#62, Drano Series
Opposition to Motion to Dismiss
Complaint Against Judges, the Family Court, the Trial Court,
and the Commonwealth*
The complaint is at Drano #57
I see a few issues which I may expand on in a supplement to the opposition. Because of time and space limitations (in the Rules),
I decided not to attempt to discuss them at this time.
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) capacities
Trial Court of the Commonwealth of
of Massachusetts
Commonwealth of Massachusetts,
Defendants
_____________________________________OPPOSITION TO DEFENDANTS' MOTION TO DISMISS COMPLAINT
Now comes Plaintiff John Smith, Jr. ["Smith"] and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by the defendants: several Massachusetts judges, the Trial Court Department of the Commonwealth of Massachusetts, and the Commonwealth of Massachusetts.
Contrary to the defendants' assertions, (1) this court does have jurisdiction to consider the claims in the complaint, (2) the Rooker-Feldman doctrine does not apply because Smith is not seeking reversal of decisions rendered or voiding of her holdings in the Smiths' divorce action, but is facially challenging a state statute, (3) the Eleventh Amendment is inapplicable where the judges engaged in conduct that the sovereign did not authorize, that the sovereign had forbidden, and the relief sought is prospective, (4) judicial immunity is not available in the absence of jurisdiction, (5) under the federalism set forth in Pennhurst, infra, the Eleventh Amendment can not overrule Articles 5 and 11, Massachusetts Declaration of Rights, which demand accountability and a remedy for every wrong, respectively,1 and (6) the Commonwealth cannot invoke sovereign immunity where there was never a legislatively enacted amendment to the Constitution of the Commonwealth of Massachusetts repealing Article 5 of the Declaration of Rights, which guaranteed accountability by all three arms of government to the people, of which Smith is one.
1 Articles XX and XXX, the separation of powers, are also implicated. Complaint at pars. 26 n. 15; 100(b)(i); 100(b)(i) n. 36; 109.
BACKGROUNDSmith stands on the facts as iterated in his Complaint. He also disputes certain statements alleged to be facts by the defendants in their memorandum and makes the following corrections:
1. Pocahontas Smith's request by motion for the appointment of a guardian ad litem ["GAL"] was not the product of a prior agreement between the parties. That was a falsity which Judge Gould used to reach her decision [Addendum at 46-49];2 ARGUMENTS
2Two Massachusetts judges were suspended on 1 November 2001 for lying. 2. In his motion for restitution, Smith did not request that the cost-sharing arrangement be vacated. Smith requested "relief from either the stipulation or order requiring him to share in payment of the costs of the guardian ad litem" and moved "that that relief be in the form of reimbursement to him from the Commonwealth for the monies paid on his behalf to the guardian ad litem" [Addendum at 27-28];
3. Smith did not argue that the cost-sharing arrangement violated M.G.L. c. 215, sec. 56A, Smith argued that ordering the parties to pay the fees was in violation of the statute given that the statute explicitly states that the cost of the GAL is to be borne by the Commonwealth [A27-28];3
3Reference to the Addendum to the Complaint is Apage-number. 4. Judge Gould wrongly concluded the Smith had signed a stipulation agreeing to share in the cost of the GAL's fees; that was wholly untrue. Even assuming arguendo that it was true, such a stipulation is void [see Complaint at 17-19 and footnotes thereto];
5. An Appeals Court judge sitting in the single-justice session affirmed Judge Gould's decision, but for reasons different than those she gave as the basis of her decision [A54];
6. On 8 August 2000, without hearing and without any written findings of fact or conclusions of law, Judge Gould issued an order allowing removal of the children [A26]; and
7. On pages 5 and 6 of defendants' brief, where they attempt to summarize Smith's list of ways in which M.G.L. c. 215, sec. 56A ["215:56A"] is unconstitutional, they fail to iterate sufficiently how the deficiencies of 215:56A are unconstitutional deficiencies [Complaint, paras. 87-96].
1. Where M.G.L. c. 215, sec. 56A burdens a suspect or quasi-suspect group4or fundamental interest, and is not rationally related to the furtherance of a legitimate State interest, the statute is unconstitutional.
4Board of Trustees of the Univ. of Alabama v. Garrett, infra.Plaintiff Smith contends that the statute is vague and that it allows the violation of the due process and equal protection clauses provided in the Fourteenth Amendment to the United States Constitution and the Massachusetts Declaration of Rights by (a) failing to give parties the opportunity to examine a proposed GAL prior to appointment, (b) allowing the judiciary to abrogate their judicial responsibilities by both delegating the determination of parental rights to uncredentialed individuals without the requisite knowledge to perform that task, (c) allowing, without any safeguards, otherwise unreliable hearsay into the record under the guise of being a GAL's report, (d) allowing GALs to answer hypotheticals and to indulge in speculative testimony, (e) allowing the admission of a GAL's report into evidence prior to the parties having an opportunity to cross-examine the GAL and rebut the report and any other materials adverse to the party, (f) not safeguarding the fundamental constitutional due-process rights of the subject class of persons affected by the statute,5 and (g) not affording the affected class the same protection of the laws as other parties to lawsuits in other contexts have, to wit, the right to present evidence, to cross-examine those presenting evidence against them,6 to rebut materials adverse to them,7 the right to have a qualified person or persons as fact-finder(s).5"[B]iological parents have a fundamental, constitutionally protected interest in raising their own child." Adoption of Iris, 427 Mass. 582, 587 (1998).Such failures in the statute have led to conduct that violates substantive due process. "'"[S]ubstantive due process" prevents the government from engaging in conduct that "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952).'" Com. v. Bruno, 432 Mass. 489, 503 (2000), quoting Aime v. Commonwealth, 414 Mass. 667, 673 (1993), quoting United States v. Salerno, 481 U.S. 739, 746 (1987). A statute which violates the equal protection or substantive due process of the affected class is unconstitutional. Cf.English v. New England Medical Center, Inc., 405 Mass. 423, 428 (1989).6For 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).
7The Massachusetts Supreme Judicial Court has held that "[a] report compiled pursuant to G.L. c. 215, sec. 56A, is not objectionable as hearsay." Adoption of Arthur, 34 Mass.App.Ct. 914, 916 (1993), review den. 415 Mass. 1101, citing Jones v. Jones, 349 Mass. 259, 264 (1965).
For instance, a parent has a substantive due process right in a familial relationship with his children and that right requires adequate due process protection. Care & Protection of Rebecca, 419 Mass. 67, 81 n. 12 (1994). Where the lack of standards for the GAL's report appointed under 215:56A, as the Senate Post-Audit Report confirmed [A29-43], leads to "serious due process concerns persons involved in a case and jeopardizes the soundness of the eventual custody decision" [A34], there is no rational justification to the statute, making the statute violative of both substantive and procedural due process and unconstitutional. See discussion below.
Given that the right interfered with is a fundamental right, and the absence of provisions safeguarding that right infringes on that right, the statute is unconstitutional. SeeLee c. Commissioner of Revenue, 395 Mass. 527 (1985). "Cases not involving a suspect group or fundamental right need be supported only by a rational or conceivable basis." Id. at 530. "Only those classifications that serve to penalize the exercise of that [fundamental] right are tested on a strict scrutiny basis. Id., citing Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974).
Here, the penalty is extreme. The parent whom the GAL finds against is deprived of his rights to be the custodial parent or to visit with his children. Cf. Lee, supra at 532. That level of interference would justify application of strict scrutiny in determining the statute's constitutionality. Id.
If we assume arguendo that the right interfered with is not a fundamental right, the question becomes, whether the objective of the statute is legitimate and the means chosen bear a rational relationship thereto. Id. The objective is to provide the judiciary with an investigative tool, to wit, a guardian ad litem to investigate questions regarding the "care, custody, or maintenance of minor children and [ ] any matter involving domestic relations. . ." Judicial abrogation of judicial responsibilities is the means chosen. Assuming arguendo that the objective is legitimate, the means chosen bear no rational relationship thereto. Id.
And the means chosen bears no rational relationship to the objective because (a) the statute fails to give parties the opportunity to examine a proposed GAL prior to appointment,8, (b) the statute fails to set out the credentials and knowledge required of the GALs appointed,9,10 (c) the statute fails to set out the standard to which the GALs must work,11(d) the statute fails to set out whether a GAL is to be deemed by a judge as an expert or a lay witness,12 (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.
8In 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. (In Smith's case, the GAL sought expert fees in advance, though she was anything but an expert. She ultimately did not appear.)Given that the above-cited failures led to Senate Report #1828 attesting to inconsistent results and "serious due process concerns for the people involved in a case [which] jeopardize the soundness of the eventual custody decision" [A34], there is no rational justification to the statute. Town of Holbrook v. Town of Randolph, 374 Mass. 437, 441 (1978)9The 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.
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.
10 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.
11 The Senate Post-Audit and Oversight Committee report found that GALs work to no standards.
12 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.
2. Where the investigations and reports under M.G.L. c. 215, sec. 56A, are performed according to no standards, the statute is implemented in an inconsistent manner [A29-43] and is violative of procedural due process.
M.G.L. c, 215, sec. 56A, which does not provide ample procedural protections to those subjected to an investigation by a GAL, also violates a party's procedural due process rights. Cf. Com. v. Bruno, 432 Mass. at 504. "Procedural due process 'requires that a statute or governmental action that has survived substantive due process scrutiny be implemented in a fair manner.'" Id., citing Aime v. Com., 414 Mass. at 674 (commitment proceedings).
Clearly, as the Senate Post-Audit Committee determined and reported [A29-43]: (a) "Massachusetts does not ensure that GALs are properly trained to make critical decisions" [A31, A37], (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 insurance and being in good standing with the GAL's licensing board for their underlying profession" [A31-32], (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"13 [A32],
13 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 order to 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].Where the investigations and reports and other tasks performed under M.G.L. c. 215, sec. 56A, have so many deficiencies, the statute is implemented in an inconsistent manner [A29-43] and is violative of procedural due process.
3. Where the vagueness of M.G.L. 215, sec. 56A "prevents fair notice of the conduct prescribed by [the] statute and fails to limit the possibility of arbitrary and discriminatory enforcement," Smith's due process rights have been violated.
Where the vagueness of M.G.L. 215, sec. 56A, "prevents fair notice of the conduct prescribed by [the] statute and fails to limit the possibility of arbitrary and discriminatory enforcement," Smith's due process rights have been violated. Sullivan v. Reilly, No. 00446-H, 2000 WL 776414 * 6 (Mass.Super. 2000) (Lopez, J,), citing Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873 (1983), citing Papachristiou v. Jacksonville, 405 U.S. 156, 162 (1972) and Grayned v. Rockford, 408 U.S. 104, 108-109 & n. 4 (1972).
"[T]he relevant inquiry is whether persons of 'common intelligence must necessarily guess at its meaning and differ as to its application.'" Sullivan, 2000 WL 776414 * 6, quoting Smith v. Goguen, 415 U.S. 566, 572 n. 8 (1974) and citing to Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).
Given all the deficiencies set out in the Senate Post-Audit Report and those which Smith encountered, there can be no doubt that the statute's arbitrariness and discriminatory nature is sufficient to hold that the statute is vague.
4. Where this action is not challenging the merits of and is not inextricably intertwined with the underlying divorce action, but is facially challenging a state statute, the Rooker-Feldman doctrine does not bar the instant case.14
14 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).a. Where Smith is not seeking in any of his causes of action the reversal of Judge Gould's decisions or voiding of her holdings,15 the Rooker-Feldman doctrine is inapplicable to Smith's claims against her. He is seeking only money damages from Judge Gould.
15 Hill et al v. Town of Conway, 193 F.3d 33 (1st Cir. 1999).
Because this Court need not decide any issue either actually litigated in the Massachusetts court or "inextricably intertwined" with issues so litigated in the state probate court, there is no jurisdictional bar. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 18 (1987) (Scalia, J., Concurring, with whom Justice O'Connor joined).Further, Smith filed this section 1983 action for an injunction that governs the judges' future conduct, for money damages against the individual officers who have acted outside their jurisdiction and unconstitutionally, not to challenge the merits of the underlying divorce action. Therefore the Rooker-Feldman doctrine does not apply, where the review of the merits of the underlying action is not being sought. Id.
Justice Marshall agreed also with Justices Scalia and Brennan that the Rooker-Feldman doctrine did not apply in Pennzoil:
[The Rooker] principle that federal appellate review of judgments rendered by state courts can occur in the Supreme Court on appeal or by writ of certiorari . . . applies only to review of the substance of state judgments, and that the federal action now before us involved solely a constitutional challenge to procedures for enforcement of the state judgment, totally apart from the merits of the state-court action itself.
Pennzoil, supra at 24-25 (Marshall, J., Concurring), cite omitted.Justice Stevens agreed with Justices Brennan and Scalia that the Rooker-Feldman doctrine "[did not bar] the federal courts from considering Texaco's claims." Pennzoil at 31 n. 3 (concur-ring footnote 3). For like reasons, the Rooker-Feldman doctrine does not apply to the instant case.
Moreover, the defendants concede, on page 1 of their memorandum, "Plaintiff Francois Smith, Jr. has brought this action . . . challenging the constitutionality and the defendants' administration of a Massachusetts statute governing the appointment of guardians ad litem in probate court actions, particularly as that statute has been applied [ ] in a divorce action [ ] currently pending in Massachusetts Probate & Family Court."
Thus under Pennzoil, the Rooker-Feldman doctrine does not apply to the case at bar. "`The very purpose of sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights.'" Pennzoil, at 19 (Brennan, J., Concurring), quoting Juidice v. Vail, 430 U.S. 327, 342 (1977) (Brennan, J.), Concurring) (quoting Mitchum v. Foster, 407 U.S. 225, 242 (1972).
"Only a state court adjudication that itself has preclusive effect can bring the Rooker-Feldman doctrine into play." Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000), citing Davis v. Bayless, 70 F.3d 367, 376 (5th Cir. 1995). "Rooker-Feldman does not `bar an action in federal court when that same action would be allowed in the state court of the rendering state." Cruz, at 21, quoting Davis, at 376. "[C]laims for declaratory and injunctive relief are general constitutional challenges to a state statute and hence not barred by the Rooker-Feldman doctrine." Canty v. Larhette. 201 F.3d 426, 426 (1st Cir. 1999), citing Schneider v. Colegio do Abogodos de Puerto Rico, 917 F.2d 620, 628 (1st Cir. 1900) (Rooker-Feldman doctrine does not bar facial challenges to state statutes).
Part a: Judge Gould unlawfully and knowingly acted contrary to the requirements of mandatory statutes, namely, M.G.L. 215:56A, 208:30, and 209B:5(a) [Complaint, pars. 100(a)-(c) and subparagraphs]. Her unlawful acts were forbidden by the Commonwealth and were thus expressly committed in the absence of jurisdiction. Where Judge Gould was "not doing the business which the sovereign has empowered [her] to do or [she was] doing it in a way which the sovereign has forbidden, [her] actions [were] ultra vires [her] authority and therefore may be made the object of specific relief. . . . and in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power." N.H. Ins. Guar. Association v. Markem Corp., 424 Mass. 344, 352 (1997), quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949), discussed at length in Pennhurst, supra.
Because Judge Gould was not authorized to violate the law, and her conduct was forbidden, her actions are ultra vires and she is liable for her own conduct. The two types of ultra vires conduct are clearly identified in Larson, supra. SeePennhurst at 153.16
16
That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). The Larson opinion teaches that the actions of state officials are not attributable to the State -- are ultra vires -- in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that the sovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson.Pennhurst at 153 (Stevens, J., with whom Brennan, Marshall, Blackmun, JJ, join, Dissenting).
For these reasons, Judge Gould is stripped of any claim to judicial immunity. Rankin v. Howard. 633 F.2d 844 (1980), cert. denied sub nom., Zeller v. Rankin, 451 U.S. 939 (1980). See further discussion below. The rationale had been stated in Pennhurst: "Since the State [can] not authorize the action, the officer [is] `stripped of his official or representative character and subjected in his person to the consequences of his individual conduct."17 Pennhurst, at 102, quoting Young, at 160. And it was restated in Mireles v. Waco, 502 U.S. 9, 12 (1991) ("judge is not immune for actions, though judicial in nature, taken in the absence of all jurisdiction").17 "This rationale, of course, created the 'well-recognized irony' that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment." Pennhurst at 104-105, cite omitted.That the divorce action is still pending is of no relevance. The marital status of the Smiths is not material to the claims in this suit. The custody of the children is not material to the claims of this suit. The damage to the children has already been caused by Judge Gould's intentional violation of the existing laws cited. The eventual distribution of personal and real property is not material to the claims of this suit. And the claim for a declaration as to the constitutionality of the first two sentences of M.G.L. c. 215, sec. 56A, is not subject to the Rooker-Feldman doctrine.If Smith complains of the eventual decision on child custody or child or spousal support or property distribution after the divorce trial, he will file an appropriate and timely appeal in the Appeals Court of Massachusetts. Those issues are not included in the case at bar.
The primary issue at bar is the facial challenge to the unconstitutional statute, M.G.L. c. 215, sec. 56A. The secondary issues are part of "a species of tort liability" created by Section 1983 "in favor of persons who are deprived of rights secured by Federal law." Crane v. Comm'r of Public Welfare, 400 Mass. 46, 48 (1987).
Defendants baldly assert [on page 11 of their brief] that Smith seeks to have this court review and reverse Judge Gould's decisions, but, significantly, the defendants fail to identify which decision Smith has asked to be reversed. They failed to do so because there is not one.
Defendants also complain that the causes of action against Judge Gould were for violations of state law. As stated, this action is a species of tort liability under sec. 1983 for the deprivation of Smith's rights secured by Federal law. "[I]t is no less [an action] because it is also an action under State law." Crane, at 49. "Asserting jurisdiction not only under State law but under 42 U.S.C. sec. 1983, as well, [plaintiff's] complaint alleges a wrong under Federal law requiring a monetary remedy." Crane, at 48. Monetary damages would not be available in the divorce action in the Massachusetts Probate & Family Court.
5. Where the Commonwealth consented to suit by waiving its sovereign immunity completely in its Constitution in the 18th century and some of its immunity by statute (M.G.L. c. 258) in the 20th, the defense of sovereign immunity through the Eleventh Amendment is unavailable to the Commonwealth as a defense to any of the claims brought in this action.
Defendants argue that Massachusetts has complete immunity.
Smith's contention is to the contrary. He contends that there are four explicit sources showing waiver or sources containing indicia of the intent not to have sovereign immunity or, at a later point in time, to do away with sovereign immunity in the Commonwealth:18 (1) Article 5 of the Massachusetts' Declaration of Rights, (2) Article 11 of the Massachusetts' Declaration of Rights, (3) M.G.L. c. 258, and (4) the judiciary as well as the legislature.19
18 "Departures are, of course, occasionally required by changes in the fabric of our society." Pennhurst at 164."This is an especially odd context in which to repudiate settled law because changes in our social fabric favor limitation rather than expansion of sovereign immunity. The concept that the sovereign can do no wrong and that citizens should be remediless in the face of its abuses is more a relic of medieval thought than anything else."
Id. at 164 n. 48. 19Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States.
Board of Trustees of the University of Alabama v. Garrett, No. 99-1240 (11th Cir. 2/21/2001) (cite omitted).
Source 1. Article 5 of the Massachusetts Declaration of Rights tells us that the three branches of government must be accountable to the people:All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Constitution of the Commonwealth of Massachusetts, Part the First, art. 5, ratified on 16 June 1780,20 a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). The decision in Chisholm "created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97 (1984), quoting Monaco v. Mississippi, 292 U.S. 313, 325 (1934).20 "From the fifteenth-century English common law to Larson and beyond, courts have never held that prohibited conduct can be shielded by sovereign immunity. That rule makes good sense -- since a principal cannot authorize unlawful conduct, such conduct is of necessity ultra vires. There is no reason to abandon such a well-settled and sensible rule." Pennhurst at 166 n. 51 (Stevens, Dissent).Never has Massachusetts' Article 5 been repealed. Never has the impact of the Eleventh Amendment of the United States Constitution on Article 5 been considered and determined by a Massachusetts court. Never has the word "accountable" as used in Article 5 been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin v. Comm'r of Dept. of Youth Services, 388 Mass. 810, (1983) was Article 5 cited.
Throughout its history this Court has derived strength from institutional self-discipline. Adherence to settled doctrine is presumptively the correct course. Departures are, of course, occasionally required by changes in the fabric of our society. When a court, rather than a legislature, initiates such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals -- the doctrine of the law of the case, the doctrine of stare decisis (the Court repudiates at least 28 cases), the doctrine of sovereign immunity, the doctrine of pendent jurisdiction, and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court's voyage into the sea of undisciplined lawmaking.
Pennhurst at 164-166 (Stevens, Dissent) (references to footnotes 47 through 52 omitted).Smith suggests that if an entity is held accountable for some wrongdoing, that entity must make restitution or compensate the victim or provide some equitable relief for the wrong -- the fundamental right to a remedy being clearly established in Article 11, Mass. Declaration of Rights.
Here, where the primary reason for the sovereign Massachusetts to retain immunity is solely to protect the State's coffers, Smith suggests that where he contributes to the state's coffers, he is entitled to compensation for the wrongs committed by the Commonwealth and its subdivisions against him.21
21 Cf. Morris v. Mass.Maritime Academy, 409 Mass. 179, 187 (1991) (waiving immunity to admiralty claims under Mass. Tort Claims Act).That reason lends credence to the notion that Smith has a right to seek equitable relief under section 1983 and under state law.The Massachusetts Supreme Judicial Court has never analyzed the confluence of Article 5, Mass. Declaration of Rights, and the Eleventh Amendment to the United States Constitution. Cf.Attorney General v. Desilets, 418 Mass 316, 321 (1994) (SJC chose not to adopt reasoning of the United States Supreme Court under the First Amendment).
Source 2. Article 11 of the Massachusetts Declaration of Rights provides:
Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. . . .
There is no explicit exclusion of the Commonwealth in the article.Source 3. M.G.L. c. 258 contains the list of causes of actions explicitly excepted from the imagined sovereign immunity, already abrogated by Article 5. That list diminishes the immunity which the Massachusetts Constitution never intended to allow the Commonwealth or its agents.
"At the time [the Massachusetts Tort Claims Act] was enacted [in 1978], the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims." Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. 810, 813 (1983).
In Irwin, the Massachusetts highest court reviewed in excruciating detail the history of the Tort Claims Act after two "significant decisions of this court" [Id. at 816]: in 1973, Morash & Sons, Inc. v. Com., 363 Mass. 612, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977). In Whitney, the high court announced its intention to abrogate the sovereign immunity doctrine, retroactively to the date of the decision in Morash, should the Legislature have failed to act by the conclusion of its 1978 session. Whitney.
So the Legislature effected some loosening of sovereign immunity in the Commonwealth.
Given the explicit displeasure of Massachusetts' highest court with the "logically indefensible" sovereign immunity doctrine, it would not likely be, Smith contends, offensive to the Massachusetts' high-court jurists if this court were to use its discretion to invoke the supremacy clause to abrogate completely Massachusetts' sovereign immunity in the federal courts, if not also in the state courts.
Not included amongst the causes of action excepted from the waiver statute, M.G.L. c. 258, are civil rights actions. See, for example, Bain v. Springfield, 424 Mass. 758 (1997), where SJC held that the antidiscrimination statute waived the Commonwealth's sovereign immunity and that of its political subdivisions by including them in the statutory definition of persons and employers subject to the statute. In that same case, the Commonwealth and its subdivisions were also held to be liable for punitive damages. Id. at 762-763.
Source 4. The consent of the Commonwealth to suit may be derived from the judiciary as well as from the legislature [Morash, 363 Mass. at 615-616], but, as the Supreme Judicial Court emphasized, "the doctrine of sovereign immunity is 'logically indefensible.'" Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash at 618-619. "[W]e stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities." Whitney v. Worcester, 373 Mass. 208, 212 (1977). As of 1977, "Massachusetts [was] one of only five remaining States which retain[ed] the common law immunity at both the State and local levels. . . . All except thirteen States ha[d] abolished or limited the defense in suits against the State." Whitney, 373 Mass. at 212 (treatises omitted). "'[Any] limits to governmental liability and exceptions to the rule of liability [should be] based upon considerations of justice and public policy."" Id., cites omitted.
6. Although the Eleventh Amendment bars claims against the Commonwealth and its agencies, the doctrine of Ex parte Young, 209 U.S. 123, is applicable and allows claims for declaratory and injunctive relief against the judges to proceed insofar as the plaintiff seeks to preclude continuing violations of federal law.
Defendants also argue that under the Eleventh Amendment, state officials cannot be sued in federal court for alleged violations of state law. This is not true.
Where the judges were acting beyond their state-conferred authority and prospective relief is sought, the Ex parte Young, infra, doctrine is applicable. The purpose of the Young doctrine is to ensure, in the face of the Eleventh Amendment, that violations of federal law will be recognized [Idaho et al v. Coeur d'Alene Tribe of Idaho, 117 U.S. 2028, 2034 (1997)] . . . and the Commonwealth continues to have an interest in the litigation because state policies and procedures are at stake. Idaho at 2034.
Further, the Pennhurst case, upon which defendants rely, identifies many cases in which the Eleventh Amendment does not apply. The majority Court in Pennhurst painstakingly distinguished them from the slew of cases cited by Judge Stevens in his brilliant and patriotic effort to uphold justice in his dissent.22 Some of the cases arise out of Ex parte Young, 209 U.S. 123, 160 (1908) (unconstitutional enactment is "void" and officer is not immune from responsibility to the "supreme authority of the United States").23
22 In the following "doctrine of stare decisis" cases the Court held injunctive relief may issue against state officers on the basis of state law after explicitly rejecting their Eleventh Amendment defense: Rolston v. Missouri Fund Commissioners, 120 U.S. 390 (1887); South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Scully v. Bird, 209 U.S. 481 (1908); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911); Atchison T. & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918); Greene v. Louisville & Interurban R. Co., 244 U.S. 499 (1917); Louisville & Nashville R. Co. v. Greene, 244 U.S. 522 (1917); Illinois Central R. Co. v. Greene, 244 U.S. 555 (1917).To circumvent the cases which Justice Stevens cited and a century and a half of jurisprudence24 showing that the Eleventh Amendment does not apply where there is no state-law shield — as would be the case in Massachusetts were Article 5 properly honored -- the majority in Pennhurst explained away the cases cited by Stevens by saying the cases "do not rest on an Eleventh Amendment holding at all."25 Pennhurst at 141 n. 19. One exception was Rolston v. Missouri Fund Commissioners, 120 U.S. 390 (1887) (state officials ordered to comply with "a plain ministerial duty"; "the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the state"). Pennhurst at 109 n. 19 and 134.23 In Young, the Court recognized "an important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State." Pennhurst, 465 at [paragraph. 42].
24
[A] century and a half of this Court's Eleventh Amendment jurisprudence has established the following. A suit alleging that the official had acted within his authority but in a manner contrary to state statutes was not barred [by] the Eleventh Amendment. . . . [I]t does not bar suits against state officials for actions not permitted by the State under its own law. The sovereign could not and would not authorize its officers to violate its own law; hence an action against a state officer seeking redress for conduct not permitted by state law is a suit against the officer, not the sovereign. Ex parte Young concluded in as explicit a fashion as possible that unconstitutional action by state officials is not action by the State even if it purports to be authorized by state law, because the Federal Constitution strikes down the state-law shield. In the tort cases, if the plaintiff proves his case, there is by definition no state-law defense to shield the defendant. Similarly, when the state officer violates a state statute, the sovereign has by definition erected no shield against liability. These precedents make clear that there is no foundation for the contention that the majority embraces -- that Ex parte Young authorizes injunctive relief against state officials only on the basis of federal law. To the contrary, Young is as clear as a bell: the Eleventh Amendment does not apply where there is no state-law shield. That simple principle should control this case.
Pennhurst, at 158-159 (Stevens, J., Dissent). Later, in Edelman v. Jordan, 415 U.S. 651, cited by defendants, the Court distinguished between prospective and retroactive relief, to fulfill the underlying purpose of Young. Pennhurst at 105. A "federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief. Pennhurst at 102-103; Mireles v. Waco, 502 U.S. 9, 10 n. 1 (1991), citing Pulliam v. Allen, 466 U.S. 522, 536 (1983) (affirming judge not immune from suit for prospective injunctive relief). "[A] judge is [also] not absolutely immune from criminal liability" [Mireles, at 10 n. 1, citing Ex Parte Virginia, 100 U.S. 339, 348-349 (1880)] or "from a suit for attorney's fees authorized by statute." Id. at 543-544."The crucial element of the Dissent's theory was [that a] `sovereign, like any other principal, cannot authorize its agent to violate the law,' so that when the agent does so he cannot be acting for the sovereign." Pennhurst, at 113, citing Stevens' dissent at 153.
25 "[A]n official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment." Pennhurst at 105, cite omitted. "Nonetheless, the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to `the supreme authority of the United States.'" Pennhurst, at 105. The Pennhurst court then went on to refuse to vindicate state rights. Id.
The majority appeared also to allow suit against officials:
(1) where the suit is predicated on violations of state statutes that do not command purely discretionary duties, (2) where "the allegation [is] that a state officer or agency had acted unconstitutionally, rather than merely contrary to state law. Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911). In Johnson v. Lankford, 245 U.S. 541 (1918), the relief sought was not injunctive relief but money damages against the individual officer. See n. 21, (infra). None of these cases can be said to be overruled by our holding today" [Pennhurst, at 109 n. 19],
(3) where the suit did not challenge the discretion of the Secretary of War, "but challenged his authority to do the things of which complaint was made" Pennhurst at 110 n. 20, citing Philadelphia Co. v. Stimson, 223 U.S. 605, 620 (1912),
(4) where an officer commits a tort that is "contrary to a plain official duty requiring no exercise of discretion," Noble v. Union River Logging R. Co., 147 U.S. 165, 171-172 (1893); Belknap v. Schild, 161 U.S. 10, 18 (1896) (under Eleventh Amendment, injunctive relief is permitted),
(5) where a suit alleges unconstitutional conduct, it is not barred by the Eleventh Amendment. Pennhurst at 115 n. 27, citing Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446 (1883) (cited only for proposition that a suit alleging unconstitutional conduct is not barred by the Eleventh Amendment, but that State cannot be sued without its consent); Poindexter v. Greenhow, 114 U.S. 270 (1885) (unconstitutional-conduct suit is not suit against State); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894) (same). Tindal v. Wesley, 167 U.S. 204 (1897) (suit alleging unconstitutional conduct is not barred by the Eleventh Amendment).26
26 In federal sovereign-immunity cases, also, where actions are for damages in tort against an individual federal officer. Pennhurst at 111 n. 21, citing Little v. Barreme, 2 Cranch 170 (1804); Wise v. Withers, 3 Cranch 331 (1806); Mitchell v. Harmony, 13 How. 115 (1852); Bates v. Clark, 95 U.S. 204 (1877); Belknap v. Schild, 161 U.S. 10 (1896). "In Belknap the Court drew a careful distinction between such actions and suits in which the relief would run more directly against the State. Id., at 18."
Given that the acts complained of in the instant case are violations of mandatory statutes and that the defendant judge and the court acted unconstitutionally, rather than merely contrary to state law, they are not barred by the Eleventh Amendment. Pennhurst, at 109 n. 19. See Hopkins, supra, and Atchison, supra.In sum, as to Smith's claims against the individual judges,
the Eleventh Amendment is not a bar to the naming of a state official, rather than the state or agency, as a defendant. See Erwin Chemerinsky, Federal Jurisdiction sec. 7.5, at 389 (2d ed. 1994). A plaintiff may, subject to a number of caveats, obtain injunctive relief against state officials and also, if she sues the officials in their individual capacities, recover monetary relief from them. Thus, we proceed to the claims made against the individual defendants.
O'Neill v. Baker, 210 F.3d 41, 47 (1st Cir. 2000). In O'Neill, at 47 n. 5, Judge Keeton wrote:
O'Neill has made no claim that the DSS should not be considered an arm of the state for Eleventh Amendment purposes. Therefore, we assume that it is. [Cite omitted.] Additionally, O'Neill has offered no evidence that the state has waived its immunity.
Smith contends the the judiciary is not an arm of the Commonwealth and relies upon Appeals Court Judge McHugh's decision on Smith's interlocutory appeal of the collateral matter of the guardian ad litem's fees [A50-54]. In his decision, Judge McHugh emphasized that the Commonwealth was not a party to the suit, that Smith would have to effect service of process, and that Judge Gould did not have the authority to order the Commonwealth to make restitution to Smith. Assuming arguendo the Judge Gould was an arm of the Commonwealth, Judge McHugh's could have allowed the restitution, since it was Judge Gould's responsibility to conform her order to c. 215, sec. 56A. Clearly Judge McHugh took the position Smith takes now. See Kinan v. Trial Court, 400 Mass. 582, 586 (1987). In Kinan, (1) presentment was properly made to the Trial Court and not to the Attorney General's office [400 Mass. at 586], (2) the Trial Court was not an agency within the executive office of the Commonwealth [id.], and (3) the Trial Court was deemed an "other public employer." Id.
7. Where sovereign immunity is unconstitutional in Massachusetts, under Article 5 of the Massachusetts Declaration of Rights, Massachusetts must be found a "person" under sections 1983, 1985(3), 1986, and 1988.
Despite the finding in Will v. Michigan Department of Police, 491 U.S. 58 (1985), that a State is not a "person" within the meaning of 42 U.S.C. 1983 because of the application of the Eleventh Amendment, Smith contends that the application of sovereign immunity in cases between Massachusetts parties is unconstitutional. The basis of his contention is (a) that Article 5 of the Massachusetts Declaration of Rights demands accountability from the state and the three branches of government and (b) that there was never a legislatively enacted amendment to the Constitution of the Commonwealth of Massachusetts repealing that article, Article 5 of the Declaration of Rights, which guaranteed accountability by all three arms of government to the people, of which Smith is one.27
27 The application of the Eleventh Amendment to Massachusetts cases in federal courts could not have been contemplated by the drafters of that constitutional article.Therefore, the Commonwealth cannot invoke now, in federal or state court, sovereign immunity.It follows therefrom that the Commonwealth must be found a "person" in the instant case . . . even if only to fulfill that constitutional guarantee of accountability.
Notwithstanding Smith's "Article 5" argument, "[a] suit against a state official in her official capacity therefore should be treated as a suit against the State." Hafer v. Melo, 502 U.S. 21, 25 (1991)
As the Court wrote post-Pennhurst in Will, "This does not mean ... that we think that the scope of the Eleventh Amendment and the scope of section 1983 are not separate issues. Certainly they are." Id. at 66. "The inference must be drawn, it is urged, that Congress must have intended to subject the States themselves to liability." Id. at 68. So the quantum leap from that statement immediately to "But the intent of Congress to provide a remedy for unconstitutional state action does not without more include the sovereign States among those persons against whom section 1983 would lie" [id.] does not pass the sniff test.
Smith, of course, is in agreement with the "Dictionary Act" argument set forth by the minority opinion in Will that the words "bodies politic and corporate" -- before and after the time the Dictionary Act and section 1983 were passed -- were understood to include the States. Will, at 69-70 (majority opinion), 69 notes 8 and 9, and 73-77 (Justice Brennan, with whom Justices Marshall, Blackmun, and Stevens joined).
Smith asserts, also, that the Commonwealth is a "person" under sections 1983, 1985(3), 1986, and 1988 under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 717 (1978), where the Court admitted that the "Senate Report stat[ed] that liability may be imposed [under sec. 1988] `whether or not the agency or government is a named party.'"
8. Where plaintiff has sued the judges in their official capacity for injunctive relief, and in their individual capacities for money damages, they are persons under section 1983.
Where plaintiff has sued the judges in their official capacity for injunctive relief, they are persons under section 1983. Will, supra at 92.
A judge is a state actor acting under color of law regardless of the character of the judge's action. Dennis v. Sparks, 449 U.S. 24, 28-29 ((1980). A state official in her personal capacity is a "person" for purposes of 1983. Hafer v. Melo, 502 U.S. 21, 23, 31 (1991) (rejecting Will). "The Eleventh Amendment does not bar 1983 personal-capacity suits against state officials in federal court." Hafer, at 22, citing Scheuer v. Rhodes, 416 U.S. 232, 237, 238.28
28 "[S]tate officials may [ ] be held liable in their personal capacity for actions they take in their official capacity." Hafer, at 27. "[O]fficials [other than judges and legislators] seeking absolute immunity must show that immunity is justified for the governmental function at issue." Hafer. at 29, citing Burns v. Reed, 500 U.S. 478, 486-487 (1991).
9. Where M.G.L. c. 211B, sec. 10(xv) bestowed Judge Dunphy with the power to order Judge Gould to participate in a judicial enhancement program, and he refused or failed to exercise that power, and with deliberate indifference to the clearly established and secured constitutional rights of Smith, failed to protect and prevent wrongs conspired to be done Smith, a cause of action has been pled for which relief may be granted.First, defendants claim that Judge Dunphy had no power over Judge Gould. He did have that power, under M.G.L. c. 211B, sec. 10, subsection xv, and Smith complained specifically of Judge Dunphy's failure to exercise his power under that subsection.
Second, the Rooker-Feldman doctrine is inapplicable to the claims against Judge Dunphy: Logically in every case, contrary to the defendants' contention, facts must be reviewed. The focus in determining whether the doctrine is applicable is a determination of whether Smith has sought the reversal of a state-court decision or the voiding of a state-court holding. This, Smith has not done, making the Rooker-Feldman doctrine inapplicable and not barring this case.
Third, section 10(xv) was duly enacted by the Legislature. The conduct set forth in subsection xv was authorized. The failure to engage in that proscribed conduct yielded the opposite result, precluding protection by judicial immunity. A do-nothing attitude was not contemplated by the Legislature. One might conclude, a do-nothing attitude was forbidden. If Judge Dunphy was not going to the job defined in section 10, he should not have accepted the job.
Fourth, in footnote 4 on page 14 (a bit out of place in the "Dunphy" section of defendants' brief), defense counsel encouraged Smith to appeal Judge Gould's rulings. Smith did file interlocutory appeals on collateral issues: the closing of the session and the restitution of the GAL's fees. They were unsuccessful. The closing issue is not the subject of this action. For the restitution of the fee, Smith is following the suggestion of Judge McHugh and suing the Commonwealth, in Count 12 on the Account Annexed to this action.
Smith's prior counsel failed to file timely an interlocutory appeal about the removal of the children. Smith's current counsel filed two unsuccessful single-justice interlocutory appeals and an unsuccessful writ of mandamus concerning the removal of the children to another State. Each time, the decision was that the removal order was temporary and the issue would not be dealt with until after final judgment.
In the instant action, Smith has not sought the reversal of the temporary order. He sues, here, rather for the damages he has suffered as a result of the unlawful order which has deprived him of his clearly established and secure rights as set forth in considerable detail in his Complaint.
10. Where judges act in the absence of jurisdiction, i.e., do what they are not authorized to do or are forbidden to do, and harm is caused by their deliberate indifference to the clearly established and secured constitutional rights of a person, that person may file an action, as in the instant case, under sections 1983, 1985(3), or 1986.
First, it would have been helpful to Smith and likely this court were the defendants to have provided a cite or two for their proposition, rather than improperly indulge in bald assertions.
Second, defendants periphrastically and wrongly concluded, on page 15 of their memorandum, that Smith specifically agreed to bear the costs of the GAL in the divorce action That is untrue as written. Judge Gould lied in her decision when she claimed that a written stipulation about bearing the costs was signed by both counsel and both parties.29 Given that Smith questioned the existence of the stipulation, Judge Gould should have checked the record.
29 Smith's wife's counsel, E. Chouteau Merrill, admitted, ultimately, to Judge McHugh that no such stipulation existed even though she had told Judge Gould that one did exist. Judge McHugh then deemed that misrepresentation to the judge a "mistake" rather than a fraud upon the court. Coincidentally, Merrill's nomination by the Governor for a judgeship in the Probate & Family Court had been announced 12 days prior to the hearing at which the admission was made.What happened a year earlier was that Smith's prior counsel did not object to the wife's motion for a GAL and for the sharing of the payment of the GAL fees. Assuming arguendo that prior counsel's failure to object was a stipulation, it was, under existing law, void ab initio.Where the parties stipulate to facts that are contrary to a statute or that lead to a result contrary to that which would be reached if the statute were followed, the stipulation must be vacated. A stipulation to a fact which is untrue must be vacated on the grounds that it is "not conducive to the interest of justice." Vittands v. Sudduth, 41 Mass.App.Ct. 515, 516 n. 4 (1996), cert. denied 424 Mass. 1103 (1996). Where the parties stipulated to a statute being effective upon the date the act was passed, the stipulation, even "[g]iving the parties' arguments [ ] their maximum effect," was discharged as not being conducive to justice." Id., citing to Shearer v. Jewett 31 Mass. (14 Pick.) 232, 236 (1833), Symmes Arlington Hosp., Inc. v. Arlington, 292 Mass. 162, 165 (1935), Lincoln Elec. Co. v. Sovrensky, 305 Mass. 476, 479 (1940).
In Symmes, the hospital had agreed to assume the entire cost of the hospitalization of three boys if judgment were to enter for the defendant. Where the stipulation would have yielded a result contrary to the provisions of a statute, the Supreme Judicial Court had its "undoubted power to vacate"30 on the grounds that the stipulation led to a result contrary to that which would have been achieved had the statute been followed. Symmes, supra at 165 (other cites omitted), quoting Shearer v. Jewett, 14 Pick. 232, 236.
30 In Symmes, the appellate court also set aside the assessment of damages, and ordered a new trial limited to the question of damages.In City of Waltham v. City of Newton, 306 Mass. 59, 63-64 (1940), the Court held that the obligation of a municipality to provide for relief of indigent persons residing therein was mandatory under G.L. c. 115, sec. 17. Where the provisions of the subject statute were mandatory -- as is the provision in G.L. c. 215, sec. 56A, requiring the Commonwealth to bear the costs of a court-appointed guardian ad litem -- the defendant could not waive the provisions (section 14) of the statutory scheme, and the stipulations were vacated. City of Waltham, supra at 64, citing Shearer, supra, Delano v. Smith, 206 Mass. 365, 372; Lincoln Electric, supra and cases cited.Third, Smith does have a personal stake in the issue, contrary to defendants' assertion on page 15. Given that the divorce action is not yet finalized and the GAL is still invading Smith's privacy, although there is no active appointment, and still keeping the Smith account open, Smith does have a stake in the issue. If Memo #14 is determined to be unlawful and prospective injunctive relief is given, as well as money damages for what he has suffered thus far, he will receive a remedy for the wrong committed against him. If Memo #14 is not found unlawful and conspiracy is not found, he will have been denied, in violation of the guarantee of Article 11 of the Massachusetts Declaration of Rights, a remedy for the wrongs committed against him.
Fourth, contrary to defendants' assertion in footnote 6 on pages 16-17 of their memorandum, an objective reasonable official would have believed that to order a violation of an existing statute would result in Smith being deprived of his right to the equal protection of the laws, a right which was, indeed, secured and clearly established by the both constitutions at the time the wrong was committed.
Fifth, defendants weakly attempt to defend the phrase in Memo #14 which adds a condition which is not included in the duly enacted statute: to wit, "the proviso `if the GAL's services are on behalf of the court' [A15]" [Complaint, par. 74]. Memo #14 also does not define which of the so-called services of a GAL are on behalf of the court [Complaint, par. 75]. That provision in Memo #14 changed by secret judicial fiat the law on which the judges are to rely and interpret and by which they are to make fair and just determinations. SeeAttorney General v. Desilets, 418 Mass 316, 343 (1994) ("amendment should be achieved by lawful procedures for constitutional amendment, not by judicial fiat"). Memo #14 thwarts that responsibility. "`[A]mendment of a statute by judicial fiat [ ] is inconsistent with the constitutionality mandated allocation of powers among the three branches of government. Murphy v. Smith, 411 Mass. 133, 140-141 (1991). "[Judicial fiat] is an assertion of judicial power [which] deflects responsibility from those on whom in a democratic society it ultimately rests the people." Shell Oil Co. v. City of Revere, 383 Mass. 682, 688 (1981) (Frankfurter, J., Concurring). "The Court cannot change this state regulatory scheme by judicial fiat." Larson, Commissioner of Securities, Minnesota Dept. of Commerce v. Valente, 456 U.S. 228, 268 n. 4 (1982).
The defendant judges are accountable to Smith as a person in Massachusetts. Art. 5, Massachusetts Declaration of Rights.
11. Where there is a material dissonance between the Eleventh Amendment and Article 5 of the Mass. Declaration of Rights, and the Massachusetts Supreme Judicial Court has not addressed that dissonance, as it recently has for the First Amendment, it is appropriate to find that the Eleventh Amendment does not apply to state claims.
a. The claims in Counts 8 through 14 may also be considered federal common-law claims, despite the defendants' contention that there is no federal common law.
First, recently in Attorney General v. Desilets, 418 Mass 316, 321 (1994), the SJC chose not to adopt the reasoning of the United States Supreme Court under the First Amendment. The Supremacy Clause, Art. VI, cl. 2, did not reign supreme, despite the reasoning in O'Brien v. Massachusetts Bay Transportation Authority, 162 F.3d 40 (1st Cir. 1998) to the contrary that it should. State common law reveals that there are exceptions to when the Supremacy Clause applies. Whether the SJC would allow the Supremacy Clause to eviscerate Article 5 has not been addressed by the SJC. Unlike the MBTA, which had a choice of action in O'Brien and decided to "tap[ ] into the federal fisc," the judges here had no choice. They had to obey the laws of the Commonwealth. Thy did not. Should the magnanimity of the Eleventh Amendment be applied when a plaintiff's constitutional right to equal protection has been stripped by the very people who are responsible for maintaining order but who created chaos instead?Second, the defendants' contention in their footnote 8 on page 19 of their brief, "Because there is no general federal common law, the common law claims are necessarily state law claims," is untrue. The words "federal common law" are, in fact, used in Pennhurst. See, for example, Pennhurst, at 141 ("common law doctrine of sovereign immunity"). Federal common law is also referred to in Bisson v. Eck, 430 Mass. 406 (1999); Central Transport, Inc. v. Package Printing Co., Inc., 429 Mass. 189 (1999); and fifteen other Massachusetts cases on West Group's Disk 2 for Massachusetts law. Space limitations preclude listing them.
Smith asserts that his common law claims can be brought under either federal or state law: for instance,
"[c]omplaints brought under sec. 1983 may often allege both a violation of Federal constitutional provisions, which provide a basis for action under sec. 1983, and a violation of State law, which, standing alone, would not support an action under sec. 1983. In such a case, the plaintiff need not obtain a final, favorable determination of his constitutional claims in order to claim an attorney's fee under sec. 1988. It is enough that the constitutional claims are 'substantial,' and arise from the same nucleus of facts on which the State law claims are based" (citations omitted). Id. 387 Mass. at 317. Although the present case is distinguishable from Stratos [v. Dept. of Pub. Welfare, 387 Mass. 312 (1982)], in that the plaintiffs claim violation of rights secured not by the Federal Constitution, but by Federal statutory and regulatory law, the distinction is not substantive. "The fee incentive is equally useful and necessary whether the right in question is secured by Federal law [constitutional or otherwise] alone, or by State law as well." Id.
Crane v. Comm'r of Public Welfare, 400 Mass. 46, 49-50 (1987).
6 November 2001 Barbara C. Johnson, Esq.Respectfully submitted,.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
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