#57, Drano Series
Complaint Against Judges, the Family Court, the Trial Court,
and the Commonwealth*
This complaint was served on all the defendants except retired Judge Irwin on Thursday, 4 October 2001.
A week later, Chief Justice of the Supreme Judicial Court of Massachusetts, gave a speech cautioning
that judges should follow the law.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTSCIVIL ACTION NO.
_____________________________________
John Smith, Jr.
Plaintiff
v.The Honorable Nancy M. Gould, in her
judicial and individual capacities,
The Honorable Sean Dunphy, in his
judicial and individual capacities,
The Honorable John J. Irwin, Jr., in
his individual and former judicial
(CJAM) capacities
The Honorable Barbara A. Dortch-Okara,
in her individual and judicial
(CJAM) capacities11 Although Judge Dortch-Okara is sued in her individual as well as judicial capacity, plaintiff does not seek money damages from her. She is being sued in her individual capacity solely to satisfy various common law requirements, in counsel's perception, under section 1983.Trial Court of the Commonwealth of
of Massachusetts
Commonwealth of Massachusetts,
Defendants
_____________________________________
COMPLAINT AND JURY DEMAND ON ALL COUNTS
(Plaintiff incorporates by reference the attached exhibits
with the same force and effect as if herein set forth)INTRODUCTION
This action arose initially out of (a) the intentional judicial violation at the Trial and Probate & Family Court levels of that explicit provision of Massachusetts General Law chapter 215, section 56A ["215:56A"], which states that the Commonwealth shall bear the cost of the fees of the guardians ad litem appointed under that section, (b) the intentional judicial violation at Probate & Family Court level of M.G.L. c. 208, sec. 30 ["208:30"], and (c) the intentional judicial violation at the Probate & Family Court level of M.G.L. c. 209B, sec. 5(a) ["209B:5(a)"]. The Commonwealth is the primary entity or the enterprise benefitting financially in multiple ways by the defendants violating Plaintiff Smith's constitutional rights to due process and equal protection.
Specifically complained-of in this action are: (a) the unconstitutionality of 215:56A,2
2 The unconstitutionality arises out of the statute, 215:56A, allowing sitting justices to abrogate their judicial responsibilies by delegating them to untrained persons who are required to have no relevant credentials or knowledge and who work to no standards [A29-39 and par. 44, infra].(b) the appointment of a guardian ad litem ["GAL"], (c) the Trial Court's Memo #14, dated 28 February 1997, instructing sitting justices to violate 215:56A by shifting the burden of paying the fees of the GALs from the Commonwealth to the parties, (d) the continuing violation of 215:56A by Judge Nancy M. Gould, who neither followed the Trial Court's instructions in Memo #14 (to assess the parties' ability to pay) nor complied with 215:56A, and ordered the parties to share the cost of the GAL's fees, (e) the violation of the child-removal statute, 208:30, by allowing the removal of the children without Smith's consent or a showing of just cause, (f) the violation of the Massachusetts Child Custody Jurisdiction Act ["MCCJA"] by allowing the removal of the Smith children to XXXX without a hearing at which he would have the opportunity to cross-examine the GAL who recommended the removal ultra vires and to rebut any materials adverse to him which she might have had, and (g) the failures of Judge Sean M. Dunphy to train Judge Gould, to enhance her performance as a sitting justice, to protect and prevent injury to the Plaintiff, and to take corrective action.The causes of action brought are (1) declaratory judgment re the constitutionality of Massachusetts G.L. c. 215, sec. 56A, (2) violation of 42 U.S.C. sec. 1983 (due process and equal protection clauses), (3) violation of 42 U.S.C. sec. 1985(3) (conspiracy), (4) violation of 42 U.S.C. sec. 1983 (deprivation of parental rights by violation M.G.L. c. 208, sec. 30), (5) violation of 42 U.S.C. sec. 1983 (deprivation of parental rights by violation of MCCJA), (6) violation of 42 U.S.C. sec. 1986 (refusing or neglecting to train and to protect and prevent the wrongs conspired to be done), (7) civil RICO, (8) common law conspiracy, (9) violation of G.L. c. 215, sec. 56A, (10) violation of G.L. c. 208, sec. 30, (11) violation of G.L. c. 209B, sec. 5(a), (12) account annexed (sum-certain debt of Commonwealth to Smith), (13) intentional infliction of emotional distress, and (14) reserved for negligence claim.
JURISDICTION
1. Jurisdiction of this court arises under 28 U.S.C. secs. 1331, 1337, 1343(a), and 1367(a); 42 U.S.C. secs. 1983 (civil action for deprivation of rights), 1985(3) (conspiracy to interfere with civil rights), 1986 (neglect to prevent), 1988 (proceedings in vindication of civil rights); 18 U.S.C. 1341; 18 U.S.C. 1511 (obstructing enforcement of state law); and 18 U.S.C. 1961 (and statutes cited therein) through 1968 (RICO).
2. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
PARTIES
3. Your Plaintiff, John Smith, Jr. ["Smith"], who resides at 00 Pretty Street, Boston, Suffolk County, Massachusetts, was the appellant in Pocahontas Smith v. John Smith, Jr., entered into the docket as Civil Action Number 01-J-425 in the single justice session of the Appeals Court (McHugh, J.) and is the defendant husband and father in Pocahontas Smith v. John Smith, Jr., entered as Docket Number 99D-0000-DV1 in the Suffolk County Division of the Probate & Family Court Department of the Trial Court of the Commonwealth of Massachusetts.
4. Defendant Nancy M. Gould ["Judge Gould"] at all relevant times was (1) an employee of the Commonwealth of Massachusetts, (2) a sitting justice in the Suffolk County Probate & Family Court, which is a division of a department of the trial court of the Commmonwealth of Massachusetts, (3) a person who improperly conducted the affairs of the Commonwealth of Massachusetts, and (4) accountable to Smith, his family, and the people of the Commonwealth.3
3Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . . . provides that officers [including judges] of government `are at all times accountable to [the people].'"5. Defendant Sean M. Dunphy ["Judge Dunphy"] at all relevant times was (1) an employee of the Commonwealth of Massachusetts, (2) the Chief Justice of the Probate & Family Court Department of the Trial Court of the Commmonwealth of Massachusetts (since November 1997), (3) the supervisor of Defendant Judge Gould and all other Probate & Family Court justices, (4) the officer charged with the financial and budgetary responsibility for the Probate & Family Court department, whose employees' actions have given rise to the plaintiff's claims, (5) a person who improperly conducted the affairs of the Commonwealth of Massachusetts, and (6) accountable to Smith, his family, and the people of the Commonwealth:
(a) Under M.G.L. c. 211B, sec. 10, Judge Dunphy's powers and duties as a chief justice include, but are not limited to, "the power to require any justice [ ] in his department to participate in a judicial enhancement program in response to any action of such justice which brings the judiciary into disrepute, which lowers the public confidence in the judiciary or which impedes the administration of justice"), and 6. Defendant John J. Irwin, Jr. ["Judge Irwin"] was, prior to his retirement on 30 September 1998, (1) an employee of the Commonwealth of Massachusetts, (2) the Chief Justice of Administration and Management of the Trial Court of the Commmonwealth of Massachusetts, (3) the supervisor of all justices in the Trial Court, (4) the officer charged with the over-all financial and budgetary responsibility for judicial departments whose employees' actions have given rise to the plaintiff's claims, (5) a person who improperly conducted the affairs of the Commonwealth, and (6) accountable to the people of the Commonwealth.(b) under M.G.L. c. 211B, sec. 17, Judge Dunphy is empowered to operate and maintain court facilities, do long-range planning, and make capital budget requests for such facilities.
7. Defendant Barbara A. Dortch-Okara ["Judge Dortch-Okara"] is (1) an employee of the Commonwealth of Massachusetts, (2) the successor to Judge Irwin, (3) the Chief Justice of Administration and Management of the Trial Court of the Commmonwealth, (4) the supervisor of all justices in the Trial Court, (5) the officer charged with the over-all financial and budgetary responsibility for judicial departments whose employees' actions have given rise to the plaintiff's claims, (6) a person who improperly conducted the affairs of the Commonwealth, and (7) accountable to Smith, his family, and the people of the Commonwealth.
8. Defendant Trial Court of the Commmonwealth of Massachusetts was (1) an entity which is part of the judicial branch of government, (2) under the Massachusetts Tort Claims Act, the "public employer" of the defendant judges herein named, and (3) at all relevant times accountable to Smith, his family, and the people of the Commonwealth. The Trial Court was also (4) an entity which benefitted financially indirectly from both (a) the scheme for all the judges to order parties to bear the costs the Commonwealth was to pay in accordance with the statute and (b) the scheme to lessen the need for more judges by delegating judicial functions to persons unqualified to perform them.
9. Defendant Commonwealth of Massachusetts was the primary entity which benefitted financially from both the scheme for all the judges to order parties to bear the costs the Commonwealth was to pay in accordance with the statute and the scheme to lessen the need for more judges by delegating judicial functions to persons unqualified to perform them.
10. Judges Irwin was until he retired from the judiciary and Dortch-Okara, Dunphy, and Gould have been at all relevant times herein agents for the Commonwealth.
FACTS
11. The underlying case out of which the issue of GAL fees arose is Pocahontas C. Smith v. John Smith, Jr., an action for divorce entered into the docket of Suffolk County Probate & Family Court as Number 99D-0000-DV1 on 13 December 1999.
12. Massachusetts G.L. c. 215, sec. 56A [A3], which explicitly provides that the Commonwealth shall bear the cost of a GAL, was originally adopted in 1923, and has been amended numerous times since that date.4
4 As of July 1979, the consolidation of the several courts of trial jurisdiction made the expenses provided for in this section payable by the Commonwealth, rather than the individual counties.13. Uniform Probate Court Practice XXXII(D) ["UPCP"] was adopted, and became effective on 1 January 1988 [A6].14. On 28 February 1997, Judge Irwin published Trial Court Memo #14 [A12]. The content of Memo #14 is substantially the same as the UPCP XXXII(D).
15. Probate Court Standing Order 2-98 was adopted on 22 September 1998, and became effective on 1 October 1998 [A18].
16. On 22 February 2000,, Smith's wife, Pocahontas Smith ["Pocahontas"], filed an unassented-to motion for the appointment of a GAL and for the parties to share the GAL's fees [A22].
17. Smith's prior counsel neither opposed nor objected to the wife's motion at the proceeding before Judge Gould on 29 March 2000, when the wife's counsel's argument was heard.5
5 March 29th, 2000, was only the second time Smith was in a courtroom for a case in which he was involved. The first time was on 27 December 1999 for a hearing pursuant to M.G.L. c. 209A. He had no knowledge of court procedures or of the significance of his counsel's failure to object to or oppose the wife's motion.18. Nothing was explained to Smith about the statute ["215:56A"] by his counsel or by the court [A113ff., transcript of 29 March 2000]. However, since (a) Smith obeyed the order to turn over approximately $43,000 in cash to wife's counsel (for alleged safekeeping in an escrow account) [A21], (b) he was minimally employed part-time,6 and (c) the parties' counsel, Smith's wife, and Judge Gould knew that he had no funds to pay a GAL's fees, Smith did not comprehend that what was being argued in court on 29 March 2000 applied to him.7 [A113ff.]6 Because Pocahontas was a Harvard-Law-School-educated attorney and had a greater earnings potential than Smith had, the couple had chosen to let her be the breadwinner and let him be the primary caregiver to their twin sons, to wit, be the house-husband.19. Smith neither waived his right under 215:56A to have the Commonwealth bear the cost of the court-appointed GAL8 nor personally gave his consent to waiving that statute nor agreed by oral or written stipulation to pay the GAL's fees.7 On 7 August 2001, when the parties were before Appeals Court Justice McHugh, he suggested that Smith may have a claim against Smith's prior counsel for his failure to object to the wife's motion [A73, see transcript p. 10].
8 Assuming arguendo that Smith had representation by prior counsel which was tantamount to no representation at all, and that the failure to object to the wife's motion was deemed a stipulation, "the stipulation could be discharged as [improvident] and `not conducive to justice.'" Crittenton Hastings House of the Florence Crittenton League v. Board of Appeal of Boston, 25 Mass.App.Ct. 704, 712 (1988), quoting Woods v. State Bd. of Parole, 351 Mass. 556, 560 (1967). Atlantic Pipe Corp. v. R.J. Longo Const. Co., 35 Mass.App.Ct. 459, 465-466 (1993) (judge has power to `vacate a stipulation made by the parties if it is deemed improvident or not conducive to justice'"), quoting Crittenton, 25 Mass.App.Ct. at 712, quoting Loring v. Mercier, 318 Mass. 599, 601 (1945).20. On 29 March 2000, Judge Gould allowed the wife's motion [A22], appointed a GAL [A23], and ordered that the parties share paying the GAL's fees [A24].9See Vittands v. Sudduth, 41 Mass.App.Ct. 515, 516 n. 4 (1996), cert. denied 424 Mass. 1103 (1996), citing to Shearer v. Jewett 31 Mass. (14 Pick.) 232, 236 (1833), Symmes Arlington Hosp., Inc. v. Arlington, 292 Mass. 162, 165 (1935) (stipulation led to result contrary to that which would have been achieved had the statute been followed), Lincoln Elec. Co. v. Sovrensky, 305 Mass. 476, 479 (1940) (stipulation based on untrue fact must be vacated). See also City of Waltham v. City of Newton, 306 Mass. 59, 63-64 (1940) (stipulations vacated where defendant could not waive provisions of statutory scheme). "[P]arties cannot waive a court's lack of jurisdiction." Jamgochian v. Dierker, 425 Mass. 565, 569 (1997).
The absence of any evidence that Smith intended to pay or share in the costs of the GAL is a material fact making the discharge or vacation of the so-called stipulation appropriate. Cf. Dominick v. Dominick, 18 Mass.App.Ct. 85, 89 (1984), cert. denied 392 Mass. 1103 (1984), and cases cited, holdining that a detailed oral marital separation agreement read into the record, with the parties' express intention of reducing the agreement to writing and signing it, was, despite never being reduced to writing and signed, binding upon the resumption of the divorce trial following suspension for negotiations.
9 Smith's prior counsel did not file an interlocutory appeal.21. In the Order of 29 March 2000, there is no mention of the rate at which the GAL would charge the parties [A24].22. The GAL appointed to the Smiths' divorce action charged the parties at a rate of $175.00 per hour [A25, A76].
23. The Trial Court's Memo #14 set out the rate of $30 per hour for GALs appointed under 215:56A [A12].
24. Judge Dunphy publically suggested that the GAL rate, which is now $35-50, should be higher and that 20 hours should be maximum number of hours of service allowed.10
10 Following the publication of the Report of the Senate Committee on Post Audit and Oversight (Senate, No. 1828), dated 20 March 2001 [A29], Judge Dunphy's alleged statement was reported by the Worcester Telegram and Cape Cod Times.25. At this writing, the parties have paid, at a rate of $175 per hour, an amount totaling $10,886.70 or $10,854.12 [A105].1111 The wife's counsel's records as trustee add to the former figure. The GAL's accounting office records show the latter figure.26. Judge Gould failed:
(a) to assess Smith's financial ability to bear the GAL's fees prior to assessing costs upon him;12 27. The GAL appointed by Judge Gould in the Smith divorce case performed no services on behalf of Smith.
12 Even under the complained-of Uniform Probate Court Practice XXXII(D), adopted effective 1 January 1988, and Memo #14, dated 28 February 1997, Judge Gould was required to assess the financial ability to pay the fees.
(b) to give notice to the parties of the Court's intention to assess the GAL's fees against either or both of them;13
13 Both Practice XXXII(D) and the Memo also require notification to the parties by the Court of its intention to assess the cost of the GAL's services against either or both of them(c) to procure Smith's consent to bear the GAL's fees prior to or after assessing costs upon him;
(d) to review, as required by Probate & Family Court Standing Order 2-98 [A18], the services alleged to have been performed by the GAL;14
14 Standing Order 2-98 of the Probate & Family Court is entitled, "Tracking of appointments of guardians ad litem and probation officers to conduct investigations in domestic relations and child welfare matters." (e) to assess, as required by Standing Order 2-98 [A18], the value or nonvalue of the the services alleged to have been performed by the GAL;
(f) "to give effect to the will of the people as expressed in the statute by their representative body."15
15 Shell Oil Company v. City of Revere, 383 Mass. 682, 687 (1981), quoting Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring). "`It is in this way ... that the doctrine of separation of powers is given meaning.'" Id. See also Shell Oil, 383 Mass. at 687, quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977) ("undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature"). See also Arthur D. Little, Inc. v. Comm'r of Health and Hospitals of Cambridge, 395 Mass. 535 (1985). Com. v. Lammi, 386 Mass. 299, 300 (1982); Com. v. Leno, 415 Mass. 835, 841 (1993). Smith contends, therefore, that Uniform Probate Court Practice XXXII(D) is unconstitutional, and that under Shell Oil, Practice XXXII(D) would be void. It follows that any judicial action taken to nullify any part of the plain meaning of a statute would be reversible error, and any judicial order in accordance with either Practice XXXII(D) or Justice Irwin's Memo #14, or in violation of G.L. c. 215, sec. 56A, would be voidable, if not void.
28. On 2 August 2000, the GAL filed her report with a Deputy Assistant Register and served it on the wife's counsel.
29. The GAL did not serve her report on Smith's prior counsel.
30. On 8 August 2000, without hearing and without any written findings of fact or conclusions of law, Judge Gould issued an order allowing removal [A26].
31. Judge Gould wrote no findings, no conclusions of law, and was silent as to whether cause was shown.
32. After Judge Gould had allowed the removal motion, the wife filed a motion to allow the children to be enrolled in school in XXXX.
33. On 9 August 2000, Judge Gould endorsed her allowance on that "XXXX school" motion. Again Judge Gould acted without making any independent findings of fact and conclusions of law.
34. On 25 August 2000, almost three weeks after the children were allowed to be removed to XXXX and enrolled in school there, Smith's prior counsel was allowed to cross-examine the guardian for only ten minutes [A107] and was denied the opportunity to rebut any materials adverse to Smith's interest or present any materials in Smith's defense [A108].
35. After the hearing on 25 August 2000, Judge Gould issued an order which was almost virtually identical to that which she issued on 8 August 2000.36. Judge Gould wrote no findings of fact and no conclusions of law in support of the 25 August 2000 order.
37. The GAL appointed by Judge Gould in the Smith divorce case was incompetent and biased.
38. Smith's prior counsel withdrew and successor counsel filed her appearance on or around 2 January 2001.
39. On or around 9 January 2001, Smith caused a deposition subpoena to be served on the court-appointed GAL.
40. The GAL refused to appear for deposition unless Smith paid $175 per estimated hour in advance for her services.
41. On or around 15 February 2001, Smith filed a Motion for Relief from Stipulation or Order for Payment to GAL, by which he sought restitution of the GAL fees paid.16
16 At that time, new on the case, Smith's counsel did not know whether there was an order or a court-approved stipulation to the payment of the GAL's fees. Since then, she learned that there was no stipulation, despite repeated misrepresentations by the counsel of Smith's wife.42. On or around 15 February 2001, Smith filed a Motion to Enforce Subpoena and Compel Nonparty Witness [the GAL] to Appear at Deposition.43. Judge Gould has refused to hear Smith's motion to compel the GAL to deposition.
MASS. SENATE POST-AUDIT AND OVERSIGHT COMMITTEE REPORT [A29-43]
44. The 20 March 2001 Massachusetts Senate Post-Audit and Oversight Committee reported:
(a) "Massachusetts does not ensure that GALs are properly trained to make critical decisions" [A31, A37], PROBATE & FAMILY COURT STANDING ORDER 2-98 [A18](b) "no standards exist for how GALs should conduct their investigations or report their findings to the court" [A31],
(c) "[t]he GAL system in Massachusetts does not effectively incorporate the standards of the Presumption of Custody Law" [A31, 38],
(d) "[t]here is no widely understood process regarding how to file a complaint concerning a Guardian ad litem" [A31, 38],
(e) "[t]he criteria to become a GAL in the Probate and Family Court are minimal, such as having sufficient malpractice insurance17 and being in good standing with the GAL's licensing board for their underlying profession" [A31-32],
17 So long as judicial immunity was being bestowed on the GALs, the risk of having to pay a malpractice claim was also minimal, so coverage for malpractice or errors and omissions could also be minimal. (f) "there is no structure in place to ensure that GALs entering the system from various professional backgrounds receive training in areas with which they are not familiar, but will encounter in their capacity as a GAL"18 [A32],
18 Not only is licensure not required, neither are credentials nor is knowledge in social work, psychology, or psychiatry required. Adoption of Arthur, 34 Mass.App.Ct. 914, 916 (1993), review den. 415 Mass. 1101. (g) "there are no guidelines describing who a GAL should interview or what questions the GAL should ask in orderto make an accurate assessment of the custody situation" [A33-34],
(h) "[t]his lack of standards can create problems with the fairness and accuracy of a GAL's assessment" [A33],
(i) "[t]he lack of standards for the reports can create serious due process concerns for the people involved in a case and jeopardize the soundness of the eventual custody decision" [A34],
(j) "without a consistent standard for what a report should include, it is difficult to evaluate the quality of a GAL's work" [A34],
(k) "the court does not maintain adequate data documenting the total number of cases involving GALs or complaints about GALs" [A34],
(l) "[w]ithout such documentation, there is no way to adequately evaluate the quality of a GAL's work or the effectiveness of the GAL system" [A34].
45. Senate Report #1828 Committee picked up the following from Probate & Family Court Standing Order 2-98 and assumed judges were complying with that order: "When a GAL is appointed, the judge outlines when the report is due, how many hours the GAL should work on the case, and what issues the GAL is to investigate" [A31].
46. Judge Gould failed to comply with Standing Order 2-98, by not outlining when the GAL report was due or the number of hours the GAL should work.
47. On or around 28 March 2001, Smith caused a witness subpoena to be served on the GAL, commanding her to appear in court on 2 April 2001 and to bring with her those books, papers, documents, and/or tangible things set out in the margin.19
19 Any and all records, papers, and/or documents in your custody, control, or possession, relating to the Smith family, specifically, to Smith, his wife, and their minor children.48. On 2 April 2001, the GAL appeared in court but refused to allow Smith's counsel to inspect the subpoenaed books, papers, documents, and/or tangible things set out in the margin although she waited in court for a period during which Smith's counsel could have inspected the materials.Her curriculum vitae and/or resume_', any publications, including articles, reviews, chapters, papers, books, written by her; her scheduling calendar for the period beginning with the appointment in the case and ending on the day she began testifying; her timesheets, logs and/or diaries; her personal notes related to the case; the bills submitted for payment to any entity for her work on the case; any tape-recordings, videotapes, photographs, drawings, and diaries prepared by any or all members of the Smith family.
49. At the 2 and 3 April 2001 hearings, Judge Gould did not allow Smith's counsel to fully cross-examine the GAL on her two reports.
50. On 2 April 2001, Judge Gould did not afford Smith's counsel more than 10 minutes to inspect a foot-high file [A55a].
51. Judge Gould admitted the second report from the GAL for services done on an ultra vires subject, that is, a subject outside the scope of her second appointment.
52. The GAL then charged Smith for 6.75 hours, which included the considerable waiting time she had on those days [A93 (bill to Smith); see also A96, bill to Smith's wife].
53. The billing by the entity on whose behalf the GAL performed did not comport with any billing or invoicing or accounting standards [A74-106]. Had Judge Gould reviewed the bills as both Judge Irwin's Memo #14 and Standing Order 2-98 required, the bills would or should have been rejected as not meeting the requirements of those orders.
54. On or around 15 April 2001, Smith filed a motion to compel the GAL to produce documents and tangible things.
55. Judge Gould has refused to hear Smith's motion to compel the GAL to produce her file to his counsel.
56. The GAL did not follow Standing Order 2-98, which outlines the procedure for tracking GALs and their services.
57. On 26 June 2001, Judge Gould denied Smith's Motion for Relief from Stipulation or Order for Payment to G.A.L.
58. Judge Gould denied the motion for relief from the order to pay the fees on the false grounds that there was a written stipulation signed by both counsel and both parties in which the parties agreed to share in the costs of the GAL's services.
59. Despite the so-called "mistake," Judge Gould had an obligation to know what she approved, and she had had four months to bring herself up to date: there were more two months between the filing of the motion and oral argument, and another two months between oral argument and her order of denial.
JUDGE GOULD'S MEMORANDUM AND DECISION AND ORDER OF 6/26/01 [A46]
60. Where Smith never agreed to share the costs of the GAL's services, the doctrine of "judicial estoppel," upon which Judge Gould relied for denying Smith's motion for restitution, was inapplicable to the case.
61. On 26 June 2001, the Judge Gould ruled that where there was a controlling statute, she was not "guided[, in effect,] by considerations of fairness and a proper sense of justice" [A48].
62. On 25 July 2001, Smith filed an interlocutory appeal of the denial in the single justice session of the Appeals Court, which entered the appeal as Civil Action Number 01-J-425 [A50].
63. On 5 September 2001, Justice McHugh issued an Order affirming the lower court's denial on the grounds that the Commonwealth was a necessary party and that Smith would have to serve the Commonwealth to begin process.20
20 "The defect was this: The husband's motion sought an order for payment of money from an entity, the Commonwealth, that was not a party to the case and over which the court had not otherwise obtained personal jurisdiction. Service of process is the mechanism by which the court obtains personal jurisdiction. ... [A]lthough I reach my conclusion for reasons different from those the motion judge advanced, her denial of the husband's motion was clearly correct" [A51-52].JUDGE IRWIN BEHIND JUDGE GOULD ACTING IN THE FACE OF THE STATUTE64. Judge Irwin issued Memo #14 on 28 February 1997 [A12].
65. Memo #14 is still in effect under Judge Dortch-Okara.
66. 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.
67. 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" [A12].
68. In his letter of 28 July 1997 to Lawyers Weekly [25 M.L.W. 2504], Judge Irwin 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" [A16]. In a letter dated 17 April 1997, Judge Irwin pointed out that the number of cases in which the GALs are compensated privately by the parties are not included [25 M.L.W. 2504].
69. 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" [A12].
70. The ostensible purpose of Judge Irwin's memo was "to outline [the] new billing procedures" [A12].
71. The real purpose was to relieve the strain on the Commonwealth's coffers [A12-15].
72. Memo #14 set out the expenses for which the GALs could not charge the Commonwealth, and the procedures to which the GALs were to adhere in order to receive payment by the Commonwealth; for instance, a GAL is to submit a form on which the work performed must be fully described; if the service involved a telephone call, a description of whom was called and what was discussed must be included [A13-14].
73. Memo #14 set out the obligations of the Commonwealth and the courts; for instance:
(a) that GALs appointed pursuant to G.L. c. 215, s. 56A, as in this case, are to be compensated by the Commonwealth at a rate of $30.00 per hour [A13]; 74. In contrast, the statute, 215:56A, states that the Commonwealth will bear the cost of the GAL's services as opposed to the Memo's statement that the court will pay [A3]. Also, the statute does not include the proviso "if the GAL's services are on behalf of the court" [A15].(b) each Trial Court Justice who appointed the GAL to is review the form submitted by the GAL and "if the work performed is satisfactory and in accordance with [Memo #14]," to sign the submitted form [A14];
(c) each court is to examine the financial ability of the parties to pay for the GAL's services, to give the parties notice of the court's intention to make them pay for the GAL, and if the GAL's services are on behalf of the court, the GAL shall be compensated by the court, not by the parties [A15].
75. Memo #14 does not define which of the so-called services of a GAL are on behalf of the court.
76. Memo #14 is silent about whether the Trial Court justices are to get the parties' consent to pay the GAL fees.
77. Judge Irwin instructed the recipients of Memo #14 to violate G.L. c. 215, s. 56A.
78. Judge Gould was following the order in Memo #14 when she burdened Smith with costs which the statute mandates the Commonwealth bear.
79. Judge Gould and the other judicial recipients of Memo #14 follow the instructions in that memo every day in the courts across the Commonwealth.21
21 One party, Joseph Dunbar, when he balked at paying $19,000 over and above the approximately $7,500 he had already paid, was handcuffed on Judge Dilday's order and put into a holding cell. When Judge McGovern evidently sought his consent to pay the fees, the First Justice, according to both Dunbar and the alleged tape he has of the session, said it would cost only a few thousand dollars. A far cry from the eventual $26,000.80. The Trial Court's and/or Judge Irwin's plan was designed to circumvent their problem of how to deal with G.L. c. 215, s. 56A, specifically, the provision requiring the Commonwealth to pay for the services of the GALs appointed under it.81. The Commonwealth benefitted from the scheme to violate G.L. c. 215, sec. 56A, and shift the burden of paying the GAL's fees from the Commonwealth to the parties.
COUNT 1: DECLARATORY JUDGMENT
(challenge to constitutionality of M.G.L. c. 215, sec. 56A)82. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 81 above with the same force and effect as if herein set forth.
83. There is an actual controversy, to wit, given the failure of Judge Gould to act on Smith's motion to compel the GAL to deposition or his motion to get access to the GAL's file, whether the reports and testimony of the court-appointed GAL, who needs not be accountable because she is protected by immunity, may be admitted as evidence at the trial in Smith v. Smith in Suffolk Probate & Family Court.22
22 Smith contends that the GAL's appointment was unconstitutional, the grant to her of immunity is unconstitutional, the admission of her reports and testimony would be unconstitutional. The wife will want the admission of the materials and testimony of the GAL.84. If this controversy is not resolved, and the Massachusetts judicial branch has shown that it is not willing to resolve it, there will be further litigation.2323 The Massachusetts judicial branch has failed to resolve this conflict, which has inevitably led to this litigation, and has neither provided a remedy, as guaranteed by Article 11 of the Massachusetts Declaration of Rights, nor been accountable, as guaranteed by Article 5 of the Massachusetts Declaration of Rights, for the unlawful acts of the judiciary. In so doing, the Massachusetts judicial branch has violated the Fourteenth Amendment of the United States Constitution.85. Smith contends that the provisions in the first two statements in 215:56A is unconstitutional.86. The defendants contend otherwise but pick and choose which part of the statute they obey: on one hand, they follow that part which allows the courts to appoint GALs, and on the other, they intentionally violate that part which dictates xthat the Commonwealth shall bear the cost of a GALs alleged services, as evidenced by Judge Irwin and the Trial Court's Memo #14, which is still in effect. The statute is at A3.
87. The first statement of 215:56A being challenged as unconstitutional for vagueness as well as violative of due process and equal protection follows:
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. M.G.L. c. 215, sec. 56A (investigations).
24 In theory, neither party is prejudiced. In practice, the appointed GAL is recommended by one party and the second party is prejudiced because he/she (a) does not know the potential GAL, (b) has not seen the credentials or curriculum vitae of the potential GAL, (c) has not had the benefit of conducting a voir dire of the potential GAL, and (d) if even of average means, cannot afford to pay the literally thousands of dollars to properly depose the court-appointed GAL.(b) the statute fails to set out the credentials and knowledge required of the GALs appointed:(i) The judicial branch has held that under the statute, a GAL need not "possess special credentials or knowledge concerning in social work, psychology, or psychiatry. "Adoption of Arthur, 34 Mass.App.Ct. 914, 916 (1993), review den. 415 Mass. 1101, (ii) The appointment of GALs who need no credentials relevant to the task they are appointed to perform, who do not work to any standards, and who are given quasijudicial immunity is not only violative of the clearly established and secure rights of each and every party to any action in which such a GAL is appointed, but also violative of Article V of the Massachusetts Declaration of Rights, which guarantees accountability of the three branches of government to the people;25
25 There are no Massachusetts judicial published opinions which consider Article V when determining whether an entity is entitled to immunity. Article XI, which guarantees that a remedy shall be provided for every wrong, is another of the ghostly articles of the Massachusetts Declaration of Rights. (c) the statute fails to set out the standard to which the GALs must work:
(i) The Senate Post-Audit and Oversight Committee report found that GALs work to no standards. (d) the statute fails to set out whether a GAL is to be deemed by a judge as an expert or a lay witness:
(i) Judge Gould implicitly deemed the GAL an expert witness, putting a deposition of such a GAL out of reach financially of the average party before the Probate & Family Courts;26
26 Smith subpoenaed the GAL in his divorce action and she wrote that she would not appear without receiving an estimate of the number of hours she would be deposed, would not send any of the requested materials in advance of the deposition to help make that estimate, and wanted to be paid $175 per each estimated hour in advance for her attendance, as if she were an expert witness.The GAL had prepared a lengthy biased and bizarre report and it was clear that she was anything but an expert. Additionally, it was anticipated at least a full day's deposition -- if not more -- would be necessary. The cost for the GAL plus the transcript would have reached over $2000 for one day.
To add such expense by statute is unconscionable.
On or around 15 February 2001, Smith filed a motion to enforce the subpoena, but to date, almost 8 months later, Judge Gould has not yet acted upon it. In March 2001, the GAL filed still another bizarre report containing subject matter beyond the scope of her appointment. In July, she sent another bill for another $2391.67 in fees for other alleged work done since then, though there was no active appointment. Because the GAL's reports have been in favor of the wife, the wife's counsel paid the GAL out of escrowed marital assets to the GAL without consulting Smith. His motion for restitution was five months old and stale by then.
The appearance of judicial impropriety and possible ex parte communication with opposing counsel is grotesque and alarming.
(e) the statute fails to state whether the so-called investigative report is to be admitted as evidence without an evidentiary hearing, or whether there are mandatory safeguards to protect the parties who were allegedly investigated, and it has led to: 88. The second statement of 215:56A being challenged as unconstitutional is:(i) Senate Report #1828 attesting to inconsistent results and "serious due process concerns for the people involved in a case and jeopardize the soundness of the eventual custody decision" [A34].
(a) The statute allows, without any safeguards, otherwise unreliable hearsay into the record under the guise of being a GAL's report:27
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.
89. The statute provides no safeguards as to competency of the GAL, no standards by which the GAL is to work, no standard of review to be used to determine that competency, no statutory requirement of an evidentiary hearing at which the parties can cross-examine the GAL and rebut any materials adverse to a party. (b) the statute requires a report to the judge and allows inspection by the parties, but fails to state when that inspection may take place and how to dispute the report before or after it is filed in court:29
27 The Massachusetts Supreme Judicial Court has held that "[a] report compiled pursuant to G.L. c. 215, sec. 56A, is not objectionable as hearsay, nor is it an unlawful delegation of the court's duty." Adoption of Arthur, 34 Mass.App.Ct. 914, 916 (1993), review den. 415 Mass. 1101, citing Jones v. Jones, 349 Mass. 259, 264 (1965).(i) Each party opposing the GAL's report has to fight the long and expensive fight to cross-examine the GAL on a totem-pole-hearsay-filled report and on the GAL's similarly deficient testimony, and to rebut any materials adverse to that party,
(ii) in addition to being allowed to testify to totem-pole, GALs are allowed to answer hypotheticals and to indulge in speculative testimony,28
28 For instance, Smith has had no access either to those who were the source of the GAL's totem-pole hearsay or to the GAL (only limited access) or her file (only 10 minutes to browse a foot-high file). See references to exhibits supra.
(iii) the statute allows the admission of a GAL's report into evidence prior to the parties having their opportunity to cross-examine the GAL and rebut the report and any other materials adverse to the party;29 Duro v. Duro, 392 Mass. 574, 579 (1984). (i) Inspection alone is insufficient to prevent and protect a party from the indiscriminate harm by a GAL and the GAL's report.
90. The statute's unconstitutionality for vagueness is further evidenced by the appellate courts inconsistent decisions as to the entity for whose benefit the appointment of a GAL serves.30
30 For example, the Supreme Judicial Court in Yannas v. Frondistou-Yannas, 395 Mass. 704, 713 n. 5 (1985), held, "The guardian ad litem was appointed under G.L. c. 215, sec. 56A (1984 ed.), to make a report to the judge, not to represent the interests of the children." But in Matter of Carson, 6 Mass.App.Ct. 665, 678 (1978), citing Jones v. Jones, 349 Mass. 259, 264 (1965), the SJC held the opposite opinion: "The guardian ad litem should be directed to take part in the proceedings and to prepare a report setting out the interests of the child."91. The Commonwealth of Massachusetts has failed to correct the statute:
(a) the legislature has failed to write a statute that prevents and protects against injury to the people who are subject to victimization by the statute and (b) the judicial branch, on behalf of the Commonwealth, has violated Article V of the Massachusetts Declaration of Rights31 by bestowing quasijudicial immunity on the GALs appointed pursuant to 215:56A.31 Art. V of the Massachusetts Declaration of Rights reads: "All power residing originally in the people, and being derived from them, the magistrates and officers of government, visited with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them."92. Historically, Article V of the Massachusetts Declaration of Rights abrogated the common law rule of sovereign immunity, which had theretofore immunized public entities from suit in tort claims arising from both the intentional and the negligent acts or omissions of public employees.93. The lack of accountability, which is the effect of sovereign, absolute or judicial immunity, and quasijudicial immunity, is violative of Article V of the Massachusetts Declaration of Rights.
94. The notion and practice of judicial immunity violates Article XI of the Massachusetts Declaration of Rights and there is no other legal route or alternative to provide a remedy for the wrongs committed by the judiciary . . . or by the other entities, natural or otherwise, who are, in our courts of today, also bestowed judicial immunity.
95. The purpose of section 1983 has been almost totally vanquished by the rapidly spreading penumbra of immunity to employees and non-employees of the state and other governmental entities, GALs, family service officers, unlicensed "therapists," and licensed social workers, psychologists, and psychiatrists.
96. The "condition of lawlessness [which] existed in certain of the States, under which people were being denied their civil rights," of which Justice Douglas wrote in his dissent in Pierson v. Ray, has revisited us, much because of the unconstitutionality of this particular statute, G.L. c. 215, sec. 56A.
WHEREFORE, Plaintiff demands a declaratory judgment that Massachusetts all but the provision requiring payment of GAL fees by the Commonwealth in G.L. c. 215, sec. 56A, is unconstitutional.
COUNT 2: VIOLATION OF 42 U.S.C. SEC. 1983
(DUE PROCESS AND EQUAL PROTECTION CLAUSES)97. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 96 above with the same force and effect as if herein set forth.
98. At all relevant times herein, Plaintiff had a right under the due process and equal protection clauses of the state and federal constitutions not to be deprived by the government of his constitutionally protected interest in his property and his children. U.S.C. Const.Amend. 14; M.G.L. Const. Pt. 1, Art. 10.99. At all times relevant herein, the conduct of all defendants were subject to 42 U.S.C. secs. 1983, 1985, 1986, and 1988.32
32100. Acting under the color of law, Defendants worked a denial of Smith's rights, privileges or immunities secured by the United States Constitution or by Federal law 33 and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, to wit,The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that "[i]mmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." Cong. Globe, 42d Cong., 1st Sess., 374. . . . "[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity." Id., at 394. . . . The members . . . were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. It was against this background that the section was passed, and it is against this background that it should be interpreted. Pierson v. Ray, 386 U.S. 547, 559-560 (1967).(Douglas, J., dissenting)
33 Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989).(a) Judge Gould unlawfully and knowingly acted contrary to the requirements of General Laws 215:56A, 208:30, and 209B:5(a), which unlawful acts were expressly committed in the absence of jurisdiction,34 to wit,101. As a result of Defendants' concerted unlawful and malicious conduct, Smith was both deprived, without due process of law, of his right to his property, to protect and raise his children, and to have a relationship with them, and deprived of his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983.
(b) Judges Irwin, Dortch-Okara, Dunphy, and Gould and the Trial Court knowingly impeded and hindered the due course of justice, with the intent to deny Smith -- and others similarly situated -- due process and the equal protection of the laws, which unlawful acts were expressly committed in the absence of jurisdiction, 34 Rankin v. Howard. 633 F.2d 844 (1980), cert. denied sub nom., Zeller v. Rankin, 451 U.S. 939 (1980). (i) Judge Gould did not have the power and/or authority or the discretion,
(1) under 215:56A to shift the burden of payment from the Commonwealth to the parties, i.e., to order Smith to share the cost of the GAL's fees, (2) under 208:30 to allow the children to be removed from the Commonwealth to the State of XXXX without also Smith's consent,35
35 The statute, 208:30, is a mandatory statute with one out for the judge: she would have been permitted to allow them to be removed without Smith's consent "upon cause shown," but Judge Gould did not write findings and the only alleged cause had to have come from the GAL's report. And under the common law and 209B:5(a), Judge Gould was not allowed to admit the GAL's report as evidence without giving Smith an opportunity to cross-examine the GAL and to rebut any materials adverse to him. That opportunity to fully cross-examine the GAL has never been afforded Smith, even to the day of this writing. (3) under the MCCJA, 209B:5(a), to allow the removal of the children prior to giving Smith an opportunity to cross-examine the GAL and to rebut any materials adverse to him;
(i) Judge Irwin, in his individual capacity, acted in a nonadjudicatory fashion and, in effect, rewrote the statute in such a manner that he suspended 215:56A and usurped a legislative function36 in violation of the constitutionally guaranteed separation of powers, and thereby violated Arts. XX and XXX of the Mass. Declaration of Rights, (c) Judge Dunphy, in his individual capacity, refused or neglected to prevent such deprivations and denials to plaintiff, which unlawful acts were expressly committed in the absence of jurisdiction, and in his individual capacity abrogated his official judicial responsibilities by not taking corrective action as required of him as Chief Justice of the Probate & Family Court.
36 Where a judge usurps the authority of the legislature, and for the exercise of such authority, no excuse is permissible. Allard v. Estes, 292 Mass. 187, 196 (1935).(ii) Judge Irwin in his official capacity committed the Trial Court to unlawful acts,
(iii) Judge Irwin, in both of his capacities, and the Trial Court had no lawful excuse to indulge in judicial legislation,
(iv) Judge Dortch-Okara failed to take corrective action upon her assumption of Judge Irwin's former duties;
102. Smith was harmed and has been suffering from worry about the welfare of his children, grief from the loss of a meaningful relationship with his children, stress, humiliation, anxiety, fear for his children's safety and well-being, loss of trust, loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.37
37WHEREFORE, Plaintiff demands judgment for the violation of his civil rights against Judges Irwin, Dunphy, and Gould, and the Trial Court, jointly and severally, for actual, general, special, compensatory damages in the amount of $2,500,000 and further demands judgment against Judges Irwin, Dunphy, and Gould, and the Trial Court, jointly and severally, for punitive damages38 in an amount to be determined by the jury, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and fair and in any other way in which the Court deems appropriate.The rule is well settled, however, that if the natural consequence of the wrongful act, done willfully or with gross negligence, is mental suffering to the plaintiff, then that element may be considered in assessing damages.Stiles, 233 Mass. at 185, cites omitted. "Good faith and absence of malice in the perpetration of such a palpable wrong to the plaintiff constitute no defense to the defendants against the almost inevitable effect of their acts." Id.38 "Punitive damages are recoverable in sec. 1983 suit where defendant's conduct is motivated by an evil motive or intent, or where it involves reckless or callous indifference to plaintiff's federally protected rights). Smith v. Wade, 461 U.S. 30, 50-51 ((1983); Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983). Miga, supra at 355.Plaintiff seeks equitable relief from the Trial Court and the Commonwealth, such as severe sanctions against Judges Gould and Dunphy for their incompetence, lawlessness, and deliberate indifference to the clearly established and secured constitutional rights of Smith, and if within the power of this court, instructions to Judge Dortch-Okara to replace Judge Dunphy with someone else forthwith as Chief Justice of the Probate & Family Court.Plaintiff seeks equitable relief from Judge Dortch-Okara, that relief being to repeal Memo #14 forthwith, and if within the power of this court, to replace Judge Dunphy with someone else forthwith as Chief Justice of the Probate & Family Court, to report Judge Gould's unjudgely performance to the Commission on Judicial Conduct, and to notify or instruct all sitting justices to conform their orders to the mandatory, nondiscretionary, statute, 215:56A.
COUNT 3: VIOLATION OF 42 U.S.C. sec. 1985(3) (conspiracy)39
39 To state a claim under Section(s) 1985(3) a plaintiff must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).103. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 102 above with the same force and effect as if herein set forth.See note 46, infra, re a class-based animus.
104. The Commonwealth, the Trial Court, and Judges Irwin, Dortch-Okara, Dunphy, and Gould, acting outside the scope of their employment, conspired to shift the burden of paying for the alleged services of the GAL from the Commonwealth to the parties of actions in Probate & Family Court.
PURPOSE AND PATTERN
105. The conspiratorial purpose was primarily financial and double-barreled: shifting the burden to pay for the services of GALs from the Commonwealth to the parties would not only lessen the burden on the Commonwealth's coffers, it would also lessen the need for more judges . . . by lessening the work to be done on each judge's cases, the number of which was dramatically increasing.
106. The actual dollar savings would be used for such items as increasing judicial salaries [A7-11]. It presented a win-win situation for all justices: for those responsible for finance and budgeting at the administrative levels and for those sitting on the benches across the state.
107. That the parties to actions at the Probate & Family Courts would be victimized, as the Senate Post-Audit & Oversight Committee wrote, by the judiciary abrogating its responsibilities to improperly trained -- if trained at all -- GALs who worked to no standards and had no guidelines, was of no import to either the defendant justices or to the Commonwealth.
108. The defendants here were taking advantage, respectively, of their sovereign and absolute judicial immunity, the latter being upheld even when judges are known to be malicious and corrupt,40 under the guise that their judicial independence should be safeguarded and that they not feel "intimidated."41
40 Pulliam v. Allen, 466 U.S. 522, 532, 548 (1984), cites omitted; Butz v. Economou, 438 U.S. 478, 512 (1978); Pierson v. Ray, 386 U.S. 547, 554 (1967), (only Justice Douglas brilliantly dissenting), cites omitted; Bradley v. Fisher. 13 Wall. 335, 350 n. (1872); Scott v. Stansfield, 3 L.R. Ex. 220, 223 (1868). The guarantee of accountability in Article V of the Massachusetts Declaration of Rights has become only a ghost in the shadow of the multitude of federal cases holding that accountability is to be frowned upon. Legislative immunity was confirmed in Tenney v. Brandhove, 341 U.S. 367 (1951).109. In both his capacities, Judge Irwin, in Memo #14, rewrote 215:56A, which act suspended the law and usurped a legislative function in violation of the separation of powers guaranteed in Arts. XX and XXX of the Massachusetts Declaration of Rights, as well as in violation of the Fourteenth Amendment of the U.S. Constitution.41 The logic of that reasoning confounds: Can it be reasonable to assume that judicial independence must be maintained so that judges can be malicious and corrupt again. Such logic results in a violation of the Massachusetts Code of Judicial Conduct, to wit, Supreme Judicial Court Rule 3:09, Canons 2(A) (avoiding impropriety and the appearance of it) and 3(A)(1) (fidelity to the law and maintaining professional competence in it).
JUDGE IRWIN LEADS THE WAY TO THE CONSPIRACY
110. By publishing Memo #14, Judge Irwin led all sitting judges, including, but not limited to, the defendant judges in this action, into a conspiracy of which Smith was but one of thousands of victimized parties deprived of due process and equal protection in actions in the Probate & Family Courts.
111. Judge Dortch-Okara failed to repeal the Memo #14 authored by Judge Irwin, or to notify or instruct all sitting justices to conform their orders to the mandatory, nondiscretionary, statute, 215:56A.
112. Judge Dunphy failed to notify or instruct the justices sitting in Probate & Family Court divisions to conform their orders to the mandatory, nondiscretionary, statute, 215:56A and compel with SJC Rule 3:09, Canon 3(A)(1).
PURPOSE OF THE SCHEME AND COVER-UP OF CONSPIRACY
113. Integral to the scheme was for the all sitting justices to get if possible the consent of the parties and/or the signatures of both parties on a written stipulation to pay the fees of the GALs they appointed.
114. The purpose of using or of attempting to use the concepts of consent or stipulation (construed as a waiver) was to give the appearance of having jurisdiction, although jurisdiction -- or the converse of it -- cannot be consented-to or waived.
JUDGE GOULD'S FALSITY
115. Judge Gould failed either to seek or get Smith's consent or to obtain his written and signed stipulation to pay the GAL's fees.
116. Despite her knowing that there was no such signed stipulation, and attempting to cover up her unlawful action of disobeying 215:56A, Judge Gould wrote in her written decision of 26 June 2001 the falsity that there was such a document and that Smith was therefore judicially estopped from seeking restitution of the almost $11,000 removed -- also without his consent -- from the marital-assets escrow account.42
42 The wife's counsel violated Judge Gould's 27 December 1999 order [A21] by using, without first obtaining permission from the court, funds from the marital escrow account for which she was escrow agent and/or trustee.ABSENCE OF JURISDICTION117. Judge Gould did not have the power and/or authority or the discretion
(a) under 215:56A, to shift the burden of payment from the Commonwealth to the parties, (b) under 208:30, to allow the children to be removed from the Commonwealth of Massachusetts to the State of XXXX without Smith's consent, and (c) under 209B:5(a),43 to allow the removal of the children without giving Smith an opportunity to cross-examine the GAL and to rebut any materials adverse to him.43 Massachusetts Child Custody Jurisdiction Act ["MCCJA"].118. Judge Dunphy, whose duty was (a) to run a "judicial enhancement" program, (b) to be familiar with the performance of the Probate & Family Court judges, and (c) to keep track of the court-appointed GALs,44 pursuant to Standing Order 2-98, failed to monitor Judge Gould's performance and intentionally took no action when she and every other judge sitting in his department violated the mandatory nondiscretionary statute, 215:56A.44 The Senate Post Audit and Oversight Committee reported that in 1998, "more than 6,000 cases in the Probate & Family Court involved a Guardian Ad Litem (GAL)." The report does not state whether the 6000 cases included only those cases involving GALs who were paid by the state or included also those cases involving GALs who were paid by the parties. The report made no mention of the distinction.119. Judge Dortch-Okara, who had financial and budgetary power over the Trial Court, knew, or should have known, what the expenditures were for GALs' fees and knew, or should have known, (a) that she had inherited Judge Irwin's unlawful scheme, (b) that both the Trial Court and the Commonwealth were benefitting financially by being unlawfully relieved of the financial burden to pay GALs' fees, and (c) that the recipients -- believed to be the judges -- of the detoured funds were also benefitting.Given that in Smith's case neither the GAL was appointed from a rotating list -- as the Senate report states they are -- nor did Judge Gould "provide[] a written explanation for making an appointment out of order" [A31] -- as the a judge is required to do under Supreme Judicial Court Rule 1:07.
120. Judge Dortch-Okara also knew, or should have known, that the abrogation of judicial responsibilities to GALs improperly trained to make critical decisions and working to no standards "create[d] serious due-process concerns for the people involved in a case and jeopardize[d] the soundness of eventual custody decisions" [A34].
121. By acting in the absence of jurisdiction, Judges Irwin, Dortch-Okara, Dunphy, and Gould and the Trial Court are not afforded protection by judicial immunity.
122. Assuming arguendo that Judge Irwin's, Dortch-Okara's, Dunphy's, and Gould's and the Trial Court's acts were merely "in excess of their jurisdiction," they are still liable to Smith for his injuries.45
45 "'All inferior tribunals and magistrates * * * if they act without jurisdiction over the subject-matter or * * * if they are guilty of excess of jurisdiction * * * are liable in damages to the party injured by such unauthorized acts.'" Stiles v. Morse, 233 Mass. 174, 182 (1919), quoting Piper v. Pearson, 68 Mass. (2 Gray) 120, 122, and cases gathered. "The term `magistrates' is [ ] used to refer to members of the judicial branch." McDuffy v. Sec'y of Exec. Office of Educ., 415 Mass. 545, 561 n. 16 (1993), citing Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803).123. Judges Irwin, Dortch-Okara, Dunphy, and Gould and the Trial Court's actions intentionally interfered with Smith's exercise and enjoyment of his clear and established rights secured by the state and federal constitutions or laws of the United States and/or the Commonwealth of Massachusetts, and thereby deprived him of those rights and caused him injuries.124. As a result of the concerted unlawful and malicious conspiracy of all the defendants, Smith, as one of the people involved in a case being heard in Probate & Family Court, was deprived of his rights to both due process and the equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983 and 1985.
125. Specifically, Smith has been deprived of his constitutional rights to property, of his right to have a meaningful relationship with his children, of his right to raise his children, of his right to exercise and enjoy the company of his children, of his right to protect and assure the safety of his children, who have also been, because of judges acting in the absence of jurisdiction, irreparably harmed, and damaged by the unconscionable conspiracy for financial benefit and the lessening of work for the judiciary at the expense of Smith and others similarly situated.
INVIDIOUS DISCRIMINATORY ANIMUS: THE DISPARATE IMPACT46
46 In Aulson v. Blanchard, 83 F.3d 1, 4 (1996), Judge Selya wrote:126. Although the primary purpose of the conspiracy was the financial benefit to the Commonwealth's coffers directly and to those who benefitted from the money the Commonwealth saved, the effect of shifting the burden of paying the GALs onto the parties was the creation of an invidious class-based discrimination: given that generally the male in a divorce or even in an out-of-wedlock scenario has to pay the bulk of the fees.47In all events, an unforced reading of Section(s) 1985(3) affords no principled basis for distinguishing between public and private conspiracies. Griffin [v. Breckenridge, 403 U.S. 88, 102 (1971)] neither supports nor suggests the existence of such a distinction, and, at any rate, it is not the proper province of a federal court to rewrite a statute under the guise of interpretation. Thus, we decline the plaintiff's invitation to create by judicial fiat two classes of Section(s) 1985(3) conspiracies along a public/private axis. The problem with that court's conclusion is that it was inherently inconsistent with what it had written earlier in the same opinion, to wit, that the Supreme Court in Griffin, "under the guise of interpret[ing 1985(3)]" [Aulson, at 4], had already "placed a gloss on these four elements, effectively adding a fifth requirement." Aulson, at 3. That fifth requirement: that "the conspiratorial conduct of which [the plaintiff] complains [must be] propelled by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'" Id. at 3, quoting Griffin, at 102.
Judge Selya's initial statement was correct: that "it is not the proper province of [any] court to rewrite a statute under the guise of interpretation." That is, however, what the Supreme Court in Griffin did. It is quite elementary: Had Congress intended a fifth element, it would have included it when the statute was enacted. To add the element, Smith contends, was improper, and in so adding it, the high Court was usurping the power of the legislature.
47 In Smith's case, at the time of the GAL appointment, the wife had been earning around $170,000 a year as a attorney at a prestigious Boston lawfirm.127. So in passing payment onto Smith, according to a facially neutral scheme, the violation discriminated -- by its disparate impact48 -- against Smith because of his gender, and he was thereby deprived, indirectly or directly, of the equal protection of the laws, injured in his person and property and deprived of having and exercising rights and privileges of a citizen of the United States.48 The defendants did not really care who had to pay the GALs fees, just so long as it was not the Commonwealth.128. Smith is a member of the class of male parents, who suffer from a class-based invidiously discriminatory animus in Massachusetts Probate & Family Courts in today's society.129. Had Smith been an unemployed female who had spent the last five years of marriage as a house-wife, as opposed to a house-husband, and during those five years had been the primary caregiver of children since their birth, he would not have been burdened by having to share the cost of the services of a court-appointed GAL.
130. Another example of the invidiously discriminatory animus is the cessation by Judge Gould of Smith's alimony: Smith's wife is a Harvard-Law-School- educated attorney who was earning around $170,000 a year when Judge Gould issued her order commanding the parties to share the cost of the GAL. Around nine months later, Smith's wife, to avoid alimony, took a job for $60,000. Gould ignored Smith's thoroughly cited brief on the issue of alimony and without the evidentiary hearing which Smith requested, stopped his very meagre alimony of $200 per week immediately and did not give him time to rehabilitate himself back into the job market [Paper #102, Probate & Family Court docket].
131. And still another of many examples is the custody of the children: Smith had been the primary caregiver. His wife was planning to continue working and to leave the children in the care of strangers and various dysfunctional members of her biological family in XXXX. See A69-72. Had Smith been a female, he would have been able to retain custody, but Smith was a male, so he lost custody.49
49 In support of her decision to close the courtroom during Smith's divorce, Judge Gould described in a memorandum the maternal grandfather as a "pillar of the community" [A44]. A man who had a strained relationship for 8 to 10 years with his second daughter and who testified that he believed the strain was a result of the false memory syndrome, and a man who has been accused by a grandson of sodomizing him is likely not the pillar of the community he portrays himself, or Judge Gould portrays him, to be [A56, A61].132. As a male, Smith would not have been granted a chapter 209A restraining order, which may have been appropriate inasmuch as his wife is the parent with the temper and the need for extreme coping mechanisms. As the wife testified, when the children get too much for her, she rides her bicycle around and around and around in the driveway or "walks circles around the house" or gets a babysitter and leaves [A66-67; see also A64-65]. With an invidiously discriminatory animus, Gould ignored the wife's testimony and extended a bogus 209A temporary order against Smith.133. This invidiously discriminatory animus against men because of their gender is rampant in the Massachusetts Probate & Family Courts.50
50 This statement might smack of speculation, but it is not. Potential witnesses abound with documentary evidence of the invidious gender discrimination. One example is an Andover fireman who, after all deductions were taken, received a weekly paycheck of literally 74 cents [A55]. He was also a sole-proprietor, but his business machinery was at home and he has been precluded from getting access to the machinery and, of course, the home.134. The Probate & Family Court department regularly provides victim-witness advocates to assist women, but does not do so for men.135. In Massachusetts, such victim-witness advocates are sponsored by the Commonwealth of Massachusetts Office of Victim Assistance, MOVA, which promotes state-sponsored discrimination against those who are gendered male.
NEXUS BETWEEN INVIDIOUS DISCRIMINATION AND THE CONSPIRACY TO BURDEN THE PARTIES WITH THE GAL FEES
136. The GAL in the Smith case testified that of the 275 investigations she had conducted, between 265 and 267 (96 percent) were in favor of the women getting custody [A56-57].
137. The GAL, who found for Smith's wife, was preselected and recommended by the wife's counsel to the court.
138. Judge Gould, knowing both the GAL and her proclivity for recommending that the women get custody [A24a], knew the GAL would sandbag Gouin, whether or not an investigation was done -- and none was done, and the GAL admitted it [A108a and A55b-e].
139. In this Era of the Woman, men have been elevated to a special class, cognizable for purposes of sec. 1985(3).
140. Despite judicial awareness of the bias for women in the Probate & Family Courts and of the overwhelmingly custody decisions by the GALs in favor of women,51 the incentive remained for Judge Gould to appoint the GAL, lessen her case backlog, and save the Commonwealth from the burden of another GAL's bills.
51 In "Attorneys Stress Need for Guardian Standards," 25 M.L.W. 2707 (August 25, 1997) [A109-112], Gerald Nissenbaum, the discovery master in the Smith divorce action, one of the esteemed members of the Board of Editors of the Lawyers Weekly, former president of the Massachusetts chapter of the American Academy of Matrimonial Lawyers, was quoted. Nissenbaum said, "In fact, I bet you'd find about a 97 percent correlation between the GAL's report and judges' custody decision." The GAL in the Smiths' case found for the women 96 percent of the time. It is reasonable to conclude that the Probate & Family Court judges also find for the women in about 96-97 percent of the cases. Statistics from the courts will bear this out.141. Smith was harmed and has been suffering from worry about the welfare of his children, grief from the loss of a meaningful relationship with his children, stress, humiliation, anxiety, fear for his children's safety and well-being, loss of trust, loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.Given Judge Gould's rulings, caused by inattention or incompetence, if not malice, in Smith's case, Judge Gould has violated that part of Canon 3(A)(1) of the Code of Judicial Conduct, Supreme Judicial Court Rule 3:09, which reads, "[A judge] should be unswayed by . . . public clamor."
Feeding into Judge Gould's mentality was the wife's counsel's capricious, petulant argument replete with distortions and untruths. Evidence played no role whatsoever in Judge Gould's decisions. Smith was barely allowed on the stand: 35 minutes, time enough to put 22 exhibits into evidence with no time to explain them and no time to testify to facts relevant and material to his case.
WHEREFORE, Plaintiff demands judgment for the violation of his civil rights against Judges Irwin, Dunphy, and Gould, and the Trial Court, jointly and severally, for actual, general, special, compensatory damages in the amount of $2,500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in an amount to be determined by the jury, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and fair and in any other way in which the Court deems appropriate.
Plaintiff seeks equitable relief from the Commonwealth and the Trial Court, such as (a) severe sanctions against Judges Gould and Dunphy for their incompetence, lawlessness, and deliberate indifference to the clearly established and secured constitutional rights of Smith, and if within the power of this court, (b) instructions to Judge Dortch-Okara to replace Judge Dunphy with someone else forthwith as Chief Justice of the Probate & Family Court, and (c) the assignment of victim-witness advocates to men on as regular basis as to women.
Plaintiff seeks equitable relief from Judge Dortch-Okara, that relief being to repeal Memo #14 forthwith, to replace Judge Dunphy with someone else forthwith as Chief Justice of the Probate & Family Court, to report Judge Gould's unjudgely performance to the Commission on Judicial Conduct, and to notify or instruct all sitting justices to conform their orders to the mandatory, nondiscretionary, statute, 215:56A.
COUNT 4: VIOLATIONS OF 42 U.S.C. 1983:
DEPRIVATION OF PARENTAL RIGHTS
(violation of M.G.L. c. 208, sec. 30)5252 Chapter 208, section 30, Minor children; removal from commonwealth; prohibition:142. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 141 above with the same force and effect as if herein set forth.Section 30. A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.
143. At all relevant times herein, Smith had a right under the due process and equal protection clauses of the state and federal constitutions, not to be deprived by the government of his constitutionally protected interest in raising his children and in having a meaningful relationship with them.53 U.S.C. Const.Amend. 1, 5, 9, 10, 14; M.G.L. Const. Pt. 1, Art. 10.
53 "The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by [the First] amendment and Amendments 5, 9, and 14." Griswold v. Connecticut, 381 U.S. 479 (l965).144. Smith was not asked by Judge Gould for his consent to the removal of the children from Massachusetts to XXXX, as she was required to do by M.G.L. c. 208, sec. 30, prior to making her decision about the removal, and he did not give it.145. Judge Gould also failed both to show cause and to write any findings before or after allowing the children to be removed from the Commonwealth to the State of XXXX.
146. Judge Gould acted without power and/or authority, to wit, in the clear absence of jurisdiction, for which no immunity is afforded, and not in a mere excess of her jurisdiction.
147. Smith suffered harm and damages, as stated at par. 141, supra, as a direct result of those acts.
WHEREFORE, Plaintiff demands judgment for the unlawful removal of his children and deprivation of his parental rights against Judge Gould for actual, general, special, compensatory damages in the amount of $2,500,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and fair and in any other way in which the Court deems appropriate.
COUNT 5: VIOLATIONS OF 42 U.S.C. 1983:
DEPRIVATION OF PARENTAL RIGHTS
(violation of MCCJA, G.L. c. 209B, sec. 5(a))148. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 147 above with the same force and effect as if herein set forth.
149. At all relevant times herein, Plaintiff had a right under the due process and equal protection clauses of the state and federal constitutions not to be deprived by the government of his constitutionally protected interest in raising his children. U.S.C. Const.Amend. 1, 9, 10, 14; M.G.L. Const. Pt. 1, Art. 10.
150. Where there was no hearing, as provided by the Massachusetts Child Custody Jurisdiction Act ["MCCJA"], prior to Judge Gould allowing the removal of the children to XXXX, Judge Gould was without authority to action, for which no immunity is afforded.54
54 A hearing is required before the children of a marriage may be removed from the Commonwealth. Delmolino v. Nance, 14 Mass.App.Ct. 209, 214 (1982). G.L. c. 208, sec. 30. "At the hearing the judge must consider the factors outlined in Hale v. Hale [12 Mass.App.Ct. 812, 815-821 (1981)]." See also Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). And at the hearing, the parent opposing the removal must be allowed to cross-examine the guardian. Gilmore v. Gilmore, 369 Mass. 598, 603-606 (1976) (where the judge refused to allow the GAL to testify at all).151. Where there was no hearing, as provided 209B:5(a), and Smith was (a) denied the opportunity to present evidence, (b) denied the opportunity to cross-examine the GAL, upon whose report the judge relied as the sole basis of the court order of 8 August 2000 allowing the removal of the children from the Commonwealth to XXXX, and (c) denied the opportunity to rebut any materials adverse to him, Judge Gould was without authority to action, for which no immunity is afforded.152. Given no discretion under the MCCJA to not provide an evidentiary hearing before allowing the children to be removed from the Commonwealth to another state, Judge Gould usurped the authority of the legislature, and for the exercise of such authority, no excuse is permissible.
153. Where Judge Gould acted without power and/or authority, she acted in the clear absence of jurisdiction, for which no immunity is afforded.
154. Assuming arguendo that Judge Gould's acts were merely in excess of her jurisdiction, she is still liable to Smith for his injuries. See note 46, supra.
155. Smith suffered harm and damages, as stated at par. 141, supra, as a direct result of those acts.
WHEREFORE, Plaintiff demands judgment for the unlawful removal of his children and deprivation of his parental rights against Judge Gould for actual, general, special, compensatory damages in the amount of $2,500,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and fair and in any other way in which the Court deems appropriate.
COUNT 6: VIOLATIONS OF 42 U.S.C. 1986:
REFUSING OR NEGLECTING TO PROTECT AND PREVENT
THE WRONGS CONSPIRED TO BE DONE156. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 155 above with the same force and effect as if herein set forth.
157. At all times relevant to this Complaint, Defendant Judge Gould was acting under the direction and control of Defendant Judge Dunphy, the Trial Court of the Commonwealth, and the Commonwealth of Massachusetts.
158. Acting under color of law and pursuant to official policy or custom, Judge Dunphy knowingly, with deliberate indifference or in reckless disregard or with gross negligence failed to instruct, supervise, control, and discipline on a continuing basis Defendant Judge Gould in her duties to refrain from:
(a) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities, 159. Judge Dunphy has intentionally or with deliberate indifference or in reckless disregard or negligently failed either to use his powers or to fulfill his duties in accordance with:(b) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States and the laws of the Commonwealth of Massachusetts; and
(c) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities.
(a) M.G.L. c. 211B, sec. 10 (powers and duties of a chief justice, including, but not limited to, "the power to require any justice [ ] in his department to participate in a judicial enhancement program in response to any action of such justice which brings the judiciary into disrepute, which lowers the public confidence in the judiciary or which impedes the administration of justice"); and 160. Defendant Judge Dunphy knew, or should have known, had he diligently exercised his duties to instruct, supervise, control, and discipline on a continuing basis, that the wrongs conspired to be done, as heretofore alleged, were about to be committed.(b) M.G.L. c. 211B, sec. 17 (the latter being the operation and maintenance of court facilities; long-range planning and capital budget requests for such facilities); and
(c) M.G.L. c. 217, sec. 8.
161. One divor