WEBVTT
1
00:00:00.230 --> 00:00:04.863
SJC-12875 Commonwealth vs. Francis X Harding Jr.
2
00:00:07.210 --> 00:00:09.281
Mr Kendall, you may proceed.
3
00:00:09.281 --> 00:00:11.640
Thank you. Good morning.
4
00:00:11.640 --> 00:00:14.690
May I please record Eric Tennen on behalf of Mr. Harding,
5
00:00:14.690 --> 00:00:16.830
and with me on the phone as Mike Farrington,
6
00:00:16.830 --> 00:00:19.193
who was the attorney below.
7
00:00:20.280 --> 00:00:23.320
Like so many people unlike so many registered person,
8
00:00:23.320 --> 00:00:26.150
Mr. Harding ran a business out of his home.
9
00:00:26.150 --> 00:00:28.570
He did it for years and years and years
10
00:00:28.570 --> 00:00:31.110
and although he provided services outside of the home,
11
00:00:31.110 --> 00:00:33.960
his place of employment was always his home.
12
00:00:33.960 --> 00:00:37.000
Harding was what we refer to it self-employed
13
00:00:37.000 --> 00:00:39.360
and for people like him, sometimes registration
14
00:00:39.360 --> 00:00:40.830
can be confusing.
15
00:00:40.830 --> 00:00:43.960
The statute defines employment in terms of time.
16
00:00:43.960 --> 00:00:47.210
You are employed for registration purposes based on how long
17
00:00:47.210 --> 00:00:49.100
or how little you work somewhere.
18
00:00:49.100 --> 00:00:51.680
But when you provide services in different places
19
00:00:51.680 --> 00:00:53.570
that can be a little confusing.
20
00:00:53.570 --> 00:00:55.390
That's why he registered his home address
21
00:00:55.390 --> 00:00:57.150
as his place of employment.
22
00:00:57.150 --> 00:00:59.823
First the store form actually allows for that,
23
00:00:59.823 --> 00:01:02.760
that for someone to register as self employed.
24
00:01:02.760 --> 00:01:05.330
And secondly, no one ever thought this was wrong.
25
00:01:05.330 --> 00:01:07.680
His lawyer counseled him. This was the way to do it.
26
00:01:07.680 --> 00:01:09.580
And his probation officer was well aware
27
00:01:09.580 --> 00:01:11.641
that this is how he was registering.
28
00:01:11.641 --> 00:01:15.170
The legislature I suppose could have defined employment
29
00:01:15.170 --> 00:01:17.640
for registration purposes in some other way.
30
00:01:17.640 --> 00:01:20.151
It could have defined it based on what you do
31
00:01:20.151 --> 00:01:22.671
not how long you do it.
32
00:01:22.671 --> 00:01:26.110
That's how it set parameters and other context
33
00:01:26.110 --> 00:01:28.530
and where employment needs to be defined,
34
00:01:28.530 --> 00:01:31.960
where it's defined based on the services you provide.
35
00:01:31.960 --> 00:01:34.711
And had they defined it that way, he may well
36
00:01:34.711 --> 00:01:36.530
have had preregistered the address
37
00:01:36.530 --> 00:01:39.801
where he provided services.
38
00:01:39.801 --> 00:01:43.690
But that would be in this context a little absurd,
39
00:01:43.690 --> 00:01:47.090
burdensome and really impossible to manage.
40
00:01:47.090 --> 00:01:51.052
And so the legislature defined employment based on timing.
41
00:01:51.052 --> 00:01:53.730
And it makes sense that someone should only register
42
00:01:53.730 --> 00:01:56.960
an employment address that has a little more permanence.
43
00:01:56.960 --> 00:01:58.830
And for someone like Harding that was his home
44
00:01:58.830 --> 00:02:00.650
where he was self employed.
45
00:02:00.650 --> 00:02:01.560
Requiring anything else,
46
00:02:01.560 --> 00:02:04.750
create several problems including two big ones,
47
00:02:04.750 --> 00:02:07.293
one general and one specific to this case.
48
00:02:07.293 --> 00:02:09.480
Generally, it really makes it virtually impossible
49
00:02:09.480 --> 00:02:11.190
for anyone to comply with.
50
00:02:11.190 --> 00:02:14.013
If you have to register a place where you provide services
51
00:02:14.013 --> 00:02:17.720
for 10 days in a row, when you registered that address?
52
00:02:17.720 --> 00:02:19.597
Especially if you don't know how long a job is gonna be.
53
00:02:19.597 --> 00:02:21.520
Do you do it on day one?
54
00:02:21.520 --> 00:02:24.200
But if you only worked eight days, then what?
55
00:02:24.200 --> 00:02:26.420
Do you do it on day 10?
56
00:02:26.420 --> 00:02:28.220
And then on day 11 when you're done,
57
00:02:28.220 --> 00:02:30.050
you now have to unregistered.
58
00:02:30.050 --> 00:02:31.113
It becomes unwieldy.
59
00:02:31.970 --> 00:02:36.130
Then a specific problem in this case is that Mr. Harding
60
00:02:36.130 --> 00:02:38.260
could not have possibly know about this
61
00:02:38.260 --> 00:02:40.493
in the facts of this case.
62
00:02:41.580 --> 00:02:44.168
And the Commonwealth concede this point,
63
00:02:44.168 --> 00:02:48.640
that he just couldn't have been unknowingly violation,
64
00:02:48.640 --> 00:02:51.040
because there was no way he hadn't noticed since
65
00:02:51.040 --> 00:02:54.400
he had advice from, from his lawyer saying otherwise
66
00:02:54.400 --> 00:02:56.750
and because probation office was aware of this
67
00:02:56.750 --> 00:02:58.400
and they didn't tell him it was erroneous,
68
00:02:58.400 --> 00:03:01.900
nor did they ever contact, sort of themselves
69
00:03:01.900 --> 00:03:04.093
to indicate otherwise.
70
00:03:05.210 --> 00:03:08.940
Secondly, and briefly the second condition,
71
00:03:08.940 --> 00:03:12.540
I would submit that the Judge Harrington finding
72
00:03:12.540 --> 00:03:16.230
that he violated his probation by working with children.
73
00:03:16.230 --> 00:03:18.940
And it's important to know that the condition was always
74
00:03:18.940 --> 00:03:23.337
that he not "Work, volunteer, reside with children."
75
00:03:24.290 --> 00:03:25.620
The notice of the violation.
76
00:03:25.620 --> 00:03:27.680
And this is the theory of the judge seemed to adopt
77
00:03:27.680 --> 00:03:31.447
is that he valued the condition of working "Where children
78
00:03:31.447 --> 00:03:32.620
"are present."
79
00:03:32.620 --> 00:03:34.670
And those are not the same thing.
80
00:03:34.670 --> 00:03:36.570
Working with children means something different
81
00:03:36.570 --> 00:03:38.613
than working where children are present.
82
00:03:39.790 --> 00:03:42.280
And if you read the condition as it was written
83
00:03:42.280 --> 00:03:45.890
and intended, it's clear that there was no factual
84
00:03:45.890 --> 00:03:49.020
or legal basis that they'd give out that conditions here.
85
00:03:49.020 --> 00:03:51.810
And there are similar arguments here,
86
00:03:51.810 --> 00:03:55.698
with the first issue in terms of what does it mean,
87
00:03:55.698 --> 00:03:59.940
how do you interpret this, and what the parameters are.
88
00:03:59.940 --> 00:04:03.010
And I think when you read that in context, it's clear
89
00:04:03.010 --> 00:04:05.740
that he didn't violate this condition either.
90
00:04:05.740 --> 00:04:07.240
At this point I guess I would open it up
91
00:04:07.240 --> 00:04:08.780
to any questions from the court.
92
00:04:08.780 --> 00:04:11.391
Okay. Before we do that, if anybody's who is not speaking
93
00:04:11.391 --> 00:04:13.633
has not muted their phone, please do,
94
00:04:14.860 --> 00:04:16.332
for the respect around noise
95
00:04:16.332 --> 00:04:18.140
then, Justice Lenk, you may proceed.
96
00:04:18.140 --> 00:04:21.743
Yes, hi thanks Mr. Tennen, good morning.
97
00:04:22.698 --> 00:04:24.710
Our question has to do with the fact that
98
00:04:24.710 --> 00:04:26.910
if the Commonwealth has conceded the point
99
00:04:26.910 --> 00:04:28.280
that he did not know how to deal with that
100
00:04:28.280 --> 00:04:30.113
he did not know how to deal with that sick evidence proves
101
00:04:30.113 --> 00:04:31.420
that he knowingly (static drowns out sound)
102
00:04:31.420 --> 00:04:33.460
Does that rule out one of these things,
103
00:04:33.460 --> 00:04:35.453
one of the convictions?
104
00:04:35.453 --> 00:04:36.902
I think it does.
105
00:04:36.902 --> 00:04:41.680
You know, this court took a direct appellate review.
106
00:04:41.680 --> 00:04:44.100
I don't know if it was aware of that or not.
107
00:04:44.100 --> 00:04:46.360
I think it moves it out in terms of the finding.
108
00:04:46.360 --> 00:04:49.070
I think this court can and still should provide
109
00:04:49.070 --> 00:04:52.251
some guidance about what people in Mr. Harding's situation
110
00:04:52.251 --> 00:04:55.563
can or should do moving forward.
111
00:04:56.410 --> 00:04:58.120
Yeah, that doesn't do anything for the other conviction,
112
00:04:58.120 --> 00:05:00.120
I take it. There's one on having to do with the child.
113
00:05:00.120 --> 00:05:01.810
Correct, they're separate.
114
00:05:01.810 --> 00:05:04.050
They're separate issues, I agree with that.
115
00:05:04.050 --> 00:05:05.580
Okay. Those are my questions.
116
00:05:05.580 --> 00:05:06.869
Thank you very much.
117
00:05:06.869 --> 00:05:08.340
Justice Gaziano.
118
00:05:08.340 --> 00:05:11.073
A quick question, look at judge's findings.
119
00:05:12.640 --> 00:05:15.710
Was the judge basically finding that he was engaged
120
00:05:15.710 --> 00:05:18.560
in separate instances of employment
121
00:05:18.560 --> 00:05:21.920
so that if he exceeded the requisite number of days,
122
00:05:21.920 --> 00:05:26.920
at one particular job site, he was employed by that family
123
00:05:27.490 --> 00:05:28.790
who owned the land home.
124
00:05:28.790 --> 00:05:32.010
And that's... so they use a definition of employment
125
00:05:32.010 --> 00:05:35.030
to transcribe it to a workplace.
126
00:05:35.030 --> 00:05:37.233
Is that your read of what the judge did?
127
00:05:38.080 --> 00:05:40.380
I think it has to be Judge Gaziano
128
00:05:40.380 --> 00:05:42.070
because that's the only way it makes sense
129
00:05:42.070 --> 00:05:43.887
that the judge was just adding up and saying,
130
00:05:43.887 --> 00:05:46.787
"Well, here you were more than X number of times
131
00:05:46.787 --> 00:05:48.547
"as the statute says so I'm going to say
132
00:05:48.547 --> 00:05:52.627
"that you were employed there, right by this family,
133
00:05:52.627 --> 00:05:54.410
"you know, at this house that was your employer."
134
00:05:54.410 --> 00:05:57.240
I think that's the only way to read what the judge did here.
135
00:05:57.240 --> 00:06:01.670
Right, so in what way, if at all,
136
00:06:01.670 --> 00:06:04.490
do we use the definition of employment
137
00:06:04.490 --> 00:06:08.283
and help us tease out what the legislation meant by,
138
00:06:10.510 --> 00:06:11.510
place of employment?
139
00:06:12.601 --> 00:06:15.630
By work address, I'm sorry.
140
00:06:15.630 --> 00:06:16.583
Sure.
141
00:06:16.583 --> 00:06:19.700
The problem is I think that definition only gets you so far.
142
00:06:19.700 --> 00:06:21.500
It doesn't answer the question here.
143
00:06:22.731 --> 00:06:23.564
And so you have to look at other things.
144
00:06:23.564 --> 00:06:25.743
You have to look at a little bit of context.
145
00:06:26.610 --> 00:06:30.330
It does define it based on time, not what you do.
146
00:06:30.330 --> 00:06:32.580
I think that's the first important thing.
147
00:06:32.580 --> 00:06:36.270
So that it's looking for something a little more permanent.
148
00:06:36.270 --> 00:06:38.940
It doesn't want people to register if they work some,
149
00:06:38.940 --> 00:06:41.080
if they provide services, you know, one day here
150
00:06:41.080 --> 00:06:41.913
or one day there.
151
00:06:41.913 --> 00:06:43.790
So that's the first clue I think you have.
152
00:06:44.770 --> 00:06:46.550
And you also have to look at the fact
153
00:06:46.550 --> 00:06:48.500
that you can register as self employed.
154
00:06:49.350 --> 00:06:51.710
And so you start putting these things together
155
00:06:51.710 --> 00:06:54.850
and I think the best interpretation you can give based
156
00:06:54.850 --> 00:06:56.930
on what little we have from the legislature
157
00:06:56.930 --> 00:07:00.000
is that there are some instances in which people
158
00:07:00.000 --> 00:07:02.880
don't have to register places where they provide service,
159
00:07:02.880 --> 00:07:04.800
regardless of how long they do it.
160
00:07:04.800 --> 00:07:06.970
If that is really not where they're employed.
161
00:07:06.970 --> 00:07:10.690
If they're self employed and their center of business
162
00:07:10.690 --> 00:07:13.470
is somewhere else, then they don't have to register
163
00:07:13.470 --> 00:07:16.809
every time they go out and do something related to that job.
164
00:07:16.809 --> 00:07:21.120
Next question and the final one I have is,
165
00:07:21.120 --> 00:07:24.972
when your client provided the invoices to show
166
00:07:24.972 --> 00:07:27.910
that he was employed to the probation officer,
167
00:07:27.910 --> 00:07:30.610
I assume that they, there were invoices, you know,
168
00:07:30.610 --> 00:07:33.300
I'm doing the window job at this house in the next month,
169
00:07:33.300 --> 00:07:36.210
perhaps the same invoice for the same job site.
170
00:07:36.210 --> 00:07:38.780
So there's no, there's no surprise
171
00:07:38.780 --> 00:07:42.700
that he was doing extended, carpentry services
172
00:07:42.700 --> 00:07:45.961
for people past the 14 days, correct?
173
00:07:45.961 --> 00:07:48.803
Correct. And some of those invoices,
174
00:07:48.803 --> 00:07:52.262
I think all of those invoices are in the appendant.
175
00:07:52.262 --> 00:07:53.243
Yeah, there in the appendant.
176
00:07:55.093 --> 00:07:57.190
And so you can see the address of the home
177
00:07:57.190 --> 00:07:58.400
where he was providing with services
178
00:07:58.400 --> 00:08:02.230
and you can see a description of what those services were
179
00:08:02.230 --> 00:08:04.180
and then there's a date of it in where.
180
00:08:05.380 --> 00:08:07.046
Great. Thanks. That's all the questions I have.
181
00:08:07.046 --> 00:08:07.879
Thank you.
182
00:08:07.879 --> 00:08:09.030
Justice Lowy.
183
00:08:09.030 --> 00:08:10.532
Mr. Tennen, good morning.
184
00:08:10.532 --> 00:08:13.660
I know that these are not, your facts,
185
00:08:13.660 --> 00:08:18.570
but if you have an individual who's self-employed
186
00:08:18.570 --> 00:08:23.161
and does construction employed in Newton,
187
00:08:23.161 --> 00:08:25.300
that's where his office is.
188
00:08:25.300 --> 00:08:29.130
But he's building an addition at a house in when
189
00:08:29.130 --> 00:08:30.860
and he need to know he's going to be there
190
00:08:30.860 --> 00:08:34.253
for four months building the addition.
191
00:08:35.270 --> 00:08:38.190
In that circumstance, would he need, in your opinion
192
00:08:38.190 --> 00:08:42.040
to have to register that he was working in When as well?
193
00:08:42.040 --> 00:08:43.260
I don't think so.
194
00:08:43.260 --> 00:08:48.260
And I think it gets back to, the way in which,
195
00:08:49.810 --> 00:08:53.881
the legislature chose to, define work
196
00:08:53.881 --> 00:08:56.210
for this situation versus something else.
197
00:08:56.210 --> 00:08:59.220
He's providing services somewhere other than
198
00:08:59.220 --> 00:09:00.300
where he's self employed.
199
00:09:00.300 --> 00:09:01.133
I agree with that.
200
00:09:01.133 --> 00:09:03.680
And he's providing services for a time period longer
201
00:09:03.680 --> 00:09:06.420
than what the statute that finds his work.
202
00:09:06.420 --> 00:09:09.160
But that's not what he's employed
203
00:09:09.160 --> 00:09:11.910
and that's what the statute is really getting at.
204
00:09:11.910 --> 00:09:14.030
So I don't think in that, even in that situation,
205
00:09:14.030 --> 00:09:16.000
he would have to provide or you have to register
206
00:09:16.000 --> 00:09:18.732
the address where he's providing those services.
207
00:09:18.732 --> 00:09:22.130
Okay, now one last question.
208
00:09:22.130 --> 00:09:24.683
The tradition of working with children,
209
00:09:26.670 --> 00:09:30.800
you suggest that, that means a job where you work
210
00:09:30.800 --> 00:09:33.480
with children, not that children are present,
211
00:09:33.480 --> 00:09:36.683
but if you had a carpenter,
212
00:09:37.530 --> 00:09:42.160
who was working at a location where there were,
213
00:09:42.160 --> 00:09:47.090
you know, teenagers coming home after work, turn key,
214
00:09:47.090 --> 00:09:50.860
and the carpenters is in there,
215
00:09:50.860 --> 00:09:52.987
he might been violating different condition of probation
216
00:09:52.987 --> 00:09:54.910
if he has to stay away from children,
217
00:09:54.910 --> 00:09:56.662
would you agree with that?
218
00:09:56.662 --> 00:09:58.220
Absolutely.
219
00:09:58.220 --> 00:09:59.620
Okay, that's all I have.
220
00:09:59.620 --> 00:10:00.938
Thank you.
221
00:10:00.938 --> 00:10:02.033
Justice Budd.
222
00:10:03.280 --> 00:10:04.808
Good morning.
223
00:10:04.808 --> 00:10:06.530
Morning.
224
00:10:06.530 --> 00:10:08.063
For the first issue.
225
00:10:09.180 --> 00:10:11.467
I'm just trying to figure out, doesn't your definition
226
00:10:11.467 --> 00:10:14.730
or the way you, you're defining or the way
227
00:10:14.730 --> 00:10:18.970
you're interpreting, employment defeat, the purpose
228
00:10:18.970 --> 00:10:22.180
of listing the places of employment,
229
00:10:22.180 --> 00:10:26.433
if they're 14 or more consecutive days or 30 days total.
230
00:10:27.300 --> 00:10:28.610
Do you know what I mean?
231
00:10:28.610 --> 00:10:30.958
I do know what you mean. I think I know what you mean.
232
00:10:30.958 --> 00:10:31.846
(laughs)
233
00:10:31.846 --> 00:10:33.340
My answer I guess will tell you
234
00:10:33.340 --> 00:10:34.358
whether I know what you mean.
235
00:10:34.358 --> 00:10:35.191
All right.
236
00:10:35.191 --> 00:10:39.760
So I don't think it's possible
237
00:10:39.760 --> 00:10:41.680
or I think the legislature made a decision to say,
238
00:10:41.680 --> 00:10:45.510
you know, it can't, it's not going to be possible for people
239
00:10:45.510 --> 00:10:48.050
to registered literally everywhere they provide services
240
00:10:48.050 --> 00:10:49.646
in some situations.
241
00:10:49.646 --> 00:10:52.620
And nor do we even want that.
242
00:10:52.620 --> 00:10:55.140
Do we want, you know, someone registering a home
243
00:10:55.140 --> 00:10:58.370
that they're worked at, provided some services after one day
244
00:10:58.370 --> 00:11:02.330
and now that family has their home published publicly
245
00:11:02.330 --> 00:11:04.680
as a place of employment, when that's not really what it is.
246
00:11:04.680 --> 00:11:07.310
So the legislature had to make a decision about
247
00:11:07.310 --> 00:11:10.750
what, you know, how to navigate this and they've done.
248
00:11:10.750 --> 00:11:13.680
I think the best they could because any other interpretation
249
00:11:13.680 --> 00:11:15.400
really makes us unwieldy.
250
00:11:15.400 --> 00:11:17.830
And the other thing I think that,
251
00:11:17.830 --> 00:11:19.730
is sort of a failed pay fair is that
252
00:11:19.730 --> 00:11:22.420
they have internet dissemination.
253
00:11:22.420 --> 00:11:24.160
And despite what I may think of that,
254
00:11:24.160 --> 00:11:25.860
that is a fail safe, which is,
255
00:11:25.860 --> 00:11:28.420
you can still look somebody up by name.
256
00:11:28.420 --> 00:11:30.320
You don't have to look them up by address.
257
00:11:30.320 --> 00:11:32.480
And so Mr. Harding is a good example.
258
00:11:32.480 --> 00:11:35.090
He's a level three, and if you look him up by name,
259
00:11:35.090 --> 00:11:36.950
you would find his status.
260
00:11:36.950 --> 00:11:39.600
He doesn't need to register everywhere he provide services
261
00:11:39.600 --> 00:11:40.880
for that to be available.
262
00:11:40.880 --> 00:11:43.810
So I think the legislature sort of put this scheme
263
00:11:43.810 --> 00:11:46.310
as a whole to say some way or another we will capture this,
264
00:11:46.310 --> 00:11:48.150
but we're not going to capture in a way
265
00:11:48.150 --> 00:11:49.460
that makes them unburden some
266
00:11:49.460 --> 00:11:51.370
or impossible for the registrant,
267
00:11:51.370 --> 00:11:55.940
and really burdensome to the place
268
00:11:55.940 --> 00:11:57.360
in which he is providing services.
269
00:11:57.360 --> 00:12:00.160
You know, in this case, for example, the home he leaves.
270
00:12:00.160 --> 00:12:02.450
I'm still trying to puzzle this out
271
00:12:02.450 --> 00:12:06.160
because didn't the legislature, and like you said,
272
00:12:06.160 --> 00:12:09.550
they, the legislature made a determination that well,
273
00:12:09.550 --> 00:12:12.020
we're not going to do it for one day.
274
00:12:12.020 --> 00:12:14.325
We're not going to do it, you know, if he's there
275
00:12:14.325 --> 00:12:19.325
for a couple of days, we'll do it if the person is going
276
00:12:19.430 --> 00:12:23.210
to be there for 14 or more consecutive days
277
00:12:23.210 --> 00:12:28.210
or if they end up being, being there over 30 days
278
00:12:29.650 --> 00:12:30.860
for a calendar year.
279
00:12:30.860 --> 00:12:33.810
So, I mean, isn't that just what the statute,
280
00:12:33.810 --> 00:12:35.390
isn't that just what it says?
281
00:12:35.390 --> 00:12:36.973
Don't you just do what it says?
282
00:12:37.870 --> 00:12:40.477
So, I think the problem is it becomes unworkable
283
00:12:40.477 --> 00:12:43.400
and when it becomes unworkable, you have to take a step back
284
00:12:43.400 --> 00:12:45.390
and say, "What were they trying to say?"
285
00:12:45.390 --> 00:12:48.247
And what they were trying to say is, "What we're really
286
00:12:48.247 --> 00:12:52.347
"looking for is for people to register, places
287
00:12:52.347 --> 00:12:55.197
"where they essentially permanently work
288
00:12:55.197 --> 00:12:57.600
"and not where they provide services."
289
00:12:57.600 --> 00:13:00.500
So that time period tells us that they were trying,
290
00:13:00.500 --> 00:13:02.170
what they were trying to capture.
291
00:13:02.170 --> 00:13:04.770
I'm sorry, what's the difference between doing work
292
00:13:04.770 --> 00:13:07.590
and performing services where somebody actually works
293
00:13:07.590 --> 00:13:10.133
and where somebody performed services.
294
00:13:11.166 --> 00:13:14.040
So when I say doing work, what I mean by that employed
295
00:13:14.040 --> 00:13:16.390
in terms of how I think the statute defines it
296
00:13:16.390 --> 00:13:19.010
because there's many people who are self employed
297
00:13:19.010 --> 00:13:20.480
and they run their business out of the house
298
00:13:20.480 --> 00:13:22.697
but they have to travel out of the house to do things.
299
00:13:22.697 --> 00:13:27.164
Again I think a great example--
300
00:13:27.164 --> 00:13:29.940
Your example of the lawyer going to court.
301
00:13:29.940 --> 00:13:32.350
I think that's a little different but I do,
302
00:13:32.350 --> 00:13:34.160
I take your point there.
303
00:13:34.160 --> 00:13:36.595
Were you going to give me another example?
304
00:13:36.595 --> 00:13:39.110
Papers, cause I did see that.
305
00:13:40.070 --> 00:13:42.510
No, I mean, I gave the example keep going for stuff,
306
00:13:42.510 --> 00:13:44.420
you know, you have people who do landscaping,
307
00:13:44.420 --> 00:13:46.870
you have people who do, you know, contracting work
308
00:13:46.870 --> 00:13:48.143
like Mr. Harding does.
309
00:13:49.110 --> 00:13:52.790
And to say that they're employed,
310
00:13:52.790 --> 00:13:54.710
at the places where they're providing you services
311
00:13:54.710 --> 00:13:56.900
I think does not capture what the statute
312
00:13:56.900 --> 00:13:57.770
is trying to capture.
313
00:13:57.770 --> 00:13:59.086
That's why I use the different providing services
314
00:13:59.086 --> 00:14:04.086
versus employed, that they're providing services,
315
00:14:04.960 --> 00:14:06.330
in different locations.
316
00:14:06.330 --> 00:14:08.060
But no one would say that these families
317
00:14:08.060 --> 00:14:10.094
are their employers.
318
00:14:10.094 --> 00:14:12.770
And in any stretch of the imagination.
319
00:14:12.770 --> 00:14:15.720
And then with regard to the second, violation,
320
00:14:15.720 --> 00:14:19.270
you know, I just wanna... I know
321
00:14:19.270 --> 00:14:21.840
I was a superior court judge and did this stuff,
322
00:14:21.840 --> 00:14:26.840
but don't you, does the judge create the conditions
323
00:14:27.200 --> 00:14:29.733
based on the circumstances or are there,
324
00:14:30.830 --> 00:14:33.190
they're not boilerplate conditions, right?
325
00:14:33.190 --> 00:14:37.833
So a judge will say, well, given the situation, given the,
326
00:14:40.390 --> 00:14:44.650
what he's pled guilty to and the circumstances of that,
327
00:14:44.650 --> 00:14:47.234
here are the conditions I'm going to put on his probation.
328
00:14:47.234 --> 00:14:48.543
It's not that.
329
00:14:49.590 --> 00:14:51.770
I think that's certainly the way it's supposed to be.
330
00:14:51.770 --> 00:14:54.390
I can't say that it's never, boiler plate.
331
00:14:54.390 --> 00:14:55.780
But yes, context matters.
332
00:14:55.780 --> 00:14:59.130
I agree with that at least when you're trying to figure out
333
00:14:59.130 --> 00:15:01.640
what does this condition for this person need.
334
00:15:01.640 --> 00:15:02.473
Right.
335
00:15:02.473 --> 00:15:07.277
And (coughing) that I think we're all, thinking
336
00:15:08.590 --> 00:15:11.484
about when they think about the issue, go to that,
337
00:15:11.484 --> 00:15:15.370
what was going on in this person underlying conviction
338
00:15:15.370 --> 00:15:17.713
that creates this condition and what noticed
339
00:15:17.713 --> 00:15:20.930
that he had therefore, that this condition prohibited
340
00:15:20.930 --> 00:15:22.412
A, B or C.
341
00:15:22.412 --> 00:15:27.223
And so what you have here contextually,
342
00:15:29.152 --> 00:15:31.177
and actually, and I reread the record many times
343
00:15:31.177 --> 00:15:35.740
and the record actually doesn't, have much, in the way
344
00:15:35.740 --> 00:15:38.880
of saying what the context of the condition was.
345
00:15:38.880 --> 00:15:40.660
But I don't think anyone was under the impression
346
00:15:40.660 --> 00:15:44.320
that the offending occurred in any context related
347
00:15:44.320 --> 00:15:46.820
to the kind of work that he was doing.
348
00:15:46.820 --> 00:15:49.620
From what I know about the case, if this was an offense
349
00:15:49.620 --> 00:15:52.300
that took place at the home against, the grandchildren
350
00:15:52.300 --> 00:15:54.070
of his then wife.
351
00:15:54.070 --> 00:15:55.828
Okay.
So for someone to have that,
352
00:15:55.828 --> 00:16:00.828
that offending behavior and then read this condition to mean
353
00:16:01.880 --> 00:16:05.240
or to even to think that it means, well I can't provide,
354
00:16:05.240 --> 00:16:07.160
I can't do some work on the outside of the house
355
00:16:07.160 --> 00:16:09.140
if there's a supervised child on the inside.
356
00:16:09.140 --> 00:16:10.939
I think it's just a bridge too far.
357
00:16:10.939 --> 00:16:13.373
Okay, thank you.
358
00:16:14.210 --> 00:16:16.230
Justice Cypher.
359
00:16:16.230 --> 00:16:17.063
Thank you.
360
00:16:17.063 --> 00:16:18.368
Good morning.
Morning.
361
00:16:18.368 --> 00:16:21.270
Do you know where we are?
362
00:16:21.270 --> 00:16:23.390
Are we consistent with other States in the way
363
00:16:23.390 --> 00:16:26.020
this has been interpreted or have you seen any other States
364
00:16:26.020 --> 00:16:28.963
interpreting this in any particular way or?
365
00:16:30.369 --> 00:16:33.570
I wish, I had a better answer.
366
00:16:33.570 --> 00:16:36.350
I looked, I really did look as hard as I could
367
00:16:36.350 --> 00:16:39.470
to see if I could find this issue playing out anywhere else,
368
00:16:39.470 --> 00:16:41.080
either at the state or federal level.
369
00:16:41.080 --> 00:16:43.120
I personally came up empty handed.
370
00:16:43.120 --> 00:16:44.230
Doesn't mean it's not out there.
371
00:16:44.230 --> 00:16:46.280
It just means that I can't answer that question
372
00:16:46.280 --> 00:16:48.409
cause I couldn't find anything.
373
00:16:48.409 --> 00:16:51.345
But maybe one of, you know, you guys have great law clerks
374
00:16:51.345 --> 00:16:52.548
and they're could find something.
375
00:16:52.548 --> 00:16:53.890
(laughing)
376
00:16:53.890 --> 00:16:57.137
Well they are great law clerks but not fair.
377
00:16:57.137 --> 00:16:58.170
Okay.
378
00:16:58.170 --> 00:17:01.209
One other question is related more to your experience,
379
00:17:01.209 --> 00:17:05.810
that, so I guess outside the record, but have you seen a lot
380
00:17:05.810 --> 00:17:07.880
of these kinds of cases or is there a lot of
381
00:17:07.880 --> 00:17:09.209
this sort of case?
382
00:17:09.209 --> 00:17:12.609
Meaning people being
Yeah.
383
00:17:12.609 --> 00:17:14.010
violated?
384
00:17:14.010 --> 00:17:15.050
I mean, I can tell you--
385
00:17:15.050 --> 00:17:17.000
No, no, but they get violated all the time.
386
00:17:17.000 --> 00:17:17.833
I know that.
387
00:17:17.833 --> 00:17:20.297
But I mean in terms of this particular kind of work.
388
00:17:20.297 --> 00:17:21.420
Oh yeah.
389
00:17:21.420 --> 00:17:22.780
Situation.
390
00:17:22.780 --> 00:17:24.690
Sure anecdotally I can tell you, absolutely.
391
00:17:24.690 --> 00:17:26.550
And I have clients in similar positions
392
00:17:26.550 --> 00:17:28.670
and I have to tell you quite honestly
393
00:17:28.670 --> 00:17:31.160
that I advise them the same way Mr. Harding
394
00:17:31.160 --> 00:17:32.333
was advised here.
395
00:17:33.500 --> 00:17:36.250
Cause that's my, that has been my interpretation of it.
396
00:17:36.250 --> 00:17:39.370
So there are a lot of people who are self employed
397
00:17:39.370 --> 00:17:41.250
who essentially run their business out of their home,
398
00:17:41.250 --> 00:17:45.070
but they have a job that requires them to leave the home
399
00:17:45.070 --> 00:17:48.150
to provide services similar to Mr. Harding maybe
400
00:17:48.150 --> 00:17:50.770
it's landscaping, maybe snow removal, maybe you know--
401
00:17:50.770 --> 00:17:54.040
Or some kind of delivery service that come every week.
402
00:17:54.040 --> 00:17:57.207
delivery service, you know, driving a truck,
403
00:17:57.207 --> 00:18:00.990
driving a delivery truck, something like that.
404
00:18:00.990 --> 00:18:01.823
That's not uncommon.
405
00:18:01.823 --> 00:18:04.218
All right, thank you.
406
00:18:04.218 --> 00:18:05.051
I have no further questions.
407
00:18:05.051 --> 00:18:07.207
Justice Kafker.
408
00:18:07.207 --> 00:18:09.880
I find this very difficult.
409
00:18:09.880 --> 00:18:12.870
I'm trying to understand, so, and it's a combination
410
00:18:12.870 --> 00:18:15.280
of Justice Lowy and Justice Budd question.
411
00:18:15.280 --> 00:18:19.490
So you've got some handyman or you got
412
00:18:19.490 --> 00:18:22.960
a self employed construction worker
413
00:18:22.960 --> 00:18:27.463
and they're in your house for a month.
414
00:18:29.550 --> 00:18:31.843
And they know they're gonna be there a month.
415
00:18:33.247 --> 00:18:38.247
Aren't we creating a danger here if these people
416
00:18:38.960 --> 00:18:40.360
don't have to report,
417
00:18:40.360 --> 00:18:43.530
cause they meet the statutory definition, right?
418
00:18:43.530 --> 00:18:46.780
Clearly their employment includes employment
419
00:18:46.780 --> 00:18:49.070
that is full time or part time for a period
420
00:18:49.070 --> 00:18:53.180
of time exceeding 14 days or for an aggregate period time
421
00:18:53.180 --> 00:18:54.323
exceeding 30 days.
422
00:18:56.370 --> 00:18:59.429
So I mean Justice Lowy's hypothetical, you've got someone,
423
00:18:59.429 --> 00:19:03.980
and again I'm distinguishing a landscape company,
424
00:19:03.980 --> 00:19:07.500
which is a whole company but an individual employer,
425
00:19:07.500 --> 00:19:10.020
you know, a self employed individual.
426
00:19:10.020 --> 00:19:12.740
They're working in my house for 30 days
427
00:19:13.650 --> 00:19:15.393
and I've got young kids.
428
00:19:17.640 --> 00:19:20.763
Isn't that what the statutes directed at?
429
00:19:22.460 --> 00:19:25.310
So I had to push back a little bit and say,
430
00:19:25.310 --> 00:19:28.000
I think when you start to try and figure out
431
00:19:28.000 --> 00:19:30.380
what the statute was getting at, it's not.
432
00:19:30.380 --> 00:19:33.490
It can't possibly or wasn't possibly intended
433
00:19:33.490 --> 00:19:34.623
to capture that.
434
00:19:35.559 --> 00:19:36.893
Why not?
435
00:19:38.220 --> 00:19:41.890
Because, of the impossibility of complying with it.
436
00:19:41.890 --> 00:19:44.158
So some of the hypotheticals I gave,
437
00:19:44.158 --> 00:19:47.560
at what point when Mr. Harding have had to register here?
438
00:19:47.560 --> 00:19:49.690
Does he do it on the first day if he's not sure he's going
439
00:19:49.690 --> 00:19:51.920
to be working for more than 10 days?
440
00:19:51.920 --> 00:19:53.950
Does he do it on day 10?
441
00:19:53.950 --> 00:19:56.230
And if he finishes on day 11, is he only registered
442
00:19:56.230 --> 00:19:58.020
for one day and then it comes off?
443
00:19:58.020 --> 00:20:00.890
Is it always considered a place of employment?
444
00:20:00.890 --> 00:20:03.370
Take Justice Lowy's hypothetical.
445
00:20:03.370 --> 00:20:04.923
It's a big job.
446
00:20:06.110 --> 00:20:09.470
He's gonna build a deck for somebody or some something
447
00:20:09.470 --> 00:20:14.470
he knows he can't do, in less than a couple of weeks
448
00:20:15.220 --> 00:20:17.293
and they've got five little kids.
449
00:20:19.180 --> 00:20:21.580
He doesn't have to register there.
450
00:20:21.580 --> 00:20:26.580
I mean, I understand it's burdensome, but it just seems like
451
00:20:27.140 --> 00:20:30.280
the legislature put in these day requirements.
452
00:20:30.280 --> 00:20:32.446
I'd be more comfortable that said full time.
453
00:20:32.446 --> 00:20:37.010
But in justice, always hypothetical.
454
00:20:37.010 --> 00:20:40.030
You're there for four months and they've got children
455
00:20:40.030 --> 00:20:43.900
and you don't have to ... cause it's not like your guy
456
00:20:43.900 --> 00:20:46.240
where he has a carpentry thing in his house.
457
00:20:46.240 --> 00:20:49.403
He just, that's what does, he goes to your house and fix it.
458
00:20:51.450 --> 00:20:52.283
Right.
459
00:20:52.283 --> 00:20:53.680
No, I understand the hypothetical.
460
00:20:53.680 --> 00:20:58.560
I just don't think that, the way the statute was crafted
461
00:20:59.512 --> 00:21:03.060
that it could capture that.
462
00:21:03.060 --> 00:21:06.061
Meaning if it's not looking for people to register
463
00:21:06.061 --> 00:21:07.967
when they're providing services for less than that,
464
00:21:07.967 --> 00:21:10.012
then it's not looking for them to register
465
00:21:10.012 --> 00:21:12.030
when they're providing services for more
466
00:21:12.030 --> 00:21:15.910
than those days, if they're in their place of employment
467
00:21:15.910 --> 00:21:17.340
or self-employment of somewhere else.
468
00:21:17.340 --> 00:21:19.000
If that's not where they permanently work.
469
00:21:19.000 --> 00:21:22.430
But they don't really have this place of employment
470
00:21:22.430 --> 00:21:24.490
is where he's employed.
471
00:21:24.490 --> 00:21:26.430
I go, you know, he's a handyman.
472
00:21:26.430 --> 00:21:29.170
He says, "I'm coming, I'll come to your house and fix it."
473
00:21:29.170 --> 00:21:30.450
That's it.
474
00:21:30.450 --> 00:21:34.080
He doesn't have a workshop at his house or something.
475
00:21:34.080 --> 00:21:36.899
He... I understand he's different from your person, but--
476
00:21:36.899 --> 00:21:37.760
Right.
477
00:21:37.760 --> 00:21:41.920
We've got a lot... we don't want sex offenders
478
00:21:41.920 --> 00:21:44.389
in people's homes for long periods of time, delete unless
479
00:21:44.389 --> 00:21:47.053
they're registered.
480
00:21:48.070 --> 00:21:50.580
So I think the problem is you're talking
481
00:21:50.580 --> 00:21:53.630
about employment colloquially and we have to talk about
482
00:21:53.630 --> 00:21:57.348
how the legislature could define it for the purposes
483
00:21:57.348 --> 00:22:00.570
of registration and they just chose to define
484
00:22:00.570 --> 00:22:04.319
it in a way that will at some point,
485
00:22:04.319 --> 00:22:07.073
have people providing services
486
00:22:07.073 --> 00:22:09.180
and put in addresses that are not registered.
487
00:22:09.180 --> 00:22:11.020
That's why there are other things in place
488
00:22:11.020 --> 00:22:12.560
to perhaps capture that.
489
00:22:12.560 --> 00:22:14.827
And one of that is, you know, internet dissemination
490
00:22:14.827 --> 00:22:18.440
or dissemination of information in other formats
491
00:22:18.440 --> 00:22:20.213
that are not related to an address.
492
00:22:21.150 --> 00:22:23.357
And you know, the other thing is if you look at
493
00:22:23.357 --> 00:22:27.070
the registration form, for example, it has a, an option
494
00:22:27.070 --> 00:22:29.620
for self-employed. And so if people--
495
00:22:29.620 --> 00:22:33.400
Give me an example of something that would be,
496
00:22:33.400 --> 00:22:36.290
we've got to make some sense of the statute, right?
497
00:22:36.290 --> 00:22:40.450
Give me one where, describe something that would be covered.
498
00:22:40.450 --> 00:22:43.580
It's 14 days or 30 days, cause it seems like
499
00:22:43.580 --> 00:22:47.540
you're reading out the entire language.
500
00:22:47.540 --> 00:22:49.780
Give me something that would meet that definition
501
00:22:49.780 --> 00:22:51.073
that would satisfy it.
502
00:22:51.980 --> 00:22:53.930
I'm not reading out the entire language.
503
00:22:53.930 --> 00:22:55.979
What I'm trying to figure out or ones--
504
00:22:55.979 --> 00:23:00.089
Tell me a job
any job
505
00:23:00.089 --> 00:23:01.080
that would meet this requirement--
506
00:23:01.080 --> 00:23:04.060
Sure, my job, I am employed at 50 Congress street
507
00:23:04.060 --> 00:23:05.840
and if I had to register, this is the address
508
00:23:05.840 --> 00:23:07.090
I would have to register.
509
00:23:08.108 --> 00:23:11.850
You're there 360 days a year.
510
00:23:11.850 --> 00:23:16.079
Give me an example of something with 14 days or 30 days.
511
00:23:16.079 --> 00:23:19.280
But I'm not, I'm here some days, especially nowadays,
512
00:23:19.280 --> 00:23:22.350
I'm barely here and I'm working for four and a half days
513
00:23:22.350 --> 00:23:24.740
of the week in my office, but I still consider it my home
514
00:23:24.740 --> 00:23:28.850
if I still consider myself employed here.
515
00:23:28.850 --> 00:23:31.180
There are days where I, you know, I'll be on trial
516
00:23:31.180 --> 00:23:33.890
for two weeks out of County and I'm not in my office.
517
00:23:33.890 --> 00:23:36.790
So there, you know, most jobs, most people
518
00:23:36.790 --> 00:23:38.331
are not self-employed. Most people have--
519
00:23:38.331 --> 00:23:42.510
Again, I'm trying to make... the statute
520
00:23:42.510 --> 00:23:43.960
has to make some sense.
521
00:23:43.960 --> 00:23:47.030
Give me something that's covered by this.
522
00:23:47.030 --> 00:23:50.463
Where, why would they pick a 14 day or a 30 day?
523
00:23:50.463 --> 00:23:54.680
Tell me a job that's legitimately covered by this,
524
00:23:54.680 --> 00:23:56.790
cause I think you're reading out everything
525
00:23:56.790 --> 00:23:59.133
that meets this definition.
526
00:24:00.130 --> 00:24:05.130
What... I think the problem is what we're really,
527
00:24:05.400 --> 00:24:07.220
what we're trying to figure out is which address
528
00:24:07.220 --> 00:24:08.780
do you have to register?
529
00:24:08.780 --> 00:24:11.870
So everyone who works has to register some address.
530
00:24:11.870 --> 00:24:13.660
The question is which,
531
00:24:13.660 --> 00:24:18.300
and that's the thing, not that he doesn't have to register,
532
00:24:18.300 --> 00:24:21.110
it's just which address does he register?
533
00:24:21.110 --> 00:24:25.899
If someone works at a restaurant and that is where they work
534
00:24:25.899 --> 00:24:27.150
and they're a cook, they're not a delivery,
535
00:24:27.150 --> 00:24:27.983
they're a cook.
536
00:24:27.983 --> 00:24:30.420
They work at that restaurant.
537
00:24:30.420 --> 00:24:33.230
But if someone, you know, drives, you know,
538
00:24:33.230 --> 00:24:37.050
for Grab Hub and they pick up, meals from that restaurant
539
00:24:37.050 --> 00:24:38.127
to deliver it to places, they do not work
540
00:24:38.127 --> 00:24:39.800
at that restaurant.
541
00:24:39.800 --> 00:24:41.760
So which address would people have to register?
542
00:24:41.760 --> 00:24:43.380
The cook would register that restaurant.
543
00:24:43.380 --> 00:24:44.968
The driver would register wherever he,
544
00:24:44.968 --> 00:24:48.810
you know, keep tracks of bills and take calls
545
00:24:48.810 --> 00:24:49.680
and things like that.
546
00:24:49.680 --> 00:24:51.300
So that's what we're talking about.
547
00:24:51.300 --> 00:24:52.789
Which address do you register?
548
00:24:52.789 --> 00:24:54.830
Not, you know, everybody has to register
549
00:24:54.830 --> 00:24:57.170
so where, which one, which address do you register
550
00:24:57.170 --> 00:24:58.003
on this theme?
551
00:24:59.110 --> 00:25:01.270
Your view is this reads, everyone
552
00:25:01.270 --> 00:25:03.533
has to put one address down.
553
00:25:05.268 --> 00:25:06.388
Okay--
554
00:25:06.388 --> 00:25:09.268
Well I suppose the people who work two jobs but, you know,
555
00:25:09.268 --> 00:25:14.040
but yes, you have to put an address of where you work
556
00:25:14.040 --> 00:25:15.670
if you have two jobs to put two addresses,
557
00:25:15.670 --> 00:25:19.500
but depending on your job, you may not have to put
558
00:25:19.500 --> 00:25:22.033
everywhere in which you're doing your job.
559
00:25:23.605 --> 00:25:27.530
Okay, no further questions.
560
00:25:27.530 --> 00:25:28.363
Thank you.
561
00:25:29.308 --> 00:25:30.141
I've got some questions.
562
00:25:30.141 --> 00:25:35.130
So, (clearing throat) what do you say the 14 days
563
00:25:36.517 --> 00:25:38.300
and the 30 days means?
564
00:25:38.300 --> 00:25:42.577
The Amicus says it should be a declared void.
565
00:25:42.577 --> 00:25:43.410
(coughing)
566
00:25:43.410 --> 00:25:48.090
Are you saying that we can crafty definition,
567
00:25:48.090 --> 00:25:50.663
which would spare us from the need to do that?
568
00:25:52.030 --> 00:25:52.980
I do.
569
00:25:52.980 --> 00:25:57.980
And what I say is on its face, it's not clear what it means.
570
00:25:58.530 --> 00:26:02.730
And so the best you can do is take the context of it and try
571
00:26:02.730 --> 00:26:04.700
and figure out what the legislature was trying
572
00:26:04.700 --> 00:26:06.530
to accomplish with it.
573
00:26:06.530 --> 00:26:09.810
And it's what, you know, I don't want to repeat my answer,
574
00:26:09.810 --> 00:26:12.510
but what I just answered to Justice Kafker's question is,
575
00:26:12.510 --> 00:26:17.410
they were trying to use those timeframes to show
576
00:26:17.410 --> 00:26:19.490
that they're trying to capture permanence,
577
00:26:19.490 --> 00:26:23.290
they're trying to capture longterm and not that somebody,
578
00:26:23.290 --> 00:26:27.210
you know, took a job, as wrapping gifts
579
00:26:27.210 --> 00:26:28.743
for Christmas for five days.
580
00:26:29.630 --> 00:26:30.773
But no less or no longer right there.
581
00:26:30.773 --> 00:26:33.530
They're trying to capture this permanent by that,
582
00:26:33.530 --> 00:26:35.700
that's what those dates are good for.
583
00:26:35.700 --> 00:26:38.100
But when it comes to figuring out which address
584
00:26:38.100 --> 00:26:40.030
you have to register, those dates don't help us.
585
00:26:40.030 --> 00:26:43.720
We have to figure out in the context of each case,
586
00:26:43.720 --> 00:26:45.720
is this the kind of permanent address
587
00:26:45.720 --> 00:26:48.833
that the legislature was trying to capture?
588
00:26:49.856 --> 00:26:52.240
I mean we have, there are two, two related issues.
589
00:26:52.240 --> 00:26:55.200
It means that the term employment is a defined term,
590
00:26:55.200 --> 00:26:56.105
I believe, correct
591
00:26:56.105 --> 00:26:57.093
Yes.
592
00:26:57.093 --> 00:26:59.613
Yes, so, and that speaks about 14 days.
593
00:27:01.467 --> 00:27:05.850
If it's to be consecutive in 30 days, if it's sporadic,
594
00:27:05.850 --> 00:27:07.650
but does that include weekends?
595
00:27:07.650 --> 00:27:08.777
I mean, if it's--
596
00:27:11.557 --> 00:27:12.390
That's a good question.
597
00:27:12.390 --> 00:27:13.223
I don't know, like
598
00:27:14.180 --> 00:27:15.600
as most of us work Monday through Friday.
599
00:27:15.600 --> 00:27:18.260
So I don't know how to answer that question.
600
00:27:18.260 --> 00:27:19.093
Okay.
601
00:27:20.850 --> 00:27:22.160
Let me speak of this.
602
00:27:22.160 --> 00:27:25.030
By the way, this obligation is not only for level two
603
00:27:25.030 --> 00:27:27.850
and three, it's for level one, isn't it?
604
00:27:27.850 --> 00:27:29.660
Yes, this is right.
605
00:27:29.660 --> 00:27:32.060
Anyone at any level has to register there address.
606
00:27:32.060 --> 00:27:34.970
The question is, you know what is done
607
00:27:34.970 --> 00:27:37.360
with that information once it's registered?
608
00:27:37.360 --> 00:27:40.200
Right, so the term work address is not a defined term.
609
00:27:40.200 --> 00:27:42.040
They just use, that's just the language
610
00:27:42.040 --> 00:27:43.210
they use it in the statute.
611
00:27:43.210 --> 00:27:45.810
They say you must report your work address, correct?
612
00:27:46.849 --> 00:27:50.410
Well I think they use work and employment interchangeably.
613
00:27:50.410 --> 00:27:51.660
I think that's their intent.
614
00:27:51.660 --> 00:27:55.530
But it's defined employment means then the time gates
615
00:27:55.530 --> 00:27:57.600
that you're on reference.
616
00:27:57.600 --> 00:27:58.433
Okay.
617
00:27:58.433 --> 00:28:00.190
But the term work address is elsewhere in the statute
618
00:28:00.190 --> 00:28:01.403
that what you must report.
619
00:28:01.403 --> 00:28:04.440
That the term used is work address.
620
00:28:04.440 --> 00:28:05.273
Correct.
621
00:28:06.270 --> 00:28:09.252
I read that as either sloppy drafting or they're just using
622
00:28:09.252 --> 00:28:12.060
at work and employment interchangeably.
623
00:28:12.060 --> 00:28:14.130
They meant employment address employment as defined
624
00:28:14.130 --> 00:28:15.600
by the statute.
625
00:28:15.600 --> 00:28:20.413
So let's assume that you have... let's just assume
626
00:28:20.413 --> 00:28:21.663
it's a level one.
627
00:28:23.630 --> 00:28:28.200
If that person goes to, is in college,
628
00:28:28.200 --> 00:28:31.670
do they need to report their residence?
629
00:28:31.670 --> 00:28:33.583
Correct. What dorm they would be living in,
630
00:28:33.583 --> 00:28:36.950
that would be the response that must be reported?
631
00:28:36.950 --> 00:28:38.670
I would think so, yeah.
632
00:28:38.670 --> 00:28:39.572
But they also must report
633
00:28:39.572 --> 00:28:41.870
that they're going to university.
634
00:28:41.870 --> 00:28:42.850
Correct.
635
00:28:42.850 --> 00:28:44.867
So, but they would typically have to report the university
636
00:28:44.867 --> 00:28:49.867
saying they wouldn't have to tell them which particular,
637
00:28:50.720 --> 00:28:53.000
what classes they have or where they're going.
638
00:28:53.000 --> 00:28:54.261
That's my understanding.
639
00:28:54.261 --> 00:28:55.094
Right.
640
00:28:55.094 --> 00:28:57.270
The university of Massachusetts, Boston
641
00:28:57.270 --> 00:28:59.290
is what you would have to report.
642
00:28:59.290 --> 00:29:04.290
And being that you're a level one, your work address
643
00:29:06.130 --> 00:29:10.760
then goes to soar, but it's not publicly revealed.
644
00:29:10.760 --> 00:29:11.637
Correct?
645
00:29:11.637 --> 00:29:12.633
Correct.
646
00:29:13.520 --> 00:29:17.170
So for level ones going to Justice camp at this point
647
00:29:17.170 --> 00:29:20.450
reporting it as the Commonwealth says, would have no,
648
00:29:20.450 --> 00:29:23.140
wouldn't be able to inform this family
649
00:29:23.140 --> 00:29:25.870
and Lynn that the person is a sex offender
650
00:29:25.870 --> 00:29:30.053
because there wouldn't be any reporting.
651
00:29:31.290 --> 00:29:32.123
Correct.
652
00:29:32.123 --> 00:29:34.470
The same way no one would be able to report his address
653
00:29:34.470 --> 00:29:36.140
of where the person resides there goes to school
654
00:29:36.140 --> 00:29:37.470
for that matter.
655
00:29:37.470 --> 00:29:40.810
Okay, so and if it's level two that they could,
656
00:29:40.810 --> 00:29:43.260
that score internet, and if they wanted to hire somebody,
657
00:29:43.260 --> 00:29:45.070
they could check out the person and see whether
658
00:29:45.070 --> 00:29:49.113
or not that person is a sex offender.
659
00:29:50.140 --> 00:29:50.973
Correct.
660
00:29:50.973 --> 00:29:54.313
If we do what the Commonwealth says, that the work address
661
00:29:54.313 --> 00:29:57.102
is that if it's level two, is that posted, would that mean
662
00:29:57.102 --> 00:30:02.090
that the Lynn family would be then be seen as the employer
663
00:30:02.090 --> 00:30:04.330
of a sex offender and that would be publicly available
664
00:30:04.330 --> 00:30:05.880
to everybody.
665
00:30:05.880 --> 00:30:07.102
That is my assumption.
666
00:30:07.102 --> 00:30:09.870
If you make someone like Harding register that address,
667
00:30:09.870 --> 00:30:12.030
then that Lynn address would come up
668
00:30:12.030 --> 00:30:15.470
for whatever time period is up there at his place
669
00:30:15.470 --> 00:30:19.140
of employment or a secondary place of employment I guess.
670
00:30:19.140 --> 00:30:21.410
So the internet dissemination, I've not looked at it
671
00:30:21.410 --> 00:30:25.310
for awhile, but that includes not only that Mr. Smith
672
00:30:25.310 --> 00:30:28.980
is a sex offender, but also that Mr. Smith resides
673
00:30:28.980 --> 00:30:32.350
at this address or goes to university at Umass
674
00:30:32.350 --> 00:30:37.350
or is presently working at this location or these locations?
675
00:30:38.300 --> 00:30:40.080
Yes, it disseminates any addresses.
676
00:30:40.080 --> 00:30:44.960
So primary, secondary work and although I haven't seen it,
677
00:30:44.960 --> 00:30:48.773
I presume it disseminates, university information too.
678
00:30:50.790 --> 00:30:51.623
Okay.
679
00:30:53.251 --> 00:30:54.990
I have no further questions.
680
00:30:54.990 --> 00:30:56.943
Are there any questions that follow up on the questions
681
00:30:56.943 --> 00:30:58.123
that have been asked?
682
00:30:59.478 --> 00:31:02.390
Just one follow up on the chief's questions,
683
00:31:02.390 --> 00:31:03.910
this is Justice Kafker again.
684
00:31:03.910 --> 00:31:08.910
So the Lynn's family, so you've got again,
685
00:31:09.190 --> 00:31:13.090
the Lynn's family hire this person
686
00:31:13.090 --> 00:31:17.520
and how would it be listed that,
687
00:31:17.520 --> 00:31:20.600
that they're there?
688
00:31:20.600 --> 00:31:23.490
Would it be listed that this particular person
689
00:31:23.490 --> 00:31:24.323
was employed in the house?
690
00:31:24.323 --> 00:31:26.550
I'm just trying to understand
691
00:31:26.550 --> 00:31:30.200
how that would be publicly understood.
692
00:31:30.200 --> 00:31:33.400
Sure, I'm not sure if I missed a little bit
693
00:31:33.400 --> 00:31:35.220
of your question cause the went out or you just paused.
694
00:31:35.220 --> 00:31:36.530
But I think what your question is,
695
00:31:36.530 --> 00:31:38.580
what does it look like if it's published?
696
00:31:39.541 --> 00:31:40.374
Yeah.
697
00:31:40.374 --> 00:31:45.374
I mean..., so say you're wrong in the Lynn fam.
698
00:31:46.400 --> 00:31:49.020
I mean this person would have to list his work address
699
00:31:49.020 --> 00:31:49.940
as the Lynn family.
700
00:31:49.940 --> 00:31:52.600
I'm trying to understand whether when
701
00:31:52.600 --> 00:31:56.080
the Lynn family's neighbor looks and sees this,
702
00:31:56.080 --> 00:31:59.840
would it list just, the house that's having a sex offender
703
00:31:59.840 --> 00:32:04.840
or would list the houses employing, your client in there.
704
00:32:06.090 --> 00:32:10.650
It would list the address and then it would be listed as
705
00:32:10.650 --> 00:32:12.760
an employment address for my client.
706
00:32:12.760 --> 00:32:16.060
So if you go online and you look somebody up,
707
00:32:16.060 --> 00:32:18.220
it'll list whatever addresses they have registered.
708
00:32:18.220 --> 00:32:22.300
So if you have one primary residence, it says residents.
709
00:32:22.300 --> 00:32:23.913
If you have a secondary address,
710
00:32:26.352 --> 00:32:27.660
it says secondary address and the address.
711
00:32:27.660 --> 00:32:29.481
If you have an employment address,
712
00:32:29.481 --> 00:32:31.290
it says employment and then the address.
713
00:32:31.290 --> 00:32:33.780
Yeah, I'm just, mine's more basic.
714
00:32:33.780 --> 00:32:38.280
So I'm the Lynn family neighbor and I look at this,
715
00:32:38.280 --> 00:32:40.937
I wouldn't think that someone in the Lynn family
716
00:32:40.937 --> 00:32:42.160
was the sex offender.
717
00:32:42.160 --> 00:32:44.650
I would think that this person being employed
718
00:32:44.650 --> 00:32:47.830
as a carpenter was a sex offender.
719
00:32:47.830 --> 00:32:50.170
I'm just trying to understand what they would know.
720
00:32:50.170 --> 00:32:51.890
You wouldn't know what they were doing.
721
00:32:51.890 --> 00:32:56.890
It would just just say, you know, Harding employment address
722
00:32:56.890 --> 00:32:59.480
and then would have that Lynn address.
723
00:32:59.480 --> 00:33:01.030
It wouldn't tell you more about
724
00:33:02.734 --> 00:33:05.854
what the employment consists of.
725
00:33:05.854 --> 00:33:06.687
So wouldn't say carpenter or duration or anything like that.
726
00:33:06.687 --> 00:33:07.520
I got you.
727
00:33:07.520 --> 00:33:08.353
Thank you.
728
00:33:08.353 --> 00:33:09.186
That's all.
729
00:33:09.186 --> 00:33:10.019
Actually before we leave that point, does this,
730
00:33:10.019 --> 00:33:14.090
Justice Gants, but the work address give only
731
00:33:14.090 --> 00:33:16.990
the address or does it also give the name of the employer?
732
00:33:19.460 --> 00:33:22.833
I don't believe it gives the name of the employer.
733
00:33:23.929 --> 00:33:25.830
If he, if he worked for Racingon,
734
00:33:25.830 --> 00:33:27.233
it wouldn't say Racingon?
735
00:33:30.571 --> 00:33:33.400
Off the top of my head I'm not sure.
736
00:33:33.400 --> 00:33:37.600
But it is publicly, I mean, you can do a search at any point
737
00:33:37.600 --> 00:33:40.050
and see for yourself how it would list it online.
738
00:33:41.330 --> 00:33:43.320
Are there any further questions?
739
00:33:43.320 --> 00:33:44.980
And hearing done, Mr. Nato
740
00:33:46.110 --> 00:33:46.943
Thank you.
741
00:33:46.943 --> 00:33:47.776
Good morning.
742
00:33:48.800 --> 00:33:50.803
May please the court, Steven Nato on behalf
743
00:33:50.803 --> 00:33:53.073
of the Commonwealth.
744
00:33:53.073 --> 00:33:57.982
I begin by noting that the statutory scheme here,
745
00:33:57.982 --> 00:34:00.511
residential and reporting of addresses
746
00:34:00.511 --> 00:34:05.001
similarly section 178E, is described some offenders
747
00:34:05.001 --> 00:34:07.584
to register on the police side.
748
00:34:09.214 --> 00:34:11.043
Could you get closer to the phone please?
749
00:34:11.043 --> 00:34:12.294
You're hard to hear.
750
00:34:12.294 --> 00:34:13.127
I'm sorry.
751
00:34:14.083 --> 00:34:15.749
That's better. I took it off speaker phone.
752
00:34:15.749 --> 00:34:16.582
How's that?
753
00:34:16.582 --> 00:34:17.415
It's better.
754
00:34:17.415 --> 00:34:18.248
Better.
755
00:34:18.248 --> 00:34:21.331
Okay so again, just to begin again.
756
00:34:23.654 --> 00:34:26.763
The statutory scheme treats residential
757
00:34:26.763 --> 00:34:27.982
and employment addresses.
758
00:34:27.982 --> 00:34:32.982
Similarly, section 178 E describes an offender's duty
759
00:34:33.150 --> 00:34:36.340
to register the places he resides or intents to reside.
760
00:34:36.340 --> 00:34:39.180
In the same term to describe an offender's duty
761
00:34:39.180 --> 00:34:42.440
to register the placements he works on intends to work.
762
00:34:42.440 --> 00:34:46.520
And section 178C defines employment
763
00:34:46.520 --> 00:34:48.730
and secondary residential addresses.
764
00:34:48.730 --> 00:34:52.231
And the same kind of terms are consistent with an apparent
765
00:34:52.231 --> 00:34:56.720
intent that the oversight authorities, whether soar
766
00:34:56.720 --> 00:35:00.700
or local police department should know where
767
00:35:00.700 --> 00:35:03.690
these offenders given their risk of recidivism,
768
00:35:03.690 --> 00:35:05.940
they have to know where they're spending their time,
769
00:35:05.940 --> 00:35:10.940
where you living, where you working, where you residing.
770
00:35:12.610 --> 00:35:15.350
And again, that's consistent with the intent as described
771
00:35:15.350 --> 00:35:16.810
by this court in dove versus
772
00:35:16.810 --> 00:35:19.133
sex offending registry board in 2006.
773
00:35:20.093 --> 00:35:22.580
And it's also consistent with the way that the court
774
00:35:22.580 --> 00:35:26.270
has interpreted the as we need to register employment
775
00:35:26.270 --> 00:35:29.722
on even if it's burdensome or yields harsh results.
776
00:35:29.722 --> 00:35:34.180
For instance, for the homeless or for those vacationing.
777
00:35:34.180 --> 00:35:38.610
And in the Berkshires, I don't see any indication
778
00:35:38.610 --> 00:35:41.743
of the language that the two should be treated differently.
779
00:35:43.810 --> 00:35:46.483
Again, the court has applied one interpretation
780
00:35:46.483 --> 00:35:50.530
to a secondary residences based on the languages
781
00:35:50.530 --> 00:35:52.410
that are similar throughout the scheme.
782
00:35:52.410 --> 00:35:55.930
It seems that employment addresses should be treated,
783
00:35:55.930 --> 00:35:58.123
or interpreted and applied in the same way.
784
00:35:59.420 --> 00:36:02.614
I trained up briefly to the ... again, we can see
785
00:36:02.614 --> 00:36:06.233
that the evidence here was insufficient to show a knowing
786
00:36:06.233 --> 00:36:10.470
violation of his duty to register that employment address.
787
00:36:10.470 --> 00:36:13.957
But on the last issue that the offender
788
00:36:13.957 --> 00:36:17.410
for the defendant violated his, condition of working
789
00:36:17.410 --> 00:36:19.283
with or not to work with children.
790
00:36:20.280 --> 00:36:23.380
Again, we almost sort of recognize that the record
791
00:36:23.380 --> 00:36:26.473
here is limited hearsay.
792
00:36:27.610 --> 00:36:30.412
A lot of it and kind of on papers to the probation
793
00:36:30.412 --> 00:36:32.433
department mostly.
794
00:36:34.090 --> 00:36:37.100
But the Commonwealth position is that the judge
795
00:36:37.100 --> 00:36:40.480
here made a reasonable decision that the evidence supported,
796
00:36:40.480 --> 00:36:42.580
the finding that he had worked with children in violation
797
00:36:42.580 --> 00:36:47.014
of that condition on decoding a couple plus factors,
798
00:36:47.014 --> 00:36:50.000
to distinguish it from instance or have you been working
799
00:36:50.000 --> 00:36:54.560
as a bus boy in a restaurant encountered a family by mistake
800
00:36:54.560 --> 00:36:59.560
and sort of that extent of it? I hear the defendant
801
00:37:00.950 --> 00:37:05.670
was, returning to the same place after knowing a child
802
00:37:05.670 --> 00:37:07.333
was present on the premises.
803
00:37:08.500 --> 00:37:11.470
He never made any attempt to clarify
804
00:37:11.470 --> 00:37:12.810
what his responsibilities were.
805
00:37:12.810 --> 00:37:16.810
He continued on apparently took numerous days,
806
00:37:16.810 --> 00:37:19.820
on site with the child present and the record
807
00:37:19.820 --> 00:37:23.780
does have some indication that when he wasn't sure
808
00:37:23.780 --> 00:37:27.107
he felt comfortable asking for instance as to register
809
00:37:27.107 --> 00:37:28.810
the employment address he did,
810
00:37:28.810 --> 00:37:32.550
so there's nothing like that here.
811
00:37:32.550 --> 00:37:36.230
He just continued to again, work onsite.
812
00:37:36.230 --> 00:37:38.630
Occasionally there's some indication in the house
813
00:37:38.630 --> 00:37:40.830
while the child was, the infant was present.
814
00:37:43.654 --> 00:37:44.770
And again, the court will just have to decide
815
00:37:44.770 --> 00:37:46.510
whether that's sufficient under the circumstances
816
00:37:46.510 --> 00:37:48.110
that led to the record.
817
00:37:48.110 --> 00:37:50.430
And that's essentially my opening remarks.
818
00:37:50.430 --> 00:37:51.747
Okay Justice Lenk.
819
00:37:51.747 --> 00:37:54.413
Oh, that was the same question I had before.
820
00:37:55.461 --> 00:38:00.461
As to the, fact that there's nothing to establish knowingly
821
00:38:00.550 --> 00:38:02.483
as to the first probation violation.
822
00:38:02.483 --> 00:38:03.750
Whether you agree with that, your confession,
823
00:38:03.750 --> 00:38:08.183
there is not an implication of that.
824
00:38:10.390 --> 00:38:12.489
And just to clarify as far as movement.
825
00:38:12.489 --> 00:38:13.880
Yeah.
826
00:38:13.880 --> 00:38:16.820
Yeah, I think arguably it wouldn't move.
827
00:38:16.820 --> 00:38:17.820
There's no life issue.
828
00:38:17.820 --> 00:38:22.270
However, the issue haven't been fully brief
829
00:38:22.270 --> 00:38:24.350
and now argued this morning,
830
00:38:24.350 --> 00:38:27.890
I do think the court is in a position to decide the issue
831
00:38:28.820 --> 00:38:33.600
that consistent with its own president are movement concern
832
00:38:33.600 --> 00:38:36.610
and given me sort of a practice.
833
00:38:36.610 --> 00:38:39.490
We have interpretation of one prong of this scheme
834
00:38:39.490 --> 00:38:41.087
for residential addresses.
835
00:38:41.087 --> 00:38:44.260
But there's sort of a lack of clarity persisting
836
00:38:45.119 --> 00:38:47.210
for the employment addresses.
837
00:38:47.210 --> 00:38:49.400
If it makes sense that the courts sort of resolved
838
00:38:49.400 --> 00:38:50.740
that ambiguity.
839
00:38:50.740 --> 00:38:51.664
Yes.
840
00:38:51.664 --> 00:38:54.480
Not that this defendant.
841
00:38:54.480 --> 00:38:55.313
I'm sorry.
842
00:38:55.313 --> 00:38:56.230
Minus this defendant however.
843
00:38:56.230 --> 00:38:58.280
This defendant is free of this, right?
844
00:38:58.280 --> 00:38:59.930
Correct.
845
00:38:59.930 --> 00:39:00.763
Yes, that's right.
846
00:39:00.763 --> 00:39:02.790
Okay, I have nothing else.
847
00:39:02.790 --> 00:39:04.630
Justice Gaziano.
848
00:39:04.630 --> 00:39:05.950
Right. Thank you.
849
00:39:05.950 --> 00:39:08.091
Just one point you opened by saying that,
850
00:39:08.091 --> 00:39:11.820
the statutory scheme is very similar with respect
851
00:39:11.820 --> 00:39:14.090
to residential address
852
00:39:14.090 --> 00:39:17.710
and work address, but as far as I read,
853
00:39:17.710 --> 00:39:18.740
maybe I missed something.
854
00:39:18.740 --> 00:39:22.890
Residential address specifically provides
855
00:39:22.890 --> 00:39:24.403
for a secondary address, right?
856
00:39:24.403 --> 00:39:27.740
And that's the Berkshire vacation, right?
857
00:39:27.740 --> 00:39:28.573
Correct.
858
00:39:28.573 --> 00:39:31.013
But work address doesn't have similar language.
859
00:39:32.500 --> 00:39:37.500
And again, acknowledge that sort of wrinkle or you know,
860
00:39:39.040 --> 00:39:43.290
a parent discrepancy as far as residences versus employment.
861
00:39:43.290 --> 00:39:46.480
But I think a lot of people might understand residents
862
00:39:46.480 --> 00:39:47.670
to mean almost domicile.
863
00:39:47.670 --> 00:39:48.740
Where do you live?
864
00:39:48.740 --> 00:39:49.660
Where is your house?
865
00:39:49.660 --> 00:39:53.960
Not, for instance, if I stay at my sister's house,
866
00:39:53.960 --> 00:39:56.890
help out with my nephews four days nonconsecutive
867
00:39:56.890 --> 00:39:57.723
in a month.
868
00:39:58.880 --> 00:40:00.460
I would think of that as my residence,
869
00:40:00.460 --> 00:40:03.663
but under the statute of may qualify.
870
00:40:04.680 --> 00:40:07.890
Whereas employment, it's more common for people
871
00:40:07.890 --> 00:40:09.780
to have multiple jobs, multiple places
872
00:40:09.780 --> 00:40:12.370
where they're working that they would have to register.
873
00:40:12.370 --> 00:40:15.510
But it does also show a legislative intent
874
00:40:15.510 --> 00:40:18.240
to be more specific with respect to residential
875
00:40:18.240 --> 00:40:19.750
and cause we're going to have to construe
876
00:40:19.750 --> 00:40:20.870
this against the government.
877
00:40:20.870 --> 00:40:23.073
Correct, it's a punitive statute.
878
00:40:24.120 --> 00:40:24.953
Correct.
879
00:40:25.790 --> 00:40:27.900
Those are all the questions I have.
880
00:40:27.900 --> 00:40:30.010
Justice Lowy.
881
00:40:30.010 --> 00:40:35.010
Thank you, so, I understand why we would want to know
882
00:40:36.200 --> 00:40:41.200
if somebody's painting inside of a home
883
00:40:41.970 --> 00:40:45.580
and the teenagers coming home,
884
00:40:45.580 --> 00:40:48.030
you know, alone quarter to three every day.
885
00:40:48.030 --> 00:40:52.570
We'd like to not have somebody who's been convicted
886
00:40:52.570 --> 00:40:57.050
of numerous, stranger sex offenses in the house
887
00:40:57.050 --> 00:40:58.610
at the same time.
888
00:40:58.610 --> 00:41:01.770
But why isn't that addressed
889
00:41:01.770 --> 00:41:04.460
through a conditional probation stay away
890
00:41:04.460 --> 00:41:08.670
from children rather than interpret the issue
891
00:41:08.670 --> 00:41:10.840
of working with children.
892
00:41:10.840 --> 00:41:12.970
Not to mean working in a daycare center
893
00:41:12.970 --> 00:41:16.500
or working in other environments where there is
894
00:41:16.500 --> 00:41:18.280
you're obviously going to be working with children,
895
00:41:18.280 --> 00:41:20.957
but meaning working with children.
896
00:41:20.957 --> 00:41:22.480
There's a child that happens to be present.
897
00:41:22.480 --> 00:41:24.900
There's an infant that happens to be in the house
898
00:41:24.900 --> 00:41:29.900
with the infants mother and the person working
899
00:41:31.660 --> 00:41:34.403
is working outside replacing windows.
900
00:41:36.090 --> 00:41:40.520
Can't we address, the concern through
901
00:41:40.520 --> 00:41:42.300
another conditional probation rather than
902
00:41:42.300 --> 00:41:45.620
have this expansive definition of what working
903
00:41:45.620 --> 00:41:46.633
with children means.
904
00:41:48.120 --> 00:41:49.673
I think absolutely.
905
00:41:52.450 --> 00:41:55.410
The comment would be much happier had the judge provided
906
00:41:55.410 --> 00:42:00.263
more specific or extensive, raising of the condition.
907
00:42:03.767 --> 00:42:05.440
But again, we're kind of left with the condition
908
00:42:05.440 --> 00:42:07.130
we have here and the record we have here.
909
00:42:07.130 --> 00:42:12.130
But I think at some point our concerns are or are similar
910
00:42:13.030 --> 00:42:16.760
to what, the question articulate is, the idea
911
00:42:16.760 --> 00:42:20.190
of someone doing carpentry summer months,
912
00:42:20.190 --> 00:42:22.183
maybe when kids are home from school.
913
00:42:25.405 --> 00:42:30.060
Maybe a Comcast technician who is reports to correct call
914
00:42:30.060 --> 00:42:33.130
for service fixing cable internet connection
915
00:42:33.130 --> 00:42:36.583
in a teenager's bedroom and that would not qualify,
916
00:42:37.460 --> 00:42:39.130
like a one time show up for
917
00:42:39.130 --> 00:42:41.733
the employment registration requirement.
918
00:42:42.700 --> 00:42:45.680
But a judge will order the defendant not to work
919
00:42:45.680 --> 00:42:47.340
with children, could not have had in mind
920
00:42:47.340 --> 00:42:51.000
that they could perform this kind of work with this kind
921
00:42:51.000 --> 00:42:56.000
of intimate access to tools and that sort of concern.
922
00:42:56.130 --> 00:43:01.030
Our position is trying to articulate, I guess.
923
00:43:01.030 --> 00:43:02.787
Well, I understand the concern.
924
00:43:02.787 --> 00:43:07.787
I just don't see how that contemplates working
925
00:43:08.460 --> 00:43:09.293
with children.
926
00:43:09.293 --> 00:43:11.860
But I want to ask you one last question please.
927
00:43:11.860 --> 00:43:16.156
About, the concern about, 14 consecutive days,
928
00:43:16.156 --> 00:43:19.390
maybe even more than 30 days.
929
00:43:19.390 --> 00:43:24.390
So, how is the employee, employer, supposed to really know?
930
00:43:31.870 --> 00:43:34.810
What if the painting the house in April and gee,
931
00:43:34.810 --> 00:43:38.030
I think this is gonna to take eight days
932
00:43:38.030 --> 00:43:40.970
and all of a sudden it's raining like crazy
933
00:43:40.970 --> 00:43:44.714
and it takes, 14 and a half days.
934
00:43:44.714 --> 00:43:47.050
Are they breaking the law
935
00:43:47.050 --> 00:43:48.800
because they've failed to register.
936
00:43:50.130 --> 00:43:51.980
Well, I think as far as I understand it,
937
00:43:51.980 --> 00:43:55.610
the consequence for failure to register is the exposure
938
00:43:55.610 --> 00:43:57.683
to the failure to register statute.
939
00:43:58.610 --> 00:44:01.520
And whenever the duty, the resume
940
00:44:01.520 --> 00:44:03.010
technically clicked in,
941
00:44:03.010 --> 00:44:07.100
we'd still then have a problem with the knowing element
942
00:44:07.100 --> 00:44:07.933
on it.
943
00:44:07.933 --> 00:44:10.490
So that might cover the person finds themselves
944
00:44:10.490 --> 00:44:11.970
on a job site that may have been able to,
945
00:44:11.970 --> 00:44:14.310
supposed to last 10 days,
946
00:44:14.310 --> 00:44:17.777
but has gone beyond, sort of unplanned
947
00:44:17.777 --> 00:44:21.233
but extension of work, similar in the same way
948
00:44:21.233 --> 00:44:26.233
the example I used the, I'm not expecting to, stay over
949
00:44:26.560 --> 00:44:28.700
at my sister's house to take care of my nephews
950
00:44:28.700 --> 00:44:31.010
at the beginning of the month for four nights that month.
951
00:44:31.010 --> 00:44:32.670
But it had happening.
952
00:44:32.670 --> 00:44:37.040
I think the duty and the criminal liability
953
00:44:37.040 --> 00:44:39.010
with such the point you recognize
954
00:44:40.560 --> 00:44:44.205
that you've passed that point where you have to register.
955
00:44:44.205 --> 00:44:45.663
Okay, thank you.
956
00:44:52.070 --> 00:44:56.340
So, did you, I don't know if you explained this earlier,
957
00:44:56.340 --> 00:44:58.040
I might've missed it.
958
00:44:58.040 --> 00:45:02.223
If the person does register, you know, police
959
00:45:02.223 --> 00:45:07.223
where they're working and it shows up on the registry
960
00:45:07.280 --> 00:45:09.120
after they finished the project,
961
00:45:09.120 --> 00:45:14.060
would it come down off the registry,
962
00:45:14.060 --> 00:45:16.433
you know, off the database?
963
00:45:17.690 --> 00:45:19.262
I mean, certainly if I were--
964
00:45:19.262 --> 00:45:23.831
I'm only asking if you know, I mean, if you don't know.
965
00:45:23.831 --> 00:45:24.860
I'm not sure.
966
00:45:24.860 --> 00:45:26.840
I think if, you know, hopefully
967
00:45:26.840 --> 00:45:28.860
the offender could change the address for move it
968
00:45:28.860 --> 00:45:30.590
from his registration,
969
00:45:30.590 --> 00:45:33.263
the work is complete and then it would no longer appear.
970
00:45:33.263 --> 00:45:34.390
All right.
971
00:45:34.390 --> 00:45:38.510
And then, just to be clear, you are,
972
00:45:38.510 --> 00:45:41.920
I thought you said to Justice Lowy that you just want
973
00:45:41.920 --> 00:45:46.153
to get clarification on what working with children is?
974
00:45:51.101 --> 00:45:52.340
I'm trying to remember exactly.
975
00:45:52.340 --> 00:45:56.700
Well, my point is only, I thought you said
976
00:45:56.700 --> 00:46:00.230
that it could have been clearer what was meant
977
00:46:00.230 --> 00:46:02.320
by working with children.
978
00:46:02.320 --> 00:46:04.490
But yes go ahead.
979
00:46:04.490 --> 00:46:08.830
Again, Commonwealth in an ideal record would have,
980
00:46:08.830 --> 00:46:12.410
you know, had a more now can't do any work
981
00:46:12.410 --> 00:46:14.860
with children involving children to bring you into.
982
00:46:14.860 --> 00:46:16.670
Right. That's going to be of children.
983
00:46:16.670 --> 00:46:18.740
But here we just kind of have the straightforward,
984
00:46:18.740 --> 00:46:20.503
I cannot work with children.
985
00:46:22.880 --> 00:46:27.840
And again, we kind of are defending the judges finding
986
00:46:27.840 --> 00:46:29.950
is reasonable based on, again, the concern
987
00:46:29.950 --> 00:46:32.910
that defendants would have known that
988
00:46:33.770 --> 00:46:37.239
this is not what defendants and judge intended.
989
00:46:37.239 --> 00:46:39.340
That there's not some exception that allows
990
00:46:39.340 --> 00:46:42.720
you to work essentially with children.
991
00:46:42.720 --> 00:46:44.970
Just cause you were worked at directly involved
992
00:46:44.970 --> 00:46:47.910
in the same way that I guess a school janitor
993
00:46:47.910 --> 00:46:51.417
a little different too about working directly with children.
994
00:46:51.417 --> 00:46:54.852
Okay, but it is probation obviously the prompt,
995
00:46:54.852 --> 00:46:56.960
the violation to the court attention.
996
00:46:56.960 --> 00:46:58.850
Now exiting Ellie Cypher.
997
00:46:58.850 --> 00:47:00.700
(beeping)
998
00:47:00.700 --> 00:47:02.933
Oh, that's not good timing is it?
999
00:47:03.900 --> 00:47:05.340
Cause I'm done.
1000
00:47:05.340 --> 00:47:06.780
Okay, we'll have to wait for a moment
1001
00:47:06.780 --> 00:47:08.240
for Justice Cypher to return
1002
00:47:11.130 --> 00:47:13.930
Somebody text Justice Cypher and tell her we lost her.
1003
00:48:36.250 --> 00:48:39.020
Justice Cypher said she's having a technical problem
1004
00:48:39.020 --> 00:48:42.383
and we should skip over her.
1005
00:48:43.950 --> 00:48:44.783
Okay.
1006
00:48:44.783 --> 00:48:46.777
We'll do so for now, Justice Kafker.
1007
00:48:48.150 --> 00:48:53.150
So I'm following up on some of the points Mr Tennen made.
1008
00:48:54.220 --> 00:48:55.770
When would they have to register?
1009
00:48:55.770 --> 00:49:00.030
So I've got some guy working on my house.
1010
00:49:00.030 --> 00:49:05.030
He thinks he's going to get it done, in less than two weeks.
1011
00:49:05.060 --> 00:49:09.920
But it's like all construction never finishes on time.
1012
00:49:09.920 --> 00:49:14.440
What does he register on the, as he, when he realizes
1013
00:49:14.440 --> 00:49:17.290
that he's going to go over 14 days?
1014
00:49:17.290 --> 00:49:19.420
Cause then does that serve any purpose?
1015
00:49:19.420 --> 00:49:22.930
Cause the first 10 days is there without registering.
1016
00:49:22.930 --> 00:49:25.073
So how does that work?
1017
00:49:26.090 --> 00:49:29.760
Well, there so many perfect ideas depends on
1018
00:49:29.760 --> 00:49:33.013
how long over the 14 days it's going to go.
1019
00:49:34.050 --> 00:49:37.210
But as I see the fact that I don't know
1020
00:49:37.210 --> 00:49:41.036
that there's wiggle room, but once it's apparent,
1021
00:49:41.036 --> 00:49:42.940
it's extending past that point.
1022
00:49:42.940 --> 00:49:46.490
Certainly I think, even if it's only be a couple more days
1023
00:49:46.490 --> 00:49:50.373
for a couple more days, that address should be registered.
1024
00:49:52.376 --> 00:49:55.200
And so he has, what does he do?
1025
00:49:55.200 --> 00:49:59.470
So he's a guy, he's a handyman, and he just moves
1026
00:49:59.470 --> 00:50:00.760
from job to job.
1027
00:50:00.760 --> 00:50:04.423
What does he list as his.. what does he do?
1028
00:50:07.200 --> 00:50:08.713
What is he supposed to do?
1029
00:50:12.080 --> 00:50:14.340
In terms of dealing with it?
1030
00:50:14.340 --> 00:50:17.340
Well, I mean like, so he, you know, one day fixing
1031
00:50:17.340 --> 00:50:21.570
a sink the next day he is, you know, doing a deck,
1032
00:50:21.570 --> 00:50:24.500
does, he just list his home address
1033
00:50:24.500 --> 00:50:28.833
and I'm just trying to understand how this works.
1034
00:50:28.833 --> 00:50:33.200
A guy specializes in doing decks which takes,
1035
00:50:33.200 --> 00:50:36.240
you know, not like a three hour job
1036
00:50:36.240 --> 00:50:40.380
but it's a, you know, it's a job that you know,
1037
00:50:40.380 --> 00:50:41.360
takes a while.
1038
00:50:41.360 --> 00:50:43.373
Does he keep changing his address?
1039
00:50:46.860 --> 00:50:49.500
I guess, I suppose you would have to just given
1040
00:50:50.580 --> 00:50:54.280
the fact that the statute intends to allow people
1041
00:50:54.280 --> 00:50:57.410
to kind of escape the registration requirement just
1042
00:50:57.410 --> 00:51:00.273
because their job like keeps changing
1043
00:51:00.273 --> 00:51:05.273
as long as it's over, that's pretty tight.
1044
00:51:05.550 --> 00:51:07.710
And so how about a landscape--
1045
00:51:07.710 --> 00:51:09.917
Now joining Ellie Cypher.
1046
00:51:11.042 --> 00:51:13.930
I'm looking out my window and I see guys working
1047
00:51:13.930 --> 00:51:15.503
on my neighbor's lawn.
1048
00:51:16.762 --> 00:51:19.440
And they have, do they list 30 different sites
1049
00:51:19.440 --> 00:51:22.360
that they have 30 different, you know,
1050
00:51:22.360 --> 00:51:27.360
they work for two hours, for 30 days in 30 different places.
1051
00:51:29.900 --> 00:51:33.090
Do they list all of those if their work site
1052
00:51:33.090 --> 00:51:35.944
or they just list their employer?
1053
00:51:35.944 --> 00:51:37.470
Well, I think in that case where you,
1054
00:51:37.470 --> 00:51:40.340
you know, landscaping that will become
1055
00:51:40.340 --> 00:51:42.394
the summer might not add up.
1056
00:51:42.394 --> 00:51:47.394
Well say it, these guys show up pretty regularly.
1057
00:51:50.842 --> 00:51:52.723
And so does every landscape company have to everyone
1058
00:51:55.670 --> 00:51:59.410
who works at a landscape company lists every single job
1059
00:51:59.410 --> 00:52:02.533
they have that they go to the site more than 30 times?
1060
00:52:03.730 --> 00:52:07.423
That would be my interpretation of the statute.
1061
00:52:09.250 --> 00:52:14.053
Well, I don't think it's convenient,
1062
00:52:15.010 --> 00:52:17.200
but I think that the balance with statute,
1063
00:52:17.200 --> 00:52:19.510
the legislature struck in drafting it this way
1064
00:52:19.510 --> 00:52:23.960
because again, the intent legislatures to know
1065
00:52:23.960 --> 00:52:26.580
where these offenders are spending their time at home.
1066
00:52:26.580 --> 00:52:30.490
So I've got a guy who's a snow removal guy
1067
00:52:30.490 --> 00:52:33.840
and it's a bad winter.
1068
00:52:33.840 --> 00:52:35.870
They're going to list every one of their clients
1069
00:52:35.870 --> 00:52:40.870
as they think it's going to be 30 days of snow removal.
1070
00:52:44.173 --> 00:52:46.680
My answer to that would be yes,
1071
00:52:46.680 --> 00:52:50.594
I guess I thought, again, that's what I'm thinking.
1072
00:52:50.594 --> 00:52:51.794
It defines the work day.
1073
00:52:53.590 --> 00:52:57.090
178E kind of uses work and employment interchangeably
1074
00:52:57.090 --> 00:52:58.920
suggesting kind of with our colloquially idea
1075
00:52:58.920 --> 00:53:00.003
of what work is.
1076
00:53:01.000 --> 00:53:01.927
Right.
1077
00:53:01.927 --> 00:53:03.790
It would work at a location over that timeframe.
1078
00:53:03.790 --> 00:53:05.865
I think you have to register it.
1079
00:53:05.865 --> 00:53:07.680
Okay, that's all I have.
1080
00:53:07.680 --> 00:53:09.250
Thank you.
1081
00:53:09.250 --> 00:53:10.590
Justice Cypher, welcome come back.
1082
00:53:10.590 --> 00:53:12.685
Do you have any questions?
1083
00:53:12.685 --> 00:53:14.310
No, I'm all set.
1084
00:53:14.310 --> 00:53:15.460
Thank you very much.
1085
00:53:15.460 --> 00:53:16.965
I'm just happy to be here.
1086
00:53:16.965 --> 00:53:18.920
(laughs)
1087
00:53:18.920 --> 00:53:21.533
I got a few questions.
1088
00:53:22.912 --> 00:53:27.637
You concede that there is no violation of the,
1089
00:53:29.424 --> 00:53:34.424
soar requirement with regard to work address
1090
00:53:35.390 --> 00:53:40.390
because of the probation officer or the attorney told them
1091
00:53:42.194 --> 00:53:43.694
that that's what he had to do.
1092
00:53:44.914 --> 00:53:47.880
With regard to the probation condition that too,
1093
00:53:47.880 --> 00:53:50.390
has to be a knowing violation does it not?
1094
00:53:50.390 --> 00:53:52.010
Yes.
1095
00:53:52.010 --> 00:53:56.110
So how do we say that it's a knowing violation given
1096
00:53:56.110 --> 00:53:59.693
the language that the judge used to describe it.
1097
00:54:02.090 --> 00:54:04.900
And again, it's kind of the sort of colloquial
1098
00:54:04.900 --> 00:54:09.070
or everyday understanding of what working is.
1099
00:54:09.070 --> 00:54:12.110
I ended up defendant and offender in the defendant's
1100
00:54:12.110 --> 00:54:14.624
position should know that the judge did not intend
1101
00:54:14.624 --> 00:54:18.693
that he should be able to perform that kind of work
1102
00:54:18.693 --> 00:54:23.170
in such... excuse me, close proximity to a child.
1103
00:54:23.170 --> 00:54:24.040
It's an initiative--
1104
00:54:24.040 --> 00:54:26.780
In this context, I gathered the child was an infant.
1105
00:54:26.780 --> 00:54:27.890
Yes.
1106
00:54:27.890 --> 00:54:30.463
Was the child born at the time to work began?
1107
00:54:31.564 --> 00:54:34.994
As the fact came in there, sort of like two phases
1108
00:54:34.994 --> 00:54:39.653
of work the defendant performed, he was hired for initial,
1109
00:54:39.653 --> 00:54:42.840
excuse me, an initial series and then hired later on
1110
00:54:42.840 --> 00:54:44.633
to do some more work.
1111
00:54:44.633 --> 00:54:49.610
And then from that second chunk that the child had been born
1112
00:54:49.610 --> 00:54:50.960
and was present throughout.
1113
00:54:51.920 --> 00:54:56.920
So he supposed to know that the prohibition
1114
00:54:57.160 --> 00:54:59.660
against working with children means that
1115
00:55:01.053 --> 00:55:05.200
he now can no longer perform this job because
1116
00:55:05.200 --> 00:55:07.500
the woman who resides in the house had a baby.
1117
00:55:10.901 --> 00:55:14.823
Well, I'm not sure what that, again, the Commonwealth
1118
00:55:18.530 --> 00:55:23.530
concern here is that, defendant wouldn't think
1119
00:55:26.420 --> 00:55:28.800
that except for the idea that the defendant would able
1120
00:55:28.800 --> 00:55:30.640
to be able to act at such an intimate look
1121
00:55:30.640 --> 00:55:35.640
at the child's home, but not at school kind of yields
1122
00:55:35.690 --> 00:55:37.083
a weird result.
1123
00:55:38.660 --> 00:55:39.790
If it only means their work,
1124
00:55:39.790 --> 00:55:42.203
their job directly involves children.
1125
00:55:43.960 --> 00:55:44.793
Well, I mean, it's different.
1126
00:55:44.793 --> 00:55:47.360
You recognize there's, I mean, there are times
1127
00:55:47.360 --> 00:55:49.340
in which you would say, I don't want you to be working
1128
00:55:49.340 --> 00:55:50.790
in any place where there are children
1129
00:55:50.790 --> 00:55:52.490
and that's not unusual conditions.
1130
00:55:53.490 --> 00:55:55.720
And there are conditions which say, we don't want
1131
00:55:55.720 --> 00:55:56.800
you to be working with children.
1132
00:55:56.800 --> 00:55:58.210
We don't want you to be a camp counselor.
1133
00:55:58.210 --> 00:56:01.610
We don't want you to be a little league coach.
1134
00:56:01.610 --> 00:56:03.120
Those are not unusual conditions,
1135
00:56:03.120 --> 00:56:04.292
but they're different conditions.
1136
00:56:04.292 --> 00:56:05.163
Yes.
1137
00:56:06.010 --> 00:56:09.410
So why should that, why should we state
1138
00:56:09.410 --> 00:56:10.870
that this defendant should have understood
1139
00:56:10.870 --> 00:56:14.220
that this was the first and not the second
1140
00:56:14.220 --> 00:56:16.393
when the judge used the language of the second?
1141
00:56:21.450 --> 00:56:24.800
Again, I think it kind of comes down to that question
1142
00:56:25.828 --> 00:56:28.370
of what a reasonable person in that defendant's position
1143
00:56:28.370 --> 00:56:31.900
believe this is what they were allowed to do,
1144
00:56:31.900 --> 00:56:34.530
were they allowed to be in such proximity
1145
00:56:34.530 --> 00:56:36.273
the children with their work.
1146
00:56:38.852 --> 00:56:39.685
And the Commonwealth's position apparently consistent
1147
00:56:39.685 --> 00:56:44.685
the deciding judges that in this circumstance
1148
00:56:45.940 --> 00:56:47.373
it was beautiful.
1149
00:56:49.150 --> 00:56:53.660
Okay, going into the pragmatic, work address
1150
00:56:53.660 --> 00:56:56.643
or does the store periodically,
1151
00:56:58.260 --> 00:57:01.323
and correspondence to the work address?
1152
00:57:03.992 --> 00:57:06.723
To be honest, I'm not sure, your honor.
1153
00:57:12.320 --> 00:57:13.590
I think I have no further questions.
1154
00:57:13.590 --> 00:57:14.540
Give me one moment.
1155
00:57:16.530 --> 00:57:18.100
And I don't have any further questions.
1156
00:57:18.100 --> 00:57:20.750
Are there any questions of any of my fellow justices?
1157
00:57:22.330 --> 00:57:27.330
And, hearing none, we shall conclude, this oral argument
1158
00:57:28.710 --> 00:57:33.710
and it's now noon and we will convene our sample at 12:05.
1159
00:57:34.670 --> 00:57:36.540
So we'll take a five minute break.
1160
00:57:36.540 --> 00:57:37.731
Thank you all.
1161
00:57:37.731 --> 00:57:38.679
Well, thank you.
Thank you.
1162
00:57:38.679 --> 00:57:39.679
Thank you.