John Smith Replies to the Attorney-General's Appellate Brief Regarding the Dismissal of  Smith's Case Against Judges on Eleventh Amendment and Judicial Immunity Grounds UNITED STATES COURT OF APPEALS  FOR THE FIRST CIRCUIT  ________________________________________________________ Case Number 02-xxxx ________________________________________________________ John Smith Plaintiff/Appellant v.  The Honorable Nancy M. Gould, in her judicial and individual capacities, The Honorable Sean Dunphy, in his judicial and individual capacities, The Honorable John J. Irwin, Jr., in his individual and former judicial (CJAM) capacities The Honorable Barbara A. Dortch-Okara, in her individual and judicial (CJAM) capacities Trial Court of the Commonwealth of Massachusetts Commonwealth of Massachusetts, Defendant/Appellees  ________________________________________________________   On Appeal from Judgment of Dismissal  U.S. District Court for the First Circuit (Boston) ________________________________________________________ Drano #57  --  Complaint Against the Judges,  the Family Court, the Trial Court,  and the Commonwealth  Drano #62  --  Opposition to Motion to Dismiss Drano #103  --  The Order Appealed and John Smith's Appeal ________________________________________________________ ________________________________________________________

 

The Plaintiff/Appellant John Smith ["Smith"] hereby submits, pursuant to Rule 28(c) of the Federal Rules of Appellate Procedure, this Reply to the Brief of Defendants/ Appellees. This Reply is divided into two parts. Part One both identifies Defendants’ opposition to Smith’s appellate issues and includes Smith’s Reply to the opposition. This part is also in TABULAR form, inside the back cover, for quick scanning. Part Two is composed of those issues which Defendants raise now for the first time on appeal and those which they did resurrect although the issue did not form the basis of the decision by the district court, and as such were not referred to in the decision. The significant number of the issues in Part Two – particularly the new issues -- contributes to the length of this Reply Brief. Where Defendants did not cross-appeal, Defendants’ issues may not be considered by this court. Clemente v. Crane, 97 F.3d 1445, 1996.C01.0000526 at ¶50 n.7 <http://www.versuslaw.com> (1st Cir. 1996) ("[B]ecause the defendants failed to file a cross-appeal, we do not consider the argument as to liability"). In re Nelson, 994 F.2d 42, 1993.C01.40416 at ¶35 n.7 <http://www.versuslaw.com> (1st Cir. 06/03/1993) ("Because defendants did not cross-appeal the denial of their motion for costs and fees below, they failed to preserve that issue on appeal"). In this brief as a whole, Smith identifies and corrects the factual errors made by the defendants/Appellees in their appellate brief, and notes the legal significance of those errors. PRELIMINARY REMARKS The primary thrust of Smith’s argument focuses on several truths: Article V of the Mass. Declaration of Rights is alive and well but on a scale of 1-10 of Personalities, its personality is a 1, a personality the judiciary shies away from assiduously,   the Fourteenth Amendment on the scale is a 5, to wit, it is used, misused, and abused, depending on the mood and the subject matter of the case,   the Eleventh Amendment has two prongs: one duly ratified, the other not at all and is unconstitutional and offensive. Yet its personality rating is 10. It is used every time any court wants to get rid of a case attacking a governmental or quasigovernmental entity. Like the child who says, "Mom, I’m not feeling well," in order to skip school, the court says "Congress did not abrogate the Eleventh Amendment when . . ." in order to avoid doing its own job of judging in politically sensitive cases. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363 (2001), Mom knew the child was bluffing its unwellness. Congress knew the court was bluffing, for Congress never participated at the bench of Randall v. Brigham or Bradley v. Fisher. Like the child who never had to go to the doctor, Congress never had to abrogate – to annul, do away with, nullify -- what it never had anything to do with.  Congress already had manufactured and distributed the cure – the Fourteenth Amendment – but the courts did not like the medicine. "Any court-created tort-immunity rule should be forthrightly abandoned when its injustice and its unreality are so evident as to produce exceptions, interpretations and inconsistencies galore...." Jean W. v. Com., 414 Mass. 496, 504 (1993) (internal cite omitted), coupling the Preamble to the Mass. Constitution with M.G.L. c. 4 §7, makes the Commonwealth a "person," removal of the child(ren) out of State or distant from one parent is 1 on the scale of Natural Law but distastefully 10 on the scale of Personalities. The defendants addressed none of these truths upon which Plaintiff’s brief focused.     PART ONE: Comparison of How Parties Addressed the Appellate Issues Smith’s Appellate Issue 1. The Commonwealth of Massachusetts is a body politic and a "person" for purposes of 42 U.S.C. §1983 [Counts 2-6]. [Smith Br., 11-14] Defendants Addressed Smith’s Issue 1 or Not: Did not address either the Preamble to the Mass. Constitution or M.G.L. c. 4 §7. Ignorance of the Constitition and the statutes is bliss. [Defs. Br. 26-28] Smith’s Reply: The defendants could not defeat Smith’s argument that under the Preamble to the Constitution and M.G.L. c. 4, §7, the Commonwealth is a "person" for all purposes, so they walked away from the fight. [See Smith Br., 11-14] Smith’s Appellate Issue 2. 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). [Smith Br., 14-17]. NOTE Smith included Issue 2 to advocate the abolishment of judicial immunity. As noted at Smith’s Br., 33: 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, 527 U.S. 706, 119 S.Ct. 2240, 2271 (1999). [See Smith Br. 47-50].  Defendants Addressed Smith’s Issue 2 or Not: Discussed at Defs. Br. 14-18. Smith’s Reply: Defendants’ arguments are unpersuasive. Defendants Argued: (1) Defendants wrongly contended that Smith suggests that in 1780, article V of Mass. Declaration of Rights rendered sovereign immunity unconstitutional. Smith’s Reply: (1) Sovereign immunity did not arise out of article V. Article V guarantees that persons in the three branches of government are accountable to the people. Defendants Argued: (2) Defendants contend that article V did not abolish the doctrine of sovereign immunity, but they never stated when or where sovereign immunity was legislated. [Defs. Br. 15-16] Smith’s Reply: (2) Smith never said article V abolished sovereign immunity. He contends that sovereign immunity never arose in the Commonwealth. What did not arise, need not be abolished. [See at Smith’s Br.33, Alden and Blackstone quotes. See discussion of Mass. Tort Claims Act ["MTCA"]. Defendants Argued: (3) Neither the SJC nor the Massachusetts legislature read article V as a waiver of sovereign immunity. [Defs. Br. 17] Smith’s Reply: (3) Smith never said they did. The SJC cases Defendants cite are not based on an accurate record of legal history in the Commonwealth. The cases and Defendants assumed sovereign immunity existed. It did not and does not legally exist. Defendants Argued: (4) Defendants complain that the Commonwealth has not waived its sovereign immunity with regard to M.G.L. c. 215, §56A. [Defs. Br.,14-15]  Smith’s Reply: (4) The Commonwealth had no sovereign immunity to waive for the reasons set out at Smith Br., 32, 35. Defendants do not join the issue. They merely cite foreign cases that discuss waiver, that may or may not have been appropriate in those particular cases, and that are not based on the Massachusetts Constitution. Nor do those States have the same judicial and legislative history as Massachusetts. They are cases irrelevant to Smith’s argument. Defendants Argued: (5) Defendants complain that "Smith cites no state statute supporting waiver of [sovereign] immunity by the Commonwealth," that he relies on article V of the Mass. Declaration of Rights, and that he asserts that there is no sovereign immunity. [Defs.Br., 15-17] Smith’s Reply: (5) There is no need to waive that which never existed. Sovereign immunity was not established in Massachusetts in either its charter, its Constitution, or a statute. The MTCA is unconstitutional because it assumes that sovereign immunity existed in the Commonwealth and then sets out the claims for which the Commonwealth waives that imagined immunity. Significantly neither the MTCA nor case law points out the origin of that alleged sovereign immunity.  Further discussion is at Smith’s Br., 18-19.  Defendants discuss neither Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), nor Alden nor Blackstone. Defendants simply rely on revisionist legal history. Defendants Argued: (6) In note 4, Defendants state that "the jury was the favored means of exerting control over the judiciary – for making it accountable (and thus legitimate) branch of the new republican government. The institution of the jury ‘provided the primary assurance that application of the laws would remain under the control of the people, rather than in the hands of the privileged unassailable few.’" [Defs. Br. 17, with cite to a 2003 Yale Law Review article.] Smith’s Reply: (6) Smith is pleased that Defendants recognize the need for accountability and for the jury. Although Rule 39(c) states that in actions not triable of right by a jury, a jury can decide issues of facts, juries are never allowed in a domestic relations case in Massachusetts.  Because (a) juries are never allowed, (b) state appellate courts do not consider interlocutory appeals, (c) familial relationships are destroyed and family finances are devastated by the time an appeal is taken from a final decision, the people must be allowed to sue those responsible for the injuries, whether they be the judge(s) or be the people appointed by them (and given derivative quasijudicial immunity). Defendants Argued: (7) Defendants appear to say that sovereign immunity is a nullity except in rare cases. [Defs. Br. 17-18] Smith’s Reply: (7) The Smith case is one of those "rare" cases: No other State is known to Smith to have the language of article V of the Declaration of Rights within its Constitution. Smith’s Appellate Issue 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 Br., 17] Defendants Argued: They used the timeworn specious argument that the unratified prong of the Eleventh Amendment shielded the Commonwealth from suit. [Passim] Smith’s Reply: Smithrestson his references to the Eleventh Amendment in his appellate brief[passim] and on Issues 3(a-c) and 23 in his Reply. Smith’s Appellate Issue 3a. 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. [Smith Br., 17-33] Defendants Argued: No, they did not address the issue. Their cases were the same ol’, same ol’ ones endowing the judicially-created prong with omniscient power. They made no attempt to argue that the separation of powers did not apply in this context. [Defs. Br. 12-18] Smith’s Reply: Clearly, they did not dispute that "it is not the proper province of a federal court to rewrite a statute under the guise of interpretation." Aulson v. Blanchard, 83 F.3d 1, 4 (1996) (Selya, J.).  Had Congress intended to make a State not subject to suit by its own citizens, it would have done it – properly. Smith’s Appellate Issue 3b. The Supremacy clause is not invoked because Congress never participated in creating the second prong of the Eleventh Amendment; that was judicially created. [Smith Br., 27] Defendants Argued: No, they did not address either the Supremacy clause or the issue of congressional intent. Smith’s Reply: "The Supremacy Clause of Art. VI of the [Federal] Constitution provides Congress with the power to preempt state law." Archambault v. Archambault, 407 Mass. 559, 564 (1990), quoting Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368 (1986).  Whether Federal law preempts State law is a question of congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299 (1988). Archambault, at 565. Com. v. Burgess, 426 Mass. 206, 221-222 (1997). In this case, where there is only law created by judicial fiat, there was no congressional intent to preempt State law. The drafters of the Fourteenth Amendment surely would agree. Smith’s Appellate Issue 3c. 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. [Smith Br., 33-34] Defendants Argued: No, they did not address the issue of how the Eleventh Amendment can preempt the Massachusetts Declaration of Rights. Smith’s Reply: Where Congress did not ratify the second prong of the Eleventh Amendment, Federal law may not preempt article V of the Mass. Declaration of Rights. The doctrine of separation of powers is, of course, applicable only to the relations of coordinate branches of the same government, not to the relations between the branches of the Federal Government and those of the States. Follow Baker v. Carr, 369 U.S. 186, 210 (1962); Gregoire v. Biddle, 177 F.2d 579, 58 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950); Monroe v. Pape, 365 U.S. 167, 171–172 (1961). Smith’s Appellate Issue 4. WheSmith’s Appellate Issue 4. 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 Federal or Mass. legislature ratified the doctrine in any form, there is no valid reason to deprive Smith of his rights under the Mass. Declaration of Rights on the basis of judicial immunity [Counts 2-6]. [Smith Br., 35-47] Defendants Argued: No, the defendants did not join the issue arising out of the origin of judicial immunity. Smith’s Reply: Smith rests on his appellate brief. [Defs.Br. 34-47] Defendants Argued: Defendants assert, however, that judicial immunity protects judges acting in their personal capacities for the reasons cited in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), and its progeny. [Defs.Br. 29-32] Smith’s Reply: Smith further discusses judicial immunity in Item 15 in Part Two, at 23. In particular, Smith argues that: (1)  none of the cases cited by Defendants traces the full history         of judicial immunity;  (2)  all accept judicial fiat as being proper, and (3)  none is a Massachusetts case. Smith also discusses in Item 15 the roles of Judges Gould, Irwin, and Dortch-Okara. Smith’s Appellate Issue 5. 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]. [Smith Br., 47-50] Defendants Argued: No, the defendants did not join the issue as to whether judges were "persons" subject to federal civil rights statutes . [Defs. Br. 27] Defendants Argued: Defendants argue that Smith’s public policy argument is frivolous. [Defs.Br. 17] Smith’s Reply: Smith’s arguments are novel.  Most plaintiffs believe that we have the best justice system in the world, only to find that once in court, nothing is as it appears:  there is no relief or remedy as "promised";     legal fiction, such as that created by Eleventh Amendment #2, bounces their cases out of court, thereby unjustly depriving them of a federal remedy to vindicate their violated federal rights; due process in family courts has become a faded apparition of wisdom past;     see Smith Br. 48-49: Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State...." Pierson v. Ray, 386 U.S. 547, 564-566 (1967) (Douglas, J., dissenting), quoting Monroe v. Pape, 365 U.S. 167, 171 -172.  Smith’s Appellate Issue 6. The claim under §1983 can be based on a violation of state law [Counts 4-5]. [Smith Br., 50-51] Defendants Argued: Yes, the defendants did. A little. [Defs.Br. 3:6, 10 top, 28 top, 29] Smith’s Reply: Smith replied at Issue 23 in Part Two, infra, at 36.  Smith’s Appellate Issue 7. 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]. [Smith Br., 46, 51; Smith’s App. 53A-12-15] Defendants Argued: Avoided addressing head on subissues (a) and (b). They did argue against the RICO claim. [Defs. Br., 38-39] Smith’s Reply: Smith replied at Issue 22 in Part Two, infra, at 34. [See also [Smith Br., 46, 51; Smith’s App. 53A-12-15] Smith’s Appellate Issue 8. M.G.L. 215, §56A is unconstitutional [Count 1]. [Smith Br., 51] Defendants Argued: Yes, they joined the issue. [Defs. Br. 20, specifically, and generally 18-26]  Defendants state that Smith’s "‘constitutional’ claims are really nothing more than policy critiques and are without merit. The Commonwealth has chosen to address these issues through other means." [Defs. Br., 19]  See "Input Sought on GAL Standards," 32 Mass. Lawyers Weekly 486 (Nov. 3, 2003): court seeking comments on draft standards for GALs [Defs. Br. 19, URL excluded from chart, but see Supp.App., 7] [This article not argued in district court.] Smith’s Reply: See Item 12 in Part Two of this Reply.  Here Defendants introduced an article on a topic not raised below.  Lest this court consider this post-injury conduct as Defendant Judge Dunphy’s defense, for which purpose Defendants included it in their appellee brief, Smith discusses the entire context of Judge Dunphy’s new policy, which is, Smith contends, not as perfect as Defendants pretend. Smith’s Appellate Issue 8a. The impermissible overbreadth or vagueness of the words will continue to allow unconstitutional acts to occur, and for that reason the statute must be found to be facially unconstitutional. [Smith Br. 54-55] Defendants Argued: Defendants claimed that §56A does not deprive a person of any interest, but the "statute can be interpreted by a judge in such a way as to create a constitutional violation, but that is not the basis of Smith’s due process claim here" [Defs. Br. 20, note 7]  Smith’s Reply:If a judge creates a constitutional violation, then she/he is outside the scope of her/his authority to the extent that a deprivation of rights has occurred and then becomes open to suit by the injured party. This would promote care in decision-making and gender discrimination would decrease, if not evaporate. Defendants Argued: Defendants also argued that the "unconstitutional actions Smith claims occurred as a result of the vagueness of the statute were actually decisions rendered by a judge after accepting purported recom- mendations by a GAL" [Defs. Br. 24, ¶2]. Smith’s Reply: Then where there is an admission that Judge Gould caused Smith to be deprived of his constitutional rights, then his claims against her must be allowed to proceed. See expanded discussion at Item 13 in Part Two, infra, at 20. Smith’s Appellate Issue 8b. There is no set of circumstances in which the statute M.G.L. 215, §56A can be constitutionally applied. [Smith Br., 51] Defendants Argued: No, Defendants did not describe a set of circumstances in which §56A can be constitutionally applied. [Defs. Br. 18-26] Instead they admitted that the "statute can be interpreted by a judge in such a way as to create a constitutional violation." [Defs. Br. 20, note 7] Smith’s Reply: SeeComplaint, ¶¶28-34, which describes how judge circumvented both the consent and the removal statutes. Smith’s Appellate Issue 8c . The imprecise language of the statute is infirm constitutionally [Smith Br., 53] Defendants Argued: Not directly. See Defs. Br. 23. Smith’s Reply: Smith rests on his appellate brief. [Smith Br., 53] Smith’s Appellate Issue 8d. Smith’s challenge is both a facial and an as-applied challenge. [Smith Br., 55] Defendants Argued: Partially, they discussed whether it was facially unconstitutional, but not whether it was unconstitutional as applied. Smith’s Reply: Smith rests on his appellate brief. [Smith Br., 55] Smith’s Appellate Issue 9. Smith’s pending common-law claims for alleged violations of State law are not barred by the Eleventh Amendment [Counts 8-14]. [Smith Br., 58-59; see also 33-34] Defendants Argued: [Defs. Br. 28-29; 43-46] Smith’s Reply: The ratified prong of the Eleventh Amendment does not affect suits by citizens against their own State, and Congress exercised none of its power to put the second prong into effect.  See expanded discussion at Items 14 and 23 in Part Two, infra, at 22 and 36. Smith’s Appellate Issue 10. 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. [Smith Br., 59]

In Part Two, there are 13 issues either not raised below or not appealed by Defendants or not decided by the district court judge in his decision.  On the 13 issues, the two below are simply included  in the table because of their breadth. The Same Issue as Argued in District Court: MTCA is unconstitutional. Sovereign immunity did not exist in the Commonwealth in colonial times. Alden v. Maine, 119 S.Ct. 2240, 2271 (1999), citing Blackstone. [Smith’s Br. 33] Defendants Argued: Defendants contend that the existence of Mass. Tort Claims Act "obviates the need for the SJC to address the issue of immunity" [Defs. Br. 17] Smith’s Reply: Blackstone. [Smith’s Br. 33] A Non-Issue:  Rooker-Feldman does not apply. Was not used by the lower court as a reason for dismissal. [Appendix, 5-7] Was not discussed in Smith’s appellate brief, but was discussed in his opposition to Defendants’ motion to dismiss, at Appendix 85-88.  Defendants Argued: Rooker-Feldman doctrine [Defs. Br. 36-38]   Smith’s Reply: Where Smith’s allegations did not request Court to issue, modify, or vacate a divorce, alimony, or child custody decree, but instead presented a constitutional claim in which it was incidental that the underlying action involved a divorce, his suit is not subject to the domestic relations exception. [Smith’s Reply 24-30]

PART TWO: Issues Defendants Argue for the First Time on Appeal or Issues Defendants Did Not Cross-Appeal or Issues Not Referred to by District Court in Its Decision 11.Abrogation or nonabrogation of sovereign immunity. Factual error: On page 13 of the appellee brief, the defendants make their "non-abrogation" argument:, e.g., "Congress has not abrogated the Commonwealth’s sovereign immunity. " Actual Fact: The defendants cannot prove that the Commonwealth actually has sovereign immunity it now claims that it has. [Smith’s Br. 18-19, 33 and infra at 9-10]. Such immunity does not appear in the Constitution or in a statute or, according to Alden v. Maine, 527 U.S. 706 (1999),in colonial annals. Thus, Congress had no statute or constitutional amendment to annul or modify or abrogate. Defendants’ argument–which has been visited in countless cases in countless courts at every level of the juridical hierarchy–is, therefore, smoke. And the "congruence and proportionality test"\1/ of Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), upon which defendants rely, does not apply. 1  “Accordingly, §5 legislation reaching beyond the scope of §1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Board of Trustees at 365 (internal cite omitted). That test is used to determine the "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 365. The first step of the test requires the identification with "some precision the scope of the constitutional right at issue." Id., at 356. The defendants do not identify the constitutional right they are examining. Then that "inquiry requires [the Court] to examine the limitations §1 of the Fourteenth Amendment places upon States' treatment of [that issue." Id., at 356-357. The defendants do not suggest what those §1 limitations are or the issue treated by the State. The defendants leave the test in this case hanging in air, held up only by the brash Ouija board of the defendants. It has no foundational support. It is not even sitting on stilts.  After honorably acknowledging the two very different sources of the Eleventh Amendment, the Court next remarkably writes, for all intents and purposes, "Well we may change any amendment according to our whim, but Congress, well ‘Congress may abrogate the States' Eleventh Amendment immunity under much more stringent circumstances: it must both unequivocally intend to do so and "act pursuant to a valid grant of constitutional authority." Board of Trustees, at 363 (internal cite omitted). This argument simply does not hold up Defendants’ house of sovereign immunity over water, for the Court must hold itself to the same strict performance to which it holds Congress. To do otherwise is hypocritical and unpersuasive. Defendants also misstate the relationship between Sections 1 and 5 of the Fourteenth Amendment [Defs.Br. at 14]. Section 1 contains several mandates. Defendants read them as if they were one whole mandate rather than separate ones. Some require looking at a statute. Some do not. See the shading below. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Clause 1 requires the identification of a law. The defendants can reference no statute or constitution establishing sovereign immunity in this Commonwealth, so there is nothing to scrutinize. Clause 2 addresses deprivation. The court must determine how a citizen’s life, liberty, or property have been deprived. Here the judges violated three statutes – not by misapplying them, but by circumventing and/or ignoring them. Smith claims that part of one of them is unconstitutional (the guardian ad litem statute). He has no quarrel with the other two (the consent and removal statutes). His quarrel is that the family court did not give him due process, namely, notice and an opportunity to cross-examine and rebut, and equal protection, namely protection by the laws the judges violated. No "congruence and proportionality test" is needed to determine whether Smith is entitled to due process or equal protection of the laws. Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in §1 by enacting "appropriate legislation." So the question becomes, What legislation is appropriate or is being questioned? Not only do Defendants not say, they also complain that Smith, on p.22, "points to no federal statute that meets these standards." [Defs.Br., 14 at ¶2]. 12. Family court’s new policy (raised by Defendants first time on appeal) is not what it appears tobe. Factual error: Defendants assert Smith’s "‘constitutional’" claims about the guardian ad litem ["GAL"] statute, M.G.L. c. 215, §56A, "are nothing more than policy critiques and are without merit." [Defs. Br., 19]. Defendant Chief Justice Dunphy argues that he is currently taking steps to fix some of the problems regarding GALs, and points to a press release he inserted into the 3 November 2003, issue of Lawyers Weekly [Supp.App. 7].  Actual fact: Judge Dunphy uses that article as a basis for suggesting, in note 6, that if the Eleventh Amendment does not mandate dismissal of Smith’s claims, then this court should invoke the abstention doctrine so as not to disrupt State efforts to establish a cohesive policy.  (1) Ironically, it is this very case – plus Johnson’s activism and widespread publication of the Senate Post-Audit Committee report published in March 2001 [Smith’s Appendix, 53A-29 through 43] -- which is the inspiration behind Dunphy’s recent actions [Smith’s Br., 52]. For instance, During the past year, GAL seminars began at MCLE. However, nothing regarding their content has been revealed to the public or to the legal community. The reason for the lack of public exposure, if not intentional secrecy, is that there were no standards to teach the GALs at the seminars, for which an attendance fee was charged. The only result: someone made some money. And just five weeks before the A-G’s office filed the defendants’ appellee brief, Defendant Dunphy caused the notice to appear in the Lawyers Weekly, though the serious illness of the GAL program has been known for years. Dunphy, who had taken no steps to act prior to Johnson speaking out in the Smith divorce case and bringing the instant action, is only now seeking input from the legal community for the purpose of developing standards for the performance of GAL. And since the parties argued the case in the district court, another article appeared in Lawyers Weekly, but by Monroe Inker, the granddaddy of family law: "Power of GALs in High-Conflict Cases," 25 November 2002. [Supp.App., 1-6]. In it, Inker attests to GALs being "routinely qualified as expert witnesses" in family cases and the problems that arise from the courts so doing, which echo the complaints Smith raised in his complaint and his appellate brief: Persons familiar with divorce custody litigation in Massachusetts can also attest to the limitations of the means available to rebut a GAL's conclusions and recommendations. GAL reports may, and commonly do, contain hearsay and GALs may testify to information based on out-of-court conversations with various sources of information, so long as the source is identified and a parent has an opportunity to cross-examine the source. Adoption of Paula, 420 Mass. 716, 724-725 (1995).  It is not uncommon for a GAL to interview well over a dozen collateral witnesses. Few parents have the resources to depose everyone interviewed by a GAL. This leaves a parent with the option of making matters worse by calling to the stand, with no meaningful preparation, a person who has already reportedly made damaging statements to the GAL. Few parents elect to take that risk, and, as a result, hearsay accounts of GALs go unchallenged.  Inker, like Smith, complains that GAL investigations and reports are governed by no standards or protocol or guidelines. Although he writes, "The absence of any standards or protocol invites a challenge to the reliability of the subjective methodology used by GALs based upon the line of cases following Daubert v. Merrell Dow Pharmaceutical, Inc., 509 US 579 (1993)," he fails, like Judge Dunphy, to point out that the family-court judges are ill-equipped in experience to deal with scientific evidence. Judge Gould, for instance, was a first assistant register of a Probate & Family Court for 18 years, during which time she had no need to read a lawcase or learn how to put scientific data into evidence. Prior to that time, she was a staff attorney for Boston Legal Assistance Project for 7 years, where the use of experts, if any at all, was rare.  The successor judge on the Smith divorce also was a first assistant register for years, and announced on 3 June 2002 that although she knew of Daubert, she "was not familiar enough with the scientific technology of linguistics to make a decision on whether or not the technology passes the Daubert test." [Supp.App. 12] This was no reason to preclude a voir dire of a proposed expert\2/. The purpose of an expert is to educate the judge. 2     She was needed with a matter concerning the audiotaped fresh complaint of one of the Smith twins. Given that these two judges are typical in the system, the GAL statute, as broad and vague as it is, when applied, is almost always applied unconstitutionally. In the November 3d, article [Supp.App. 7], Judge Dunphy noted that his department contracted with the Massachusetts Chapter of the Association of Family and Conciliation Courts to develop standards for GALs. Smith predicts that the AFCC will make no appreciable difference in what we have now. The Board of Directors of the AFCC is peopled by judges in Dunphy’s Probate and Family Courts --  e.g., David Sacks\3/ and Gail Perlman, only two of a string of judges most complained of by parties in their courts – and special friends and attorneys of the court – e.g., Steven Nisenbaum and Gerald L. Nissenbaum\4/ et al. The Mass. chapter of AFCC is not necessarily a group with any particular proven training or knowledge. It is led by people who have an interest in the status quo, which does not forbode well for the future success of the task with which they are charged. The Mass. chapter of AFCC is also not into sunshine: a list of its Board of Directors is unavailable to nonmembers on its website. In contrast, a list of the directors of the national AFCC is available on the national’s website.   3     David Sacks has been serving as the First Justice of the Probate & Family Court at Springfield.  His reputation amongst the men’s groups, which have picketed his court and his residence with some regularity in the past, is clearly not good. Sacks charged one of the televised leaders with Threat to Commit Murder [Sacks]. Smith’s counsel represented that man in the criminal court.  Judge Sacks was the Commonwealth’s only witness.  It took the jury 35 minutes to return a verdict of Not Guilty.  Clearly, the jury did not find the judge credible.  He appears to be a defensively huff and puff, high-strung man, and not of the type to be on the Board of the AFCC or the head of Dunphy’s other new committee, the one on Judicial Accountability [Supp.App., 8-9].  4   Gerald Nissenbaum was appointed by Defendant Judge Gould to the Smith divorce case in March 2001.   He charged the Smiths approximately $70,000 for his alleged service as a Discovery Master.  His private rate was $250 an hour.  Nissenbaum then recommended a colleague to serve as a second GAL, who also charged the Smiths $250 an hour, significantly greater than the $30 an hour the Commonwealth would have paid had the defendants in the instant case not circumvented §56A of c. 215 as Smith described in his Complaint.  No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence. Ableman v. Booth, 21 Howard 506 (1859).  Thus the intentional circumvention here of an existing statute was lawless violence.        At time of trial, Smith brought out that GAL #2 retained a GAL #3 to do the work, but GAL #2 retained a referral fee of 60 percent.  Smith believes that half of the referral fee (or 30 percent of the total referral fee charged) was kicked back to Nissenbaum for the initial referral, . . . for who in the business has ever paid or been paid a 60 percent referral fee?         Nissenbaum removed tens of thousands of dollars from an escrow account containing originally $43,500 of Smith’s money.  Around $12,000 was taken out of that account unlawfully as a result of the alleged fraud (to pay GALs #2 and #3) and some because of alleged conversion (to pay GAL #1).  The $43,500 in the escrow account has been distressingly reduced to approximately $14,000.  See USDC, Boston, 02-CV-11039-JLT and 02-CV-10873-JLT, in which Nissenbaum was a defendant.  Most of the alleged fraud by Nissenbaum and described here was discovered after those two cases were dismissed. (3) The 25 November 2002 article by Inker [Supp.App. 1-6], contradicts almost each and every criticism Defendants had regarding Smith’s claims related to the guardian ad litem statute, §56A of c. 215.    13. "Unconstitutional actions [were] actually decisions rendered by a judge after accepting purported recommendations by a GAL." Admission of lawlessness by judge: Defendants contend that the "unconstitutional actions" related to the removal of Smith’s children and complained of by Smith were "actually decisions rendered by a judge after accepting purported recommendations by a GAL." [Defs. Br. 24]. To render those decisions, Defendant Judge Gould had knowingly to violate two other statutes, namely, M.G.L. c. 208, §30 (requiring consent), and c. 209B, §5(a) (requiring an opportunity to cross-examine and rebut when consent is withheld). Her actions were "nothing less than lawless violence." Ableman v. Booth, 21 Howard 506 (1859). Coupled with the defendants’ assertion that Judge Dunphy had "no power to exert control or influence over Judge Gould’s judicial decisionmaking" [Defs.Br. at 33], Judge Gould’s waywardness establishes the best reason for abolishing judicial immunity. Article V requires accountability and if there is no one in the judiciary to whom she is accountable, then she must be held accountable to the people, which is exactly what article V demands. "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it." U.S. v. Lee, 106 U.S. 196, 220 (1882). Similarly, the GALs, working without standards and of questionable competence, make a good case for invoking article V to compel accountability and abolishing their quasijudicial immunity [Defs.Br. 24 n. 8], which deprives the injured parties of a remedy to correct the wrongs committed by the GALs.  Simply put, as Smith has claimed, §56A has no safeguards on its face, and as applied, it provides no protection from an incompetent GAL or from an incompetent judge and puts the parties at risk for losing both rights to life and liberty and the ability to protect one’s children.\5/ 5 In this case, since the Complaint was filed, Smith has gathered considerably more evidence of the physical and emotional abuse his twin sons have suffered since Judge Gould lawlessly allowed their removal from the Commonwealth upon the recommenda- tion of a truly incompetent GAL.  And remarkably, the court still has nothing to remedy the situation: the boys’ wellbeing is still being adversely affected.  The decision of the court has yet (as of 28 December 2003) to be rendered, although the trial ended on 9 May 2003. 14. The Fourteenth Amendment allows civil rights claimants to avoid State courts. Defendants’ position: Defendants state only that Smith has no support for his position on the significance of the Fourteenth Amendment. [Defs.Br. 13-14] Smith’s position: Given also that a principal purpose behind the enactment of §1983 was to provide a federal forum for civil rights claims [Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989)], and Congress did create a federal forum – through the Fourteenth Amendment – in order to allow civil rights claimants through §1983 to avoid state courts,  state-conferred immunity cannot shield a state actor from liability under section 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. sec. 1983 ... cannot be immunized by state law.") [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under section 1983 would emasculate the federal statute. See id.  Camilo-Robles v. Hoyos, 151 F.3d 1, 10 ((1st Cir. (P.R.) 1998) (nonemployee contract psychiatrists were not entitled to absolute or qualified immunity). Derivative immunity would only be reached were judicial immunity to be abolished.   15. Judicial immunity is unacceptable according to true legal history in Massachusetts. Defendants’ position: Defendants assert that judicial immunity protects judges acting in their personal capacities for the reasons cited in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), and its progeny. [Defs.Br. 29-32] Smith’s position: Disagreeing, of course, Smith argues that (1) none of the cases cited by Defendants traces the full history of judicial immunity; (2) all accept judicial fiat as being proper, and (3) none is a Massachusetts case.\6/ The earliest Massachu- setts case to consider judicial immunity was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\7/ 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). It was in Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (Dec. 1871), that malicious and corrupt acts were put in the penumbra of the umbrella of protection by judicial immunity. 6   One case is misspelled.  It is Whitesel v. Sengenberger (not Stengenberger),  222 F.3d 861, <http://www.versuslaw.com> 2000.C10.0043096  at ¶50 (10th Cir. 2000)  and it is about public service officers, not a judge, who arguably exceeded their authority or committed “grave procedural errors.” 7  The year is variously given as 1868 or 1869. Unfortunately, the later Massachusetts judiciary bought into the fiat of Bradley and followed it like lemmings. The citizens paid a price: the judges violated article V. Even assuming that Randall was good law, where Judge Gould intentionally violated the consent statute (§30 of c. 208) and the Massachusetts Child Custody Jurisdiction` Act (§5(a) of c. 209B), her act was both in excess of her jurisdiction – no legislature ever contemplated her ignoring the law she dealt with, at the very least, on almost a daily basis – and corrupt, if not also malicious. That conduct, under Randall, depriving Smith of his constitutional rights to due process and equal protection, life, liberty, and property, precluded her from being protected by immunity. Also when Judge Irwin distributed Memo #14 [Smith’s App. 53A-12 through 53A-15], he intentionally violated the guardian ad litem statute (§56A of c. 215). That act was both in excess of his jurisdiction – no legislature ever contemplated him ignoring the law – and corrupt, if not also malicious. That precluded him from being protected by immunity. See item 20, infra. Similarly with Judge Dortch-Okara. She allowed the order of Memo #14 to be perpetuated once she became Chief Justice of Administration and Management of the Trial Court and she, too, lost even her judicially-created right to judicial immunity [Defs.Br. 35]. 16. Judge Dunphy failed to discipline a subordinate judge when discipline was appropriate. Defendants’ position: Defendants admit that Judge Dunphy may discipline a subordinate judge if the subordinate acts "to bring the judiciary in disrepute, lowers public confidence in the judiciary, or impedes the administration of justice." [Defs.Br. 33].  Smith’s position: By recklessly disregarding three statutes, of being deliberately indifferent to them and to Smith‘s rights to equal protection of those statutes, or by intentionally violating those statutes, Judge Gould certainly brought into disrepute and lowered confidence in the judiciary, as well as impeded the administration of justice. Ergo, Dunphy had the power to discipline her. The legislation, however, is problematic, in that all he can do under c. 211, §10(xv) is send her to a judicial enhancement program.  17. Judge Dunphy is a failed administrator. Defendant’s position: Defendants claim that Judge Dunphy was unable to give Smith any remedy to the inequities and problems Judge Gould caused [Defs.Br. 34]. Defendants cited no supporting legal authority from the Commonwealth. Smith’s position: Smith’s not only had a corrupt judge, his first and prior counsel either did not perform as the "ordinary attorney in the community" or did not want to challenge the court and incur Judge Gould’s wrath. Because interlocutory appeals are looked upon unfavorably by the Massachusetts higher courts and most often are a waste of time and money, Smith’s successor counsel brought motions to bring the problems to Judge Gould’s attention for the purpose of "curing" the wrongs. She would not hear the motions. Successor counsel (same as current counsel) then filed writs of mandamus. They were dismissed as being premature.  About a week after being served the Complaint in this case, Judge Gould was replaced by Circuit Judge Lisa A. Roberts. She, too, refused to hear the motions regarding the children and the removal.\8/ 8 One of the children had made a fresh complaint of sexual molestation by the maternal grandfather, with whom he and his mother (Daughter #3) were living in Maine.  The fear of molestation of the children by the wife’s father had been the basis of Smith NOT giving his consent to the removal.  The maternal grandfather testified in front of Defendant Judge Gould – at a pretrial hearing – (1) that his Daughter #2 and he had an estranged relationship for 8-10 years, (2) that he believed that she had been suffering from “false memory syndrome,” (3) that after early retirement, his avocation was children, and (4) that he spent time in playgrounds and recreation centers.   A few weeks later, Judge Gould wrote in a decision that he “appears to be a pillar of the community.”   [Order, Gould, J., 26 April 2001].          A year later, when Smith finally had opportunity to depose the grandfather in Maine, the grandfather went on tangentially during a 10-minute monologue about a “monsignor” who was having an affair with his estranged wife and had access to the home with the children in it.  The videographed deposition was played for Judge Roberts at the divorce trial and entered into evidence.   Coupled with information from a third party, Smith was to understand that Grandpa did not do “it,” the anonymous priest did.  But the grandfather had had opportunity to abuse Daughter #2.  He admitted entering the house for a “few months” while his estranged wife was asleep.  During that time he found in her handbag and collected “correspondence between these two people.” [Supp.App. 11].  And during that time, he also had access to the children and thought nothing wrong with slinking around in the middle of the night in a house where he had not been welcomed.          So that neither Judge Gould (nor Roberts, not a defendant here) nor Judge Dunphy did anything about rescuing the children from the dangers in Maine is unforgivable and enough to shock the conscience of any reasonable person.          After Judge Roberts succeeded Judge Gould to the bench, she denied Smith the most important requested Letters Rogatory and Commissions to depose witnesses in Maine.  Then on the 52d day of trial, on 30 April 2003, Judge Roberts relented and sent a Family Service Officer to Maine for records which Smith had been precluded from getting.   The school records showed that the other twin suffered from “lack of bowel control” – encopresis (a possible indice of sodomy) -- in class on a daily basis, depression, upsetness, anger, “tough times when his mother volunteers,” and told the school psychologist that he felt the lack of attention, felt unloved, and sadness, and missed his father.          Smith believes that Judge Dunphy has been orchestrating the divorce case and has done nothing to save the children from continuing harm and has done noth-ing to allow Smith to protect his children.  It is over seven months since the trial ended, and there has been no decision from the divorce court. Judge Gould’s defense ultimately became: "The removal order is only temporary." But the Chief Justice of the U.S. District Court in Portland, Maine, dismissed a case Smith brought on behalf of his children under diversity jurisdiction. The federal judge dismissed it for lack of diversity: The children, he said, had been in Maine too long. So much for the misnomer of "temporary orders." (This is a pandemic problem throughout the entire probate and family court system, a problem the administrator, Judge Dunphy, could remedy.) 18. Defendants imply that the doctrine of qualified immunity might apply to judges. [This defense is raised by Defendants first time on appeal]. Defendant’s position: Defendants made a remarkable statement, perhaps an inadvertent one [Defs. Br. 35-36]: Nevertheless, if the judges’ issuance and enforcement of Memo #14 could conceivably be construed to constitute the deprivation of a federal right, Judges Irwin and Dortch-Okara, under the doctrine of qualified immunity, cannot be held liable for such a deprivation unless the plaintiff proves that  "right was clearly established at the time of the alleged action or inaction" and "an objectively reasonable official would have believed that the action taken violated that clearly established right."Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001); [cert. denied 534 U.S. 1021 (2001)] . . .  Smith’s position: It appears that Defendants are conceding a wee bit . . . that when a party is deprived of a federal right by a judge, the doctrine of qualified immunity applies, provided that the plaintiff proves that right of which he was deprived was clearly established at the time of the alleged action or inaction.\9/ Then they cite to Starlight Sugar v. Soto. Soto, acting in his capacity as Secretary of the Department of Agriculture of the Commonwealth of Puerto Rico, was sued in his personal capacity under 42 U.S.C. §1983 and, the court held, entitled to qualified immunity. Soto was not, it appears, either a judge or acting as a judge. 8 Smith was deprived of due process (the evidentiary hearing allowed under §5(a) of c. 209B), equal protection of the laws (his right to give or withhold his consent §30 of c. 208), his children, his parental rights, his right to protect his children, his right to protect his property (tens of thousands of dollars for the diverse court-appointed GALs when §56A as violated), and gender discrimination. 19. Smith’s complaints are defined at an appropriate level of generality.  Defendant’s position: Defendants defend on the ground that: the alleged federal right that was violated, if one were assumed to exist, would be far too novel and indeterminate for Smith to possibly satisfy either of these requirements. [Defs, Br. 36] Smith’s position: Amongst the many rights of which Smith complains he was deprived are those noted in the margin, at note 9. None of them is "far too novel and indeterminate." All are "defined at an appropriate level of generality." Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). In addition to those of Smith’s rights in the margin is the right to have judges comply with their sworn oaths to uphold the constitutions and the law. That is novel. 20. Federal district court has subject-matter jurisdiction over claims seeking relief from family-court orders which emanated under procedures that allegedly violated due process, equal protection, and other federal statutes such as the §1983 civil rights statute. Defendant’s position: Defendants err by contending that the Rooker-Feldman\10/ doctrine applies to this case. [Defs, Br. 36-38]. Their argument was the traditional one set forth by those invoking the domestic relations exception. 10   Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Smith’s position: The district court judge did not rely upon the doctrine for dismissal. Smith did not raise the issue on appeal, given that it was a non-issue. In addition, however, to the considerable attention to the doctrine in Smith’s opposition to Defendant’s motion to dismiss, which he incorporates herein by reference [Appendix 85-88], Smith adds the following arguments. "The domestic relations exception divests the federal courts of power to issue divorce, alimony, or child custody decrees." Ankenbrandt v. Richards, 504 U.S. (LA) 689, 703 (1992) (complaint sought monetary damages for alleged sexual and physical abuse of the children committed by the divorced father of the children and his female companion).  Because Smith’s allegations did not, however, request the District Court to issue a divorce, alimony, or child custody decree, the suit is not subject to the domestic relations exception.  This case only peripherally involves the subject of "domestic relations." "Domestic relations" actions are loosely classifiable into four categories. The first, or "core," category involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity. The second, or "semicore," category involves declarations of rights or obligations arising from status (or former status), e.g., alimony, child support, and division of property. The third category consists of secondary suits to enforce declarations of status, rights, or obligations. The final, catchall category covers the suits not directly involving status or obligations arising from status but that nonetheless generally relate to domestic relations matters, e.g., tort suits between family or former family members for sexual abuse, battering, or intentional infliction of emotional distress. None of this Court's prior cases that consider the domestic relations "exception" involves the type of periphery domestic relations claim at issue here.  Ankenbrandt, at 713 (Blackmun, J., concurring in the judgment).  "In general, lawsuits affecting domestic relations, however substantially, are not within the exception unless the claim at issue is one to obtain, alter or end a divorce, alimony or child custody decree." Dunn v. Cometa, 238 F.3d 38, 41 (C.A.1 (Me.) 2001), where the counts for breach of fiduciary duty and for negligence and waste were not foreclosed by the domestic relations exception. Id. at 40-41. "This narrow construction led the Court in Ankenbrandt to hold that the exception did not apply to tort claims there at issue despite their intimate connection to family affairs." Id., citing Ankenbrandt, 504 U.S. at 704. Both counts were central to the defendant's "alleged misfeasance or wrongful nonfeasance in allowing Dunn's private insurance policy to lapse." Id. at 42.  Where "petitioner's claims [ ] involve a federal question or statute -- the presence of which would strongly counsel against abstention -- petitioner's state-law tort claims for money damages are easily cognizable in a federal court. All these considerations favor the exercise of federal jurisdiction over petitioner's claims." Ankenbrandt, at 717. Justices Stevens and Thomas concurred in the judgment. Id.  Federal district court also has subject-matter jurisdiction over claims seeking relief from family-court orders which emanated under procedures that allegedly violated due process, equal protection, and other federal statutes such as the sec. 1983 civil rights statute. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6 (Ohio) 1988). Where Agg had been brought under §1983, and alleged deprivation of federal constitutional rights and state procedures that were contrary to federal law and thus invalid under the supremacy clause, the domestic relations exception doctrine, which concerned federal jurisdiction based on diversity, did not apply. Id. at 339. "[J]urisdiction [ ] was therefore proper under 28 U.S.C. sec. 1331 or sec. 1343."  Id. U.S. Const. Art. 6, cl. 2; Amends. 5, 14.\11/ 11 Other State decisions holding the domestic relations exception inapplicable: In Thomas v. New York City, 814 F.Supp. 1139 (E.D.N.Y.),  "whether the state's procedure used to separate parent from child complie[d] with constitutional due-process requirements [was] squarely within [the] court's federal question jurisdiction."   The determination of the issue did "not entail any investigation into the fitness of the parent to care for child, or into the decree." Id. at 1147.  In Stone v. Wall, 135 F.3d 1438 (11th Cir. (Fla.) 1998), the court held that the domestic relations exception to exercising diversity jurisdiction is to be read narrowly and ordinarily does not include third parties in its scope. In Friedlander v. Friedlander, 149 F.3d 739, 740 (C.A.7 (Ill.) 1998), the exception did not bar diversity jurisdiction where the case merely arose out a domestic relations dispute and did not seek any of the distinctive forms of relief typically associated with domestic relations jurisdiction.  In Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. (Ohio) 1988) (involving intentional infliction of emotional distress), the court held that the domestic relations exception to diversity jurisdiction does not apply to suits that are actually tort or contract claims having only domestic relations overtones. 28 U.S.C. sec. 1332(a)(1). In Rubin v. Smith, 817 F.Supp. 987, 991 (D.N.H. 1993), the exception did not apply where constitutional questions were raised and damages were sought for "deprivation of their constitutional interests without due process of law. There a mother and child alleged that their constitutional rights were violated when police seized the child pursuant to a foreign child custody decree without notice and hearing. Adjudication of the child's custody was not sought; the §1983 only arose out of the custody dispute.  In Raftery v. Scott, 756 F.2d 335, 337-38 (4th Cir.1985), former husband's action against former wife for intentional infliction of mental distress, arising out of her effort to destroy and prevent rehabilitation of relationship between father and son, did not contravene domestic relations exception to federal diversity jurisdiction. In Catz v. Chalker, 142 F.3d 279 (C.A.6 (Ohio) 1998), a former husband's action, seeking a declaration that the divorce decree was void as a violation of due process, was not a core domestic relations case to which the domestic relations exception applied. The action did not seek declaration of marital or parental status, but instead presented a constitutional claim in which it was incidental that the underlying action involved a divorce. Id. Fourteenth Amendment.  In Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1109 (C.A.10 (Utah) 2000), the Rooker-Feldman doctrine did not apply.  There the father was not a party to the adoption proceeding and his underlying claims challenged the constitutionality of the Utah adoption statutory scheme and alleged a due process violation. Such claims were asserted under federal question jurisdiction, and constitutional claims do not require a federal court to make a custody determination. Id. at 1111.  In sum, where Smith did not ask the district court to review Judge Gould’s decision – Smith has documentary proof that Judge Gould acted unlawfully – and where Smith did not ask the district court reverse her decisions, the claims against her may not be dismissed under the domestic relations exception. The claims against Judge Dunphy also may be heard in district court, for Smith’s action does not seek declaration of marital or parental status, but instead presents a constitutional claim in which it was incidental that the underlying action involved a divorce. See Catz v. Chalker, supra.   21. Smith’s standing or lack thereof to challenge the issuance of Memo #14 was not one of the bases upon which the district court justice allowed Defendants’ motion to dismiss. Defendant’s position: Defendants raise the issue of Smith’s standing to challenge the issuance of Memo #14 [Defs. Br. 40-43]. Their challenge is based on  a non-existent agreement between Smith and his estranged wife. Smith’s position: Notwithstanding his objection to Defendants raising the issue, Smith responds by contending that he is a "party-in-interest" and therefore enjoys a presumption that he is "an aggrieved person." Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). He has also suffered, as Becker v. Fed. Election Comm’n, 230 F.3d 381, 385 (1st Cir. 2000), requires, actual injury by the conversion of over $20,000 from the court-ordered escrow account of his money. He suffered that loss as a result of Defendants’ "putatively illegal conduct." Vote Choice, Inc. v. Distefano, 4 F.3d 26, 36 (1st Cir. 1993). The facts asserted on Defs. Br., 41 are simply not true. Smith never had an agreement with his estranged wife to share the costs of the GAL. Judge Gould wrote that self-serving fabrication in her decision, but she lied. There is not one iota of evidence of an agreement. In fact, the wife’s motion for a GAL was not an assented-to motion and explicitly states that there was no agreement. Judge McHugh, in the single justice session of the State Appeals Court, simply parroted Judge Gould’s fabrication. Too, at the 59-day divorce trial, there was not a shred of evidence that showed an agreement regarding the GAL #1’s fees.  Further, Smith incorporates as if set forth herein by reference his legal argument with authorities at Appendix, 99-101, which is from his Opposition to the Motion to Dismiss and which proves that even assuming arguendo that there was such an agreement, it would be void ab initio, for it would yield a result not contemplated by the statute.  Assuming arguendo also that Memo #14 was lawful, Judge Gould did not comply with it. There was never a means test, which that memo requires. In fact, means testing is another detail that the family-court judges consistently and continually overlook or intentionally ignore. The remainder of Defendants’ argument on this issue is a smokescreen for unlawful avoidance of the statute. 22. Where Defendants’ argument regarding Smith’s RICO claim is a dispute about two facts, and where discovery will adduce evidence that will ultimately support Smith’s allegations about these two facts, the dismissal must be vacated and the case remanded. Defendant’s position: Defendants’ argue at Defs.Br. 38-39 and 39 n. 11 that the money the Commonwealth might have "saved" by shifting the burden of paying the GALs from the Commonwealth to the parties is not "income." They further argue that Smith cannot prove that the "income" was received "from their alleged illegal activities or that they were engaged in a racketeering enterprise that affected interstate or foreign commerce." Id. at 39. Smith’s position: Smith contends that when a second entity (e.g., Smith) pays a financial obligation for a first entity (e.g., the Commonwealth), the amount paid by the second entity – or saved by the first entity -- is for tax purposes "income."\12/ Smith contends also that the flow of money raises questions as to the nature of the activities of the defendants and the complicity of, at least, Judges Gould and Dunphy. For instance in the first set of events, of the $24,029.12 paid with Smith’ money from the escrow account, it is as yet unknown to whom $13,807.70 was sent. In a second set of events, of $11,112.51 paid from Smith’s money, the recipient of $5002.08 is unidentified. In a third set of events, $12,777.21, a 60 percent referral fee was paid by a court-appointed GAL to another court-appointed person, who billed the Smiths for approximately $70,000 of alleged services, and is seeking approximately $40,000 of it from Smith.  12   Judge Irwin, with the help of all the participating probate and family judges, clerks, and others, controlled the enterprise, which Smith contends was racketeering, one form of which is obtaining money by unlawful activities [App. 53A-12-15]. By the end of trial, the Smith incurred approximately $91,000 in debt for two so-called court-appointed GALs and a court-appointed Discovery Master.  And still the money is expected to flow into the system, all so the Commonwealth receives a benefit at Smith’s expense.  23.  The Eleventh Amendment cannot bar Smith’s State claims. Defendant’s position: Defendants contend that the Eleventh Amendment bars Smith’s State claims [Defs.Br. 43-45]. Smith’s position: For the reasons set forth in his appellate brief and reply, Smith contends that the Eleventh Amendment is not applicable to any issue in this case. Instead of being an intrusion by the federal government into State sovereignty, the taking of jurisdiction over the State claims would be the federal judiciary protecting, as guaranteed by §1983 and the Fourteenth Amendment, those of Smith’s federal rights in a federal court which were trampled in State court. The last note: Given that the second prong of the Eleventh Amendment, which the Defendants invoke here, is judge-made, it is ironic that Defendants argue that "‘pendent jurisdiction is a judge-made doctrine of expediency and efficiency’ that cannot override the Eleventh Amendment’" [Defs. Br. 45]. Instead of battling over which judge-made law has precedence over the other, Smith contends that the correct interpretation would be that where pendent jurisdiction clearly promotes expediency and efficiency, the Fourteenth Amendment is the amendment that should reign supreme here. For all the above reasons, the action must be remanded for discovery and trial.                                                                         Respectfully submitted,                                                                         APPELLANT JOHN SMITH,                                                                         By his attorney,                                                                             ____________________________ 29 December 2003                                      Barbara C. Johnson, Esq.                                                                         6 Appletree Lane                                                                         Andover, MA 01810-4102                                                                         978-474-0833                                                                         1st Cir. Bar Number      CERTIFICATE OF COMPLIANCE I, Barbara C. Johnson, hereby certify that above pleading (excluding certifications and signature sections) is  Part One 3013 words and 392 lines  Part Two 5137 words and 457 lines  Footnotes 1742 words and 149 lines Subtotal 9892 words and 998 lines Total 10701 words and 1090 lines (with certs, etc.)  as measured by MSWord 97, each part being within, but the total being outside the limits of F.R.A.P. (32)(a)(7). A motion for leave to file a Reply that exceeds the limits allowed by the rules accompanies this pleading..                                                                         ____________________________ 29 December 2003                                      Barbara C. Johnson, Esq.

CERTIFICATE OF SERVICE  I hereby certify that two true copies of the above document were served by first-class mail/in hand on Robert L. Quinan, Esq., Attorney General's Office, Government Bureau, One Ashburton Place, Room 2019, Boston, MA 02108 on 30 December 2003.                                                                           _____________________________                                                                           Barbara C. Johnson, Esq.

 
 
 

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