Blogtoberfest Guest Post: Three Days in October, by Joseph Bednar

October 29, 2011

I’ve had better Saturdays, and that’s before the snow arrived.

My wife and I spent the afternoon starting a big kitchen project, installing a tile backsplash between the countertops and cabinets. We’d already several hundred dollars on the tile, and I would have been happy coughing up another $500 to have someone come in and cement it up.

But Jenn was confident we could do it, and she’s usually right about those things. Once we got the pattern down, she sawed pieces with a tile cutter in the driveway, then applied a coat of mud to a section of wall, and I’d follow by laying each individual piece. It was slow, methodical work, and honestly, I don’t relish big household projects with the gusto Jenn does. But I have to say, it looks pretty awesome today.

The forecast called for snow across Massachusetts Saturday evening, which was odd for late October, and not ideal for the dogs; besides our own pair of springer spaniels, we were dogsitting two golden retrievers, and would have preferred a dry weekend so they could spend lots of time outside in the fenced yard. But maybe, we thought, it wouldn’t be a lot of snow.

By late afternoon, however, it was coming down hard — to the point where Jenn started to worry about the dogwood outside our back porch. Her mom had planted it decades ago, and when Jenn built a little mulch garden beside our patio, she made the tree, maybe a dozen feet tall, the centerpiece of the design. We love that dogwood. But the early snow — wet and heavy — was bending the branches troublingly low, so I went out with a big broom and shook the snow off the branches, soaking myself in the process. But the snow kept piling up on the branches, so I did it again a little later. And again. And again.

We lost power around 8:30 p.m., and wound up sitting by candlelight in the living room with our 6-year-old son, Nate, and four nervous, panty dogs. After he went to bed, we stayed up a little longer, looking out the big bay window at the snow and the irregular flashes of greenish lightning — or what we thought was lightning. That burst of color, we learned later, was actually a power line snapping and landing on wet snow. We saw a lot of flashes.

Eventually, after shaking off the dogwood one last time, we retired to bed. I fell asleep quickly, but Jenn didn’t; she was too worried about the trees, which audibly groaned and creaked outside. As she posted on Facebook around midnight, “Can’t sleep. Just lying here listening to trees falling and Joe snoring.” And later, just before 1:30: “Just lost a whole tree and large branch. Extremely freaky night. Can’t believe Joe is sleeping thru this. Oops, something’s cracking, going to check it out.”

If the night had a soundtrack — besides the gusting wind, cracking branches, and ice sheeting against the windows — it might have been Ojo Taylor’s “Animals and Trees”:

“The wind is up at 3 a.m. The power’s down till God knows when.

A candle does a minuet, moving shadows and silhouettes.

Silence, please: all the world is on its knees.

Mother Earth will have her say. Mother Earth will have her way.”

But still I slept. I don’t think Jenn ever did.

October 30, 2011

I awoke to the clatter and whine of snowblowers and chainsaws.

It was a clear day, with muted skies in the morning giving away to searing blue later on. Temperatures, chilly at dawn, would eventually rise into the 50s, melting most of the snow — well over a foot, in fact — and leaving the world a slushy mass of wet, jagged branches.

Every yard — and, unfortunately, several damaged roofs — were covered in them. Dozens of smaller trees had been plucked out by the roots because the unfrozen ground wasn’t ready to bear the snow weight. We were lucky; we lost all or part of seven trees, but nothing fell on the house, or even the shed, deck, or backyard fence. Even the dogwood, which bowed dangerously during the night, survived and regained its shape in the morning.

People were walking up and down the street, marveling at the damage, but also the stark beauty. In the early hours, before the mercury crept up, the fallen branches lay caked in thick snow. Everything would be ugly soon enough, as city workers disposed of half-fallen branches, leaving the treescape jagged and raw, but for a moment, the world was mostly calm — the grinding chainsaws aside — and oddly pretty.

No one had power, and frankly, we didn’t expect to get it back anytime soon. So we ate lunch that day next door, in a circle of fold-up chairs in Jenn’s sister’s driveway. (We live next door to her brother as well, at one end of a horseshoe-shaped street named after their grandfather.) We figured we’d be throwing out our refrigerated food soon enough, so everyone brought over what they had, and we grilled dogs, burgers, and beans, eating on paper plates in our laps. We chatted and laughed and counted our blessings.

But then the sun went down, and the rustic charm of having no power became oppressive. The house cooled quickly, even after the warmish day. Meanwhile, we needed milk for cereal, which was all Jenn or the kid wanted for dinner, so I jumped in my SUV and headed to a Stop & Shop we’d heard was open, about four miles away. While driving, I realized I had no gas — I mean, none — but I kept going, figuring one of the gas stations near the store might be open as well.

The traffic on Memorial Drive leading to the supermarket was terrible. Everyone, it seemed, was converging on this one patch of Chicopee rumored to have power, and as I crept along, the digital meter that showed how many miles I had left in the tank dropped from 3 to 2 to 1 to 0. Once at Stop & Shop, my heart sunk; only one gas station was open, and the line at each pump was probably 30 cars long. So I bought my milk, got back in the car, and headed home, hoping the fuel gauge was programmed with a tiny bit of leeway. I probably should have parked somewhere and had Jenn pick me up, but my phone had run out of charge hours ago.

“And then to me she softly speaks, screaming in silence mysteries

of long ago and far away —
the world had always lived this way.

Somehow I know she points her finger at my soul.

I’m a child left all alone. I’m an orphan without a home.”

But I managed to make it home, and everyone ate their cereal, and then … just went to bed. After a day of cutting and dragging branches across the yard, no one was really in a talking mood; warm blankets and a long sleep made more sense. So we snuffed the candles and called it a day.

October 31, 2011

Thanks to a Cumberland Farms near our house that unexpectedly opened Monday morning, I was able to drive to work, as downtown Springfield’s block of office towers isn’t quite as vulnerable to power outages as tree-lined, residential streets. I don’t remember if our son, who was in first grade at the time, had school; if not, he surely spent the day at one of our workplaces, reading and drawing pictures and building Legos.

The previous night had been cold, and we were worried about the pipes freezing if the temperature dropped and the power didn’t return. Jenn and I were able to charge our phones at work, though, so at least we had some communication with the outside world.

Fortunately, Halloween would be our last day without power. Our city runs an electric utility that’s separate from the region’s larger energy conglomerates, and linemen had been working around the clock since Saturday to restore power, one neighborhood at a time. Other Western Massachusetts communities — from urban centers like Springfield to little burgs like Monson, where another of Jenn’s sisters lives, and which had been ravaged by a tornado just five months earlier — would be offline for more than a week.

We still had no power as Monday evening fell, but no way was our son missing out on trick-or-treating. So Jenn grabbed a battery-powered lantern and walked him around our circle, looking for signs of life in each window. Even neighbors who could offer no candy were polite, and while he didn’t collect many treats, he was happy to make the effort. There was a certain appeal to treading the moonlit street, hunting and gathering for sustenance like the tribes of old, had they been after Twizzlers and SweeTarts, rather than roots, berries, and the occasional rabbit.

It remains, in fact, a fondly remembered Halloween. After the two of them returned with their meager haul, we again sat in our candlelit living room, four dogs at our feet, and told stories. I probably shared the one about the mid-’70s blackout in Bridgeport, Connecticut, when the lights went out just after Mom served a meal with a side of cooked spinach. I liked it, as opposed to raw, leafy spinach (blecch), so for years afterward, when Mom said we were having spinach with dinner, I’d ask, “the kind from the blackout?”

We were chilly, even under sweatshirts and throw blankets, as we shared memories and relaxed with our dog pack, but I remember just enjoying the time together — the bond of family, the peace of warm thoughts, on an odd, cold Halloween night.

“The television, blind and dumb. The window beckons me; I come.

I see animals and trees. I catch a glimpse of mystery.

Progress, though, will soon return to steal that which I have learned

and ridicule the candle’s flame. Tomorrow, all will be the same.”

And then, at 8:30, almost 48 hours to the minute after we lost power, the lights flickered back on, and the boiler in the basement clicked to life. As my wife shared on Facebook soon after, “Power back on!!! Go Chicopee Electric, we love you!” The following weekend, we were out raking leaves and twigs when one of the utility’s trucks lumbered by. We, and others working in their yards, turned to the road and loudly applauded.

After our son went to bed, the house slowly filling with heat, we stayed up and watched the Chiefs outlast the Chargers in overtime, 23-20. I’d have to go shopping the next day to replace everything from the fridge that I had bagged and tossed out earlier in the evening, but overall, life was good — much better, in fact, than for all the folks in our region who would have to live with the cold and the oppressive nighttime darkness for another week.

It had been a charming, if slightly bone-chilling, Halloween. But we’re modern folks. Give me light. Give me heat. Give me Monday night football.

Screen Shot 2014-10-24 at 2.20.42 PMJoe Bednar is a business and healthcare writer from Chicopee. At Slurrify, his latest personal blog, he’s counting down his 200 favorite albums and telling his unexciting life story out of order

A Halloween Wedding

Blogtoberfest Guest Post #6, by Sara Wentworth

 

 

 

 

I never thought marriage would be something I would consider, growing up and watching my parents and others I figured, Why bother?
I mean, a ring, ceremony, a parade and a lifetime of misery wasn’t something I wished to ever experience.

Like every child that says they’ll never, you find yourself saying I do.

One of the major deterrents to marriage was the wedding itself…the stuffy dress, the uncomfortable posing, the family that interferes with every detail, or the drunk bridesmaid (my usual role). The fantastic cliché photographs on the beach perfect like the perfect couple. One thing I learned from being a drunk bridesmaid, is that weddings are the most stressful for the bride in expectation of a perfect day and everything working perfectly.

My husband and I have an unconventional relationship.
We decided our wedding day should be on Halloween, because we both love Halloween. It’s one of the only days nobody cares what you are and everyone has fun being something else. We also imagine being old and senile, how could we forget that day?

We had planned to elope and have a private ceremony, we had everything we needed. When we woke up, the sky was grey, and it was cold and the air was full of foggy mist.

I decided that the day would be perfect despite that, and went about starting the day preparing myself for one of the most important days I’d never thought I’d ever have with the most amazing person.

I went to the bathroom and realized, that my perfect day was just an idea in my head when I looked at the toilet paper and the red tide rolled in. Great!  So, I put on my wedding dress that fit perfectly just a week prior, and I was so bloated I could not zip the zipper! I began to panic, then flew into a rage taking off the dress, throwing it across the room, hitting the space heater, landing in the dog’s food dish with wet food in it.

I didn’t think things could get much worse, so I sat down sobbing in my stockings, and Adam sat down next to me and comforted me. He helped me put on my dress and grabbed this huge safety pin off of an old kilt I had, fastening the back for me. He said, “See, it’s going to be fine. You look beautiful.”

I guess the reason I’m writing this, is because I hear and see a lot of cynical people that don’t believe in love because they’ve been burned, or they envisioned love or marriage being a certain way. That marriage was an ownership, or just something people do because they’re supposed to.

I know I have something rare, but one of the things that makes us different, is we love each other for our imperfections, our quirks, and our understanding. Though I expected a perfect day like every girl, things didn’t go perfectly, but it was perfect with him.

We’ve had awful arguments, we learn from each other, and we communicate with each other and choose our battles. We grow together because we want to. Perfect doesn’t exist, it’s an illusion.

The right thing sometimes is wrong, and many people place more value and importance on why things don’t work, won’t work, devaluing the contract between lovers, pushing their needs and the willingness to put your own aside…marrying the wrong person or someone they thought they knew, who never was.

Everything happens to teach us something, whether it be about ourselves or others, what we want or what we don’t.
People place more value on things, than partnership, people, or interactions. Some people view people as things as well, and things get old and once something is old you get rid of it and find a new one. That is why marriage doesn’t work…mental laziness, lack of empathy and the unwillingness to communicate or compromise. The me first world with the comparing and competition with the Joneses. (who are total assholes by the way.)
I am not writing this to critique humanity and its decisions, or to compare myself to anyone else. I’m writing this because I see so many skewed misconceptions that actually devalue the essence of the rituals society adheres to. The politics, people themselves and religion have all taken a stab at the ceremony of love, making it the “marriage industrial complex.”

Perfection is an illusion, it’s surface. It’s not concrete real or attainable. It is what you learn from the imperfect things and what you do with what you learn that makes things real.

Photo: Miming a rectal exam

Sara Wentworth is an artist, writer, and status-quo-bunker based on Cape Cod. She and her husband Adam are the crazed minds behind Secret Society Art.   Check out their stuff – but the Aldous Huxley portrait is mine

A Citizen’s Guide to First Monday, Part 2: Why State Supreme Courts Matter, Through the Lens of Massachusetts

Blogtoberfest Guest Post #7, By Joe Schneiderman

Although the First Monday is when the U.S. Supreme Court convenes for a new term, the Supreme Judicial Court of Massachusetts (SJC) has already been in session for a month!

The SJC sits in the beautiful and historic John Adams Courthouse in Boston and hears cases during the first week of every month from September to June. I suspect that although we all recall the 2003 case of Goodridge v. Department of Public Health when the SJC brought us into a new world where civil marriage and its benefits were no longer contingent upon sexual orientation, few of us know or follow the SJC beyond that. So, with that in mind, I hope to correct the problem by discussing the SJC’s history and why the SJC matters (and State Supreme Courts generally) just as much as the U.S. Supreme Court.  Similarly, it is also befitting that I discuss the SJC since it is one year to near the day that I learned that I passed the Massachusetts Bar. Indeed, the Goodridge decision inspired me to be a lawyer at all.  However, be cautioned that nothing in this post should be considered legal advice or is intended to create an attorney-client relationship.

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What is the SJC? The SJC is the highest legal tribunal in Massachusetts and the oldest continuously operating appellate court in the Western Hemisphere, having existed since 1692 as the “Superior Court of Judicature.” (The name changed in 1780 under the new Constitution adopted that year, due in part to events in Western Massachusetts-the Berkshire Remonstrance.) The SJC was originally born following the Salem Witch Trials and its attendant hysteria, and originally was both a trial court and an appellate court (and still heard death penalty trials into the 20th century or so.) Today, the SJC is largely an appellate court, deciding questions of law of broad and substantial import to the people of Massachusetts. Single Justices of the SJC also have unique powers, and there is a separate Clerk for the year-round Single Justice Session, but, that’s its own blogpost. For now, know that a Single Justice presides at Bar Admission Ceremonies. Justice Fernande R.V. Duffly presided at mine!

The SJC is composed of One Chief Justice and Six Associate Justices. The Justices, like all other Judges in Massachusetts, are nominated by the Governor and confirmed by the Executive Council. Justices are appointed for Life but face mandatory retirement at 70, and can continue to serve as Recall Justices, as needed. The Justices have varying backgrounds but almost all of them on this Court have previously served as Judges, save Justice Robert Cordy. (Justice Cordy though had a long career in Public Service and Private Practice, ranging from Public Defender to Federal Prosecutor to Counsel to Governor Weld. He also succeeded the first woman appointed to the SJC, Ruth Abrams.) Justice Duffly was born in Indonesia and is of Dutch and Chinese ancestry and is an alumna of the Probate and Family Court and the Appeals Court.  Justice Barbara Lenk is the first openly gay Justice on the SJC, although, while serving on the Appeals Court, she sat with now-retired Justice David Mills, who is also openly gay (both of whom were profiled by a Boston magazine on LGBT community, along with other trial judges.)

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Presently, Justice Francis X. Spina of Pittsfield is Western’ Massachusetts only resident on the SJC, but Chief Justice Roderick Ireland grew up in Springfield. Chief Justice Ireland is approaching mandatory retirement at 70, but his career on the bench spans nearly 40 years, including 13 in Boston’s Juvenile Court. Chief Justice Ireland was also the first African-American appointed to the SJC in 1997. Finally, Justice Margot Botsford and Justice Ralph Gants are both New Yorkers, former Prosecutors, both had long stints as trial judges in the Superior Court, including in the special Business Litigation Session in Boston.

The SJC also has a long and proud history of great jurists, including and especially from Western Massachusetts. Beyond Justice Spina, Justice Marcus Perrin Knowlton of Springfield succeeded Oliver Wendell Holmes as Chief Justice in 1902. Justice Francis Quirico of Pittsfield was among most respected trial judges before serving twelve prolific and independent years on the SJC. Indeed, Justice Quirico was-special called to preside at complex criminal trials in Boston (and the SJC upheld him.) Justice Botsford (Justice Quirico’s former Law Clerk) recalls going to dinner with Justice Quirico in the North End of Boston, and Justice Quirico always received a bottle of wine from someone he sent to prison! Justice John Greaney of Westfield recently retired after serving on the SJC for nearly 20 years, after serving as the second Chief Justice of the Appeals Court.

Although there are many other great Justices, for time and convenience, I will highlight four from more recent history: Richard Ammi Cutter, Benjamin Kaplan, Margaret Marshall, and Martha Browning Sosman. Justice Cutter was a member of the American Law Institute before his 1956 appointment to the SJC-where he had sixteen prescient and prolific years. Indeed, Justice Cutter dissented when the SJC upheld William Baird’s conviction for distributing vaginal foam (which the U.S. Supreme Court would later reverse in their long line of cases on the right to privacy.) Although Justice Cutter “retired” from the SJC at 70, he would go on to serve as a Special Master in a case in the original jurisdiction of the U.S. Supreme Court (a dispute between states), work as a Special Commissioner for Bar Reform, and, finally, at the age of 78, was recalled to the Appeals Court and sat there for 10 more years!

Justice Kaplan was Justice Cutter’s colleague in the Army during World War II. Both had pivotal roles in war crimes prosecutions; Justice Kaplan was one of the key drafters of the Nuremburg indictments. Justice Kaplan had practiced in New York, but, at Justice Cutter’s suggestion, after the war, he taught at Harvard Law School. Fittingly, Justice Kaplan succeeded Justice Cutter in 1972 and subsequently had nine prolific years on the SJC successfully protecting rule of law and individual rights in erudite and precise opinions. Still further befittingly, Justice Kaplan would join Justice Cutter as a Recall Justice on the Appeals Court, where Justice Kaplan would continue to sit until age 95! Touchingly, after Justice Duffly learned that Justice Kaplan still rode the Red Line T from Harvard Square to the Courthouse at Pemberton Square in his 80’s, she insisted that she would drive him to work. (And Justice Duffly’s then-Appeals Court colleagues all followed suit.)

A South African native, Chief Justice Marshall was actually a student leader against apartheid who fled on threat of her life.  After practicing privately and serving as President of the Boston Bar Association and General Counsel to Harvard, Chief Justice Marshall was the second woman appointed to the SJC in 1996 and was elevated to Chief Justice in 1999. Associate Justice Marshall wrote for the Court and upheld Louise Woodward’s conviction for manslaughter in the infamous au pair case.

Chief Justice Marshall’s landmark opinion in Goodridge is, of course, common knowledge. But, in the opinion’s wake, Chief Justice Marshall also fearlessly and fervently defended the role of the Judiciary in our government after factitious individuals attacked the Court. (The Onion thoughtfully spoofed Goodridge and leavened the issue with an article that the SJC would order all citizens to “gay-marry”, including Chief Justice Marshall.) Goodridge is the tip of a legacy that saw Chief Justice Marshall lead the SJC into other new legal frontiers. Indeed, after Chief Justice Marshall retired in 2011, the ACLU of Massachusetts honored her with the Roger Baldwin Award. She subsequently gave a beautifully touching speech about her time in South Africa which I had the privilege of hearing thanks to my friend and mentor, Nadine Strossen, and very nearly moved me to tears. (The speech remains available at www.aclum.org/marshall)

Finally, Justice Martha Sosman served on the SJC for an all too brief seven years in the 2000’s before she lost her battle with cancer. She was Justice Cordy’s long-time friend and colleague (and was born in October!), but most only remember her as one of the dissenters in Goodridge-and also criticized her for that ruling. That memory is blithely myopic.

Let me dispel a myth about all three dissenters in Goodridge . The question to them was NOT the morality of gay marriage. The fundamental question was if it was the province of the SJC to declare the marriage statutes unconstitutional qua gay people and redefine civil marriage’s availability-or if it was the province of the Legislature to redefine the availability of civil marriage. Justice Sosman thoughtfully and thoroughly asserted that the Court had failed to follow abide by their own decisions in that jurisprudential realm that accord deference to the Legislature.

Justice Sosman’s dissent ultimately reflects the keystone of her entire career: a fervent belief in independent internal intellectual honesty. Although Justice Sosman had a background that often led people to jump to conclusions (i.e. founder of an all-woman Boston firm board member at Planned Parenthood) her background never outweighed her independence; “[I am not nor was I…] going to be this crusading feminist liberal what-not.” Justice Sosman also never wavered in her views; when she was named a trial judge, people who had previously dismissed her (and her independence) showed up to celebrate her appointment. Justice Sosman retorted: “Do these people think I’ve developed amnesia?”

And her seven years on the SJC allowed Justice Sosman’s independent intellectual honesty to shine. Indeed, Justice Sosman was universally remembered by friends and colleagues as the smartest person they knew. Justice Sosman was a probing and prescient questioner at oral argument and she always lead the Court to the real issues-and resolved them thoughtfully and thoroughly.

And Justice Sosman was just as willing to apply her intellect in the name of individual rights.  In Commonwealth v. DiGiambattista, Justice Sosman brought the SJC into new waters by, in essence, requiring the police to record confessions. (Jurors would be instructed that, in the event of an unrecorded confession and its voluntariness was at issue, they would be required to weigh the voluntariness with special solicitude.) And, closer to home for this blog, Justice Sosman wrote that the State Police could not, without notice or specific suspicion, stop all drivers passing the Cobble Mountain Reservoir (even in the wake of 9/11.)

With this historical background in mind, you may wonder, how does a case reach the SJC? Well, in Massachusetts, there is a Trial Court with Seven Departments and the large majority of cases start there. Two departments have very general jurisdiction and hear most cases, the District Court and the Superior Court. The Boston Municipal Court hears largely the same cases as the District Court.  The four others (the Housing, Juvenile, Land, and Probate and Family Courts) have specialized (and more limited) jurisdiction-but the cases they hear are no less important. Indeed, the Juvenile Court has perhaps the most important caseload because of whose cases are heard there. The Juvenile Court hears cases involving children accused of committing crimes (juvenile delinquency), children needing assistance, adoptions, care and protection proceedings for children, among others.  (Chief Justice Ireland has written the treatise on Juvenile Law in Massachusetts.)

A common misconception is that an appeal is a chance to have the case done or tried all over again. This is simply not so. The remedy an appellate court orders may be a new trial. A claim of appeal though is a contention that some legal error occurred and prejudiced a particular party.

Suppose you are arrested for OUI (driving drunk). Your case will be heard and tried in one of the 62 District Courts in the Commonwealth, or the “gateway to justice,” in the words of one Chief Justice of the District Court. We’ll also suppose you drove drunk in Lenox. (You will be tried in the Pittsfield District Court.) Suppose you are convicted after a trial, notwithstanding that the arresting police officer was actually from Lee (and had no knowledge of you driving drunk in Lee or from Lee into Lenox or was requested to assist by the Lenox Police.) You can claim an appeal from your conviction to the Appeals Court on that basis-there is an error of law, namely, the police officer had no legal authority to arrest you.

The Appeals Court is where your appeal initially proceeds and is an intermediate court between the SJC and the Trial Court. The Appeals Court has existed since 1972 and is where most cases spend their appellate lives. Indeed, the Appeals Court was born to alleviate the growing load of cases in the SJC. But the Appeals Court is an outstanding institution in its own right. Indeed, the work of the Appeals Court and of several Appeals Court Justices has inspired me and my career.

To highlight four, Justice Donald Grant was one of the original six appointees in 1972 and was an appellate expert in Boston before he came to the bench. He then had sixteen productive and prolific years working to perfect the law of Massachusetts through crisply written opinions.  Justice Kent Smith sat with the Court for 31 years and wrote opinions spanning nearly 70 of the 84 volumes of Appeals Court reports until his untimely death last October. Justice Smith was also the first attorney appointed to represent indigent criminal defendants in Western Massachusetts-and subsequently wrote the treatise on criminal procedure.

Justice Gerald Gillerman, a veteran of Normandy (losing part of a leg) served twelve years (including eight on recall during the Appeals Court’s busiest backlog) and saw himself as a “teacher of the law”, working to make law comprehensible to all. And Justice Gillerman succeeded-his opinions usually have some pithy point a litigator can employ to succinctly but thoughtfully restate what the law is. Finally, there is Justice Susan Beck, who became a lawyer after becoming a mom. So devoted to the law was Justice Beck that she slept on the couch in her chambers. Similarly, Justice Beck was so devoted to the institution of the Appeals Court that she organized all kinds of random parties with her own baking. Her picture hangs over my desk to remind me to work for the same greatness in the law and collegiality she achieved. (Further memorials to Justices of the SJC and Appeals Court alike can be found at http://www.massreports.com.)

We now return to our hypothetical case. Every appeal from the Trial Court generally proceeds to the Appeals Court. A litigant, however, may apply for direct appellate review from the SJC, or the SJC may transfer a case in the Appeals Court to itself, depending on the issues. (A criminal defendant convicted of First Degree Murder appeals as of right directly to the SJC-which has special powers of review and has had such powers since the Sacco and Vanzetti cases.). But most appeals begin and end in the Appeals Court. The Appeals Court has one Chief Justice and twenty-four Associate Justices who typically sit in panels of three in Boston. But the Appeals Court does travel outside of Boston. In fact, this past month, an Appeals Court panel sat in Springfield to hear six cases.

In the Appeals Court, you (usually through your attorney) subsequently argue to the Panel that your arrest was unlawful (and subsequently, your conviction must be overturned) because the Lee officer had no authority to arrest you in Lenox for a crime that he did not witness you commit you in Lee (nor was he pursuing you into Lenox after witnessing the crime in Lee.) Your argument is made in a written brief of no more than 50 pages and 10-15 minutes of oral argument before the Panel, who will ask you questions to hone and clarify the issues.

Suppose you lose in the Appeals Court. You may then apply for further appellate review from the SJC. Further appellate review is rare; indeed, only 5% of those applications are granted. But, if there is a serious enough issue implicated by the case or a need for the SJC to clarify the law, the SJC tends to grant further appellate review. If you receive further appellate review, you may file a new brief and then you will have fifteen minutes to make a case to clarify the law. The Justices will then confer and deliberate about the case in private. However, after the conference, the Justices will publish a written opinion resolving the case and justifying why and how the case was decided. The SJC’s decision represents the final and conclusive view of the law of Massachusetts, as applied to the particular facts of your case and applicable to future cases. And, as discussed in Part 1, only if there is a question of federal law will you be able to seek certiorari from the U.S. Supreme Court.

So, why does the SJC matter?

First and foremost, although the SJC is obliged to interpret and apply the Federal Constitution, the SJC is also obliged to interpret and apply the Constitution of Massachusetts. Indeed, in 1783, the SJC recognized their authority to do just that and the attendant power of judicial review in a landmark ruling called Quock Walker.   A slave living in Barre, Worcester County, Quock Walker had been promised freedom at age 25 by his former master, James Caldwell. Caldwell died and his widow remarried one Jennison, perhaps an inspiration for Simon Legree. At 28, Quock Walker escaped to Caldwell’s sons, only to have Jennison kidnap and re-enslave him.

Three cases followed, all eventually reaching the SJC. Chief Justice William Cushing declared that slavery was inimical to the Massachusetts Constitution:  “The framers of our constitution of government [have declared] that all men are born free and equal and that every subject is entitled to liberty, and to have it guarded by the laws…slavery is…as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” Quock Walker’s case  not only vindicated his liberty but occurred some twenty years before the U.S. Supreme Court would recognize their power of judicial review under the Federal Constitution in Marbury v. Madison.

Since then, the SJC consistently recognized broader fundamental rights under the Massachusetts Constitution than the federal counterpart.  Beyond the gay marriage ruling and rulings in the realm of criminal procedure, the SJC has recognized a fundamental, judicially enforceable right of  the children of Massachusetts to an adequate public education. The SJC has likewise recognized the right of a candidate to solicit signatures for a ballot initiative at malls, a right to decline life-prolonging treatment that is co-equally available to competent and incompetent adults, the protection of live-streaming of court proceedings, and freestanding rights to reproductive privacy (namely, the Commonwealth may not restrict the availability of the public dollar to pay for abortions for indigent women.) Nude dancing is even protected by the Massachusetts Constitution as free expression. See Cabaret Enterprises v. Alcoholic Beverages Control Commission, 393 Mass. 13 (1984).

Admittedly, the Massachusetts Constitution and its function as a freestanding apparatus of progress is not always the every day affairs of  Courtroom One in Boston. But the lack of constitutional blockbusters is not the end of our inquiry. To the contrary, in the last year alone, the decisions the SJC render every day outside of constitutional law touch our lives in ways far closer to home than we may realize.

In a case called E.C.O. v. Compton, the SJC held that an Internet-based relationship could qualify a substantive dating relationship such that the abuse prevention statute (and its attendant protective orders) would apply. In Dos Santos v. Coleta, the SJC held that a landowner had a duty to remedy hazards that visitors would affirmatively choose to encounter and use, despite the obvious risks the hazards posed. (In the law, we call that the open and obvious doctrine, in that case, the hazard was a trampoline into in an inflatable swimming pool.) In City of Worcester v. College Hill Properties, the SJC held that properties where multiple unrelated college students resided were not “lodging houses” as a matter of law and subject to enhanced regulation (and enforcement). And, in Commonwealth v. Smeaton, a befitting bookend to our introductory hypothetical, the SJC read broadly where a campus police officer’s geographical authority to arrest begins and ends. Indeed, Smeaton arose from events occurring at Smith College in Northampton.

What’s the point? All of the issues implicated by this case hit us far closer to home in as much as they deal with fundamental issues of how we order (or have ordered) our lives and deal with the law. I suspect we are all likely to face the prospect of open and obvious hazards on land, use (or have used) the Internet to date, or even have an encounter with a campus police officer. I also suspect we also lived with roommates in college (or may be Landlords to college roommates.) We are not subject to enhanced regulation as a boarding house for making that decision.

But the real highlights are the SJC’s three April 5 companion landmarks on the impact of the Massachusetts marijuana reform initiative and encounters between the police and citizens. First, in Commonwealth v. Daniel, the SJC held that an officer who smells burnt marijuana and subsequently discovers the decriminalized amount (e.g. one ounce or less or one joint), without more, does not have probable cause to believe that a person is committing criminal possession of marijuana. Subsequently, the officer cannot search the person’s car.

Similarly, in Commonwealth v. Jackson, the SJC held that an officer who sees two people pass a single joint between the two of them does not have probable cause to believe a crime is occurring, and subsequently cannot search their person or effects incident to the arrest.  To elaborate, the real question in Jackson was whether or not social sharing of marijuana (e.g. passing a joint back and forth, as happened there on the Boston Common) amounts to criminal distribution of marijuana. If so, an officer witnessing such an act would have probable cause to arrest.

The SJC had not confronted that issue but expressly resolved it in Jackson: passing a joint back and forth socially does not amount to distribution as a matter of law. Such a result would be absurd and divorced from the marijuana reform act’s purpose and the statute’s purpose generally-to deter and stop that illicit trafficking, profit and sales. Accordingly, the officer who witnessed the joint get passed back and forth had no probable cause to arrest. Finally, in Commonwealth v. Pacheco, the SJC brought both principles from Daniel and Jackson together to hold that an officer lacked probable cause to believe occupants of a car sharing a joint were committing distribution (and to subsequently search the car.)

Why do these decisions matter?  These decisions provide guidance to the police and the citizens about the impact of the marijuana initiative. Probable cause to arrest is neither a mechanistic nor a formalistic inquiry. To the contrary, probable cause is an objective, common sense inquiry to determine if a reasonable person would believe it more likely than not that another person is committing a crime. Here, the SJC held that even under that common-sense inquiry, an officer cannot rest probable cause to arrest on the mere whiff of burnt marijuana or upon discovering one joint alone. The officer must have more facts in his knowledge or witness more.

The SJC’s holdings are also important because that the citizens of Massachusetts can take confidence in knowing that decriminalizing possession of small amounts of marijuana, for lack of a better maxim, means what it says. Marijuana reform is not license or a catch-all to permit or foster criminal conduct. However, citizens are not to face the mighty sword of the law and fear arrest for passing one joint back and forth. An officer could still arrest you if he finds a joint and then say, a brick of marijuana or something else that would lead a reasonable person to believe real distribution or the steps toward trafficking was occurring. But merely passing one joint back and forth or the existence of one joint or baggie is not enough. These decisions will provide guidance for years to come on an issue that is only going to recur and that other States are taking up, in the words of Brandeis, as laboratories of democracy.

So, that’s why (hopefully) I’ve shown you why the decisions of the SJC matter. The cases in the SJC touch how we live our lives on a more intimate and frequent basis than those at the U.S. Supreme Court, much like the other State Courts throughout the nation. The Judges of our State Courts (and the Lawyers who practice there) uniquely protect rule of law and our liberty-and we should not fear seeking vindication of our rights there under State Constitutions. And that has been the proud tradition in Massachusetts for the last 230 years, since the Massachusetts Constitution’s guarantees of liberty freed Quock Walker from slavery and servitude some 80 years before the Federal Constitution followed suit.

IMG_7376  Joe Schneiderman is an attorney in New England, a writer, and a karaoke enthusiast.

NAOS, The EMP, Drum Fest

Blogtoberfest Guest Post #5, by Leo Mazzeo

It’s been a fair amount of time since I last visited North Adams for the annual Open Studios Event there.  My last foray was as a guest exhibiting artist.  This time out was as an interested spectator and arts indie blogger.

Eclipse Mill

The decumbent autumnal greyness overhead saw the tires of my vehicle coming to rest in the attached roadside visitor’s lot of the Eclipse Mill, allowing a beginning terminus for the day’s planned cultural sortie.  Well, not quite a sortie, but I had envisioned an ambitious agenda and wanted to take in much during a limited amount of time.

Eclipse Mill

Photographer Stacey Hetherington was greeting visitors at a hallway table inside the main entrance of the mill.  When I arrived, she was in conversation with ceramicist Gail Sellers.  Photographer and ceramicist are, of course, only one each of the talents both engage in as both are multi-talented and very accomplished in many fields.

Stacey Hetherington

Sellers I’ve known for a time now in regional arts circles and Hetherington, I was just making acquaintance.  During the card and information exchange, I was bemused to learn, not for the first time, that the arts indie aura, presence, whatever it’s becoming, preceded me.  Fine.  Teamwork and good branding in action.  Bravo to all that have helped and supported!

So, I decided a start from the upper floors down might be the best way to go here and used the stairs to effect the plan.  First off, though, I don’t want to mislead and say I took it all in.  Not possible in the brief time I had and even a vastly more lengthy time as well, so I’ll just share a few accounts in a kind of breeze through manner to illustrate and illuminate a few tiny sections of the tip of the iceberg.

Eclipse Mill

Four floors the building has.  All with hallways filled with artwork created by the mill’s live-in artist residents.  And that’s just the hallways.  And that’s just the hallways.  Twice for emphasis.

Eclipse Mill

Eclipse Mill

Eclipse Mill

Eclipse Mill

This being an open studio event, studio doors, it follows suit, were open.  Liz Cunningham’s studio was the first studio I entered.  Cunningham, a longtime practitioner of the healing arts, has, over time, experimented with a broad range of media and combinations there of, but has found in her field and artistic practice, satisfaction in working as a printmaker with mixed media elements combined, particularly with found objects from nature.  Of her work, Cunningham states, “If my art does not evoke an emotion in me I do not consider it a finished piece.”

Liz Cunningham

Next, I visited with Wayne Hopkins, Tippy, and Cathy Wysocki.  The three share one of the larger spaces in the building.  Tippy is the studio manager and naps and treats specialist.

TippyHopkins is a premium caliber veteran and has shown widely in high-profile galleries and museums.  A graduate and later instructor at Boston’s Museum of Fine Arts, his work may be found in the museum’s collection, as well as The Fuller Museum of Art, The Zimmerli Art Museum Rutgers, and The Bank of Boston.  Looking through the galleries on his website, as well as what may be seen in his section of the space, one discerns that Hopkins paints broadly and completely from a core that ranges stoically from quiet, serene places to, well, decidedly and deliberately, not so quiet and serene places.

Wayne Hopkins

Wysocki is best known for a body of work centered around the Lumplanders.  In Wysocki’s words, “The Lumplanders are a society forming & devolving simultaneously.   A mangled & mutated lot.  Some in search of power and control, others trying to survive, and the hopefuls…they are looking for escape (perhaps to the sea).  Various theories have been posed by scientists, religious figures, and the medical community concerning their origin and their possible contagiousness.  The Lumplanders as a society are in the early stages of formation.  Only time will reveal their final outcome – hopefully, not a dismal repeat of past societies and civilizations throughout history.”

Cathy Wysocki

Cathy Wysocki

After leaving the welcoming, readily symbiotic cohesiveness of this trio, a floor down, I had the pleasure of spending some time with Betty Vera amidst her work and Jacquard weavings.  Vera garners inspiration and composition ideas for her weaves from all that she sees.  The world that surrounds her is her reference subject and her process begins with the most striking of imagery and evolves as she works, gleaning and building in an improvisational manner to the finished piece.

Betty Vera

Her top choices for inspiration are firmly landscape based and more specifically are thematically linked by urban elements such as street surfaces, walls, and alleyways.  Primarily, she works abstractly, which I liked and found compelling, though in some work she moves decidedly close to pure representational and often combines abstract and representational elements in a single piece.  Because each work begins in a setting of richly and heavily topical environs, a deep and abiding narrative is built into the work; one can imagine entry-level factory workers struggling and failing to make ends meet in minimum wage jobs, desolate and roughly graffitied back alleys, and glass and needle littered dead-end mugging scenes.

Betty Vera

From the second floor, I descended again via the stairwell to the first from whence I started and had a look at the current gallery show taking place in the mill’s Eclipse Gallery.  This artist-run space is used to showcase not only the work of resident artists, but non-resident artists based in the area as well.  The current show, “Progresiones”, features recent work by Joan Carney and Lichtenstein Center for the Arts studio artist Julio Granda.  Carney is showing abstract work on glass and Granda selections of his abstracts on canvas.

Eclipse Mill Gallery

Carney was in the gallery meeting with visitors.  During our conversation, we connected more dots and I received more illustration about how the former Berkshire Artisans thread runs strong through the North Adams arts scene.  Both Carney and Granda were heavily active in Berkshire Artisans, as was William Bettie, whom I encountered a bit later this day at Gallery 107.

Joan Carney

Before leaving the Eclipse for points onward, I ducked in quickly to say hey again with Phil and Gail Sellers at their homebase River Hill Pottery.  Both are longtime fixtures and icons of the regional arts scene and it was great to finally have a chance to see where they create their magic.  I was running way behind in my self-induced agenda, so we didn’t have time to talk more, but I was lucky enough to see Phil in action at the wheel working on a piece.

River Hill Pottery

Phil Sellers

As I mentioned previously, I did more dot connecting in regards to the Berkshire Artisans thread when I encountered William Bettie at Gallery 107.  Bettie, another member of Berkshire Artisans, knew both Carney and Granda, above, as well as Mario Caluori, whom I interviewed and featured at St. Francis Gallery in the post just prior to this one, and photographer Nicholas De Candia, a colleague and mentor of mine featured in other arts indie posts as well.  Bettie, now retired, has recently become more active with his artwork after a hiatus and is looking to return to showing more often.  Bettie works in pastels primarily en plein air for reference and finishes details upon returning to his studio.

William Bettie

Initially I had hoped to visit every stop on the Open Studios map, but it just wasn’t meant to be in the timeframe I had available.  I still wanted to zip down to Great Barrington for an opening, then zip back north to Berkshire Community College to do photography coverage of the “4th Annual Berkshire Drum & Dance Fest.”  So after my conversation with Bettie, I got back in my truck and started zipping.

"Nudes 'n' Trucks"

With now freshly buffed disks and pads, I arrived in Great Barrington with a bit less than a half-hour left in the announced time of the opening reception of “Nudes ‘n’ Trucks”, the delightfully quirky pairing of Roselle Chartock’s mixed-media collage nudes with Scott Taylor’s boldly painted, bright and colorful acrylic on canvas trucks.

"Nudes 'n' Trucks"

The venue is The Emporium Antiques & Art Center, 319 Main Street.  Proprietor Arthur Greenstone has recently hired Bethy Bacon as manager for the business and as curator for a new series of art shows in the venue.  Taylor’s trucks, along with some fine samples of his landscape work, hang in the southern room of the two-chambered space, while Chartock’s nudes hang on the southern wall of the northern.

"Nudes 'n' Trucks"

Roselle Chartock

Because I still needed to be punctual for the photography gig at BCC, I again was pressed for time and barely had a chance to say hello and goodbye here, but I did manage to snap off a few photos in my hurry.  Yes, and it is possible to travel from Great Barrington to Berkshire Community College in less than a half-hour while consuming a McDonald’s #6 meal.

Be that as it may, I was on time for this appointed assignment and throttled down to take in the scene as it unfolded before me, rather than feeling internal self-drive to rush my work and be on edge to find ways for making it happen quicker.

"4th Annual Berkshire Drum & Dance Fest"

The Berkshire Drum & Dance Fest is an annual showcase for some of the area’s finest talent on percussive instruments and accompanying dance.  Organized by Environmental and Cultural Educator Aimee Gelinas, this year’s edition featured youth performers in a high-spirited evening of multi-cultural, intergenerational, family-friendly entertainment.

"4th Annual Drum & Dance Fest"

Beginning at 7:30PM, BCC’s Robert Boland Theater in the Koussevitzky Arts Center pulsed and undulated with the unifying language of rhythm and movement.  Artists from the Berkshires and beyond performed with passion traditional pieces from a wide range of cultural backgrounds, including West African, Haitian, Puerto Rican, Caribbean, and more.

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

Individual and group performers appearing on stage included Berkshire Pulse, Williams College Kusika Drum & Dance, Youth Alive Step Dance Team & Drum Corps, Christopher Hairston, Matthew “el diablitto” Perez, Adams Youth Center Inc., & Berkshire Rhythm Keepers, Grupo Folklorico El Coqui, Hillcrest Educational Center Drummers, Tommy “Two-Step” Brown, Beat Mob, and Iroko Nuevo Junior.

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

The grand finale included performers from all of the above as well as guests and a special, large-than-life appearance courtesy of the Robbins-Zust Marionettes.

"4th Annual Drum & Dance Fest"

"4th Annual Drum & Dance Fest"

Phew and wow.  It was quite a day.  Hope you’ve enjoyed reading and viewing the account.  I’d meant to have this piece ready some days earlier, but life and other arts indie work pushed the posting out a bit further than I intended.  However, busy is good and knowing the folks in the subscriber list, I know your days run in similar fashion.  Hope all is well with all and hope to see you soon at something.  Take care!

Leo Mazzeo is a visual artist working primarily in oils, as well as in watercolors, pastels, photography, video, and various mixed media. He’s also an arts blogger at artsindie.com; leomazzeo.com