John Smith Appeals Dismissal on Eleventh Amendment and Judicial Immunity Grounds of Case Against Judges

**THE APPEAL**
JURISDICTIONAL STATEMENT 1. Jurisdiction of the Court of Appeals arises under 28 U.S.C. §§ 1291, 1294, and 1295. 2. Order of Dismissal and Memorandum and Order entered in the docket of the U.S. District Court (Boston) on 22 January 2002 [Add-1-3 and A5-7],\1/ 1 The pages of the Addendum are referred to as “Add-page.” Pages in the Appendix, as” Apage.”
3. Permission was received on 22 August 2003 for an enlargement of time to 14 October 2003 for filing this appellate brief [Add-5].
STATEMENT OF THE ISSUES The Commonwealth of Massachusetts is a body politic and a "person" for purposes of 42 U.S.C. §1983 [Counts 2-6]. Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times. It does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities. The article constitutes the state’s express and unequivocal consent to suit by the people (Counts 1, 8-14). The Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio. The Eleventh Amendment has two prongs, one duly enacted by the Legislature and one birthed by judicial fiat. The former has constitutional and precedential value. The latter has no validity constitutionally and precedentially, making the use of sovereign immunity as grounds for dismissal of this case reversible error. The intersection of the Eleventh Amendment and the Massachusetts Declaration of Rights: The conclusion that a citizen of Massachusetts can sue the Commonwealth in federal court is consistent with the goal inherent in article XI of the Massachusetts Declaration of Rights. Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607, at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine in any form, there is no valid reason to deprive plaintiff of his rights under the Massachusetts Declaration of Rights, Massachusetts Constitution, on the basis of judicial immunity [Counts 2-6]. To deem judges not persons subject to federal civil rights statutes – contrary to Congressional intent – would be repugnant to desirable public policy. And where Defendant Justices acted outside mandatory statutes and thus contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate and reversible error [Counts 2-6]. The claim under §1983 can be based on a violation of state law [Counts 4-5]. Smith adequately alleged (a) the claims for class-based animus for a conspiracy claim under §1985(3) [Count 3], (b) the claims for a conspiracy claim under §1986 [Count 6], and (c) the elements for a civil RICO claim under 18 U.S.C. §1511 [Count 7]. M.G.L. 215, §56A is unconstitutional [Count 1]. a. There is no set of circumstances in which the statute M.G.L. 215, §56A can be constitutionally applied. b. The imprecise language of the statute is infirm constitutionally. c. Smith’s challenge is both a facial and an as-applied challenge. Smith’s pending common-law claims for alleged violations of State law are not barred by the Eleventh Amendment [Counts 8-14]. Where Defendant Justices knowingly committed a baseless act that deprived Smith of his fundamental liberty and property rights, they were, under the Fourteenth Amendment, not entitled to absolute immunity, making dismissal on this ground reversible error.
STATEMENT OF THE CASE This appeal is from the dismissal of the Plaintiff/Appellant’s federal claims brought under 42 U.S.C. §§1983, 1985, and 1986, and 18 U.S.C. §1511 for, primarily, violations of his civil rights, conspiracy, and RICO, and the dismissal without prejudice of his state-law claims. As grounds for dismissing Smith’s federal-law claims, the district court ruled that the Eleventh Amendment barred suit against the Commonwealth without its express and unequivocal consent [Counts 1, 8-14], that the Commonwealth, Trial Court, and judicial defendants were not "persons" subject to suit under the federal civil rights statutes [Counts 2-6], that the Commonwealth is protected by sovereign immunity [Counts 2-6], that the judges are protected in their individual capacities by judicial immunity [Counts 2-6], that a state statute is facially invalid only if appears there is no circumstance in which it could be constitutionally applied [Count 1], that a claim under §1983 cannot be based on a violation of state law [Counts 4-5], that the claim for a class-based animus for a conspiracy claim under §1985(3) was inadequately alleged [Count 3], that the claim for a conspiracy claim under §1986 ) was inadequately alleged [Count 6], and that the elements for a civil RICO claim under 18 U.S.C. §1511 were inadequately alleged [Count 7]. In this brief, Smith demonstrates (1) that the Commonwealth of Massachusetts is a "person" for purposes of 42 U.S.C. §1983, (2) that Eleventh Amendment sovereign immunity does not apply [Counts 2-6], (3)that judges, too, are "persons" for purposes of the federal civil rights statutes, and (4) that judicial immunity does not apply. Smith demonstrates also that the doctrine of judicial immunity was born in England in 1607 from the womb of a devil court, the reviled Star Chamber, and in the United States around 200 years later from the rib of the Star Chamber case when a Supreme Court judge, usurping a legislative function in violation of the separation of powers. Given those conditions of birth, the doctrine of judicial immunity is unconstitutional and may not be applied not only to this case but to any other. Smith further argues that with such repugnant roots, the doctrine may not override the duly ratified and never amended article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts, which guarantees accountability of the judges to the people at all times. The doctrine must not be countenanced by this court, for judicial immunity inappropriately and unconstitutionally does not allow scrutiny of the courts. It fosters secrecy, sloth, and unscrupulousness. In his argument against the application of the Eleventh Amendment, he traces the history from its duly-ratified inception after Chisholm v. Georgia, infra, through its unratified enhancement almost 100 hundred later in Hans v. Louisiana. Of particular significance are (1) that Congress intended judges not to be immune against civil rights deprivation claims, (2) that the enhanced Eleventh Amendment was never ratified by any congress, (3) that the enhanced Eleventh Amendment cannot supercede the duly-ratified Fourteenth Amendment, (4) that the enhanced Eleventh Amendment cannot preempt the Massachusetts Constitution on the issue of immunity – accountability – because the Eleventh Amendment cannot invoke article 6 of the U.S. Constitution, for Congress not only was not at the party at the Bradley v. Fisher bench but also did not have the intention to immunize judges or the Commonwealth, (5) that the judicially-created prong of the Eleventh Amendment is violative of the Ninth Amendment of the U.S. Constitution, (6) that sovereign and judicial immunity are against public policy, and (7) that it cannot bar Smith’s pendent common-law claims. Plaintiff further demonstrates in this brief that he adequately alleged the class-based animus for a conspiracy claim under §1985(3) [Count 3], the claim for a conspiracy under §1986 [Count 6], the elements for a civil RICO claim under 18 U.S.C. §1511 [Count 7], and the claim for a declaration that M.G.L. c. 215 §56A is unconstitutional [Count 1]. STATEMENT OF THE FACTS RELEVANT TO THE ISSUES Plaintiff incorporates by reference the facts, as if set forth herein, detailed in his Complaint in the District Court [generallyA8-53, particularly ¶¶ 11-81, 110(a-c), 114-151] and in the Background section (where the attorney-general wrongly stated facts were corrected) of Smith’s Opposition to the Motion to Dismiss. The facts, supported by 112 pages of documentary evidence, are sufficient to conclude that the defendant judges here (1) acted outside their authority, that, is, they intentionally acted contrary or violated mandatory statutes, (2) acted in excess of their authority, that, is, they acted in ways that no legislature contemplated any judge to act, (3) acted criminally, that is, they (Defendant Judge Gould, in particular, and later another judge after the complaint in this case was filed) aided and abetted the conversion from a $43,500 escrow account of Smith’s money, (4) intentionally discriminated against Smith because he had "a fly and a tie" and deprived him – without his consent and without an evidentiary hearing -- of his twin sons of whom he had been the primary caregiver since their birth, and (5) knowingly put the children in harm’s way in the foreign State and after one of them complained of sodomy in that foreign State, refused to hear Smith’s motions regarding the children and their safety and to order the children returned to Smith in the Commonwealth. Facts that have particular significance to the issues of law are contained in: Defendant Irwin’s Memorandum #14, sent to all judges, clerks, and other officials in the Massachusetts judicial system set forth "both the existence of a policy or custom and a causal link between that policy and the constitutional harm." Tambolleo v. West Boylston, 34 Mass.App.Ct. 526, 528 (1993) (to make out a case for municipal liability under 42 U.S.C. §1983, "plaintiff must demonstrate both the existence of a policy or custom and a causal link between that policy and the constitutional harm"), citing Monell, infra; Defendants’ memorandum in support of their motion to dismiss, in which they admitted that the "memo was issued in response to a ‘dramatic increase’ in the Commonwealth’s guardian-related expenses"; Report of the Senate Committee on Post Audit and Oversight [App. 53A-29 through 53A-42]. SUMMARY OF ARGUMENT By reference, Smith incorporates as if set forth herein all the issue and arguments presented both in his brief in Opposition to the Commonwealth’s Motion to Dismiss and in the footnotes to his Complaint. Relying on the Preamble to the Massachusetts Constitution and G.L. c. 4 §7, Smith proves that the Commonwealth is a person for all purposes, including those for his §§1983, 1985, 1986, and 1988 claims. He puts the frosting on the cake with a concurring opinion in Quern v. Jordan, infra, and article V of the Massachu- setts Declaration of Rights [Issue 1, Counts 2-6, pp. 11-14]. Smith argues that article V guarantees accountability from the "several magistrates and officers of government: to all the people at all times. Although that article has not been interpreted by the Massachusetts courts, the subject of sovereign immunity caught the attention of the Supreme Judicial Court in the 1970s. Smith traces that debate across several significant State cases and set forth the SJC’s conclusion that "the doctrine of sovereign immunity is logically indefensible." Morash, infra [Issue 2, Counts 1, 8-14, pp. 14-17].
Federal courts have invoked the Eleventh Amendment to dismiss cases brought by citizens from any State against any State unless the defendant State has waived its sovereign immunity or explicitly consented to suit in federal courts.\2/ Smith argues that that part of the Eleventh Amendment which was created by judicial fiat and never ratified may not be invoked against him. Nor may it override or preempt article V of the Mass. Declaration of Rights, which has since 1780 constitutionally guaranteed accountability at all times by all three branches of government to the people, of which he is one. Nor may it supercede the duly-ratified Fourteenth Amendment. Nor may it override the plain language of §1983, enacted to enforce the provisions of the Fourteenth Amendment. Nor may it overrule the intent of Congress not to afford immunity to those judges who deprive citizens of their civil rights. The seven major points alluded to in the section Statement of the Case at pp. 4-5 are discussed in detail in Issue 3 [Issue 3, Counts 1-6, 8-14, pp. 17-35]. 2 Plaintiff contends that the Massachusetts Tort Claims Act, the immunity-waiver statute, is likely unconstitutional inasmuch as article V of the Declaration of Rights has never been amended since its ratification in 1780.
Smith also argues that judicial immunity, derived from the abusive Court of Star Chamber in England in 1607 and introduced to our judicial system by judicial fiat, is not only logically indefensible and shameful, it is unconstitutional in Massachusetts, where article V of the Declaration of Rights guarantees accountability to the people at all times by the "several magistrates and officers of [all three branches] of government." He further argues that judges are subject to suit in law and at equity under 42 U.S.C. §1983, as that statute explicitly provides and the Fourteenth Amendment guarantees. Although the Fourteenth has been routinely overridden by the Eleventh Amendment, it has been overridden by that prong of the amendment which was not duly ratified and which was born out of the bench without the participation of Congress, despite the contrary intention of Congress to hold judges accountable as all other government officers are when they deprive citizens of their civil rights. The primary cases cited are Floyd amd Barker, Bradley v. Fisher, Stump v. Sparkman, Pulliam v. Allen, Pierson v. Ray, and marginally, Hafer v. Melo and Faretta v. California [Issue 4, Counts 2-6, pp. 35-47]. In Issue 5, Smith sets out his public policy argument against judicial immunity. He relies heavily on Mr. Justice Douglas’s eloquent dissent in Pierson, in which the justice noted that the Congressional Globe revealed that §1983 applied to "any person" and that "[t]here was no exception for members of the judiciary." The honorable justice also invoked quotations from Gregoire v. Biddle, Baker v. Carr, Monroe v. Pape, and an English case, Dawkins v. Lord Paulet, quoting Chief Justice Cockburn, who "long ago disposed of the argument that liability would deter judges" [Issue 5, Counts 2-6, pp. 47-50].
In Issue 6, Smith argues that his §1983 claims may be based on a violation of state law.\3/Smith’s rationale is that the judges en masse followed a judge-made mandate to violate a State statute, namely M.G.L. c. 215 §56A. Defendant Judge Irwin wrote the infamous memorandum ("Memorandum #14", at App. 53A-12 through 53A-15)\4/ that became the judge-made law. They also acted contrary to other State laws. In so doing, the defendant judges worked a denial of Smith's rights, privileges or immunities secured by the United States Constitution or by Federal law and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.\5/ [Issue 6, Counts 4-5, pp. 50-51]. 3 See 110(a-c) of the Complaint at A28-29. 4 Their defense is that the mandating “memorandum was issued in response to a ‘dramatic increase’ in the Commonwealth’s guardian-related expenses” [page 4 of Defendants’ memorandum in support of motion to dismiss, Paper #4]. 5 Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989). Counts 3, 6, and 7 are for a jury to decide [Issue 7, Counts 3, 6, and 7, p. 51]. In Issue 8, Smith sets out facial and as-applied challenges to the constitutionality of the guardian ad litem statute, M.G.L. c. 215 §56A. He debunks the motion judge’s opinion that there is still life in the Salerno rule [Issue 8, Count 1, pp._51-58]. In Issue 9, Smith takes on the issue of jurisdiction of pendent State-law claims. Where the judicially-created prong of the Eleventh Amendment may not be applied lawfully, the law of Siler v. Louisiana & Nashville R. Co. and Mine Workers v. Gibbs is still good law rule [Issue 9, Counts 8-14, pp. 58-59]. In Issue 10, Smith asserts that the defendant judges’ baseless acts, which deprived Smith of his civil rights, precludes the use of the umbrella of immunity to protect the judges, making dismissal of his State common-law claims reversible error [Issue 10, Counts 8-14, pp. 59-60].
ARGUMENTS The Commonwealth of Massachusetts is a body politic and a "person" for purposes of 42 U.S.C.§1983 [Counts 2-6]. The Preamble of the Massachusetts Constitution defines the Commonwealth as a "Body politic . . . formed by a voluntary association of individuals," a body politic that "is a social compact, by which the whole people covenants with each Citizen, and each citizen with the whole people, that all shall be governed by certain Laws for the Common good." Kargman v. Boston Water and Sewer Com'n, 18 Mass.App.Ct. 51, 54 (1984).\6/ 6 Smith, of course, is in agreement with the "Dictionary Act" argument set forth by the minority opinion in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that the words "bodies politic and corporate" -- before and after the time the Dictionary Act and §1983 were passed -- were understood to include the States. Will, at 69-70 (majority opinion), 69 notes 8 and 9, and 73-77 (Justice Brennan, with whom Justices Marshall, Blackmun, and Stevens joined).
General Law c. 4 § 7, which provides the meaning to be given to words when construing statutes, defines "person" as "corporations, societies, associations and partnerships." Given that the Commonwealth is, according to the Preamble of the Constitution, an association, the Commonwealth is, under G.L. c.4 § 7, a "person." When the Preamble is coupled with G.L. c. 4, §7, the inescapable conclusion is that the Commonwealth is a "person" for all purposes.\7/ That conclusion comports with the time-honored words that Abraham Lincoln proclaimed, in 1863, in his Gettysburg Address: 7 This is the danger encountered more often than not when the courts create “legal fictions.” Legal fictions breed inequities: they are arbitrary, despite “sweet-talking” rationales. Nevertheless, so long as they exist, the Commonwealth may not be excluded from the legal fictions solely for the purpose of defeating plaintiffs’ claims for redressing of ills committed by the government by those working for it. Government must be accountable to the people.
. . that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth." The American people, and the rest of the world, both deserve and need this ideal form of government. But instead we have what may be called: government of the people, by the political class, for the special interests. If this court deems the Commonwealth not to be a person for purposes of §1983, then Lincoln’s words would also have been impressively prophetic. And a few years after the Address, virtually simultaneously with the enactment of the Civil Rights Act in 1871, Congress expressed its manifest intent to consider the sovereign a "person": the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern v. Jordan, 440 U.S. 332, 355-357(1979) (Brennan, J., with whom Marshall, J. joined, Concurring). Monell [436 U.S. 658 (1978)] held that "[s]ince there is nothing in the 'context' of the Civil Rights Act [of 1871] calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." [Cites omitted.] Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States. [Cites omitted.] Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1 L.Ed. 507] (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf.id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern, at 355-357. [The Court in Alabama v. Pugh, 438 U.S. 781 (1978)] were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of sec. 1983. Respondents did not even raise the possibility that Alabama might be a "person" for purposes of sec. 1983. Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 1145 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of sec. 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue. Quern, at 352-354 (Brennan, J, Concurring). Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat. . . . This fiat is particularly disturbing because it is most likely incorrect. Id, at 354, 99 S.Ct. at 1152. The Commonwealth, the "body-politic," the "person," is also implicitly included in article XI of the Declaration of Rights.\8/ 8 Article XI of the Massachusetts Declaration of Rights provides: Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. . . .
Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times. It does not distinguish between the Common- wealth of Massachusetts or the individuals in their individual or official capacities. The article constitutes the state’s express and unequivocal consent to suit by the people [Counts 1, 8-14]. Article V of the Massachusetts Declaration of Rights guarantees that the three branches of government be accountableto the people, of whom Smith is one: All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. Constitution of the Commonwealth of Massachusetts, Part the First, art. 5, ratified on 16 June 1780,\9/a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm, infra. 9 From the fifteenth-century English common law to Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and beyond, courts have never held that prohibited conduct can be shielded by sovereign immunity. That rule makes good sense -- since a principal cannot authorize unlawful conduct, such conduct is of necessity ultra vires. There is no reason to abandon such a well-settled and sensible rule. Pennhurst State School and Hospital et al v. Halderman et al, 465 U.S. 89, 166 n. 51 (1984) (Stevens, Dissent). Throughout its history this Court has derived strength from institutional self- discipline. Adherence to settled doctrine is presump- tively the correct course. Departures are, of course, occasionally required by changes in the fabric of our society. When a court, rather than a legislature, initiates such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals -- the doctrine of the law of the case, the doctrine of stare decisis (the Court repudiates at least 28 cases), the doctrine of sovereign immunity, the doctrine of pendent jurisdiction, and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court's voyage into the sea of undisciplined lawmaking. Pennhurst at 164-166 (Stevens, Dissent) (references to notes 47 through 52 omitted). Never has article V been amended. Never has Massachusetts' article V been repealed. Never has the word "accountable" as used in article V been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin v. Comm'r of Dept. of Youth Services, 388 Mass. 810, (1983) was article V cited. Never has the Massachusetts Supreme Judicial Court analyzed the confluence of article V and the Eleventh Amendment to the United States Constitution. Never has the impact of the Eleventh Amendment of the United States Constitution on article V been considered and determined by a Massachusetts court. Where the SJC chose not to adopt reasoning of the United States Supreme Court under the First Amendment in Attorney General v. Desilets, 418 Mass 316, 321 (1994), it is conceivable the court would choose not to adopt the reasoning of the Court as to the applicability of the Eleventh Amendment. Between the Civil War and the enactment of the Massachusetts Tort Claims Act ["MTCA"] in 1978, the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims." Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. at 813. During the previous decade, the issue whether the Commonwealth should continue to claim it sovereign immunity had come to a head. As a result, the Supreme Judicial Court of Massachusetts reviewed, in Irwin, supra, in excruciating detail the history of the Tort Claims Act after two "significant decisions of [that] court." Id. at 816. Those decisions were, in 1973, Morash & Sons, Inc. v. Com., 363 Mass. 612, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977). In Whitney, the Court announced its intention to abrogate the sovereign immunity doctrine, retroactively to the date of the decision in Morash, should the Legislature have failed to act by the conclusion of its 1978 session. Whitney. So the Legislature effected some loosening of sovereign immunity in the Commonwealth. In 1986, the SJC declared, "[T]he doctrine of sovereign immunity is 'logically indefensible.'" Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash at 618-619. "[W]e stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities." Whitney , at 212. In Bain v. Springfield, 424 Mass. 758 (1997), the SJC held that the antidiscrimination statute waived the Commonwealth's sovereign immunity and that of its political subdivisions by including them in the statutory definition of persons and employers subject to the statute. In that same case, the Commonwealth and its subdivisions were also held liable for punitive damages. Id. at 762-763. As of 2003, the SJC excluded civil rights from the Mass. Torts Claim Act. Cf . Triplett v. Town of Oxford, 439 Mass. 720, 726 (2003) (MTCA immunized public employees against personal negligence suits [G.L. c. 258, § 2], but provided public employers with the discretion to indemnify public employees for financial loss and expenses arising from intentional torts and civil rights violations.
3. The Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio. Smith incorporates herein by reference his argument in his Opposition to Defendants’ Motion to Dismiss [A88-96] that the Eleventh Amendment may not bar suit against Commonwealth of Massachusetts. He summarizes the highlights of his argument as follows: The Eleventh Amendment has two prongs, one duly enacted by the Legislature and one birthed by judicial fiat. The former has constitutional and precedential value. The latter has no validity constitutionally and precedentially and makes the use of sovereign immunity as grounds for dismissal of this case reversible error.
The Ratified Eleventh Amendment: After Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), in which Georgia was sued in federal court by a citizen from another State, a hue and cry arose. In response to Chisholm, the Eleventh Amendment was born on 8 January 1798 solely to prevent a citizen or subject of one State to sue another State in federal court. Although at that time, according to Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2250 (1999), Massachusetts found the Chisholm decision "repugnant," the Massachusetts Legislature never -- either then or later -- repealed, altered, or amended article V of the Massachusetts Declaration of Rights, which precluded the grant of immunity to all the people in the three branches of government, the legislative, executive, and the judiciary. The Court in Alden failed to point to the guarantee of accountability to the people of Massachusetts. If it had, perhaps its argument would have been more compelling. See Alden, 119 S.Ct. at 2250. Perhaps it was only by inadvertence that the Court in Alden simply overlooked article V of the Massachusetts Declaration of Rights and that through it, Massachusetts had done away with immunity 18 years prior to the ratification of the Eleventh Amendment in 1798. But one thing is certain: the Court in Alden did confirm that if a State enjoyed "inviolable sovereignty" [id. at 2243, quoting Federalist, No. 39, p. 245] before the U.S. Constitution was ratified, it continued to enjoy it, unless their sovereignty was "altered by the plan of the Convention or certain constitutional Amendments." Id. Where the Commonwealth of Massachusetts, has been a body politic, a social compact, an association of individual persons, for years before the U.S. Constitution was ratified, there is, logically, no sovereign immunity in Massachusetts. It has been violable only because of unlawful judicial fiat arising in the high court of the federal government and perpetuated by the lesser federal courts. The Commonwealth had no sovereign immunity ab initio.
In 1868, the Fourteenth Amendment was passed to provide people with the rights to due process and equal protection: Having been approved by Congress in 1866, the Fourteenth Amendment was completely ratified in 1868. It reserved the right of citizens and noncitizens alike to sue a State if a federal question was raised in the suit: i.e., federal-question cases are not touched by the Eleventh Amendment. \10/ 10 Here, Smith’s case raises federal questions, and cannot be touched by the Eleventh Amendment. In 1871, Congress enacted 42 U.S.C. §1983 to enforce the provisions of the Fourteenth Amendment: Congress enacted §1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Hafer v. Melo, 502 U.S. 21, 28 (1991), quoting Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), quoting Monroe v. Pape, 365 U.S. 167, 171-172 (1961), and citing Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).\11/ Congress has also intended that judges would be accountable and thus not immune from suit. See Pierson v. Ray, 386 U.S. 547, 563-567 (Douglas, J., dissenting), for the legislative history of §1983. See also Issue 5, infra. 11 The Fourteenth Amendment was enacted to provide people due process and equal protection rights and to forbid legislation, in any form, by any State which wrests any property from an individual for the benefit of another or of the public. Cotting v. Kansas City Stock Yards Company and the State of Kansas, 183 U.S. 79, 87, 22 S.Ct. 30, 34 (1901).
The Unratified Eleventh Amendment: Enhancement by Judicial Fiat: One hundred years after Chisholm, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court enhanced the Eleventh Amendment by judicial fiat, holding that a citizen cannot sue his/her own State in federal court. So the Eleventh Amendment ended up having two prongs. One a legitimate prong, duly ratified, and a second prong, not duly proposed and ratified in accordance with Art. 5 of the United States Constitution,\12/ and, instead, imposed by judicial fiat. 12 SeeNational Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486 (1920). But for the unlawful second prong of the Eleventh Amendment, the Fourteenth Amendment would have allowed Hans his suit against against Louisiana. Seminole Tribe of Florida v. Florida, 517 U. S. 44, 119(1996) (Justice Souter, with whom Justices Ginsburg and Breyer joined, dissented).
The century-old tension between the judge-made Eleventh and the Congress-made, State-ratified Fourteenth amendments has spawned a continuing debate that has nourished many opinions throughout the federal court system. That debate has also encouraged repeated violations of equal protection, by encouraging the some-people-are- more-equal- than-others doctrine.\13/ Dred Scott v. Sandford, 19 How. 393 (1857), and Plessy v. Ferguson, 163 U.S. 537 (1896). 13 The Fourteenth Amendment was approved by Congress in 1866 and completely ratified by the States in 1868, twenty-two years prior to a grenade being thrown at the civil rights of individuals in Hans v. Louisiana, supra. For instance, in 1998, in a case in which neither waiver nor consent were present, the Court explicitly identified the Fourteenth Amendment as a third way to overcome the Eleventh Amendment. While [ ] [Eleventh Amendment] immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment -- an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448 (1883). College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, -- U.S. (N.J.) --, 119 S.Ct. 2219, 2223 (1999) (where neither waiver nor consent was present).
But the fact upon which the Court relied was faulty: it significantly said that "Congress may authorize" suits by some entities against States by exercising its power to enforce the Fourteenth Amendment. Where the Fourteenth Amendment had been ratified, the people did not need Congress to act again. Further, the judge-made prong also occurred after Congress had spoken in the Act. And, recently, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962 (2001), the Court again pointed out that the judge-made prong of the Eleventh Amendment may lose further ground to the Fourteenth Amendment if the Congress chooses to subject nonconsenting States to suit in federal court. . . . the Eleventh Amendment, and the principle of state sovereignty which it embodies, are neces- sarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment. . . . As a result, . . . Congress may subject [even] noncon- senting States to suit in federal court when it does so pursuant to a valid exercise of its sec. 5 power. Board of Trustees, 121 S.Ct. at 962, quoting Fitzpatrick, 427 U.S. at 456 (cite omitted). (The original citation to Hans was omitted from Board of Trustees.) And "Congress may, in determining what is ‘appropriate legislation’ for the purposes of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Fitzpatrick, 427 U.S. at 456. And "Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’" Board of Trustees, 121 S.Ct. at 962, cite omitted.\14/ "As a result, when acting pursuant to sec. 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States' consent" [Fitzpatrick, 427 U.S. at 456], Massachusetts needs not consent anew: its constitutional article V has never been repealed, altered, or amended in the 221 years since its ratification on 14 October 1780.\15/ 14 “[T]he Eleventh Amendment is ‘necessarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment.’” Atascadero, 473 U.S. 234, 238 (1985), quoting Fitzpatrick, 427 U.S. at 456. The Eleventh Amendment does not foreclose Congress’s power to authorize federal courts to award money damages to a private individual against a state government as a means of enforcing the substantive guarantees of the Fourteenth Amendment. Fitzpatrick, where Connecticut was found liable for sex-based discrimination (against present and retired male employees of the State). . . . Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298 (1973): The States surrendered that immunity, in Hamilton's words, "in the plan of the Convention" that formed the Union, at least insofar as the States granted Congress specifi- cally enumerated powers. Fitzpatrick, supra, at 457-458 (Brennan, Concurring in the judgment). 15 “[I]f a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action.” Atascadero, 473 U.S. at 238, citing, e.g., Clark v. Barnard, 108 U.S. at 447.
State sovereignty may also be limited (1) when "there is no state forum available to vindicate federal interests" [Idaho v. Coeur d'Alene, -- U.S. --, 270, 117 S.Ct. 2028, 2035 (1997),\16/citing Ex parte Young, 209 U.S. 123 (1908)] and (2) "when the case calls for the interpretation of federal law."\17/ Id. at 2036. 16 The Court in Idaho, at 2054, noted that the Court in Scheuer v. Rhodes, 416 U.S. at 237, noted that since Young, “‘it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.’” 17 Idaho, at 2037, citing Pennhurst, 465 U.S., at 105, for the proposition that “the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights.” The instant case is one of those cases in which the court should have had an interest in having federal rights vindicated in federal courts.\18/ Smith, as well as other parties in family-law courts, certainly has such an interest. 18 The Court in Hafer held, “[S]tate officials, sued in their individual capacities, are "persons" within the meaning of §1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under §1983 solely by virtue of the "official" nature of their acts. Id., at 31. The question then becomes, Are not judges of a State also State officials? Yes, according to the section 3 of the Fourteenth Amendment, State judges are “judicial officers.” In sum, to overcome either prong of the Eleventh Amendment, a party must prove that his/her State either waived its sovereign immunity or consented to suit in federal court,\19/ or must be one of the special interests for which Congress intentionally abrogated the Eleventh Amendment immunity AND which the Court is willing to shunt the immunity aside. 19 Although the court in Alden did point out that “A State is not the sovereign when a federal claim is pressed against it” [id. at 2294], it is well-settled that the Eleventh Amendment yields to a State waiving or consenting to suit. Smith makes this latter assertion because there is no other conclusion available: each time the Court has used the Eleventh Amendment to dismiss a valid claim seeking the due process and equal protection rights guaranteed by the Fourteenth Amendment [Hafer, 502 U.S. at 28], the Court has overruled Congress. And each time the Court has used that unapproved and unratified prong of the amendment, which has metamorphosed the duly approved and ratified 1798 Eleventh Amendment into a super-oppressive legal fiction, to supercede the duly ratified Fourteenth Amendment, the Court has unlawfully deprived a plaintiff of his or her rights to due process and the equal protection of all the laws. Since it was Congress's explicit intent that the Fourteenth Amendment allow States to be sued in federal court on issues to which it pertains, namely, equal protection of the laws, any plaintiffs seeking a remedy guaranteed by the Fourteenth Amendment must be free of Eleventh Amendment constraint.
Ex parte Young: Within 20 years of the birth of the unratified prong of the Eleventh Amendment barring claims against the Commonwealth, the doctrine of Ex parte Young, 209 U.S. 123 (1908), preserved the right of citizens and noncitizens alike to petition for declaratory and injunctive relief against the judges to proceed insofar as a plaintiff seeks to preclude continuing violations of federal law. Where the defendant judges here, for instance, were acting beyond their state-conferred authority and prospective relief is sought, the Young doctrine is applicable. The purpose of the doctrine is to ensure, in the face of the Eleventh Amendment, that violations of federal law will be recognized [Idaho v. Coeur d'Alene Tribe of Idaho, 117 U.S. at 2034] . . . and the Commonwealth continues to have an interest in the litigation because state policies and procedures are at stake. Id., at 2034. Where a suit alleges unconstitutional conduct, as this one does, it is not barred by the Eleventh Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. (Pa.) 89, 115 n. 27 (1984), citing Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446 (1883) (suit alleging unconstitutional conduct is not barred by the Eleventh Amendment, but State cannot be sued without its consent); Tindal v. Wesley, 167 U.S. 204 (1897) (suit alleging unconstitutional conduct is not barred by the Eleventh Amendment). The district court here relied upon Pennhurst to deny Smith’s claim for a declaratory judgment as to whether that part of M.G.L. c. 215 §56A which refers to guardians ad litem is constitutional. [See A80-84]. That was in error. Pennhurst held, under a theory of federalism, that "[t]he Eleventh Amendment prohibited the District court from ordering state officials to conform their conduct to state law." Id. at 89. [See page 47, infra.] Although Smith was in Count 1 seeking a declaratory judgment, he was not seeking injunctive relief against state officials on the basis of state law.\20/ Under that same token of federalism, the court may not override article V of the Massachusetts Declaration of Rights, ratified at the Commonwealth’s first Constitutional Convention, in 1780. 20 Where plaintiff has sued the judges in their official capacity for injunctive relief, they are persons under §1983. Will, 491 U.S. at 92. A judge is a state actor acting under color of law regardless of the character of the judge's action. Dennis v. Sparks, 449 U.S. 24, 28-29 ((1980). Given, also, that article V of the Massachusetts Declaration of Rights is alive, albeit ignored, the Eleventh Amendment may not override the accountability guaranteed therein, without which accountability a remedy may not be provided for wrongs done to citizens. Because (1) defendants can try to apply to this case only the judicially derived prong of the Eleventh Amendment and (2) Congress did not duly ratify it, and therefore could form no intent to have it reign supreme over article V of the Massachusetts Declaration of Rights, the Eleventh Amendment may neither be deemed supreme, in accordance with Art. 6, \21/ nor preclude Smith, a citizen of Massachusetts, from suing the Commonwealth of Massachusetts or its judges in federal court. 21 Art. 6 of the U.S. Constitution contains the Supremacy Clause. It is well-settled that in determining whether the Supremacy Clause is invoked, one must conclude, that there was congressional intent to preempt a State law. Where the second prong of the Eleventh Amendment came out of the mind of a judge and not the minds of Congress, Congress could not form the intent requisite to invoke art. 6. Com. v. Burgess, 426 Mass. 206, 221-222 (1997), citing English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) for the proposition that “[w]hether a Federal law preempts a State law is a question of congressional intent.”
Pennhurst does not bar claims against the Commonwealth: The lower court relied on Pennhurst for the proposition that the state’s consent to being sued must be express and unequivocal,\22/ but even the majority in Pennhurst recognized that there were cases, albeit "rare," in which "constitutional sovereign immunity" could become a nullity. Pennhurst, 465 U.S. at 113. Such a "rarity" exists in Massachusetts, where, for the reasons above, sovereign immunity is not constitutional. 22 Because of article V’s requirement of accountability, Massachusetts cannot withhold “consent.” That puts into question Pennhurst’s rejection of the agency law discussed by the majority at 113 and in notes 23 through 26.\23/ As noted, historically the cases are all over the place; the permutations were many: amongst the issues was whether a sovereign was responsible for its agents, and if so, when -- when the agents were acting within or without the scope of authority? Resolution of the cases would be Procrustean, it was remarked. The bottom line, ultimately, in Pennhurst was that the majority "question[ed] the continued vitality of the ultra vires doctrine in the Eleventh Amendment context." Id. at 113 n. 25. The dissent, the majority recognized, would keep the ultra vires doctrine alive and well and that "would virtually eliminate the constitutional doctrine of sovereign immunity." 23 The majority rejected the notion that a “‘sovereign, like any other principal, cannot authorize its agent to violate the law,’ so that when the agent does so he cannot be acting for the sovereign.” Pennhurst, 465 U.S. at 113, citing Stevens’ dissent at 153. Under Pennhurst, the outcome of the Nuremberg Trials would have been different than that recounted in history. In actual fact, a sovereign “can” authorize what it wants to authorize, but under proper notions of justice it “may” not. Only under a misused, abusive judicial system would an order to violate a just law be permissible. Therein lies the flaw of the majority’s argument: because of article V in the Declaration of Rights, sovereign immunity is unconstitutional in Massachusetts. So keeping the ultra vires doctrine alive and well would only have two effects: one, it would act as a bright line as to which actions are acceptable and tolerable and which are not, and if the actions are not, then liability would follow.\24/ 24 Without any standard for evaluation of judicial conduct, judicial decisions are “the luck of the grab.” Of course, under Floyd and Barker, infra, or Bradley v. Fisher, infra, judicial immunity allows judges to be corrupt and malicious repeatedly. It may as well be called the Affirmative Action Plan for the Judiciary: merit has nothing to do with “keeping” the appointment. In the remaining, lengthy argument in Pennhurst on this issue, the majority shamefully rejects the "‘modern democratic notions of the moral responsibility of the State.’" Smith suggests that given public sentiment today, it is time to return to just notions of moral responsibility by all natural and unnatural entities. That they were ever shunted aside is regretful. As an aside, it is remarkable how the Pennhurst majority disdained those courts upon which Justice Stevens, the Dissenter, earlier had found counter to the proposition that the majority was furthering. Basically the Pennhurst majority was saying, in words for all intents and purposes, "We had earlier damned stare decisis for a generation or so, we may continue to damn it." Pennhurst at 114-116. "[T]o reconcile completely all the decisions of the Court in this field prior to 1949 would be a Procrustean task." Pennhurst, at 115 n.26 (internal cite omitted).\25/ 25 So it would be to resolve the decisions of the Court in this field post-1949 The cause of the Procrustean task is inescapably the piling on of legal fiction after legal fiction, so that ultimately there is no coherent whole. With the erosion of stare decisis and the substitution of many arbitrary lines and soups of disparate ideas, there is now chaos rather than order, which is supposed to be the goal of justice in a civilized society.\26/ A critical mass of disgruntled individuals has not yet been reached, but if the courts continue to perpetuate legal fiction and confusion, a critical mass will be reached . . . perhaps not in the lifetime of this aged counsel or even her already middle-aged children, but certainly likely in the lifetime of counsel’s grandchildren. 26 “This rationale, of course, created the ‘well-recognized irony’ that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment." Pennhurst at 104-105, cite omitted. Ex parte Young makes a distinction between a State official and the State, and the Court in Pennhurst, 465 U.S. at 114 n. 25, finds the distinction, literally, between natural and unnatural entities remarkable. In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982), Mr. Justice Stevens recognized that “a state official's conduct may be considered ‘'state action’ for Fourteenth Amendment purposes yet not for purposes of the Eleventh Amendment.” Idaho v. Coeur d'Alene Tribe of Idaho, supra. The chosen road of the courts is to immunize each alleged sovereign or anyone who is an agent, servant, or employee of the sovereign, so that each has no responsibility or accountability, no obligation under the social compact with the other members of the association of individuals composing the body politic of the Commonwealth. Moral responsibility . . . and legal responsibility . . . cannot come and go generationally; they should not be able to skip generations. Responsibility and accountability are part of the composition of fundamental fairness, which is the cornerstone of the due process upon which our judicial system must rest. Lastly, ironically, the Eleventh Amendment cases discuss the prohibition of the States from "mak[ing] or enforc[ing] a law which shall abridge the privileges or immunities of citizens of the United States," but they only give a placebo of language regarding the limitations of the federal government in making or enforcing a law that shall abridge the privileges or immunities of citizens of the United States. Quern v. Jordan, 440 U.S. at 355 n. 10 (Brennan, J., with whom Marshall, J. joins, Concurring) (emphasis supplied), quoting Ex parte Virginia, 100 U.S. 339, 346 (1880). Mr. Justice Brennan continued: The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that §1983, in effectuating the provisions of the Amendment by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights" [cite omitted], is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute. Smith further contends that where the Eleventh Amendment cannot be implicated, where the Fourteenth Amendment must be followed, and where the Commonwealth consents to suit, the Commonwealth would still be liable for relief. See id. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.L.Rev. 1175, 1183 (1989) ("Even where a particular area is quite susceptible of clear and definite rules, we Judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided."). Irving v. United States, No. 96-2368 (1st Cir. 1998). Given that accountability is constitutionally mandated in Massachusetts, there is no need for the sovereign to "waive" immunity, for the sovereign's unrepealed, unaltered, or unamended constitutional consent to suit has been in place for more than two centuries.
Although the defendants can argue that Massachusetts' consent to suit in its own courts is not a waiver of Eleventh Amendment immunity in federal court [see Pennhurst, at 99 n. 9], Smith insists that every word of a statute must be given meaning and therefore that the words "at all times" in article V be interpreted as including suit in federal courts as well as in State courts. Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999), quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985) ("All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous");\27/ United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Therefore, this court must "attempt to ascertain legislative intent first, as [it does] with all statutes, `from the words used.'" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942). 27 Com. v. Conaghan, 433 Mass. 105, 110 (2000) (statute to be interpreted according to plain and ordinary meaning of its words). Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) (language of statute is best indication of legislative intent). Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985) (statute must not be interpreted so as to render it or any portion of it meaningless). Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985) (to determine legislative intent, reviewing court looks to both language and purposes of an act).
a. The intersection of the Eleventh Amendment and the Massachusetts Declaration of Rights: The conclusion that a citizen of Massachusetts can sue the Commonwealth in federal court is consistent with the goal inherent in article XI of the Massachusetts Declaration of Rights. Every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const. Art. 11 (1780). Several colonial charters, including those of Massachusetts, ... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit. Alden v. Maine, 119 S.Ct. at 2271. Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been "a surrender of this immunity in the plan of the convention." 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted). Alden, 119 S.Ct. at 2254 (emphasis supplied). That surrender and consent to suit by its citizens was the plan of the Massachusetts convention.\28/See also Federalist Paper No. 80 ( McLean's ed., June 21, 1788, New York) (Hamilton). With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.\29/ 28 John Adams, one of a committee of 30, drafted “‘a Declaration of Rights, and the Form of a Constitution,’ to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26).” The adopted instrument “is still in force today as the organic law of the Commonwealth of Massachusetts.” L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962). 29 The Massachusetts Tort Claims Act [“MTCA”], G.L. c. 258, enacted in 1978, implies that sovereign immunity exists in Massachusetts with certain exceptions set out in that statute -- meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates article V -- and has yet to be deemed unconstitutional -- appears to have escaped challenge. For the MTCA to be "constitutional," article V would have had to be repealed or amended before the MTCA was passed. To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.\30/,\31/ Those procedures have never been invoked vis-à-vis article V, leaving in effect the unequivocal mandate by the forefathers of Massachusetts memorialized in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated. 30 Article LXXIV was ratified by the voters in 1944. 31 According to Atascadero State Hospital v. Scanlon, 473 U.S. at 238 n. 1, a waiver of a State's constitutional mandate may be effectuated by a State statute or constitutional provision. This, clearly, is not wholly true in Massachusetts.
Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607,\32/ at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine in any form, there is no valid reason to deprive plaintiff of his rights under the Massachusetts Declaration of Rights, Massachusetts Constitution, on the basis of judicial immunity [Counts 2-6]. 32 References cited by The Encyclo- pedia Brittanica for the history of the Star Chamber: Sir Thomas Smith, Commonwealth of England (1633); Lord Bacon, History of Henry VII, edited by J. R. Lumby (Cambridge, 1881); William Hudson, "Treatise of the Court of the Star Chamber," Collectanea Juridica, vol. ii; H. Hallam, Constitutional History of England (1876); W. S. Holdsworth, History of English Law (fol. 1902); G. W. Prothero, Statutes and Constitutional Documents 1559-1625 (1894); W. Busch, England under the Tudors (1895); S. R. Gardiner, History of England 1603-1642 (1883-84); D. J. Medley, English Constitutional History (1907); and A. V. Dicey, The Privy Council. . . . . As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself." Stump v Sparkman, 435 U.S. 349, 355 (1978), quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).\33/But Justice Field misstated history in Bradley. Judicial immunity was not to protect the judges for some lofty ideal – as is touted today -- it was to protect the King himself. The purpose was to avoid entrenching the King in the middle of a scandal. Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (case of conspiracy). 33 “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction,’” Stump, 435 U.S. at 356-357, quoting Bradley, at 351.

Figure 1. Allegations of corruption "will trench to the scandal of the King himself"
Floyd and Barker was decided in the Star Chamber in 1607, when the Chamber was at its height of corruption. Its reputation of misuse and abuse having grown, the Chamber was abolished in 1641, during the reign of King Charles I (Stuart). Charles, a man of allegedly private virtue and public vice, "a man of blood," was found guilty of treason during the First English Civil War and beheaded on a scaffold outside the Banqueting House at Whitehall on 30 January 1649. Not only from a moral perspective should no court in our land follow the law arising out of a judicial chamber of horrors, to follow the law of the Court of Star Chamber is more odious because we fought the Revolution to free ourselves from that tyranny and have earned the right to keep ourselves free from institutions and people who want to escape accountability and threaten our liberties. Despite that verity, the Court in Stump, supra, upon which the motion judge in the instant case relied to protect the defendants with judicial immunity, wrote, . . . the Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 613 Wall., at 351. Stump, 435 U.S. at 355-356.\34/Not only does that proposition allow judges to be malicious and corrupt (which meant not adhering to the law and the facts, such as was done in Smith’s case), the statement in Stump is a bald statement of half-truth. 34 A state official in her personal capacity is a “person” for purposes of §1983. Hafer, 502 U.S. at 31 (rejecting Will). The Eleventh Amendment does not bar §1983 personal-capacity suits against state officials in federal court. Id., at 22, citing Scheuer, 416 U.S. at 237-238. "[S]tate officials may [ ] be held liable in their personal capacity for actions they take in their official capacity." Hafer, at 27. In England, during a period when "[a] number of courts challenged the King’s Bench for authority" [Pulliam v. Allen, 466 U.S. (Va.) 522, 530 (1984)], judicial immunity originally protected only the "higher judges of the King’s courts." Id., at 531. But in a writ of false judgment, the plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges, quia recordum non habent; and with this accords 21 H. 6. 34. Floyd and Barker, 12 Co.Rep. at 24, 77 Eng.Rep. at 1307.\35/ 35 The Star Chamber was established af- ter an act in 1341. The Encyclopaedia Bri- tannica,11th ed. (1911), vol. XXV, p.795. Over time, the composition and jurisdiction of the court became uncertain, but “[i]n practice its jurisdiction was almost unlimi- ted.” Id., citing William Hudson, “Treatise of the Court of the Star Chamber,” in vol. ii. of Collectanea Juridica. Certainly its jurisdiction had superseded that of the ordinary courts of law in cases where the ordinary courts were too weak to act. Encyc. Brit. 11th ed., vol. XXV, p. 795. After the act of 1487, “the Star Chamber became the great engine of the royal tyranny.” Id. Although the court had been initially a court of appeal, Henry VIII, Chancellor Wolsey, and Archbishop of Canterbury Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely and within 25 years of 1487, under the leadership of Wolsey and Cranmer, the Chamber not only performed the very necessary and valuable work in punishing powerful offenders who could not be reached by the ordinary courts of law [id.], it also became a political weapon for bringing actions against opponents to suppress opposition to royal policies of Henry VIII. Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. “Its procedure was not according to the common law.” Id. There were no wit- nesses (it could proceed on rumor alone), no juries, no right of appeal, and punish- ment was swift, flexible, and severe to any enemy of the crown. (“It could apply tor- ture; it could inflict any penalty but death.” Id.) Between 1628 and 1640, the Court of Star Chamber became a substitute for Parliament. Court of Star Chamber proceedings were used extensively to persecute dissenters, including Puritans who fled to New England, and gain not only arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually beheaded him in 1649. In sum, because it “characteristically departed from common-law traditions . . . and . . . specialized in trying ‘political’ offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights.” Faretta v. California, 422 U.S. 806, 821 (1975). . . . in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built. Pulliam, 466 U.S. at 530. Although the court in Pulliam iterated the history of judicial immunity, it did so ambiguously. For instance, the court in Pulliam failed to state what Barker did, what the conspiracy was about, who the co-conspirators were, and who Floyd was. That failure arose because of the secrecy that was the hallmark of the Star Chamber. The reasonable inference that may be drawn is that someone by the name of Floyd learned the truth of corruption and conspiracy (from the heading on the case) in the court, and that corruption had to be covered up. Figure 1. A Case of Conspiracy So, the inescapable conclusion from Pulliam must be that the entire authority for the modern ‘doctrine’ of judicial immunity is based on royal prerogative and edicts emanating from the Star Chamber, which was dissolved and outlawed in 1641, and remains a blot on the landscape of England’s juridical history. In fact, Floyd and Barker reveals that William Price was indicted by a grand jury. He pled not guilty, but was tried by a jury and convicted. After his execution, the jurors who convicted him "were charged in the Star-Chamber for conspiracy against him, and indicted and convicted." Floyd, 12 Co. at 1306, 77 Eng.Rep. at 23.\36/ 36 “There is no room for won- der at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff re- turned a pannel, either accor- ding to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appear- ing before the star-chamber; lucky, if they should escape, on humble retraction, with sharp words, instead of enormous fines and indefinite imprisonment.’” Cohen v. Hurley, 366 U.S. 117, 139 n. 16 (1961) (dissenting note), quoting Hallam, The Constitutional History of England, Vol. I (2d ed.), at 316 n. 15 for the proposition that juries then were controlled by the King’s men. The report identifies Floyd only as "Rice ap Evan ap Floyd," with nothing more and notes that the suit occurred after William Price was convicted in Judge Richard Barker’s court for murder and executed by the sheriff. The reason Floyd sued Barker and others in the Star Chamber for conspiracy – at that time a cause of action allowed for diverse reasons – is not revealed. And that is key to knowing and understanding the basis of the then-created doctrine of judicial immunity. Did Barker commit a wrong, outside the scope of his authority? violate an existing statute? was he simply a loyalist to the Royal family and under its protection? or was he acting on orders from the King, the chancellors, or the justices of the Chamber? The ruling chief justices, Popham and Coke (after whom Coke’s King’s Bench Reports are named), did not convict Barker. Instead, they established judicial immunity for the King’s judges. Their rationale was that if the judges were convicted it would "trench to the scandal of the King himself." Floyd, 12 Co. at 1307, 77 Eng.Rep. at 25. Despite the new declaration of judicial immunity, the Floyd report declares in a footnote that "in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission." Id. The report tends with another note: . . . Thomas Weyland, Chief Justice of the Common Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned. Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25. The facts on which the judges were convicted are also not revealed, of course, in Floyd, the report of which was written by the chief justices of the most corrupt court in English history. A few years later, the monarch was executed. That medieval England in 1607 established judicial immunity to insulate its nobility from accountability does not highly support the continuation of that doctrine in Postrevolutionary America, it, instead, recreates the causes of the Revolution. Floyd v. Barker reached our shores in a case involving a Massachusetts attorney. The case was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\37/ an action against a Massachusetts superior court justice for the alleged wrongful disbarment of an attorney. The Court there wrote, "[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly." Id., at 536 (emphasis supplied). 37 The year is variously given as 1868 or 1869. It was in Bradley v. Fisher, supra,\38/ another case in which an attorney was suing a judge for the deprivation of his right to practice as an attorney in the District of Columbia, that Mr. Justice Stephen Field, a bald-headed man with a foot of facial hair, declared on behalf of the Court, in words for all intents and purposes meaning, "The Randall Court was wrong. Judges can be malicious or corrupt. It does not matter. They must remain independent, so they should not worry about being interfered with even when they act maliciously and corruptly." And, ridiculously, the Court in Bradley gave as an example of "excess jurisdiction" the act of a judge convicting a defendant of a non-existent crime, an act for which the judge would be immune: In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Stump, 435 U.S. at 357 n. 7, citing Bradley at 352. 38 Messrs. Justice Davis and Clifford dissented, writing that if a judge acts maliciously and corruptly, he is, in their opinion, “subject to suit the same as a private person would be under like circumstances.” Bradley, at 357. It is shocking to the average lawyer as well as the average layperson that the highest Court of our land should find it acceptable that a judge knowingly convict a person of a non-existent crime. Is not this something Hitler and Stalin and other tyrants have done since time immemorial? Is this the common law that this prestigious court should honor as stare decisis? It, too, like sovereign immunity, is "logically indefensible." See Whitney, supra. That the majorities of those in the highest court of our land should use a doctrine born out of the womb of a devil court, the Star Chamber, both to defy the public demand for accountability and to defeat article V of the Massachusetts Declaration of Rights, which guarantees us accountability by the judiciary, is unfathomable and shameful, . . . and undoubtedly reflects pejoratively on the courts, even the honorable ones, which unfortunately have written extensively only as parts of the minorities: for example, The Honorable Justices Brennan, Stevens, Black, Douglas and others. Curiously, at least two Courts -- Pierson v. Ray, supra, and Stump v Sparkman, supra – have concluded that ". . . we held that this doctrine of judicial immunity was applicable in suits under §1 of the Civil Rights Act of 1871, 42 U.S.C. §1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle." Stump, 435 U.S. at 356, citing Pierson. That was a full untruth. See Mr. Justice Douglas’s dissent in Pierson (and Issue 5 below where parts of it are included within this brief). There he cites the Congressional Record, showing that Congress fully intended that judges would not be immune when they deprive people of their civil rights. The rationale of the Court is specious on other grounds, too. For instance, a first-year law student is taught that he cannot sue for breach of duty if there is no duty; he cannot sue for breach of contract if there is no contract. Here, therefore, it was self-serving and in bad faith for the Court to call attention to the lack of a record that Congress intended to abolish judicial immunity, because the court in Pierson knew or should have known that Congress did not state that it "intended to abolish judicial immunity" because it had never established judicial immunity. It was men in black robes who brought judicial immunity to our shores in the 19th century. Congress was not at their party! Congress had already had its party, decided judges would not be immune to prosecution under §1983, and the section was "on the books fully eight months prior to Bradley being decided. Skullduggery might have been afoot. Certainly it had to be an affront to Congress when the Court decided to follow the English courts rather than its own United States Congress! Granted, the action in Bradley was not brought under any of the Civil Rights Acts" [Pierson, at 549 n. 3 (dissent)], but the debate in Congress regarding judicial immunity was expansive. With the passing of the Act that same year, the Court had to know the majority in Congress were for accountability to stem the tide of personal interests and corruption. So that statement by the Court in Pierson and acknowledged by the Court in Stump is valueless, hollow. It is a statement made only by a result-oriented court, not an intellectually courageous, principled court. It should hold no weight with this First Circuit Court of Appeals, which prides itself on thorough and principled opinions. This circuit should bravely herald that there is no history of a sound rationale in support of judicial immunity. And the Court in Pulliam, 466 U.S. at 540, cited the dissenting opinion in Pierson, at 558-564 for the proposition that "every Member of Congress who spoke to the issue assumed that judges would be liable under §1983." And in Pierson itself, Mr. Justice Douglas wrote in his dissent: The statute [42 U.S.C. §1983], which came on the books as §1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that "every person" who under color of state law or custom "subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." To most, "every person" would mean every person, not every person except judges. Pierson, at 559 (Douglas, J., dissenting). The defendant judges in Smith’s case knowingly, voluntarily, intelligently, and conspiratorially acted outside M.G.L. c. 215 §56A, M.G.L. c. 208 §30, and M.G.L. c. 209B §5(a) (the Mass. Child Custody Jurisdiction Act), to deprive him (and many others) unlawfully of the equal protection of the law, allowed his children to be kidnapped (i.e., taken to a foreign State without his consent and without an evidentiary hearing), essentially robbed him of many thousands of dollars,\39/and thereby violated his civil rights under 42 U.S.C. §1983. Outside their jurisdiction because no legislature contemplated that the judges would intentionally conspire to violate these statute, as evidenced by Memo #14 [Appendix, pages 53A-12 through 53A-15],\40/as well as by the chief judge’s failure to perform his statutory duties under M.G.L. c. 211B §10 and §17, and M.G.L. c. 217 §8. Smith cannot ask this court to vacate what the defendant judges did, but he can ask that they be denied immunity for such wrongdoing and that the case be remanded.\41/ 39 The $13,000-plus taken from his account by the time this complaint was written has escalated to upwards of $20,000 since then. Costs incurred because of unwise, unnecessary State court-ordered appointments of inexpert so-called experts, plus transcripts, in the Smith divorce have risen outrageously to around $200,000. 40 In the Appendix to this brief, Smith’s Complaint ends on page 53. Behind the Complaint are his original exhibits on pages that were numbered 1-112. So as not to obliterate those numbers, which were keyed to the Complaint, Smith’s counsel retained the original numbering system of 1-112 and added the prefix “53A-” to indicate that the pages were part of the original addendum. 41 That more money was needed by the court for “guardian-related expenses” is insufficient cause to break a duly enacted statute. By the unlawful removal of Smith’s children and the wrongful deprivation of his parental rights, Smith’s civil rights were violated, specifically, those under and relating to 42 U.S.C. §§1983, 1985(3) (conspiracy to interfere with civil rights), 1986 (neglect to prevent), and 1988 (proceedings in vindication of civil rights); as well as 18 U.S.C. §§1341 and 1961 (and the statutes cited therein) through 1968 (RICO). Smith cannot ask this court to vacate what the Defendant judges did, but he can remonstrate against their obtaining immunity for such wrongdoing and urge this court to remand the case to the district court so that it may proceed to discovery and trial.
To deem judges not persons subject to federal civil ights statutes – contrary to Congressional intent – would be repugnant to desirable public policy. And where Defendant Justices acted outside mandatory statutes and thus contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate and reversible error [Counts 2-6]. Smith incorporates herein the facts throughout his Complaint and his arguments in his opposition brief at A92- 97 for this proposition. Smith further states that where the defendant justices knowingly violated his clearly established rights-- deprivation of constitutional due process and deprivation of parental rights – the defendant justices were not entitled to absolute immunity. Mr. Justice Douglas had clearly traced the legislative history of §1983 (in Cong. Globe, 42d Cong., 1st Sess.) and confirmed that the congressional intent was to hold judges, as well as every other person, liable for the deprivation of a citizen’s civil rights. He argued the point much more eloquently than Smith’s counsel is able, so his words are included below: Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to " any person." [2] There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result. The section's purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedi

THE APPEAL

JURISDICTIONAL STATEMENT

1. Jurisdiction of the Court of Appeals arises under 28 U.S.C. §§ 1291, 1294, and 1295.

2. Order of Dismissal and Memorandum and Order entered in the docket of the U.S. District Court (Boston) on 22 January 2002 [Add-1-3 and A5-7],\1/

1 The pages of the Addendum are referred to as “Add-page.” Pages in the Appendix, as” Apage.”

3. Permission was received on 22 August 2003 for an enlargement of time to 14 October 2003 for filing this appellate brief [Add-5].

STATEMENT OF THE ISSUES

The Commonwealth of Massachusetts is a body politic and a "person" for purposes of 42 U.S.C. §1983 [Counts 2-6].
Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times. It does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities. The article constitutes the state’s express and unequivocal consent to suit by the people (Counts 1, 8-14).

The Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio.

The Eleventh Amendment has two prongs, one duly enacted by the Legislature and one birthed by judicial fiat. The former has constitutional and precedential value. The latter has no validity constitutionally and precedentially, making the use of sovereign immunity as grounds for dismissal of this case reversible error.
The intersection of the Eleventh Amendment and the Massachusetts Declaration of Rights: The conclusion that a citizen of Massachusetts can sue the Commonwealth in federal court is consistent with the goal inherent in article XI of the Massachusetts Declaration of Rights.

Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607, at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine in any form, there is no valid reason to deprive plaintiff of his rights under the Massachusetts Declaration of Rights, Massachusetts Constitution, on the basis of judicial immunity [Counts 2-6].

To deem judges not persons subject to federal civil rights statutes – contrary to Congressional intent – would be repugnant to desirable public policy. And where Defendant Justices acted outside mandatory statutes and thus contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate and reversible error [Counts 2-6].
The claim under §1983 can be based on a violation of state law [Counts 4-5].
Smith adequately alleged (a) the claims for class-based animus for a conspiracy claim under §1985(3) [Count 3], (b) the claims for a conspiracy claim under §1986 [Count 6], and (c) the elements for a civil RICO claim under 18 U.S.C. §1511 [Count 7].
M.G.L. 215, §56A is unconstitutional [Count 1].

a. There is no set of circumstances in which the statute M.G.L. 215, §56A can be constitutionally applied.

b. The imprecise language of the statute is infirm constitutionally.

c. Smith’s challenge is both a facial and an as-applied challenge.

Smith’s pending common-law claims for alleged violations of State law are not barred by the Eleventh Amendment [Counts 8-14].
Where Defendant Justices knowingly committed a baseless act that deprived Smith of his fundamental liberty and property rights, they were, under the Fourteenth Amendment, not entitled to absolute immunity, making dismissal on this ground reversible error.

STATEMENT OF THE CASE

This appeal is from the dismissal of the Plaintiff/Appellant’s federal claims brought under 42 U.S.C. §§1983, 1985, and 1986, and 18 U.S.C. §1511 for, primarily, violations of his civil rights, conspiracy, and RICO, and the dismissal without prejudice of his state-law claims.

As grounds for dismissing Smith’s federal-law claims, the district court ruled that the Eleventh Amendment barred suit against the Commonwealth without its express and unequivocal consent [Counts 1, 8-14], that the Commonwealth, Trial Court, and judicial defendants were not "persons" subject to suit under the federal civil rights statutes [Counts 2-6], that the Commonwealth is protected by sovereign immunity [Counts 2-6], that the judges are protected in their individual capacities by judicial immunity [Counts 2-6], that a state statute is facially invalid only if appears there is no circumstance in which it could be constitutionally applied [Count 1], that a claim under §1983 cannot be based on a violation of state law [Counts 4-5], that the claim for a class-based animus for a conspiracy claim under §1985(3) was inadequately alleged [Count 3], that the claim for a conspiracy claim under §1986 ) was inadequately alleged [Count 6], and that the elements for a civil RICO claim under 18 U.S.C. §1511 were inadequately alleged [Count 7].

In this brief, Smith demonstrates (1) that the Commonwealth of Massachusetts is a "person" for purposes of 42 U.S.C. §1983, (2) that Eleventh Amendment sovereign immunity does not apply [Counts 2-6], (3)that judges, too, are "persons" for purposes of the federal civil rights statutes, and (4) that judicial immunity does not apply.

Smith demonstrates also that the doctrine of judicial immunity was born in England in 1607 from the womb of a devil court, the reviled Star Chamber, and in the United States around 200 years later from the rib of the Star Chamber case when a Supreme Court judge, usurping a legislative function in violation of the separation of powers. Given those conditions of birth, the doctrine of judicial immunity is unconstitutional and may not be applied not only to this case but to any other.

Smith further argues that with such repugnant roots, the doctrine may not override the duly ratified and never amended article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts, which guarantees accountability of the judges to the people at all times. The doctrine must not be countenanced by this court, for judicial immunity inappropriately and unconstitutionally does not allow scrutiny of the courts. It fosters secrecy, sloth, and unscrupulousness.

In his argument against the application of the Eleventh Amendment, he traces the history from its duly-ratified inception after Chisholm v. Georgia, infra, through its unratified enhancement almost 100 hundred later in Hans v. Louisiana. Of particular significance are

(1) that Congress intended judges not to be immune against civil rights deprivation claims,

(2) that the enhanced Eleventh Amendment was never ratified by any congress,

(3) that the enhanced Eleventh Amendment cannot supercede the duly-ratified Fourteenth Amendment,

(4) that the enhanced Eleventh Amendment cannot preempt the Massachusetts Constitution on the issue of immunity – accountability – because the Eleventh Amendment cannot invoke article 6 of the U.S. Constitution, for Congress not only was not at the party at the Bradley v. Fisher bench but also did not have the intention to immunize judges or the Commonwealth,

(5) that the judicially-created prong of the Eleventh Amendment is violative of the Ninth Amendment of the U.S. Constitution,

(6) that sovereign and judicial immunity are against public policy, and

(7) that it cannot bar Smith’s pendent common-law claims.

Plaintiff further demonstrates in this brief that he adequately alleged the class-based animus for a conspiracy claim under §1985(3) [Count 3], the claim for a conspiracy under §1986 [Count 6], the elements for a civil RICO claim under 18 U.S.C. §1511 [Count 7], and the claim for a declaration that M.G.L. c. 215 §56A is unconstitutional [Count 1].

STATEMENT OF THE FACTS RELEVANT TO THE ISSUES

Plaintiff incorporates by reference the facts, as if set forth herein, detailed in his Complaint in the District Court [generallyA8-53, particularly ¶¶ 11-81, 110(a-c), 114-151] and in the Background section (where the attorney-general wrongly stated facts were corrected) of Smith’s Opposition to the Motion to Dismiss. The facts, supported by 112 pages of documentary evidence, are sufficient to conclude that the defendant judges here

(1) acted outside their authority, that, is, they intentionally acted contrary or violated mandatory statutes,

(2) acted in excess of their authority, that, is, they acted in ways that no legislature contemplated any judge to act,

(3) acted criminally, that is, they (Defendant Judge Gould, in particular, and later another judge after the complaint in this case was filed) aided and abetted the conversion from a $43,500 escrow account of Smith’s money,

(4) intentionally discriminated against Smith because he had "a fly and a tie" and deprived him – without his consent and without an evidentiary hearing -- of his twin sons of whom he had been the primary caregiver since their birth, and

(5) knowingly put the children in harm’s way in the foreign State and after one of them complained of sodomy in that foreign State, refused to hear Smith’s motions regarding the children and their safety and to order the children returned to Smith in the Commonwealth.

Facts that have particular significance to the issues of law are contained in:

Defendant Irwin’s Memorandum #14, sent to all judges, clerks, and other officials in the Massachusetts judicial system set forth "both the existence of a policy or custom and a causal link between that policy and the constitutional harm." Tambolleo v. West Boylston, 34 Mass.App.Ct. 526, 528 (1993) (to make out a case for municipal liability under 42 U.S.C. §1983, "plaintiff must demonstrate both the existence of a policy or custom and a causal link between that policy and the constitutional harm"), citing Monell, infra;
Defendants’ memorandum in support of their motion to dismiss, in which they admitted that the "memo was issued in response to a ‘dramatic increase’ in the Commonwealth’s guardian-related expenses";
Report of the Senate Committee on Post Audit and Oversight [App. 53A-29 through 53A-42].

SUMMARY OF ARGUMENT

By reference, Smith incorporates as if set forth herein all the issue and arguments presented both in his brief in Opposition to the Commonwealth’s Motion to Dismiss and in the footnotes to his Complaint.

Relying on the Preamble to the Massachusetts Constitution and G.L. c. 4 §7, Smith proves that the Commonwealth is a person for all purposes, including those for his §§1983, 1985, 1986, and 1988 claims. He puts the frosting on the cake with a concurring opinion in Quern v. Jordan, infra, and article V of the Massachu- setts Declaration of Rights [Issue 1, Counts 2-6, pp. 11-14].

Smith argues that article V guarantees accountability from the "several magistrates and officers of government: to all the people at all times. Although that article has not been interpreted by the Massachusetts courts, the subject of sovereign immunity caught the attention of the Supreme Judicial Court in the 1970s. Smith traces that debate across several significant State cases and set forth the SJC’s conclusion that "the doctrine of sovereign immunity is logically indefensible." Morash, infra [Issue 2, Counts 1, 8-14, pp. 14-17].

Federal courts have invoked the Eleventh Amendment to dismiss cases brought by citizens from any State against any State unless the defendant State has waived its sovereign immunity or explicitly consented to suit in federal courts.\2/ Smith argues that that part of the Eleventh Amendment which was created by judicial fiat and never ratified may not be invoked against him. Nor may it override or preempt article V of the Mass. Declaration of Rights, which has since 1780 constitutionally guaranteed accountability at all times by all three branches of government to the people, of which he is one. Nor may it supercede the duly-ratified Fourteenth Amendment. Nor may it override the plain language of §1983, enacted to enforce the provisions of the Fourteenth Amendment. Nor may it overrule the intent of Congress not to afford immunity to those judges who deprive citizens of their civil rights. The seven major points alluded to in the section Statement of the Case at pp. 4-5 are discussed in detail in Issue 3 [Issue 3, Counts 1-6, 8-14, pp. 17-35].

2 Plaintiff contends that the Massachusetts Tort Claims Act, the immunity-waiver statute, is likely unconstitutional inasmuch as article V of the Declaration of Rights has never been amended since its ratification in 1780.

Smith also argues that judicial immunity, derived from the abusive Court of Star Chamber in England in 1607 and introduced to our judicial system by judicial fiat, is not only logically indefensible and shameful, it is unconstitutional in Massachusetts, where article V of the Declaration of Rights guarantees accountability to the people at all times by the "several magistrates and officers of [all three branches] of government." He further argues that judges are subject to suit in law and at equity under 42 U.S.C. §1983, as that statute explicitly provides and the Fourteenth Amendment guarantees. Although the Fourteenth has been routinely overridden by the Eleventh Amendment, it has been overridden by that prong of the amendment which was not duly ratified and which was born out of the bench without the participation of Congress, despite the contrary intention of Congress to hold judges accountable as all other government officers are when they deprive citizens of their civil rights. The primary cases cited are Floyd amd Barker, Bradley v. Fisher, Stump v. Sparkman, Pulliam v. Allen, Pierson v. Ray, and marginally, Hafer v. Melo and Faretta v. California [Issue 4, Counts 2-6, pp. 35-47].

In Issue 5, Smith sets out his public policy argument against judicial immunity. He relies heavily on Mr. Justice Douglas’s eloquent dissent in Pierson, in which the justice noted that the Congressional Globe revealed that §1983 applied to "any person" and that "[t]here was no exception for members of the judiciary." The honorable justice also invoked quotations from Gregoire v. Biddle, Baker v. Carr, Monroe v. Pape, and an English case, Dawkins v. Lord Paulet, quoting Chief Justice Cockburn, who "long ago disposed of the argument that liability would deter judges" [Issue 5, Counts 2-6, pp. 47-50].

In Issue 6, Smith argues that his §1983 claims may be based on a violation of state law.\3/Smith’s rationale is that the judges en masse followed a judge-made mandate to violate a State statute, namely M.G.L. c. 215 §56A. Defendant Judge Irwin wrote the infamous memorandum ("Memorandum #14", at App. 53A-12 through 53A-15)\4/ that became the judge-made law. They also acted contrary to other State laws. In so doing, the defendant judges worked a denial of Smith's rights, privileges or immunities secured by the United States Constitution or by Federal law and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.\5/ [Issue 6, Counts 4-5, pp. 50-51].

3 See 110(a-c) of the Complaint at A28-29.

4 Their defense is that the mandating “memorandum was issued in response to a ‘dramatic increase’ in the Commonwealth’s guardian-related expenses” [page 4 of Defendants’ memorandum in support of motion to dismiss, Paper #4].

5 Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989).

Counts 3, 6, and 7 are for a jury to decide [Issue 7, Counts 3, 6, and 7, p. 51].

In Issue 8, Smith sets out facial and as-applied challenges to the constitutionality of the guardian ad litem statute, M.G.L. c. 215 §56A. He debunks the motion judge’s opinion that there is still life in the Salerno rule [Issue 8, Count 1, pp._51-58].

In Issue 9, Smith takes on the issue of jurisdiction of pendent State-law claims. Where the judicially-created prong of the Eleventh Amendment may not be applied lawfully, the law of Siler v. Louisiana & Nashville R. Co. and Mine Workers v. Gibbs is still good law rule [Issue 9, Counts 8-14, pp. 58-59].

In Issue 10, Smith asserts that the defendant judges’ baseless acts, which deprived Smith of his civil rights, precludes the use of the umbrella of immunity to protect the judges, making dismissal of his State common-law claims reversible error [Issue 10, Counts 8-14, pp. 59-60].

ARGUMENTS

The Commonwealth of Massachusetts is a body politic and a "person" for purposes of 42 U.S.C.§1983 [Counts 2-6].

The Preamble of the Massachusetts Constitution defines the Commonwealth as a "Body politic . . . formed by a voluntary association of individuals," a body politic that "is a social compact, by which the whole people covenants with each Citizen, and each citizen with the whole people, that all shall be governed by certain Laws for the Common good." Kargman v. Boston Water and Sewer Com'n, 18 Mass.App.Ct. 51, 54 (1984).\6/

6 Smith, of course, is in agreement with the "Dictionary Act" argument set forth by the minority opinion in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that the words "bodies politic and corporate" -- before and after the time the Dictionary Act and §1983 were passed -- were understood to include the States. Will, at 69-70 (majority opinion), 69 notes 8 and 9, and 73-77 (Justice Brennan, with whom Justices Marshall, Blackmun, and Stevens joined).

General Law c. 4 § 7, which provides the meaning to be given to words when construing statutes, defines "person" as "corporations, societies, associations and partnerships." Given that the Commonwealth is, according to the Preamble of the Constitution, an association, the Commonwealth is, under G.L. c.4 § 7, a "person."

When the Preamble is coupled with G.L. c. 4, §7, the inescapable conclusion is that the Commonwealth is a "person" for all purposes.\7/ That conclusion comports with the time-honored words that Abraham Lincoln proclaimed, in 1863, in his Gettysburg Address:

7 This is the danger encountered more often than not when the courts create “legal fictions.” Legal fictions breed inequities: they are arbitrary, despite “sweet-talking” rationales. Nevertheless, so long as they exist, the Commonwealth may not be excluded from the legal fictions solely for the purpose of defeating plaintiffs’ claims for redressing of ills committed by the government by those working for it. Government must be accountable to the people.

. . that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth." The American people, and the rest of the world, both deserve and need this ideal form of government. But instead we have what may be called: government of the people, by the political class, for the special interests. If this court deems the Commonwealth not to be a person for purposes of §1983, then Lincoln’s words would also have been impressively prophetic.

And a few years after the Address, virtually simultaneously with the enactment of the Civil Rights Act in 1871, Congress expressed its manifest intent to consider the sovereign a "person": the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern v. Jordan, 440 U.S. 332, 355-357(1979) (Brennan, J., with whom Marshall, J. joined, Concurring).

Monell [436 U.S. 658 (1978)] held that "[s]ince there is nothing in the 'context' of the Civil Rights Act [of 1871] calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." [Cites omitted.] Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States. [Cites omitted.] Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1 L.Ed. 507] (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf.id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern, at 355-357. [The Court in Alabama v. Pugh, 438 U.S. 781 (1978)] were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of sec. 1983. Respondents did not even raise the possibility that Alabama might be a "person" for purposes of sec. 1983. Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 1145 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of sec. 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue. Quern, at 352-354 (Brennan, J, Concurring). Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat. . . . This fiat is particularly disturbing because it is most likely incorrect. Id, at 354, 99 S.Ct. at 1152.

The Commonwealth, the "body-politic," the "person," is also implicitly included in article XI of the Declaration of Rights.\8/

8 Article XI of the Massachusetts Declaration of Rights provides:
Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. . . .

Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times. It does not distinguish between the Common- wealth of Massachusetts or the individuals in their individual or official capacities. The article constitutes the state’s express and unequivocal consent to suit by the people [Counts 1, 8-14].

Article V of the Massachusetts Declaration of Rights guarantees that the three branches of government be accountableto the people, of whom Smith is one:

All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. Constitution of the Commonwealth of Massachusetts, Part the First, art. 5, ratified on 16 June 1780,\9/a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm, infra.

From the fifteenth-century English common law to Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and beyond, courts have never held that prohibited conduct can be shielded by sovereign immunity. That rule makes good sense -- since a principal cannot authorize unlawful conduct, such conduct is of necessity ultra vires. There is no reason to abandon such a well-settled and sensible rule.

Pennhurst State School and Hospital et al v. Halderman et al, 465 U.S. 89, 166 n. 51 (1984) (Stevens, Dissent).

Throughout its history this Court has derived strength from institutional self- discipline. Adherence to settled doctrine is presump- tively the correct course. Departures are, of course, occasionally required by changes in the fabric of our society. When a court, rather than a legislature, initiates such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals -- the doctrine of the law of the case, the doctrine of stare decisis (the Court repudiates at least 28 cases), the doctrine of sovereign immunity, the doctrine of pendent jurisdiction, and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court's voyage into the sea of undisciplined lawmaking.

Pennhurst at 164-166 (Stevens, Dissent) (references to notes 47 through 52 omitted).

Never has article V been amended. Never has Massachusetts' article V been repealed. Never has the word "accountable" as used in article V been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin v. Comm'r of Dept. of Youth Services, 388 Mass. 810, (1983) was article V cited.

Never has the Massachusetts Supreme Judicial Court analyzed the confluence of article V and the Eleventh Amendment to the United States Constitution. Never has the impact of the Eleventh Amendment of the United States Constitution on article V been considered and determined by a Massachusetts court.

Where the SJC chose not to adopt reasoning of the United States Supreme Court under the First Amendment in Attorney General v. Desilets, 418 Mass 316, 321 (1994), it is conceivable the court would choose not to adopt the reasoning of the Court as to the applicability of the Eleventh Amendment.

Between the Civil War and the enactment of the Massachusetts Tort Claims Act ["MTCA"] in 1978, the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims." Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. at 813.

During the previous decade, the issue whether the Commonwealth should continue to claim it sovereign immunity had come to a head. As a result, the Supreme Judicial Court of Massachusetts reviewed, in Irwin, supra, in excruciating detail the history of the Tort Claims Act after two "significant decisions of [that] court." Id. at 816. Those decisions were, in 1973, Morash & Sons, Inc. v. Com., 363 Mass. 612, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977).

In Whitney, the Court announced its intention to abrogate the sovereign immunity doctrine, retroactively to the date of the decision in Morash, should the Legislature have failed to act by the conclusion of its 1978 session. Whitney. So the Legislature effected some loosening of sovereign immunity in the Commonwealth.

In 1986, the SJC declared, "[T]he doctrine of sovereign immunity is 'logically indefensible.'" Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash at 618-619. "[W]e stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities." Whitney , at 212.

In Bain v. Springfield, 424 Mass. 758 (1997), the SJC held that the antidiscrimination statute waived the Commonwealth's sovereign immunity and that of its political subdivisions by including them in the statutory definition of persons and employers subject to the statute. In that same case, the Commonwealth and its subdivisions were also held liable for punitive damages. Id. at 762-763.

As of 2003, the SJC excluded civil rights from the Mass. Torts Claim Act. Cf . Triplett v. Town of Oxford, 439 Mass. 720, 726 (2003) (MTCA immunized public employees against personal negligence suits [G.L. c. 258, § 2], but provided public employers with the discretion to indemnify public employees for financial loss and expenses arising from intentional torts and civil rights violations.

3. The Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio.

Smith incorporates herein by reference his argument in his Opposition to Defendants’ Motion to Dismiss [A88-96] that the Eleventh Amendment may not bar suit against Commonwealth of Massachusetts. He summarizes the highlights of his argument as follows:

The Eleventh Amendment has two prongs, one duly enacted by the Legislature and one birthed by judicial fiat. The former has constitutional and precedential value. The latter has no validity constitutionally and precedentially and makes the use of sovereign immunity as grounds for dismissal of this case reversible error.

The Ratified Eleventh Amendment: After Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), in which Georgia was sued in federal court by a citizen from another State, a hue and cry arose. In response to Chisholm, the Eleventh Amendment was born on 8 January 1798 solely to prevent a citizen or subject of one State to sue another State in federal court.

Although at that time, according to Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2250 (1999), Massachusetts found the Chisholm decision "repugnant," the Massachusetts Legislature never -- either then or later -- repealed, altered, or amended article V of the Massachusetts Declaration of Rights, which precluded the grant of immunity to all the people in the three branches of government, the legislative, executive, and the judiciary.

The Court in Alden failed to point to the guarantee of accountability to the people of Massachusetts. If it had, perhaps its argument would have been more compelling. See Alden, 119 S.Ct. at 2250. Perhaps it was only by inadvertence that the Court in Alden simply overlooked article V of the Massachusetts Declaration of Rights and that through it, Massachusetts had done away with immunity 18 years prior to the ratification of the Eleventh Amendment in 1798.

But one thing is certain: the Court in Alden did confirm that if a State enjoyed "inviolable sovereignty" [id. at 2243, quoting Federalist, No. 39, p. 245] before the U.S. Constitution was ratified, it continued to enjoy it, unless their sovereignty was "altered by the plan of the Convention or certain constitutional Amendments." Id. Where the Commonwealth of Massachusetts, has been a body politic, a social compact, an association of individual persons, for years before the U.S. Constitution was ratified, there is, logically, no sovereign immunity in Massachusetts. It has been violable only because of unlawful judicial fiat arising in the high court of the federal government and perpetuated by the lesser federal courts. The Commonwealth had no sovereign immunity ab initio.

In 1868, the Fourteenth Amendment was passed to provide people with the rights to due process and equal protection: Having been approved by Congress in 1866, the Fourteenth Amendment was completely ratified in 1868. It reserved the right of citizens and noncitizens alike to sue a State if a federal question was raised in the suit: i.e., federal-question cases are not touched by the Eleventh Amendment. \10/

10 Here, Smith’s case raises federal questions, and cannot be touched by the Eleventh Amendment.

In 1871, Congress enacted 42 U.S.C. §1983 to enforce the provisions of the Fourteenth Amendment: Congress enacted §1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Hafer v. Melo, 502 U.S. 21, 28 (1991), quoting Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), quoting Monroe v. Pape, 365 U.S. 167, 171-172 (1961), and citing Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).\11/ Congress has also intended that judges would be accountable and thus not immune from suit. See Pierson v. Ray, 386 U.S. 547, 563-567 (Douglas, J., dissenting), for the legislative history of §1983. See also Issue 5, infra.

11 The Fourteenth Amendment was enacted to provide people due process and equal protection rights and to forbid legislation, in any form, by any State which wrests any property from an individual for the benefit of another or of the public. Cotting v. Kansas City Stock Yards Company and the State of Kansas, 183 U.S. 79, 87, 22 S.Ct. 30, 34 (1901).

The Unratified Eleventh Amendment: Enhancement by Judicial Fiat: One hundred years after Chisholm, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court enhanced the Eleventh Amendment by judicial fiat, holding that a citizen cannot sue his/her own State in federal court. So the Eleventh Amendment ended up having two prongs. One a legitimate prong, duly ratified, and a second prong, not duly proposed and ratified in accordance with Art. 5 of the United States Constitution,\12/ and, instead, imposed by judicial fiat.

12 SeeNational Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486 (1920).

But for the unlawful second prong of the Eleventh Amendment, the Fourteenth Amendment would have allowed Hans his suit against against Louisiana. Seminole Tribe of Florida v. Florida, 517 U. S. 44, 119(1996) (Justice Souter, with whom Justices Ginsburg and Breyer joined, dissented).

The century-old tension between the judge-made Eleventh and the Congress-made, State-ratified Fourteenth amendments has spawned a continuing debate that has nourished many opinions throughout the federal court system. That debate has also encouraged repeated violations of equal protection, by encouraging the some-people-are- more-equal- than-others doctrine.\13/ Dred Scott v. Sandford, 19 How. 393 (1857), and Plessy v. Ferguson, 163 U.S. 537 (1896).

13 The Fourteenth Amendment was approved by Congress in 1866 and completely ratified by the States in 1868, twenty-two years prior to a grenade being thrown at the civil rights of individuals in Hans v. Louisiana, supra.

For instance, in 1998, in a case in which neither waiver nor consent were present, the Court explicitly identified the Fourteenth Amendment as a third way to overcome the Eleventh Amendment.

While [ ] [Eleventh Amendment] immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment -- an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448 (1883). College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, -- U.S. (N.J.) --, 119 S.Ct. 2219, 2223 (1999) (where neither waiver nor consent was present).

But the fact upon which the Court relied was faulty: it significantly said that "Congress may authorize" suits by some entities against States by exercising its power to enforce the Fourteenth Amendment. Where the Fourteenth Amendment had been ratified, the people did not need Congress to act again.

Further, the judge-made prong also occurred after Congress had spoken in the Act.

And, recently, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962 (2001), the Court again pointed out that the judge-made prong of the Eleventh Amendment may lose further ground to the Fourteenth Amendment if the Congress chooses to subject nonconsenting States to suit in federal court.

. . . the Eleventh Amendment, and the principle of state sovereignty which it embodies, are neces- sarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment. . . . As a result, . . . Congress may subject [even] noncon- senting States to suit in federal court when it does so pursuant to a valid exercise of its sec. 5 power.

Board of Trustees, 121 S.Ct. at 962, quoting Fitzpatrick, 427 U.S. at 456 (cite omitted). (The original citation to Hans was omitted from Board of Trustees.)
And "Congress may, in determining what is ‘appropriate legislation’ for the purposes of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Fitzpatrick, 427 U.S. at 456.

And "Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’" Board of Trustees, 121 S.Ct. at 962, cite omitted.\14/ "As a result, when acting pursuant to sec. 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States' consent" [Fitzpatrick, 427 U.S. at 456], Massachusetts needs not consent anew: its constitutional article V has never been repealed, altered, or amended in the 221 years since its ratification on 14 October 1780.\15/

14 “[T]he Eleventh Amendment is ‘necessarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment.’” Atascadero, 473 U.S. 234, 238 (1985), quoting Fitzpatrick, 427 U.S. at 456.

The Eleventh Amendment does not foreclose Congress’s power to authorize federal courts to award money damages to a private individual against a state government as a means of enforcing the substantive guarantees of the Fourteenth Amendment. Fitzpatrick, where Connecticut was found liable for sex-based discrimination (against present and retired male employees of the State).

. . . Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298 (1973): The States surrendered that immunity, in Hamilton's words, "in the plan of the Convention" that formed the Union, at least insofar as the States granted Congress specifi- cally enumerated powers.

Fitzpatrick, supra, at 457-458 (Brennan, Concurring in the judgment).

15 “[I]f a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action.” Atascadero, 473 U.S. at 238, citing, e.g., Clark v. Barnard, 108 U.S. at 447.

State sovereignty may also be limited (1) when "there is no state forum available to vindicate federal interests" [Idaho v. Coeur d'Alene, -- U.S. --, 270, 117 S.Ct. 2028, 2035 (1997),\16/citing Ex parte Young, 209 U.S. 123 (1908)] and (2) "when the case calls for the interpretation of federal law."\17/ Id. at 2036.

16 The Court in Idaho, at 2054, noted that the Court in Scheuer v. Rhodes, 416 U.S. at 237, noted that since Young, “‘it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.’”

17 Idaho, at 2037, citing Pennhurst, 465 U.S., at 105, for the proposition that “the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights.”

The instant case is one of those cases in which the court should have had an interest in having federal rights vindicated in federal courts.\18/ Smith, as well as other parties in family-law courts, certainly has such an interest.

18 The Court in Hafer held, “[S]tate officials, sued in their individual capacities, are "persons" within the meaning of §1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under §1983 solely by virtue of the "official" nature of their acts. Id., at 31. The question then becomes, Are not judges of a State also State officials? Yes, according to the section 3 of the Fourteenth Amendment, State judges are “judicial officers.”

In sum, to overcome either prong of the Eleventh Amendment, a party must prove that his/her State either waived its sovereign immunity or consented to suit in federal court,\19/ or must be one of the special interests for which Congress intentionally abrogated the Eleventh Amendment immunity AND which the Court is willing to shunt the immunity aside.

19 Although the court in Alden did point out that “A State is not the sovereign when a federal claim is pressed against it” [id. at 2294], it is well-settled that the Eleventh Amendment yields to a State waiving or consenting to suit.

Smith makes this latter assertion because there is no other conclusion available: each time the Court has used the Eleventh Amendment to dismiss a valid claim seeking the due process and equal protection rights guaranteed by the Fourteenth Amendment [Hafer, 502 U.S. at 28], the Court has overruled Congress.

And each time the Court has used that unapproved and unratified prong of the amendment, which has metamorphosed the duly approved and ratified 1798 Eleventh Amendment into a super-oppressive legal fiction, to supercede the duly ratified Fourteenth Amendment, the Court has unlawfully deprived a plaintiff of his or her rights to due process and the equal protection of all the laws.

Since it was Congress's explicit intent that the Fourteenth Amendment allow States to be sued in federal court on issues to which it pertains, namely, equal protection of the laws, any plaintiffs seeking a remedy guaranteed by the Fourteenth Amendment must be free of Eleventh Amendment constraint.

Ex parte Young: Within 20 years of the birth of the unratified prong of the Eleventh Amendment barring claims against the Commonwealth, the doctrine of Ex parte Young, 209 U.S. 123 (1908), preserved the right of citizens and noncitizens alike to petition for declaratory and injunctive relief against the judges to proceed insofar as a plaintiff seeks to preclude continuing violations of federal law.

Where the defendant judges here, for instance, were acting beyond their state-conferred authority and prospective relief is sought, the Young doctrine is applicable. The purpose of the doctrine is to ensure, in the face of the Eleventh Amendment, that violations of federal law will be recognized [Idaho v. Coeur d'Alene Tribe of Idaho, 117 U.S. at 2034] . . . and the Commonwealth continues to have an interest in the litigation because state policies and procedures are at stake. Id., at 2034.

Where a suit alleges unconstitutional conduct, as this one does, it is not barred by the Eleventh Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. (Pa.) 89, 115 n. 27 (1984), citing Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446 (1883) (suit alleging unconstitutional conduct is not barred by the Eleventh Amendment, but State cannot be sued without its consent); Tindal v. Wesley, 167 U.S. 204 (1897) (suit alleging unconstitutional conduct is not barred by the Eleventh Amendment).

The district court here relied upon Pennhurst to deny Smith’s claim for a declaratory judgment as to whether that part of M.G.L. c. 215 §56A which refers to guardians ad litem is constitutional. [See A80-84]. That was in error. Pennhurst held, under a theory of federalism, that "[t]he Eleventh Amendment prohibited the District court from ordering state officials to conform their conduct to state law." Id. at 89. [See page 47, infra.]

Although Smith was in Count 1 seeking a declaratory judgment, he was not seeking injunctive relief against state officials on the basis of state law.\20/ Under that same token of federalism, the court may not override article V of the Massachusetts Declaration of Rights, ratified at the Commonwealth’s first Constitutional Convention, in 1780.

20 Where plaintiff has sued the judges in their official capacity for injunctive relief, they are persons under §1983. Will, 491 U.S. at 92. A judge is a state actor acting under color of law regardless of the character of the judge's action. Dennis v. Sparks, 449 U.S. 24, 28-29 ((1980).

Given, also, that article V of the Massachusetts Declaration of Rights is alive, albeit ignored, the Eleventh Amendment may not override the accountability guaranteed therein, without which accountability a remedy may not be provided for wrongs done to citizens.

Because (1) defendants can try to apply to this case only the judicially derived prong of the Eleventh Amendment and (2) Congress did not duly ratify it, and therefore could form no intent to have it reign supreme over article V of the Massachusetts Declaration of Rights, the Eleventh Amendment may neither be deemed supreme, in accordance with Art. 6, \21/ nor preclude Smith, a citizen of Massachusetts, from suing the Commonwealth of Massachusetts or its judges in federal court.

21 Art. 6 of the U.S. Constitution contains the Supremacy Clause. It is well-settled that in determining whether the Supremacy Clause is invoked, one must conclude, that there was congressional intent to preempt a State law. Where the second prong of the Eleventh Amendment came out of the mind of a judge and not the minds of Congress, Congress could not form the intent requisite to invoke art. 6. Com. v. Burgess, 426 Mass. 206, 221-222 (1997), citing English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) for the proposition that “[w]hether a Federal law preempts a State law is a question of congressional intent.”

Pennhurst does not bar claims against the Commonwealth: The lower court relied on Pennhurst for the proposition that the state’s consent to being sued must be express and unequivocal,\22/ but even the majority in Pennhurst recognized that there were cases, albeit "rare," in which "constitutional sovereign immunity" could become a nullity. Pennhurst, 465 U.S. at 113. Such a "rarity" exists in Massachusetts, where, for the reasons above, sovereign immunity is not constitutional.

22 Because of article V’s requirement of accountability, Massachusetts cannot withhold “consent.”

That puts into question Pennhurst’s rejection of the agency law discussed by the majority at 113 and in notes 23 through 26.\23/ As noted, historically the cases are all over the place; the permutations were many: amongst the issues was whether a sovereign was responsible for its agents, and if so, when -- when the agents were acting within or without the scope of authority? Resolution of the cases would be Procrustean, it was remarked. The bottom line, ultimately, in Pennhurst was that the majority "question[ed] the continued vitality of the ultra vires doctrine in the Eleventh Amendment context." Id. at 113 n. 25. The dissent, the majority recognized, would keep the ultra vires doctrine alive and well and that "would virtually eliminate the constitutional doctrine of sovereign immunity."

23 The majority rejected the notion that a “‘sovereign, like any other principal, cannot authorize its agent to violate the law,’ so that when the agent does so he cannot be acting for the sovereign.” Pennhurst, 465 U.S. at 113, citing Stevens’ dissent at 153. Under Pennhurst, the outcome of the Nuremberg Trials would have been different than that recounted in history. In actual fact, a sovereign “can” authorize what it wants to authorize, but under proper notions of justice it “may” not. Only under a misused, abusive judicial system would an order to violate a just law be permissible.

Therein lies the flaw of the majority’s argument: because of article V in the Declaration of Rights, sovereign immunity is unconstitutional in Massachusetts. So keeping the ultra vires doctrine alive and well would only have two effects: one, it would act as a bright line as to which actions are acceptable and tolerable and which are not, and if the actions are not, then liability would follow.\24/

24 Without any standard for evaluation of judicial conduct, judicial decisions are “the luck of the grab.” Of course, under Floyd and Barker, infra, or Bradley v. Fisher, infra, judicial immunity allows judges to be corrupt and malicious repeatedly. It may as well be called the Affirmative Action Plan for the Judiciary: merit has nothing to do with “keeping” the appointment.

In the remaining, lengthy argument in Pennhurst on this issue, the majority shamefully rejects the "‘modern democratic notions of the moral responsibility of the State.’" Smith suggests that given public sentiment today, it is time to return to just notions of moral responsibility by all natural and unnatural entities. That they were ever shunted aside is regretful.

As an aside, it is remarkable how the Pennhurst majority disdained those courts upon which Justice Stevens, the Dissenter, earlier had found counter to the proposition that the majority was furthering. Basically the Pennhurst majority was saying, in words for all intents and purposes, "We had earlier damned stare decisis for a generation or so, we may continue to damn it." Pennhurst at 114-116. "[T]o reconcile completely all the decisions of the Court in this field prior to 1949 would be a Procrustean task." Pennhurst, at 115 n.26 (internal cite omitted).\25/

25 So it would be to resolve the decisions of the Court in this field post-1949

The cause of the Procrustean task is inescapably the piling on of legal fiction after legal fiction, so that ultimately there is no coherent whole. With the erosion of stare decisis and the substitution of many arbitrary lines and soups of disparate ideas, there is now chaos rather than order, which is supposed to be the goal of justice in a civilized society.\26/ A critical mass of disgruntled individuals has not yet been reached, but if the courts continue to perpetuate legal fiction and confusion, a critical mass will be reached . . . perhaps not in the lifetime of this aged counsel or even her already middle-aged children, but certainly likely in the lifetime of counsel’s grandchildren.

26 “This rationale, of course, created the ‘well-recognized irony’ that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment." Pennhurst at 104-105, cite omitted. Ex parte Young makes a distinction between a State official and the State, and the Court in Pennhurst, 465 U.S. at 114 n. 25, finds the distinction, literally, between natural and unnatural entities remarkable. In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982), Mr. Justice Stevens recognized that “a state official's conduct may be considered ‘'state action’ for Fourteenth Amendment purposes yet not for purposes of the Eleventh Amendment.” Idaho v. Coeur d'Alene Tribe of Idaho, supra.

The chosen road of the courts is to immunize each alleged sovereign or anyone who is an agent, servant, or employee of the sovereign, so that each has no responsibility or accountability, no obligation under the social compact with the other members of the association of individuals composing the body politic of the Commonwealth.

Moral responsibility . . . and legal responsibility . . . cannot come and go generationally; they should not be able to skip generations. Responsibility and accountability are part of the composition of fundamental fairness, which is the cornerstone of the due process upon which our judicial system must rest.

Lastly, ironically, the Eleventh Amendment cases discuss the prohibition of the States from "mak[ing] or enforc[ing] a law which shall abridge the privileges or immunities of citizens of the United States," but they only give a placebo of language regarding the limitations of the federal government in making or enforcing a law that shall abridge the privileges or immunities of citizens of the United States. Quern v. Jordan, 440 U.S. at 355 n. 10 (Brennan, J., with whom Marshall, J. joins, Concurring) (emphasis supplied), quoting Ex parte Virginia, 100 U.S. 339, 346 (1880). Mr. Justice Brennan continued:

The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that §1983, in effectuating the provisions of the Amendment by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights" [cite omitted], is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute. Smith further contends that where the Eleventh Amendment cannot be implicated, where the Fourteenth Amendment must be followed, and where the Commonwealth consents to suit, the Commonwealth would still be liable for relief. See id. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.L.Rev. 1175, 1183 (1989) ("Even where a particular area is quite susceptible of clear and definite rules, we Judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided."). Irving v. United States, No. 96-2368 (1st Cir. 1998).

Given that accountability is constitutionally mandated in Massachusetts, there is no need for the sovereign to "waive" immunity, for the sovereign's unrepealed, unaltered, or unamended constitutional consent to suit has been in place for more than two centuries.

Although the defendants can argue that Massachusetts' consent to suit in its own courts is not a waiver of Eleventh Amendment immunity in federal court [see Pennhurst, at 99 n. 9], Smith insists that every word of a statute must be given meaning and therefore that the words "at all times" in article V be interpreted as including suit in federal courts as well as in State courts. Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999), quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985) ("All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous");\27/ United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Therefore, this court must "attempt to ascertain legislative intent first, as [it does] with all statutes, `from the words used.'" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942).

27 Com. v. Conaghan, 433 Mass. 105, 110 (2000) (statute to be interpreted according to plain and ordinary meaning of its words). Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) (language of statute is best indication of legislative intent). Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985) (statute must not be interpreted so as to render it or any portion of it meaningless). Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985) (to determine legislative intent, reviewing court looks to both language and purposes of an act).

a. The intersection of the Eleventh Amendment and the Massachusetts Declaration of Rights: The conclusion that a citizen of Massachusetts can sue the Commonwealth in federal court is consistent with the goal inherent in article XI of the Massachusetts Declaration of Rights.

Every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const. Art. 11 (1780). Several colonial charters, including those of Massachusetts, ... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit. Alden v. Maine, 119 S.Ct. at 2271. Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been "a surrender of this immunity in the plan of the convention." 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted). Alden, 119 S.Ct. at 2254 (emphasis supplied).

That surrender and consent to suit by its citizens was the plan of the Massachusetts convention.\28/See also Federalist Paper No. 80 ( McLean's ed., June 21, 1788, New York) (Hamilton). With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.\29/

28 John Adams, one of a committee of 30, drafted “‘a Declaration of Rights, and the Form of a Constitution,’ to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26).” The adopted instrument “is still in force today as the organic law of the Commonwealth of Massachusetts.” L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962).

29 The Massachusetts Tort Claims Act [“MTCA”], G.L. c. 258, enacted in 1978, implies that sovereign immunity exists in Massachusetts with certain exceptions set out in that statute -- meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates article V -- and has yet to be deemed unconstitutional -- appears to have escaped challenge. For the MTCA to be "constitutional," article V would have had to be repealed or amended before the MTCA was passed.

To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.\30/,\31/ Those procedures have never been invoked vis-à-vis article V, leaving in effect the unequivocal mandate by the forefathers of Massachusetts memorialized in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated.

30 Article LXXIV was ratified by the voters in 1944.

31 According to Atascadero State Hospital v. Scanlon, 473 U.S. at 238 n. 1, a waiver of a State's constitutional mandate may be effectuated by a State statute or constitutional provision. This, clearly, is not wholly true in Massachusetts.

Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607,\32/ at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine in any form, there is no valid reason to deprive plaintiff of his rights under the Massachusetts Declaration of Rights, Massachusetts Constitution, on the basis of judicial immunity [Counts 2-6].

32 References cited by The Encyclo- pedia Brittanica for the history of the Star Chamber: Sir Thomas Smith, Commonwealth of England (1633); Lord Bacon, History of Henry VII, edited by J. R. Lumby (Cambridge, 1881); William Hudson, "Treatise of the Court of the Star Chamber," Collectanea Juridica, vol. ii; H. Hallam, Constitutional History of England (1876); W. S. Holdsworth, History of English Law (fol. 1902); G. W. Prothero, Statutes and Constitutional Documents 1559-1625 (1894); W. Busch, England under the Tudors (1895); S. R. Gardiner, History of England 1603-1642 (1883-84); D. J. Medley, English Constitutional History (1907); and A. V. Dicey, The Privy Council.
.
. . . As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself."

Stump v Sparkman, 435 U.S. 349, 355 (1978), quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).\33/But Justice Field misstated history in Bradley. Judicial immunity was not to protect the judges for some lofty ideal – as is touted today -- it was to protect the King himself. The purpose was to avoid entrenching the King in the middle of a scandal. Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (case of conspiracy).

33 “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction,’” Stump, 435 U.S. at 356-357, quoting Bradley, at 351.

Figure 1. Allegations of corruption "will trench to the scandal of the King himself"

Floyd and Barker was decided in the Star Chamber in 1607, when the Chamber was at its height of corruption. Its reputation of misuse and abuse having grown, the Chamber was abolished in 1641, during the reign of King Charles I (Stuart). Charles, a man of allegedly private virtue and public vice, "a man of blood," was found guilty of treason during the First English Civil War and beheaded on a scaffold outside the Banqueting House at Whitehall on 30 January 1649.

Not only from a moral perspective should no court in our land follow the law arising out of a judicial chamber of horrors, to follow the law of the Court of Star Chamber is more odious because we fought the Revolution to free ourselves from that tyranny and have earned the right to keep ourselves free from institutions and people who want to escape accountability and threaten our liberties.

Despite that verity, the Court in Stump, supra, upon which the motion judge in the instant case relied to protect the defendants with judicial immunity, wrote,

. . . the Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 613 Wall., at 351.

Stump, 435 U.S. at 355-356.\34/Not only does that proposition allow judges to be malicious and corrupt (which meant not adhering to the law and the facts, such as was done in Smith’s case), the statement in Stump is a bald statement of half-truth.

34 A state official in her personal capacity is a “person” for purposes of §1983. Hafer, 502 U.S. at 31 (rejecting Will). The Eleventh Amendment does not bar §1983 personal-capacity suits against state officials in federal court. Id., at 22, citing Scheuer, 416 U.S. at 237-238. "[S]tate officials may [ ] be held liable in their personal capacity for actions they take in their official capacity." Hafer, at 27.

In England, during a period when "[a] number of courts challenged the King’s Bench for authority" [Pulliam v. Allen, 466 U.S. (Va.) 522, 530 (1984)], judicial immunity originally protected only the "higher judges of the King’s courts." Id., at 531.

But in a writ of false judgment, the plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges, quia recordum non habent; and with this accords 21 H. 6. 34.

Floyd and Barker, 12 Co.Rep. at 24, 77 Eng.Rep. at 1307.\35/

35 The Star Chamber was established af- ter an act in 1341. The Encyclopaedia Bri- tannica,11th ed. (1911), vol. XXV, p.795. Over time, the composition and jurisdiction of the court became uncertain, but “[i]n practice its jurisdiction was almost unlimi- ted.” Id., citing William Hudson, “Treatise of the Court of the Star Chamber,” in vol. ii. of Collectanea Juridica. Certainly its jurisdiction had superseded that of the ordinary courts of law in cases where the ordinary courts were too weak to act. Encyc. Brit. 11th ed., vol. XXV, p. 795.

After the act of 1487, “the Star Chamber became the great engine of the royal tyranny.” Id. Although the court had been initially a court of appeal, Henry VIII, Chancellor Wolsey, and Archbishop of Canterbury Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely and within 25 years of 1487, under the leadership of Wolsey and Cranmer, the Chamber not only performed the very necessary and valuable work in punishing powerful offenders who could not be reached by the ordinary courts of law [id.], it also became a political weapon for bringing actions against opponents to suppress opposition to royal policies of Henry VIII.

Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. “Its procedure was not according to the common law.” Id. There were no wit- nesses (it could proceed on rumor alone), no juries, no right of appeal, and punish- ment was swift, flexible, and severe to any enemy of the crown. (“It could apply tor- ture; it could inflict any penalty but death.” Id.)

Between 1628 and 1640, the Court of Star Chamber became a substitute for Parliament. Court of Star Chamber proceedings were used extensively to persecute dissenters, including Puritans who fled to New England, and gain not only arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually beheaded him in 1649.

In sum, because it “characteristically departed from common-law traditions . . . and . . . specialized in trying ‘political’ offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights.” Faretta v. California, 422 U.S. 806, 821 (1975).

. . . in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built.

Pulliam, 466 U.S. at 530.

Although the court in Pulliam iterated the history of judicial immunity, it did so ambiguously. For instance, the court in Pulliam failed to state what Barker did, what the conspiracy was about, who the co-conspirators were, and who Floyd was. That failure arose because of the secrecy that was the hallmark of the Star Chamber. The reasonable inference that may be drawn is that someone by the name of Floyd learned the truth of corruption and conspiracy (from the heading on the case) in the court, and that corruption had to be covered up.

Figure 1. A Case of Conspiracy

So, the inescapable conclusion from Pulliam must be that the entire authority for the modern ‘doctrine’ of judicial immunity is based on royal prerogative and edicts emanating from the Star Chamber, which was dissolved and outlawed in 1641, and remains a blot on the landscape of England’s juridical history.

In fact, Floyd and Barker reveals that William Price was indicted by a grand jury. He pled not guilty, but was tried by a jury and convicted. After his execution, the jurors who convicted him "were charged in the Star-Chamber for conspiracy against him, and indicted and convicted." Floyd, 12 Co. at 1306, 77 Eng.Rep. at 23.\36/

“There is no room for won- der at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff re- turned a pannel, either accor- ding to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appear- ing before the star-chamber; lucky, if they should escape, on humble retraction, with sharp words, instead of enormous fines and indefinite imprisonment.’”
Cohen v. Hurley, 366 U.S. 117, 139 n. 16 (1961) (dissenting note), quoting Hallam, The Constitutional History of England, Vol. I (2d ed.), at 316 n. 15 for the proposition that juries then were controlled by the King’s men.

The report identifies Floyd only as "Rice ap Evan ap Floyd," with nothing more and notes that the suit occurred after William Price was convicted in Judge Richard Barker’s court for murder and executed by the sheriff. The reason Floyd sued Barker and others in the Star Chamber for conspiracy – at that time a cause of action allowed for diverse reasons – is not revealed. And that is key to knowing and understanding the basis of the then-created doctrine of judicial immunity. Did Barker commit a wrong, outside the scope of his authority? violate an existing statute? was he simply a loyalist to the Royal family and under its protection? or was he acting on orders from the King, the chancellors, or the justices of the Chamber?

The ruling chief justices, Popham and Coke (after whom Coke’s King’s Bench Reports are named), did not convict Barker. Instead, they established judicial immunity for the King’s judges. Their rationale was that if the judges were convicted it would "trench to the scandal of the King himself." Floyd, 12 Co. at 1307, 77 Eng.Rep. at 25.

Despite the new declaration of judicial immunity, the Floyd report declares in a footnote that "in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission." Id.

The report tends with another note:

. . . Thomas Weyland, Chief Justice of the Common Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.

Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25.

The facts on which the judges were convicted are also not revealed, of course, in Floyd, the report of which was written by the chief justices of the most corrupt court in English history. A few years later, the monarch was executed.

That medieval England in 1607 established judicial immunity to insulate its nobility from accountability does not highly support the continuation of that doctrine in Postrevolutionary America, it, instead, recreates the causes of the Revolution.

Floyd v. Barker reached our shores in a case involving a Massachusetts attorney. The case was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\37/ an action against a Massachusetts superior court justice for the alleged wrongful disbarment of an attorney. The Court there wrote, "[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly." Id., at 536 (emphasis supplied).

37 The year is variously given as 1868 or 1869.

It was in Bradley v. Fisher, supra,\38/ another case in which an attorney was suing a judge for the deprivation of his right to practice as an attorney in the District of Columbia, that Mr. Justice Stephen Field, a bald-headed man with a foot of facial hair, declared on behalf of the Court, in words for all intents and purposes meaning, "The Randall Court was wrong. Judges can be malicious or corrupt. It does not matter. They must remain independent, so they should not worry about being interfered with even when they act maliciously and corruptly." And, ridiculously, the Court in Bradley gave as an example of "excess jurisdiction" the act of a judge convicting a defendant of a non-existent crime, an act for which the judge would be immune:

In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Stump, 435 U.S. at 357 n. 7, citing Bradley at 352.

38 Messrs. Justice Davis and Clifford dissented, writing that if a judge acts maliciously and corruptly, he is, in their opinion, “subject to suit the same as a private person would be under like circumstances.” Bradley, at 357.

It is shocking to the average lawyer as well as the average layperson that the highest Court of our land should find it acceptable that a judge knowingly convict a person of a non-existent crime. Is not this something Hitler and Stalin and other tyrants have done since time immemorial? Is this the common law that this prestigious court should honor as stare decisis? It, too, like sovereign immunity, is "logically indefensible." See Whitney, supra.

That the majorities of those in the highest court of our land should use a doctrine born out of the womb of a devil court, the Star Chamber, both to defy the public demand for accountability and to defeat article V of the Massachusetts Declaration of Rights, which guarantees us accountability by the judiciary, is unfathomable and shameful, . . . and undoubtedly reflects pejoratively on the courts, even the honorable ones, which unfortunately have written extensively only as parts of the minorities: for example, The Honorable Justices Brennan, Stevens, Black, Douglas and others.

Curiously, at least two Courts -- Pierson v. Ray, supra, and Stump v Sparkman, supra – have concluded that ". . . we held that this doctrine of judicial immunity was applicable in suits under §1 of the Civil Rights Act of 1871, 42 U.S.C. §1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle." Stump, 435 U.S. at 356, citing Pierson.

That was a full untruth. See Mr. Justice Douglas’s dissent in Pierson (and Issue 5 below where parts of it are included within this brief). There he cites the Congressional Record, showing that Congress fully intended that judges would not be immune when they deprive people of their civil rights.

The rationale of the Court is specious on other grounds, too. For instance, a first-year law student is taught that he cannot sue for breach of duty if there is no duty; he cannot sue for breach of contract if there is no contract. Here, therefore, it was self-serving and in bad faith for the Court to call attention to the lack of a record that Congress intended to abolish judicial immunity, because the court in Pierson knew or should have known that Congress did not state that it "intended to abolish judicial immunity" because it had never established judicial immunity. It was men in black robes who brought judicial immunity to our shores in the 19th century. Congress was not at their party! Congress had already had its party, decided judges would not be immune to prosecution under §1983, and the section was "on the books fully eight months prior to Bradley being decided. Skullduggery might have been afoot. Certainly it had to be an affront to Congress when the Court decided to follow the English courts rather than its own United States Congress!

Granted, the action in Bradley was not brought under any of the Civil Rights Acts" [Pierson, at 549 n. 3 (dissent)], but the debate in Congress regarding judicial immunity was expansive. With the passing of the Act that same year, the Court had to know the majority in Congress were for accountability to stem the tide of personal interests and corruption.

So that statement by the Court in Pierson and acknowledged by the Court in Stump is valueless, hollow. It is a statement made only by a result-oriented court, not an intellectually courageous, principled court. It should hold no weight with this First Circuit Court of Appeals, which prides itself on thorough and principled opinions. This circuit should bravely herald that there is no history of a sound rationale in support of judicial immunity.

And the Court in Pulliam, 466 U.S. at 540, cited the dissenting opinion in Pierson, at 558-564 for the proposition that "every Member of Congress who spoke to the issue assumed that judges would be liable under §1983." And in Pierson itself, Mr. Justice Douglas wrote in his dissent:

The statute [42 U.S.C. §1983], which came on the books as §1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that "every person" who under color of state law or custom "subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." To most, "every person" would mean every person, not every person except judges.

Pierson, at 559 (Douglas, J., dissenting).

The defendant judges in Smith’s case knowingly, voluntarily, intelligently, and conspiratorially acted outside M.G.L. c. 215 §56A, M.G.L. c. 208 §30, and M.G.L. c. 209B §5(a) (the Mass. Child Custody Jurisdiction Act), to deprive him (and many others) unlawfully of the equal protection of the law, allowed his children to be kidnapped (i.e., taken to a foreign State without his consent and without an evidentiary hearing), essentially robbed him of many thousands of dollars,\39/and thereby violated his civil rights under 42 U.S.C. §1983. Outside their jurisdiction because no legislature contemplated that the judges would intentionally conspire to violate these statute, as evidenced by Memo #14 [Appendix, pages 53A-12 through 53A-15],\40/as well as by the chief judge’s failure to perform his statutory duties under M.G.L. c. 211B §10 and §17, and M.G.L. c. 217 §8. Smith cannot ask this court to vacate what the defendant judges did, but he can ask that they be denied immunity for such wrongdoing and that the case be remanded.\41/

39 The $13,000-plus taken from his account by the time this complaint was written has escalated to upwards of $20,000 since then. Costs incurred because of unwise, unnecessary State court-ordered appointments of inexpert so-called experts, plus transcripts, in the Smith divorce have risen outrageously to around $200,000.

40 In the Appendix to this brief, Smith’s Complaint ends on page 53. Behind the Complaint are his original exhibits on pages that were numbered 1-112. So as not to obliterate those numbers, which were keyed to the Complaint, Smith’s counsel retained the original numbering system of 1-112 and added the prefix “53A-” to indicate that the pages were part of the original addendum.

41 That more money was needed by the court for “guardian-related expenses” is insufficient cause to break a duly enacted statute.

By the unlawful removal of Smith’s children and the wrongful deprivation of his parental rights, Smith’s civil rights were violated, specifically, those under and relating to 42 U.S.C. §§1983, 1985(3) (conspiracy to interfere with civil rights), 1986 (neglect to prevent), and 1988 (proceedings in vindication of civil rights); as well as 18 U.S.C. §§1341 and 1961 (and the statutes cited therein) through 1968 (RICO).

Smith cannot ask this court to vacate what the Defendant judges did, but he can remonstrate against their obtaining immunity for such wrongdoing and urge this court to remand the case to the district court so that it may proceed to discovery and trial.

To deem judges not persons subject to federal civil ights statutes – contrary to Congressional intent – would be repugnant to desirable public policy. And where Defendant Justices acted outside mandatory statutes and thus contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate and reversible error [Counts 2-6].

Smith incorporates herein the facts throughout his Complaint and his arguments in his opposition brief at A92- 97 for this proposition. Smith further states that where the defendant justices knowingly violated his clearly established rights-- deprivation of constitutional due process and deprivation of parental rights – the defendant justices were not entitled to absolute immunity.

Mr. Justice Douglas had clearly traced the legislative history of §1983 (in Cong. Globe, 42d Cong., 1st Sess.) and confirmed that the congressional intent was to hold judges, as well as every other person, liable for the deprivation of a citizen’s civil rights. He argued the point much more eloquently than Smith’s counsel is able, so his words are included below:

Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to " any person." [2] There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.

The section's purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedi