#47, Drano Series
UPDATE 8/17/2001 I filed the interlocutory appeal below in the Massachusetts Appeals Court on Wednesday, July 25th.
On, Friday, July 27th, Governor, Jane Swift nominated opposing counsel (the wife's attorney), E. Chouteau Merrill, to be a Probate & Family Court judge.
A hearing on this matter was held on Tuesday, August 7th, before the Single Justice, The Honorable James F. McHugh, III. We are awaiting his decision.
This is monstrous. My appeal on behalf of my client is based not only on constitutional grounds but also on facts which I believe are sufficient for our high court to find that Chouteau (pronounced "Shoo-toe") Merrill committed a fraud upon the court.
I have been in contact with the Governor's Councillors.
Please note that at all times, I have disguised or omitted Merrill's name from any files uploaded to this website, but upon receiving the news, I re-inserted her name into the file uploaded here. She has become a PUBLIC FIGURE.
Note: It is known from an interview she gave to Lawyers Weekly that she has children born prior to her embarking on her trip to become a lawyer. She is from New York and appears to have lived there prior to coming to Boston for Harvard Law School.
At a recent awards dinner sponsored by the Mass. chapter of the Academy of Matrimonial Lawyers, she was unescorted.
I learned today, 8/17/01, that Chouteau is getting a divorce from Mark L. Salwasser. She continues to live in Dedham, he, on Mission Hill in Roxbury. Does anyone know him????? Does anyone know the first husband? How many were inbetween???
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURTSUFFOLK, SS. A.C. NO. ________
POCAHONTAS, Plaintiff/Appellee
v.
JOHN SMITH, Defendant/Appellant
___________________________________________________________
PETITION FOR INTERLOCUTORY RELIEF
with Affidavit by Counsel for the DefendantThis petition arises out of an order entered into the docket of a Suffolk Probate & Family Court action, POCAHONTAS SMITH v. JOHN SMITH, No. _________, and is brought by JOHN SMITH ["SMITH"]. It is comprised of the four sections mandated by the Standing Order Concerning Petitions to the Single Justice pursuant to G.L. c. 231, sec. 118 (first paragraph).
1. REQUEST FOR INTERLOCUTORY REVIEW
The review currently sought is from the Order dated 26 June 2001 and denying SMITH's Motion for Relief from Stipulation or Order for Payment to G.A.L.1 and affirming that the parties share the costs of the guardian ad litem fees, in accordance with the court's Order of 29 March 2000 [A2], which arose out of the allowance of the wife's Motion for Appointment of Guardian ad litem [A1]. There, the wife also moved for the sharing of the fees by the parties. (SMITH was, at that time, represented by prior counsel.) The restitution is sought from the Commonwealth.
1Having been successor counsel for only a few weeks, and there being NO stipulation on the docket sheets, in the court file, or in the file transmitted from prior counsel, SMITH's counsel, for safety' sake, used in the motion title, on 14 February 2001, the words "Stipulation or Order" in case a stipulation showed up. A stipulation never did show up.While agreeing with SMITH that G.L. c. 215, s. 56A 2,3 sets out that the Commonwealth shall pay costs of a court-appointed G.A.L.,2the court provided multiple specious factual and legal bases for the denial of relief, e.g.:Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children and as to any matter involving domestic relations except those for the investigation of which provision is made by section sixteen of chapter two hundred and eight. Said guardian ad litem shall, before final judgment or decree in such proceeding, report in writing to the court the results of the investigation, and such report shall be open to inspection to all the parties in such proceeding or their attorneys. The compensation shall be fixed by the court and shall be paid by the commonwealth, together with any expense approved by the court, upon certificate by the judge to the state treasurer. The state police, local police and probation officers shall assist the guardian ad litem so appointed, upon his request.Massachusetts General Law, Chapter 215: Section 56A. Investigations.3 In her order of June 26th, the judge curiously referred [A9 n.1] also to Standing Order 2-98 [A12-15]. That Standing Order governs the tracking of appointments and has no language in it relating directly to fees.
(1) contrary to the lower court's assertion that SMITH stipulated to sharing payment, nothing in the record shows that he ever agreed to share in the G.A.L.'s fees, and the motion judge failed to point to the pleading or hearing from where she gleaned that fact;(2) the motion judge wrongly found and iterated seven times, implicitly and explicitly, in her Order that SMITH had agreed to share the costs; absent the sole hinge on which she supports her denial, her argument must fail in toto;
(3) relying on the missing agreement, the motion judge again wrongly concluded that SMITH held one position in one legal proceeding and a second position in a second proceeding [A9-11, Decision at 2-4];4
4 The one piece of evidence SMITH does not have is the tape and/or transcript of the hearing on 29 March 2000, the day on which the G.A.L. was appointed. That tape would support SMITH's position that he never agreed to share paying the costs of the G.A.L.'s services.(4) lacking the agreement to share, the motion judge then misapplied the equitable doctrine of judicial estoppel [A10, Decision at 3];
Given that SMITH has 30 days within which to file this appellate brief and that it has taken months to obtain the complete tapes of the recent proceedings and hearings, he has only his memory to rely upon for that proceeding.
His memory is that the proceeding was brief, no argument was heard on the G.A.L. motion, one other motion was discussed and decided, all other motions were continued to April 2d.(5) the motion judge also blamed SMITH's prior counsel for not requesting that the Commonwealth pay the G.A.L. fees (as the statute explicitly mandates) [A9, Decision at 2] and for not advancing that argument in the more than one year since the Court appointed the G.A.L. [A11, Decision at 4];5
5 SMITH contends that the judge should have applied the statute sua sponte.(6) the motion judge failed to consider that the G.A.L. sent new bills just prior to SMITH's motion being filed;(7) the court rejected SMITH's plea for fundamental fairness and justice because the authority he cited was a "probation" and not a divorce case; but "fairness is the concept underlying due process" [Com. v. McLaughlin, 431 Mass. 506, 515 (2000), citing Chalifoux v. Commissioner of Correction, 375 Mass. 424, 428 (1978)] and should, SMITH contends, play a role in every action regardless of type;
(8) the motion judge reasoned that "[h]ad the parties requested that fees be paid by the Commonwealth and the Court approved that position, then such payment would have been controlled pursuant to the language of G.L. c. 215, s. 56A." Even assuming arguendo that both parties had agreed to sharing the costs, the court nevertheless had an obligation to inform the parties that the statute provided otherwise;6
6 Counsel also had an obligation to inform the parties of the provisions of section 56A. SMITH's prior counsel did not so inform SMITH. The implication of that failure is beyond the scope of this brief. It is unknown whether the wife's counsel informed the wife, but the wife is a Harvard-Law-School graduate and is therefore presumed to know the law.(9) at no time did the court take responsibility for not complying with the statute, c. 215, s. 56A;(10) the misrepresentation by the motion judge of SMITH's position regarding the G.A.L.'s fees cannot support her application of the doctrine of judicial estoppel;
(11) there is nothing in the rules which prevented the motion judge from acting in a manner consistent with fundamental fairness and justice, even though the appointment and order asked to be reconsidered occurred a year ago. The judge had the authority to change her order in the interest of fundamental fairness and justice.
2. STATEMENT OF THE ISSUES1. Where the statute, G.L. c. 215, s. 56A, explicitly provides that the Commonwealth shall bear the cost of a guardian ad litem and where one party did not consent to paying them, it was unlawful for the motion judge to order the parties to share in the cost of the fees.
a. Where G.L. c. 215, s. 56A, provides that the Commonwealth shall bear the cost of a guardian ad litem, by ordering SMITH, as one of the parties, to share in those costs, both the CJAM and the motion judge violated Articles 10, 20, and 30 of Amendment, Declaration of Rights, Constitution of the Commonwealth of Massachusetts and the Fourteenth Amendment of the Constitution of the United States.i. Whether CJAM Irwin had the power to write an internal memo which "rewrote" G.L. c. 215, sec. 56A, or to violate that section, in order to administrate the judicial branch of government more efficiently;ii. Whether the motion judge's repeated false statement in her order about there being a stipulation to share in the costs of the guardian ad litem's services was fabricated to justify violating G.L. c. 215, sec. 56A.
2. Where SMITH never agreed to share the costs of the G.A.L.'s services, the doctrine of "judicial estoppel" is inapplicable.3. The judge erred by ruling that she could not change her order in the interest of justice: There is not only nothing in the rules which prevented her from acting in a manner consistent with fundamental fairness and justice, she was obliged under the state and federal constitutions to be fundamentally fair.
FACTS
1. Chief Justice of Administration and Management for the Trial Court of Massachusetts, John J. Irwin, Jr. ["Judge Irwin"] issued Memo #14 on 28 February 1997 [A17].
2. Although Judge Irwin is now retired, the order is still in effect. Judge Barbara Dortch-Okara is currently the Chief Justice of Administration and Management of the Trial Court of Massachusetts ["CJAM"].
3. Sean Dunphy is currently Chief Justice of the Probate & Family Court.
4. Judge Irwin caused Memo #14 to be distributed to (a) the Chief Justices of the Trial Court, (b) the First Justices of the Trial Court, (c) the Clerk/Magistrates of the Trial Court, (d) the Recorder of the Land Court, (e) the Registers of Probate, (f) the Commissioner of Probation, and (g) the Jury Commissioner.
5. Judge Irwin's Memo #14 stated, "In recent years there has been a dramatic increase in the Trial Court's guardian and guardian ad litem expenses." In his letter of 28 July 1997 to Lawyers Weekly [25 M.L.W. 2504], he wrote, "In Fiscal Year 1995, there was a 35 percent increase in the cost of those services over the amount expended in the previous year" [A15].
6. In Memo #14, Judge Irwin wrote, "staff members of the Administrative Office of the Trial Court (AOTC) and departmental administrative offices [ ] reviewed the guardian and guardian ad litem billings to ensure that there are adequate procedures in place to control these expenses" [A17].
7. The ostensible purpose of Judge Irwin's memo was "to outline [the] new billing procedures" [A17].
8. The real purpose was to relieve the strain on the Commonwealth's coffers [A20, page 4 of Memo #14].
9. Memo #14 called for guardians and guardians ad litem appointed pursuant to G.L. c. 215, s. 56A, as in this case, to be compensated by the Commonwealth at a rate of $30.00 per hour [A18, p. 2 of Memo #14].
10. Memo #14 outlined expenses for which the guardians and guardians ad litem could not charge the Commonwealth [A18-19, pp. 2-3 of Memo #14]..
11. Memo #14 set out the procedures for payment to which the guardians the guardians ad litem were to adhere in order to receive payment by the Commonwealth [A19-20, pp. 3-4 of Memo #14].
12. Memo #14 ordered each guardian or guardian ad litem to submit a form on which they must fully describe the work performed [A19, p. 3 of Memo #14].
13. Memo #14 set out an example for the guardian or guardian ad litem: if the service involved a telephone call, a description of who was called and what was discussed [A19, p. 3 of Memo #14].
14. Memo #14 ordered each Trial Court Justice who appointed the guardian or guardian ad litem to review the form submitted by the guardian or guardian ad litem and "if the work performed is satisfactory and in accordance with [Memo #14]," to sign the submitted form [A19, p. 3 of Memo #14].
15. Memo #14 instructed each court to: "examine the financial ability of the parties to pay for all or a portion of the fees of the guardian or guardian ad litem appointed to the case and, to the extent of their financial ability, the parties shall be notified by the court of its intention to assess the cost of the service of the guardian or guardian ad litem against either or both of them. However, if the guardian or guardian ad litem performs services on behalf of the court, the guardian or guardian ad litem shall be compensated by the court, not by parties to a case or out of an estate" [A20, p. 4 of Memo #14].
16. Memo #14 does not define which of the so-called services of a guardian or guardian ad litem are on behalf of the court.
17. Judge Irwin instructed the recipients of Memo #14 to violate G.L. c. 215, s. 56A.
18. The Trial Court's and/or Judge Irwin's plan was designed to circumvent the problem of how to deal with G.L. c. 215, s. 56A, specifically, the explicit provision requiring the Commonwealth to pay for the services of the guardians or guardians ad litem appointed under it.
19. On 13 December 1999, POCAHONTAS filed a Complaint for Divorce against her husband, the Defendant/Appellant, JOHN SMITH, Jr., and it was entered into the docket of Suffolk Probate & Family Court as No. 99D-2583-DV1.
20. The wife, POCAHONTAS SMITH, filed an unassented-to motion on 22 February 2000 for the appointment of a guardian ad litem and for the parties to share the G.A.L.'s fees [A1].
21. Although the wife's motion mentions the disagreement of the parties regarding caretaking, SMITH's prior counsel did not file a written opposition to the motion appointment.
22. At the proceeding on 29 March 2000, at which argument was to be heard on that motion, no evidence was taken and the wife's motion was taken under advisement.
23. On 29 March 2000, Nancy M. Gould, in allowing the wife's motion, ordered the appointment, pursuant to G.L. c. 215, s. 56A, of a guardian ad litem ["G.A.L."] for the minor children and the sharing of the payment of the G.A.L.'s fees by the parties [A2].
24. In the reference of appointment, the court ordered the G.A.L. to investigate "custody and visitation" issues in the afore-mentioned action and ordered the parties to share equally the cost of the G.A.L. [A3].
25. In the Order of 29 March 2000, there is no mention of the rate at which the G.A.L. would charge the parties [A2].
26. The guardian ad litem appointed to the SMITHs' divorce action charged the parties at a rate of $175.00 per hour [A3a].
27. At this writing, the parties have paid the entity for which the guardian ad litem worked $10,886.70.7
7 SMITH's counsel is awaiting from the wife's counsel an accurate and up-dated accounting and copies of the fronts and backs of checks evidencing expenditures made from the escrow account of marital funds that she is holding.28. SMITH's prior counsel did not file an interlocutory appeal.29. Judge Gould failed to assess the financial ability of JOHN SMITH to bear the costs of the G.A.L.'s services
30. Judge Gould failed to procure SMITH's consent to bear the costs of the G.A.L.'s services prior to or after assessing costs upon him.
31. Judge Gould failed to review, as required by Standing Order 2-98 [A12], the services alleged to have been performed by the guardian ad litem.
32. Judge Gould failed to assess, as required by Standing Order 2-98 [A12], the value or nonvalue of the the services alleged to have been performed by the guardian ad litem.
33. The guardian ad litem appointed by Judge Gould in the SMITH divorce case performed no services on behalf of SMITH.
34. The guardian ad litem appointed by Judge Gould in the SMITH divorce case was incompetent and biased.
35. It is not known by SMITH whether the guardian ad litem followed the Probate & Family Court Standing Order 2-98, which keeps track of guardians ad litem and their services.8
8 ___________ Hospital, ______________ (consultation, teaching, and research unit within the hospital's Department of Psychiatry), and the _______ division of the ____________ unit -- the three entities for which the G.A.L. performs services -- have been unresponsive to requests by SMITH's counsel, so SMITH does not have a copy of the form the G.A.L. is required to file in accordance with Standing Order 2-98.
ARGUMENTS1. Where the statute, G.L. c. 215, s. 56A, explicitly provides that the Commonwealth shall bear the cost of a guardian ad litem and where one party did not consent to paying them, it was unlawful for the motion judge to order the parties to share in the cost of the fees.
"A statute is to be interpreted according to the plain and ordinary meaning of its words." Com. v. Conaghan, 433 Mass. 105, 110 (2000). The language of a statute is the best indication of legislative intent. Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) A statute must not be interpreted so as to render it or any portion of it meaningless. Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985). Therefore, the 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). To determine the intent of the legislature, the reviewing court looks to both language and purposes of an act. Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985).9
9See also United States v. Ven-Fuel, 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."It is clear from the last line of the statute [see note 2] that the legislature believed that the guardians ad litem were acting on behalf of the court and that therefore the Commonwealth should bear the cost. It is less clear that the legislature was thinking about the rates that the guardians ad litem were charging. If, however, the legislature were aware of the difference between the rates which Judge Irwin set out for the Commonwealth to pay and the rates which guardians ad litem are charging the parties -- $30 and $50 per hour if the Commonwealth is paying for the services10 and $175 per hour, as in the SMITH case, for private parties -- the likelihood is nil that the legislature would shift the cost burden onto the general population. Writing such a shift into an amendment would be politically unattractive.10 It was reported on 21 March 2000 in the Times, Boston Bureau, that in the year 2000, there were 6000 cases using guardians ad litem. Given that the story said the G.A.L.s were paid between $30 and $50 per hour for approximately 20 hours, the 6000 cases can be presumed to have been state-paid cases. The total the state paid was roughly $4 million [A15]. Were 6000 parties to pay, the cost for G.A.L.s for 20 hours' service would have been closer to $21 million. In reality, when the parties are paying, the judges do not limit the number of hours or the hourly rate. The G.A.L. on the SMITH case has charged $175 per hour and has received $10,886.70 to date. She has been reappointed, but on her own, she has updated her report although the reappointment was not renewed. The bills have continued. And she is incompetent as well as biased. Of 275 cases, she recommended visitation or custody for the males only 8 times.Clearly, the state coffers were being plagued by the rapid increase of guardian ad litem fees, as evidenced by Judge Irwin's written statement that "[i]n Fiscal Year 1995, the costs for G.A.L. services were 35 percent greater than they had been in the previous fiscal year. Judge Irwin's problem was, then, how to get money from Peter and Pansy, the parties, to pay Gertie the G.A.L. instead of reaching into a fast-emptying till. The financial ability of the parties was critical but got only passing attention [A20, p. 4 of Memo #14].Memo #14 also does not recommend to the Trial Court justices to get the consent of the parties to pay the G.A.L. fees. In fact, the memo is silent about it.
Moreover, Judge Irwin had no lawful excuse to indulge in judicial legislation . . . even if the 03 account of the Probate Court lacked or would in the future lack available funds to pay the guardian ad litem. The judge had "to explore other budgetary sources for payment." Guardianship of a Mentally Ill Person, 397 Mass. 93, 99 (1986) (reversing the order requiring the ward to pay the guardian ad litem fee but expressing "no view as to the circumstances under which petitioners may be required to pay").
Where the motion judge was following the unconstitutional order in Memo #14, she unlawfully burdened SMITH with costs which the statute mandates the Commonwealth bear. Given also that the other judicial recipients of that memo follow the instructions in that memo every day in the courts across the Commonwealth,11 such public interest is created that justice requires a final determination by the full Supreme Judicial Court.
11 And that they have done. One, a Joseph Dunbar, when he balked at paying $19,000 over and above the approximately $7,000 he had already paid, was hand-cuffed on Judge Dilday's order and put into a holding cell. Reality set in that justice was nowhere in sight, so he pulled out his checkbook.Memo #14 remains in effect under the new CJAM.
He has a tape of the session where Judge McGovern evidently sought his consent to pay the fees. He maintains that his first question was, What is a guardian ad litem? After that, I've been told, the First Justice said it would cost only a few thousand dollars. A far cry from the eventual $26,000.
a. Where G.L. c. 215, s. 56A, provides that the Commonwealth shall bear the cost of a guardian ad litem, by ordering SMITH, as one of the parties, to share in those costs, both the CJAM and the motion judge violated Articles 10, 20, and 30, Declaration of Rights, Constitution of the Commonwealth and the Fourteenth Amendment of the Constitution of the United States.In ordering the justices to circumvent G.L. c. 215, s. 56A, Judge Irwin acted in a nonadjudicatory fashion and was, in effect, rewriting the statute, such that he thereby suspended the law and usurped a legislative function in violation of the constitutionally guaranteed separation of powers. Arts. 20 and 30, Declaration of Rights, Constitution of the Commonwealth of Massachusetts. Compare Gray v. Commissioner of Revenue, 422 Mass. 666 (1996) ("While parties and judges may be presumed to know what statutes apply to a given court order, the same cannot be said of administrative interpretations of those statutes. Such interpretations, whether in the form of regulations, directives, or guidelines, lack the legal force of statutes").i. Whether CJAM Irwin had the power to write an internal memo which "rewrote" G.L. c. 215, sec. 56A, or to violate that section, in order to administrate the judicial branch of government more efficiently;In Vaccaro v. Vaccaro, 425 Mass. 153, 159 n.7 (1997) (citing Gray, supra at 672, and Brach v. Chief Justice of the District Court Department, 386 Mass. 528, 535 (1982) (violation of art. 30 held), the Court wrote, "Inherent powers involve the internal functioning of the judiciary [ ] and are only implicated when the lack of a statutorily authorized power impairs the function of the court or threatens the maintenance of its authority.12
12In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 23 (1st Cir. 1982) (justices had administrative responsibilities with respect to statute).By so acting in a nonadjudicatory fashion, did Judge Irwin cause the less-than-watertight compartment of the judiciary, of which this Court spoke in Opinion of the Justices to the Senate, 372 Mass. 883, 891-894 (1977), to spring a ship-sinking leak?1313Cf. Shell Oil v. City of Revere, 383 Mass. 682, 688 (1981) ("But even if a law is found wanting at trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests with the people."), quoting AFL v. American Sash & Door Co., 335 U.S. 538, 553 (1949) (Frankfurter, J., concurring).In that Opinion, 372 Mass. at 891-894, this Court made a valiant attempt to define not only the extent of the inherent authority of the judiciary but the extent of the permissible ancillary functions of the judiciary, such as internal rulemaking and administration, . . . but the opinion stopped short of declaring that the judiciary had the power to rewrite statutes or to violate them if necessary to administrate the judicial branch of government more efficiently.In O'Coin's, Inc. v. Treasurer of Worcester County, 362 Mass. 507, 510 (1972), to which the Court in the latter case referred, this Court held "that among the inherent powers possessed by every judge is the power to protect his court from impairment resulting from inadequate facilities or a lack of supplies or supporting personnel." If there had not been a prior appropriation or no appropriation, "a judge may, even in the absence of a clearly applicable statute, obtain the required goods or services by appropriate means, including arranging himself for their purchase and ordering the responsible executive official to make payment." Id. at 510.
Because O'Coin's was decided when the county was responsible for paying G.A.L. fees,14 the Court's solution was to have the Commonwealth foot the bill. By the time Judge Irwin wanted to decrease the outflow of cash for G.A.L.s, the Commonwealth was already footing the bill for them, so there was no lawful solution available. I.e., there was no other till to open.
14 In 1979, section 56A was amended to make the Commonwealth, not the county, responsible for paying G.A.L. fees.So the question remains: Given arts. 10, 20, and 30, did CJAM Irwin have the power to write an internal memo which, in essence, "rewrote" G.L. c. 215, sec. 56A, or to violate that section, in order to administrate the judicial branch of government more efficiently? This appears to be a question of first impression.If Judge Irwin's orders to the Trial Court justices were unlawful, then Judge Gould's order to the parties to pay the G.A.L.'s fees was also unlawful and reversible error. This is where an analogy to the Principles of the Nuremberg Tribunal (1950) [A21] comes into play, in particular, Principle IV:
Principle IV The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.The doctrine of respondeat superior was inapplicable at Nuremberg. It is inapplicable here also. Significance: If a moral choice was possible to Judge Gould, she had to take it. That moral choice was to obey the existing statute and have the Commonwealth bear the costs of the G.A.L.'s fees. If the Nuremberg Principles apply to member states of the United Nations, why should they not apply also to the Commonwealth of Massachusetts?SMITH contends both that art. 30 of our Declaration of Rights and the Fourteenth Amendment to the United States Constitution apply and make Judge Irwin's orders in Memo #14 unconstitutional under the state and federal constitutions.
In Opinion of the Justices, 365 Mass. 639, 642 (1974), (bill would violate constitutional article providing for the separation of legislative, executive, and judicial branches of government), the justices wrote:
The laudable motives of the authors [ ], the promotion of economy and efficiency in government, often dictate cooperation among the coordinate branches. Such efforts must, however, take place within the limitations of art. 30, which was not lightly adopted, and must be complied with.Id. at 642.Therefore the separation of powers, guaranteed by our Declaration of Rights, prevails over the power used by Judge Irwin, regardless of how it is characterized, whether administrative or legislative, or whether it was to enable the judiciary to fulfill its functions more efficiently than it could have without the revision.
The bottom line, SMITH contends, is that the change had nothing to do with efficiency, it had to do with money . . . not only because of the upsurge in our society in the number of domestic relations disputes -- whether in or absent marriage -- but also because of the need at that time for courthouse renovation or construction or for salaries of those in the judicial branch of government. No consideration was given to the horrendous financial burden for the G.A.L. fees shifted from the Commonwealth onto the unsuspecting parties, who sadly remained uninformed by the court as well as by their counsel, who, like the wife's counsel, failed to stand up for the rights of their clients. [A6-7, 4/26/01 transcript pp. 249-250.]
ii. Whether the motion judge's repeated false statement in her order about there being a stipulation to share in the costs of the G.A.L.'s services was fabricated to justify violating G.L. c. 215, sec. 56A.Judge Gould needed some excuse as to why she would not comply with G.L. c. 215, sec. 56A. The only excuse available was to find that SMITH had stipulated to sharing the costs of the G.A.L.'s services. The problem was: SMITH did not sign a stipulation. So history had to be rewritten.At oral argument, SMITH's counsel took in good faith the wife's counsel's representation [A6, 4/26/01, page 249, lines 16-22] that the parties signed a stipulation as to the appointment of the G.A.L. as well as to the sharing of the costs. Therefore, although she had not ever seen the stipulation, SMITH's counsel told the court that there "appears" to be a stipulation [A7, 4/26/01, page 252, lines 15-16].
The judge replied, "There is a stipulation" [A7, 4/26/01, page 252, line 18]. Given (1) that the judge, at an earlier hearing, had mistakenly stated that an order existed giving the exclusive use and possession of the marital home to the wife, (2) that the judge had been corrected by wife's counsel [4/24/01], and (3) that two days later, the judge corrected her "misunderstanding,"15 SMITH's counsel was willing to believe, albeit with some reservation, that there was such a stipulation. But a copy of it continued to evade her.
15 The judge corrected her earlier assertion that she had issued a "specific order": "There was never a specific order under the divorce." [A7a, 4/26/01, page 201-202].
And while writing this brief, SMITH's counsel checked repeatedly with the wife's counsel and her assistant. In lieu of a copy of the now-mythical stipulation, the assistant of the wife's counsel FAXed still another copy of the wife's unassented-to motion and the 3/29/00 Temporary Order, and later the wife's counsel admitted that she has not found it yet. With that latest communication, SMITH's counsel has reasonably concluded that there never was a stipulation and that this appeal might never have been necessary had the wife's counsel not committed what appears to constitute a fraud upon the court.As a result of the apparent fraud by someone who had previously brought the court's earlier error to the court's attention, the motion judge failed to check (1) before she wrote her June 26th Order whether there was such a stipulation in the court file and (2) before she repeatedly wrote in the Order that there was such a stipulation when, indeed, there was not.
While SMITH's counsel believes that section 56A should be followed with or without a stipulation, she concedes that there is an argument to be made that if a stipulation exists, section 56A can be ignored . . . but only if the client has been informed of the import of the section by court or counsel. Absent the alleged stipulation, however, section 56A cannot be ignored. "[P]arties and judges may be presumed to know what statutes apply to a given court order." Gray v. Commissioner of Revenue, 422 Mass. 666, 677 (1996). Cf. Shell Oil v. City of Revere, 383 Mass. 682, 687 (1981), quoting Com. v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring): "`[I]t [is] the judge's duty . . . to give effect to the will of the people as expressed in the statute by their representative body. It is in this way . . . that the doctrine of separation of powers is given meaning.'"
2. Where SMITH never agreed to share the costs for the G.A.L.'s
services, the doctrine of "judicial estoppel" is inapplicable.The motion judge wrote explicitly and impliedly no fewer than seven times that SMITH agreed to paying the guardian ad litem's fees. There is no written record of such agreement. Therefore the doctrine of "judicial estoppel" is inapplicable.
Even if we assume arguendo that there was a stipulation, it would be void ab initio on the grounds that it was not signed voluntarily, knowingly, or intelligently.
If the stipulation was void ab initio, then there was nothing for the judge to approve, and the statute should have been followed. Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 399 Mass. 640, 646 (1987) ("statute expressly authorizes the unconditional payment provisions which HMLP challenges").
Even assuming arguendo that SMITH consented to pay, where neither the court nor SMITH's prior counsel explained to him that the statute required the Commonwealth to pay the G.A.L. fees, SMITH would not have given that assumed consent to waive section 56A voluntarily, knowingly, and intelligently. Whether the absence of consent is sufficient to overcome a stipulation -- because of undue influence by court or counsel -- appears to be a question of first impression.
3. The judge erred by ruling that she could not change her order in the interest of justice: There is not only nothing in the rules which prevented her from acting in a manner consistent with fundamental fairness and justice, she was obliged under the state and federal constitutions to be fundamentally fair.
The judge rejected SMITH's plea for fundamental fairness because his counsel cited a case dealing with probation rather than divorce. This was reversible error.
"[F]airness is the concept underlying due process" [Com. v. McLaughlin, 431 Mass. 506, 515 (2000), citing Chalifoux v. Commissioner of Correction, 375 Mass. 424, 428 (1978)] and should, SMITH contends, play a role in every action regardless of type.
"[F]airness is the touchstone of due process and to hold [defendant] liable to new obligations would offend fundamental fairness." St. Germaine v. Prendergast, 416 Mass. 698, 704 (1993). See also White v. White, 40 Mass.App.Ct. 132, 141-142 (1996).
Fairness is considered even when there is a statutory scheme: "When viewed in light of the statutory scheme [ ] this disposition conforms with "considerations of fairness and a proper sense of justice" and avoids the potential for violation of due process and equal protection principles." McLaughlin, 431 Mass. at 520, quoting Chalifoux, 375 Mass. at 427.
"[F]undamental fairness and due process concerns require opportunity for parent in child custody proceedings to rebut adverse allegations concerning his or her child-rearing capabilities." In re Ian, 46 Mass.App.Ct. 615, 619 (1999), citing Duro v. Duro. 392 Mass. 574, 580 (1984).
From time to time, the touchstone has been pulled out from under cases. For example, in Frizado v. Frizado, 420 Mass. 592, 596-597 n. 3 (1995), this Court declared that the constitutional right to confront witnesses and to cross-examine them set forth in art. 12 of the Declaration of Rights has no application to a G.L. c. 209A proceeding because the proceeding is civil, and not criminal, in nature.
In Adoption of Mary, 414 Mass. 705, 710 (1993), due process was appropriate in a family-issue case. And in Adoption of Quentin, 424 Mass. 882, 892 (1997), the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights applied.
The Court's vacillation about whether due process and fundamental fairness apply to all facets of any Probate & Family Court case is contrary to state and federal constitutional law.
3. STATEMENT OF THE SPECIFIC RELIEF REQUESTED
SMITH seeks not only the reversal of the order commanding him to share in the costs of the G.A.L. but also an order declaring that the statute contains no exceptions and that restitution from the Commonwealth be made to SMITH personally of the money expended from the marital assets escrow account for G.A.L. fees: to wit, ten thousand eight hundred eighty-six dollars and seventy cents ($10,886.70) plus interest and attorney's fees for this appeal.
4. A COPY OF THE ORDER OF THE TRIAL COURT
The copy of the order by Probate & Family Court is attached to the petition as part of the addendum [A8].
24 July 2001 Barbara C. Johnson, Esq.Respectfully submitted,
DEFENDANT JOHN SMITH,
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
508-474-0833
B.B.O. #549972
AFFIDAVIT BY BARBARA C. JOHNSON
I hereby swear and say that all statements and actions I attribute to myself saying and doing are true, and all documents in the appendix have been kept in the ordinary course of business.
Signed under the pains and penalties of perjury.
25 July 2001 Barbara C. Johnson
CERTIFICATE OF SERVICE
I, Barbara C. Johnson, counsel for JOHN SMITH, hereby certify that on 25 July 2001 I served by first-class mail a true and accurate copy of the within pleading on , E.Chouteau Merrill, Esq., _____ ; Clerk of Suffolk County Probate & Family Court, 24 New Chardon Street, P.O. Box 9667, Boston, MA 02108; and Attorney General, Administrative Law Division, One Ashburton Place, Room 2019, Boston, MA 02108.
25 July 2001 Barbara C. Johnson
ADDENDUM
1. POCAHONTAS'S MOTION FOR APPOINTMENT OF
GUARDIAN AD LITEM, dated 22 February 2000 . . . . . . . . . . . . . . . . . . . . 12. Order dated 29 March 2000 by Judge Nancy M. Gould . . . . . . . . . . . . 2
3. Appointment of Guardian ad litem, 29 March 2000 . . . . . . . . . . . . . . . . 3
4. Letter dated 7 April 2000 from the YYYYY,
Office Manager for __________________ Service,
_____________________ Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . 3a5. SMITH's MOTION FOR RELIEF FROM STIPULATION OR ORDER
FOR PAYMENT TO G.A.L., filed on 20 February 2001 . . . . . . . . . . . . 46. Transcript pages 249-253, that portion of the hearing
on 26 April 2001 which includes the argument by the
wife's counsel (E.Chouteau Merrill) and SMITH's
counsel on SMITH's motion for relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 67. Transcript pages 201-202, that portion of the hearing
on 26 April 2001 which includes the argument by the
wife's counsel (E.Chouteau Merrill ) and SMITH's
counsel on SMITH's motion for relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7a8. Order dated 26 June 2001 by Judge Nancy M. Gould
(order being appealed from) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89. Letter dated 19 July 2001 from wife's counsel E.Chouteau Merrill
to SMITH's counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11a10. Standing Order 2-98, effective 1 October 1998,
27 M.L.W. 158, 28 September 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211. "CJAM Responds to Concerns About Guardians",
25 M.L.W. 2504, 28 July 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1512. CJAM John J. Irwin, Jr.'s Memo #14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13. Principles of the Nuremberg Tribunal, 1950 . . . . . . . . . . . . . . . . . . . . . 21