL c 231A, while there is pending before Massachusetts Commission Against Discrimination proceedings governed by GL c 151B @ 5, and seeking to determine if discriminatory practices in violation of GL c 272 @@ 92A, 98 have occurred. East Chop Tennis Club v Massachusetts Com. against <<=31>> Discrimination (1973) 364 Mass 444, 305 NE2d 507. Place of public accommodation has obligation to treat each member of public equally, except for good cause. Smith v Suburban Restaurants, Inc. (1978) <<=32>> 374 Mass 528, 373 NE2d 215. Public accommodations law is not unconstitutionally vague and overbroad. <<=33>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. 2. Place of public accommodation In view of broad definition in instant section of place of public accommodation, office of finance company which is open during business hours to applicants for loans comes within phrase "any place. . . which is open to and accepts or solicits the patronage of the general public" and is place of public accommodation under @ 92A and @ 98 of instant chapter, nor is that result altered by fact that c 151B, @ 4, subsecs 3A and 3B make it unlawful practice to discriminate on grounds of color in issuing surety bonds or in granting mortgage loans, argument that latter statute would have been unnecessary if c 272, @ 92A and @ 98 covered same area being answered by @ 9 of c 151B which provides that nothing in c 151B shall be deemed to repeal any other law relating to discrimination because of color. Local Finance Co. v Massachusetts Com. against <<=34>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. United States Jaycees, nonprofit membership organization which limits individual membership to men between ages of 18 and 35, is not "place of public accommodation" within meaning of GL c 272 @@ 92A and 98. United States Jaycees v Massachusetts Com. against <<=35>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Although United States Jaycees was not place of public accommodation, it may not discriminate on basis of sex in its admission or treatment of any person in place of public accommodation, including property of Massachusetts Jaycees which in unappealed decision of Massachusetts Commission Against Discrimination was found to be "place of public accommodation." United States Jaycees v Massachusetts Com. against <<=36>> Discrimination (1984) 391 Mass 594, 463 NE2d 1151. Nonprofit rod and gun club which carried out activities in clubhouse and surrounding grounds was place of public accommodation required to admit women to membership, given club's total absence of genuine selectivity in membership. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=37>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Since nonprofit rod and gun club did not have selective process for admittance to membership, application of anti-discrimination statute to club did not impair members' First Amendment rights of intimate association. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=38>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. St. Patrick's Day-Evacuation Day parade on public streets in South Boston falls within scope of public accommodations law. <<=39>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Where defendant was arrested for trespassing after refusing to leave supermarket following dispute over whether he was entitled to item free of charge but did not rely at trial on any recognizable civil right under GL c 272 @ 98, judge was not obliged to instruct jury on theory advanced by defendant on appeal, i.e., that he could be guilty of trespassing in place of public accommodation only if there was "good cause" for ordering him to leave. <<=40>> Commonwealth v Lapon (1990) 28 Mass App 681, 554 NE2d 1225, review den (1990) <<=41>> 408 Mass 1101, 557 NE2d 1385. 3. Gender Superior Court judge correctly affirmed decision of Massachusetts Commission Against Discrimination requiring rod and gun club to admit female to full membership in club and to afford females same benefits of membership as are afforded males. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=42>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Anti-discrimination statute did not require that women be admitted to rod and gun club, which was place of public accommodations, simply because they are women; it only prevented their exclusion simply because they are women. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=43>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Sex discrimination legislation (GL c 272, @@ 92A and 98) impliedly repeals provisions of GL c 112, @ 87F (registration of barbers) and GL c 112, @ 87T (registration of hairdressers) which limit barber from offering same services to females which are performed for males, and which limit hairdresser from offering to males same services as offered to females; specifically, words "male" and "female" are eliminated from GL c 112, @@ 87F and 87T, respectively, and word "person" substituted therefor. 1971--1972 Op Ag, No. 7. 4. or orientation Proposed legislation that would impose criminal penalties for discrimination based on " in public accommodations would not be unconstitutionally vague. <<=44>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. " refers to male or female homosexuality, heterosexuality, or bisexuality. <<=45>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. Act (St. 1989 c 516) making unlawful discrimination in housing, employment and granting of credit on basis of was not subject to referendum petition, because exception from anti-discrimination provision related to religion, religious practices or religious institutions. <<=46>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743, 55 CCH EPD P 40389. Public accommodations law prohibits discrimination based on in admission to or treatment in any place of public accommodation, resort or amusement. <<=47>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Sponsors of St. Patrick's Day-Evacuation Day parade in South Boston enjoined from discriminating against social organization consisting of homosexual and bisexual persons of Irish or Irish-American identity on basis of by denying group's application to participate in parade. <<=48>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. 5. Procedure, evidence and proof In civil action under this section, against proprietor of barroom to recover forfeiture or penalty for alleged unlawful discrimination against plaintiff on account of his color, plaintiff is not required to prove his case beyond reasonable doubt but only by preponderance of evidence. <<=49>> Bryant v Rich's Grill (1914) 216 Mass 344, 103 NE 925. Boston Licensing Board's findings that liquor licensee engaged in "deliberate pattern" of discrimination against blacks in regard to admission to licensed premises satisfied requirement of discriminatory intent. <<=50>> Vaspourakan, Ltd. v Alcoholic Beverages Control Com. (1987) 401 Mass 347, 516 NE2d 1153. Substantial evidence was appropriate standard for Alcoholic Beverages Control Commission to employ in reviewing decision that liquor licensee violated anti-discrimination statute. <<=51>> Vaspourakan, Ltd. v Alcoholic Beverages Control Com. (1987) 401 Mass 347, 516 NE2d 1153. "Aggrieved person" denotes private rather than governmental or public interest. <<=52>> Commonwealth v Dowd (1994) 37 Mass App 164, 638 NE2d 923. 6. Miscellaneous An organization conducting dancing school, operated for profit, is not organization operated for "educational purposes" so as to fall within exception created by instant section, because organization operated for educational purposes, within meaning of statute, must be educational in ordinary sense, and it does not include commercial enterprise providing instruction in dancing. <<=53>> Crawford v Robert L. Kent, Inc. (1960) 341 Mass 125, 167 NE2d 620. Upon evidence which was found sufficient to justify Commission in finding that certain code "boxes" used by finance company in its loan applications were used to record race of applicant and that on at least one recent occasion company declined to consider loan to Negro on ground of color, Commission was warranted in concluding that company was guilty of violating @ 98 of instant chapter and in ordering company to desist from practices specified by Commission. Local Finance Co. v Massachusetts Com. against <<=54>> Discrimination (1968) 355 Mass 10, 242 NE2d 536. Decision of Boston Licensing Board revoking liquor license of licensee for discriminating on basis of race in admission of persons to licensed premises was based on substantial evidence and was properly affirmed by Alcoholic Beverages Control Commission, Superior Court, and Supreme Judicial Court. <<=55>> Vaspourakan, Ltd. v Alcoholic Beverages Control Com. (1987) 401 Mass 347, 516 NE2d 1153. Since nonprofit rod and gun club did not have selective process for admittance to membership, application of anti-discrimination statute to club did not impair members' First Amendment rights of intimate association. Concord Rod & Gun Club, Inc. v Massachusetts Com. against <<=56>> Discrimination (1988) 402 Mass 716, 524 NE2d 1364. Physician who was not enrolled in Medicaid program and who refused to treat plaintiff/Medicaid recipient did not engage in unlawful discrimination in violation of public accommodations law. <<=57>> Hennessey v Berger (1988) 403 Mass 648, 531 NE2d 1268. Where judge found that organizers of St. Patrick's Day-Evacuation Day parade in South Boston were not exercising First Amendment rights of free speech or association, application of public accommodations law to parade did not violate First Amendment to United States Constitution. <<=58>> Irish-American Gay, Lesbian & Bisexual Group v City of Boston (1994) 418 Mass 238, 636 NE2d 1293. Where defendant was arrested for trespassing after refusing to leave supermarket following dispute over whether he was entitled to item free of charge but did not rely at trial on any recognizable civil right under GL c 272 @ 98, judge was not obliged to instruct jury on theory advanced by defendant on appeal, i.e., that he could be guilty of trespassing in place of public accommodation only if there was "good cause" for ordering him to leave. <<=59>> Commonwealth v Lapon (1990) 28 Mass App 681, 554 NE2d 1225, review den (1990) <<=60>> 408 Mass 1101, 557 NE2d 1385. Allegation of hotel guest that hotel bartender called him "nigger" sufficiently stated civil rights claim against bartender and employer to withstand motion for summary judgment; however, civil rights claim against hotel manager who asked guest to leave without refunding money paid for room was granted summary judgment where evidence showed no racially discriminatory motivation on manager's part. <<=61>> Jones v Boston (1990, DC Mass) 738 F Supp 604. LEVEL 1 - 19 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH THE 1990 SUPPLEMENT (1989 SESSION) *** A CONSTITUTION OR FORM OF GOVERNMENT FOR THE COMMONWEALTH OF MASSACHUSETTS PART THE FIRST. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts Mass. Const. Ann. Pt. 1, Art. 12 [@ 13] (1990) [@ 13] Art. XII. Prosecutions Regulated; Jury Trial, etc. No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury. NOTES: CROSS REFERENCES-- As to the right of access to and protection in courts of justice being excluded from an initiative petition, see [@ 152]. As to the right of protection and duty of contribution being correlative, see [@ 11]. As to property exempt from local taxation, see ALM GL c 59, @ 5. As to proceedings involving delinquent children, see ALM GL c 119, @@ 52 et seq. As to pardons by governor, see ALM GL c 127, @ 152. As to commitment of mentally ill persons, see ALM GL c 123, @@ 5 et seq. As to removal of attorneys, see ALM GL c 221, @ 40. As to warrant to compel attendance of witnesses, see ALM GL c 233, @ 9. As to competency of witnesses, see ALM GL c 233, @ 20. As to qualifications and exemptions from jury service, see ALM GL c 234, @ 1. As to peremptory challenges in criminal cases, see ALM GL c 235, @ 29. As to plea of misnomer in indictment for lotteries, see ALM GL c 271, @ 28. As to alleging name of accused in indictment, see ALM GL c 277, @ 19. As to the necessity of alleging in indictment of means used in committing crime, see ALM GL c 277, @ 21. As to unnecessary and immaterial allegations in indictment, see ALM GL c 277, @ 33. As to variance between allegations and proof in criminal case, see ALM GL c 277, @ 35. As to bill of particulars, see ALM GL c 277, @ 40. As to proceedings on conviction of crime charged, see ALM GL c 278, @ 12. As to punishment of habitual criminals, see ALM GL c 279, @ 25. As to "appointed counsel" and "assigned counsel," see ALM Crim R 2(b)(1), (2). As to arrest warrants in criminal proceedings, see ALM Crim R 6. As to assignment of counsel in criminal proceedings, see ALM Crim R 8. As to trial jurors in criminal proceedings, see ALM Crim R 20. As to marginally indigent defendants in criminal proceedings, see ALM Crim R 33. FEDERAL ASPECTS-- Due process, generally, USCS Constitution, Amends. 5, 14. Trial by jury, USCS Constitution, Art. III, @ 2, cl. 3; Amend. 6. Privilege against self-incrimination, USCS Constitution, Amend. 5. Right to be informed of charge, USCS Constitution, Amends. 5, 6. Speedy trial, USCS Constitution, Amend. 6. Right to confront witnesses, USCS Constitution, Amend. 6. Right to counsel, USCS Constitution, Amend. 6. Cruel or unusual punishments, USCS Constitution, Amend. 8. TOTAL CLIENT-SERVICE LIBRARY (R) REFERENCES-- 21 Am Jur 2d, Criminal Law @@ 218 et seq. ALR AND L ED ANNOTATIONS-- Representation by unlicensed counsel as compliance with constitutional right of accused to counsel. <<=1>> 68 ALR2d 1141. Duty of court to inform accused not represented by counsel of his right not to testify. <<=2>> 79 ALR2d 643. Amendment of indictment or information as to name or capacity of alleged victim of crime as ground for continuance. <<=3>> 85 ALR2d 1204. Constitutionality protected right of indigent accused to appointment of counsel in state court prosecution. <<=4>> 93 ALR2d 747. Propriety of requiring accused to give handwriting exemplar. <<=5>> 43 ALR3d 653. Admissibility, in civil action, of confession or admission which could not be used against party in criminal prosecution because obtained by improper police methods. <<=6>> 43 ALR3d 1375. Adequacy, under Federal Constitution, of immunity granted in lieu of privilege against self-incrimination. <<=7>> 32 L Ed 2d 869. Accused's right to represent himself in state criminal proceeding--modern state cases. <<=8>> 98 ALR3d 13. Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case, as ground of complaint by accused. <<=9>> 99 ALR3d 1261. Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. <<=10>> 3 ALR4th 374. Adequacy of defense counsel's representation of criminal client regarding right to and incidents of jury trial. <<=11>> 3 ALR4th 601. Mental subnormality of accused as affecting voluntariness or admissibility of confession. <<=12>> 8 ALR4th 16. Adequacy of defense counsel's representation of criminal client regarding hypnosis and truth tests. <<=13>> 9 ALR4th 354. Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. <<=14>> 9 ALR4th 595. Adequacy of defense counsel's representation of criminal client regarding guilty pleas, <<=15>> 10 ALR4th 8. Adequacy of defense counsel's representation of criminal client regarding post-plea remedies. <<=16>> 13 ALR4th 533. Adequacy of defense counsel's representation of criminal client regarding prior conviction. <<=17>> 14 ALR4th 227. Attorney's use of objectionable questions in examination of witness in state judicial proceeding as contempt of court. <<=18>> 31 ALR4th 1279. Competency to stand trial of criminal defendant diagnosed as "schizophrenic"--modern state cases. <<=19>> 33 ALR4th 1062. Admissibility of evidence of fingernail comparisons in criminal case. <<=20>> 40 ALR4th 575. Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information. <<=21>> 39 ALR4th 899. Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecutions. <<=22>> 41 ALR4th 1189. Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor. <<=23>> 43 ALR4th 395. Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness. <<=24>> 54 ALR4th 1156. Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant. <<=25>> 55 ALR4th 1170. Exclusion of public from state criminal trial in order to avoid intimidation of witness. <<=26>> 55 ALR4th 1196. Closed-circuit television witness examination. <<=27>> 61 ALR4th 1155. Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel--federal cases. <<=28>> 53 ALR Fed 140. Right of witness in federal court to claim privilege against self-incrimination after giving sworn evidence on same matter in other proceedings. <<=29>> 42 ALR Fed 793. Waiver of right to trial by jury as affecting right to trial by jury on subsequent trial of same case in federal court. <<=30>> 66 ALR Fed 859. Effect upon accused's Sixth Amendment right to impartial jury of jurors having served on jury hearing matter arising out of same transaction or series of transactions. <<=31>> 68 ALR Fed 919. Necessity that Miranda warnings include express reference to right to have attorney present during interrogation. <<=32>> 77 ALR Fed 123. What constitutes assertion of right to counsel following Miranda warnings--federal cases. <<=33>> 80 ALR Fed 622. LAW REVIEW REFERENCES-- Right of indigent defendant to assistance of counsel. Boston Law School 1958 Annual Survey of Mass Law, pp 122-125. Waiving indictment in criminal cases. XVIII Mass LQ No 1 p 41. Assistance of counsel: a right to hybrid representation. 57 Boston U L Rev, No. 3, p. 570, May, 1977. Westen, Confrontation and compulsory process: a unified theory of evidence for criminal cases. 91 Harvard L Rev, No. 3, p. 567, January, 1978. Constitutional limitations on allocating the burden of proof of insanity to the defendant in murder cases. 56 Boston U L Rev, No. 3, p. 499, May, 1976. Due process and equal protection: constitutional implications of abortion notice and reporting requirements. 56 Boston U L Rev, No. 3, p. 522, May, 1976. The de novo procedure--assessment of its constitutionality under the Sixth Amendment right to trial by jury and the due process clause of the Fourteenth Amendment. 55 Boston U L Rev, No. 1, p. 25, January, 1975. Greenberg, Double jeopardy and trial de novo, the dilemma in the state's District Courts. 68 Mass L Rev 50, June, 1983. CASE NOTES 1. In general. 2. Judgment of peers and law of the land. 3. Statement of crime or offense. 4. Self-incrimination. 5. Right to be confronted by witnesses. 6. Right to be heard or assisted by counsel. 7. Right to jury trial. 8. Proceedings before grand jury. 9. Miscellaneous statutes and proceedings. 1. In general The property, immunities, or privileges afforded to the individual under this section cannot be cut back or invaded by any act of legislation. <<=35>> Atty. Gen. v Brissenden, 271 Mass 172, 171 NE 82. Exercise of police power.--The exercise of the police power within its sphere is not narrowed or inhibited by this article. <<=36>> Loring v Commissioner of Public Works, 264 Mass 460, 163 NE 82. Constitutional rights must be seasonably asserted, even in criminal cases. <<=37>> Commissioner v Dascalakis, 246 Mass 12, 140 NE 470. Time for objecting to complaint.--The statute providing that objections to a complaint must be taken before judgment has been rendered in the original trial, violates no provision of this article. Commissioner v Walton, 93 Mass (11 Allen) 238. Legislation to prevent delay.--Under this article the legislature is amply justified in passing any reasonable legislation designed to prevent delay in the administration of justice and to bring litigation to a speedy conclusion. <<=39>> Hirsch v Goldstein, 265 Mass 358, 164 NE 82. Defendant's rights under this article were not impaired by the dismissal of his exceptions for failure to prosecute and to enter the same "as soon as may be" after the allowance of the exceptions. <<=40>> Hirsch v Goldstein, 265 Mass 358, 164 NE 82. Defendant in criminal case has right to interview witnesses held in custody of Commonwealth.--In order to make effective the provision of the instant article that a criminal defendant "shall have a right to produce all proofs that may be favorable to him", counsel for the defendant should be accorded the right to interview, prior to trial, witnesses who are in the custody of the <<=41>> Commonwealth. Commonwealth v Balliro (Mass) 209 NE2d 308. Alternatives of pleading guilty or receiving more severe sentence may not be imposed on criminal defendant.--It is a violation of basic constitutional rights for the trial judge to indicate to counsel for a criminal defendant that the defendant would receive a more severe sentence if he stood trial than if he pleaded guilty, as a result of which the defendant pleaded guilty, because to impose on the defendant such alternatives amounts to coercion as matter of law. <<=42>> Letters v Commonwealth, 346 Mass 403, 193 NE2d 578. Entry by supervisor coastal warden in course of his duties does not violate this <<=43>> Article. Thurlow v Crossman, 336 Mass 248, 143 NE2d 812. Conduct of crime commission, a legislative agency, found not to have usurped executive functions of Attorney General in violation of doctrine of separation of powers as found in <<=44>> Articles 12 and 30 of the Declaration of Rights. Commonwealth v Schnackenberg (1969) 356 Mass 65, 248 NE2d 273. Right of arrested person to use telephone not constitutional right.--The right of an arrested person to use the telephone at a police station is not a right guaranteed by the instant article, nor did the enactment of c. 276, @ 33A conferring upon an arrested person the right to use such telephone transform that right into a constitutional right because a statute cannot create a new constitutional right. <<=45>> Commonwealth v McGaffigan (1967) 352 Mass 332, 225 NE2d 351. Indigent defendant entitled to have county pay for blood-grouping tests to determine whether defendant can be excluded as father of a child under c 273, @ 12<<=46>> A.--Commonwealth v Possehl (1969) 355 Mass 575, 246 NE2d 667. Free transcript to indigent defendant.--Although a defendant is permitted by statute to obtain a stenographer at his own expense, the refusal of the commonwealth to furnish a free transcript to an indigent at a probable cause hearing was not a denial of equal protection. <<=47>> Commonwealth v Britt (1972) 362 Mass 325, 285 NE2d 780. Indigent defendant in criminal case not entitled to be examined, at expense of Commonwealth, by psychiatrists of his own choosing as distinguished from right to be examined by independent psychiatrists.--<<=48>> Commonwealth v Erickson (1969) 356 Mass 63, 248 NE2d 270. Presence of a number of assistant prosecutors not violation of secrecy of grand jury room.--The presence in the grand jury room of a number of assistants to the prosecutor, ranging from three to as many as five or six at some times, did not constitute a violation of the instant article as violating the secrecy of the grand jury room, such assistants not being in the category of "strangers" in the room, the rule being that the prosecutor has discretion as to the use of assistants and that he may have present such reasonable number as he deems appropriate, provided that nothing is done to invade the province of the grand jury or to influence their action, and it will be assumed, unless the facts require a contrary conclusion, that assistants were not present for any purpose other than the presentation of evidence, there being no burden on the Commonwealth to show a necessity or reason for the presence of prosecutors as distinguished from strangers. <<=49>> Commonwealth v Favulli (1966) 352 Mass 95, 224 NE2d 422. Doctrine of charitable immunity as defense to action of tort and contract against hospital for alleged death and conscious suffering of plaintiff's intestate not repugnant to any provision of <<=50>> Massachusetts or Federal Constitutions.--Colby v Carney Hospital (1969) 356 Mass 527, 254 NE2d 407. Where, during a state criminal trial, the defendant's behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint, and prior to his removal he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, the record demonstrated that the defendant would not have been dissuaded by the trial judge's use of his criminal contempt powers, and he was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner, under the circumstances the defendant lost his right guaranteed by the Sixth and Fourteenth Amendments to the federal constitution to be present throughout his trial. <<=51>> Illinois v Allen (1970) 397 US 337, 25 L Ed 2d 353, 90 S Ct 1057, 51 Ohio Ops 2d 163, reh den <<=52>> 398 US 915, 26 L Ed 2d 80, 90 S Ct 1684. Exclusion of certain veniremen after questioning as to their views on the death penalty not denial of defendant's constitutional right to benefit of law of land under instant article if it appeared that they were excluded because they did not stand indifferent in that they would be unable to reach a verdict based on the evidence and the applicable law. <<=53>> Commonwealth v Mangum (1970) 357 Mass 76, 256 NE2d 297. Denial of defendants' motions to interview witness held in protective custody not reversible error where witness refused to be interviewed--nature and extent of instructions to witness lay in discretion of court.--See <<=54>> Commonwealth v Doherty (1967) 353 Mass 197, 229 NE2d 267, cert den <<=55>> 390 US 982, 19 L Ed 2d 1280, 88 S Ct 1106 and (ovrld on other grounds <<=56>> Connor v Commonwealth 363 Mass 572, 296 NE2d 172) and (ovrld on other grounds <<=57>> Commonwealth v Stewart 365 Mass 99, 309 NE2d 470) as stated in <<=58>> Commonwealth v De Christoforo (Mass) 1976 Adv Sheets 2188, 353 NE2d 769. Defendant in criminal case has right to interview witnesses held in custody of <<=59>> Commonwealth--Commonwealth v Balliro (1965) 349 Mass 505, 209 NE2d 308, 14 ALR3d 640. Minimum sentence of 30 years imprisonment for various offenses including armed robbery, armed burglary, and rape, imposed on 16-year-old defendant did not constitute cruel and unusual punishment, even though eligibility for parole under GL c 127 @ 133 would not occur until he had served 20 years whereas with certain life sentences parole eligibility under GL c 127 @ 133A occurred after fifteenth year of service. <<=60>> Commonwealth v Morrow (1973) 363 Mass 601, 296 NE2d 468. A provision of a public building construction contract in Massachusetts which required contractors to maintain a minimum of 20 percent minority workers in each job category, while failing to make the provision unconstitutional, placed a burden on the contractor to show he made every possible effort to comply with the provision. <<=61>> Associated General Contractors, Inc. v Altshuler (1973, DC Mass) 361 F Supp 1293, affd (CA1 Mass) <<=62>> 490 F2d 9, cert den <<=63>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971. A state provision requiring equal employment opportunity in a proposed federally assisted construction contract which was more demanding than the federal equal employment opportunity clause does not violate the supremacy clause of the Sixth Amendment to the Federal Constitution for the reason that the federal legislation and executive orders on the subject were not intended to preempt the field. <<=64>> Associated General Contractors, Inc. v Altshuler (1973, DC Mass) 361 F Supp 1293, affd (CA1 Mass) <<=65>> 490 F2d 9, cert den <<=66>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971. Indigent criminal defendant on trial in misdemeanor session of Superior Court is entitled without cost to himself and on request to have stenographer record proceedings but counsel are expected to make only good faith requests that verbatim record is needed to insure protection of defendant's rights and to avoid making unnecessary or exorbitant demands on time of stenographers or on public resources. <<=67>> Blazo v Superior Court (1974) 366 Mass 141, 315 NE2d 857. Indigent criminal defendant may compel attendance of witnesses by summons at county expense, upon making ex parte application to judge with affidavit showing inability to pay fees, setting out names and addresses of witnesses to be summoned, and stating why their attendance is necessary to adequate defense. <<=68>> Blazo v Superior Court (1974) 366 Mass 141, 315 NE2d 857. No deprivation of due process occurred when prison inmates were transferred to departmental segregation unit, where the prisoners had not demonstrated that conditions in such unit had so deteriorated as to require a contrary conclusion under the <<=69>> Eighth Amendment. Daigle v Hall (1977, CA1 Mass) 564 F2d 884. Supreme Judicial Court decision to order judge to enter decision in jury-waived case and judge's compliance therewith did not violate defendant's rights to due process and equal protection or protection against double jeopardy. <<=70>> Commonwealth v Elder (1983) 389 Mass 743, 452 NE2d 1104. Those who are entitled to protection from infringement by the government are people. <<=71>> Spence v Boston Edison Co. (1983) 390 Mass 604, 459 NE2d 80. Witness' prior reported testimony at probable cause portion of juvenile transfer hearing bore sufficient "indicia of reliability" to be admissible in criminal case against defendant. <<=72>> Commonwealth v Ortiz (1984) 393 Mass 523, 471 NE2d 1321. Capital punishment legislation (St. 1982, c 554) violates Article 12 of Declaration of Rights by impermissibly burdening both right against self-incrimination and right to jury trial, since legislation imposes death penalty only after trial by jury and allows those who plead guilty to avoid risk of being put to death, thereby discouraging assertion of rights. <<=73>> Commonwealth v Colon-Cruz (1984) 393 Mass 150, 470 NE2d 116. Individuals who cannot speak English and noncitizens do not form discrete groups within community deserving of protection by <<=74>> Article 12 of Declaration of Rights. Commonwealth v Acen (1986) 396 Mass 472, 487 NE2d 189. 2. Judgment of peers and law of the land "The words 'the law of the land' in [this Article] which were taken from Magna Charta embrace all that is comprehended in the words due process of law' in the Fourteenth Amendment," with citations. <<=75>> Pugliese v Commonwealth, 335 Mass 471, 140 NE2d 476. Protection afforded by article.--By this article there is assured to the individual protection against being deprived of his property, immunities or privileges, his life, liberty or estate except by the judgment of his peers or the law of the land. This is one of the great landmarks of human freedom. It cannot be cut down or invaded by any act of legislation. It is an additional shield to protect rights declared in art 10. <<=76>> Atty. Gen. v Brissenden, 271 Mass 172, 171 NE 82. The expression "law of the land" could not have been designed to prevent the enactment of a reasonable statute merely forbidding the attendance of the general public at certain types of criminal trials where the Legislature could reasonably determine that the public interest would be better served by exclusion. <<=77>> Commonwealth v Blondin, 324 Mass 564, 87 NE2d 455, cert den <<=78>> 339 US 984, 94 L Ed 1387, 70 S Ct 1004. Constitutional requirements of due process of law are for protection of private rights and are inapplicable to proceedings involving public rights, so long as such proceedings do not affect private rights. <<=79>> Morrissey v State Ballot Law Com. 312 Mass 121, 43 NE2d 385. Hearing.--The operation by a governmental agency of a public transportation system is an enterprise purely public in its nature, and due process does not require a public hearing to the cities and towns affected as to their, proportionate cost of its operation. <<=80>> Chelsea v Treasurer, 237 Mass 422, 130 NE 397. Where decision to appropriate property for public use is purely political, a hearing is not essential to due process under . . . [this Article]. <<=81>> Hayeck v Metropolitan Dist. Com. 335 Mass 372, 140 NE2d 210. Parolee not entitled to hearing on revocation of parole.--A parolee is not entitled, either under Massachusetts Constitution, Declaration of Rights, Art 12 nor under the Fourteenth Amendment to the Federal Constitution, to a hearing upon the revocation of a permit to be at liberty, and the failure to afford such a hearing does not invalidate the revocation. Martin v State Board of Parole, 1966 Adv sheets 187, <<=82>> 213 NE2d 925. Vagueness of statute.--A statute regulating security sales and excepting isolated sales not made in course of repeated and successive transactions of like character is not violative of due process because of vagueness. <<=83>> Kneeland v Emerton, 280 Mass 371, 183 NE 155, 87 ALR 1. A statute which prohibits the posting of certain signs where they will be visible from a public way which in plain terms designates all the elements constituting the crime and furnishes a sufficiently certain and definite description of the class of signs prohibited as to be reasonably understood by anyone of ordinary intelligence is not unconstitutional for vagueness. <<=84>> Commonwealth v Slome, 321 Mass 713, 75 NE2d 517. Zoning ordinance held unconstitutional for vagueness.--For a case where a zoning ordinance establishing setback requirements was held to be unconstitutional under the instant article because of vagueness as to the requirements intended to be imposed, see <<=85>> O'Connell v Brockton Board of Appeals, 344 Mass 208, 181 NE2d 800. Tax statute.--Statute providing that transfers of property made or intended to take effect in possession or enjoyment after the death of the grantor shall be subject to tax violates the requirements of due process. <<=86>> Coolidge v Long, 282 US 582, 75 L Ed 562, 51 S Ct 306. Right of landowner to notice and opportunity to question validity of tax.--In the collection of taxes, the public interest requires that land be taken for nonpayment of taxes and sold under such circumstances that the necessary revenue may be obtained. Taxpayers, of course, have fundamental rights which may not be transgressed by the taxing powers, and the interest of the landowner requires that he be given notice and opportunity to be heard on the question of the validity of the tax sometime before the tax becomes conclusively fixed. Due process under the federal or state constitution requires that such notice and opportunity be accorded him. <<=87>> Napier v Springfield, 304 Mass 174, 23 NE2d 157, wherein it was held that the notice provided for in c 60, @ 79, was sufficient. A statute permitting a gas company to include a service charge in its rate schedule is not violative of due process. <<=88>> Grant v Department of Public Utilities, 279 Mass 38, 180 NE 504. Contractual obligations.--The rule that where a statutory right of action is given the repeal of the statute without a saving clause destroys the right, cannot constitutionally be applied where its application would destroy or impair the obligation of a contract protected by this section. <<=89>> Pittsley v David, 298 Mass 552, 11 NE2d 461. The right to contract.--The provisions of this section of the Declaration of Rights are as strong in protection of individual rights and freedom as those of the Fifth and Fourteenth Amendments to the Constitution of the United States, and the right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of the law. <<=90>> Opinion of Justices, 271 Mass 598, 171 NE 234, 68 ALR 1265. Proposed legislation that any contract of employment shall be void where there is included as a consideration for the acceptance of such contract by the employer the purchase by the employee of capital stock of any nature in the business of the employer would deprive the employee of his liberty of contract and would be unconstitutional under this section. <<=91>> Opinion of Justices, 267 Mass 607, 166 NE 401, 63 ALR 838. Workmen's compensation.--A statute giving binding effect to a medical report made upon information unknown to the compensation claimant and which he can never learn deprives claimant of his fundamental rights and is violative of this section. Case of <<=92>> Meunier, 319 Mass 421, 66 NE2d 198. A statute which imposes upon the insurer seeking a review of a compensation award the obligation to pay the cost to the injured employee of such review in instances where the award is upheld does not deprive the insurer of equal protection of the laws and is not violative of this section. Case of <<=93>> Ahamed, 278 Mass 180, 179 NE 684, 79 ALR 669. Nuisances.--A statute providing for the abatement of nuisances by injunction in equity is not a proceeding to punish an offender for the crime of maintaining a nuisance, but looks only to the property that in the use made of it constitutes the nuisance, and does not deprive the owner of the premises of property in violation of this section. <<=94>> Carleton v Rugg, 149 Mass 550, 22 NE 55, 5 LRA 193. Objection that criminal defendants were unable to secure fair and speedy trial because guilt established by news releases may be raised by plea in abatement.--Objections that criminal defendants were unable to secure a fair and speedy trial as guaranteed by Articles 1, 11, and 12 of the Declaration of Rights of the Massachusetts Constitution because of the issuance by law officers of news releases indicating the guilt of the defendants, and because of extensive publicity attendant thereon, were objections in abatement which could properly be raised by a plea in abatement, but where most of the publicity appeared between January 12 and the end of February, 1956 and the trial date was set for August 6, 1956, the objections, from a viewpoint of substance would not be sustained. <<=95>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=96>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objections that criminal defendants were unable to secure fair and speedy trial because guilt established by news releases may not be raised by plea at bar.--Objections to an indictment that the defendants were unable to secure a fair and speedy trial, as guaranteed by Articles 1, 11, and 12 of the Declaration of Rights of the Massachusetts Constitution because of the issuance by law officers of news releases indicating the guilt of the defendants were not the type of objections which may be raised by a plea at bar. <<=97>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=98>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that criminal defendants were unable to secure fair and speedy trial because guilt established by news releases may not be raised by motion to quash.--Objections to an indictment that the defendants were unable to secure a fair and speedy trial as guaranteed by Articles 1, 11, and 12 of the Declaration of Rights of the Massachusetts Constitution because of the issuance by law officers of news releases indicating the guilt of the defendants were not objections for formal defects apparent on the face of the indictment, and hence they could not be raised by a motion to quash under GL c 278, @ 17. <<=99>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=100>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Criminal contempt.--Where defendant, charged with criminal contempt, was arrested and taken into custody in conformity to settled principles of law, given fair notice of the charges against her, and accorded a full hearing, the provisions of this section were fully complied with. <<=101>> Blankenburg v Commonwealth, 272 Mass 25, 172 NE 209, 73 ALR 808. The office of district attorney is not an "immunity," or "liberty," or "property," or "estate," within this article. <<=102>> Atty. Gen. v Pelletier, 240 Mass 264, 134 NE 407. The regulation of a board of health with reference to establishments handling eggs, is not in conflict with the Federal Constitution. The property of the defendant is neither taken nor destroyed, and there is no discrimination in favor of one dealer from another dealer engaged in the same business. <<=103>> Commonwealth v Wilson Co. 241 Mass 406, 135 NE 376. Statutes preventing sale of product in "imitation" of other foods unconstitutional as to wholesome, distinctively labelled products resembling cream.--See <<=104>> Coffee-Rich, Inc. v Commissioner of Public Health, 348 Mass 414, 204 NE2d 281, injunction gr (Mass) <<=105>> 209 NE2d 389. License to keep a pool table.--The keeping of a pool table for hire is one of many things affecting the public morals, which the legislature can either absolutely prohibit or can regulate, and one common form of regulation is by requiring a license. A licensee takes his license subject to such conditions as the legislature sees fit to impose. The license is not a contract, and a revocation of it does not derive the defendant of any property, immunity or privilege within the meaning of these words in this article. Commonwealth v Kinsley, 133 Mass 578. Defendant in criminal case entitled to have jury charged as to presumption of innocence and as to principle that burden of proof is on prosecution to prove every essential element of crime beyond reasonable doubt.--<<=107>> Commonwealth v Redmond (1970) 357 Mass 333, 258 NE2d 287. Charge on defense of alibi.--Although the court may instruct the jury, without violating the instant article, that the defense of alibi in a criminal case should be scrutinized with care by the jury because it is a defense that may be readily be contrived, if the court does use such an instruction, it should make clear to the jury that they are the sole judges of the weight and credibility of the evidence on alibi, that despite the defense of alibi, the burden remains on the Commonwealth to prove beyond a reasonable doubt all the essential elements of the crime charged, and that there is no burden on the defendant to prove his innocence. <<=108>> Commonwealth v Redmond (1970) 357 Mass 333, 258 NE2d 287. Dismissal of criminal complaints in municipal court because of return of grand jury indictments covering same matters not violation of due process provisions of instant article.--See <<=109>> Commonwealth v Moran (1967) 353 Mass 166, 228 NE2d 827. Town by-laws requiring closing of retail food stores between hours of 10 p.m. and 8 a.m. do not deny due process under <<=110>> Articles 1, 10, and 12 of the Declaration of Rights of the Massachusetts Constitution. Jewel Cos. v Burlington (1974) 365 Mass 274, 311 NE2d 539. Failure to return from furlough constitutes escape from prison camp under G.L. c. 127 @ 83<<=111>> C. Commonwealth v Sneed (1975 Mass App) 1975 Adv Sheets 157, 322 NE2d 435. Waiver found from failure of defendant to object to his absence from judge's private interview of two jurors as to their possible bias. <<=112>> Commonwealth v MacDonald (1975) 368 Mass 395, 333 NE2d 189. Department of Public Utility's disallowance of certain elements in gas company's rate-making process did not result in confiscatory rates, but Department of Public Utilities was required to include company's unamortized retired plant from rate base. <<=113>> Boston Gas Co. v Department of Public Utilities (1975) 368 Mass 780, 336 NE2d 713. Mandatory death penalty for rape-murder is unconstitutional as violation of <<=114>> Massachusetts Declaration of Rights. Commonwealth v O'Neal (1975, Mass) 1975 Adv Sheets 3502, 339 NE2d 676. Revocation of concession contract pursuant to its terms by director of division of forests and parks did not deny concessionaire property or liberty under due process clause. <<=115>> Lotto v Commonwealth (1976, Mass) 1976 Adv Sheets 530, 343 NE2d 855. Mandatory minimum one year sentence for carrying gun constitutional--Constitutional provisions protecting against denial of due process of law and cruel and unusual punishment and guaranteeing separation of power of three branches of government were not violated by imposition of mandatory, minimum one year jail sentence for carrying unlicensed gun, without parole, probation, furlough, etc. <<=116>> Commonwealth v Jackson (1976, Mass) 1976 Adv Sheets 735, 344 NE2d 166. Defendant's guilty pleas to numerous indictments held not knowingly and voluntarily made, because his counsel failed to perform obligation placed upon him by judge to advise defendant of nature and number of all charges against him before he pleaded to those charges. <<=117>> Commonwealth v Bolduc (1977, Mass App) 1977 Adv Sheets 182, 360 NE2d 340, superseded (Mass) <<=118>> 1978 Adv Sheets 1727, 378 NE2d 661. Section applies to male prostitutes as well as female prostitutes, and therefore does not violate equal protection of the law. <<=119>> Commonwealth v King (1977, Mass) 1977 Adv Sheets 2636, 372 NE2d 196. Prostitution provision of GL ch 272 @ 53 is not unconstitutional on equal protection grounds because of police failure to prosecute male prostitutes and male customers, since other criminal statutes may be employed to punish male conduct equivalent to female prostitution and since evidence on this issue was not fully developed at trial. <<=120>> Commonwealth v King (1977, Mass) 1977 Adv Sheets 2636, 372 NE2d 196. Principle of equal protection of the law is not violated because GL ch 272 @ 53 prohibiting prostitution does not include conduct of persons who hire or seek to hire another to engage in sexual activity. <<=121>> Commonwealth v King (1977, Mass) 1977 Adv Sheets 2636, 372 NE2d 196. Criminal defendant may not be tried, convicted or sentenced while he is legally incompetent. <<=122>> Commonwealth v Hill (1978, Mass) 1978 Adv Sheets 995, 375 NE2d 1168. The following provisions of the Massachusetts Constitution are comparable to the due process clause of the Federal Constitution: Part II, c. 1, @ 1, Art. 4; and <<=123>> Articles 1, 10, 12, of the Declaration of Rights. Nantucket Conservation Foundation, Inc. v Russell Management, Inc. (1980, Mass) 1980 Adv Sheets 781, 402 NE2d 501. Protection against double jeopardy in Massachusetts has long been part of the common law, although Supreme Judicial Court has never explicitly stated that Massachusetts Declaration of Rights includes double jeopardy guaranty. <<=124>> Lydon v Commonwealth (1980, Mass) 1980 Adv Sheets 1915, 409 NE2d 745. Double jeopardy principles do not bar retrial of defendant at jury trial when defendant voluntarily chose to have bench trial first, even if evidence at bench trial was inadequate to warrant conviction. <<=125>> Lydon v Commonwealth (1980, Mass) 1980 Adv Sheets 1915, 409 NE2d 745. Double jeopardy clause of Constitution does not require states to provide procedure for review of sufficiency of evidence at bench trial. <<=126>> Gibson v Commonwealth (1980, Mass) 1980 Adv Sheets 1933, 409 NE2d 741. Principles of due process of law are embodied in articles 1, 10, 12, of the Declaration of Rights and in Part 2, chapter 1 of the <<=127>> Constitution. Moe v Secretary of Admin. & Finance (1981, Mass) 1981 Adv Sheets 464, 417 NE2d 387. Lis pendens procedure does not violate state constitutional due process provisions. <<=128>> McClory v Merkert (1981, Mass) 1981 Adv Sheets 1149, 420 NE2d 349. There is no denial of constitutional right to be informed of nature and cause of accusation if defendant is sentenced as "common and notorcious thief" without prior notice of possible sentence. <<=129>> Commonwealth v Crocker (1981, Mass) 1981 Adv Sheets 1916, 424 NE2d 524. Statute requiring that private contractors on state-funded construction projects give preference to residents of Commonwealth in hiring for certain positions is not in conflict with federal National Labor Relations Act but it violates several provisions of the Federal Constitution and thus cannot stand. <<=130>> Massachusetts Council of Constr. Employers, Inc. v Mayor of Boston (1981, Mass) 1981 Adv Sheets 2039, 425 NE2d 346, 29 CCH EPD @p 32859, 93 CCH LC @p 55316, cert gr (US) <<=131>> 71 L Ed 2d 458. GL c 190 @ 2 which voids devise or bequest to necessary subscribing witness or spouse of witness to will does not violate equal protection and due process guaranties of United States and state constitutions. <<=132>> Dorfman v Allen (1982) 386 Mass 136, 434 NE2d 1012. Road block conducted by city police for purpose of detecting drunk drivers was unconstitutional, where there was not sufficient police presence, adequate lighting or warning to approaching motorists, and police did not establish lack of arbitrariness and undue delay of motorist. <<=133>> Commonwealth v McGeoghegan (1983) 389 Mass 137, 449 NE2d 349, ALR4th 3062. Previous assignment to alcohol education program may constitutionally be basis for imposing enhanced penalty of mandatory 7 days' imprisonment upon conviction of "second offense" of operating motor vehicle while under influence of intoxicating liquor. <<=134>> Commonwealth v Murphy (1983) 389 Mass 316, 451 NE2d 95. Supreme Judicial Court may fashion its own concepts of due process of law under Constitutional of Commonwealth and need not define "state action" as the United States Supreme Court has defined it for purposes of Fourteenth Amendment and <<=135>> 42 USCS @ 1983. <<=136>> Phillips v Youth Development Progam, Inc. (1983) 390 Mass 652, 459 NE2d 453, approving (1982) <<=137>> 14 Mass App 626, 441 NE2d 770. Due process may bar government from obtaining conviction in rare case where, though entrapment is not proved, conduct of police is outrageous or offensive to fair play and involves coercion, violence, or brutality to the person. <<=138>> Commonwealth v Shuman (1984) 391 Mass 345, 462 NE2d 80. Shareholders of corporation had no constitutional right to intervene in action brought by Attorney General against corporation. <<=139>> Atty. Gen. v Brockton Agricultural Soc. (1983) 390 Mass 431, 456 NE2d 1130. Time taken by Commissioner of Insurance to schedule hearings, and to hear and decide issues respecting proposed rates for Workmen's Compensation insurance was not so excessive as to violate procedural or substantive due process. <<=140>> Workers' Compensation Rating & Inspection Bureau v Commissioner of Ins. (1984) 391 Mass 238, 461 NE2d 1178. Commissioner of Insurance's denial of interim rate relief for Workmen's Compensation insurers was not confiscation of companies' property and was not denial of due process. <<=141>> Workers' Compensation Rating & Inspection Bureau v Commissioner of Ins. (1984) 391 Mass 238, 461 NE2d 1178. Commissioner of Insurance acted properly in approving "unlimited payroll liability exposure base program" to be used in calculating rates for Workmen's Compensation insurance. <<=142>> Workers' Compensation Rating & Inspection Bureau v Commissioner of Ins. (1984) 391 Mass 238, 461 NE2d 1178. Defendant's 9-10 year sentence for kidnapping was in compliance with statute and did not deny due process because it may prevent defendant from being eligible for parole prior to his discharge. <<=143>> Commonwealth v Hogan (1983) 17 Mass App 186, 456 NE2d 1162, app den (Mass) <<=144>> 459 NE2d 825. Requirement of pro rata contribution among joint tortfeasors without consideration of their relative fault does not violate due process and equal protection principles. <<=145>> Zeller v Cantu (1985) 395 Mass 76, 478 NE2d 930. Certification requirement of GL ch 62C @ 49A does not lack rational basis and does not deny due process of law, since it furthers legitimate government goal of raising revenue and assuring filing of tax returns. <<=146>> Walden v Board of Registration in Nursing (1985) 395 Mass 263, 479 NE2d 665. Certification requirement of GL ch 62C @ 49A does not deny equal protection of the law. <<=147>> Walden v Board of Registration in Nursing (1985) 395 Mass 263, 479 NE2d 665 Article 12 of Declaration of Rights entitling defendant to "judgment of their peers or [by] the law of the land" is indirectly drawn from Magna Charta, Chapter 39, but does not incorporate precise rights and privileges imposed upon King John by nobles at <<=148>> Runnymede. Commonwealth v Acen (1986) 396 Mass 472, 487 NE2d 189. Concepts of due process of law expressed in Article 12 of Declaration of Rights are applicable to prison disciplinary proceedings. <<=149>> Murphy v Superintendent, Massachusetts Correctional Institution (1986) 396 Mass 830, 489 NE2d 661. Use of "retrospective budgeting" by Department of Public Welfare to deny assistance for 2 months to AFDC recipient whose supported work program ended did not deny equal protection of the law, since it was reasonably related to state's objective to preserve financial integrity of public welfare system. <<=150>> Campbell v Commissioner of Public Welfare (1986) 397 Mass 394, 491 NE2d 590. Sanctions against police officer for refusing to submit to polygraph examinations do not violate due process. <<=151>> Patch v Mayor of Revere (1986) 397 Mass 454, 492 NE2d 77. Phrase "law of the land" does not refer to statutory law of Commonwealth but to language found in Magna Carta and to concept of due process of law. <<=152>> Commonwealth v Lyons (1986) 397 Mass 644, 492 NE2d 1142. Conviction of defendants for violating zoning ordinance restricting use of house to one-family, by renting it to 8 unrelated tenants, did not deny due process. <<=153>> Commonwealth v Jaffe (1986) 398 Mass 50, 494 NE2d 1342. Prosecution's failure to disclose to defense statements by rape victim 2 weeks prior to trial inconsistent with her previous statements was not prejudicial and did not require new trial. <<=154>> Commonwealth v Vieira (1988) 401 Mass 828, 519 NE2d 1320, companion case <<=155>> 401 Mass 843, 519 NE2d 1328. Proposed legislation which would give majority of savings banks power (1) to cause formation of new company to assume control of savings bank insurance and (2) to allocate stock of new company among all banks including those electing not to participate in formation of new company would not violate due process of law. <<=156>> Opinion of Justices to House of Representatives (1987) 401 Mass 1211, 515 NE2d 1169. Proposed legislation which would provide for payment to savings bank insurance policyholders of aggregate surplus of insurance departments of participating banks as of date of conversion to new insurance company to be formed, but which would allow new company to retain payment and to defer payments in the form of annual dividends, would not deprive policyholders of due process of law. <<=157>> Opinion of Justices to House of Representatives (1987) 401 Mass 1211, 515 NE2d 1169. Proposed legislation providing for significant restructuring of savings bank life insurance system and calling for assumption by new company to be created by special charter of assets, rights, interests, obligations, and liabilities of present insurance departments of savings banks would not deprive banks and policyholders of property without due process of law and would not impair contract rights unconstitutionally of policyholders. <<=158>> Opinion of Justices to House of Representatives (1987) 401 Mass 1211, 515 NE2d 1169. There is no constitutional weakness in GL Ch 94C @ 32A(a) and @ 32A(c) because prosecutor can elect under which subsection to proceed. <<=159>> Cedeno v Commonwealth (1989) 404 Mass 190, 534 NE2d 293. Offense set forth in ALM GL Ch 94C @ 32A(a) is within final jurisdiction of <<=160>> District Court. Cedeno v Commonwealth (1989) 404 Mass 190, 534 NE2d 293. Penalty provisions for possession of cocaine with intent to distribute is somewhat inconsistent, in that ALM GL Ch 94C @ 32A(c) requires one year mandatory sentence upon conviction while @ 32A(a) contains no minimum mandatory term, but two provisions are not void for unconstitutional vagueness. <<=161>> Cedeno v Commonwealth (1989) 404 Mass 190, 534 NE2d 293. Arrested person does not have due process right to counsel prior to deciding whether to take breathalyzer test. <<=162>> Commonwealth v Brazelton (1989) 404 Mass 783, 537 NE2d 142. Trial judge's requiring defendant to exercise peremptory challenges individually as each juror was found indifferent, instead of after full jury had been selected, was permissible under Rule 6 of Superior Court Rules (which does not apply to first-degree murder trials), and did not deprive defendant of equal protection of law, due process of law, or right to trial by impartial jury. <<=163>> Commonwealth v Freiberg (1989) 405 Mass 282, 540 NE2d 1289. ALM GL c 231 @ 85K, limiting liability of charitable institution to $ 20,000, does not violate constitutional rights of equal protection of law or substantive due process of law. <<=164>> English v New England Medical Center, Inc. (1989) 405 Mass 423, 541 NE2d 329. Defendant was not denied due process because his counsel was not allowed to argue to jury last, as he requested. <<=165>> Commonwealth v Seminara (1985) 20 Mass App 789, 483 NE2d 92. Defendant who never provided any evidence of racial or ethnic composition of venire from which his jurors were chosen could not complain that he was deprived of "judgment of his peers" because no jurors were black nor of Cape Verdean descent as he was. <<=166>> Commonwealth v Lopes (1985) 21 Mass App 11, 483 NE2d 479. Municipal Court judge did not err in denying defendants' motion to transfer 2 small claims actions to regular civil docket, since defendant had discovery available under Rule 5 of Uniform Small Claims Rules, which judge ordered be completed. <<=167>> Lyons v Kinney System, Inc. (1989) 27 Mass App 386, 538 NE2d 316. 3. Statement of crime or offense Creation of crime.--In view of this article, crime can be created only by specification to a reasonable degree of definiteness of conduct forbidden or enjoined, and a guide or rule in the description of conduct must be established capable of being understood by the ordinary member of society. <<=168>> Commonwealth v Reilly, 248 Mass 1, 142 NE 915. A statute creating a crime must be sufficiently definite in specifying the conduct that is commanded or inhibited so that a man of ordinary intelligence may be able to ascertain whether any act or omission of his will come within the sweep of the statute. It should furnish a definite standard as a guide to determine what it denounces and condemns. If the standard of guilt prescribed by a statute is so variable, vague or uncertain that it is useless as a measure of criminal liability, then the statute must be struck down. <<=169>> Commonwealth v Slome, 321 Mass 713, 75 NE2d 517. Ordinance making criminal an intentional and unreasonable failure by one on a street to move on as soon as seven minutes have elapsed after a direction to that end given by a police officer, but which fails to prescribe any reasonable standard to enable one chargeable with its violation to discover those violations which convert conduct prima facie lawful into that which is criminal, held void in <<=170>> Commonwealth v Carpenter, 325 Mass 519, 91 NE2d 666. Charging offense.--The scope and effect of this article, as to the matter of criminal pleading, is that an offense must be set out with such particularity of allegation as may be of service in enabling the accused to understand the charge and to prepare his defense. <<=171>> Commonwealth v Pentz, 247 Mass 500, 143 NE 322; <<=172>> Commonwealth v Robertson, 162 Mass 90, 38 NE 25. Necessity for grand jury indictment.--A statute, which gives a single magistrate authority to try an offence punishable by imprisonment in the state prison, without presentment by a grand jury, violates this article of the declaration of rights. Jones v Robbins, 74 Mass (8 Gray) 329. Transportation of intoxicating liquor.--A complaint charging the offense of transportation of intoxicating liquor by motor vehicle sets forth the offense fully and plainly, substantially and formally, so that the defendant could understand the charge and prepare his defense, and is not unconstitutional under the provisions of this section. <<=174>> Commonwealth v Dzewiacin, 252 Mass 126, 147 NE 582. The form provided by c 277, @ 79 does not violate the provisions of the state constitution. <<=175>> Commonwealth v Galvin, 323 Mass 205, 80 NE2d 825. Use of fictitious name in indictment.--A statute which provides that if the name of an accused is unknown to the grand jury, he may be described by a fictitious name or any other practical description provided it is alleged that his real name is unknown is not violative of this section. <<=176>> Commonwealth v Gedzium, 259 Mass 453, 156 NE 890. Indictment for murder held sufficient.--See <<=177>> Commonwealth v Noxon, 319 Mass 495, 66 NE2d 814. Setting out former conviction.--By setting out a prior conviction at length in a complaint, such offence is "fully and plainly, substantially and formally, described," by this article of the declaration of rights. <<=178>> Commonwealth v Fortier, 258 Mass 98, 155 NE 8. Allegation that accused was an habitual criminal.--An indictment that in terms set forth that the accused was an habitual criminal, or that he was indicted under the statute conformed to the rule as held in Commonwealth v Harrington, 130 Mass 35, and Tuttle v Commonwealth, 68 Mass (2 Gray) 505, and it was not necessary to go further and allege the conclusion of law that he was an habitual criminal, and is not in contravention of this article of the declaration of rights. <<=181>> Sturtevant v Commonwealth, 158 Mass 598, 33 NE 648, citing Commonwealth v Sanborn, 80 Mass (14 Gray) 393. Division of murder into degrees.--The settled law of this commonwealth must be taken to be that the provision of the statute (c 265, @ 1) which enacts that the division of the crime of murder into two degrees should not be construed to require any modification of the existing forms of indictments, is not inconsistent with this article of the declaration of rights. Green v Commonwealth, 94 Mass (12 Allen) 155. Effect on general court.--This article providing no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially, and formally described to him, etc., binds not only the grand jury and all others in drafting indictments, but is also a mandate confining as well the General Court in framing laws which may become the source of indictments. <<=184>> Commonwealth v Pentz, 247 Mass 500, 143 NE 322. Complaint for keeping shop open on Lord's Day.--A complaint for keeping open a shop on the Lord's Day was examined and found not to violate the instant article requiring crimes to be set forth fully and plainly, substantially and formally. See <<=185>> Commonwealth v. Chernock, 336 Mass 384, 145 NE2d 920. Waiver of presentment by grand jury.--The provisions of this article, which have been held to mean that a presentment by the grand jury is required where a person is accused of a felony, like the provisions for a jury trial, were intended to secure a benefit to the individual for his protection and security, and the privilege therein asserted may be waived. <<=186>> DeGolyer v Commonwealth, 314 Mass 626, 51 NE2d 251. Disbarment proceedings are not criminal.--Proceeding taken for the disbarment of an attorney can not in any just and proper sense be deemed a criminal procedure, in which a party has a right to a full, formal, and substantial description of the offense charged; and it was not essential to the validity of the order of removal that it should be founded on legal process according to the signification of the words "per legem terrae" as used in Magna Charta, or in this article of the declaration of rights. <<=187>> Randall v Brigham, 7 Wall (74 US) 523, 19 L Ed 285. GL c 272, @ 35 does not violate this <<=188>> Article Jaquith v Commonwealth, 331 Mass 439, 120 NE2d 189. Function of particulars.--The instant article was referred to in <<=189>> Commonwealth v McLaughlin (1967) 352 Mass 218, 224 NE2d 444, cert den <<=190>> 389 US 916, 19 L Ed 2d 268, 88 S Ct 250, in connection with the proposition that the purpose of a bill of particulars is to describe more in detail that which is alleged in the indictment so that the defendant may be fully informed of the charge and be enabled to prepare his defenses. Further as to particulars, see case notes to c. 277, @ 40. Statute authorizing arrest and prosecution of suspicious person is unconstitutional.--C 41, @ 98, in so far as it authorizes the arrest and prosecution of persons suspected of unlawful design who are abroad in the night time and who do not give a satisfactory account of themselves, is unconstitutional for vagueness as in violation of the instant article and the Federal Constitution because the conduct which is made criminal may be wholly innocent, and because the provision as to the giving of a satisfactory account supplies no guide as to what is a "satisfactory" account and leaves too much to the discretion of the police and the courts. <<=191>> Alegata v Commonwealth (1967) 353 Mass 287, 231 NE2d 201. Statute making it an offence to be an idle person is unconstitutional.--C 272, @ 66, in so far as it makes it an offence to be an idle person who, not having visible means of support lives without lawful employment, is unconstitutional as in violation of the instant article and the Federal Constitution because the conduct made criminal may not fairly be classified as such, because it seeks to punish a status rather than the commission of an act, and because the provision in question is void for vagueness. <<=192>> Alegata v Commonwealth (1967) 353 Mass 287, 231 NE2d 201. Statute making it an offence to rove about living without visible means of support is unconstitutional.--C. 272, @ 63 insofar as it makes it an offence to rove about from place to place living without visible means of support does not differ materially from that portion of c. 272, @ 66 defining vagrancy in similar terms, and it is unconstitutional as in violation of the instant article and of the Federal Constitution for the same reasons which were held to render the comparable portion of @ 66 unconstitutional. <<=193>> Alegata v Commonwealth (1967) 353 Mass 287, 231 NE2d 201. Proposed legislation prohibiting use of monitoring devices for purposes of conducting studies of employees in certain establishments, violation of which legislation would lead to criminal penalties, found to be unconstitutionally vague.--<<=194>> Opinion of Justices (1970) 358 Mass 827, 260 NE2d 740. Ordinance found sufficiently definite.--While a municipal ordinance which is penal in character, as in the case of a penal statute, must be sufficiently definite so that persons of ordinary intelligence will be able to ascertain the act or omission which is commanded or prohibited, an ordinance prohibiting the keeping of "junk automobiles" under specified circumstances was not repugnant to the instant article for indefiniteness in the use of the term "junk automobile" not only because that term conveys a well-recognized meaning and is in itself not vague but also because the ordinance in question contained a further and reasonable definition of the term. <<=195>> Commonwealth v Brask (1968) 354 Mass 416, 237 NE2d 686. Substitution of defendant's name for fictitious name.--A procedure whereby a Massachusetts grand jury indicted four named defendants and "John Doe, the true name and a more particular description of the said John Doe being to the said jurors unknown" in connection with a homicide, and the defendant was then arraigned on the indictment after the commonwealth court having determined that the true name of John Doe was that of the defendant, ordered, over the defendant's objection, that the defendant's name be entered on the record, was a denial of the defendant's equal protection right, in view of the commonwealth's otherwise universal commitment to grand jury indictment in felony cases. <<=196>> Connor v Picard (1970, CA1 Mass) 434 F2d 673, revd on other grounds <<=197>> 404 US 270, 30 L Ed 2d 438, 92 S Ct 509. There was no lack of specificity in statutory form of indictment charging president of fireworks manufacturing company with manslaughter for deaths of three employees following explosion, as result of his reckless disregard for employees' safety, as supported by particulars. <<=198>> Commonwealth v Godin (1977, Mass) 1977 Adv Sheets 2790, 371 NE2d 438, cert den <<=199>> 436 US 917, 56 L Ed 2d 758, 98 S Ct 2263. A criminal complaint is sufficient if it fully and plainly, substantially and formally, describes the crime or offense for which the defendant is held to answer. <<=200>> Commonwealth v Munoz (1980, Mass App) 1980 Adv Sheets 2175, 413 NE2d 773. Indictment which did not state that defendant had been convicted of 2 prior offenses of possession of heroin with intent to distribute or was person accused in prior cases was sufficient, because indictment did inform defendant that he was being charged with being repeat offender and set forth specific prior charges and dates of convictions and courts where they occurred. <<=201>> Commonwealth v Gonzales (1986) 22 Mass App 274, 493 NE2d 516, review den <<=202>> 398 Mass 1102. Reference in indictment to @ 10C of c 269 rather than to @ 10(c) was not prejudicial, where body of indictment listed date and location of crime and correctly stated nature of crime with which defendant was charged. <<=203>> Commonwealth v Jiminez (1986) 22 Mass App 286, 493 NE2d 501, review den <<=204>> 398 Mass 1102. Test of sufficiency of indictment is whether it fully and plainly, substantially and formally, describes crime for which defendant is held to answer. <<=205>> Commonwealth v Donoghue (1986) 23 Mass App 103, 499 NE2d 832, review den <<=206>> 399 Mass 1101, 503 NE2d 665. Judge's allowance of defendant's motion to dismiss complaint on ground that it failed to allege lack of consent of victim vacated, because complaint gave defendant sufficient notice of charge. <<=207>> Commonwealth v Green (1987) 399 Mass 565, 505 NE2d 886. Complaint or indictment must charge offense with sufficient clarity to show violation of law and permit defendant to know nature of accusation against him, but every element of crime need not be set forth. <<=208>> Commonwealth v Green (1987) 399 Mass 565, 505 NE2d 886. 4. Self-incrimination Only applicable to criminal cases.--The constitutional provision, that a subject shall not be compelled to furnish evidence against himself, has reference to criminal cases only. Keith v Voombell, 25 Mass (8 Pick) 211. Federal crimes.--The instant Article does not protect against self-incrimination with respect to Federal crimes. <<=210>> Cabot v Corcoran, 332 Mass 44, 123 NE2d 221 [See this case also far a short outline of the legal situation in Massachusetts at the time of the adoption of this article. Ed.] Applies to investigations by the legislature.--The provision of the declaration of rights, that no subject shall be compelled to accuse or furnish evidence against himself, exempts the subject from disclosing the circumstances of his offence as well as making confession of guilt; applies to investigations ordered and conducted by the legislature, or either of its branches; is regulated therein by the same rules as in judicial or other inquiries; and is not dispensed with by any statute which fails to secure the subject from future liability, and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the constitutional privilege. <<=211>> Emery's Case, 107 Mass 172. How witness may be compelled to answer.--A witness is bound to answer a question in a matter pertinent to the issue, where his answer will not expose him to criminal prosecution, or tend to subject him to a penalty or forfeiture, although it may otherwise adversely affect his pecuniary interest. Bull v Loveland, 27 Mass (10 Pick) 9. This provision does not deprive the General Court of power to compel the giving of testimony which might incriminate the witness provided immunity be accorded to him commensurate with the constitutional protection. <<=213>> Ross v Crane, 291 Mass 28, 195 NE 884. Communist Party membership.--A defendant, in a criminal case involving violation of a regulation as to display of signs, who voluntarily took the stand was asked by the judge whether he was a Communist or a member of the Communist Party, refused to answer on the ground that an answer might tend to incriminate him, was adjudged in contempt and committed to jail. Held, that the question was not relevant to any matter in issue or competent for purposes of impeachment, and that the disclosure called for by the judge's question would have violated the privileges conferred by the instant <<=214>> Article. Jones v Commonwealth, 327 Mass 491, 99 NE2d 456. A proposed statute requiring the discharge "forthwith" of any professor, etc., in any college, etc., in the commonwealth who, for any reason, "at a trial or at a duly constituted hearing or inquiry conducted for the purpose of investigating communism, at which testimony is taken under oath," refuses to answer question "pertinent to his past or present membership in the communist party" may not be constitutionally enacted by the <<=215>> General Court. Opinion of Justices, 332 Mass 763, 126 NE2d 100. Assertion of constitutional privilege may not be used against defendant.--Where a person is being interrogated under circumstances which reveal that he is suspected of crime, even if he is not under arrest, a refusal by the person to answer questions in the absence of counsel, or upon the advice of counsel, is neither an admission nor an adoption of the statements made to him, but is the assertion of a constitutional right, which negatives any inference of admission, and such assertions by criminal defendants during police interrogations are not competent testimony against such defendants, and in appropriate cases the admission of such testimony may be sufficiently prejudicial as to require reversal of the verdict. <<=216>> Commonwealth v Burke, 339 Mass 521, 159 NE2d 856. Admission of evidence of claim of privilege not prejudicial where defendant subsequently answered.--Evidence that a criminal defendant, upon being interrogated as to the ownership of a certain pinball machine and as to the division of profits resulting therefrom, refused to answer upon advice of counsel, such refusals constituted a claim of privilege under the instant article, and evidence as to such claims of privilege should not have been admitted at the trial, but the admission of such evidence was not prejudicial where the defendant, later on in the interrogation, made specific admissions as to the ownership of the machine and as to the division of the profits therefrom. <<=217>> Commonwealth v Sazama, 339 Mass 154, 158 NE2d 313. Extent to which failure to testify goes.--One who avails himself of his constitutional privilege, and refuses to accuse or furnish evidence against himself, shall be subject to no injurious consequence under the law by reason of his having done so. The Constitution and laws do not and could not assume to say that no unfavorable private opinion should be formed. The protection afforded by the Constitution is that the individual shall not be prejudiced at law by his silence, if he keeps silent. <<=218>> Commonwealth v Smith, 163 Mass 411, 40 NE 189. Adverse presumptions in civil proceedings.--This article and c 233, @ 20, subd 3, prohibiting the drawing of adverse presumptions from failure to testify, applies only to criminal cases, and is irrelevant to a civil proceeding, such as a proceeding to remove a district attorney on charges of misconduct. <<=219>> Atty. Gen. v Pelletier, 240 Mass 264, 134 NE 407. Calling defendant in criminal proceeding violation of constitutional right.--In a case where the issue before the court was as to whether a contempt proceeding was a proceeding for civil or criminal contempt, in which the court decided that the proceeding was one for civil contempt, it was pointed out that the respondents in the contempt proceeding had been called as witnesses and had testified, and that if the proceeding were one for criminal contempt, the calling of the respondents as witnesses would have constituted a violation of their constitutional rights under the instant <<=220>> Article. Alves v Braintree, 341 Mass 6, 166 NE2d 720. Evidence illegally obtained.--Introduction in evidence of intoxicating liquor claimed to have been illegally and unreasonably seized while in the hands of defendant held not to compel defendant to furnish evidence against himself, contrary to this article. <<=221>> Commonwealth v Donnelly, 246 Mass 507, 141 NE 500. Protection is positive and unequivocal.--The protection of this article is that "No subject shall be . . . compelled to accuse, or furnish evidence against himself." That shield is positive and unequivocal. It is subject to no condition. It rests wholly upon the volition of the defendant whether he shall fail to interpose it, or not. <<=222>> Re Opinion of Justices, 300 Mass 620, 15 NE2d 662, deciding that a proposed bill, whereby the neglect or refusal of a defendant to testify could be made the subject of comment, was in violation of this article. Statutes imposing penalty upon driver leaving after accident without making known his name and the number of his motor vehicle have been held not to require self-incrimination. <<=223>> Commonwealth v Prince, 313 Mass 223, 46 NE2d 755. Persons furnishing minor with magazines for sale in public places in violation of law can refuse to give supervisor of attendance minor's name.--The constitutional guarantee against self-incrimination is applicable to such case. <<=224>> Commonwealth v Prince, 313 Mass 223, 46 NE2d 755. Basis for finding of tendency to incriminate witness.--Where a witness refuses to answer a question upon the ground of self-incrimination, in considering whether there is reasonable ground to apprehend danger to the witness from being compelled to answer, the court should not base its determination solely upon the say-so of the witness, for the law does not permit the witness to be the sole judge of the incriminating character of the question, nor, on the other hand, should the court require the witness to prove the danger that the privilege was designed to protect because in so doing he will be forced to disclose the very facts which he is seeking to protect by means of the privilege, but the court should chart a niddle course between these two extremes and require, where this is not apparenta showing that the answer is likely to be dangerous to the witness. <<=225>> Sandrelli v Commonwealth, 342 Mass 129, 172 NE2d 449, 88 ALR2d 450. Refusal to answer justified when reasonable ground to apprehend danger.--In Massachusetts, a refusal to answer questions on the ground of self-incrimination will be sustained where the court can see from the circumstances of the case and the nature of the evidence which the witness is called to give that there is a reasonable ground to apprehend danger to the witness from his being compelled to answer, but it is not the rule in Massachusetts, as it is in some other jurisdictions, that the refusal to answer will be upheld unless it is perfectly clear to the court from a consideration of all the circumstances in the case that the answer cannot possibly have a tendency to incriminate the witness. <<=226>> Sandrelli v Commonwealth, 342 Mass 129, 172 NE2d 449, 88 ALR2d 450. Contempt of Court.--For a case where defendant refused to answer questions by a special commission created by the General Court, relying upon this Article, among others, and upon further refusal to obey an order of the Superior Court to answer questions was adjudged in contempt of court, and thereupon petitioned for writ of error seeking to quash the jail sentences for contempt--wherein the three convictions for contempt were quashed by the Court, see <<=227>> Corcoran v Commonwealth, 335 Mass 29, 138 NE2d 348. Federal standards applicable in determining whether claim of privilege justified.--Since the decision in <<=228>> Malloy v Hogan, 378 US 1, 12 L Ed 2d 653, 84 S Ct 1489, holding that the Fourteenth Amendment guaranties to a witness testifying in a State Court the protection of the Fifth Amendment and that Federal standards will apply in determining whether a claim of privilege is justified, a claim of privilege must be sustained, under the Federal standard, unless it is perfectly clear from a careful consideration of all the circumstances in the case that the witness is mistaken and that the answers cannot possibly have a tendency to incriminate, and to the extent that <<=229>> Sandrelli v Commonwealth, 342 Mass 129, 172 NE2d 449, 88 ALR2d 450, lays down a different standard it must give way. Even under the Federal standards, however, not every question put to a witness necessarily offends against the privilege, each question should be judged in its own setting, and it is improper for the trial judge to make a blanket ruling that no further questions would be permitted. <<=230>> Commonwealth v Baker, 348 Mass 60, 201 NE2d 829. Rights under Federal Constitution.--Since the decision by the Supreme Court of the United States in <<=231>> Escobedo v Illinois, 378 US 478, 12 L Ed 2d 977, 84 S Ct 1758, where an inquiry into an unsolved crime has begun to focus on a particular suspect, the suspect has been taken into police custody, the police have interrogated the suspect to elicit incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned the suspect of his constitutional right to remain silent, the rights of the suspect under the Federal Constitution have been violated, and statements elicited by the police during the interrogation may not be used against the suspect at a criminal trial even in a <<=232>> State court. Commonwealth v Guerro (Mass) 207 NE2d 887. Federal constitutional rights not violated where counsel had advised defendant of right to silence and police warned him that what he said could be used against him.--Commonwealth v Kleciak, 1966 Adv sheets 751, <<=233>> 216 NE2d 417. Spontaneous incriminating statements at time of arrest.--Where, at the time of his arrest, defendant was informed that he was wanted for a "shooting in Massachusetts" to which the defendant made an immediate response in which he admitted the shooting, the use of defendant's admission at the trial of a prosecution against him did not violate any Federal constitutional rights of the defendant, there being no requirement that such a spontaneous admission must be preceded by a warning to the defendant of his right to remain silent and to procure counsel. <<=234>> Commonwealth v Ladetto (Mass) 207 NE2d 536. Statements made to police by defendant after he had been warned of right to remain silent and to have counsel not inadmissible where defendant voluntarily agreed to talk and where he did not wish to consult counsel.--See Commonwealth v Cook, 1966 Adv sheets 1103, <<=235>> 218 NE2d 393. Statements made by the defendant in conversation with police guard not inadmissible.--Statements made by the defendant while in his cell, during a conversation with a police guard stationed outside his cell, not inadmissible where defendant had previously consulted counsel and had been advised not to talk, even though guard had not warned him of privilege against self-incrimination. Commonwealth v Sousa, 1966 Adv sheets 639, <<=236>> 215 NE2d 910. Examination of income tax returns.--A proposed statute to provide for the disclosure of information contained in tax returns in a criminal investigation or criminal prosecution by the attorney general or any district attorney upon proper judicial order would not be unconstitutional as in violation of the provision against self-incrimination. <<=237>> Opinion of Justices, 328 Mass 663, 105 NE2d 225. Resolve establishing crime commission not unconstitutional because witness could be compelled to testify as to corrupt practices in government.--A resolve creating a special legislative commission to investigate organized crime and corrupt practices in government, and providing for the summonsing of witnesses was not unconstitutional, as to a witness summoned to give testimony as to corrupt practices in government, on the ground that it created a crime lacking in certainty and definiteness in violation of the instant article, if the witness failed to appear or to testify. <<=238>> Sheridan v Gardner, 347 Mass 8, 196 NE2d 303. Facts required by GL c 90, @ 24 to be divulged by operator of automobile involved in accident are matters of personal identification and identification of the automobile, and, semble, that statute is not void because in conflict with the instant section. <<=239>> Commonwealth v Joyce, 326 Mass 751, 97 NE2d 192. Privilege of self-incrimination in State grand jury proceeding guaranteed by Federal Constitution, and Federal standards determine whether claim of privilege is justified, but the claim of a witness who refused to answer any questions except as to his name was found not justified where questions to witness were not accusatory but sought to ascertain only what he had seen. <<=240>> Gambale v Commonwealth (1969) 355 Mass 394, 245 NE2d 246, cert den <<=241>> 396 US 881, 24 L Ed 2d 140, 90 S Ct 158. Federal Escobedo and Miranda principles not applied retroactively.--It has been held by the Supreme Court of the United States that Federal principles relative to the interrogation of persons suspected of crime, enunciated in <<=242>> Escobedo v Illinois (1964) 378 US 478, 12 L Ed 2d 977, 84 S Ct 1758, 4 Ohio Misc 197, 32 Ohio Ops 2d 31, decided on <<=243>> June 22, 1964, and Miranda v Arizona (1966) 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 Ohio Misc 9, 36 Ohio Ops 2d 237, decided on <<=244>> June 13, 1966, reh den 385 US 890, 17 L Ed 2d 121, 87 S Ct 11, need not be applied by State courts in trials begun prior to the dates of those decisions, respectively. See <<=245>> Commonwealth v McCambridge (1967) 351 Mass 516, 222 NE2d 763, referring to <<=246>> Johnson v New Jersey, 384 US 719, 16 L Ed 2d 882, 86 S Ct 1772, 8 Ohio Misc 324, 36 Ohio Ops 2d 439, reh den <<=247>> 384 US 890, 17 L Ed 2d 121, 87 S Ct 12. As a result of the Johnson Decision, the Supreme Judicial Court has refused to apply principles enunciated in the Miranda Case to several Massachusetts cases in which trial was begun prior to the date of the Miranda Case. See <<=248>> Commonwealth v Morrissey (1967) 351 Mass 505, 222 NE2d 755; <<=249>> Commonwealth v McCambridge (1967) 351 Mass 516, 222 NE2d 763; <<=250>> Commonwealth v Rogers (1967) 351 Mass 522, 222 NE2d 766, cert den <<=251>> 389 US 991, 19 L Ed 2d 483, 88 S Ct 484; <<=252>> Commonwealth v McGrath (1967) 351 Mass 534, 222 NE2d 774. Interrogation found not to be in violation of constitutional rights.--For a case where the court examined the evidence concerning the interrogation of two defendants after their arrest, which interrogation took place before the decision in <<=253>> Escobedo v Illinois (1964) 378 US 478, 12 L Ed 2d 977, 84 S Ct 1758, 4 Ohio Misc 197, 32 Ohio Ops 2d 31, and where the court determined that the defendants were sufficiently warned of their rights, that they were sufficiently afforded access to counsel, and that their constitutional rights had not been violated, see <<=254>> Commonwealth v Le Page (1967) 352 Mass 403, 226 NE2d 200. Interrogation prior to Miranda decision determined not to have been in violation of defendant's constitutional rights, upon evidence that defendant was informed of right to remain silent and to have services of attorney.--See <<=255>> Commonwealth v Femino (1967) 352 Mass 508, 226 NE2d 248. Interrogation of party in civil case knowing that privilege will be claimed.--Under c 233, @@ 20 and 22, a plaintiff in a civil case may call the defendant as a witness and cross-examine him on subjects as to which the plaintiff knows that the defendant will claim his privilege of self-incrimination, after which, if the defendant claims the privilege, plaintiff's counsel may comment on the fact that the defendant exercised his privilege, and such a procedure does not violate defendant's Federal or State constitutional rights even if the civil case might conceivably involve a criminal offense. <<=256>> Kaye v Newhall (1969) 356 Mass 300, 249 NE2d 583, later app <<=257>> 360 Mass 701, 277 NE2d 697. Federal Constitution Fourteenth Amendment guarantees to witness in State court the protection of the Federal Fifth Amendment and Federal standards determine whether claim of privilege is justified.--<<=258>> Murphy v Commonwealth (1968) 354 Mass 81, 235 NE2d 552. Confession inadmissible under Federal Miranda rule where defendant not told that if he were indigent the court would appoint a lawyer for him prior to the interrogation.--See <<=259>> Commonwealth v White (1967) 353 Mass 409, 232 NE2d 335, cert den <<=260>> 391 US 968, 20 L Ed 2d 881, 88 S Ct 2039. Federal Miranda rule requirements not applicable to confession made to laymen friends of defendant where friends were not acting as agents of police.--See <<=261>> Commonwealth v White (1967) 353 Mass 409, 232 NE2d 335, cert den <<=262>> 391 US 968, 20 L Ed 2d 881, 88 S Ct 2039. Testimony as to out-of-court admission obtained from defendant without compliance with Miranda rules found not to be prejudicial where defendant took stand and testified to same effect as out-of-court admission.--See <<=263>> Commonwealth v Marsh (1968) 354 Mass 713, 242 NE2d 545. Application of presumption from possession of stolen goods.--A jury charge in a criminal case to the effect that possession by the defendant of stolen property, in the absence of an explanation by the defendant, gives rise to a presumption that defendant stole the property is not invalid as violating the right of the defendant not to testify nor as being an improper comment on his failure to testify, in violation of Massachusetts Constitution, Part I art 12 or of c 233, @ 20, Third, in view of the fact that the presumption referred to may be overcome by evidence other than the testimony of the defendant. <<=264>> Commonwealth v Wilbur (1967) 353 Mass 376, 231 NE2d 919, cert den <<=265>> 390 US 1010, 20 L Ed 2d 161, 88 S Ct 1260. Use of prior inconsistent statement to impeach credibility.--Although an accused's prior inconsistent statements, which he did not claim were coerced or involuntary, had been made to the police under circumstances rendering them inadmissible to establish the state's case in chief under the Miranda rule, they could properly be used to impeach his credibility, since the protection provided by the Miranda rule may not be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent statements. <<=266>> Harris v New York (1971) 401 US 222, 28 L Ed 2d 1, 91 S Ct 643. Rights under <<=267>> Federal Constitution.--Commonwealth v Guerro (1965) 349 Mass 277, 207 NE2d 887. Spontaneous incriminating statements at time of arrest.--<<=268>> Commonwealth v Ladetto (1965) 349 Mass 237, 207 NE2d 536 (ovrld on other grounds <<=269>> Commonwealth v Stewart 365 Mass 99, 309 NE2d 470) as stated in <<=270>> Commonwealth v De Christoforo (Mass) 1976 Adv Sheets 2188, 353 NE2d 769. Cross-examination of defendant eliciting fact that he failed to volunteer information concerning explanation for shooting to police and custodial officers at time of arrest was improper, in that it penalized defendant for exercising constitutional rights and contravened policy declared in G.L. c. 233 @ 20, Third and G.L. c. 278 @ 23. <<=271>> Commonwealth v Bennett (1974) 2 Mass App 575, 317 NE2d 834. Judge's curative instructions removed any prejudice arising from prosecutor's improper argument that victim's testimony had not been denied by defendant, since remark could be construed as comment upon defendant's failure to testify, in violation of Fifth Amendment to U.S. Constitution, art. 12 of Declaration of Rights, and G.L. c. 233 @ 20, <<=272>> Third. Commonwealth v Balthazar (1974) 366 Mass 298, 318 NE2d 478. The privilege against self-incrimination is not violated by the Department of Education's inquiring on a certification application whether the applicant's certificate has ever been revoked or suspended, whether applicant has ever been dismissed, and whether applicant has ever been arrested or convicted. 1971-1972 Op AG, No. 2. Harmless error doctrine may be applied if comment is made upon defendant's failure to testify.--Violation of statute (GL c. 233 @ 20 Third; c. 278 @ 23) and constitutional provision (Declaration of Rights, Art. 12) prohibiting comment on presumption regarding defendant's failure to testify can be held harmless if court is able to conclude that it was harmless beyond reasonable doubt. <<=273>> Commonwealth v Paradiso (1975) 368 Mass 205, 330 NE2d 825. Court-ordered psychiatric examination of criminal defendant involving testimonial information falls within privilege against self-incrimination, but defendant who interposes insanity defense and voluntarily proffers psychiatric evidence based on his testimonial statements waives the privilege and subjects himself to compelled examination under GL c 123 @ 15 in accordance with protective procedures outlined by court. <<=274>> Blaisdell v Commonwealth (1977, Mass) 1977 Adv Sheets 1307, 364 NE2d 191. Prosecution may not ask jury to draw adverse inference from defendant's failure to deny his guilt voluntarily when questioned by police. <<=275>> Commonwealth v Haas (1977, Mass) 1977 Adv Sheets 2212, 369 NE2d 692. Article 12 prohibits any comment by judge which can be fairly understood as permitting jury to draw inference adverse to defendant from fact of his failure to testify. <<=276>> Commonwealth v Goulet (1978, Mass) 1978 Adv Sheets 367, 372 NE2d 1288. Judge's instruction regarding value of psychiatric testimony offered by defense in light of defendant's failure to testify about statements he made to psychiatrist violated privilege against self-incrimination. <<=277>> Commonwealth v Goulet (1978, Mass) 1978 Adv Sheets 367, 372 NE2d 1288. Judge's language in his instructions to jury concerning defendant's failure to testify converted constitutional privilege to a detriment and was prejudicial. <<=278>> Commonwealth v Sneed (1978, Mass) 1978 Adv Sheets 3156, 383 NE2d 843, superseding (Mass App) <<=279>> 1978 Adv Sheets 198, 373 NE2d 1201. GL c 278 @ 23 must be read in conjunction with <<=280>> Article 12 of the Declaration of Rights of the Constitution of the Commonwealth and the Fifth Amendment to the Constitution of the United States. Commonwealth v Palmarin (1979, Mass) 1979 Adv Sheets 1797, 392 NE2d 534, superseding (Mass App) <<=281>> 1979 Adv Sheets 49, 385 NE2d 271. Fifth Amendment prohibits Commonwealth from seeking order requiring defendant to produce gun registered to him and not reported transferred by him. <<=282>> Commonwealth v Hughes (1980, Mass) 1980 Adv Sheets 1161, 404 NE2d 1239, cert den (US) <<=283>> 66 L Ed 2d 129, 101 S Ct 269. It was error for judge to charge jury that, in determining credibility of defendant's testimony jury may consider that defendant did not come forward with his exculpatory story, prior to his arrest, where under circumstances of case it would not have been "natural" for defendant to have come forward with story which was incriminatory of himself. <<=284>> Commonwealth v Nickerson (1982) 386 Mass 54, 434 NE2d 992. Defendant did not have right to have his own witness invoke privilege against self-incrimination in front of jury because his purpose was to have jury draw inference of guilt from witness' assertion of privilege. <<=285>> Commonwealth v Hesketh (1982) 386 Mass 153, 434 NE2d 1238. Privilege against self-incrimination is to be construed liberally in favor of claimant. <<=286>> Commonwealth v Borans (1983) 388 Mass 453, 446 NE2d 703. Massachusetts courts apply federal standards to determine whether claim of privilege against self-incrimination is justified. <<=287>> Commonwealth v Borans (1983) 388 Mass 453, 446 NE2d 703. Witness was not immunized from further prosecution by prior conviction and could properly claim privilge against self-incrimination. <<=288>> Commonwealth v Borans (1983) 388 Mass 453, 446 NE2d 703. Witness's testimony before grand jury and at his own trial was not waiver of privilege against self-incrimination when he was called to testify at another's trial; judgment of contempt reversed. <<=289>> Commonwealth v Borans (1983) 388 Mass 453, 446 NE2d 703. Defendant has no constitutional right to have defense witness immunized. <<=290>> Commonwealth v Curtis (1983) 388 Mass 637, 448 NE2d 345. Fact that defense witness might assert Fifth Amendment right and hinder defendant's ability to present effective defense does not justify creation of doctrine of judicial immunity for defense witnesses. <<=291>> Commonwealth v Curtis (1983) 388 Mass 637, 448 NE2d 345. Article 12 of Declaration of Rights requires broader interpretation than that of <<=292>> Fifth Amendment to United States Constitution. Atty. Gen. v Colleton (1982) 387 Mass 790, 444 NE2d 915. Massachusetts law requires no less than transactional immunity to displace privilege against self-incrimination. <<=293>> Atty. Gen. v Colleton (1982) 387 Mass 790, 444 NE2d 915. GL c 93A @ 6(7) does not provide transactional immunity so as to displace privilege against self-incrimination. <<=294>> Atty. Gen. v Colleton (1982) 387 Mass 790, 444 NE2d 915. Pharmacist who refused to comply with subpoena duces tecum for production before grand jury of 1980 and 1981 records in Medicaid program in which he voluntarily participated was properly held in civil contempt of court because records subpoenaed were records required to be kept by regulatory law and were outside scope of any claim of privilege against self-incrimination. <<=295>> Stornanti v Commonwealth (1983) 389 Mass 518, 451 NE2d 707. Judge did not err in denying defendant's motion to compel extended immunization of defense witness who had been granted immunity as to her actions on day of crime only, where witness claimed self-incrimination privilege as to events one week earlier. <<=296>> Commonwealth v Pennellatore (1984) 392 Mass 382, 467 NE2d 820. Defendant does not have constitutional right to have immunity granted to witness. <<=297>> Commonwealth v Doherty (1985) 394 Mass 341, 476 NE2d 169. Where husband in divorce action refused to testify at deposition concerning financial matters and conduct affected by adulterous relationship on grounds of self-incrimination, judge did not abuse discretion in imposing sanctions, i.e., dismissing husband's complaint for divorce and prohibiting his testimony on various matters. <<=298>> Wansong v Wansong (1985) 395 Mass 154, 478 NE2d 1270. Discovery sanctions may be imposed against litigant in civil case who invokes protection against self-incrimination, if judge balances prejudice to party claiming privilege against prejudice to other litigants. <<=299>> Wansong v Wansong (1985) 395 Mass 154, 478 NE2d 1270. Judge had power to order defendant to provide results of nontestimonial scientific tests to <<=300>> Commonwealth. Commonwealth v Trapp (1985) 396 Mass 202, 485 NE2d 162. Judge properly ordered defendant to turnover to Commonwealth reports of defendant's experts based on defendant's statement, after it became clear that defendant's experts would testify extensively on this basis. <<=301>> Commonwealth v Trapp (1985) 396 Mass 202, 485 NE2d 162. Judge did not err in drawing negative inference from natural parents' failure to testify at care and protection proceeding. <<=302>> Custody of Two Minors (1986) 396 Mass 610, 487 NE2d 1358. Privilege against self-incrimination applicable in criminal proceedings, which prevents drawing of inference from defendant's failure to testify, is not applicable in child custody case. <<=303>> Custody of Two Minors (1986) 396 Mass 610, 487 NE2d 1358. Although it was possible that defendant-police officer might face adverse consequences if he failed to answer superior's question and file report regarding incident of his alleged misconduct, he voluntarily chose to co-operate and was not "compelled" to incriminate himself. <<=304>> Commonwealth v Harvey (1986) 397 Mass 351, 491 NE2d 607. Judge's instruction to jury on defendant's decision not to testify in language of GL c 233 @ 20 using terms "failure," "neglect," and "refusal" to testify was not reversible error, although better course would have been to accede to defendant's request not to use such terms. <<=305>> Commonwealth v Thomas (1987) 400 Mass 676, 511 NE2d 1095. Decision of Civil Service Commission upholding board of police commissioners' decision to suspend police officer on 2 occasions and then to discharge him for refusing to answer questions during internal police investigation reverse, because officer was not told he would not be prosecuted if he answered questions and because he was not told he would be discharged if he did not. <<=306>> Carney v Springfield (1988) 403 Mass 604, 532 NE2d 631. Supreme Judicial Court interprets Article 12 of Declaration of Rights regarding self-incrimination more broadly than federal counterpart. <<=307>> Carney v Springfield (1988) 403 Mass 604, 532 NE2d 631. In Massachusetts transactional immunity is required to supplant privilege against self-incrimination. <<=308>> Carney v Springfield (1988) 403 Mass 604, 532 NE2d 631. "Transactional immunity" grants immunity from prosecution for offenses to which compelled testimony relates, while "use immunity" is immunity from use of compelled testimony and evidence derived therefrom. <<=309>> Carney v Springfield (1988) 403 Mass 604, 532 NE2d 631. Judge erred in ruling that Massachusetts Declaration of Rights requires only use immunity to compel public employees to testify. <<=310>> Springfield v Civil Service Com. (1988) 403 Mass 612, 532 NE2d 636. Massachusetts Declaration of Rights requires that transactional immunity be granted before compelling public employee to answer potentially incriminating questions. <<=311>> Doe v Springfield (1988) 403 Mass 1010, 532 NE2d 639. Where transactional immunity was not granted before police officer was compelled to answer questions during internal investigation, judge erred as matter of law in ruling that city did not violate officer's rights when police department interrogated him. <<=312>> Doe v Springfield (1988) 403 Mass 1010, 532 NE2d 639. Custodian of corporate records may invoke Article 12 right against self-incrimination in response to subpoena for corporate records, when act of production itself would be self-incriminating. <<=313>> Commonwealth v John Doe (1989) 405 Mass 676, 544 NE2d 860. Article 12 of Declaration of Rights applies only to evidence of testimonial or communicative nature. <<=314>> Commonwealth v John Doe (1989) 405 Mass 676, 544 NE2d 860. Act of production of corporate records would be testimonial and therefore within ambit of <<=315>> Article 12 of Declaration of Rights. Commonwealth v John Doe (1989) 405 Mass 676, 544 NE2d 860. Court could not determine from facts and record whether witness knowingly relinquished his personal right against self-incrimination simply by becoming custodian of corporation's records. <<=316>> Commonwealth v John Doe (1989) 405 Mass 676, 544 NE2d 860. There was no merit in defendant's argument that privilege against self-incrimination was violated by prosecutor's oblique reference to defendant's pretrial silence while directing jury's attention to strength of evidence on either side. <<=317>> Commonwealth v Sherick (1987) 23 Mass App 338, 502 NE2d 156. Racetrack pari-mutuel manager properly invoked privilege against self-incrimination at grand jury proceedings with respect to possible illegal practices and activities at racetrack; adjudication of contempt reversed. Re Proceedings before <<=318>> Special Grand Jury (1989) 27 Mass App 693, 542 NE2d 316. 5. Right to be confronted by witnesses Purpose of article.--The purpose of this article was to put beyond the possibility of alteration except by the people themselves the principle already established as a part of the common law that the witness should confront the accused face to face. That principle, although imbedded in the fundamental law as a constitutional guaranty, carried with it the well-recognized exceptions which were a part of it and essential to its vitality. It was not designed to affect the settled rules of the common law for determining the competency of evidence under the principle of confrontation of the accused by the witnesses. The general rules of the common law, founded as they are upon "justice, fitness and expediency," are designed to meet and be susceptible of being adapted "to new institutions and conditions of society . . . new usages and practices, as the progress of society in the advancement of civilization may require." <<=319>> Commonwealth v Gallo, 275 Mass 320, 175 NE 718, 79 ALR 1380. This article was designed to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination; and the purpose of this constitutional provision was to put beyond the possibility of abolition by legislative action the principle already established as a part of the common law that witnesses should confront the accused. <<=320>> Commonwealth v Millen, 289 Mass 441, 194 NE 463. Right of confrontation assured to defendant in criminal case.--The right of confrontation is assured to the defendant in a criminal case by art 12 of the Declaration of Rights and by c 263, @ 5. <<=321>> Commonwealth v Kerrigan (Mass) 207 NE2d 882. View by jury.--While information obtained by jury on a view is evidence in one sense, it is not evidence in such a sense that defendant is entitled to be present under this article, entitling him to meet the witnesses face to face. <<=322>> Commonwealth v Dascalakis, 246 Mass 12, 140 NE 470. It is now settled that a view is not such a taking of evidence as violates the constitutional right of the defendant "to meet the witnesses against him face to face." <<=323>> Commonwealth v Snyder, 282 Mass 401, 185 NE 376; <<=324>> Berlandi v Commonwealth 314 Mass 424, 50 NE2d 210. In accord with original. See <<=325>> Snyder v Massachusetts, 291 US 97, 54 S Ct 330, 78 L Ed 674. View by judge.--The fact that the judge trying a criminal contempt case without a jury on his own motion and in the absence of the defendant viewed the premises where the offense had taken place did not violate the constitutional principle that defendant was entitled to meet the witnesses against him face to face, for a view is not technically evidence and subject to all the principles applicable to evidence in the technical sense. <<=326>> Berlandi v Commonwealth, 314 Mass 424, 50 NE2d 210. Violation of right by introduction of hearsay evidence.--While the introduction of hearsay evidence against a criminal defendant may violate his constitutional rights of confrontation, it has been held, without referring to the instant section, that such right of confrontation is not violated where the evidence is introduced without objection on the part of the defendant. <<=327>> Commonwealth v Reynolds, 338 Mass 130, 154 NE2d 130. Hearsay evidence offered by petitioner on writ of error.--Where a petitioner by writ of error sought review of a decision adjudicating him in contempt of court for refusal to answer questions before the grand jury, and where petitioner's refusal was based upon an assertion of a claim of self-incrimination, and where the petitioner offered in evidence certain hearsay statements in newspaper accounts tending to show his justification for refusing to answer the questions, it was said that since the evidence was offered by the petitioner there was no violation of the right of confrontation under the instant article. <<=328>> Sandrelli v Commonwealth, 342 Mass 129, 172 NE2d 449, 88 ALR2d 450. Authorization of use of hearsay evidence in civil proceeding not violative of instant article.--The authorization by statute of the use of hearsay evidence in a civil proceeding does not violate the right of confrontation secured to a defendant in criminal cases under the instant article. <<=329>> Commonwealth v McGruder, 348 Mass 712, 205 NE2d 726. Proof of what a deceased witness said.--This article is not violated by the admission of testimony in a criminal trial before a jury, to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace. Commonwealth v Richards, 35 Mass (18 Pick) 434. Dying declarations.--The dying declarations of a person alleged to have been murdered, are admissible in evidence, notwithstanding this article. <<=331>> Commonwealth v Carey, 66 Mass (12 Cush) 246. Introduction of public records.--The character of the public records, which at the time of the adoption of the Constitution of the commonwealth formed an acknowledged exception to the rule of this article did not become rigid for all time for evidential purposes, but the General Court had power, under the grant empowering it to make, ordain and establish all manner of wholesome and reasonable laws not repugnant to the Constitution, to add to the varieties of public records admissible as evidence under the principles of law prevailing at the time of the adoption of the <<=332>> Constitution. Commonwealth v Slavski, 245 Mass 405, 140 NE 465, 29 ALR 281. Hearing constitutionally required in denial of permit to engage in occupation. --<<=333>> Milligan v Board of Registration in Pharmacy, 348 Mass 491, 204 NE2d 504. For case notes relative to the scope of the right of confrontation, see case notes to GL c 263, @ 5. Statute making certificate of drug analysis admissible and making it prima facie evidence did not violate defendant's right of confrontation of witnesses.--<<=334>> Commonwealth v Harvard (1969) 356 Mass 452, 253 NE2d 346. While courts must indulge every reasonable presumption against the loss of constitutional rights, the privilege of personally confronting witnesses may be lost by consent or at times by misconduct, and a defendant can lose his constitutional right to be present at his own criminal trial, if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. <<=335>> Illinois v Allen (1970) 397 US 337, 25 L Ed 2d 353, 90 S Ct 1057, 51 Ohio Ops 2d 163, reh den <<=336>> 398 US 915, 26 L Ed 2d 80, 90 S Ct 1684. Use of co-defendant's out-of-court statement.--Where a co-defendant alleged to have made an out-of-court statement inculpating the other defendant at a joint trial is present at the trial to testify and to submit to cross-examination, the admission of the co-defendant's out-of-court statement does not present a confrontation problem, even though the statement is hearsay as to the other defendant, so that its admission against him, in the absence of a cautionary instruction, would be reversible error under state law. <<=337>> Nelson v O'Neil (1971) 402 US 622, 29 L Ed 2d 222, 91 S Ct 1723. Right of defendant in criminal case to be present at hearing on jury misconduct charge.--Under c. 278, @ 6 and Massachusetts Constitution, Declaration of Rights, Art. 12, the defendant in a criminal case is entitled to be present at the hearing of a motion for mistrial alleging that certain jurors sitting in the case had been guilty of misconduct by discussing the case among themselves outside of court, the presence of the defendant in such case being a safeguard to his right to have an impartial jury. <<=338>> Commonwealth v Robichaud (1970) 358 Mass 300, 264 NE2d 374. Rule excluding hearsay evidence in criminal case rests in part on constitutional right of defendant to be confronted by accusers.--See <<=339>> Commonwealth v Del Valle (1966) 351 Mass 489, 221 NE2d 922, later app <<=340>> 353 Mass 684, 234 NE2d 721. Right of confrontation assured to defendant in criminal case.--<<=341>> Commonwealth v Kerrigan (1965) 349 Mass 295, 207 NE2d 882. Authorization of use of hearsay evidence in civil proceeding not violative of instant article.--<<=342>> Commonwealth v McGruder (1965) 348 Mass 712, 205 NE2d 726, cert den <<=343>> 383 US 972, 16 L Ed 2d 312, 86 S Ct 1277, reh den <<=344>> 384 US 947, 16 L Ed 2d 545, 86 S Ct 1466. Trial judge's refusal to order witness to reveal name of man participating in robbery-murder, and another witness to crime, both of which he knew, constituted reversible error. <<=345>> Commonwealth v Johnson (1974) 365 Mass 534, 313 NE2d 571. View may be conducted in absence of defendant. <<=346>> Commonwealth v Curry (1975) 368 Mass 195, 330 NE2d 819. Criminal defendant is not constitutionally entitled to nonexistent transcript of witness' testimony given at prior trial a month earlier, because witness is expected to testify to some related events at subsequent trial on different charge. <<=347>> Commonwealth v MacDonald (1975) 368 Mass 403, 333 NE2d 194. Name of person who gave witness defendant's name need not be disclosed, where person was not witness to robbery, or police informer, and where he or his identity was not important to defendant's defense. <<=348>> Commonwealth v Day (1976, Mass App) 1976 Adv Sheets 864, 351 NE2d 547. Confrontation clause not violated by admission into evidence of transcript of witness' testimony at probable cause hearing in District Court, where at time of Superior Court trial witness had married defendant and refused to testify against him, pursuant to privilege contained in GL c. 233 @ 20 <<=349>> Second. Commonwealth v Di Pietro (1977, Mass) 1977 Adv Sheets 1971, 367 NE2d 811. Direct testimony of witness who properly asserted privilege against self incrimination on cross-examination by defense counsel should have been struck by judge in order to protect defendants' right of confrontation, because witness was chief prosecution witness, had testified on direct examination about crucial transaction at door of apartment where murder occurred, and defendants were deprived of cross examination of witness about essence of defense. <<=350>> Commonwealth v Funches (1979, Mass) 1979 Adv Sheets 2559, 397 NE2d 1097. Defendant who had qualified interpreter at all times during probable cause hearing, hearing on motion to suppress, and at trial was not deprived of rights. <<=351>> Commonwealth v Garcia (1980, Mass) 1980 Adv Sheets 21, 399 NE2d 460. Defendant's contention that he could not understand what transpired at trial due to language difficulty essentially alleged violation of right to be "present" at trial and to confront witnesses against him. <<=352>> Commonwealth v Garcia (1980, Mass) 1980 Adv Sheets 21, 399 NE2d 460. Admission in evidence of tape recording of rape complainant's testimony at probable cause hearing violated the defendant's right to confront witnesses against him because complainant was not shown to be unavailable at the time of the trial simply by unsuccessful resort to Uniform Act to Secure Attendance of Out of State Witness some 13 months prior to trial. <<=353>> Commonwealth v Bohannon (1982) 385 Mass 733, 434 NE2d 163. Constitutional right to confrontation extends beyond contours of hearsay rule. <<=354>> Commonwealth v Bohannon (1982) 385 Mass 733, 434 NE2d 163. Defendant's right to confront witnesses against him is essential to fair trial and is long recognized as a requirement of due process. <<=355>> Commonwealth v Bohannon (1982) 385 Mass 733, 434 NE2d 163. Judge's refusal to allow defendant to cross-examine government witness as to her psychiatric history was not error. <<=356>> Commonwealth v Perreault (1982) 13 Mass App 1072, 435 NE2d 635. Trial judge properly exercised discretion in excluding cross examination of rape victim as to pending criminal charges against her, where charge arose more than a year after complaint and identification had been made and evidence of charges against victim had already been introduced by <<=357>> Commonwealth. Commonwealth v Johnson (1983) 16 Mass App 935, 450 NE2d 1087. Defendant's right of confrontation was not violated by exclusion of evidence of minor complainant's prior sexual conduct, offered to neutralize incriminating inference from fact of her nonvirginity and from her statement that she had engaged in sexual relations only with defendant. <<=358>> Commonwealth v Elder (1983) 389 Mass 743, 452 NE2d 1104. Absence of defendant from courtroom during roll call at start of second day of sequestered jury's deliberations was not violation of right of confrontation or of due process of law, since taking of roll call was administrative act not requiring presence of defendant. <<=359>> Commonwealth v Davila (1984) 17 Mass App 511, 459 NE2d 1248. Judge erred in excluding cross-examination of rape complainant as to her institution of civil suit against apartment complex where she allegedly was raped, in that it could create financial motive for victim to testify falsely in order secure criminal conviction; new trial ordered. <<=360>> Commonwealth v Elliot (1985) 393 Mass 824, 473 NE2d 1121. Exclusion of evidence of informant witness' past cooperation with Commonwealth presented no ground for reversal, where jury was advised of witness' bias through disclosure of pendency of 7 serious criminal charges against witness. <<=361>> Commonwealth v Rodwell (1985) 394 Mass 694, 477 NE2d 385. Admission of witness' pre-hypnotic memory of events did not violate defendant's right of confrontation. <<=362>> Commonwealth v Burke (1985) 20 Mass App 489, 481 NE2d 494. Confrontation clause of Article 12 of Massachusetts Declaration of Rights does not guarantee inmate, in disciplinary proceeding, right to face and cross-examine informants who give information to correction officers which is factual basis for charges against inmate, before good-time credits may be revoked. <<=363>> Murphy v Superintendent, Massachusetts Correctional Institution (1986) 396 Mass 830, 489 NE2d 661. Absolute prohibition against disclosure by "sexual assault counselor" of confidential communications received from victim of sexual assault, as provided for by GL ch 233 @ 20J, prevents trial court from conducting in camera inspection of such communications, but defendant's constitutional rights to confront and summon witnesses may require in camera inspection in certain circumstances. <<=364>> Commonwealth v Two Juveniles (1986) 397 Mass 261, 491 NE2d 234. In some circumstances absolute privilege expressed in GL ch 233 @ 20J must yield at trial to constitutional right of criminal defendant to have access to privileged communications. <<=365>> Commonwealth v Two Juveniles (1986) 397 Mass 261, 491 NE2d 234. In camera inspection of confidential communications privileged under GL ch 233 @ 20J is justified only if defendant shows legitimate need for access to communications. <<=366>> Commonwealth v Two Juveniles (1986) 397 Mass 261, 491 NE2d 234. Admission of incriminating evidence in transcript of testimony of defendant's stepfather at pretrial hearing, after stepfather refused to testify on grounds of self-incrimination, did not violate defendant's right of confrontation. <<=367>> Commonwealth v Trigones (1986) 397 Mass 633, 492 NE2d 1146. Admissibility of blood test record ordered by doctor at hospital in order to determine defendant's medical condition for purposes of treating him did not violate constitutional right of confrontation. <<=368>> Commonwealth v Riley (1986) 22 Mass App 698, 497 NE2d 651. Judge properly allowed in evidence prior recorded testimony of 2 Commonwealth witnesses, where Commonwealth showed good faith effort had been made to locate witnesses. <<=369>> Commonwealth v Salim (1987) 399 Mass 227, 503 NE2d 1267. Judge's refusal to allow defense counsel to question 2 prosecution witnesses at voir dire hearings regarding their competence to testify at trial was not abuse of discretion or violation of defendant's rights of confrontation and due process. <<=370>> Commonwealth v Doucette (1987) 400 Mass 1005, 509 NE2d 1157, approving (1986) <<=371>> 22 Mass App 659, 496 NE2d 837. Admission of transcript of testimony of minor at her criminal trial did not deprive licensee of opportunity to confront or cross examine minor, where licensee could have called minor as witness through subpoena process, but did not. <<=372>> Embers of Salisburg, Inc. v Alcoholic Beverages Control Com. (1988) 401 Mass 526, 517 NE2d 830. Upon showing of necessity and reliability, prior recorded testimony of witness may be admitted, even if defendant has no opportunity to confront witness in person before jury. <<=373>> Commonwealth v Siegfriedt (1988) 402 Mass 424, 522 NE2d 970. Language of Article 12 of Declaration of Rights or GL c 263 @ 5 does not impose stricter standard than that of Sixth Amendment to United States Constitution for admission of prior recorded testimony of unavailable witness. <<=374>> Commonwealth v Siegfriedt (1988) 402 Mass 424, 522 NE2d 970. Testimony of child witness in criminal trial by means of simultaneous closed circuit television transmission outside of physical presence of defendant and jury, as authorized by GL c 278 @ 16D, was inconsistent with right of confrontation under <<=375>> Article 12 of the Declaration of Rights. Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Poor quality of transmission of videotape of child witness testimony did not allow jury properly to fulfill their responsibilities. <<=376>> Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Concept underlying right of confrontation is that witness is more likely to testify truthfully if required to do so under oath, in court of law, and in presence of accused and trier of fact. <<=377>> Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Plain meaning of assuring defendant right "to meet witnesses against him face to face" is that accused shall not be tried without presence, in court of law, of both himself and witnesses testifying against him. <<=378>> Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Article 12 of Declaration of Rights does not permit introduction of available witness testimony outside defendant's presence. <<=379>> Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Article 12 of Declaration of Rights does not discriminate against classes of defendants nor distinguish any categories of crimes. <<=380>> Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. GL c 278 @ 16D, authorizing testimony of child witness outside presence of defendant and jury, creates rule of witness protection that is too broad to pass constitutional muster under <<=381>> Article 12 of Declaration of Rights. Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366. Right to confrontation secured to defendant in criminal case by Article 12 of Declaration of Rights is not implicated in noncriminal proceeding. <<=382>> Reading v Murray (1989) 405 Mass 415, 541 NE2d 323. Since judge properly found that seating arrangement which he established for videotaping of child witness' testimony did not obscure defendant's and co-defendant's view of child witness, defendant's right to confrontation was not violated. <<=383>> Commonwealth v Tufts (1989) 405 Mass 610, 542 NE2d 586. Judge's admission of codefendant's written statement describing defendant as gunman was admitted in violation of Bruton rule and was error requiring reversal of defendant's conviction of murder and new trial. <<=384>> Commonwealth v Hawkesworth (1989) 405 Mass 664, 543 NE2d 691. Judge properly allowed prosecutor to read to jury testimony of witness at defendant's first trial, where judge found that witness was unavailable at time of trial and that Commonwealth had made diligent and good faith effort to locate him. <<=385>> Commonwealth v Burbank (1989) 27 Mass App 97, 534 NE2d 1180. Parking violation proceedings are not criminal, and driver did not have right to confront officer who wrote ticket. <<=386>> Le Maine v Boston (1989) 27 Mass App 1173, 540 NE2d 1338. 6. Right to be heard or assisted by counsel The Massachusetts Constitution recognizes the defendant's right to have counsel.--This right was not denied by the justice in the instant case. The most that can be said is that defendant's opportunity to prepare his defense was limited by the short time between arraignment and trial. But, if he had elected to avail himself of what opportunity he had, he could have been fully prepared. The evidence was available, the facts free from complications, and no great amount of time or effort was necessary in order to prepare whatever defense he had. <<=387>> Wilson v Lanagan, 19 F Supp 870. A husband is liable for legal services rendered to his wife in successfully defending her against a complaint instituted against her by him for being a common drunkard. Conant v Burnham, 133 Mass 503. There was no violation of the instant Article (or of the 14th Amendment to the U S Constitution) in putting the defendants to trial (on charges of rape, etc.) without the assistance of counsel. The instant Article does not require that counsel be furnished, and no statute requires it in noncapital cases. <<=389>> Commonwealth v Blondin, 324 Mass 564, 87 NE2d 455, cert den <<=390>> 339 US 984, 94 L Ed 1387, 70 S Ct 1004. (But see later cases, infra.) The provision in the instant Article that every subject shall have the right "to be fully heard in his defence by himself, or his counsel, at his election" has never been deemed to require the court to appoint counsel, even if the defendant is indigent. <<=391>> Allen v Commonwealth, 324 Mass 558, 87 NE2d 192. (But see later cases, infra.) Failure to furnish counsel in noncapital criminal case violates constitutional rights.--The rule of <<=392>> Gideon v Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR2d 733, which determined that it is a violation of the Federal constitutional right to due process to try a defendant who is without counsel, even in a noncapital case, applies retrospectively, and a defendant convicted twelve years before, who was not advised of his right to counsel nor furnished counsel, was entitled to a reversal of the conviction, even though he did not request counsel at the trial. <<=393>> Subilosky v Commonwealth (Mass) 209 NE2d 316. Legal services not the kind to which petitioner was entitled.--Petitioner's counsel, seeking continuance, examined daily list--upon which petitioner's case did not appear--on day petitioner's case was set for trial, then asked associate to obtain continuance. Associate wrongly told by clerk that case had previously been continued, thereafter was advised that case was actually on trial, went to courtroom and was advised by judge that, as jury had been empanelled, no continuance could be granted, and thereafter, with no knowledge of facts in case, represented petitioner as well as he could. Held, that the above was not the kind of legal services to which the petitioner, if he had a lawyer, was entitled under this <<=394>> Article. Lindsey v Commonwealth, 331 Mass 1, 116 NE2d 691. Applicable rule stated, with citation, in <<=395>> Brown v Commonwealth, 335 Mass 476, 140 NE2d 461, in which case it was held that, on the facts, there was "an accretion of prejudicial happenings which added up to a failure to secure the fundamentals of a fair trial . . ."; and that there were other specified violations of this Article. Petitioner (a high grade moron) held subject to that "incapacity of some kind" which required the assignment of counsel "in order to secure the fundamentals of a fair trial." <<=396>> Pugliese v Commonwealth, 335 Mass 471, 140 NE2d 476. Aid of counsel is fundamental right.--The fundamental character of the right of a person accused of a serious crime to have the aid and advice of counsel is recognized under the Federal Constitution and in the instant article, and it is a right upon which the essential element of fairness in the administration of justice depends. <<=397>> Guerin v Commonwealth, 339 Mass 731, 162 NE2d 38. Right of communication by criminal defendant with counsel.--The right of a criminal defendant to have the aid and advice of counsel, as is recognized by the instant article, includes a right in the defendant to be able to communicate orally with his counsel during the progress of the trial. Where, however, the defendant could have spoken with his counsel or conveyed messages to him at recess, and before and after court, with or without an application to the judge, and where he could have communicated with counsel during the trial on an application to the judge, the defendant could not complain that his right of communication with counsel was infringed, nor was such right infringed by the fact that on one occasion during the trial, a court officer refused to permit the defendant to consult with counsel. <<=398>> Guerin v Commonwealth, 339 Mass 731, 162 NE2d 38. Defendant entitled to counsel when pleading to motor vehicle complaints.--Under Supreme Judicial Court General Rule 10, a defendant pleading to complaints charging him with motor vehicle violations some of which were serious enough to have resulted in the confinement of the defendant was entitled to counsel as in other criminal cases and where the defendant, without being represented by counsel, pleaded guilty to the complaint and the record was silent as to the waiver of his right to counsel, the guilty plea could not be used against the defendant for any purpose. Williams v Commonwealth, 1966 Adv sheets 815, <<=399>> 216 NE2d 779. Defendant entitled to assistance of counsel at hearing on revocation of probation.--A defendant who appears at a hearing where the revocation of his probation is to be considered and where his imprisonment may result, is, under Supreme Judicial Court General Rule 10, entitled to the assistance of counsel upon the same terms as in other criminal cases, and where he is unrepresented by counsel at such a hearing, after which his probation is revoked, and the record does not show a written waiver of counsel as required by Rule 10, the revocation is invalid and will be set aside. Williams v Commonwealth, 1966 Adv sheets 815, <<=400>> 216 NE2d 779. Statements made to police by defendant after he had been warned of right to remain silent and to have counsel not inadmissible where defendant voluntarily agreed to talk and where he did not wish to consult counsel. See Commonwealth v Cook, 1966 Adv sheets 1103, <<=401>> 218 NE2d 393. Police interrogation prior to indictment did not violate defendant's Federal constitutional rights to assistance of counsel where counsel had previously advised defendant over telephone and was given opportunity to be present at interrogation.--Commonwealth v Kleciak, 1966 Adv sheets 751, <<=402>> 216 NE2d 417. Questioning of suspect, in absence of counsel in district attorney's office, as to whether he cared to give an explanation of his conduct not violation of rights of suspect to assistance of counsel under Federal Constitution where suspect was not then in custody nor under any restraint. See <<=403>> Commonwealth v O'Toole (1967) 351 Mass 627, 223 NE2d 87. Miranda safeguards require that defendant be afforded right of access to counsel throughout the interrogation.--<<=404>> Commonwealth v McKenna (1969) 355 Mass 313, 244 NE2d 560. Federal Miranda Rule not applied retroactively.--The Federal rule applicable to state courts relative to the right to counsel in connection with the confession of an accused, enunciated in <<=405>> Miranda v Arizona (1966) 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 Ohio Misc 9, 36 Ohio Ops 2d 237, 10 ALR3d 974, reh den <<=406>> 385 US 890, 17 L Ed 2d 121, 87 S Ct 11, will not be applied retroactively in Massachusetts courts. <<=407>> Commonwealth v Johnson (1967) 352 Mass 311, 225 NE2d 360, cert gr <<=408>> 389 US 816, 19 L Ed 2d 69, 88 S Ct 158, cert dismd <<=409>> 390 US 511, 20 L Ed 2d 69, 88 S Ct 1155 (ovrld on other grounds <<=410>> Commonwealth v Mahnke, 368 Mass 662, 335 NE2d 660, cert den <<=411>> 425 US 959, 48 L Ed 2d 204, 96 S Ct 1740); <<=412>> Commonwealth v Geary (1967) 352 Mass 427, 226 NE2d 253. Federal Miranda requirements as to assistance of counsel not applicable to interstate rendition proceeding.--<<=413>> Commonwealth v Glavin (1968) 354 Mass 69, 235 NE2d 547. Police warnings as to right of defendant to remain silent, and to have counsel, given when investigation focused on defendant as suspect, and waiver of rights by defendant, found to adequately conform to Federal Miranda requirements.--<<=414>> Commonwealth v Fisher (1968) 354 Mass 549, 238 NE2d 525. Defendant in noncapital case not deprived of Federal Constitutional rights because he was unrepresented by counsel when he pleaded not guilty at arraignment, where subsequently on advice of counsel he pleaded guilty.--See <<=415>> Macey v Commonwealth (1967) 352 Mass 519, 226 NE2d 225. Presence of counsel not required by Federal Constitution at time defendant makes statement to police if statement was volunteered by defendant.--See <<=416>> Commonwealth v Rawlins (1967) 352 Mass 293, 225 NE2d 314. Defendant's Federal constitutional right to counsel not violated because counsel not present when defendant was brought before witness for purposes of identification.--See <<=417>> Commonwealth v Rawlins (1967) 352 Mass 293, 225 NE2d 314. Waiver of counsel required compliance with Supreme Judicial Court General Rule 10.--See <<=418>> Mulcahy v Commonwealth (1967) 352 Mass 613, 227 NE2d 326; <<=419>> Baldassari v Commonwealth (1967) 352 Mass 616, 227 NE2d 741. Right of defendant to "effective assistance" of counsel under Federal rules.--For discussion as to what constitutes effective assistance, see <<=420>> Commonwealth v Bernier (1971) 359 Mass 13, 267 NE2d 636. Failure to furnish counsel in noncapital criminal case violates constitutional rights.--<<=421>> Subilosky v Commonwealth (1965) 349 Mass 484, 209 NE2d 316. Effective assistance of counsel was not denied where a judge in the proper exercise of his discretion refused to grant a continuance to a defendant who, although he knew of the trial date one month in advance, failed to diligently seek the aid of the courts in having counsel appointed to defend him until the day of the trial itself. <<=422>> Commonwealth v Bettencourt (1972) 361 Mass 515, 281 NE2d 220. Incriminating gesture without counsel.--While pre-indictment line-up may be a critical stage, the defendant's lack of counsel did not bar the witness's testimony where, prior to arraignment, a defendant voluntarily signaled a witness from the detention pen, and the gesture was not the result of police compelling the defendant to incriminate himself. <<=423>> Commonwealth v Ross (1972) 361 Mass 665, 282 NE2d 70, vacated <<=424>> 410 US 901, 35 L Ed 2d 265, 93 S Ct 968, on remand <<=425>> 363 Mass 665, 296 NE2d 810, cert den <<=426>> 414 US 1080, 38 L Ed 2d 486, 94 S Ct 599. The showing of standard police identification photographs does not constitute a state compelled confrontation or exhibition at which there is a right to have the presence of counsel. <<=427>> Commonwealth v Ross (1972) 361 Mass 665, 282 NE2d 70, vacated <<=428>> 410 US 901, 35 L Ed 2d 265, 93 S Ct 968, on remand <<=429>> 363 Mass 665, 296 NE2d 810, cert den <<=430>> 414 US 1080, 38 L Ed 2d 486, 94 S Ct 599. The right to have counsel attaches at every critical stage of a criminal case where the state exhibits the defendant to the victim of the crime or to potential witnesses against him. <<=431>> Commonwealth v Ross (1972) 361 Mass 665, 282 NE2d 70, vacated <<=432>> 410 US 901, 35 L Ed 2d 265, 93 S Ct 968, on remand <<=433>> 363 Mass 665, 296 NE2d 810, cert den <<=434>> 414 US 1080, 38 L Ed 2d 486, 94 S Ct 599. Language of Article 12 of Declaration of Rights that "every subject shall have a right . . . to be fully heard in his defense by himself or his counsel, at his election" gives defendant right to conduct own defense, so long as request to proceed without counsel is (1) unequivocal, (2) made before trial, and (3) is being exercised knowingly and intelligently and not for ulterior purpose. <<=435>> Commonwealth v Mott (1974) 2 Mass App 47, 308 NE2d 557. Judge's refusal to allow conversation between defendant and his counsel at view was not abuse of discretion nor denial of effective assistance of counsel. <<=436>> Commonwealth v Curry (1975) 368 Mass 195, 330 NE2d 819. Inadequate assistance of counsel not shown by defense counsel's (1) failure to request voir dire challenging victim's in-court identification of defendant, (2) failure to call as witness prisoners who told defendant victim had identified them, and (3) failure to subpoena victim's father whose description of automobile involved in victim's abduction did not fit description of defendant's automobile or description given by daughter at trial. <<=437>> Commonwealth v Scott (1975) 2 Mass App 763, 321 NE2d 682. Forcing an accused, against his will, to accept a state-appointed public defender deprives the accused of his constitutional right to conduct his own defense under circumstances where (1) weeks before trial, the accused clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel, (2) the record affirmatively showed that the accused was literate, competent, and understanding, and that he was voluntarily exercising his informed free will, and (3) the trial judge warned the accused that the judge thought that it was a mistake not to accept the assistance of counsel, and that the accused would be required to follow all the ground rules of trial procedure. <<=438>> Faretta v California (1975) 422 US 806, 45 L Ed 2d 562, 95 S Ct 2525. Requirement that defendant disclose alibi defense and identity of alibi witnesses does not deny constitutional or statutory rights where reciprocal obligation is placed on prosecution. <<=439>> Commonwealth v Edgerly (1977, Mass) 1977 Adv Sheets 707, 361 NE2d 1289. Judge's refusal to allow defendant to call prosecutor as witness, in order to impeach credibility of police officers, did not violate his right to compulsory process and to present witnesses, in that expected testimony of prosecutor would have no impeachment value. <<=440>> Commonwealth v Blaikie (1978) 375 Mass 601, 378 NE2d 1361. Constitutional right of defendant to call witness is not without limit, and judge's refusal to permit defendant to reopen his case for second time in order to present two expert witnesses who had no personal knowledge of issue did not violate defendant's constitutional right. <<=441>> Commonwealth v Blaikie (1978) 375 Mass 601, 378 NE2d 1361. There was no conflict of interest on part of defense counsel because victim of sexual assault, though unknown to counsel, turned out to be a friend of the wife of a lawyer with whom counsel had loose professional association. <<=442>> Commonwealth v Leslie (1978, Mass) 1978 Adv Sheets 2881, 382 NE2d 1072, cert den <<=443>> 441 US 910, 60 L Ed 2d 381, 99 S Ct 2006. Criminal defendant has constitutional right to avoid judgment of conviction if there is genuine conflict of interest on part of his counsel, without having to demonstrate actual prejudice. <<=444>> Commonwealth v Leslie (1978, Mass) 1978 Adv Sheets 2881, 382 NE2d 1072, cert den <<=445>> 441 US 910, 60 L Ed 2d 381, 99 S Ct 2006. Also reaffirming premise that genuine conflict of interest by counsel is grounds for avoiding conviction, even without actual prejudice, see <<=446>> Commonwealth v Wright (1978, Mass) 1978 Adv Sheets 2982, 383 NE2d 507. Defendant is entitled to attorney unhampered or unfettered in his professional responsibility to defendant and is entitled to untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others. <<=447>> Commonwealth v Davis (1978, Mass) 1978 Adv Sheets 3044, 384 NE2d 181. Conflict of interest from existence of joint representation of codefendants by one attorney may be shown by reference to trial record or by evidence extrinsic to court proceedings. <<=448>> Commonwealth v Davis (1978, Mass) 1978 Adv Sheets 3044, 384 NE2d 181. Violation of right to counsel is established if there is conflict of interest by counsel, even if there is no resulting prejudice. <<=449>> Commonwealth v Davis (1978, Mass) 1978 Adv Sheets 3044, 384 NE2d 181. Conflict of interest by joint representation of codefendants was not established, where neither the defendants nor trial counsel alerted the court to a conflict or requested severance of counsel's relationship with one of the defendants, and where both defendants' testimony was consistent in virtually every respect. <<=450>> Commonwealth v Davis (1978, Mass) 1978 Adv Sheets 3044, 384 NE2d 181. Guidelines to prevent conflict of interest by joint representation of codefendants--Trial court has affirmative duty to inform each defendant of risk and potential dangers of joint representation and to be satisfied that each defendant understands such information. <<=451>> Commonwealth v Davis (1978, Mass) 1978 Adv Sheets 3044, 384 NE2d 181. Defendant in criminal case has right to conduct his own defense at trial, but he must assert right in timely and unequivocal manner, and knowingly and intelligently invoke right and validly waive right to counsel. <<=452>> Commonwealth v Chapman (1979, Mass App) 1979 Adv Sheets 1695, 392 NE2d 1213. Judge's order precluding calling of alibi witnesses by defendant which was rescinded after defendant testified, did not violate defendant's right to present witnesses in his own behalf. <<=453>> Commonwealth v Blodgett (1979, Mass) 1979 Adv Sheets 636, 386 NE2d 1042. Where defendant pleaded guilty to three counts of armed robbery and two counts of murder in death of two codefendants in robbery cases, there was no conflict of interest merely because his lawyer at time of giving guilty plea had previously represented one of the codefendants. <<=454>> Commonwealth v Soffen (1979, Mass) 1979 Adv Sheets 556, 386 NE2d 1030. Convicted criminal defendant is not entitled to habeas corpus relief based on violation of Sixth Amendment right to effective representation upon showing of multiple representation which involves possibility of conflict of interest, since mere possibility of such conflict is insufficient to impugn criminal conviction, defendant being required to establish that actual conflict of interest adversely affected performance of counsel; trial court, unless it knows or reasonably should know that particular conflict exists, is not required to initiate inquiry into propriety of multiple representation if no party lodges objection. <<=455>> Cuyler v Sullivan (1980) -- US --, 64 L Ed 2d 333, 100 S Ct. Supreme Judicial Court rejected contention that GL c 233 @ 21, with respect to impeachment of defendant by records of prior convictions of crime identical to those charged, is not constitutional, in that it burdened right to testify. <<=456>> Commonwealth v Diaz (1981, Mass) 1981 Adv Sheets 605, 417 NE2d 950. Prosecutor did not wrongfully interfere with defendant's right to secure testimony of witnesses in his behalf. <<=457>> Commonwealth v Crawford (1981, Mass App) 1981 Adv Sheets 2055, 429 NE2d 54. Defendant in murder trial was denied effective assistance of counsel because prosecution witness was represented in unrelated civil case by partner of defendant's attorney. <<=458>> Commonwealth v Hodge (1982) 386 Mass 165, 434 NE2d 1246. Article 12 of Declaration of Rights is not to be interpreted to require right to counsel at pre-indictment identification procedures. <<=459>> Commonwealth v Simmonds (1982) 386 Mass 234, 434 NE2d 1270. Decision whether to appoint counsel for indigent defendant for motion for new trial is discretionary with trial judge, and whether refusal to appoint counsel deprives defendant of meaningful access to postconviction proceeeding or results in fundamental unfairness is reviewed by appellate court on case by case basis. <<=460>> Commonwealth v Conceicao (1983) 388 Mass 255, 446 NE2d 383. Indigent defendant does not have absolute right to have counsel appointed to represent him on motion for new trial. <<=461>> Commonwealth v Conceicao (1983) 388 Mass 255, 446 NE2d 383. Right of accused to present his version of facts is guaranteed by <<=462>> Article 12 of Declaration of Rights. Commonwealth v Louraine (1983) 390 Mass 28, 453 NE2d 437. Conflict of interest not shown in joint representation by one attorney of 2 defendants at probable cause hearing. <<=463>> Commonwealth v Pires (1983) 389 Mass 657, 451 NE2d 1155. Defendant who demonstrates that genuine conflict of interest existed with respect to his counsel need not prove adverse effect upon counsel's performance or actual prejudice. <<=464>> Commonwealth v Hurley (1984) 391 Mass 76, 461 NE2d 754. Article 12 of Declaration of Rights provides greater safeguards than Bill of Rights in United States Constitution, with respect to effective assistance of counsel. <<=465>> Commonwealth v Hurley (1984) 391 Mass 76, 461 NE2d 754. Although defendant's attorney represented both defendant and potential defense witness who was not called upon to testify until second day of trial, defendant was not prejudiced by initial joint representation and there was no genuine conflict of interest. <<=466>> Commonwealth v Walter (1984) 19 Mass App 82, 471 NE2d 762. Purpose of right to counsel is to insure fair trial, not guarantee perfect defense. <<=467>> Commonwealth v McGann (1985) 20 Mass App 59, 477 NE2d 1075. Ineffective assistance of counsel not shown by counsel's failure to to file motion to suppress identification robbery victim made of defendant at hospital shortly after incident and at trial, where police had probable cause to arrest defendant and showup was not unnecessarily suggestive. <<=468>> Commonwealth v Howell (1985) 394 Mass 654, 477 NE2d 126. Genuine conflict of interest of defense counsel will not be inferred from dual representation of defendant and witness for defendant otherwise unrelated in case. <<=469>> Commonwealth v Walter (1986) 396 Mass 549, 487 NE2d 513. Once genuine conflict of interest of defense counsel is shown, there is no additional requirement that prejudice be shown. <<=470>> Commonwealth v Walter (1986) 396 Mass 549, 487 NE2d 513. Difference in wording between Article 12 of Declaration of Rights and Sixth Amendment to United States Constitution is insignificant, for purposes of prison disciplinary proceedings. <<=471>> Murphy v Superintendent, Massachusetts Correctional Institution (1986) 396 Mass 830, 489 NE2d 661. Element of fundamental right to counsel under Article 12 of Massachusetts Declaration of Rights is defendant's right to full and undivided loyalty of his attorney. <<=472>> Commonwealth v Shraiar (1986) 397 Mass 16, 489 NE2d 689. Actual or genuine conflict of interest arises where independent professional judgment of trial counsel is impaired, either by his own interest or by interest of another client. <<=473>> Commonwealth v Shraiar (1986) 397 Mass 16, 489 NE2d 689. Trial counsel for defendant did not become witness for Commonwealth by entering into stipulation as to facts within joint knowledge of counsel and defendant. <<=474>> Commonwealth v Shraiar (1986) 397 Mass 16, 489 NE2d 689. Ineffective assistance of appellate counsel did not entitle defendant to release, absent showing of actual prejudice. <<=475>> Commonwealth v Del Verde (1986) 398 Mass 288, 496 NE2d 1357. Genuine conflict of interest did not exist, where defense counsel had knowledge on second day of trial of potential conflict of interest between defendant and witness for defendant and withdrew from representation of witness. <<=476>> Commonwealth v Walter (1985) 396 Mass 549, 487 NE2d 513, superseding (1984) <<=477>> 19 Mass App 82, 471 NE2d 762. Defense counsel's simultaneous representation of defendant and father of Commonwealth's witness did not constitute genuine conflict of interest so as to deny defendant effective assistance of counsel, where there was no professional relationship between defense counsel and witness and witness and father were financially independent of each other, did not reside together, and father made no request that counsel give son special consideration. <<=478>> Commonwealth v Epsom (1987) 399 Mass 254, 503 NE2d 954. Audio-visual monitoring of conversation between defendant and his attorney in jail cell and police officer's subsequent viewing of video tape in its entirety was prejudicial to defendant and required dismissal of charges of sale and distribution of drugs, but not of charge of illegal possession of drugs. <<=479>> Commonwealth v Fontaine (1988) 402 Mass 491, 524 NE2d 75. Right to counsel attaches only at or after time that adversarial judicial proceeding has been initiated against defendant. <<=480>> Commonwealth v Jones (1988) 403 Mass 279, 526 NE2d 1288. Right to counsel attaches only from time adversary judicial proceedings have been initiated. <<=481>> Commonwealth v Griffin (1989) 404 Mass 372, 535 NE2d 594. Failure of defense counsel to file motion to suppress defendant's statements to police was not ineffective assistance of counsel, where judge held voir dire on admissibility of statements and properly concluded that statements were voluntary. <<=482>> Commonwealth v Mattos (1989) 404 Mass 672, 536 NE2d 1072. 7. Right to jury trial There is no jurisdictional requirement that all criminal trials must be by jury.--<<=483>> Commonwealth v Kemp, 254 Mass 190, 150 NE 172. There is no constitutional obstacle to prevent women from serving on juries subsequent to the effective date of the Nineteenth Amendment to the United States Constitution, although prior to the enactment of that Amendment this section contemplated a jury composed of men only. <<=484>> Opinion of Justices, 237 Mass 591, 130 NE 685. Jury of 12 men originally contemplated.--The original contemplation of the instant article was a jury of 12 composed exclusively of men, and this constitutional right could be waived. <<=485>> Gallo v Commonwealth, 343 Mass 397, 179 NE2d 231. Women made eligible to jury in 1949.--The original contemplation of the instant article was a jury of 12 composed exclusively of men, but women were made eligible by St. 1949, c 347, @ 1, which amended c 234, @ 1. <<=486>> Gallo v Commonwealth, 343 Mass 397, 179 NE2d 231. A statute providing for the empanelling of fourteen jurors and the discharge of two of them at the time of final submission of the case to the jury does not violate this article. <<=487>> Commonwealth v Bellino, 320 Mass 635, 71 NE2d 411. A statute extending the jurisdiction of justices of the peace to civil actions for the recovery of $ 100 or less, and requiring any party appealing to give security for the prosecution of his appeal, and for costs, is not unconstitutional as infringing on trial by jury. Hapgood v Doherty, 74 Mass (8 Gray) 373. Removal from office.--A statute which provides that certain public officials may be removed from office for cause in a proceeding before the Supreme Judicial Court complies with the provisions of this section. <<=489>> Atty. Gen. v Pelletier, 240 Mass 264, 134 NE 407. Removal of a district attorney.--No trial by jury is required in a proceeding to remove a district attorney under the Constitution. The constitutional right to a trial by jury cannot be affected by mere forms of procedure. <<=490>> Stockbridge v Mixer, 215 Mass 415, 102 NE 646; <<=491>> Boyd v United States, 116 US 616, 6 S Ct 524, 29 L Ed 746. Disbarment.--A proceeding for disciplinary action against an attorney at law tried before a court without a jury is not violative of the defendant's rights under this section. <<=492>> Re Ulmer, 268 Mass 373, 167 NE 749. It has been held that "offence" as used in a constitution is the equivalent of crime. <<=493>> Atty. Gen. v Pelletier, 240 Mass 264, 134 NE 407. Qualification of jurors.--The legislature has constitutional authority to provide that mere inhabitancy in a town or county shall not disqualify one from sitting as a juror to try a prisoner for unlawfully obtaining money from the treasury of the town or county. <<=494>> Commonwealth v Brown, 150 Mass 334, 23 NE 98, error dismd <<=495>> 144 US 573, 36 L Ed 546, 12 S Ct 757. Right of appeal from justice.--A statute, which authorizes a single magistrate to try and pass sentence in a criminal case, but gives the defendant an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the requirement of giving bail for his appearance there, or, in default of such bail, being committed to jail, is not unconstitutional as impairing the right of trial by jury. Jones v Robbins, 74 Mass (8 Gray) 329. Conduct of juror.--Denial of supplementary motion for new trial supported by undisputed affidavit that before trial, juror, when asked if he was going to serve in defendants' case, replied, "Damn them, they ought to hang anyway," held not error as violative of defendants' rights under this article or Const US Amend 14. <<=497>> Commonwealth v Sacco, 255 Mass 369, 151 NE 839. Waiver of jury trial.--The right to trial by jury guaranteed by this and article 15, is a privilege which the defendant may waive for reasons satisfactory to himself. <<=498>> Commonwealth v Rowe, 257 Mass 172, 153 NE 537, 48 ALR 762. If a person convicted before a justice of the peace neglects to enter and prosecute his appeal, he waives his right of a trial by jury. Commonwealth v Whitney, 108 Mass 5. Conviction on plea of guilty.--A law that subjects a person to any infamous punishment upon his plea of guilty is not a violation of this provision of the Constitution. Commonwealth v Chiovaro, 129 Mass 489. Directed verdict.--Only where there is no issue of fact for the jury, because of an agreement of all the facts material to the proof of the crime charged, can a judge properly direct a verdict of guilty. <<=501>> Commonwealth v Moniz, 336 Mass 178, 143 NE2d 196. Abatement of building used for prostitution.--A statute conferring jurisdiction in equity to abate by injunction as a common nuisance any building used for prostitution, etc., was not in violation of this article. <<=502>> Carleton v Rugg, 149 Mass 550, 22 NE 55, 5 LRA 193. A statute authorizing a city to construct sidewalks and assess the costs against abutting owners did not contravene this article. Chapin v Worcester, 124 Mass 464. A statute giving justices of juvenile offenders exclusive jurisdiction of offenses punishable by imprisonment in the state prison was held unconstitutional, see Nolan's Case, 122 Mass 330. A statute with reference to proceedings in contempt for violation of an injunction was held unconstitutional in <<=505>> Walton Lunch Co. v Kearney, 236 Mass 310, 128 NE 429. Article does not guarantee jury trial of all issues arising prior to or after trial.--Under the instant article, due process of law does not require that every issue of fact raised prior to or after the completion of a criminal trial be heard by a jury but the defendant is entitled to a jury trial only on those issues raised by the indictment and the pleadings thereto, nor is it true that the instant article does not differentiate between stages of a legal proceeding, the requirements before trial being different from those during trial, and trial by jury being subject to reasonable regulation by the <<=506>> Legislature. Commonwealth v L'Italine (1967) 352 Mass 424, 226 NE2d 192, cert den <<=507>> 389 US 962, 19 L Ed 2d 374, 88 S Ct 347. Article does not require jury trial on issue of voluntariness of plea of guilty.--Where, in a criminal case, the defendant enters a plea of guilty and later seeks to vacate the plea on the ground that it was not voluntarily made, the issue of the voluntariness of the plea was not required by the instant article to be tried by a jury since it was not an issue arising under the indictment and pleadings thereto, but such issue was for the court to determine, and once the court had determined that the plea was voluntarily made, the plea constituted a waiver of a jury trial on the merits of the indictment and left no other issues requiring determination by a jury. <<=508>> Commonwealth v L'Italien (1967) 352 Mass 424, 226 NE2d 192, cert den <<=509>> 389 US 962, 19 L Ed 2d 374, 88 S Ct 347. No right to jury trial on question whether unauthorized persons were in grand jury room.--Both Massachusetts Constitution, Declaration of Rights, Art 12 and c. 278 @ 2 which is declaratory of the rights secured by Art. 12, guarantee to the defendant in a criminal case a right to trial by jury only on issues of fact which arise under the indictment and the pleadings responsive thereto, which issues determine his guilt or innocence, and neither Art. 12 nor c. 278, @ 2 guarantee such right to a jury trial on pretrial matters such as an issue, in connection with a motion to dismiss indictments, whether an authorized person was in the grand jury room during the proceedings which gave rise to the indictments. <<=510>> Commonwealth v Brady (1970) 357 Mass 213, 257 NE2d 465. Conviction on plea of guilty--In a prosecution upon an indictment for first degree murder, there was no constitutional error in accepting a plea of guilty to the reduced charge of second degree murder given with a protestation of innocence, where it appeared that the defendant had intelligently concluded upon the advice of competent counsel that his interests required entry of a guilty plea and the record contained strong evidence of actual guilt, the fact that the defendant would not have pleaded guilty except to avoid a possible death penalty upon a jury conviction of first degree murder not necessarily demonstrating that the plea was not the product of a free and rational choice. <<=511>> North Carolina v Alford (1970) 400 US 25, 27 L Ed 2d 162, 91 S Ct 160, 56 Ohio Ops 2d 85. Constitutionality of proposed legislation providing for trial by jury of six in certain cases.--In <<=512>> Opinion of Justices (1971) 360 Mass 877, 271 NE2d 335, the court was of the opinion that proposed legislation which provided as to criminal cases subject to trial in district courts where the defendant has a constitutional right to a jury trial that such trial be by a jury of six members in the district court rather than by a jury of 12 in the Superior Court would not be unconstitutional as violating Massachusetts Constitution, Declaration of Rights, Art. 12. Instant Article guarantees the right of a defendant in a criminal case to be tried by a jury.--<<=513>> Commonwealth v Thomas (1971) 359 Mass 386, 269 NE2d 277. History of jury trial provision.--For a summary of the history of the provision of the instant article relative to trial by jury, see <<=514>> Opinion of Justices (1971) 360 Mass 877, 271 NE2d 335. Two-tier court system for criminal trials satisfies jury trial requirements of <<=515>> Article 12 of Declaration of Rights of Massachusetts Constitution and Sixth Amendment to United States Constitution. Whitmarsh v Commonwealth (1974) 366 Mass 212, 316 NE2d 610, app dismd <<=516>> 421 US 957, 44 L Ed 2d 446, 95 S Ct 1945. Jury trial not required for revocation of driver's license after conviction in District Court of operating under influence of intoxicating liquor, in that judge's determination of facts provides all necessary elements of due process. <<=517>> Boyle v Registrar of Motor Vehicles (1975) 368 Mass 141, 331 NE2d 52. Challenge to jury array on basis of systematic exclusion of certain groups must be made prior to commencement of trial and before jury is impaneled. <<=518>> Commonwealth v Underwood (1975, Mass App) 1975 Adv Sheets 1215, 335 NE2d 915. Provision for civil penalty of up to $ 1,000 for violation of proposed law requiring financial disclosures by public officials and employees and candidates for public office does not violate constitutional right to jury trial or conflict with principle of "separation of powers." <<=519>> Opinion of Justices to Senate (1978, Mass) 1978 Adv Sheets 1116, 376 NE2d 810. Failure of trial judge to allow hearing on issue whether use of peremptory challenges by prosecution was designed to exclude persons from jury on basis of race deprived defendant of constitutionally protected right to trial by jury fairly drawn from community. <<=520>> Commonwealth v Soares (1979, Mass) 1979 Adv Sheets 593, 387 NE2d 499, cert den <<=521>> 444 US 881, 62 L Ed 2d 110, 100 S Ct 170. Prosecution, by peremptorily challenging 12 of 13 black members of venire who were available to be seated as jurors, or 92 percent of available black jurors, impermissibly excluded identifiable segment of community from jury; murder conviction reversed for new trial. <<=522>> Commonwealth v Soares (1979, Mass) 1979 Adv Sheets 593, 387 NE2d 499, cert den <<=523>> 444 US 881, 62 L Ed 2d 110, 100 S Ct 170. Judge was not required to interrogate prospective jurors, as requested by defendant, for purpose of determining racial bias merely because defendant was a black of racially-mixed parentage and victims were white. <<=524>> Commonwealth v Yancee (1979, Mass App) 1979 Adv Sheets 1525, 391 NE2d 1254. Defendant's challenge to grand jury and petit jury selection process, based on underrepresentation of persons between ages of 18 and 34 on municipal jury lists failed, because classification based on age alone was not "identifiable group" for equal protection purposes or "distinctive group" for Sixth Amendment purposes. <<=525>> Commonwealth v Bastarache (1980, Mass) 1980 Adv Sheets 2465, 414 NE2d 984, superseding (Mass App) <<=526>> 1980 Adv Sheets 1729, 409 NE2d 796. Defendant did not successfully challenge under State Constitution grand jury or petit jury selection process because of alleged underrepresentation on jury lists of age group between 18 and 35. <<=527>> Commonwealth v Bastarache (1980, Mass) 1980 Adv Sheets 2465, 414 NE2d 984, superseding (Mass App) <<=528>> 1980 Adv Sheets 1729, 409 NE2d 796. Proof required in Sixth Amendment claim that petit jury was not drawn from fair cross-section of community is showing that (1) group allegedly discriminated against is "distinctive" group in community; (2) group is not fairly and reasonably represented in venires in relation to its proportion of community; and (3) underrepresentation is due to systematic exclusion of group in jury selection process. <<=529>> Commonwealth v Bastarache (1980, Mass) 1980 Adv Sheets 2465, 414 NE2d 984, superseding (Mass App) <<=530>> 1980 Adv Sheets 1729, 409 NE2d 796. In armed robbery and murder prosecution of black defendant, Commonwealth's use of peremptory challenges to exclude four nonwhite persons from jury was not improper. <<=531>> Commonwealth v Robinson (1981, Mass) 1981 Adv Sheets 4, 415 NE2d 805. Prosecutor's use, in armed robbery prosecution of black defendant, of peremptory challenge to exclude all three of three available blacks from membership in jury violated defendant's right to trial by jury fairly drawn from community. <<=532>> Commonwealth v Brown (1981, Mass App) 1981 Adv Sheets 238, 416 NE2d 218. Fact that defendant and victim are of same race and that challenged jurors are of different race does not detract from Commonwealth's right to be protected from improper use of preemptory challenges by defendants. <<=533>> Commonwealth v Little (1981, Mass) 1981 Adv Sheets 1818, 424 NE2d 504. Judge's disallowance of defendant's preemptory challenges to exclude men from petit jury was proper. <<=534>> Commonwealth v Reid (1981, Mass) 1981 Adv Sheets 1803, 424 NE2d 495. Right to trial by jury is guaranteed where severable portion of statutory remedy is totally punitive. <<=535>> Commonwealth v One 1972 Chevrolet Van (1982) 385 Mass 198, 431 NE2d 209. Forfeiture is punitive because it results in total loss of property. <<=536>> Commonwealth v One 1972 Chevrolet Van (1982) 385 Mass 198, 431 NE2d 209. Owner of motor vehicle is entitled to trial by jury in proceeding for forfeiture of motor vehicle used in unlawful distribution of controlled substance. <<=537>> Commonwealth v One 1972 Chevrolet Van (1982) 385 Mass 198, 431 NE2d 209. There is no right to trial by jury for actions cognizable under GL c 93 <<=538>> A. Nei v Burley (1983) 388 Mass 307, 446 NE2d 674. Judge's questioning of prospective jurors about whether race of witness would affect juror's view of credibility of witness and his comments about nature of interracial unnatural rape case satisfied obligation under GL c 234 @ 28. <<=539>> Commonwealth v Sowers (1983) 388 Mass 207, 446 NE2d 51, approving (1982) <<=540>> 13 Mass App 975, 432 NE2d 539. Prosecutor's pre-emptory challenges of 19 of 23 prospective jurors with apparently French surnames, in trial of 3 French Canadian defendants, was attempt to exclude discrete group from jury and was improper, entitling defendant to new trial. <<=541>> Commonwealth v Gagnon (1983) 16 Mass App 110, 449 NE2d 686. Judge's erroneous denial of right to exercise proper peremptory challenge is reversible error without showing of prejudice. <<=542>> Commonwealth v Wood (1983) 389 Mass 552, 451 NE2d 714. Purpose of properly exercised peremptory challenge is to aid constitutional right to fear and impartial jury. <<=543>> Commonwealth v Wood (1983) 389 Mass 552, 451 NE2d 714. Right to unfettered exercise of peremptory challenges is tempered by <<=544>> Article 12 of Declaration of Rights. Commonwealth v Wood (1983) 389 Mass 552, 451 NE2d 714. Defendant's right to jury trial not violated because jury took only 10 minutes to return guilty verdicts. <<=545>> Commonwealth v Doyle (1984) 392 Mass 23, 465 NE2d 1192. Groups which Article 12 of Declaration of Rights protects and which cannot form basis for juror exclusion are same classes referred to in <<=546>> Article 1 of Declaration of Rights. Commonwealth v Aponte (1984) 391 Mass 494, 462 NE2d 284. Article 12 of Declaration of Rights safeguards defendants against systematic, albeit unintentional, discrimination against protected class resulting from nonrandom jury selection system. <<=547>> Commonwealth v Aponte (1984) 391 Mass 494, 462 NE2d 284. Since sentence given to immunized witness who refused to testify was coercive and not punitive, it was civil contempt as to which defendant had no constitutional right to jury trial. <<=548>> Commonwealth v Raczkowski (1985) 19 Mass App 991, 475 NE2d 417. Trial judge's error, in denying defendant's challenge for cause of juror who was blind in case in which identification of evidence was of major importance, required reversal of conviction without showing of actual prejudice. <<=549>> Commonwealth v Susi (1985) 394 Mass 784, 477 NE2d 995. Sentence to state prison is infamous punishment. <<=550>> Brown v Commissioner of Correction (1985) 394 Mass 89, 474 NE2d 1059. Although judge made now specific inquiry of venire as to relationship, interest, opinion, bias, or prejudice as, required by MRCrimP, Rule 20(b)(1), defendant's failure to object was a waiver of irregularity. <<=551>> Commonwealth v Fudge (1985) 20 Mass App 382, 481 NE2d 199. Article 12 of Declaration of Rights does not afford right to trial by jury de medietate linguae or jury with 6 of alien's own countrymen. <<=552>> Commonwealth v Acen (1986) 396 Mass 472, 487 NE2d 189. Requirements that jurors speak and understand English and that jury be composed wholly of United States citizens does not violate <<=553>> Article 12 of the Declaration of Rights. Commonwealth v Acen (1986) 396 Mass 472, 487 NE2d 189. Procedure giving prima facie effect in Superior Court to District Court's small claims decision, without affording defendant opportunity to claim report in Appellate Division of District Courts, does not deny defendant right to jury trial or due process of law, because defendant can remove action to regular docket of District Court with approval of judge; however, defendant made no such motion to remove case. <<=554>> Daum v Delta Airlines, Inc. (1986) 396 Mass 1013, 487 NE2d 853. Use of peremptory challenge is constitutional violation when jurors are excluded on basis of membership in particular, defined groupings. <<=555>> Commonwealth v Samuel (1986) 398 Mass 93, 495 NE2d 279. Judge erred in conducting voir dire in her lobby without presence of defendant, at which jurors were questioned individually about newspaper article, but error was harmless because judge dismissed jurors who had read article. <<=556>> Commonwealth v Hicks (1986) 22 Mass App 139, 491 NE2d 651. Jurors' exposure to media reports of possible jury tampering during trial did not require mistrial. <<=557>> Commonwealth v Sinnott (1987) 399 Mass 863, 507 NE2d 699. Defendant was not denied trial by impartial jury because prosecutor challenged peremptorily three black jurors, where two members of seated jury were black and two more black persons were in venire. <<=558>> Commonwealth v Young (1987) 401 Mass 390, 517 NE2d 130. Principles stated in <<=559>> Commonwealth v Soares (1979) 377 Mass 461, 387 NE2d 409, do not guaranty against fortuitous event resulting in excusal of empanelled minority jurors prior to deliberation. <<=560>> Commonwealth v Young (1987) 401 Mass 390, 517 NE2d 130. Guarantee of speedy trial does not apply to appellate process. <<=561>> Commonwealth v Hudson (1989) 404 Mass 282, 535 NE2d 208. There is no fundamental right to peremptory challenges under federal or Massachusetts constitutional law. <<=562>> Commonwealth v Freiberg (1989) 405 Mass 282, 540 NE2d 1289. Trial judge's requiring defendant to exercise peremptory challenges individually as each juror was found indifferent, instead of after full jury had been selected, was permissible under Rule 6 of Superior Court Rules (which does not apply to first-degree murder trials), and did not deprive defendant of equal protection of law, due process of law, or right to trial by impartial jury. <<=563>> Commonwealth v Freiberg (1989) 405 Mass 282, 540 NE2d 1289. ALM GL c 231 @ 85K, limiting liability of charitable institution to $ 20,000, does not violate constitutional rights of equal protection of law or substantive due process of law. <<=564>> English v New England Medical Center, Inc. (1989) 405 Mass 423, 541 NE2d 329. Judge has authority to assess relevance of proffered evidence and to exclude evidence that is of marginal relevance. <<=565>> Commonwealth v Merola (1989) 405 Mass 529, 542 NE2d 249. Municipal Court judge did not err in denying defendants' motion to transfer 2 small claims actions to regular civil docket, since defendant had discovery available under Rule 5 of Uniform Small Claims Rules, which judge ordered be completed. <<=566>> Lyons v Kinney System, Inc. (1989) 27 Mass App 386, 538 NE2d 316. 8. Proceedings before grand jury Objection that guilt of criminal defendants established by news releases may be raised by plea in abatement.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277 @ 5 in that law officers issued news releases, etc. indicating the guilt of the defendants, prior to the Grand Jury proceedings, thus convincing the grand jury of the guilt of the defendants, were objections in abatement which could properly be raised by a plea in abatement, but from a viewpoint of substance, such a defense will not be sustained. <<=567>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=568>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that guilt of criminal defendants established by news releases may not be raised by plea in bar.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277 @ 5 in that law officers issued news releases, etc. indicating the guilt of the defendants, prior to the Grand Jury proceedings, thus convincing the grand jurors of the guilt of the defendants, could not be raised by a plea in bar, the office of a plea in bar being to set up a ground not open under a plea of not guilty, which is an absolute defense, such as the defenses of former acquittal, former conviction, pardon and the statute of limitation. <<=569>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=570>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that guilt of criminal defendants established by news releases may not be raised by motion to quash.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277 @ 5 in that law officers issued news releases, etc. indicating the guilt of the defendants, prior to the Grand Jury proceedings, thus convincing the grand jurors of the guilt of the defendants, were not objections for formal defects apparent on the face of the indictment, and hence they could not be raised by a motion to quash under GL c 278, @ 17. <<=571>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=572>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Presence of police officer in grand jury room.--A statute, providing that the grand jury, upon request of the district attorney or otherwise, may permit to be present at the examination of witnesses in a case before them a police officer or other person who has prepared such case, would be unconstitutional. <<=573>> Opinion of Justices, 232 Mass 601, 123 NE 100. See also <<=574>> Re Lebowitch, 235 Mass 357, 126 NE 831. Objection that unauthorized persons were in Grand Jury room may be raised by plea in abatement.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277, @ 5 in that unauthorized persons were present in the Grand Jury room during the proceedings and deliberations of the Grand Jury returning the indictment raised a defense in abatement which could properly be raised by a plea in abatement, but the court could, under c 277 @ 74, refuse to receive the plea in abatement until its truth had been proved by affidavit or other evidence. <<=575>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=576>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that unauthorized persons were in Grand Jury room may not be raised by plea in bar.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277, @ 5 in that unauthorized persons were present in the Grand Jury room during the proceedings and deliberations of the Grand Jury returning the indictment are not the type of objections which may be set up by a plea in bar. <<=577>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=578>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that unauthorized persons were in Grand Jury room may not be raised by motion to quash.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277, @ 5 in that unauthorized persons were present in the Grand Jury room during the proceedings and deliberations of the Grand Jury returning the indictment were not objections for formal defects apparent on the face of the indictment, and hence they could not be raised by a motion to quash under GL c 278, @ 17. <<=579>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=580>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that secrecy of grand jury proceedings violated by news releases may be raised by plea in abatement.--Objections to an indictment that was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277 @ 5 in that the secrecy of the Grand Jury proceedings was violated by the issuance of news releases relating to the proceedings were objections in abatement which were properly raised by a plea in abatement, but the issuance of such news releases does not, under Massachusetts law, constitute a violation of the secrecy of the Grand Jury room so as to require an abatement of the indictment. <<=581>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=582>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that secrecy of Grand Jury proceedings violated by news releases may not be set up by plea in bar.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277, @ 5 in that the secrecy of the Grand Jury proceedings was violated by the issuance of news releases relating to the proceedings are not the type of objections which may be raised by a plea in bar. <<=583>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=584>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. Objection that secrecy of Grand Jury proceedings violated by news releases may not be set up by motion to quash.--Objections to an indictment that it was returned in violation of Article 12 of the Declaration of Rights of the Massachusetts Constitution and of GL c 277 @ 5 in that the secrecy of the Grand Jury proceedings was violated by the issuance of news releases relating to the proceedings were not objections for formal defects apparent on the face of the indictment, and hence they could not be raised by a motion to quash under GL c 278, @ 17. <<=585>> Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den <<=586>> 361 US 895, 4 L Ed 2d 152, 80 S Ct 200. An examination of witnesses by the grand jury in the presence of other witnesses or of bystanders constitutes a violation of the instant article but the presence of assistants to the prosecutor does not violate the grand jury proceedings guaranteed by the article. <<=587>> Commonwealth v Schnackenberg (1969) 356 Mass 65, 248 NE2d 273. "John Doe" indictment without further description of defendant unconstitutional.--A "John Doe" indictment which does not contain words of description having particular reference to the person whom the Commonwealth seeks to convict negates the constitutional right of every citizen to be free from accusations and trial before probable cause is established against him by a grand jury, and the insertion of the defendant's true name on the record under the provisions of GL C 277 @ 19 can only be accomplished when there is a warrantable inference from the indictment's description of the accused, together with proof of the proceedings before the grand jury, that the grand jury indicted the defendant. <<=588>> Connor v Commonwealth (1973) 363 Mass 572, 296 NE2d 172 (<<=589>> Ovrlg Commonwealth v Gedzium, 259 Mass 453, 156 NE 890; <<=590>> Commonwealth v Doherty (1967) 353 Mass 197, 229 NE2d 267, cert den <<=591>> 390 US 982, 19 L Ed 2d 1280, 88 S Ct 1106 and (ovrld on other grounds <<=592>> Commonwealth v Stewart 365 Mass 99, 309 NE2d 470) as stated in <<=593>> Commonwealth v De Christoforo (Mass) 1976 Adv Sheets 2188, 353 NE2d 769). Proposed legislation authorizing presence of counsel for witness at grand jury proceedings does not violate <<=594>> Article 12 of Declaration of Rights. Opinion of Justices to Governor (1977, Mass) 1977 Adv Sheets 2507, 371 NE2d 422. Equal protection challenge to selection of grand jury involves showing by defendant that procedure employed resulted in substantial underrepresentation of his race or of an identifiable group to which he belongs, by establishing (1) that group is a recognizable, distinct class, singled out for different treatment under the laws; (2) that there was disproportionate underrepresentation over significant period of time; and (3) statistics supporting presumption of discrimination; on such a showing, burden shifts to State to rebut inference of intentional discrimination. <<=595>> Commonwealth v Bastarache (1980, Mass) 1980 Adv Sheets 2465, 414 NE2d 984, superseding (Mass App) <<=596>> 1980 Adv Sheets 1729, 409 NE2d 796. Exclusion of residents of Athol from grand jury which indicted defendant for offenses committed in Athol did not violate equal protection. <<=597>> Commonwealth v Duteau (1981, Mass) 1981 Adv Sheets 1881, 424 NE2d 1119. Hispanic defendants had right to have prospective grand jurors selected by process which did not systematically discriminate against their protected class, to have grand jury venire which represented fair cross-section of community, and to jury selection procedure which precluded possibility of even unintentional exclusion of prospective jurors based on national origin. <<=598>> Commonwealth v Aponte (1984) 391 Mass 494, 462 NE2d 284. Judge correctly dismissed indictments against Hispanic defendants because of unintentional but systematic underrepresentation of Hispanic persons on grand jury in Essex County (321 of 328 persons summoned for grand jury between 1976 and 1981 were non-Hispanic and chance of 3 of other 7 being Hispanic were .0003). <<=599>> Commonwealth v Aponte (1984) 391 Mass 494, 462 NE2d 284. Use of grand jury to obtain order of immunity for witness was not proper. <<=600>> Petition of District Attorney for Plymouth Dist. (1984) 391 Mass 723, 464 NE2d 62. Commonwealth did not follow prescribed procedure for seeking immunity, where it summoned witness before grand jury not investigating any crime listed in GL c 233 @ 20D for sole purpose of determining whether witness would assert Fifth Amendment privilege and refuse to testify concerning victim's death. <<=601>> Petition of District Attorney for Plymouth Dist. (1984) 391 Mass 723, 464 NE2d 62. Article 12 of Massachusetts Declaration of Rights prohibits confinement in state prison of prisoner who has not been indicted and who has not waived indictment. <<=602>> Brown v Commissioner of Correction (1985) 394 Mass 89, 474 NE2d 1059. Grant of immunity to witness and order that he tesify before grand jury did not constitute unjustifiable invasion of constitutional right to privacy. <<=603>> Petition of District Attorney for Plymouth Dist. (1985) 395 Mass 1005, 479 NE2d 1370. Securing of grand jury indictments against defendant after he exercised his right to first-instance jury trial in District Court was not prosecutorial vindictiveness and did not warrant dismissal of indictments. <<=604>> Commonwealth v McGovern (1986) 397 Mass 863, 494 NE2d 1298. Although police detective made misrepresentation to grand jury (one as to cause of victim's death, one as to presence of semen in victim's vagina, and one as to presence of cigarette lighter in area of victim's body), these statements were not shown to have been made intentionally or negligently; motion to dismiss indictment correctly denied. <<=605>> Commonwealth v Mayfield (1986) 398 Mass 615, 500 NE2d 774. Right to grand jury indictment as to serious crime is constitutionally based. <<=606>> Commonwealth v Mayfield (1986) 398 Mass 615, 500 NE2d 774. For indictment to be dismissed because of false or deceptive evidence presented to grand jury, two other elements must be shown: (1) such evidence was given to grand jury knowingly or recklessly and for purpose of obtaining indictment, and (2) such evidence probably influenced grand jury's determination to hand up indictment. <<=607>> Commonwealth v Mayfield (1986) 398 Mass 615, 500 NE2d 774. Standard for determining whether grand jury bias entitled defendant to relief is more strict than that applied to bias of petit jury. <<=608>> Commonwealth v Champagne (1987) 399 Mass 80, 503 NE2d 7. Witness' prejudicial statement to grand jury that inmates under investigation had been suspected of attacks on other prisoners in past would not have made difference in grand jury's determination to indict. <<=609>> Commonwealth v Champagne (1987) 399 Mass 80, 503 NE2d 7. Defendant's claim concerning presentation of false evidence to grand jury should be presented timely. <<=610>> Commonwealth v Champagne (1987) 399 Mass 80, 503 NE2d 7. Proceeding before grand jury is not adversary judicial proceeding, but is investigatory and accusatory only. <<=611>> Commonwealth v Griffin (1989) 404 Mass 372, 535 NE2d 594. Person before grand jury has no constitutional right to counsel but does have statutory right to consult with counsel. <<=612>> Commonwealth v Griffin (1989) 404 Mass 372, 535 NE2d 594. Prosecutor's statement to grand jury that test for level of alcohol in defendant's blood was not relevant to murder indictment was technically correct and did not mislead grand jury in returning indictment for first degree murder. <<=613>> Commonwealth v Kelcourse (1989) 404 Mass 466, 535 NE2d 1272. Racetrack pari-mutuel manager properly invoked privilege against self-incrimination at grand jury proceedings with respect to possible illegal practices and activities at racetrack; adjudication of contempt reversed. Re Proceedings before <<=614>> Special Grand Jury (1989) 27 Mass App 693, 542 NE2d 316. 9. Miscellaneous statutes and proceedings Disbarment proceedings.--<<=615>> In Re Ulmer, 268 Mass 373, 167 NE 749, it was held, in a disbarment proceeding, that this and articles I, X, XV and XXIX of the declaration of rights had not been violated. Instruction as to a canon of ethics.--At a disbarment hearing, it was proper for the court to refuse to rule that a canon of the Massachusetts bar association providing that "solicitation of business by circulars or advertisements or by personal communications or interviews not warranted by personal relations is unprofessional" violates this article of the declaration of rights of the commonwealth and the fourteenth amendment to the <<=616>> Federal Constitution. Re Cohen, 261 Mass 484, 159 NE 495, 55 ALR 1309. Prohibition of practice of optometry in commercial establishment is constitutional.--A regulation promulgated by the Board of Registration in Optometry providing that no optometrist should conduct the practice of his profession in or on premises where commercial or mercantile establishment is the primary business being conducted is closely related to regulations prohibiting advertising by optometrists and is directed to the same end, namely the raising of professional standards in the practice of optometry, and such a regulation is not unconstitutional as being in violation of <<=617>> Articles 1, 10, and 12 of the Declaration of Rights of the Constitution of the Commonwealth. Silverman v Board of Registration in Optometry, 344 Mass 129, 181 NE2d 540. Rights not enfringed under Uniform Reciprocal Enforcement of Support Act.--As the proceedings under the Uniform Reciprocal Enforcement of Support Act, GL (ter Ed) c 273A are civil and not criminal, requests for rulings relating to rights guaranteed by this article were properly denied in <<=618>> Phillips v Phillips, 336 Mass 561, 146 NE2d 919. Miscellaneous decisions holding certain acts constitutional.--The following statutes were found not to be in violation of this article-- --A statute regulating the transportation of intoxicating liquor into cities and towns. <<=619>> Commonwealth v Intoxicating Liquors, 172 Mass 311, 52 NE 389. --A statute relating to suits to quiet title. <<=620>> Loring v Hiddreth, 170 Mass 328, 49 NE 652, 40 LRA 127. --A statute relating to banks that failed to comply with their charter provisions. Commonwealth v Farmers', etc., Bank, 38 Mass (21 Pick) 542. --A statute relating to preferences to citizens in construction of public works. <<=622>> Lee v Lynn, 223 Mass 109, 111 NE 700. --A statute relating to payments for necessaries by a debtor. <<=623>> Brown's Case, 173 Mass 498, 53 NE 998. --A statute relating to registration and confirmation of title to land. <<=624>> Tyler v Court of Registration, 175 Mass 71, 55 NE 812, 51 LRA 433. --GL c 110A, @ 3(a). <<=625>> Kneeland v Emerton, 280 Mass 371, 183 NE 155, 87 ALR 1, followed in <<=626>> Commonwealth v National City Co. 280 Mass 439, 183 NE 165. --GL c 112, @ 73<<=627>> A. Commonwealth v Ferris, 305 Mass 233, 25 NE2d 378. --GL c 94, @ 295<<=628>> C. Commonwealth v Slome, 321 Mass 713, 75 NE2d 517. Regulations relative to conduct of business of laundromat not unconstitutional. --See <<=629>> Anton's of Reading, Inc. v Reading, 346 Mass 575, 195 NE2d 80. 1953, c 645 (affecting GL c 123, @ 113) does not violate this Article. Dubois, petitioner, <<=630>> 331 Mass 575, 120 NE2d 920. A statute regulating advertising does not unreasonably deprive the advertiser of liberty and property, for reasons of public policy may require the prohibition of advertising to sell merchandise, the actual sale of which is not forbidden. <<=631>> Commonwealth v Ferris, 305 Mass 233, 25 NE2d 378. Statutes held to be invalid.--The statute with reference to the manufacture and sale of intoxicating liquors was held unconstitutional, in Fisher v McGirr, 67 Mass (1 Gray) 1. Proposed refund of surcharges on demerit points (G. L. c. 90A) already paid in held violative of this article, in <<=633>> Opinion of the Justices, 334 Mass 711, 134 NE2d 923. Charges for materials used.--A statute that seeks to deprive operators of hairdressing schools of the right to charge for materials furnished to models is unreasonable and void. <<=634>> Mansfield Beauty Academy, Inc. v Board of Registration of Hairdressers, 326 Mass 624, 96 NE2d 145. Order of rate regulating body purportedly denying to public utility opportunity to earn fair return on its property, etc. See <<=635>> New England Tel. & Tel. Co. v. Department of Public Utilities, 331 Mass 604, 121 NE2d 896. Instant article does not give defendant absolute right to inspect probation report at time of sentencing so far as report contains information other than that relating to defendant's prior criminal record. <<=636>> Commonwealth v Martin (1969) 355 Mass 296, 244 NE2d 303. Rights of individual to practice profession are subject to licensing safeguards.--The rights of an individual to practice a profession such as medicine, which are protected by Arts. 1, 10, and 12 of the Declaration of Rights of the Massachusetts Constitution are however subject to the right of the government to safeguard public health, and statutes, such as c. 112, @ 2 relative to the licensing of physicians, which are designed to safeguard the admission of physicians to practice, do not violate such constitutional provisions. <<=637>> Fogland v Board of Registration in Medicine (1970) 357 Mass 624, 259 NE2d 780. Though denial of motion for particulars was error, it was harmless error, since defendants at all times knew that subject of larceny indictments was premiums on bail bonds. <<=638>> Commonwealth v Baker (1975) 368 Mass 58, 330 NE2d 794. Failure of G.L. c. 269 @ 10 (prior to amendment by St. 1974 c. 649 @ 2) to prescribe maximum sentences does not invalidate statute on constitutional grounds, since maximum permissible sentence is presumed to be life term. <<=639>> Commonwealth v Logan (1975) 367 Mass 655, 327 NE2d 705. Crime of committing unnatural and lascivious acts as prohibited by G.L. c. 272, @ 35 is not applicable to private, consensual conduct of adults. <<=640>> Commonwealth v Balthazar (1974) 366 Mass 298, 318 NE2d 478. Racial Imbalance Law not unconstitutional as violative of due process.--The Racial Imbalance Law is not unconstitutional as being in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution and Articles 1, 10 and 12 of the Declaration of Rights of the Massachusetts Constitution for failure to grant to a school committee a hearing on its proposed plans and the board's action thereon, a sufficient reason being that the school committee has no personal or property rights involved. <<=641>> School Committee of Boston v Board of Education (1967) 352 Mass 693, 227 NE2d 729, app dismd <<=642>> 389 US 572, 19 L Ed 2d 778, 88 S Ct 692. Department of Public Utilities' exclusion of unamortized abandoned property from rate base for purposes of establishing just and reasonable rates was reasonable and did not result in confiscatory or otherwise illegal rates. <<=643>> Fitchburg Gas & Electric Light Co. v Department of Public Utilities (1977, Mass) 1977 Adv Sheets 273, 359 NE2d 1294. Continued confinement at treatment center for sexually dangerous persons was not result of hearsay evidence improperly admitted during original commitment hearing. <<=644>> Re Thompson (1977, Mass App) 1977 Adv Sheets 491, 362 NE2d 532. Indictments charging mayor and city solicitor with conspiracy to violate competitive bidding statute (GL c 30 @ 39M) set forth with sufficient clarity unlawfulness of contemplated objectives of alleged conspiracy which would harm general public and would be seriously contrary to public interest. <<=645>> Commonwealth v Gill (1977, Mass App) 1977 Adv Sheets 581, 363 NE2d 267. Statute (St. 1977, c 365) requiring automobile insurance carriers to grant retroactive rebates to policy holders was reasonable and thus constitutional, where Legislature could rationally determine that establishment of rates set by competition among insurance companies had failed and had caused serious financial hardship for many policyholders. <<=646>> American Mfrs. Mut. Ins. Co. v Commissioner of Ins. (1978, Mass) 1978 Adv Sheets 58, 372 NE2d 520. Statutory provisions requiring judge to order closing of premises where nuisance was maintained and sale of movable property are unconstitutional, in that they contain punitive element, by confiscating property to punish for commission of crime without affording jury trial. <<=647>> Commonwealth v United Food Corp. (1978, Mass) 1978 Adv Sheets 857, 374 NE2d 1331. Court sitting without jury may issue injunction under statutory authority to bar future maintenance of nuisance on premises, such as use of premises for unlawful sexual activities. <<=648>> Commonwealth v United Food Corp. (1978, Mass) 1978 Adv Sheets 857, 374 NE2d 1331. Massachusetts statute authorizing transfer to departmental segregation unit of inmates, whose continued retention in general institution population is detrimental to institutional programs, does not confer upon individual inmates a right not to be transferred absent a showing that specified events have occurred. <<=649>> Daigle v Hall (1977, CA1 Mass) 564 F2d 884. Felony-murder rule is not violative of articles 1, 10, 12, and 26 of Declaration of Rights because of imposition of mandatory life sentence without right of release on parole. <<=650>> Commonwealth v Watkins (1978) 375 Mass 472, 379 NE2d 1040. Boston's "tow and hold" law for cars accumulating five or more unpaid parking tickets is constitutional. <<=651>> Bane v Boston (1979, Mass App) 1979 Adv Sheets 2116, 396 NE2d 155. Hearing is not required for proceeding by administrative agency which is legislative or political. <<=652>> Cast Iron Soil Pipe Institute v Board of State Examiners of Plumbers & Gas Fitters (1979, Mass App) 1979 Adv Sheets 2150, 396 NE2d 457. Court upheld as valid regulation of Outdoor Advertising Board permitting denial without hearing of application for renewal of permits which disclose on their face that sign sought to be erected or maintained does not comply with law of host municipality or with GL c 93D @ 2. <<=653>> Massachusetts Outdoor Advertising Council v Outdoor Advertising Board (1980, Mass App) 1980 Adv Sheets 1045, 405 NE2d 151. Administrative summary judgment procedure established by regulation of Outdoor Advertising Board for renewal or revocation of permits does not offend hearing requirements of GL c 30A @ 13, because it deprives applicant only of meaningless hearings. <<=654>> Massachusetts Outdoor Advertising Council v Outdoor Advertising Board (1980, Mass App) 1980 Adv Sheets 1045, 405 NE2d 151. Owner of land to be used as housing subdivision, who had rights by deed of ingress and egress over 50 foot private way across land owned by conservation foundation, had right under GL c. 187 @ 5 to install underground utility lines. <<=655>> Nantucket Conservation Foundation, Inc. v Russell Management, Inc. (1980, Mass) 1980 Adv Sheets 781, 402 NE2d 501. Act (St. 1979, c 797 @@ 10. 24) limiting remedy in abatement proceedings for fiscal year 1980 for taxpayers whose property has been disproportionately assessed to adjustment to municipal average for all taxable property rather than to average of most favorable class of property was constitutional. <<=656>> Keniston v Board of Assessors (1980, Mass) 1980 Adv Sheets 1485, 407 NE2d 1275. @ 2(4) Doyle-Flynn Amendments prohibiting payment of state Medicaid funds for abortion except as necessary to avert death of mother violate principles of equal protection of the law and due process of law. <<=657>> Moe v Secretary of Admin. & Finance (1981, Mass) 1981 Adv Sheets 464, 417 NE2d 387. Legislative restrictions on Medicaid funding for abortions not necessary to prevent mother's death impermissibly burdens constitutional right of woman to choose whether or not to have abortion. <<=658>> Moe v Secretary of Admin. & Finance (1981, Mass) 1981 Adv Sheets 464, 417 NE2d 387. There was no error in judge's ruling admitting defendant's prior convictions for assault with deadly weapon. <<=659>> Commonwealth v Jackson (1981, Mass) 1981 Adv Sheets 2196, 428 NE2d 289. Trial judge has right to exclude prior convictions in order to prevent unfairness to defendant, particularly where they are similar to crime charged and do not inherently pertain to defendant's credibility. <<=660>> Commonwealth v Jackson (1981, Mass) 1981 Adv Sheets 2196, 428 NE2d 289. Statute abrogating right to indemnity against employer is rational and does not offend due process. <<=661>> Decker v Black & Decker Mfg. Co. (1983) 389 Mass 35, 449 NE2d 641. Total prohibition by town of coin-activated electronic or mechanical amusement devices was proper exercise of town's police power, and was not (1) inconsistent with state law (GL c 140 @ 177A); (2) infringement on constitutional right of free expression; (3) constitutionally overbroad, or (4) violation of due process and equal protection guaranties. <<=662>> Marshfield Family Skateland, Inc. v Marshfield (1983) 389 Mass 436, 450 NE2d 605. Defendant arrested for drunken driving does not have constitutional right to police-administered breathalyzer or other chemical blood alcohol test, but only right that he be given reasonable opportunity to secure independent test at his request and expense. <<=663>> Commonwealth v Alano (1983) 388 Mass 871, 448 NE2d 1122, ALR4th 3090. Defendant failed to sustain burden of proving in obscenity case that there is no such thing as contemporary standards of Commonwealth with respect to patent offensiveness, and that GL c 272 @@ 29, 31 are therefore unconstitutionally vague. <<=664>> Commonwealth v United Books, Inc. (1983) 389 Mass 888, 453 NE2d 406. Proposed legislation that would impose criminal penalties for discrimination based on " in public accommodations would not be unconstitutionally vague. <<=665>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. " refers to male or female homosexuality, heterosexuality, or bisexuality. <<=666>> Opinion of Justices to Senate (1984) 390 Mass 1201, 458 NE2d 1192. Where defendant did not offer court record or certified copy of convictions in order to impeach Commonwealth's witness, judge was not required to suspend trial to allow him to obtain records when he had opportunity to do so earlier. <<=667>> Commonwealth v Puleio (1985) 394 Mass 101, 474 NE2d 1078. Guidelines promulgated by Secretary of Public Safety to govern drunk driving roadblocks proscribed arbitrary selection of vehicles to be stopped, assured safety, minimized motorist inconvenience, required advance planning and public announcement, and authorized seizures which are reasonable under <<=668>> State and Federal Constitutions. Commonwealth v Trumble (1985) 396 Mass 81, 483 NE2d 1102. Decision concerning validity of guidelines promulgated by Secretary of PUblic Safety to govern drunk driving roadblocks did not consider issues of whether, for constitutional purposes, a less intrusive but equally effective means of dealing with drunk driving problem exists, or whether use of lease restrictive means was constitutionally required. <<=669>> Commonwealth v Trumble (1985) 396 Mass 81, 483 NE2d 1102. Drunk driving roadblocks conducted by State Police on Route 116 in Town of Sunderland on July 2, 3, 1983 complied with guidelines promulgated by <<=670>> Secretary of Public Safety. Commonwealth v Trumble (1985) 396 Mass 81, 483 NE2d 1102. Judge was warranted in finding that prosecutor was surprised by defendant's announcement mid-trial that he would call 3 expert witnesses to challenge Commonwealth's proof that white powder seized from defendant's home was controlled substance and that surprise was unfairly prejudicial to Commonwealth and in refusing to allow experts to testify. <<=671>> Commonwealth v Chappee (1986) 397 Mass 508, 492 NE2d 719. Judge correctly instructed that jury should acquit if defendant reasonably and in good faith believed victim voluntarily consented to engage in sexual intercourse. <<=672>> Commonwealth v Cordeiro (1988) 401 Mass 843, 519 NE2d 1328. Judge's refusal to allow defense counsel to cross-examine 10-year old child, who allegedly was victim of rape, at voir dire hearing to determine child's competency to testify, did not violate defendant's rights to due process and fair trial. <<=673>> Commonwealth v Massey (1988) 402 Mass 453, 523 NE2d 781. Defendant's rights under Article 12 of Declaration of Rights not violated by indictment of conspiracy to violate Controlled Substances Act which did not specify violation of Act contemplated by conspiracy. <<=674>> Commonwealth v Cantres (1989) 405 Mass 238, 540 NE2d 149. Defendant who pleaded guilty to second degree murder in 1968 and was denied parole on four occasions "due to gravity of the crime" and on ground that he failed to acknowledge "sexual aspects of the crime" was not deprived of right under federal and <<=675>> Massachusetts Constitutions. Greenman v Massachusetts Parole Bd. (1989) 405 Mass 384, 540 NE2d 1309. Exception to privileged communications with social worker for confidences revealing contemplation of or commission of crime did not apply where Department of Social Service records did not reveal pattern of physical abuse by mother of her deceased son or other children and 2 incidents indicating mother might harm children were remote. <<=676>> Commonwealth v Merola (1989) 405 Mass 529, 542 NE2d 249. GL c. 265 @ 37 is patterned after Federal Criminal Civil Rights Statute, <<=677>> 18 USCS @ 242. <<=678>> Commonwealth v Stephens (1987) 25 Mass App 117, 515 NE2d 606. GL c. 265 @ 37 making criminal willful violation of civil rights of another by force or threats of force is not unconstitutionally vague and does not violate <<=679>> Article 12 of Massachusetts Declaration of Rights. Commonwealth v Stephens (1987) 25 Mass App 117, 515 NE2d 606. LEVEL 1 - 20 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS DOCUMENT IS CURRENT THROUGH OCTOBER 1, 1994 *** SUPREME JUDICIAL COURT A. RULES OF THE SUPREME JUDICIAL COURT CHAPTER THREE. ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW RULE 3:07. CANONS OF ETHICS AND DISCIPLINARY RULES REGULATING THE PRACTICE OF LAW CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDS OF THE LAW DISCIPLINARY RULES ALM Sup. Jud. Ct. Rule 3:07, DR 7-106 DR 7-106. Trial Conduct. (A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling. (B) In presenting a matter to a tribunal, a lawyer shall disclose: (1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel. (2) Unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him. (C) In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. (2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness. (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein. (5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply. (6) Engage in undignified or discourteous conduct which is degrading to a tribunal. (7) Intentionally or habitually violate any established rule of procedure or of evidence. (8) Engage in conduct manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, or against a party, witness, counsel or other person. This Disciplinary Rule does not preclude legitimate advocacy when race, sex, national origin, disability, age, or or another similar factor, is an issue in the proceeding. HISTORY: Amended, effective July 1, 1992 NOTES: EDITORIAL NOTE-- The 1992 court order, effective July 1, 1992, in subsection (C), added paragraph (8). TOTAL CLIENT-SERVICE LIBRARY REFERENCES-- 7 Am Jur 2d, Attorneys at Law @@ 60, 61. ANNOTATIONS-- Prejudicial effect of prosecutor's reference in argument to homosexual acts or tendencies of accused which are not material to his commission of offense charged. <<=1>> 54 ALR3d 897. Attorney's addressing allegedly insulting remarks to court during course of trial as contempt. <<=2>> 68 ALR3d 273. Attorney's verbal abuse of another attorney as basis for disciplinary action. <<=3>> 87 ALR3d 351. Attorney's misrepresentation to court of his state of health or other personal matter in seeking trial delay as ground for disciplinary action. <<=4>> 61 ALR4th 1216. Imposition of sanctions upon attorneys or parties for miscitation or misrepresentation of authorities. <<=5>> 63 ALR4th 1199. LEVEL 1 - 21 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS DOCUMENT IS CURRENT THROUGH OCTOBER 1, 1994 *** SUPREME JUDICIAL COURT A. RULES OF THE SUPREME JUDICIAL COURT CHAPTER THREE. ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW RULE 3:09. CODE OF JUDICIAL CONDUCT ALM Sup. Jud. Ct. Rule 3:09, Canon 3 CANON 3. A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply: (A) Adjudicative Responsibilities. (1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism. (2) A judge should maintain order and decorum in proceedings before him. (3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control. (4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application. (5) A judge should dispose promptly of the business of the court. (6) A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. (7) A judge shall permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public, subject, however, to the following limitations: (a) A judge may limit or temporarily suspend such news media coverage, if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence. (b) A judge should not permit broadcasting, televising, electronic recording, or taking photographs of hearings of motions to suppress or to dismiss or of probable cause or voir dire hearings. (c) During the conduct of a jury trial, a judge should not permit recording or close-up photographing or televising of bench conferences, conferences between counsel, or conferences between counsel and client. Frontal and close-up photography of the jury panel should not usually be permitted. (d) A judge should require that all equipment is of a type and positioned and operated in a manner which does not detract from the dignity and decorum of the proceeding. Only one stationary, mechanically silent, video or motion picture camera, and, in addition, one silent still camera should be permitted in the courtroom at one time. The equipment and its operator usually should be in place and remain so as long as the court is in session, and movement should be kept to a minimum, particularly, in jury trials. (e) A judge should require reasonable advance notice from the news media of their request to be present to broadcast, to televise, to record electronically, or to take photographs at a particular session. In the absence of such notice, the judge may refuse to admit them. (f) A judge may permit, when authorized by rules of court, the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, for other purposes of judicial administration, or for the preparation of materials for educational purposes. (g) A judge should not make an exclusive arrangement with any person or organization for news media coverage of proceedings in the courtroom. (B) Administrative Responsibilities. (1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials. (2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him. (3) If a judge shall become aware of unprofessional conduct by a judge or a lawyer (a) he shall in the instance of a judge report his knowledge to the Chief Justices of this court and of the court of which the judge in question is a member, and (b) in the instance of a lawyer, he shall initiate appropriate investigative or disciplinary measures. (4) A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered. (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. (6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, or socioeconomic status, against parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, or socioeconomic status, or similar factors, are issues in the proceeding. (C) Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) he served as lawyer in the matter of controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial or other property interest in the subject matter in controversy or in a party to the proceeding, which interest could be substantially affected by the outcome of the proceedings; (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person; (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding. (2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (3) For the purposes of this section: (a) the degree of relationship is calculated according to the civil law system; (b) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian; (c) "financial interest" means ownership of a substantial legal or equitable interest, or a relationship as director, advisor, or other active participant in the affairs of a party, except that: (i) ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund; (ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization; (iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) ownership of government securities or of less than one-hundredth of one per cent of the total shares issued and outstanding of any corporation or of its parent or subsidiary corporations is a "financial interest" in the issuer of such securities or its parent or subsidiaries only if the outcome of the proceeding could substantially affect the value of the securities. (D) Remittal of Disqualification. A judge disqualified by the terms of Canon 3 (C)(1)(c) or Canon 3 (C)(1)(d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the lawyers, after consultation with their clients independently of the judge's participation, agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all lawyers, shall be incorporated in the record of the proceeding. HISTORY: Amended, effective Feb 11, 1992 NOTES: EDITORIAL NOTE-- The 1983 court order effective January 1, 1983, amended Canon 3(A)(7). The 1991 court order, effective January 1, 1992, in subsection (B), added paragraphs (5) and (6). The 1992 court order, effective February 11, 1992, in Canon 3, subsection (A), paragraph (7), added subparagraph (g). FEDERAL ASPECTS-- 8 Federal Procedure L Ed, Courts and Judicial System @@ 20:38-20:111. 1 Federal Procedural Forms, Actions in District Court @@ 1:351-1:1360. TOTAL CLIENT-SERVICE LIBRARY REFERENCES-- 46 Am Jur 2d, Judges @@ 50-61, 94 et seq. 15 Am Jur Pl & Pr Forms (Rev), Judges, Forms 21 et seq. 20 Am Jur Proof of Facts 223, Religious Prejudice. ANNOTATIONS-- Interest of judge in an official or representative capacity, or relationship of judge to one who is a party in an official or representative capacity, as disqualification. <<=1>> 10 ALR2d 1307. Relationship to attorney as disqualifying judge. <<=2>> 50 ALR2d 143. Disqualification of judge because of his or another's holding or owning stock in corporation involved in litigation. <<=3>> 25 ALR3d 1331. Gestures or facial expressions of trial judge in criminal case, indicating approval or disapproval, belief or disbelief, as ground for relief. <<=4>> 49 ALR3d 1186. Disqualification of judge by state, in criminal case, for bias or prejudice. <<=5>> 68 ALR3d 509. Membership in fraternal or social club or order affected by a case as ground for disqualification of judge. <<=6>> 75 ALR3d 1021. Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. <<=7>> 16 ALR4th 550. Disqualification of judge because of assault or threat against him by party or person associated with party. <<=8>> 25 ALR4th 923. Propriety and prejudicial effect of federal judge's expressing to jury his opinion as to defendant's guilt in criminal case. <<=9>> 7 ALR Fed 377. Construction and application of <<=10>> 28 USCS @ 455(a) providing for disqualification of justice, judge, magistrate, or referee in bankruptcy in any proceeding in which his impartiality might reasonably be questioned. <<=11>> 40 ALR Fed 954. Judge's membership in bar association as ground for disqualification under <<=12>> 28 USCS @ 455. <<=13>> 42 ALR Fed 331. Disqualification of judge under <<=14>> 28 USCS @ 455(b)(5)(iii), where judge or his or her spouse, or certain of their relatives, is known to have an interest that could be affected by the proceeding. <<=15>> 54 ALR Fed 855. CASE NOTES If judge finds on adequate evidentiary basis that attorney perpetrated fraud on court, he should refer matter to Board of Bar Overseers for diciplinary action. <<=16>> MacDonald v MacDonald (1990) 407 Mass 196, 552 NE2d 533. Judge's decision that attorney engaged in disbarable conduct without adequate evidentiary basis was so biased as to require his disqualification from future proceedings in case. <<=17>> MacDonald v MacDonald (1990) 407 Mass 196, 552 NE2d 533. Juvenile Court judge's neutrality in hearing consolidated case of care and protection and petition to dispense with consent to adoption was not compromised by his presiding over emergency custody proceedings brought by Department of Social Services. <<=18>> Care & Protection of Martha (1990) 407 Mass 319, 553 NE2d 902. Evidence was sufficient for hearing officer to find that (1) judge ngaged in the pattern of making derogatory and obscene references to members of bench and bar; (2) judge engaged in pattern of drinking to excess in public and then urinating in public; (3) judge was less than candid and forthright in his testimony before commissioner; (4) judge set unusually high bail for black defendants after learing that large numbers of black voters in Boston voted for his brother's opponent in gubernatorial primary election; and (5) judge maintained practice of confiscating without adequate notice cash alternative bail funds of friends and relatives of nondefaulting defendants to satisfy outstanding obligation of defendants; judge publicly censured and prohibited from serving in Dorchester District Court. <<=19>> Re King (1991) 409 Mass 590, 568 NE2d 588. Recusal is left to discretion of trial judge, and abuse of discretion must be shown to reverse decision not to allow recusal. <<=20>> Haddad v Gonzalez (1991) 410 Mass 855, 576 NE2d 658. Judge's statements in summary process case concerning conditions of apartment building and landlord did not show personal bias against the landlord requiring judge to recuse himself in subsequent summary process case involving same landlord. <<=21>> Haddad v Gonzalez (1991) 410 Mass 855, 576 NE2d 658. Probate judge's engaging in ex parte communications with husband's counsel regarding assets of husband and support needed for child required vacating alimony and child support provision of judgment, and remand for further proceedings. <<=22>> Strothers v Strothers (1991) 30 Mass App 188, 567 NE2d 222. Pro se divorce litigant had right to be present when judge discussed questions of marital assets and support with husband's counsel. <<=23>> Strothers v Strothers (1991) 30 Mass App 188, 567 NE2d 222. Once judge concludes that there are grounds for recusal, he must completely disassociate himself from participating in case. <<=24>> Parenteau v Jacobson (1992) 32 Mass App 97, 586 NE2d 15. Judge confronted with recusal motion must determine if he is free from bias and prejudice by first consulting his conscience, and then attempting objective appraisal of whether his impartiality might be reasonably be questioned. <<=25>> Parenteau v Jacobson (1992) 32 Mass App 97, 586 NE2d 15. Concerns for administrative efficiency are entitled to no weight in determining recusal motions. <<=26>> Parenteau v Jacobson (1992) 32 Mass App 97, 586 NE2d 15. Housing Court judge abused discretion in denying defendant's motion for recusal and ordering case tried before jury, where judge believed his impartiality might reasonably be questioned if he presided over jury-waived trial. <<=27>> Parenteau v Jacobson (1992) 32 Mass App 97, 586 NE2d 15. LEVEL 1 - 22 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS DOCUMENT IS CURRENT THROUGH OCTOBER 1, 1994 *** SUPREME JUDICIAL COURT A. RULES OF THE SUPREME JUDICIAL COURT CHAPTER THREE. ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW RULE 3:12. CODE OF PROFESSIONAL RESPONSIBILITY FOR CLERKS OF THE COURTS ALM Sup. Jud. Ct. Rule 3:12, Canon 8 CANON 8. NON-DISCRIMINATION A Clerk-Magistrate shall not discriminate based on sex, race, color, creed, national origin, political affiliation, age or handicap. HISTORY: Effective January 1, 1981 NOTES: COMMENT-- The Code of Professional Responsibility for Clerks of the Courts expresses standards and expectations that we believe will encourage and support professionalism among clerk-magistrates in the Commonwealth. In our view, the principles set forth in this Code are reasonable and are largely obvious to responsible people. The specificity of the Code makes it a better guide to appropriate conduct than other, more general rules, such as the Conflict of Interest Law. We see no general conflict between this Code and other legal restrictions on the conduct of clerk-magistrates. The Code is the product of substantial exchanges of ideas over many months among clerk-magistrates, the office of the Chief Administrative Justice, and the Rules Committee of this Court. There have been, of course, disagreements concerning the scope of the Code. What we have adopted will have to be tested by experience and practical application. Certain proposals we declined to include may have to be added. Certain provisions in the Code may need to be revised or even repealed. Some have argued that the Supreme Judicial Court lacks constitutional authority to adopt any Code of Responsibility. Our statutory and constitutional authority of general superintendence over the courts of the Commonwealth makes such an argument unpersuasive. We have no doubt concerning our general constitutional authority to regulate in the way we have the conduct of persons working in the judicial system. We recognize, however, that in individual situations there may be questions concerning the application of particular sections of the Code of Responsibility. We are prepared to consider such questions and, where appropriate, to adopt amendments or grant waivers of the Code. We think we have given appropriate attention to the special circumstances applicable to elected clerk-magistrates (Clerks of the Superior Court, Registers of Probate and the Clerk of the Supreme Judicial Court for Suffolk County). We were encouraged to bar elected clerks from soliciting funds for, or even speaking on behalf of the candidacy of, any other candidate for public office. We grant that the introduction of political considerations, or more likely the appearance of the introduction of such considerations, into the administration of justice can be a serious problem. It undermines the people's confidence in the administration of justice. For the moment, we have decided to refrain from adopting such restrictions. To adopt them would raise questions about the validity of restrictions on the constitutional rights of clerks. On the other hand, a voluntary response by elected clerks along these lines might. In the course of our discussions, it became apparent that clerk-magistrates acting in certain circumstances believe that they have been subjected to conflicting instructions from judges and are not sufficiently consulted by judges and administrators about matters that directly affect the operations of clerk-magistrates' offices. The Code is not intended to, nor will it, resolve this problem, the scope of which is uncertain. For the instruction of Canon 2 to be worthwhile and fair to apply, the proper source of directives from judicial authorities on particular matters must be clear. Moreover, the judicial system must provide a means for discussions both before and after any directives are issued. As long as a clerk-magistrate who presides over a clerk's office is either elected or appointed by the Governor, the system must accommodate to the lack of totally centralized control that exists in the operation of. We seriously considered adopting, but ultimately rejected, a proposal that would have required an appointed clerk-magistrate who became a candidate for an elected clerk-magistrate's position to take a leave of absence or use accrued vacation until the election was decided. We concluded that any problems arising in such circumstances could best be handled on a case-by-case basis and that, in any event, many such candidates would recognize the desirability of taking time away from their jobs in such circumstances. We shall appoint an advisory committee on ethical opinions for clerks as provided in new Rule 3:14. At this time, we see no need to appoint a committee on professional responsibility but shall do so if there appears to be the need for an investigation that cannot or should not be conducted within the court or department of the trial court or in the office of the chief justice in which a clerk-magistrate sits. EDITORIAL NOTE-- The 1991 court order, effective January 1, 1992, substituted "orientation" for "preference".