-: Good morning, everyone.
Welcome to a new court year.
We're all excited to be back at it.
Justice Gaziano called it the first day of school for us.
So we're very happy to be here and we are all here.
Justice Kafker is joining us by telephone.
And so we have to make sure he can hear us.
And so I'll ask when you're speaking to speak right
into the microphone and Justice Kafker we'll ask you to
let us know if you can't hear
Kafker: I will.
-: Oh, great.
Okay. So, you know, the beginning of a new court year
presents a unique opportunity to reflect
on the past, the present, and the future.
And it's hard to believe that
It has been the last time that we all sat here
on the same bench as we like to call it the adult table.
It was March 11th, 2020, and that was
before Justice's Wendlandt and George joined us.
So while much has happened since then
I'm heartened by and thankful for the efforts
of so many people who overcame obstacles to keep our courts
in service
to the public.
And because of those efforts, I know that together we can
and will overcome any challenges we may face in the future.
Mr. Caneeli, would you call the first case?
(Inaudible)
Attorney Covington.
-: Thank you.
-: Good morning.
May it please the court Andrew Covington
For the Commonwealth is respectfully requesting
this court to affirm the appeals court decision
holding that probable cause existed
for the issuance of count one in the criminal complaint
throwing of a noxious or filthy substance.
The Commonwealth believes
that probable cause was established for two main reasons.
One being human urine is a noxious
and filthy substance and two that the defendant
specifically intended to injure state police property.
-: Also, I don't want to throw a curve ball out
there first thing first day, but in many
many areas of medicine and other cultures
urine is considered a medicinal substance.
So it's not necessarily inherent to its existence.
It's offensive to us to be handled that way, but
it's not always going to be considered inherently noxious
by maybe in Massachusetts will decide it is
but can you go back to the history
of that statute and why they passed it?
-: Absolutely. Your honor.
So this statute was enacted in 1851.
It was enacted in a direct response
to the temperance movement.
During that time period, political dissenters
would throw bottles filled with coal tar oral SIC acid
which is referred to in the statue as oil of Vitri oil
into houses of folks who supported the temperance movement.
And those substances would cause, or potentially
cause great disaster to furniture, rugs items in the house.
So this statute is a direct result of that
but it's the Commonwealth's opinion that the legislator also
broadly targeted noxious or filthy substances
that being human urine.
So in the situation that you brought up, your honor
I think we would have an issue
with the second prong of the statute when urines, if
-: There's an ambiguity, don't we look
at the legislative of history.
-: You look at the legislative history, your honor
but I don't believe there's an ambiguity here.
The definitions of noxious
and filthy have retained the same meeting
from 1851 all the way up to today in 2002
as the appeals court in the Commonwealth opinion problem.
-: But why do you think they were throwing oil or vitriol
and gasoline into these people's homes rather than urine?
-: Those were the items that were available to them.
Those were the items that were popular at the time.
-: They didn't have urine.
-: They certainly did.
Your honor.
They certainly did.
I think if the dissenters decided to fill a bottle
of urine and threw a bottle of urine into a home
I think it still get you here under this statute.
-: Would it cause as much damage?
Could it set a house on fire?
-: I don't believe it could set a house on fire, your honor
but it's common knowledge in the trooper
in the probable cause statement, even opine this
that urine does, could contain viruses or bacteria.
Okay. Other jurisdictions, Louisiana, New York, Hawaii
which are cited in the Commonwealth briefs have
constituted urine to be a noxious substance.
So why this court or any court
in Massachusetts hasn't defined whether or not
urine is a noxious substance other jurisdictions have
but it's not only a noxious substance.
It's also a filthy substance.
-: When you say they've defined it
did they define it through their statutes?
Or did they have urine specifically
in statutes or was it a court interpretation?
-: Court's interpretation, your honor, two of the cases
involved assault and battery charges.
I can't remember which one, but two of them involved you
urine to assault someone.
And both of those courts concluded that urine
is a noxious substance in the other court, I
-: Believe. And can I ask you counsel in those jurisdictions
was there sulfuric acid
and cold tar also listed alongside filthy and or noxious?
-: I don't believe so.
-: Your honor, no
-: And so my question to you is why delineate coal tar
and sulfuric acid when it's already encompassed
in the term filthy, what would be the legislative purpose
in doing that?
Given our can, and
that we don't each word needs to have, meaning
-: Is the Commonwealth's belief
that it was the legislator's intent to broadly
encompass other substances that could cause have
the potential to cause extreme damage to someone's property
or a business property.
-: And so going back to justice, GA's question
what in the legislative history indicates
or supports the Commonwealth position in that regard?
-: There's nothing in the legislative history
as far as urine
If that's, that's the question, it more deals
with coal tar and sulfuric acid, but there's
-: A, so what supports the proposition that the
legislature broadly intended to target filthy substances
beyond those substances, which are
like sulfuric acid and cottar
-: I think the statute would read something like oil
of vitriol or cold tar or other acid, like or cold tar
like substances, but that's not what the statute says.
They give two examples of Colt, tar and oil
of vitriol and then it's or noxious or filthy substances.
So it's the Commonwealth's belief
that the legislator is broadly income
-: But it does say, or other noxious or filthy.
So given the fact that it does include other I'm wondering
does that favor or disfavor your argument now
-: Believe it favors the Commonwealth argument, your honor.
And the Commonwealth is asking this court to
apply the plain meaning of those words, which is
what the appeals court did.
That noxious is a harmful or hurtful substance and
or filthy being dirty
or disgustingly dirty fits what human urine is.
And this
-: Is a felony, right?
-: It is your honor.
It is a felony.
-: Could someone be charged if they were engaged
engaging public urination on the side of someone's house?
-: I don't believe so, your honor
I think you're gonna get prong.
One of the statute you're gonna have obnoxious
or filthy substance that be in urine
but then I think we're gonna have the problem
with the specific intent in that situation, your honor
was the suspect
or defendant specifically intended to injure the property
or just relieving him or herself.
-: What is the evidence of intent here?
Because wasn't he arrested
for operating under the influence of alcohol?
So I'm presuming he was quite intoxicated.
-: That's correct.
Your honor.
He was arrested for operating under the influence of alcohol
at two 30 in the morning was completely belligerent
uncooperative with the trooper, the bail clerk that night
was unable to even bail him out because he didn't comply
with the booking process.
He was brought to a hold in cell
and it's the Commonwealth's belief.
We're at probable cause of very low standard here
in the light, most favorable to the Commonwealth
reasonable grounds to believe that a crime is committed
that the specific intent is
that he had a toilet to use right next to him.
He was trying to get
-: You ever been to a Patriots game.
-: Yes, I have.
Your honor.
Okay.
-: So if there's a line with the porta parties
and someone decides not to use one in, into relieve themself
near a vehicle
or something, is that intent, is that a crime
-: Not under this statute, your honor, perhaps disorderly
conduct disturbing the peace, maybe indecent exposure.
But again, I think we're gonna have an issue
in that hypothetical of specific intent to injure property
which is, I think is different in this case.
Again, we have to take all the facts
and circumstances into light.
The defendant was inside of a show and
-: The record will reflect
that my experience was at a Eagles game in Philadelphia
not at the Patriot cell, correct myself.
-: Understood your honor.
Understood.
-: I'm sure it wasn't you though.
No, it wasn't.
-: We have to go back though
to going back to the statutory interpretation
the first two specific examples, oil, vitriol, coal
and then you have, or other noxious or filthy substances.
And so the general portion
of the noxious or filthy substances, isn't it limited
by the nature of the first two specific examples?
-: The Commonwealth doesn't believe so
because what was going on in the 1830s and 1840s
it's the Commonwealth's belief looking
at the legislative history
that the legislator was trying to criminalize any type
of behavior like this, any type of substances
that could potentially damage property of another.
So that's why it's the Commonwealth's belief
that human urine would clearly qualify
as a noxious or filthy substance.
It doesn't just have to be oil O vitreal, which is SIC acid
or cold tar, but other noxious or filthy substances.
-: I understand your point about the legislative history
but as a matter
of statutory interpretation and we have specific examples.
And then at the end, the general statement
usually the general is limited by the specific
-: I think if the general would refer back
to those two specific items, if it said noxious
or harmful substances, like oil of vitriol
or like sulfuric acid, but that's not what the statute says.
The statute's only about four sentences long.
So it's the Commonwealth belief
that it's to be broadly interpreted
and given its plain meaning obnoxious and filthy.
I see that I'm almost out of time.
I've just urged the court to affirm the appeals
court decision we're
at probable cause it's a very low standard.
-: Go ahead.
-: Yes, please.
-: We lost you
justice Kaffker?
-: I can hear you
-: Hear me.
Yes. Try again.
(inaudible)
-: It's the Commonwealth belief that nothing has been
excluded your honor.
And again, we don't have hardly no cases on point
there's one case that the defendant cited
but that involved throwing urine and human feces
at a jail guard, which is really an no
(inaudible)
-: Not to the Commonwealth belief
that anything was excluded your honor
in that list or in the legislative history.
-: Thank you.
-: Okay. Thank you very
-: Much. Thank you
-: Attorney rose.
-: Good morning.
And may it please the court.
My name is Rachel T. Rose and I represent the defendant.
Andrew Lopez, Novas, other noxious or filthy substances
must mean something beyond harmful or disgustingly dirty
or causing nearly any sort of mess in Massachusetts
can carry a five year prison sentence
if they claim you did it on purpose
-: Chapter
-: 2 66, section 1 0 3 is deliberately written so broadly
in every other respect that only a meaningful limitation
on what substances it implicates makes the statute
irrational response to the political terror campaign
during which it was enacted almost 200 years ago.
It's comprehensive.
Veria describing how why
and to what the targeted substances can be applied adds
up to banning any means by which they meet with the outside
or anything inside of any building or vessel.
The defendant does not have the right to intentionally soil.
The Commonwealth argument is
that a vague and nearly limitless definition
of what those substances are, must be accepted
over what we'd get using established cannons
of statutory construction
because the legislature only named two hazardous
industrial chemicals, cold tar and oil of vitreal
before using the otherwise broad and subjective terms
not just are filthy, but Iris Deeros has been applied
to lists with only two proceeding examples
before in Commonwealth VUB in 2010, this court interpreted a
since superseded statute regarding dissemination
to minors using the phrase similar visual representations
as covering only images and not text
and online conversations because it was preceded
by the two words, pictures and photographs
the same logic applies here.
Oh, can
-: I ask you a question about that case?
It does indicate as the Commonwealth suggests this statute
should that those other
the two that preceded the other were similar in kind.
So in that statute, there is the word similar here.
We just have other
-: I guess my response would be
that there doesn't seem to be any other reason to
include those first two examples
if other was not meant to mean the same thing
as it did in the statute in Zio
as referring to other things that are of the same kind
or class in implying application to VIH RIS.
-: But doesn't that um
affect whether we decide
that Canon should be applied the inclusion
of the word similar
in the Zio case and the exclusion of similar here
-: Not every statute is written the exact same way.
It seems that it would exclude a large range
of statutes from application of that rule.
If it had to be stated so explicitly if oil E vitriol
and cottar were not meant to guide a limitation
towards substances of similar toxicity, then essentially
the law makes no sense the legislature's response
to anarchists throwing chemical bombs
to the windows of prohibitionist was to severely
punish people who stopped chewing tobacco on the floor.
-: Could I just follow up please, on just
as Woodland's question where your have situations
as a matter
of statutory interpretation where the specific is only two
and the general does not include the word similar.
Are there any cases that apply
that Canon of statutory interpretation
that the specific limit the general?
-: Well, this
unfortunately UB is the closest I was able to find
if I had been able to find something that was exactly
on point to proceeding examples
and use the word word other than I would've cited it
but there's a actually limited scope
of cases that specifically talk
about the rule of each just engineers.
I think we mentioned all of them.
-: Do we have to, I mean, is it required to use that
use U justum generics for this particular statute?
Or can we look at it in other ways as
-: Well? It could be looked at in other ways
but I believe using U justum generics is the
only way that it gives effect to every word of the statute.
-: Why is that?
-: Because the noxious or filthy subs
you wouldn't need to mention cold tar oil vitriol at all.
There would be, you could just simply say throwing noxious
or filthy substances and have the exact same law
-: But doesn't that give you, I mean, I understand
that that gives you a sense of what we're talking about
but if you just look at noxious and filthy substance
isn't that kind of broad
I'm just saying noxious or filthy substance.
I think you said it earlier
that could be interpreted as spinning tobacco.
Right?
-: Right. It could be interpreted as all sorts of things.
And so that it would seem
that the drafters put those two proceeding examples there
in order to must have put the two proceeding examples there
in order to limit the meeting of these terms
because filthy means just
about anything it's and that's the problem.
Unlike the term intellectual disability that this
court upheld to sufficiently definite in Commonwealth St.
Louis in 2015 and the contest of sex offenses
problem is there's no standardized definition
or accepted and well understood meaning
as to what makes something gross.
What rises to the level of disgustingly dirty is
as anyone who has had roommates knows something
that varies greatly from person to person here
that person is the charging authority.
1980 fives, Commonwealth Williams, involved
in ordinance with some similar qualities.
It was the police who decided whether you're centering
and loitering, IE walking was being done
in such a manner as to obstruct travelers or
whether you were one of the travelers being so obstructed.
It does not take a vivid imagination to
foresee the potential for broad application of this statute
to disfavored members of the public.
Especially if they're required.
Intent can be inferred as it was here from the presence
of the substance that discussed the police, claiming
that the specific intent to deface or defile can be presumed
from the nature of a substance is a ology.
When no one can agree
on what the substances on what substances qualify
their interpretation of the statute is unconstitutional
because it provides no meaningful guidance whatsoever.
It's the people trying to abide by it.
Ask to draw the distinction
between a violation of this statute
and property soiling non-criminal and unrecoverable civilly
because it's do minims and damages.
The average citizen will be at a complete loss.
The answer to whether gum or graffiti
on child's desk tracking in mud or dog feces on shoes
spilled drinks or wiped nasal secretions
constitutes the intentional throwing, putting
replacing of filthy
or disgustingly dirty substances is always what it could be.
If the urine toilet paper on the floor in and
around Paris Neve's jail cell is enough to take question.
I'm sorry
-: You're going so fast.
And I'm trying to keep
up with you, but I'm finding it difficult
-: If the urine and toilet paper in and around the floor
on his jail cell is enough to take that question to a jury.
Then every one
of those other examples can also be taken to a jury.
-: But that's not, what's an issue here.
I mean, we're not talking about required finding
we're not talking about Lamore.
We're talking about probable cause.
So you you're making an argument.
That's downstream from where we are.
We're just here it's to whether
or not there's enough probable cause
for this complaint to issue.
And if you're going backwards
and saying that it's limitless
are we really arguing that urine isn't filthy?
I mean, you gave an example
of some other things that might be a jump ball
but are we really at the point of saying
that we all can't agree that throwing urine
somewhere where it should not be isn't filthy?
-: We can't agree that urine where it shouldn't be
isn't Fil is filthy wipes.
Snot is filthy.
Lots of things are filthy.
Many people feel that things are filthy
and the other people don't feel that they're filthy.
And the point is it's very difficult
under this interpretation.
If there is probable cause to charge him with his offense
because you're in his filthy.
And because he insulted the police so much
that he must have done it on purpose
and he must have done it to harm the jail cell
that contained a toilet.
But then you can say that for any other sort of mess, too.
Cuz if it's dis can, you can
many things are disgustingly dirty.
And if you've touched something with them
you've touched something with them on purpose.
Then that's a felony.
It's just like the school zone statute's being applied
to a defendant counsel.
-: Can you tell me why the Commonwealth's argument
that the limitation really comes
from the intent element here?
Doesn't suffice from you to avoid the parade
of horribles that you're suggesting would result.
If we interpreted the statute as the Commonwealth wants
-: Well, an intent to deface
or to let's see deface or defile time
you put something gross on something else, you can argue
that it must have been intended to deface or defile it.
Cause why else would you put that?
There it is.
As the Commonwealth was saying
it's essentially a jump ball.
If they say you must have done it on purpose
then you've that's intent.
It provides a huge amount of discretion to the Commonwealth.
If it doesn't require any sort of actual evidence
of intent beyond it's there, where it shouldn't have been.
And we don't like this guy.
-: And so finish your argument is your argument.
Therefore then the statute is overly broad
and vague and unconstitutional.
-: Yes. That if the Commonwealth is correct
that there was probable cause to charge Paris
naves then the statute itself is unconstitutional
and cannot stand it's.
As I was saying, the school zone statute was
applied to a defendant's stop in his car at a red light
within a hundred.
-: Again, counsel, can you slow down just to tad?
Thank you.
-: It can't have been what the 19th century
legislature intended when it punished harm
to property done using these substances 20 times
as severely as that done with a hammer
did they really mean anything gross?
In other words is interpreted
by the Commonwealth in the appeals court.
The statute offends by its lack
of reasonably clear guidelines
for law enforcement and its consequent, encouragement
of arbitrary and erratic arrests and prosecutions either.
It's a straightforward ban on a attack using controlled
toxic and hazardous substances
or it's UN unconstitutionally vague.
Thank you.
Okay. Hold on one second.
Let me just ask justice.
KAF. Do you have yeah.
(inaudible)
-: Covered
-: If they were throwing what I'm sorry.
Oh, would it have been covered by the statute?
Possibly. It may be
that the statute is just simply poorly written
that they're intending on borrowing a much.
They were intending to borrow a much narrower range
of how you apply up something that's filthy to property.
In which case that would not necessarily
be unconstitutional vague, but as it's written
it would cover it.
It would cover peeing against a building.
Thank you.
Thank you very much.