SJC Watch: Big day at the state's highest court.

It was standing room only in Courtroom One at the John Adams courthouse in Boston last Tuesday morning, as the justices of our highest Court stepped from behind the curtain to hear argument in a full slate of cases, raising fascinating issues including the proper application of tax exemptions for religious organizations, the scope of parental rights of unmarried same sex couples, and whether judges have discretion to depart from mandatory minimum drug sentences.

The justices have some hard questions to answer. Now we wait.

Karen Partenan v. Julie Gallagher (SJC-12018)

Parental rights of non-biological parent in unmarried same-sex couple where the couple agreed to have children together and to use artificial reproductive technology and donor sperm to do so.

Karen Partanen filed a Verified Complaint in Equity pursuant 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 Brief p. 50 (internal quotation omitted). The case raises serious constitutional questions as well practical issues for parents and children, biological, married and non-married.

Mary Bonato, of GLAD (the lawyer who argued successfully in the Supreme Judicial Court in 2003 in favor of same sex marriage in Massachusetts, and in the United States Supreme Court in 2015 in favor of same sex marriage across the nation), represents (along with co-counsel) and argued on behalf of Partanen. Attorney Jennifer Lamanna, new to the case, argued for Gallagher.

The argument remained focused mostly where it should have been: on concern for the children and their rights, with a few exceptions, and a couple of somewhat surreal forays into how the method by which a child is conceived might affect unmarried' parents' rights.

The Shrine of Our Lady of LaSalette v. Bd. of Assessors of Attleboro (SJC-12021)

The application and interpretation of the property tax exemption applied to religious houses of worship that could significantly impact how local assessors treat religious organizations for property tax purposes generally.

The Shrine of Our Lady of LaSalette 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 with respect to 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 worship and which do not.

The Shrine paid the tax under protest, sought an abatement, which was denied, and appealed the Assessors' denial 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.

The argument showed a tension between concerns about religious freedom and suggestions that "worship" has a discernible meaning across religions that can be gleaned by a local assessor through an exercise of "discretion" or that requiring religious organizations to comply with the charitable exemption requirements under Clause Third would not be a burden on religion. What did seem crystal clear is that the "back of the envelope" apportionment the local assessors did in this case was not based on any articulable analysis or methodology.

Full disclosure: this firm submitted an amicus brief on behalf of an interfaith collection of 12 religious organizations in support of the Shrine, and raising concerns about religious freedom and autonomy given the ATB's suggestion that local tax assessors have the power to reach into religious organizations and determine what constitutes religious worship for any particular group.

Commonwealth v. Laltaprasad (SJC-11970)

Whether a judge may depart from the mandatory minimum sentences for a conviction for possession of drugs with intent to distribute (and, essentially, for conviction of other offenses with some exceptions).

A jury convicted Imran Laltaprasad of possession of (less than 5 grams) of cocaine and heroin with an intent to distribute. Due to recidivist enhancements, the minimum sentence for his offenses is typically 3.5 years. The Superior Court imposed a sentence of 2.5 years given its findings of mitigating circumstances, including the relatively small amount of drugs involved and Laltaprasad's extreme medical condition resulting from an earlier attack on his life.

The Commonwealth appealed, arguing that a 1996 law, G.L. c. 211E, section 3(e), which states on its face that judges may "impose a sentence below any mandatory minimum term" [with specific exception] when mitigating circumstances exist does not allow departure from the mandatory minimum sentence in this case because section 3(e) was contingent upon the enactment of sentencing guidelines, which have not been enacted. The Commonwealth relied on the SJC's 1995 decision in Commonwealth v. Russo, which predated the enactment of section 3(e), but interpreted its uncodified predecessor, in which the SJC ruled that judges could depart from mandatory minimums but only after sentencing guidelines were enacted.

Laltaprasad, represented by Matt Segal and others at the ACLU, argued that section 3(e) is plain on its face and it allows judges to depart from the mandatory minimum sentences, that Russo does not control because it interpreted an earlier, uncodified version of the law, that the legislature made other sections of chapter 211E expressly contingent on promulgation of sentencing guidelines, but did not do so with section 3(e), and that interpreting the statute to require adherence to the mandatory minimum in this case would violate statutory construction canons and raise constitutional issues.

The argument was lively and went long. While Justice Cordy and a few other justices appeared ready to apply Russo and to read section 3(e) to require promulgation of sentencing guidelines, and Justice Hines even referred to Laltaprasad's argument as "old wine in new skin", others seemed not so sure, although some appeared to wonder whether ruling on the statute itself would fully deal with the issue or merely set the statute up for constitutional challenges.

Stay tuned. Rulings in 120 days (give or take).

#Partanen #Religioushousesofworship #Religiousfreedom #DeFactoParent #Parentage #taxexemptions #SJCWatch #LaSalette #mandatoryminimumsentences

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