Fighting Sovereign Immunity: A Creative Look at Its Unconstitutionality

 

Stretching the envelope, the plaintiffs, Brown and Linnehan, say the Commonwealth of Massachusetts waived its sovereign immunity by  acting as if it had jurisdiction when it didn't have it!   It violated the Massachusetts Child Custody Jurisdiction Act. It violated an uninterpreted part of an article -- Article 5 -- of the Massachusetts Declaration of Rights.  And the Department of Social Services,  DSS, the child-protection  arm of the State, waived its immunity, too, by acting outside of the scope of its duties, ultra vires, by acting in such a way that it was not related to any rationale policy of the DSS and in violation of any public policy. Plaintiffs argue, too, that the Massachusetts Tort Claims Act, by which the 1978 Massachusetts legislature let sovereign immunity contaminate Massachusetts soil, might also be unconstitutional . . . by enacting legislation which worked to castrate a constitutional article without getting permission from the people for whom they were supposed to have been working. NOTE The greater irony of the Mass. Tort Claims Act is that in it, the Commonwealth is saying, Hey, Folks, you can sue us, your State government and its subdivisions, such as departments and agencies, if we are negligent . . . but not for lots of money . . . we put a cap on the amount you can sue us for, but you absolutely can NOT NOT NOT sue us if we intentionally do something wrong.  Oh,, yes, and if we violate your civil rights, you can NOT NOT NOT sue us UNLESS the legislature gives you the right explicitly in a statute.  Otherwise, you're just plumb out of luck!  We can do this because we know you don't read our Constitution and don't bother take time to think about what we are doing.  With humility, Plaintiffs' counsel admits to bring a few weak causes of action.  If need be, let the judge make a Solomonic decision and give the opposition a few crumbs by dismissing the weak causes, while letting the meritorious ones stand .  Can you spot the weak points???

UNITED STATES DISTRICT COURT FOR THE  EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 00-CV-11048-REK  --------------------------------------------------- Theodore S. Brown  James Linnehan  Jane & John Does                                                   Plaintiffs  v. Eli Newberger  Children's Hospital Amy C. Tishelman  Barbara Cohen  Brockton Division of the       District Court Department       of the Trial Court of Massachusetts Mass. Dept. of Social Services  Eileen Kern  Sandra Fyfe Christopher Salt  Jack McCarthy, Jr.  John and Jane Smiths                                                 Defendants ------------------------------------------------------     OPPOSITION and MEMORANDUM IN SUPPORT OF OPPOSITION  TO MOTION FOR JUDGMENT ON THE PLEADINGS  BY DEPARTMENT OF SOCIAL SERVICES  AND BROCKTON DIVISION OF THE DISTRICT COURT DEPARTMENT  OF THE TRIAL COURT OF MASSACHUSETTS   (A supporting affidavit accompanies this opposition.)

 

Now come the Plaintiffs Theodore Brown, James Linnehan, and Jane & John Does to oppose the Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c) by Defendants Department of Social Services ["DSS"] and Brockton Division of the District Court Department of the Trial Court of Massachusetts ["Brockton"].  As grounds, Brown and Linnehan (the Jane and John Does have not yet been identified in the Complaint of this action) state the following:  1. As to Brown's claims, the district court at Brockton had neither jurisdiction nor authority over Brown and therefore has no sovereign immunity, where (a) an action for divorce was pending in the State of Maine (Brown's wife absconded with the children and ultimately landed in Massachusetts), (b) Brockton had no personal jurisdiction over Brown, (c) Brockton took action tantamount to giving permanent custody to the wife, although the Probate & Family Court has exclusive jurisdiction over custody, (d) no trial court held a home state hearing, (e) no evidence was taken, (f) no opportunity to cross-examine was afforded Brown, and (g) no Massachusetts court had made a declaration that it would exercise jurisdiction; 2. as to Linnehan's claims, the Juvenile Court at New Bedford had neither jurisdiction nor authority over Linnehan and therefore has no sovereign immunity, where (a)  an action for custody and visitation was pending in the State of Maine (Linnehan's girlfriend absconded with the child and ultimately landed in Massachusetts), (b)  New Bedford had no personal jurisdiction over Linnehan, (c) New Bedford took action tantamount to giving permanent custody to Robyn, although the Probate & Family Court has exclusive jurisdiction over custody, (d)  no trial court held a home state hearing, (e)  no evidence was taken, (f)  no opportunity to cross-examine was afforded Linnehan, and (g)  no Massachusetts court had made a declaration that it would exercise jurisdiction. 3. under Archambault and the Parental Kidnapping Prevention  Act, DSS's role -- when Massachusetts was not the home state of the children, and could exercise only emergency jurisdiction pursuant to G.L. c. 209B, sec. 2(a)(3)(ii) -- was part of an unconstitutional collateral attack on both the lawful jurisdiction and the then-pending Maine-court orders permitting visitation by Brown and Linnehan, respectively, making sovereign immunity unavailable to DSS as a defense to any of the claims brought against it; 4.  as to Brown's and Linnehan's claims, the Commonwealth  consented to suit by waiving its sovereign immunity in the 18th century in its constitution and by statute (M.G.L. 258, secs. 9 and 10) in the 20th, making the defense of sovereign immunity unavailable to the Commonwealth and to DSS as a defense to any of the claims brought against the two entities; 5.  Brown and Linnehan are entitled to equitable relief, if not entitled to money damages, under 42 U.S.C. 1983, and to money damages as to their other claims;  6.  where with deliberate indifference, DSS deprived Brown and Linnehan of their fundamental and clearly established rights to due process and relationships with their children, sovereign immunity is not available to the movants as a defense; 7.  where the Brockton and New Bedford courts deprived Brown and Linnehan of their fundamental and clearly established rights to due process and relationships with their children, sovereign immunity is not available as a defense; 8.  Where DSS AND Brockton have neither sovereign nor qualified immunity, and immunity was the only basis upon which they claimed that Brown and Linnehan failed to state a claim upon for which relief could be granted, the Rule 12(b)(6) prong of their motion must fail: a.. As to Brown's and Linnehan's claims pursuant to the Massachusetts Civil Rights Act (M.G.L. c. 12, sec. 11I); b. As to Count 8, civil RICO; c. As to pendent state claims. Additionally, because there appears to be some confusion as to which counts were brought against DSS and the "Brockton" court as a result of the word "Defendants" in the WHEREFORE clauses, clarification, here, seems appropriate.  The primary counts against DSS by Brown and/or Linnehan are Counts 2-6: (2), interference with parental rights; (3 and 4), violation of 42 U.S.C. 1983 (against Brown and Linnehan, respec- tively); (5 and 6), state civil rights (M.G.L. c. 12, sec. 11I) (against Brown and Linnehan, respectively); and (8), civil RICO.  The primary counts against Brockton are brought only by Brown and are Counts 2, 3, 5, and 8.  The secondary counts against DSS and Brockton are discussed immediately below.  As to Counts 1 and 10. The two-year period during which Brown and Linnehan were to make presentment had passed before present counsel was retained. Therefore, under the presentment section of the Massachusetts Tort Claims Act, M.G.L. 258, sec. 4, neither plaintiff could bring against either DSS or Brockton any claims sounding in negligence.  With that said, Plaintiffs nevertheless contend that when read together, Articles 5 and 11 of the Massachusetts Declaration of Rights of the Constitution of the Commonwealth of Massachusetts make sovereign immunity unconstitutional in Massachusetts under Massachusetts constitutional law.  Were that contended conclusion deemed to be true, Plaintiffs could include DSS and Brockton amongst the "Defendants" in the WHEREFORE clauses of Counts 1 and 10, the two negligence counts. It can only be speculated that the plaintiffs would also have served a presentment letter within that two-year period. In either case, Plaintiffs fully discuss this issue below, an issue implicates also the Fourteenth Amendment of the United States Constitution.  As to Counts 7 and 11. If the sovereign immunity imposed by M.G.L. c. 258 is upheld, then DSS and Brockton might find that defense available to them. If not uphold, then Plaintiffs would continue to assert those pendent state claims.  As to Count 9. Plaintiffs did not intend to bring claims based on any contractual theory against DSS or Brockton.  As to Count 12. Plaintiffs did not intend to bring a claim against DSS and the Brockton court for an unfair and deceptive business practice (although the acts of those defendants did and do affect interstate commerce).  NOTE That Brown's and Linnehan's fundamental and clearly established rights have been interfered with or that they were deprived of them is not disputed or controverted by DSS and Brockton. Neither do these two defendants dispute any of the facts. These defendants argue only that they are shielded from Plaintiffs' claims by sovereign immunity. FACTS AS TO BROWN Charlotte Brown was born 17 November 1989 and Theodore Brown, Jr., ["TJ"] was born 8 November 1993. They were the issue of Brown's marriage to Patricia Brown ["Patty"], their mother.  While a Maine divorce-court order allowing Brown visitation was in effect, their mother left with them to New Hampshire (around the beginning of February '96) and then went on to Massachusetts (end of June '96). A few weeks later, during the Fourth of July 1996 holiday, Brown saw his children twice. Charlotte was six and TJ, two. Within the following week, Patty brought the children to Whitman Counseling "therapist," Barbara Cohen, who told her to get a c. 209A temporary restraining order against Brown from Brockton District Court, which Patty did. Brown has not seen his children since that summer of '96.  In late October, Cohen reported suspected sexual abuse of Charlotte to DSS, and not too long after, reported abuse of TJ. During its 10-day investigation, DSS learned that Patty and the children were living with a self-reporting confessed sex-offender, Dell Smith ["Smith"], who not only was on the DSS central registry but also had been in counseling at Whitman Counseling, where the children were going for "therapy."1 1At a deposition of Dell Smith in another case, on 4 December 2000, Smith testified that because he had felt guilty about sexually abusing his own infant daughter, he went for therapy at Whitman Counseling, the same entity which filed the 51A against Brown. During that therapy, he admitted what he had done. After the admission, his therapist filed a 51A with DSS. DSS did not, however, inform Brown about Smith until a year later -- November 1997. And when Brown told Brockton District Court about Smith and the children living together, Brockton still refused to let Brown see his children . . . and told Brown to go talk to DSS.  He was last at Whitman therapy on Tuesday, 28 November 2000, with Patty, delivering Brown's daughter, Charlotte, for therapy.  So Brown did go to DSS and filed a 51A against Smith. But DSS "trashed" it. As recently as the summer of 2000, Brown sought Brockton to vacate its 209A restraining order. Brockton refused. Smith is still living with Brown's children, the children are still going to therapy, and Brown still has not seen his children since the summer of '96.  Maine never declined jurisdiction over the Browns. No home-state hearing occurred in Massachusetts. No judges conferred. Massachusetts never declared it would exercise jurisdiction. The Brown's Maine divorce became final in 1998. Massachusetts did not have subject-matter jurisdiction (and arguably no personal jurisdiction) and there was no emergency to assert jurisdiction under M.G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (MCCJA).  M.G.L. c. 209A was but a backdoor used to unlawfully or otherwise wrongly circumvent the MCCJA. In the c. 209A proceedings, there was no evidentiary hearing. Brown was denied due process, i.e., he was never given an opportunity to confront his accusers by cross-examination or to rebut any adverse or erroneous materials used against him.   FACTS AS TO LINNEHAN James Linnehan's son Brenden was born out of wedlock on 9 February 1985. By 1986, the unwed couple was in court over custody and visitation.  When Brenden was a little over two years old, his mother, Robyn Gerry, left Maine with him while a Maine-court order allowing Linnehan visitation was in effect. After 10 months, Linnehan found them in New Bedford, Massachusetts. Soon thereafter, Linnehan moved to Massachusetts to be near his son, but the Maine action was still pending. In the months that followed, Linnehan, mother, and child drove together from Massachusetts to Maine to participate in a court-ordered mediation and back again. Abuse was not alleged in Maine.  Literally one day after the mediation in Maine stalemated as to the visitation issue, Robyn made an appointment with a so-called therapist (Defendant Eileen Kern), who shortly thereafter filed with DSS a 51A report of suspected emotional, physical, and sexual abuse of Brenden. A DSS investigator, Robert Mendez, supported it, albeit without any reasonable cause to believe that an incident of sexual abuse had occurred. [The standard is in 110 C.M.R. sec. 4.32(2).]  Almost immediately, DSS brought a care and protection action in New Bedford Juvenile Court.2 2 New Bedford Juvenile Court was not a named defendant. Filed herewith this opposition is Motion for Leave to Amend to Add Defendant. It should not prejudice the Trial Court, since the issues are the same for each court. Maine never declined jurisdiction over Linnehan and Robyn. No home-state hearing occurred in Massachusetts. No judges conferred. Massachusetts never declared it would exercise jurisdiction. Massachusetts did not have subject-matter jurisdiction and there was no emergency to assert jurisdiction under M.G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (MCCJA).  A Massachusetts court did, however, order Linnehan to withdraw his case in Maine.  Linnehan then brought a paternity and custody action in Bristol County Probate & Family Court. One Juvenile Court judge sat simultaneously in both courts over both cases. (The cases were not consolidated.) At no time was Linnehan afforded by either court an evidentiary hearing or an opportunity to confront his accusers. Linnehan tried repeatedly to no avail to get visitation, if not custody.  DSS's finding of support is given credence to this day, having been given continuing help from subsequent caseworkers. Once on DSS's roles, one does not get off.  But for two supervised visits with the child when he was around five years of age, Linnehan last saw his son, Brenden, when the boy was three years of age. Brenden is now 15 years of age. At no time before being deprived of his parental rights and due process did James Linnehan have an opportunity to confront his accusers or to test the alleged evidence against him. ARGUMENTS 1. As to Brown's claims, the district court at Brockton had neither jurisdiction nor authority over Brown and therefore has no sovereign immunity, where (a) an action for divorce was pending in the State of Maine (Brown's wife absconded with the children and ultimately landed in Massachusetts), (b)Brockton had no personal jurisdiction over Brown, (c) Brockton took action tantamount to giving permanent custody to the wife, although the Probate & Family Court has exclusive jurisdiction over custody, (d) no trial court held a home state hearing, (e) no evidence was taken, (f) no opportunity to cross-examine was afforded Brown, and (g) no Massachusetts court had made a declaration that it would exercise jurisdiction.  The Massachusetts Child Custody Jurisdiction Act (MCCJA) and Parental Kidnapping Prevention Act (PKPA) precluded the Massachusetts court from taking exclusive jurisdiction over child custody and visitation matters. Given that the Brown's divorce was pending in a foreign state, Massachusetts did not have subject-matter jurisdiction. Cricenti v. Weiland, 44 Mass.App.Ct. 785 (1998). "[U]nder G.L. c. 209B, s 2(a)(2), Massachusetts can only exercise jurisdiction if it appears that no other State would have "home State" jurisdiction." Id. at 791. Even Brown's attorney making a special appearance in Brockton (as a result of a phonecall from Patty, not formal notice) does not confer jurisdiction to Massachusetts, for subject-matter jurisdiction cannot be conferred by consent, conduct, or waiver. MacDougall v. Acres, 427 Mass. 363, 371 1998).  The provisions barring the exercise of jurisdiction while a proceeding is pending in another State are "designed generally to apply to situations in which no custody determination has yet been made on a matter pending before a foreign court...."  Cricenti v. Weiland, 44 Mass.App.Ct. 785, 789 (1998), citing Custody of a Minor (No. 3), 392 Mass. 728, 733 (1984), and Custody of Brandon, 407 Mass. 1, 8-9 (1990). At the very least, Brockton could take only temporary emergency jurisdiction under sec. 2(a)(3) of c. 209B [Mannor v. Mannor, 46 Mass.App.Ct. 46, 48 (1998)], where there was pending a child custody case in another state. Id. at 53, citing MacDougall, 427 Mass. at 369-370. Under the second prong of Umina v. Malbica, 27 Mass.App.Ct. 151 (1989), the exercise of of the emergency power pursuant to sec. 2(a)(3)(ii) of c. 209B was an abuse of discretion. Orchard v. Orchard, 43 Mass.App.Ct. 775, 780 (1997).  Ironically, though, the district court in Brockton did not even consider the MCCJA, it acted solely pursuant to c. 209A. By not considering the MCCJA, it never considered that it did not have jurisdiction because (1) Patty's flight from Maine and violation of the Maine visitation order was illegal or otherwise wrongful conduct which precluded Massachusetts from exercising jurisdiction [M.G.L. 209B, sec. 7(a)(ii)] and (2) similarly, where Maine did not decline jurisdiction in Brown's case. A court of the commonwealth shall not exercise jurisdiction in any custody proceeding commenced during the pendency of a proceeding in a court of another state . . . unless the court of the other state shall decline jurisdiction. . . ."  M.G.L. 209B, sec. 2(a)(4)(d). They didn't.  Nevertheless, under either chapter, 209B or 209A, the court was not relieved of its judicial responsibility to ensure that Brown had due process, to wit, that he had an opportunity to have an evidentiary hearing at which he could give evidence and cross-examine his accusers. That Brockton did not afford him due process wrongfully deprived him of his parental rights, his liberty interest. E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999):  A parent's liberty interest in [his] relationship with [his] child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998). Had Brockton allowed an evidentiary hearing where Brown could have cross-examined his accusers, the presence of Dell Smith, the known confessed sex-offender, in the home with Brown's children, the sleeping arrangements in that home, and the opportunities for Smith to re-offend would all have been revealed. And because the evidence was insufficient to support a 51A against him and led, in fact, to another person more likely to have perpetrated the abuse -- if, indeed, abuse was committed -- making it more than likely that Brown would never have been deprived of his parental right to have a relationship with his children, Charlotte and TJ.  2. As to Linnehan's claims, the Juvenile Court at New Bedford had neither jurisdiction nor authority over Linnehan and therefore has no sovereign immunity, where (a) an action for custody and visitation was pending in the State of Maine (Linnehan's girlfriend absconded with the child and ultimately landed in Massachusetts), (b) New Bedford had no personal jurisdiction over Linnehan, (c) New Bedford took action tantamount to giving permanent custody to Robyn, although the Probate & Family Court has exclusive jurisdiction over custody, (d) no trial court held a home state hearing, (e) no evidence was taken, (f) no opportunity to cross-examine was afforded Linnehan, and (g) no Massachusetts court had made a declaration that it would exercise jurisdiction.  The Massachusetts Child Custody Jurisdiction Act (MCCJA) and Parental Kidnapping Prevention Act (PKPA) precluded the Massachusetts court from taking exclusive jurisdiction over child custody and visitation matters. Given that Linnehan's case was pending in a foreign state, Massachusetts did not have subject-matter jurisdiction. Cricenti v. Weiland, 44 Mass.App.Ct. 785 (1998). "[U]nder G.L. c. 209B, s 2(a)(2), Massachusetts can only exercise jurisdiction if it appears that no other State would have "home State" jurisdiction." Id. at 791. And subject-matter jurisdiction cannot be conferred by consent, conduct, or waiver. MacDougall v. Acres, 427 Mass. 363, 371 1998).  The provisions barring the exercise of jurisdiction while a proceeding is pending in another State are "designed generally to apply to situations in which no custody determination has yet been made on a matter pending before a foreign court...."  Cricenti v. Weiland, 44 Mass.App.Ct. 785, 789 (1998), citing Custody of a Minor (No. 3), 392 Mass. 728, 733 (1984), and Custody of Brandon, 407 Mass. 1, 8-9 (1990). At the very least, New Bedford could take only temporary emergency jurisdiction under sec. 2(a)(3) of c. 209B [Mannor v. Mannor, 46 Mass.App.Ct. 46, 48 (1998)], where there was pending a child custody case in another state. Id. at 53, citing MacDougall, 427 Mass. at 369-370. Under the second prong of Umina v. Malbica, 27 Mass.App.Ct. 151 (1989), the exercise of of the emergency power pursuant to sec. 2(a)(3)(ii) of c. 209B was an abuse of discretion. Orchard v. Orchard, 43 Mass.App.Ct. 775, 780 (1997).  Ironically, though, the district court in New Bedford did not even consider the MCCJA, it acted solely pursuant to M.G.L. c. 119, for care and protection cases. By not considering the MCCJA, it never considered that it did not have jurisdiction because (1) Robyn's flight from Maine and violation of the Maine visitation order was illegal or otherwise wrongful conduct which precluded Massachusetts from exercising jurisdiction [M.G.L. 209B, sec. 7(a)(ii)] and (2). similarly, where Maine did not decline jurisdiction in Linnehan's case. A court of the commonwealth shall not exercise jurisdiction in any custody proceeding commenced during the pendency of a proceeding in a court of another state . . . unless the court of the other state shall decline jurisdiction. . . ."  M.G.L. 209B, sec. 2(a)(4)(d). They didn't.  Nevertheless, under either chapter, 209B or 119, the court was not relieved of its judicial responsibility to ensure that Linnehan had due process, to wit, that he had an opportunity to have an evidentiary hearing at which he could give evidence and cross-examine his accusers. That New Bedford did not afford him due process wrongfully deprived him of his parental rights, his liberty interest. E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999): A parent's liberty interest in [his] relationship with [his] child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998). Had New Bedford allowed an evidentiary hearing where Linnehan could have cross-examined his accusers, the court and others would have learned that Robyn was living with a man when the 51A was filed against Linnehan and that other men in the building had access to Linnehan's son.  And because the evidence was insufficient to support a 51A against him and led, in fact, to another person more likely to have perpetrated the abuse -- if, indeed, abuse was committed -- making it more than likely that Brown would never have been deprived of his parental right to have a relationship with his children, Charlotte and TJ. 3. Under Archambault and the Parental Kidnapping Prevention Act, DSS's role -- when Massachusetts was not the home state of the children, and could exercise only emergency jurisdiction pursuant to G.L. c. 209B, sec. 2(a)(3)(ii) -- was part of an unconstitutional collateral attack on both the lawful jurisdiction and the then-pending Maine-court orders permitting visitation by Brown and Linnehan, respectively, making sovereign immunity unavailable to DSS as a defense to any of the claims brought against it.  In Archambault v. Archambault, 407 Mass. 559, 562 (1990), the district court order was vacated when the Massachusetts Appeals Court held that the couple submit to the jurisdiction of the New Hampshire Court. The court ruled "that `[t]here [was] no present emergency'" [id. at 562-563] and that New Hampshire would be able to modify its custody order were it necessary. In fact, it was because of the Archambault case that the Massachusetts Legislature enacted section 11(b) of c. 209B, which "empower[ed] Massachusetts courts with the discretion to order persons in the Commonwealth to appear in custody proceedings which are being held in a court of another State." Id. at 563. Thus it can be concluded that DSS had no lawful authority to act, and therefore was acting ultra vires, making any kind of immunity unavailable to DSS as a defense. Florida Department of Set v. Treasure Salvors, Inc., 458 U.S. 670, 697, 102 S.Ct. 3304, 3321 (1982) (ultra vires exception applies when state officer acts `without any authority whatever'). New Hampshire Ins. Guar. Ass'n v. Markem Corp., 424 Mass. 344, 353 (1997) (same).3 3 Defendants John and Jane Smiths include state officers whose names are not yet known. It is believed that those names will be learned during discovery. Assuming arguendo that DSS's conduct was discretionary, the court must ask, is the discretion susceptible to policy-related judgments? Id., citing United States v. Gaubert, 499 U.S. 315, 322-323 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988), the seminal case in this area of law; and Irving v. United States, 162 F.3d 154, 162 (1st Cir. Dec. 18, 1998). . . . Congress intended to "protect only governmental actions and decisions based on considerations of public policy." Id. at 180, citing Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537).  Clearly a violation of the MCCJA or of the Parental Kidnapping Prevention Act is not a lawful policy and thus cannot be relied upon as providing a defense of immunity to DSS.  There can be little doubt that Congress' expressed interests of furthering comity between States, protecting the right to be free from the deprivation of liberty or property without due process of law, . . . and preventing harm to the welfare of children and their parents are "clear and substantial federal interests" within the United States Supreme Court's preemption analysis described above. . . . Archambault, 407 Mass. at 566. Continuing, The abundance of these cases, Congress found, when combined with the often inconsistent and conflicting laws of various States regarding jurisdiction over child custody disputes, resulted in "the failure of the courts of [various] jurisdictions to give full faith and credit to the judicial proceedings of ... other jurisdictions, the deprivation of rights of liberty and property without due process of law, burdens on commerce among ... jurisdictions and with foreign nations, and harm to the welfare of children and their parents and other custodians." Archambault, 407 Mass. at 566-567 (cite omitted).  After considerable extended discussion, the court in Archambault concluded that PKPA preempted the amended section 11(b) and that the probable cause hearing provided in 11(b) would "sufficiently injure the objectives of the federal program [PKPA]." Archambault, 407 Mass. at 567. It follows, therefore, by analogy to the axiom that the whole is equal to the sum of its parts, that if a probable-cause hearing was preempted by federal law, so would any role DSS would play in it . . . for where DSS conducted an investigation and its report was inserted into the probable-cause proceeding, Brown and Linnehan would have been entitled to cross-examine the DSS investigator assigned to their cases and rebut any adverse or erroneous materials. So, if the hearing would have been violation of federal law, so would DSS's acts have been. In such a scenario, the sovereign-immunity defense would not be available to DSS.4 At most, if the Brockton and New Bedford courts believed that the Brown and Linnehan children were at risk, the courts were free to express their concerns to the Maine courts which enjoyed jurisdiction over the children's custody. Archambault, at 570 n. 5, citing G.L. c. 209B, sec. 7(c) and Custody of Brandon, ante 1, 5 n. 3 (1990). 4 This appears to be a novel issue of law. With the help of a Westlaw reference attorney, two dozen queries, literally, were drafted and run in all the federal and state databases, and no cases were found either on point, near the point, or capable of being used for an analogy. The harm DSS wrought, by secreting the knowledge that the Brown children were living with a confessed child-sex-offender and that the Linnehan child was living amongst several men, and by transgressing from legal authority, is still being wrought and DSS or the Commonwealth must be accountable for that horrendous conduct and must provide a remedy for the wrong committed. So say Article 5 and Article 11 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts!  As the court in Morash, infra, said, the the doctrine of sovereign immunity is "logically indefensible."  4. As to Brown's and Linnehan's claims, the Commonwealth consented to suit by waiving its sovereign immunity completely in the 18th century in its constitution and some of it by statute (M.G.L. c. 258) in the 20th, making the defense of sovereign immunity unavailable to the Commonwealth and DSS as a defense to any of the claims brought against the entities. Defendants Brockton and DSS argue that Massachusetts has sovereign immunity and that consent to suit may only be obtained by explicit language in a statute or in its legislative history. Brown and Linnehan's contention is to the contrary. They contend that there are four explicit sources showing waiver or sources containing indicia of the intent to do away with sovereign immunity in the Commonwealth: (1) Article 5 of the Massachusetts' Declaration of Rights, (2) Article 11 of the Massachusetts' Declaration of Rights, (3) M.G.L. c. 258, (4) the judiciary as well as the legislature.       1. Article 5 of the Massachusetts Declaration of Rights tells us that the three branches of government must be accountable to the people:  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. That article was ratified on 16 June 1780, 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 v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), "created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), quoting Monaco v. Mississippi, 292 U.S. 313, 325 (1934).  Never has Massachusetts' Article 5 been repealed. Never has the impact of the Eleventh Amendment of the United States Constitution on Massachusetts' Article 5 been considered and determined by a Massachusetts court. Never has the word "accountable" as used in Article 5 been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. 810, (1983) was Article 5 cited.  Brown and Linnehan suggest that if an entity is held accountable for some wrongdoing, that entity must make restitution or compensate the victim or provide some equitable relief for the wrong -- the fundamental right to a remedy being clearly established in Article 11. Coupled, however, with the SJC's decision in Morris v. Massachusetts Maritime Academy, 409 Mass. 179 (1991) (waiving immunity to admiralty claims), it appears that the primary reason for the sovereign Massachusetts to retain immunity is solely to protect the State's coffers. Id. at 184-185.5 5 Plaintiffs suggest that where they contribute to the state's coffers, they are entitled to be compensated from the coffers for the wrongs committed by the Commonwealth and its subdivisions against them.  That purpose lends credence to the notion that Brown and Linnehan have a right to seek equitable relief under section 1983 and its state analog: the right to have contact and/or communicate with their children, which is the primary reason for this lawsuit. Com. v. Elm Medical Laboratories, Inc., 33 Mass.App.Ct. 71 (1992).           2. Article 11 of the Declaration of Rights, Part the First, of the Constitution of the Commonwealth of Massachusetts 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. . . .  There is no explicit exclusion of the Commonwealth in the article.           3. M.G.L. c. 258 contains the list of causes of actions explicitly excepted from the imagined sovereign immunity, already abrogated by Article 5. That list severely diminishes the sovereign immunity the Massachusetts constitution intends to allow the Commonwealth's citizens.  "At the time [the Massachusetts Tort Claims Act] was enacted [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. 810, 813 (1983).  In Irwin, the Massachusetts highest court reviewed in excruciating detail the history of the Tort Claims Act after two "significant decisions of of this court" [id. at 816]: Morash, in 1973, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977). "The Legislature had not yet acted. Therefore we announced in the Whitney decision our intention to abrogate the doctrine, retroactively to the date of our decision in Morash, should the Legislature fail to act by the conclusion of its 1978 session." Id.  "We think the conclusion is unmistakable that the Legislature, in enacting the Tort Claims Act, was responding to our Morash and Whitney decisions, and was not undertaking otherwise a substantive revision of G.L. c. 258." Irwin, at 817.  This conclusion is strengthened by the words of [the Tort Claims Act]: ". . . Nothing contained in this chapter shall be construed as limiting or restricting any liability with respect to claims not arising in tort to which the commonwealth may have been subject prior to the effective date of this chapter or to which the commonwealth would thereafter have been subject if this chapter had not been adopted."  Irwin, 388 Mass. at 817 n. 7. "It may be inferred that the purpose of the Legislature in enacting this amendment was to meet the difficulty presented by [our] decision"). Id. at 817. Given the explicit displeasure of Massachusetts' highest court with the "logically indefensible" sovereign immunity, it would not be, Brown and Linnehan contend, offensive to the Massachusetts' jurists if this court were to use its discretion to waive sovereign immunity for the Plaintiffs, Brown and Linnehan, in the instant case.  Perhaps even certification to the SJC would be appropriate. The suggested question: Is waiver of sovereign immunity appropriate as a remedy when a Massachusetts court circumvents the MCCJA? In practice, the problem has humungous proportions and is further exaggerated by spouses, immediately upon landing on Massachusetts soil, who make a beeline for to a district court for chapter 209A restraining orders or to the thousands of so-called therapists who inevitably upon request will file 51A abuse reports, very few of which are true. After all, if the reasons for using those judicial weapons were true, the fleeing spouses should have been able to procure them in the States from which they fled. Not included amongst the causes of action excepted from the waiver statute, M.G.L. c. 258, are civil rights actions. See, for example, Bain v. Springfield, 424 Mass. 758 (1997), where 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 to be liable for punitive damages. Id. at 762-763.            4. Contrary to what the movants here state, the consent of the Commonwealth to suit may be derived from the judiciary as well as from the legislature. Morash & Sons, Inc. v. Com., 363 Mass. 612, 615-616 (1973), but as the Massachusetts Supreme Judicial Court wrote, "the 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 v. Worcester, 373 Mass. 208, 212 (1977).  [W]e have no doubt as to our power to abrogate the doctrine of governmental immunity. We also have no doubt that the time for change is long overdue. Massachusetts is one of only five remaining States which retain the common law immunity at both the State and local levels. Forty-five States have modified and at least partly eliminated the defense of immunity in tort actions against municipal corporations. All except thirteen States have abolished or limited the defense in suits against the State. [Treatises omitted.] Should it become necessary for us to bring change by judicial action we will at that time embark on the task of restructuring our law of governmental tort liability to bring it into conformity with reason and sound public policy. Therefore, we think it a useful exercise for this court to state now the major principles which we intend to recognize if and when it becomes necessary for us so to restructure the common law.  . . . we 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. . . . "(C)learly, there should be limits to governmental liability and exceptions to the rule of liability, based upon considerations of justice and public policy.". . .  . . . the principles which we express in this opinion only suggest the balance of equities we think sound. We hope, of course, that the principles we stress here will aid the Legislature in its deliberations. Whitney, 373 Mass. at 212-213 (cites omitted).  5.Brown and Linnehan are entitled to equitable relief, if not entitled to money damages, under 42 U.S.C. 1983, and to money damages as to their other claims.  Assuming arguendo that Brown and Linnehan cannot sue the Brockton court (or the New Bedford court) or DSS for money damages, they are nevertheless entitled to seek equitable relief.6 6 From Plaintiff's perspective, were the Commonwealth and DSS to be deemed to have sovereign immunity available as a defense to their section 1983 claims, there would be caused a violation of that part of the First Amendment which provides Brown and Linnehan the right "to petition the Government for a redress of grievances," as well as a violation of the Fourteenth Amendment of the United States Constitution, which provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . ." Of course, M.G.L. c. 258 sec. 1 et seq., does just that to some of Brown's and Linnehan's claims. As recognized in Morris, 409 Mass. at 184-185, citing Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Eleventh Amendment may bar suits seeking retroactive monetary compensation, but does not bar suits seeking prospective monetary compensation. The rationale appears to be that if money has not already been allocated in the State coffers, it is unavailable to be used to provide a remedy, but money that can be allocated in the future allocations can be used to provide relief. See id. at 665, 94 S.Ct. at 1357. That court also suggested, If the State is to retain any sort of control over settled budgetary decisions, the Eleventh Amendment must do more than merely direct plaintiffs to a different tribunal in order to sue the State under Federal law.  Morris, 409 Mass. at 185. In Ingerson v. Pratt, No. 76-3255-S (D.Mass. Sept. 17, 1981), a section 1983 case, the U.S. District Court provided an equitable remedy to the plaintiffs. It enjoined the Massachusetts Department of Public Welfare, which had violated Federal law by requiring the deduction of Federal energy assistance benefits in computing entitlements to emergency assistance benefits, from continuing that practice . . . and although retroactive relief was not ordered because of the constraints imposed by the Eleventh Amendment, it did, however, also order the Commonwealth to pay the plaintiffs' attorney's fees. Crane v. Commissioner of Pub. Welfare, 400 Mass. 46, 48 (1987):  Asserting this court's "jurisdiction" not only under State law but under 42 U.S.C. s 1983, as well, the complaint alleges a wrong under Federal law requiring a monetary remedy. Whether the order the plaintiffs seek is deemed to be one for the retroactive payment of benefits, or for compensation in the form of money damages, is inconsequential. In either event, the plaintiffs assert a species of tort liability on account of the deprivation of their rights secured by Federal law. This, then, is an "action ... to enforce a provision of [s 1983]" within the meaning of s 1988, and it is no less so because it is also an action under State law. Crane [II], 400 Mass. at 49. In Crane I [Crane v. Commissioner of Pub. Welfare, 395 Mass. 435, 443-444 (1985)], the court held, the plaintiffs were entitled to retroactive benefits because of a department regulation that required the correction of underpayments resulting from "administrative error. . . . [W]e could as well have based our holding on s 1983. It is not unlikely that we would have done so, if, instead of first proceeding in the Federal court to obtain a declaration that the State welfare regulation was invalid, the plaintiffs had elected at the outset to proceed in the State court to obtain both that declaration and money damages. The plaintiffs should not be penalized by this court's decision to base its holding on State law rather than on s 1983. Crane [II], 400 Mass. at 49 (cite omitted). In sum, the Massachusetts highest court -- in case after case, too numerous to be included herein this pleading -- appears to be more concerned about setting limits on the Commonwealth's liability than it is about precluding suits in toto against the Commonwealth. And while many have stated, as did the court in ABCD, Inc. v. Commisioner of Public Welfare, 378 Mass. 327, 337 (1979), "The Eleventh Amendment bars money judgments against States for past failures to provide AFDC benefits," none of the 21 Massachusetts cases referring to that amendment has stated that the Eleventh Amendment bars claims seeking equitable relief.  6. Where with deliberate indifference, DSS deprived Brown and Linnehan of their fundamental and clearly established rights to due process and relationships with their children, sovereign immunity is not available to the movants as a defense.  The failure of the DSS caseworkers amongst Defendants Jane and John Smiths to inform Brown or the Brockton court about the Brown children living with Dell Smith had to be a result of deliberate indifference. For example, when Brown eventually did learn that Smith was a confessed child-sex-offender, he pursued the issue with the DSS caseworkers and they not only ignored his pleas for help, testimony also ignored that Dell Smith was on the DSS Central Registry. Estelle v. Gamble, 429 U.S. 97, 104-106, 97 S.Ct. 285, 291-92 (1976) (to state a claim for violation of Federal civil rights when a special relationship exists between the defendant and the victim, the conduct which forms the basis of that claim must amount to "deliberate indifference." In Superior Court, Justice James McHugh, in Minnehan v. Dept. of Social Services, 1999 WL 706653, (Mass.Super. Aug. 14, 1999) (No. 98-4687), wrote a remarkable or noteworthy description of a DSS investigative report, known as a 51B report. On the face of it, the DSS record appears to contain substantial evidence of the claims J.C. [the child] made. After all, J.C. apparently made those claims to his mother and then repeated them during the course of a SAIN interview. . . . [F]rom beginning to end, the DSS investigation was aimed at, and relied upon, information designed to "support" J.C.'s allegations and failed to explore or overlooked contrary information. The hearing was little better and, for information adverse to plaintiff, often relied on conclusory, sometimes totem-pole hearsay. Those problems were compounded by the regulatory allocation of the burden of proof. Brief exploration of each of those three areas reveals the problems this record presents. Minnehan, 1999 WL 706653 at 4. After a hair-curling description of the non-investigation, Judge McHugh continued with a lengthy analysis of the case. Some excerpts which show the "deliberate indifference" which is typical of DSS conduct follow:  . . . none of the detail related by Minnehan was explored in that discussion nor was there any indication that the investigator explored . . . the underlying details regarding the manner in which or the context in which J.C. had made his allegations. Likewise, there is no suggestion in the record anywhere that anyone attempted to contact Joan after speaking to Minnehan in order to determine whether she corroborated his account of the day's activities. These omissions appear on a record which, as stated, contains a history of J.C.'s "unsupported" allegations of physical abuse against an adult in response to the adult's efforts to "set limits" on J.C.'s behavior. . . . Id. at 8. In other words, because J.C. made the allegations and because a psychotherapist stated she believed the allegations without disclosing the basis for her belief and without disclosing why she apparently rejected claims J.C. had made regarding physical abuse by Joan's boyfriend and without disclosing whether she was aware that J.C.'s allegations, like those he had made against the boyfriend, had come on the heels of Minnehan's attempt to "set limits" for J.C. and although J.C. had been diagnosed as suffering from a behavioral disorder that included spiteful vindictiveness, see p. 12, supra, J.C.'s claims met "the low threshold of reasonable basis to believe" they were true and Minnehan failed to carry his burden of proving that they were not. Id. at 10. In the last analysis, this case illustrates the importance of the role played by the burden of proof. The regulatory threshold for DSS action is, as the hearing examiner correctly observed, low. For whatever reason, the DSS investigation in this case purported to achieve that low threshold by accentuating the inculpatory and overlooking or ignoring the exculpatory. The investigators accepted conclusory, judgmental information provided to them by others without pausing to consider the basis upon which those judgments rested or whether those who provided the judgments had access to all material facts on which to base a judgment. The hearing picked up where the investigators ended, once again accentuating the inculpatory and finding ways both to dismiss the exculpatory and to resolve all ambiguities against Minnehan. Particularly when the burden of proof is on the alleged perpetrator, an investigatory system simply cannot produce fair results if those conducting the investigation blind themselves to areas pointing away from guilt and create a record consisting of whatever is minimally necessary to support the conclusion they propose. An investigatory system cannot produce fair results if the post-investigation hearing simply builds on the investigation's skeletal outlines and accepts unthinkingly and uncritically the conclusory judgments supporting the investigators' proposed outcome. In the last analysis, it may well be that, for reasons this record amply illuminates, the due process clauses of the state and federal constitutions place on the DSS the burden of proving the correctness of their conclusions at the administrative level. Whether or not that is so, the Appeals Court has suggested that the concept of "substantial evidence" is sufficiently flexible to take account of the impact of the finding or judgment the evidence is offered to support. In Edward E. v. Department of Social Services, 42 Mass.App.Ct. 478, 487 (1997), the Court, in vacating a DSS judgment to list an individual in the Registry, stated as follows:  [W]e think the evidence upon which the department relied was so persistently encumbered by unreliability that it fails to have the character of substantiality which would support the department's decision to place the father's name on its registry of alleged perpetrators for a period of seventy-five years. Id. at 13-14. Of course, Judge McHugh then vacated the order entered by DSS, ordered Minnehan's name be stricken from the Registry, and ordered DSS to notify forthwith any person, public or private, to whom it had conveyed the DSS decision. Such was the experience of both Brown and Linnehan. Such is the experience of the over-90,000 persons per year reported as suspected abusers pursuant to M.G.L. c. 119, sec. 51A. Oliver, Edward G., "Committee Chair Is Troubled by DSS", Massachusetts News, December 1, 2000, reporting on the Governor's Blue Ribbon Commission report. There must be a remedy for parents torn from their children.  7. Where the Brockton and New Bedford courts deprived Brown and Linnehan of their fundamental and clearly established rights to due process and relationships with their children, sovereign immunity is not available as a defense. "The core of procedural due process is the adequacy of the hearing provided before a deprivation of liberty or property occurs." See Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976). Knowing that Brown and Linnehan were wrongfully denied an opportunity both to cross-examine the preparer of the subject reports and to rebut adverse or erroneous materials, the movants deprived Brown and Linnehan of their clearly established constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998). Aime v. Com., 414 Mass. 667, 683 (1993). E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999). That knowledge is sufficient to divest them of any immunity to which they may otherwise have been entitled. SeeBerthiaume v. Caron, Clark, Bivins, and O'Donohue, 142 F.3d 12, 15 (1st Cir. 1999), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (per curiam); Brown v. Ives, 129 F.3d 209, 211-12 (1st Cir. 1997), cert. denied, __ U.S. __, 66 U.S.L.W. 3531 (Mar. 23, 1998). See alsoRobichaud v. Ronan, 351 F.2d 533 (1965), reversing the immunity-based dismissal of the action against a county attorney and his deputy, on the grounds that it was inappropriate to protect the defendants if they deprived the plaintiff of her rights, privileges, or immunities secured by the Federal Constitution and laws. 8. Where DSS AND Brockton have neither sovereign nor qualified immunity, and immunity was the only basis upon which they claimed that Brown and Linnehan failed to state a claim upon for which relief could be granted, the Rule 12(b)(6) prong of their motion must fail. a. As to Brown's and Linnehan's claims pursuant to the Massachusetts Civil Rights Act (M.G.L. c. 12, sec. 11I). General Laws c. 12, sec. 11I provides a remedy coextensive with 42 U.S.C. sec. 1983. Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985). Unlike its Federal counterpart, the State statute does not require State action.  But "whereas Sec. 1983 provides relief for direct violations of one's rights, relief under Sec. 11I is available only where one's rights are interfered with or attempted to be interfered with by threats, intimidation, or coercion." Sena v. Com., 417 Mass. 250, 262 (1994). See Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D.C.Mass. 1983), in which the threats of third parties to the defendant orchestra satisfied this element of the cause of action. After a jury verdict on the question, however, the court ruled that "acquiescence, unaccompanied by conduct and intent, . . . [does not amount] to `threats, intimidation, or coercion.'" Redgrave v. Boston Symphony Orchestra, 602 F.Supp. 1189, 1192 (D.Mass.1985), vacated & remanded, 831 F.2d 339 (1st Cir.1987), reh'g en banc, 855 F.2d 888 (1st Cir.1988) (the MCRA does not provide a third-party pressure defense), cert. denied, 488 U.S. 1043, 109 S.Ct. 869 (1989).  Nevertheless, in Com. v. ELM Medical Laboratories, Inc., 33 Mass.App.Ct. 71, 79 (1992), quoting Batchelder v. Allied Stores Corp., 393 Mass. at 822; and Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987), it is written: "We recognize that the State Civil Rights Act, being remedial, `is entitled to liberal construction of its terms. . . . '" Brown and Linnehan makes claim to that liberal construction, for there is nothing more threatening, intimidating, or coercive than to be falsely accused of sexually abusing your children. b. As to Count 8, civil RICO.7 7 This count might have been properly entitled merely "conspiracy" to encompass both statutory (Secs, 1985(3), 1986, and RICO) and common-law conspiracies. Here, if any of the defendants are deemed to be state actors, then Secs. 1985(3) and 1986 would come into play.  In furtherance of their object, DSS caseworkers participated with some of the other defendants in two or more predicate acts against Brown and Linnehan. They communicated by telephone and letter their biased presumptions, their flawed and specious conclusions and opinions to each other, as well as to third parties not named in this action, that Brown and Linnehan had sexually abused their children. They suggestively and improperly questioned the children and rubber-stamped each other's decisions that Brown and Linnehan had sexually abused the children. The pattern was to receive income from future services which had been made mandatory when sexual abuse -- true or not -- was found. To DSS, there was always the potential of taking custody of the children and putting them out for adoption.8 A finding of sexual abuse means more court appointments and referrals by other local area, so-called mental health workers, who would recommend counseling or the continuation of counseling by their respective agencies for the children, counseling for the parents, batterer or anger-management programs, sex-offender programs, testing, multiple evaluations, repeated testing, and so on -- out of which has grown a multi-billion-dollar sex abuse industry.  8 "The Department of Social Services is using financial consultants who specialize in advising the state how to aggressively "maximize federal revenue." Oliver, Edward G., "DSS Follows The Money: Makes An Extra $90 Million Per Year -What's Best For The Child Is Secondary To More Federal Money," Massachusetts News, December 1, 2000. Reporting to the Blue Ribbon Committee, one spokesman for one of the three consulting firms, DSS uses, stated: "`A retained revenue account should be established to ensure that funds brought in through the revenue maximization effort are retained and used by DSS.' Andersen reported to the Commission that enhanced revenues held the potential of claiming up to $40 to $70 million extra dollars per year." The defendants agreed on the object or course of action. The opinions of competent collateral mental-health professionals, i.e., those who were not in the loop, were deliberately and intentionally ignored in Brown's and Linnehan's underlying cases.  As a result of the unlawful or otherwise wrongful pattern and conspiratorial practices, Brown and Linnehan were deprived of their relationships with their children and have suffered damages.    c. As to pendent state claims. "A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). "The Court explicitly held that this principle applied to pendent state-law claims." Torres v. Tourism Co., __ F.3d __ ((1st Cir. Apr. 6, 1999) (No. 98-1908), slip op. at 7-8. As to Counts 1 and 10. The two-year period during which Brown and Linnehan were to make presentment had passed before present counsel was retained. Therefore, under the presentment section of the Massachusetts Tort Claims Act, M.G.L. 258, sec. 4, neither plaintiff could bring against either DSS or Brockton any claims sounding in negligence. With that said, Plaintiffs nevertheless contend that when read together, Articles 5 and 11 of the Massachusetts Declaration of Rights of the Constitution of the Commonwealth of Massachusetts make sovereign immunity unconstitutional in Massachusetts under Massachusetts constitutional law.  Were that contended conclusion deemed to be true, Plaintiffs could include DSS and Brockton amongst the "Defendants" in the WHEREFORE clauses of Counts 1 and 10, the two negligence counts. Additionally, were the second sentence of section 1 of the Fourteenth Amendment of the United States Constitution to be absorbed into the mix -- which Plaintiffs contend it is -- the unconstitutionality of Massachusetts sovereign immunity may be reached through the United States Constitution . . . because the passage of a law imposing sovereign immunity is contrary to the Commonwealth's constitution . . . a document in which the colonists and Massachusetts founding fathers excluded sovereign immunity by including Article 5, which calls for accountability by all three branches of government and by including Article 11, which demands that a remedy be provided for every wrong. With sovereign immunity insulating the government from direct legal attack directly by the citizens of the Commonwealth, there is no direct accountability and often no remedy, results not intended by the drafters of the Commonwealth's Declaration of Rights.  Given those facts, the imposition of sovereign immunity by M.G.L. c. 258, i.e., the Massachusetts Tort Claims Act, makes that statute unconstitutional under both state or federal constitutional law. As to Counts 7 and 11.  If the sovereign immunity imposed by M.G.L. c. 258 is upheld, then DSS and Brockton might find that defense available to them. If not uphold, then Plaintiffs would continue to assert those pendent state claims. * * * WHEREFORE Linnehan prays that DSS's and the Brockton court's Motion for Judgment on the Pleadings be DENIED.

Respectfully submitted,                                             PLAINTIFFS,                                             By their attorney, 11 December 2000                   Barbara C. Johnson                                             Barbara C. Johnson, Esq.                                             6 Appletree Lane                                             Andover, MA 01810-4102                                             978-474-0833     CERTIFICATE OF SERVICE