Plaintiff John Smith’s  Supplemental Motion for Partial Reconsideration of Order  Allowing Summary Judgment of Officers Counterclaim for  Alleged Violation of Wiretap Statute M.G.L. c. 272, §99(Q) (in both .html and .pdf files)


 

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 01-CV-10890-RBC François Gouin, Jr. Plaintiff v. Dori C. Gouin, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, Paul F. Evans, Police Commissioner of Boston, Mass., in his official and individual capacities, John Does, Jane Doe, Defendants _____________________________________________   SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION  OF ORDER [#142] ALLOWING SUMMARY JUDGMENT OF  OFFICER TONER’S AND McMAHON’S COUNTERCLAIM  FOR ALLEGED VIOLATION OF M.G.L. C. 272, §99Q [sic]


 

Now comes François Gouin, Jr. ["Gouin"], and submits this supplement to his arguments in support of his motion for partial reconsideration of order [#142] allowing summary judgment of defendant officers’ counterclaim for alleged violation of M.G.L. c. 272, §99(Q). ARGUMENTS Where a charge of violating M.G.L. c. 272, § 99, was never brought against Gouin, §99(Q) is inapplicable. That is, absent a criminal action that has been adjudicated, §99(Q) cannot provide strict civil liability. It has elements to be proven. Where the facts of the case satisfy none of the elements of 99(Q), Toner and McMahon’s counterclaim in this action must fail. No criminal charge was brought, pursuant to M.G.L. c. 272, § 99(C), the charging provision, against Gouin for violating the wiretap statute. Thus there was no trial or any criminal disposition.      C. Offenses. 1. Interception, oral communications prohibited. Except as otherwise specifically provided in this section any person who— willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.     Figure 1. M.G.L. c. 272, § 99(C), the charging provision Had Gouin been tried and convicted, an argument could be made that strict civil liability would be available. The elements would have been satisfied. Absent, however, the criminal adjudication, §99(Q) is not available to provide strict civil liability. To not require the satisfaction of the elements is constitutionally unacceptable. This has been recently seen in Commonwealth v. Raymond, 54 Mass.App.Ct. 488, 766 N.E.2d 113, 117 (2002), which in reversing the judgment of conviction and setting aside the guilty verdict, demonstrates that the Commonwealth frowns upon strict criminal liability.\1/\2/ Strict liability is equally offensive to the constitutions in civil contexts. That section, 99(Q), which Toner and McMahon see now to invoke, has elements, elements that must be plead and be supported by the facts. Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999), quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985) ("All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous");\3/ United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Therefore, this court must "attempt to ascertain legislative intent first, as [it does] with all statutes, ‘from the words used.’" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942). Here Toner and McMahon did not plead any of the elements for §99(Q) that do appear in §99(C), the charging provision. Toner and McMahon also did not plead those elements that do not appear in §99(C), namely, "or whose personal or property interests or privacy were violated." The legislature would not have inserted those words into §99(Q) had it not intended those elements to be proven.  This entire issue as to whether §99(Q) provides strict civil liability with or without a prior criminal disposition appears to be a case of first impression. Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person—(1) actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher; (2) punitive damages; and (3) a reasonable attorney's fee and other litigation disbursements reasonably incurred. Good faith reliance on a warrant issued under this section shall constitute a complete defense to an action brought under this paragraph. M.G.L. c. 272, §99(Q), Civil remedy [emphasis supplied] Where Toner and McMahon had no personal interests in the events at Gouin’s condo, had no property interests in Gouin’s condo, and had no privacy interest [see infra] in anything that occurred there, the statute was not applicable. The tape-recording was not done in secret. And mere presence at the scene is not enough!  "[I]n the absence of personal injury or property damage," the officers cannot recover in tort and strict liability actions. Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 788 N.E.2d 522, 543 (2003), quoting FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395, 613 N.E.2d 902 (1993).  In Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 107, 533 N.E.2d 1350 (1989), the SJC wrote, in this State when economic loss is the only damage claimed, recovery is not allowed in tort-based strict liability (see Restatement [Second] of Torts § 402A [1965]) or in negligence. . . . In this respect Massachusetts joins the majority view in this country which is also the view favored by commentators. . . .  Bay State-Spray, 404 Mass. at 108, 533 N.E.2d at 1353-1354 (internal cites omitted), citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 868-869, 106 S.Ct. 2295, 2301-2302, 90 L.Ed.2d 865 (1986). Toner’s and McMahon’s counterclaim under §99(Q), in which they fail to plead any harm or damage whatsoever, economic or otherwise, must therefore fail. Where the elements of the cause of action provided by M.G.L. c, 272, §99(Q) are absent from the facts here, §99(Q) cannot be applied to circumstances in which the elements do not exist, and there is no claim for which relief may be granted. F.R.Civ.P. 12(b)(6). Element 1: An aggrieved person. If the counterclaim is not dismissed, Toner and McMahon must prove to a jury that they are aggrieved persons. Element 2-5: There was no unconsented-to interception or disclosed or used oral communications. The communications of Toner and McMahon were not "secretly intercepted."\4/ They have been disclosed only in legal pleadings and proceedings and such disclosure is authorized by §99. Toner and McMahon have not pled how the tape-recording was used except as permitted or authorized by §99.\5/ Every State, with the exception of Vermont, has some type of eavesdropping or wiretapping statute. The majority contain language that, to some degree, prohibits only the surreptitious recording of another's words when spoken with a reasonable expectation of privacy.  Com. v. Hyde, 434 Mass. 594, 599 n. 5, 750 N.E.2d 963, 977 n. 5 (2001). With Gouin and Todd Posey at the condo and Dori Gouin on the phone, neither Toner nor McMahon could have had a reasonable expectation of privacy.  Element 6: Applicability requires secrecy. Nothing done here was secretive: neither the taping nor the dissemination of copies of the tape or transcript to court or to opposing counsel. Confirmation of that truth is Toner and McMahon’s failure to plead that the recording was secret . . . for it began before Toner and McMahon arrived, before Gouin even knew that Toner and McMahon were going to arrive at the condo [Exh. D of Paper #89]. Specifically, Toner and McMahon averred in their Counterclaim and in their Local Rule 56.1 Statement of Facts  that they did not give express consent to Gouin to tape the conversations [LR 56.1 ¶22, 26; T&M’s Counterclaim ¶14], that the taping occurred "unbeknownst" to the officers, but it was, however, not secret because (1) Plaintiff was holding a tape recorder during the incident, and (2) Officer McMahon had seen the tape recorder but "thought that Plaintiff's tape recorder was a cell phone" [LR 56.1 ¶24 and ¶27; T&M’s Counterclaim ¶12], Clearly McMahon’s failure to discern the tape-recorder does not metamorphose into Gouin’s keeping the tape-recording secret. In fact, there is a genuine issue of material fact in that the officers claimed that Posey did not tell them about the recording but Posey himself was unsure whether he did or not. [See Gouin’s Local Rule Statement of Facts.] Element 7: Aggrieved person had to have personal, property, or privacy interest. Toner and McMahon neither identified nor had a personal, property, or privacy interest captured by the tape-recorder. Neither did Toner and McMahon identify what, if any, private and embarrassing facts were violated at Gouin’s condo on 5 January 2001. See discussion of privacy below. Where the elements are absent from the facts, §99(Q) does not apply.  Element 8: Unlike the First Amendment right to free speech, privacy is not a right explicitly guaranteed by the Constitution. Privacy law has, instead, developed over the last century. Four types of privacy invasion have emerged: (A) Public Disclosure of Private and Embarrassing Facts, (B) False Light, (C) Intrusion, and (D) Misappropriation. None of the four is applicable to the facts of this case. The four types are discussed in the original memorandum supporting Gouin’s motion for partial reconsideration. That discussion is incorporated herein by reference. The elements in the statute were intentionally put into it by a legislature for a purpose. They had to be proved before liability would attach. Strict civil liability is not provided. Toner’s and McMahon’s counterclaim must be dismissed. CONCLUSIONS Significantly, Gouin was using his recorder not to pose a danger to other citizens, but to protect his property interests that were being unlawfully usurped from him.\6/ And Toner and McMahon were not parties to an intercepted wire or oral communication. McMahon saw the recorder upon his arrival, but did not realize what he saw.  Significantly, the law-enforcement authorities – the police and the county DA -- did not see fit to charge Gouin criminally. If in criminal court, there was not enough evidence to bring a criminal charge of violating the wiretap statute, one must ask, therefore, not rhetorically, where is the evidence to bring a civil one?  Had Gouin been charged criminally with violating the wiretap statute, he would have been entitled to a jury trial. Had he been convicted, an argument could be made that strict civil liability would be available. Elements would have been satisfied. Absent, however, the criminal adjudication, §99(Q) is not available for strict civil liability. To deprive him a trial on the same charge in the civil context, where there are genuine issues of material facts, would constitute a clear deprivation of due process and equal protection of the laws. Cf. Com. v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001) (defendant was entitled to a jury trial), and Com. v. Wright, 61 Mass.App.Ct. 790, 792, 814 N.E.2d 741, 744 (2004) (whether there was a violation was given to the jury).  WHEREFORE, Gouin prays both that the decision on Toner and McMahon’s motion for summary judgment on their counterclaim under M.G.L. c. 272 ¶ 99 be reconsidered and denied.  E N D N O T E S [1] . . . To hold otherwise would incorporate into the statute a concept of strict liability, and there is no basis for believing that this was the Legislature's purpose. Id., 54 Mass.App.Ct. at 493, 766 N.E.2d at 117. . . . Instructing only that it was up to the jury to decide on all the evidence whether a violation had occurred at best left the jury without guidance as to what constituted a violation, and at worst invited the jury to apply a strict liability standard. This misstep was particularly inopportune here, given that the jury, through their questions, evinced confusion and concern over these very issues. Under the circumstances, the failure to explain the significance of an incidental or accidental contact was prejudicial error.  Id., 54 Mass.App.Ct. at 494, 766 N.E.2d at 117. [2] "[T]the absence of any mens rea as to the consent element transforms rape into a strict liability crime. It does not." Com. v. Lopez, 433 Mass. 722, 728, 745 N.E.2d 961, 966 (2001). [3] Com. v. Conaghan, 433 Mass. 105, 110 (2000) (statute to be interpreted according to plain and ordinary meaning of its words). Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) (language of statute is best indication of legislative intent). Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985) (statute must not be interpreted so as to render it or any portion of it meaningless).  [4] Com. v. Wright, 61 Mass.App.Ct. 790, 792, 814 N.E.2d 741, 743 (2004). (§99(B)(4) defines the term "interception" to include "to secretly record"). See also O'Sullivan v. Nynex Corp., 1996 WL 560274 *4 (Mass. Super. 1996), M.G.L. c. 272, §99(B)(4). [5] Of course, to outlaw in today’s society the use of tape-recorders except in circumstances where each and every person being recorded is aware that he or she is being recorded would require social change that would be tantamount to social upheaval. [6] Having been victimized by the mendacity of his estranged wife and her three counsel and other of her agents on numerous occasions – all documented – Gouin began carrying a recorder as his witness to expected and unexpected events.

Respectfully submitted, FRANÇOIS GOUIN, JR. By his attorney, /s/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net> Barbara C. Johnson, Esq. 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 6 February 2005