Letter to  Chief Justice Sean Dunphy  for Judicial Assignment

 

3 December 2000 Chief Justice Sean M. Dunphy  Probate & Family Court Department  3 Center Plaza, 9th Floor Boston, MA 02108 Re: Brian Meuse v. Susan Pane  Docket No. 99W-1466-PA1   Dear Justice Dunphy: With this letter, I am requesting an assignment of a circuit judge to the above-referenced case. My client is Brian Meuse. After the first few paragraphs of Background, I describe below the proceedings in Essex County Probate & Family Court in, primarily, Lawrence, before Judge Mary McCauley Manzi, and the reasons such an assignment is critical.  * * * As Dad alleged, mom appears type be a prescription-drug abuser:  mom's health insurer produced evidence that mom purchased ap- proximately 70 prescriptions' worth of drugs before, during, and after her pregnancy. Mom's drugs of choice are hydrocodone with acetaminophen (APAP), oxycodone with acetaminophen -- Schedule III drugs -- and Endocet, a Schedule II drug. One prescription alone was for 360 addictive Ultram pills to take during her pregnancy. While the days' old infant was breast-feeding, the mom was picking up a few more oxycodone/APAP prescriptions. To get those drugs she went to many doctors and many pharmacies.  Mom claims there is another person in the same town with her name  who got the drugs. Formerly a pharmacy technician, mom has con- veniently forgotten that to get those narcotics, pharmacies require a birthdate and social security number and the name of mom's health insurer so that they can get paid.  When the child was 8 days' old, on 12 August 1999, one nurse noted in the medical record that mom came to the office in crisis and almost dropped the baby. That was one of the days when mom picked up some oxycodone with acetaminophen.  When the child was 2 months old, mom absconded with her to Florida. In May 2000, Judge Manzi declared that Massachusetts had jurisdiction over mom, dad, and the child.  The Probate & Family Court had never explicitly given either parent custody . . . although a local district court did give dad temporary custody and a restraining order against mom prior to her establishing residence in Florida. [Haverhill District Court (Herlihy, J.) ]. That order ran from 4 October 1999 -- 17 December 1999.  By the time the child was 10 month's old [June 2000], the child could not sit up on her own, couldn't crawl, couldn't hold a bottle or a spoon. An Early Intervention program wrote that the child needed two sessions weekly for physical therapy (to be able to sit up and to crawl) and two sessions weekly for occupational therapy (to be able to hold a bottle and a spoon).  During July 2000, Meuse got proof of mom's abuse of prescription  drugs and brought an Emergency Motion for Custody.  On Monday, 7 August 2000, in court, Pane's counsel and I entered into a stipulation on behalf of our clients, both of whom were in Florida on that day: each was to keep the other informed as to where he or she was with the child. That same day, Meuse's emergency motion for custody was heard by Judge Manzi and was denied. Evidently the judge was not impressed by Merck-Medco's claim history of Susan Pane's purchases of many dozens of prescriptions for painkillers, amongst them many narcotics. The claim history covered approximately a two-year period during part of which Pane was pregnant.  Given that Harry Stewart was jailed six months for dropping his child off in a lobby and Steve Cook was jailed for thirty days for phoning his daughter on the wrong day, it was clear that Meuse would have been treated differently had he been a woman concerned about his unwell and medically neglected and abused child. Mom had taken the child for therapy only two weeks and had cancelled all other sessions by 3 August 2000: "Mother stated to office manager that Marissa would not be attending tx [read therapy] at First Step any more in a telephone call"]. Brian Meuse did not learn about the cancellations until sometime in September. It was soon after this date that I received the child's therapy and medical records and learned that mother had canceled the sessions. Around the same time, Meuse learned from his bank that mother had not cashed the weekly child-support checks. Suspicions rose that the mother left Florida. Meuse believed that she may have gone to New York. Inadvertently, the secretary of Rosalyn Stults (mother's counsel) confirmed that Pane was in New York.  I then prepared a Petition for a Writ of Habeas Corpus, through which we hoped to get the child back to the Commonwealth for diagnosis by Boston's finest medical professionals and assure that she receive whatever treatment they recommended. We brought it ex parte because Meuse feared that mom, who had traveled with the child to visit with friends and relatives in New York, would move to still another state and disappear. On Tuesday, 5 September 2000, Assistant Register Ralph Finck  reported, in words for all intents and purposes, that Judge Manzi would not be coming onto the bench to hear Meuse's Petition for a Writ of Habeas Corpus because she saw no emergency. That same day Judges Sahagian and Kagan refused to hear the habeas corpus petition because they claimed to have lacked jurisdiction. (I had gone to Judge Sahagian in Cambridge because she had issued the order regarding medicals and visitation. And Judge Kagan was contacted because he sitting as emergency justice that evening.) On Wednesday, 6 September 2000, I spoke to William Ryan of your office for a considerable length of time, hoping I could convince him and ultimately you to assign a special justice to the case. My efforts were unsuccessful. Ryan made it clear that you wanted all P&F judges in Essex County to refuse to hear the case before you would make such an assignment.  That same day, I updated other outstanding motions, which Judge Manzi had failed to address. One of them was to compel Susan Pane to deposition. I knew she was not going to appear on Thursday. On Thursday, 6 September 2000, Pane, as anticipated, did not appear for a duly noticed deposition. (Three months have passed and Judge Manzi has still intentionally ignored that motion at each hearing since then: 10/11 and 11/13. Her excuse was, Meuse was not in court. Of course, there was no need for his presence on such a motion.)  On Friday, 8 September 2000, Judge Rockett ordered that the case was not to be heard in Salem because it was a Lawrence case.  On Monday, 11 September 2000, Pane re-appeared in Florida, likely on order of Stults, given that both had become aware, from my motion to compel Pane's attendance at deposition, that we knew that Pane had left Florida and that she had canceled all theory sessions for the infant. (On that day, Pane also cashed the several child-support checks.) On Sunday, 1 October 2000, Meuse had his first day of his October visitation with his daughter. Worried that the child's muscles would atrophy and that her already seriously delayed psycho-motor skills would remain impaired, making it impossible for the child to ever walk, Meuse justifiably concluded that he could not rely on any Probate & Family Court to help his infant daughter; so he took the child and flew back to Boston. I'm sure if your child were in similar danger, and the court was as unresponsive to your requests for help, you, too, would have done as Brian Meuse did.  On Monday, 2 October 2000, he brought the child to Children's Hospital He obtained referral to local therapists.  On Tuesday, 3 October 2000, Meuse brought the child to visit with me. It was either this day or the next, I got the name of Dr. Normand Tanguay and was told he was a superb pediatrician. On Wednesday, 4 October 2000, the therapists made an emergency trip to his home to examine the child.  And on Thursday, 5 October 2000, he had an appointment with  Pediatrician Dr. Normand Tanguay at Wilmington Pediatrics. Tanguay was to be the child's primary caregiver. Upon examining the child, Dr. Tanguay told Meuse that although a neurologic problem could cause the child's physical problems, it more likely was environmental. Tanguay told Meuse that the child resembled those Russian adopted children who had been thrown into a playpen and left there deprived of attention and stimuli, and, like Marissa, suffered motor-skill delays.  That afternoon, after the visit, Meuse came again with the child to my home-office. This was the last time I saw or spoke to either of them until I saw them on the Channel 4's I-Team report last Wednesday evening on the 11:00 news program. On Friday, 6 October 2000, at 8:50 in the morning, I received by FAX from Pane's counsel, Stults, a motion for a short order of notice for hearing on a motion for custody and child support. Stults had marked up the motion for hearing at 9:00 that same morning. My memory is that I did not receive the motion for custody by FAX. With ten minutes to spare, I called Ralph Finck, told him I had a scheduled meeting with four people mid-morning, and asked him to postpone the hearing until 2:30. He replied that it was Friday and the judge did not want to have a hearing on Friday afternoon. Later in the day, I received a FAXed order from Essex P&F Court that Stults's short order had been allowed and that there'd be a hearing on the 11th.  On Tuesday, 10 October 2000, I sent a colleague with a motion for a short order of notice for hearing on Meuse's second Emergency Motion for Custody. It was allowed after, so I understand, some considerable wrangling with Ralph Fink. Judge Manzi, I also understand, did not come out onto the bench. On Wednesday, 11 October 2000, from Courtroom 10, Manzi moved us to a locked courtroom, Courtroom 9. I am not in favor of Kangaroo courts. I am for public courts. Then she came out fighting and accusatory. Almost immediately, she declared that we were unprofessional. Most of her animus was directed toward me.  I had not yet said a word, except maybe identifying myself for the record. I believed she had learned that I was seeking another judge to be assigned. Only you know whether she could have learned that before we appeared in court that day. Fortunately I had brought along a colleague, for I had heard of Manzi's reputation (stories abound) and was somewhat fearful I'd be found in contempt and jailed. My colleague thought so, too, and hurriedly asked me and wrote down all those he should inform were I to be locked up. It was a scary experience. (I ordered the tape the other day.) We broke, allegedly for me to try to communicate with Meuse and give him the message that the judge wanted him there. She had appointed a lawyer for the child. That was and still is a "joke."  Mom wanted to suspend dad's visitation. Dad wanted custody of the now-14-month-old child who still could not crawl or walk or hold a spoon, so that she could be properly diagnosed and treated and cared for.  In sum, on that day, Manzi not only both refused to read and refused to allow me to argue my client's Emergency Motion for Custody (or any of the many pending motions), but also gave custody of the child to Susan Pane without letting me put Pane on the stand. That was egregious reversible error. We were told to wait for Judge Manzi's order in the clerk's office. At 3:20 P.M. I received a copy of it. It gave Brian Meuse forty minutes, until 4:00 that afternoon, to get to produce the child to the mother. Judge Manzi made into jest that which is to be sage. Clearly Judge Manzi believed that I knew where he was . . . even though I didn't and had just an hour or two earlier, at the behest of the court, spent time, albeit unsuccessfully, trying to reach him from the phone in the courthouse.  Later that month, I had mislaid my copy of Paper 28 and it was inaccessible from the court. After many helpful people in Salem P&F tried to find Paper 28, Terry Cafazzo phoned me -- I believe she is an Assistant Register. She said that she, too, had searched but could not find it. The next day, she called from Lawrence. She left a message on my answering machine that she had found it. When I called her, she had returned to Salem and no longer had it. The file had remained with Manzi. I never did get to see Paper 28 again. Depriving lawyers and others of access to what are public records  appears to me to be unlawful.  Brian Meuse's mother ordered the tape of a March 2d session in July 2000. On 17 October 2000, six days after Manzi had given custody to the mother in the absence of due process, Ralph Finck sent Janice Meuse, Brian's mother, a letter stating that Mrs. Meuse had inadvertently identified the judge as being Judge Sahagian and not Judge Manzi on the tape-order form. Inasmuch as the tape had been paid for, it would not have required much effort for him to change the judge's name. Mrs. Meuse was entitled to receive the tape: she had made a payment and her payment had been accepted.  At 3:47 P.M. on Friday, 3 November 2000, Attorney Stults sent Judge Manzi a Motion to Continue the hearing on my client's Complaint for Contempt against Susan Pane, which had been scheduled for Wednesday, 8 November 2000. (The FAX place, time, and date line reads "Rufus Choate House," where her office is located.) On 8 November 2000, Judge Sahagian was to be presiding, not Judge Manzi. Stults wanted Judge Manzi and not Judge Sahagian on the case. She also claimed she wanted my client's action to be heard on the same day as her client's actions. That day, 13 November 2000, was a day on which Manzi would be presiding.  At 3:52 P.M. on Friday, 3 November 2000, five minutes after she sent a copy to Judge Manzi, Stults sent me a copy of the Motion to Continue. One hour and twenty-one minutes later, at 5:13 P.M. (17:13 on the FAX) on 3 November 2000, some unknown person at one of the Essex P&F locations FAXed to me Manzi's decision in favor of Stults. The decision was endorsed on Stults's FAXed motion . . . which is how I know the time Stults FAXed her motion to court and from where. I other words, the two FAX lines, one from Stults to the court, and one from the court to me, appear on the FAX to me. So in Judge Manzi's lexicon, emergency motions are unacceptable,  but ex parte motions are just fine. On Monday, 13 November 2000, the Fatherhood Coalition rallied  outside, demonstrating against Judge Manzi's being totally unconcerned about the health, safety, and well-being of the child and having given custody to the mother despite her questionable behavior. With several interested onlookers from the coalition inside Courtroom 10, Judge Manzi decided not to hear any motions or hold any trials on the two complaints scheduled to be held that day. She said that everything in the case would be continued until Meuse is present. * * * We have not thus far met success in the higher courts, and on Monday, 4 December 2000, a Notice of Appeal -- and in fact, an Amended Notice of Appeal -- pursuant to Supreme Judicial Court Rule 2:21 will be timely filed for an appeal to the full bench. Given that the case has not passed beyond the power of the Probate & Family Court, any judge you might be willing to assign would have the authority not only to allow Meuse's motion to compel Susan Pane to deposition, but also to undo Judge Manzi's unlawful decisions: custody to the mother, vacation of child support to a woman who does not have possession of the child, appointment of an attorney who is only trying to earn the favor of Manzi on his own cases. "Although a judge should not lightly undo the work of another judge, Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622 (1989), the power to reconsider an issue remains in the court until final judgment. Peterson v. Hopson, 306 Mass. 597, 601 (1940). 'Even without rehearing, a judge may modify a decision already announced, so long as the case has  not passed beyond the power of the court.' Id. at 602. The denial of a motion for summary judgment is not a final judgment or decree and thus the trial judge was within his authority to reconsider and alter the prior decision."  Cataldo Ambulance Service, Inc. v. City of Chelsea, 43 Mass.App.Ct. 26, 27 (1997). WHEREFORE the only rational solution to this case is to assign  another judge who is committed to being a neutral fact-finder. Sincerely,

Barbara C. Johnson

Everyone who is outraged by judges abrogating their responsibilities, please  blow your horns continuously as you pass the location of each and every courthouse, particularly in Massachusetts,   write to each and every representative and senator, particularly in Massachusetts,   write Letters to the Editors, particularly in Massachusetts,   call each radio and television station, particularly in Massachusetts,   call each judge's lobby, particularly in Massachusetts, and ask, "Have you earned your paycheck, benefits, and future pension today?"