second part test in Massachusetts

2013Because defense counsel’s conduct does not fall below that of an ordinary, fallible lawyer, we need not reach the second part of the test for ineffective assistance of counsel, i.e., whether his conduct prejudiced the defendant by depriving him “of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2003The second part of the test in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), speaks of the deprivation of an otherwise available, substantial ground of defense.

2014For example, “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Batson v. Kentucky, supra at 97 . 1 “We ‘will not overturn the judge’s ruling if there is a sound basis in the record for her ruling.’ ” Commonwealth v. Walker, 69 Mass. App. Ct. 137, 142 (2007), quoting from Commonwealth v. Suarez, supra. In Walker , this court concluded that an implicit finding of no pattern of improper challenges was supported in the record. 69 Mass. App. Ct. at 142 .

2014The second element required to rebut the presumption that the peremptory challenges were exercised properly is a showing that it is likely that the individuals were being excluded solely on the basis of their group membership. “[I]n evaluating the second part of the test, the judge was entitled ... to consider ‘other relevant circumstances’ available to him in deciding whether the defendant adequately rebutted the presumption that the prosecutor made . . . proper challenge^].” Commonwealth v. Issa, 466 Mass. 1, 10 (2013), quoting from Batson v. Kentucky, 476 U.S. at 96 .

2011See Cory, supra. “If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id., quoting Smith v. Doe, 538 U.S. 84, 92 (2003).

2009If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Smith v. Doe, supra at 92 , quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997).

2017See, e.g., Goldstein v. Studley, 452 S.W.2d 75, 80 (Mo. 1970) (shareholders unable to break deadlock where shares evenly divided and board contained four directors).

2017L. c. 231, § 59H (petitioning activities include "any written or oral statement made before or submitted to a . . . judicial body" or "made in connection with an issue under consideration or review by a . . . judicial body"); Van Liew, 474 Mass. at 36 (application for harassment prevention order qualified as petitioning activity under anti-SLAPP statute).6 The focus of our inquiry is therefore on the second part of the test, which shifts the burden to the nonmoving party to prove "by a preponderance of the evidence" that the petitioning activities at issue were "devoid of any reasonable factua

2017L. c. 231, § 59H (petitioning activities include "any written or oral statement made before or submitted to a . . . judicial body" or "made in connection with an issue under consideration or review by a . . . judicial body"); Van Liew, 474 Mass. at 36 (application for harassment prevention order qualified as petitioning activity under anti-SLAPP statute).6 The focus of our inquiry is therefore on the second part of the test, which shifts the burden to the nonmoving party to prove "by a preponderance of the evidence" that the petitioning activities at issue were "devoid of any reasonable factua

2015See id.

2015See Maggio, 824 F.2d. at 129 (“Even assuming that defendants owed plaintiff a fiduciary duty.....plaintiff’s prolonged failure to investigate the possibility of fraudulent conduct in light of the abundant facts known to him . . . can hardly be characterized as due diligence”); Kravetz v. United States Trust Co., 941 F. Supp. 1295, 1303-1309 (D.

2015See Maggio, 824 F.2d. at 129 (“Even assuming that defendants owed plaintiff a fiduciary duty.....plaintiff’s prolonged failure to investigate the possibility of fraudulent conduct in light of the abundant facts known to him . . . can hardly be characterized as due diligence”); Kravetz v. United States Trust Co., 941 F. Supp. 1295, 1303-1309 (D.

2014The second element required to rebut the presumption that the peremptory challenges were exercised properly is a showing that it is likely that the individuals were being excluded solely on the basis of their group membership. “[I]n evaluating the second part of the test, the judge was entitled ... to consider ‘other relevant circumstances’ available to him in deciding whether the defendant adequately rebutted the presumption that the prosecutor made . . . proper challenge^].” Commonwealth v. Issa, 466 Mass. 1, 10 (2013), quoting from Batson v. Kentucky, 476 U.S. at 96 .

2014“This leaves the second part of the waiver inquiry: prejudice. ‘Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or it can be found when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense.’ ” Johnson Assocs., 680 F.3d at 719-20 , quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991). ‘To be sure, prejudice is essential for a waiver — but the required showing is ‘tame at best.’ S

2014For example, “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Batson v. Kentucky, supra at 97 . 1 “We ‘will not overturn the judge’s ruling if there is a sound basis in the record for her ruling.’ ” Commonwealth v. Walker, 69 Mass. App. Ct. 137, 142 (2007), quoting from Commonwealth v. Suarez, supra. In Walker , this court concluded that an implicit finding of no pattern of improper challenges was supported in the record. 69 Mass. App. Ct. at 142 .

2014For example, “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Batson v. Kentucky, supra at 97 . 1 “We ‘will not overturn the judge’s ruling if there is a sound basis in the record for her ruling.’ ” Commonwealth v. Walker, 69 Mass. App. Ct. 137, 142 (2007), quoting from Commonwealth v. Suarez, supra. In Walker , this court concluded that an implicit finding of no pattern of improper challenges was supported in the record. 69 Mass. App. Ct. at 142 .

2014“This leaves the second part of the waiver inquiry: prejudice. ‘Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or it can be found when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense.’ ” Johnson Assocs., 680 F.3d at 719-20 , quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991). ‘To be sure, prejudice is essential for a waiver — but the required showing is ‘tame at best.’ S

2014“This leaves the second part of the waiver inquiry: prejudice. ‘Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or it can be found when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense.’ ” Johnson Assocs., 680 F.3d at 719-20 , quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991). ‘To be sure, prejudice is essential for a waiver — but the required showing is ‘tame at best.’ S

2012As recognized on direct appeal, “This is not a case in which there was a single eyewitness and little or no evidence to corroborate the identification.” Commonwealth v. DiBenedetto, 427 Mass. at 420.

2011See Cory, supra. “If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id., quoting Smith v. Doe, 538 U.S. 84, 92 (2003).

2011See Cory, supra. “If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id., quoting Smith v. Doe, 538 U.S. 84, 92 (2003).

2009Under the well-established standard, the court must determine whether the “result might have differed absent the error.” Blackstone v. Cashman, 448 Mass. 255, 270 (2007).

2009If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Smith v. Doe, supra at 92 , quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997).

2008The second part of our analysis requires “substantial deference” to the expertise and statutory “ ‘interpretation of [the] agency charged with primary responsibility’ for administering a statute.” Goldberg v. Board of Health of Granby supra, citing Briggs v. Commonwealth, 429 Mass. 241, 253 (1999).

2008Although we have noted that the act’s text “is not without its ambiguities,” Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354 (1973), the standards to be applied by the committee in reviewing board decisions are clear from the express language of the act.