SJC Watch: Three Cases To Keep Your Eye On.
Karen Partanen v. Julie Gallagher
Parentage of woman whose same-sex partner gave birth to two children while the two women were a couple and had agreed to have children together
Karen Partanen filed a Verified Complaint in Equity purusant to G.L. c. 215, § 6, G.L. c. 209C, and G.L. c. 46, § 4B, in which she asked the family and probate court to declare her to be the full legal parent of the two minor children born through assisted reproductive technology to her same-sex partner, Julie Gallagher, during the couple's 13 year relationship and pursuant to their plans to start a family, and to grant her shared custody of the children.
The trial court dismissed the complaint, concluding that Partanen did "not meet the statutory requirements for presumed/legal parentage under G.L. c. 46, § 4B or G.L. c. 209C," because she was neither the children's biological parent nor married to Gallagher. Partanen appealed and sought direct appellate review, which the SJC granted on December 17, 2015.
In a separate case, Partenan sued in equity for a declaration that she was a "de facto parent" pursuant to G.L. c. 215, § 6 and for shared custody of the children. Gallagher stipulated that Partenan is a de facto parent under the statute and, in a case of first impression, the probate and family court made detailed factual findings (including that Partanen and Gallagher were a couple for approximately 13 years, agreed to have children together, participated in assisted reproductive technology together toward that end, that Partanen was present for the children's births, received them into the joint home with Gallagher, supported and parented the children, who knew her "as mommy"), and ultimately awarded Partanen joint legal and physical custody of the children. Gallagher has appealed that decision separately.
The case currently before the SJC asks the Court to recognize Partanen's full parental status, and argues, among other things, that granting Partanen the "full parental rights and responsibilities", while maintaining "the nomenclature of 'de facto parent'" would "create a new status that is equal to ['parent'], yet separate from it." and a "stigma of exclusion." Partanen SJC Brief at p. 50 (internal quotation omitted).The case raises serious constitutional questions and practical issues for parents and children, biological, marital and non-marital.
The SJC requested amicus briefs on all of the major legal issues raised by the case. Read Partanen's Blue Brief here. Gallagher's brief is due March 17, and the SJC has scheduled argument for April 5.
Nancy Chadwick v. Duxbury Public Schools et al.
Union-member testimonial privilege
Plaintiff, Nancy Chadwick, asks the Court to recognize a privilege for communications she had as a union member with her union representatives in connection with her discrimination complaint.
Chadwick, a former schoolteacher, sued the Duxbury Public Schools and other related parties in Plymouth Superior Court for employment discrimination. During discovery, a dispute arose regarding the discoverability of Chadwick's email communications with her union representatives. The school moved to compel and Chadwick cross moved for a protective order. Judge Yessayan refused to recognize the union communications privilege, denied the motion for protective order, allowed the motion to compel and ordered Chadwick to produce her emails with her union representatives.
On Chadwick's petition to a Single Justice, Justice Grainger affirmed Judge Yessayan's order, but stayed the production order for seven days to allow Plaintiff to seek further review, which she did. Once docketed in the Appeals Court, the SJC sua sponte took the matter up, and is soliciting amicus briefs on the issue of "Whether Massachusetts will recognize a union-member testimonial privilege, such that the plaintiff in this case, in her underlying employment discrimination action against her employer, would not be required to produce in discovery communications between herself and her union representatives related to her case."
No briefs yet. Keep an eye out for the Blue Brief on March 11, and the Red Brief on April 11.
Shrine of Our Lady of LaSalette v. Board of Assessors of Attleboro
Taxation of religious organization based on Assessors' determination that some of the organization's activities do not qualify as exercise of religion.
Many locals know LaSalette for its Christmas lights display and hot chocolate on cold winter nights, but to many Catholics the Shrine of Our Lady of LaSalette is much more. The Shrine has existed in Attleboro, Massachusetts since 1953. After years of recognizing the Shrine as tax-exempt in large part, recently, the Town Tax Assessors have changed their tax strategy vis-a-vis the Shrine and have decided to tax the Shrine significantly based on the Assessors' own determination of which of the Shrine's activities qualify as religious and which do not.
The Shrine paid the tax under protest, sought an abatement, which was denied, and appealed the Assessors' decision to the Appellate Tax Board. The Appellate Tax Board confirmed the Assessors' decision that portions of the Shrine's property were not tax exempt, and the Shrine appealed.
The SJC took the case on direct Appellate review in December 2015, and sought amicus briefs on the issue of whether the statute's exemption for "houses of religious worship" applies to portions of a taxpayer's property used for "fundraising, charitable, and 'ecospiritual' activities that the taxpayer maintains are part and parcel of its overall religious mission. . ." While the primary appellate issue relates to interpretation of the G.L. c. 59, §5, Eleventh (a tax statute exempting houses of religious worship from assessments of local taxes), First Amendment freedom of religion issues and potentially sweeping consequences for churches and other faith-based organizations are at stake.
Read the Briefs here: Blue brief. Red brief due today. Argument is expected to occur in April.