Bill H.3290

HOUSE DOCKET, NO. 1817 FILED ON: 2/18/2011

HOUSE . . . . . . . . . . . . . . . No. 3290

By Mr. Naughton of Clinton, a petition (accompanied by bill, House, No. 3290) of Harold P. Naughton, Jr., and Carolyn C. Dykema relative to veterans' courts. The Judiciary.

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act to establish the Commonwealth veteran corps.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The General Laws are hereby amended by inserting after chapter l85C the following chapter:-

Chapter 185D

Veterans Court Department

Section 1. The veterans court department, established under section 1 of chapter 211B, shall be composed of a western division, consisting of the cities and towns of Berkshire, Franklin, Hampden and Hampshire counties; a division for Worcester county, including the town of Bellingham in Norfolk county, the city of Marlborough and the towns of Ashby, Hudson and Townsend in Middlesex county, and the jurisdiction known as Devens established under chapter 498 of the acts of 1993; a northeastern division, including the cities and towns of Essex county and the city of Lowell and the towns of Acton, Ayer, Billerica, Boxborough, Carlisle, Chelmsford, Concord, Dracut, Dunstable, Groton, Littleton, Maynard, Pepperell, Shirley, Stow, Tewksbury, Tyngsborough, and Westford in Middlesex county; a southeastern division, including the cities and towns of Bristol and Plymouth counties; and a division for the city of Boston. Wherever the words “veterans court” are used, or wherever in this chapter the word “court” is used in that context, they shall refer to a division of the veterans court department; and the words “judge of the veterans court” or the word “judge”, in context, shall mean an associate justice of the trial court appointed to a division of the veterans court department.

Section 2. The divisions of the veterans court department shall have superior and general jurisdiction with reference to all cases and matters within their jurisdiction; and no order, decree, judgment, sentence, warrant, writ or process made, issued or pronounced by them need set out any adjudication or circumstances with greater particularity than would be required in other departments of superior and general jurisdiction, and the like presumption shall be made in favor of proceedings in the veterans court department as would be made in favor of proceedings in other departments of superior and general jurisdiction. Writs, subpoenas, citations, orders, notices, executions and all other processes issued in the veterans court department signed by the clerk, temporary clerk or an assistant clerk, and bear the teste of the first justice of the division and shall run throughout the commonwealth.

Section 3. The divisions of the veterans court department shall have common law and statutory jurisdiction concurrent with the divisions of the district court department and the superior court department of all crimes and of all civil actions arising in the city of Boston in the case of that division, in the counties of Berkshire, Franklin, Hampden and Hampshire in the case of the western division and within the cities and towns included in the Worcester county division, northeastern division and southeastern division, in the case of those divisions, under chapter forty A, sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen, sections fourteen and eighteen of chapter one hundred and eighty-six and under so much of sections one hundred and twenty-seven A to one hundred and twenty-seven F, inclusive, and sections one hundred and twenty-seven H to one hundred and twenty-seven L, inclusive, of chapter one hundred and eleven, so much of chapter ninety-three A, so much of section sixteen of chapter two hundred and seventy, so much of chapters one hundred and forty-three, one hundred and forty-eight, and two hundred and thirty-nine, jurisdiction under the provisions of common law and of equity and any other general or special law, ordinance, by-law, rule or regulation as is concerned directly or indirectly with the health, safety, or welfare, of any occupant of any place used, or intended for use, as a place of human habitation and the possession, condition, or use of any particular veterans accommodations or household goods or services situated therein or furnished in connection there with or the use of any real property and activities conducted there on as such use affects the health, welfare and safety of any resident, occupant, user or member of the general public and which is subject to regulation by local cities and towns under the state building code, state specialized codes, state sanitary code, and other applicable statutes and ordinances. The divisions of the veterans court department shall also have jurisdiction of all veterans problems, including all contract and tort actions which affect the health, safety and welfare of the occupants or owners thereof, arising within and affecting residents in the city of Boston, in the case of that division, Berkshire, Franklin, Hampden and Hampshire counties, in the case of the western division and within the cities and towns included in the Worcester county division, northeastern division and southeastern division, in the case of those divisions, and shall also have jurisdiction in equity, concurrent with the divisions of the district court department, the divisions of the probate and family court department, the superior court department, the appeals court, and the supreme judicial court, of all cases and matters so arising.

In all matters within their jurisdiction, the divisions of the veterans court department shall have all the powers of the superior court department including the power to grant temporary restraining orders and preliminary injunctions as justice and equity may require. The divisions shall have like power and authority for enforcing orders, sentences and judgments made or pronounced in the exercise of any jurisdiction vested in them, and for punishing contempts of such orders, sentences and judgments and other contempts of their authority, as are vested for such or similar purposes in the supreme judicial court or superior court department.

Section 4. The western division of the veterans court department shall hold its sittings in the city of Springfield in Hampden county and at least one sitting each week in courthouse facilities in Berkshire, Franklin and Hampshire counties. The court, with the consent of the chief administrative justice and management shall also sit in such other courthouse facilities as the chief justice of the veterans court department may deem to be expedient or convenient.

The division of the veterans court department for the city of Boston shall hold its sittings in the Suffolk county courthouse and, with the consent of the chief justice for administration and management, in such other courthouse facilities within the city of Boston as the chief justice of the veterans court department may deem to be expedient or convenient.

The division of the veterans court department for Worcester county shall hold its sittings in the facilities of the Worcester county courthouse in the city of Worcester and at regular and frequent intervals in a district courthouse in the northern and southern areas of said county, but in no event less frequently than once per week in each of said northern and southern areas. The court, with the consent of the chief justice for administration and management shall also sit in such other courthouse facilities within said county as the chief justice of the veterans court department may deem to be expedient or convenient.

The northeastern division of the veterans court department shall hold its sittings in the courthouse facilities located in the city of Lawrence and at regular and frequent intervals at the courthouse facilities in the city of Salem, including at least one sitting each week in Salem, including one sitting each week in the city of Lowell, and also at least one sitting each week in the courthouse facilities in either the city of Lynn or the city of Peabody or the city of Haverhill. The court, with consent of the chief justice for administration and management shall also sit in such other courthouse facilities as the chief justice of the veterans court department may deem to be expedient or convenient.

The southeastern division of the veterans court department shall hold its sittings in the courthouse facilities located in the city of Taunton and at regular and frequent intervals at the courthouse facilities in the cities of Brockton, Fall River and New Bedford; provided, however, that said southeastern division shall hold at least two sittings each week in Plymouth county and two sittings each week in Bristol county. The court, with the consent of the chief justice for administration and management shall also sit in such other courthouse facilities as the chief justice of the veterans court department may deem to be expedient or convenient.

Section 5. The divisions of the veterans court department shall always be open and the business thereof, or of a justice thereof, may be transacted at any time; but such business shall not, except as provided in section six of chapter two hundred and twenty, be transacted on Saturday or Sunday or on a legal holiday unless it relates to an application which, in the opinion of the justice to whom it is made, is of pressing necessity; provided, however, that, if the convenience of the public so requires, the courts shall be open for the transaction of business on such Saturdays, not legal holidays, and during such hours thereof as the chief justice of the veterans court department may determine.

Section 6. Each division of the veterans court department shall have a seal which will be in the custody of its clerk, and shall be affixed to all processes issued by a division of the veterans court department requiring a seal.

Section 7. The chief justice of the veterans court department shall from time to time make general rules and forms of procedure, which, before taking effect, shall be approved by the supreme judicial court or a justice thereof.

Section 8. There shall be two justices appointed for the western division, two justices appointed for the Worcester county division, one justice appointed for the northeastern division, two justices appointed for the southeastern division, two justices appointed for the city of Boston division of the veterans court department and one justice who shall be and perform the duties of a circuit justice in such counties as the chief justice shall from time to time designate. The chief justice of the veterans court department, subject to the approval of the chief justice for administration and management, shall designate one justice to be the first justice of each court; provided, however, that appropriate consideration shall be given to seniority, length of service at that particular court, and managerial ability. Said first justice shall be the administrative head of that particular court and shall have the power, authority and responsibility of a first justice as set forth in section 10A of chapter 211B; provided, however, that clerks shall have responsibility for the internal administration of his office, including the selection, appointment, and management of personnel, staff services and record keeping. A first justice or a clerk of the court may submit any dispute that arises between said first justice and said clerk concerning the management and administration of the office of the clerk, the duties, powers and obligations of the clerk, or a member of their staff, or the interpretation of the personnel standards provided for under section eight of chapter two hundred and eleven B, to the chief justice of the department. Any person aggrieved by a decision of a chief justice under this paragraph may appeal said decision to the chief justice for administration and management, who shall, within thirty days, hear and determine the matter. Each first justice so appointed shall serve as the first justice of that court for a five-year term and shall be eligible to be reappointed to serve additional five-year terms at that particular court. Any first justice may be removed from his position as first justice when it is determined by the chief justice of the veterans court department to be in the best interests of the administration of justice. Any first justice who is removed from his position as first justice by the chief justice of the veterans court department may appeal the removal to the chief justice for administration and management.

Section 9. The justice as provided under section one of chapter two hundred and eleven B as the chief justice for the veterans court department, in addition to his judicial powers and duties shall, subject to the superintendence authority of the supreme judicial court provided in section three of chapter two hundred and eleven B, and subject to the administrative authority of the chief justice of administration and management, be the administrative head of the veterans court department, and shall also have the power, authority and responsibility of a chief justice as set forth in section ten of chapter two hundred and eleven B. Said chief justice shall serve as the chief justice of that department for a five-year term and shall be eligible to be reappointed to serve additional five-year terms. Said chief justice may be removed from his position as chief justice when it is determined by the chief justice for administration and management to be in the best interests of the administration of justice.

Section 10. There shall be a clerk, appointed by the governor with the advice and consent of the council, for each of the veterans courts. Said clerks shall hold office during good behavior, subject however, to retirement under the provisions of any general or special law relative to retirement systems. The clerk appointed for the western division shall reside in either Berkshire, Franklin, Hampden or Hampshire counties. Said clerks shall have responsibility for the internal administration of their respective offices, including the selection, appointment, and management of personnel, staff services and record keeping. The chief justice, a first justice or a clerk of the veterans court may submit any dispute that arises between said chief justice or said first justice and said clerk of court, concerning the management and administration of the clerk's office, the duties, powers and obligations of the clerk-magistrate or a member of the clerk-magistrate's staff, or the interpretation of the personnel standards provided for under section eight of chapter two hundred and eleven B, to the chief justice for administration and management, who shall, within thirty days, hear and determine the matter. The decision of the chief justice for administration and management shall be binding on the parties.

Section 11. The salaries of the clerks of the veterans court department appointed under the provisions of section nine shall be 81.57 per cent of the salary of the chief justice of said department and shall be paid, subject to appropriation, by the commonwealth. The salaries of the first assistant clerks in said department shall be eighty-three and one-half percent of the salary of the clerks of said court and shall be paid, subject to appropriation, by the commonwealth. The salaries of assistant clerks in said department appointed under the provisions of section eleven shall be seventy-seven percent of said clerk's salary and shall be paid, subject to appropriation, by the commonwealth.

Said clerks and assistant clerks shall devote their entire time during business hours to their respective duties and shall not, directly or indirectly, engage in the practice of law.

Section 12. In case of the illness or absence of a clerk, the chief justice of the veterans court department may appoint a temporary clerk to act until the clerk resumes his duties.

Section 13. The clerk of a division of the veterans court department may appoint 1 or more assistant clerks, who shall be removable at his pleasure. The clerk shall be responsible for all official acts of the assistant clerks and all powers conferred by statute upon the clerk, unless otherwise stated, and in any event subject to limitation by the clerk or the administrative justice, may be exercised by an assistant clerk.

Section 14. The clerk, any temporary clerk and all assistant clerks shall be sworn; and in the case of any temporary clerk and of every assistant clerk, the oath of office shall be administered by the chief justice of the veterans court department who shall, upon administering the same, forthwith make return of such act with the date thereof to the state secretary.

Section 15. The clerk, any temporary clerk and every assistant clerk, before entering upon performance of his official duties, and thereafter, at intervals of not more than one year, so long as he continues to hold such office shall give to the commonwealth a bond, conditioned to perform faithfully his official duties, with a surety company, authorized to transact business in the commonwealth as surety, in a sum approved by the chief justice of the veterans court department, but in no event less than five thousand dollars. Failure to give such bond shall be sufficient cause for his removal.

Section 16. The clerk, temporary clerk and assistant clerks or one of them for each division shall attend all sessions of the veterans court department and shall keep a record of all its proceedings. The clerk of each division shall have the care and custody of all the records, books and papers appertaining to, or filed or deposited in, his office. The clerk of each division shall make and issue writs and processes, shall make returns of the veterans court department, tax bills of costs and receive fines, forfeitures, fees and costs accruing from the civil and criminal business of the veterans court department including fees for blanks and copies. The clerk of each division shall have such other powers and duties as the first justice of the particular division may, subject to the approval of the chief justice of veterans court department from time to time order.

The clerk and assistant clerks of each division of the veterans court department may sign process issued by the veterans court department and veterans court department records, documents or other legal papers or copies thereof made or issued by such other clerk or an assistant clerk in conformity with law, except search warrants and process authorizing arrests or commitments, by imprinting thereon a facsimile of the signature of the clerk or assistant clerk; and such facsimile signatures shall have the same validity as their written signatures.

Section 17. The first justice of a division may appoint such number of court officers for his division as the administrative justice of the veterans court department may from time to time determine. Any such court officer may be removed for any cause considered by the first justice of the division to be sufficient. Any vacancy caused by removal or otherwise may be filled by the first justice of the division. The court officers shall attend the sessions in the divisions of the veterans court department, shall preserve order and may serve warrants, mittimuses, precepts, orders and processes of a division of the veterans court department. Each court officer shall give bond for the faithful performance of his duties in the sum of one thousand dollars payable to the commonwealth, with sufficient sureties approved by the administrative justice. Each court officer, while on duty in the veterans court department, shall wear a uniform approved by the administrative justice which shall be furnished at the expense of the commonwealth.

Section 18. The first justice of a particular veterans court may appoint, subject to appropriation and subject to the approval of the chief justice of the veterans court department, such number of veterans specialists as he may from time to time determine. Said first justice may designate one of them as chief veterans specialist for the court. All veterans specialists shall hold office at the pleasure of said chief justice, subject, however, to retirement under the provisions of any applicable general or special law relative to retirement systems. All veterans specialists shall be knowledgeable in the maintenance, repair, and rehabilitation of dwelling units; the problems of landlord and tenant as they pertain to dwelling units; the types of funds and services available to assist landlords and tenants in the financing and resolution of such problems; the federal and state laws, rules and regulations pertaining to the maintenance, repair and rehabilitation of such units; and the financing and resolution of such problems. The veterans specialists shall have such powers and perform such duties as said chief justice shall from time to time prescribe. Every veterans specialist shall be sworn by the chief justice of the veterans court, who shall, upon administering the oath, forthwith make return of such act with the date thereof to the state secretary.

Section 19. No clerk, temporary clerk, assistant clerk or veterans specialist shall be retained or employed as an attorney in any complaint, action or suit in any court of the commonwealth.

Section 20. At the trial of any issue of fact, the justice presiding at the trial shall provide for a proper recording system which shall record the proceedings. The cost of said recording system shall be paid by the commonwealth upon the certificate of the chief justice for administration and management. Each clerk of the veterans court department may procure law books and blank books, blanks, stationery and other incidentals required by the divisions of the veterans court department as the chief justice for administration and management may approve.

Section 21. Proceedings shall be commenced in the veterans court department as follows: a criminal case by complaint in like manner as in the district court department, a civil action in accordance with the Massachusetts Rules of Civil Procedure; provided, however, that a summary process action and a small claims action shall be commenced and administered in accordance with rules promulgated with the approval of the supreme judicial court. Clerks of the veterans court department shall charge a fee of $120 for the entry of an action, for the filing of a third-party complaint, and for the filing of a motion to intervene as plaintiff, which shall be paid by the party entering or filing the same; and no other fee shall be charged for taxing costs, for issuing any subpoena or execution or for issuing any order of notice or other mesne, interlocutory or final order, rule, decree of process authorized by law, except a temporary restraining order or preliminary injunction for the issuance of which the clerk shall charge $90; provided, however, that no fee for the entry of an action or for the issuance of a temporary restraining order or preliminary injunction shall be charged to the commonwealth or political subdivision thereof.

Notwithstanding that a proceeding under this chapter is commenced by complaint, if it is found that the offense charged was not willful, intentional, reckless or repeated, the proceeding shall not be deemed criminal and no record of the case shall be entered in the probation records.

Section 22. Any civil action within the jurisdiction of the veterans court department which is pending in another court department may be transferred to the veterans court department by any party thereto.

Whenever cross actions between the same parties or two or more actions, including for the purposes hereof other department proceedings, arising out of or connected with the same veterans accommodation are pending, one or more in the veterans court department, the district court department, the probate and family court department, or in the superior court department, the chief justice of the veterans court or the first justice upon motion of any party to any of such actions, may order that the action or actions pending in the district court department and in the probate and family court department and in the superior court department with all papers relating thereto, be transferred to the veterans court department; and such action or actions shall thereafter proceed in the veterans court department as though originally entered there.

Section 23. All cases in the veterans court department, including motions and the like, whether interlocutory or final, shall be heard and determined by a justice of a division of the veterans court department sitting without jury, except that in all cases where a jury trial is required by the constitution of the commonwealth or of the United States and the defendant has not waived his rights to a trial by jury, the cause shall be forthwith tried in a division of the veterans court department before a jury selected in accordance with chapter two hundred and thirty-four. In the trial of any complaint or action in the veterans court department, the report of any inspector serving in the veterans inspection department of a city or the board of health of any city or town shall be prima facie evidence of the facts stated therein.

Section 24. Every judgment or order entered by a division of the veterans court department shall bear as its date the day when actually entered by the clerk, and at the time of the entry he shall note such date upon the judgment or order and upon the docket.

Section 25. The bond of any receiver appointed by a division of the veterans court department shall be payable to the commonwealth and shall otherwise be in such form as the chief justice of the veterans court department shall require. Such bond may be enforced in the name of the commonwealth by the treasurer of the commonwealth, or by any person interested therein and authorized by the chief justice of the veterans court department, after notice to said treasurer, to take such action. The veterans court department shall have exclusive original jurisdiction of actions on such bonds. Any sums recovered shall be paid over or administered as a justice of the veterans court department directs.

SECTION 2. Section 1 of chapter 211B of the General Laws, as appearing in the 2008Official Edition, is hereby amended by inserting after the word “department”, the second time it appears, in line 5, the following words:- the veterans court department.

SECTON 3. Section 2 of said chapter 211B, as so appearing, is hereby amended by inserting after the word “department”, in line 6, the following words:- 10 justices appointed to the veterans court department.

Name:	District/Address:	Date Added:
Harold P. Naughton, Jr.	12th Worcester	1/20/2011
Carolyn C. Dykema	8th Middlesex	2/3/2011