#30, Drano Series
SJC Rule 27
Petition for Rehearing to
Massachusetts
Supreme Judicial Court*
2/14/01 -- The SJC's idea of a Valentine's Day gift: Throw the baby out with the rose water!
Drano #27 for large monitors
Drano #27 for small monitors
The issue addressed by this petition is whether Brian Meuse can get the relief he wants from Judge Manzi's court. The Massachusetts Supreme Court in their decision (at Drano #27) said that his SJC Rule 2:21 appeal did not show that he couldn't. Compare his Rule 2:21 brief at Drano #13 with the SJC decision at Drano #27 and see for yourself.
Then read the petition below. I've pulled all stops out.
NOTE: Seven copies but no fee is necessary to file this type of petition.
Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 FAX xxx-xxx-xxxx
barbaracjohnson@worldnet.att.net26 February 2001
The Honorable Justices
Supreme Judicial Court
1400 New Court House
Pemberton Square
Boston, MA 02108Re: Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27
Brian Meuse v. Susan Pane
C.A. No. SJC-08466 11 C.A. No. SJ-2000-0496
C.A. No. 2000-J-0635
Essex Probate & Family Court, Docket No. 99W-1466-PA-1
To the Honorable Justices:The petitioner has not met his burden under rule 2:21 (2), because he has not explained why he cannot adequately obtain relief from the custody order at issue, by seeking the prompt scheduling of the proceeding contemplated by the Probate and Family Court judge.So was written the decision in this Rule 2:21 case. Did I fail my client or did this Court overlook or misapprehend several issues? Did I not say that Susan Pane has not resided in this Commonwealth since she absconded with the child to Florida some time during October 1999? Did I not give the Court reason to believe that Susan Pane would take the child and forever stay out of reach of the Massachusetts courts once she got the chiild back? Perhaps I was not sufficiently clear and that this is the reason the Court appears to have overlooked or misapprehended the issues presented by Meuse's 2:21 brief ... the primary issue being why Meuse cannot adequately obtain relief from Judge Manzi's order referencing a contemplated proceeding.I thought that it was clear that were Meuse to deliver the child to Susan Pane, as Judge Manzi has ordered, before a trial were had on the custody matter, Pane would immediately disappear with the child. Were Meuse to do that, it is likely that he would never see the child again. It is also likely that the child would continue to be neglected by her mother as she has been in the past.
In this context, "the proceeding contemplated by the Probate and Family Court judge" -- promptly scheduled or not -- would not afford Brian Meuse adequate relief from the custody order at issue, for it cannot be expected that the proceeding would ever take place.
Meuse also cannot receive adequate relief because there have issued, so I have been led to believe while writing the appellate briefs, three state and federal warrants for his arrest. I did not refer to them in my 2:21 brief, because they are, as far as I know, not part of the record below, and I have had no personal knowledge of them. If they have become part of the record, I have not received notice of them.2 And because I have not seen any paperwork, I cannot state with any certainty the charges levied against him.
2 As I previously complained in earlier briefs, the file of the paternity action was being kept in Judge Manzi's care, not in the clerk's office in Salem, and has been inaccessible to me and to the public, so notice to me would have been essential had they ever become part of the record. That "keeping" by the lower-court judge is, in my humble opinion, unlawful.I have, however, heard of the warrants from four reporters: from the Eagle-Tribune, the Boston Herald, the WBZ-TV I-Team, and FOX 25 NEWS. The FOX reporter shared with me during this past week that the FBI requested the segment on the Meuse case so that it could have a backdrop for its pictures of Meuse and his daughter and for a number for the public to call. At that point, I began to believe that there were, indeed, likely warrants out for Meuse's arrest.Thus, were Meuse to try to take advantage of Judge Manzi's promise of a trial date, the situation would only be reversed: Meuse would be taken into custody upon his reappearance and the mother and child would disappear. 3
3 If custody were reversed, the criminal matters would likely be mooted.If I were to think otherwise, I would think myself naive.* * *
Given also that the Chief Justice recognizes that
the judicial branch is the one institution in the community that cannot afford to fail, and if human rights are to be nourished, the people must continue to have confidence in the courts, [29 M.L.W. 1272]this Court must give the people reason to have confidence. Given that Meuse took his child's health, safety, and well-being seriously enough to put his liberty on the line to save his daughter from harm, the highest court in our state must be willing to consider his infant's health, safety, and well-being serious enough to take the first step to earn that confidence. Such a step would go a long way toward convincing a listening public that its courts care.Writing that Meuse did not meet his burden under 2:21, the Court simply does not get out of the starting gate to win the public's confidence in its Court, particularly the confidence of the fathers in the Court's constituency.
Those fathers are being skewered daily by knee-jerk judicial responses to bogus 209As, 208 TROs, 208:30 removals, . . . and by child-support orders which defeat common sense and unlawful orders to pay thousands of dollars to guardians ad litem,4 whose biased recommendations are typically rubber-stamped by the divers benches.
4 General Laws c. 215, s. 56A, explicitly provides that the Commonwealth shall bear the cost of guardians ad litem, but Judge Irwin's Memo #14, still in effect under Judge Dunphy, judicially amends that explicit provision of the statute. In one case, the father was ordered to $26,255 to a G.A.L., and when after paying $6,000, and allegedly owed but could not pay the remaining $20,255, he was handcuffed and held in lockup. This is not the America I pledged allegiance to when in grade school in Newton Center, Massachusetts.Because there has been a pandemic of such decisions made with alacrity in recent years, there is not a fathers' group in the Commonwealth which is not watching the Meuse case. They watched Harry Stewart jailed for six months because he got out of his car to open a heavy, outside door for his five-year-old son who was struggling to open it. They mourned while watching the news about Steven Cook, who committed suicide after serving a jail term for having phoned his child on the wrong evening. They watched while Bill Leisk was sentenced to 30 days for buying an airline ticket for his 17-year-old daughter. Now they are watching Meuse being hunted because Judge Manzi egregiously gave explicit custody to the mother only after Meuse had taken the child to save her potential ability to walk.An occasional Custody of Zia case is insufficient as balm for their wounds. Tens of thousands of wounds. That's a whale of a lot of wounds needing a whale of a lot of balm . . . and a whale of a lot of accountability the courts are going to have to earn.
Ask yourselves, if the mother, the primary caregiver, of your son's child was a "suspected" prescription-drug abuser and the child at 14 months could not sit up on her own or crawl or pull herself up or hold a bottle or a spoon or a cracker, and the mother decided not to bring the child to the therapy prescribed after a medical examination, and the child made no improvement for months because she had not had that therapy, and then a judge refused to hear your son's story and give him custody so that he could ensure that the child got the requisite therapy to keep his daughter's muscles from atrophying, What would you do?
Could you really say that you would not support your son from doing what Meuse has done? Would you really tell him to give the child back to the mother so that the child could suffer more neglect? I believe that not one of you would do that to your grandchild. You would declare that the lower-court judge had made a terrible mistake and you'd give your son the same remedy which Meuse has come here to seek! Custody . . . until, at the very least, there were a full trial. And you'd be sure that there was a different judge presiding over that trial.
* * *
Just about now I feel as if I've been grasping at straws. I hope I have not been thought impertinent or cheeky or disrespectful, I apologize if I have been; it was not my intention. My goal has always been and shall continue to be to win the child a chance to have a healthy life.
Lest my bluntness, however, rebound against my client, I shall approach the subject from still another perspective.
* * *
Had Meuse been female, Judge Manzi's court would have, in May, ordered the child back to the Commonwealth after declaring that Massachusetts is the home state and that it would exercise jurisdiction . . . particularly where it was the mother who had absconded with the child to Florida in the first place. And if Susan Pane had been a male, she would have been brought back in shackles and the child, Marissa, would have been placed lovingly into Meuse's arms.
Had Meuse been female, Judge Manzi's court would have, on August 7th, allowed Meuse's emergency motion for temporary custody.5 At that time, Meuse had evidence both of Susan Pane's prescription-drug abuse (primarily narcotic-based) and of the child's dire medical condition: the year-old-child's muscles had developed only as much as a five-month-old's muscles. Circumstantially that evidence showed that the mother's consumption of narcotic drugs while breast-feeding coupled with continuing neglect caused the child's condition. If the judge deemed the evidence insufficient to prove the nexus between the child's condition and the mother's conduct, the judge had, nevertheless, sufficient evidence to risk erring on the side of caution and order the child back to Meuse. Had Meuse been female, it is likely the judge would have done that in a heartbeat.
5 For comparative purposes, Susan Pane's counsel FAXed a motion and notice of hearing to me only 10 minutes prior to the proposed hearing. I immediately phoned Assistant Register Ralph FInk, the courtroom clerk for Judge Manzi, and asked that the hearing be held at 2:30, for several attorneys were expecting my participation that morning in another case. The register denied my request and in the afternoon I received a FAXed order in Pane's favor. That motion had never even been filed in court.Had Meuse been female, several courts approached in September would have, during the week after Labor Day, heard Meuse's petition for a writ of habeas corpus. During that week, Susan Pane was not in Florida and was believed in transit with the child to parts unknown. The secretary of Pane's attorney had admitted this to Meuse's counsel, who had subpoenaed the secretary to court. Judge Manzi allowed the subpoena and consequently also the truth to be quashed.Not long afterwards, another Pane motion was FAXed to me. It was unaccompanied by a notice of hearing. Yet within an hour, I received by FAX another order from the court in favor of Pane.
Had Meuse been female, Manzi's court would have, on October 11th,6 heard Meuse's emergency motion7 when she heard Susan Pane's motion. Had Meuse been female, Judge Manzi would not have explicitly refused either to read the motion and memorandum or to hear argument solely because Meuse was not present in person. The primary evidence was certified medical records, which were sufficient for motion purposes.
6 October 11th was eleven days after Meuse took the child out of harm's way of the mother.Given Meuse's inability even to get Judge Manzi to come out of her courtroom in September to hear his habeas corpus petition or to hear his duly filed and served motion in October, the contrast of treatment by Judge Manzi is both startling and contrary to the rules of court and can be attributed, if not to outright judicial misconduct, then certainly to unlawful gender bias.7 Before he took the child, Meuse had learned that the mother had canceled all of the therapy sessions which stood between the child and atrophied muscles.
* * *
Given that it is clear (a) that Meuse's refusal to turn the child over to the mother has not been an intentional violation of a court order, but a refusal to sentence his child needlessly to life as a handicapped individual and (b) that Meuse was justified in the action he took, to wit, to remove the child out of harm's way and give her proper child care, something she was not receiving from her mother in Florida, it is appropriate that I suggest a resolution that could be mutually acceptable to the parties, to the Court, and to the public whose confidence in the courts is sought.
Therefore I suggest that temporary custody of the child be given to Meuse's parents, Meuse be allowed to address his responsibility as to any state or federal charges which have been brought (he has no personal knowledge of them yet), and when those issues have been dealt with, a date be scheduled for a full trial -- before a judge other than Judge Manzi -- on the issue of permanent custody.
Supervised visitation with the mother must be mandatory inasmuch as it is she who first absconded with the child, has independent means,8 and has chosen to remain unemployed (although she does have a profession, pharmacy technician) -- all of which give her the ability to move around the country freely
. . . and using pseudonyms, be hidden by the many women's shelters8 This is believed. Judge Manzi has chosen to not compel her to the deposition for which her counsel received a due notice.None of these objectives can be adequately obtained from the custody order at issue, or by seeking the prompt scheduling of the proceeding contemplated by the Probate and Family Court judge.Sincerely,
Barbara C. JohnsonCERTIFICATE OF SERVICE