T&E Litigation Newsletter - 6/27/12

June 27, 2012Advisories
The past month has been relatively quiet, but there were a few developments in Massachusetts and elsewhere worth noting.
First, on June 19, 2012, the Probate Court announced the approval of Amended Standing Order 2-99, governing the “Procedure for Submission and Disposition of Certain Post-Hearing Motions.”  The Amended Standing Order, which can be found here, identifies the post-hearing relief available in the Probate Court and clarifies the specific Rules of Civil Procedure and Domestic Relations Procedure that are applicable to motions for post-hearing relief.
Second, in the recently published decision in Carlson v. Mayer, Case No. MICV2010-02328-F, 2012 Mass. Super. LEXIS 116 (April 6, 2012), the Middlesex Superior Court denied the summary judgment motion of a lawyer appointed as commissioner to partition by sale certain property held in an estate.  He had been sued by the executor for his actions (or inactions) as commissioner.  
In August 2009, a prospective purchaser signed an agreement to buy the property, and paid a deposit of $120,000 to the commissioner.  When the prospective purchaser later decided not the buy the property, because he claimed that the executor had failed to meet certain contingencies, the commissioner returned the deposit without an order or instruction from the Probate Court.  The executor then brought suit against the commissioner in the Superior Court, alleging among other things that he had mishandled the deposit.  
In moving for summary judgment, the commissioner argued that he was acting in a quasi-judicial function and thus is immune from suit.  Though the Superior Court agreed that partition commissioners are non-judicial officers fulfilling quasi-judicial functions, the Court nonetheless held that judicial immunity does not apply in this case as a matter of law because the alleged mishandling of the deposit was not conducted in furtherance of an attempted sale of the property.  As the Court explained, the act of returning the prospective purchaser’s deposit in the course of the non-sale, without the Probate Court’s sanction, was not a specifically delegated function, and a genuine issue of material fact exists as to whether the warrant prescribing the commissioner’s duties was still active at the time he returned the deposit.
Third, in Windsor v. United States, Case No. 10-cv-08435-BSJ (S.D.N.Y June 6, 2012), the U.S. District Court for the Southern District of New York addressed the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), which defines marriage as a legal union between a man and a woman as husband and wife.  Because of this definition in Section 3 of DOMA, the plaintiff was required to pay $363,053 in federal estate tax on her same-sex spouse’s estate.  The plaintiff paid the tax in her capacity as executrix of the estate, and then filed suit, seeking a refund of the tax and a declaration that Section 3 of DOMA violates the Equal Protection Clause of the Fifth Amendment.  The Court entered summary judgment in her favor, holding Section 3 of DOMA to be unconstitutional as applied to the plaintiff and awarding her $353,053 plus interest and costs.

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