#67, Drano Series
Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court
to Reverse the Denial of Meuse's Motion to Dismiss the Parental Kidnapping Charge
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK COUNTY, ss. CIVIL ACTION NO. ______
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Brian J. Meuse
Petitionerv.
<>Commonwealth of Massachusetts
Respondent
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COMPLAINT IN THE NATURE OF A PETITION FOR A WRIT OF CERTIORARI
AND TO INVOKE THE GENERAL SUPERINTENDENCE OF THE COURT
STATEMENT OF THE FACTS
This statement is almost wholly quoted from the District Court judge's memorandum [Exh. A]. Where it differs from that memorandum, Meuse has boldfaced the data.
"Petitioner Brian Meuse ["Meuse"] is charged with the offense of kidnapping a minor by a relative in violation of G.L. c. 265, sec. 26A. He moved to dismiss the complaint on the ground, among others, that as a matter of law he did not take the child without lawful authority. [Exh. B, Meuse's Motion to Dismiss and Supplemental Memorandum in Support of Motion to Dismiss.]
"The material facts are set forth in the pleadings on the motion to dismiss and are not in dispute. Susan Pane gave birth in Massachusetts to a daughter on August 4, 1999. The defendant, with whom Pane resided at the time, is the biological father of the child. The defendant and Pane were not married. On September 22, 1999, the defendant filed a complaint in the Probate and Family Court to establish paternity of the child and later amended the complaint to request custody of the child."
Pane removed the child from Meuse's home on October 1, 1999. She did not surface until October 29, 1999. She was then in a courthouse in Volusia County, Florida. Although a pleading on her behalf was filed by an attorney in that courthouse on October 14, 1999, it is unknown whether Susan Pane herself was in Florida by or on that date.
Leading to that conundrum is the fact that Meuse had unsuccessfully attempted to serve on her at her mother's home in Port Orange, Volusia County, Florida, "an ex parte abuse prevention order against Pane, which awarded the defendant custody of the child," issued by Haverhill District Court on Monday, October 4, 1999. Each time an attempt was made, Pane's mother said she did not live there. Her mother's home is where she was living since, at the very soonest, October 29, 1999.
"The order [of October 4, 1999] was extended at subsequent hearings, in all but one of which Pane appeared, and expired on December 10, 1999. In the meantime, a court in Florida awarded temporary custody of the child to Pane, but, as the Commonwealth concedes, jurisdiction over the matter was established in Massachusetts in March 2000, and the Florida case was dismissed. On June 5, 2000, the Probate and Family Court, without specifically addressing the issue of custody, ordered that the defendant pay child support to Pane and that the defendant have the right to visit the child. This order stated in part that the defendant, in October 2000, `may spend two (2) full non-consecutive weeks, including overnights, with the child in Florida.' The order was in effect without modification when, as the Commonwealth alleges, the defendant went to Florida and, on October 1, 2000 [not October 8th, as the lower-court judge recalled], brought the child to Haverhill, Massachusetts, [ ] in order to rescue his daughter from harm by her mother. There was no open order in Florida forbidding him to take the child out of Florida, and the June 5th Massachusetts order had not been filed in any Florida court. Because the "full faith and credit clause" was not triggered, Meuse could not "[ ] commit[ ] the offense of kidnapping of a minor by a relative," as concluded by the motion judge.
STATEMENT OF THE CASE
The motion judge's Memorandum of Decision and Order states:
1. that G.L. c. 209C, sec. 10(b), despite a voluntary acknowledgement of paternity, commands that the unwed mother be given custody; 2.. that the Commonwealth v. Beals, a parental kidnapping case under c. 265, sec. 26A, which states that when there is no Probate & Family Court order or there has been no court proceeding, the married parent who has taken the child(ren) cannot be convicted of parental kidnapping;
3. that G.L. c. 209A can give the custody to either parent,1 whether married or unwed, but that the standard used in 209A does not meet the "requirements" of a custody award under c. 209C, and that therefore chapter 209C, sec. 10(b), which applies to unwed persons, is predominant; and lastly,
1 Note that Meuse was awarded custody in a c. 209A order
4. that even though there was no crime committed in Florida -- because there was no effective order of custody -- and even though there was no crime committed in Massachusetts -- because Meuse was never found in contempt by a Massachusetts Probate & Family Court -- under G.L. c. 265, sec. 27A, Massachusetts can prosecute Meuse because he brought the child from Florida to Massachusetts for medical care.
Meuse contends that no distinction can be made between married or unwed parents when determining custody of a child. The issue is discussed in some detail below.Meuse further contends (a) that c. 209C is inapplicable to this case not because there had been a voluntary and undisputed acknowledgement of paternity but because there had been a court proceeding -- to wit, a c. 209A proceeding in Haverhill District Court, and (b) that c. 209C is also unconstitutional because it is based on invidious gender discrimination against the male.
Moreover, Meuse contends that c. 265, sec. 27A, does not refer to counties that are in different States, and therefore does not apply to this case.
ISSUES PRESENTED
1. Where G.L. c. 265, sec. 27A, is overbroad and facially vague, the statute deprives a defendant of due process rights and is thus unconstitutional. 2. Where Meuse had voluntarily acknowledged paternity and the child's mother agreed that he was the father of the child, and he had an equal and fundamental right to custody of the child, G.L. c. 209C, sec. 10(b), is discriminatory and thus unconstitutional and inapplicable to this case.
3. Where the Massachusetts order dated 5 June 2000 was not filed in any Florida court, the full faith and credit clause was not triggered and no crime was committed in Florida. Given that no crime was committed in Florida and no crime was committed in Massachusetts, there is no crime with which the defendant may be charged.
4. Where (a) there was no detrimental effect of the Florida-taking in Massachusetts, there was no crime under G.L. c. 265, sec. 26A, and (b) where it is uncontroverted that there was neither a contempt order against Meuse in Massachusetts, nor a custody order from any court -- except the one District Court order granting custody to Meuse -- and thus no crime in Massachusetts, prosecution in the Commonwealth is unlawful.
5. Where the motion judge held that the District Court c. 209A custody award to the biological father, Meuse, did not meet the requirements of chapter 209C, making not only c. 209A custody awards invalid when applied to unwed, biological parents, but giving custody by operation of law to unwed biological mothers, the decision must be reversed on the grounds that it is unconstitutionally discriminatory against unwed biological males.
JURISDICTION1. Jurisdiction is conferred upon this Court by M.G.L. c. 211, sec. 3, which provides a party the right to seek review under the court's superintendency powers of interlocutory matters where no posttrial relief would put the appealing party "in statu quo." Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128, 132 (1982).
PARTIES
2. Your petitioner, Brian Meuse ["Meuse"], is the defendant Commonwealth v. Brian Meuse entered as Docket Number 0038-CR-2411 in the Haverhill Division of the District Court Department of the Tril Court.
3. Your respondent is the Commonwealth of Massachusetts.
FACTS
4. Meuse voluntarily acknowledged paternity.
5. Pane did not dispute paternity.
6. There was no crime committed in Florida.
7. There was no crime committed in Massachusetts.
8. Although the Probate & Family Court found that the unwed mother took the child to Florida on 1 October 1999, there was no corroborative evidence that she was in Florida with the child prior to 29 October 1999.
9. From 4 October 1999 through mid-December 1999, there was a valid chapter 209A order, issued by Haverhill District Court, giving custody of the minor child to Meuse.
10. On 3 May 2000, after an evidentiary hearing, Judge Mary McCauley Manzi declared that Massachusetts has home state jurisdiction, and will be exercising jurisdiction in this case. Id. at 8. Exh. A, Judge Manzi's decision.
11. Notwithstanding the Probate & Family Court order of 3 May 2000, the child was not returned to Massachusetts and no explicit custody order issued.
12. Prior to 1 October 2000, there was no explicit existing physical custody order either in Massachusetts or in Florida.
13. On 26 June 2000, Judge Sahagian, who learned of the need for the Early Intervention examination, allowed Meuse to have shared legal custody, entitling him both to the child's medical records and to be present at the examination. Exh. B, Judge Sahagian's decision. By the order, the court (Sahagian, J.) was attempting to accommodate the therapy it was presumed would be necessary for the child.
14. After examining the child, medical professionals in Florida concluded that the child (10 months old at the time of the examination) -- who was not able to sit up by herself, to crawl, to walk, or even to hold a spoon -- was in need of the prescribed therapies at a minimum of four a week (two times a week for each type of therapy). Exh. C, medical records from the Early Intervention Program.
15. There was only a conditional temporary order [Exh. B, the condition being that the child, who had significant delays of motor skill development, would be medically treated in Florida.
16. Under the 5 June 2000 order, Meuse was given permission to attend the medical examination and to receive all medical records of the child.
17. When the mother denied the child the medical treatment, the conditional order was violated.
18. No action was taken by the court regarding the mother's violation of the essence of the conditional order of 5 June 2000.
19. Meuse had brought the mother's acts of harm to the child to the attention of the Essex Probate & Family Court on numerous occasions, but no judge would either listen to argument or read the pleadings.
20. A petition for a writ of mandamus was brought by Meuse, but it was denied without hearing.
21. Meuse had explicit shared legal custody of the child [Exh. B] and had the legal authority to exercise it to ensure the health, safety, and well-being of his daughter.
22. On 7 August 2000, 5 September 2000, 6 September 2000, and 8 September 2000, Meuse sought to get a hearing in Essex Probate & Family Court regarding the medical neglect and harm to his daughter by her mother; his goal was bring the child back to the declared home state of Massachusetts and to get temporary custody.
23. On 1 October 2000, when Meuse took the child he had, as implied by the 5 June 2000 order, shared legal custody law if not by common sense. And at the very least, Meuse is presumed to have had equal custody of the child;
24. Meuse has not been found in contempt of any order issued by Probate & Family Court. Exh. D, pages 26-27 of the transcript on 11 October 2000.
25. Meuse was merely exercising his shared legal custody -- then existing per Judge Sahagian's order -- to make a medical decision regarding the child by taking the child from Florida and bringing her to Children's Hospital and other local-area medical and therapy professionals.
26. On 11 October 2000, eleven (11) days after the child was taken from Florida, the court, without an evidentiary hearing, issued an explicit custody order in favor of the mother.
27. No warrant was issued by the Probate & Family Court either on 11 October 2000 or on any other day. [Excerpt from Exh. D, emphasis supplied.]
28. Sometime during the end of October or beginning of November 2000, a Haverhill Detective Moynihan sought an unlawful warrant for Meuse's arrest, a warrant based solely on the words of the mother or her counsel.
29. Meuse filed a motion for a voir dire of Detective Moynihan, but after oral argument, that motion was taken under advisement and a decision has not yet issued.
ARGUMENT
1. Where G.L. c. 265, sec. 27A, is overbroad and facially vague, the statute deprives a defendant of due process rights and is thus unconstitutional.
"A statute is unconstitutionally vague if "men of common intelligence must necessarily guess at its meaning." Com. v. Crawford, 430 Mass. 683, 689 (2000), quoting Com. v. Sefranka, 382 Mass. 108, 110 (1980), quoting Connally v. General Const. Co., 269 U.S. 385, 391 (1926). A statute which is facially vague is unconstitutionally vague. Com. v. Kwiatkowski, 418 Mass. 543, 543 (1994).
A claim for vagueness in statutory language is essentially a claim for violation of a person's due process rights because vagueness prevents fair notice of the conduct proscribed by a statute and fails to limit the possibility of arbitrary and discriminatory enforcement. See Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873 (1983) citing Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) and Grayned v. Rockford, 408 U.S. 104, 108-109 & n. 4 (1972).
Sullivan v. Reilly, 2000 WL 776414 at *6 (Mass. Super. 2000)."Therefore, the relevant inquiry is whether persons `of common intelligence must necessarily guess at its meaning and differ as as to its application.'" Id. at *4, quoting Smith v. Goguen, 415 U.S. 566, 572 n. 8 (1974); see also Brodrick v. Oklahoma, 413 U.S. 601, 608 (1973).
On the day of hearing of Meuse's Motion to Dismiss, he was side-swiped in the Commonwealth's opposition to Meuse's Motion to Dismiss by the raising of the issue that the "crime of parental kidnapping `may be tried [pursuant to G.L. c. 265, sec. 27A] in the county where committed or in a county in or to which the person taken or enticed is held, carried to, or brought.'" Memorandum of Decision and Order of 7/30/01 (Swan, J.).
Although defense counsel had no time to write a reply, she did argue orally that the statute did not address where or in which state the crime allegedly occurred. In the instant case, that fact is critical. While Massachusetts cases have discussed a crime in terms of its being committed in a foreign State and being tried in Massachusetts, there is no case discussing the statute as applying to a crime committed in a county of another State and being tried in a county in Massachusetts. All cases which discuss whether Massachusetts has jurisdiction over a defendant who allegedly committed a crime in another State use a different analysis, primarily the "effects" or "contacts in Massachusetts" doctrine. No such analysis was done by the motion judge in the instant case.
This statute has been neither clarified by judicial explanation [see Crawford, 430 Mass. at 689; Rose v. Locke, 423 U.S. 48, 50-52 (1975); Com. v. Adams, 389 Mass. 265, 271 (1983)] nor cited in any Massachusetts opinion.
In sum, Meuse contends that our legislature may not declare that Massachusetts has jurisdiction of a crime committed in a foreign State, making the statute inapplicable to this case.
2. Where Meuse had voluntarily acknowledged paternity and the child's mother agreed that he was the father of the child, and he had an equal and fundamental right to custody of the child, G.L. c. 209C, sec. 10(b) is discriminatory and thus unconstitutional and inapplicable to this case.
The motion judge found that Meuse had filed a paternity action in Essex Probate & Family Court in September 1999. In so doing, he acknowledged paternity.
On September 22, 1999, the defendant filed a complaint in the Probate and Family Court to establish paternity of the child and later amended the complaint to request custody of the child.
The mother of the child never disputed that Meuse was the father. In the hearing in March 2000, the mother, too, acknowledged that Meuse was the father.Meuse argued that "in the absence of a custody order altering his or her natural custody rights to a child, neither parent commits the crime of kidnapping by taking exclusive possession of the child." Com. v. Beals, 405 Mass. 550, 553 (1989). Parents of children born out of wedlock have the same rights and protections vis-a_`-vis their children as all other parents. Cf. L.W.K. v. E.R.C., 432 Mass. 438, 445 (2000) (children born out of wedlock are entitled to the same rights and protections of the law as all other children). Department of Revenue v. C.M.J., 432 Mass. 69, 76 (2000) ("parents have a natural right to the custody of their children") (cite omitted).
. . . Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, (1979) (right to raise one's children is basic civil right; interests of parents in their relationship with their children are fundamental and constitutionally protected). Consequently, absent an adjudication of custody to the contrary, a parent, such as the defendant, living in the home with his minor children and supporting those children, is a custodial parent.
Dept. of Revenue v. C.M.J., 432 Mass. at 77. Such was the case of Meuse: Meuse had been living with his child and her mother when she absconded with the child to someplace unknown and ultimately ended up in Florida on some date unknown.22 In Judge Manzi's and subsequently in Judge Swan's memorandum, the date of mother leaving appears as 1 October 1999, but that date was only according to the mother of the child. She presented absolutely no evidence corroborating that she left Massachusetts on that date.Although the motion judge agreed that there had been no custody order:
The defendant's complaint to establish paternity has not been adjudicated. Even had there been an adjudication of paternity, or an acknowledgment of such, there is still no order or judgment of custody.
he rejected the proposition in Beals because Beals was a case about parents who had wed. That was reversible error.Meuse argued that given that G.L. c. 209C, sec. 10(b) should not apply where there has been a voluntary acknowledgement--and in this case, an acknowledgement of an UNdisputed fact -- Beals would be as valid vis-a_`-vis unwed parents as vis-a_`-vis wed ones.
In fact, in Department of Revenue v. C.M.J., the court found that the Probate & Family Court judge erred when he concluded that a father, after the judgment of paternity, "would not be presumed to have or share custody." Id. at 76. Specifically, the court wrote:
The resolution of custody questions "necessarily begins with the premise that parents have a natural right to the custody of their children." ... ("Parents' claim to authority in their own household to direct the rearing of their children is basic to the structure of society; the custody, care and nurture of the child reside first in the parents") ... (right to raise one's children is basic civil right; interests of parents in their relationship with their children are fundamental and constitutionally protected). Consequently, absent an adjudication of custody to the contrary, a parent, such as the defendant, living in the home with his minor children and supporting those children, is a custodial parent.
Department of Revenue v. C.M.J., 432 Mass. at 76-77 (cites omitted). And Brian Meuse had, indeed, been living with the minor child of whom he is charged with kidnapping.The Supreme Judicial Court looked at G.L. c. 209C, sec. 10(b), more closely last year. General Laws c. 209C, s 10 (b), states:
Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.
After so doing, the SJC called attention to the shortcoming of that statute:
Notably, the statutory provision does not state that an adjudicated father shall not have custody in the absence of such an order or judgment, nor does it employ the term "noncustodial" or apply this term to the father. Dept. of Rev. v. C.M.J., 432 Mass. at 77 (cites omitted and emphasis added).To interpret the statute as the judge did, so as to presume that the mother, but not the father, shall have custody in such circumstances, would raise potential constitutional problems. See art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution. "[O]ur duty [is] to construe a statute in a way to avoid constitutional problems" if reasonable principles of interpretation permit. [Cite omitted.] Consequently, we cannot construe this statutory provision to mean that a mother in such circumstances is a custodial parent, but a father is not.
The United States Supreme Court is of the same mind:
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).Without doubt, as said, Meuse was a custodial parent when the mother absconded with the child to Florida. Department of Revenue v. C.M.J., 432 Mass. at 76-77.
Consequently, absent an adjudication of custody to the contrary, a parent, such as the defendant, living in the home with his minor children and supporting those children, is a custodial parent.
Id. at 77 (cite omitted).Not only does Meuse assert his "lawful authority" to have taken the child, the Commonwealth wrongly asserts that the legislative intent is to include parents within the terms "without lawful authority." Beals, 405 Mass. at 554, where the SJC did not agree with the Commonwealth.
"[General Laws chapter 265, section 26A] is a criminal law, and criminal statutes are to be construed strictly. The court cannot extend or enlarge a statute to create an offence which is not created by the language of the enactment."
Beals, at 554, quoting Commonwealth v. Alexander, 185 Mass. 551, 553 (1904). "Any `uncertainty that results from a literal reading of the statute is to be resolved in favor of the defendant.'" Commonwealth v. Clinton, 374 Mass. 719, 721 (1978).Additionally, "[p]arents in judicial proceedings are presumed to have an equal right to custody of their child." Beals, 405 Mass. at 556. "[T]hese rights[ ] mean that both parents share in the obligations and decisions involved in bringing up their children. Id. Thus, here, where mother abused the child by denying her the prescribed medical and therapeutic treatment, Meuse had a parental obligation to act unilaterally to protect the health, safety, and welfare of the child, Marissa.
In this case, where the child was in jeopardy and exposed not only to risk but actual mental and physical harm [Exh. D], where no court in Massachusetts acted to protect the child and require her return to Massachusetts, and where the Commonwealth, which had declared it had jurisdiction but failed to exercise its jurisdictional authority when it should have, the Commonwealth cannot now, after the father out of necessity took the child out of harm's way, i.e., to protect the child from abuse or neglect or other good cause shown, bring charges under G.L. c. 265, sec. 26A. See G.L. c. 209, sec. 2(a)(3), and Umina v. Malbica, 27 Mass.App.Ct. 351, 358-359 (1989), where a Massachusetts judge (Sweeney, J.), impressed by the evidence that the children were at risk of abuse with their mother in Colorado, which had jurisdiction, entered a temporary order granting custody of the children to their father in Massachusetts.
In contrast, in the instant case, Massachusetts Probate & Family Court did, and still does, have jurisdiction and given the evidence before it, should have acted to order the child be brought back to Massachusetts and be put into the custody of her father, who had been earlier awarded custody of the child in Haverhill District Court.
3. Where the Massachusetts order dated 5 June 2000 was not filed in any Florida court, the full faith and credit clause was not triggered and no crime was committed in Florida. Given that no crime was committed in Florida and no crime was committed in Massachusetts, there is no crime with which the defendant may be charged.
The Supreme Court stated that, "whether a statute of one State, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to punish an offence against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act." Huntington v. Attrill, 146 U.S. 657, 673-674 (1892). The Supreme Court's decision concerned the full faith and credit clause of art. 4 of the United States Constitution. Id. at 666, 13 S.Ct. at 227.
Desjardins Ducharme v. Hunnewell, 411 Mass. 711, 714 (1992). Bigelow v. Virginia, 421 U.S. 809, 822-824 (1975) ("Virginia Legislature could not have regulated . . . activity in New York, and obviously could not have proscribed the activity in that State").Whether Massachusetts may prosecute Meuse for parental kidnapping is a question of the extent of Massachusetts's extraterritorial criminal jurisdiction. "The general rule, accepted as `axiomatic' by the courts in this country, is that a State may not prosecute an individual for a crime committed outside its boundaries. In re Vasquez, 428 Mass. 842, 847-848 (1999), citing Nielsen v. Oregon, 212 U.S. 315, 321 (1892); Com. v. Booth, 266 Mass. 80, 84 (1929) (rule against extraterritorial application of criminal laws `is a general principle'), and other cases gathered. See Bassett v. Blanchard, 406 Mass. 88, 90-91 (1989). Restatement (Second) of Judgments.
Here, the interlocutory order was both not a final and conclusive judgment and not filed in Florida, and Florida did not have personal jurisdiction over Meuse on 1 October 2000. SeeDatonic Rental Corp. v. LeProvost, 1997 Mass.App.Div. 4, 1997 WL 38143 *1 (1997). Therefore, no crime could occur in Florida, and if no crime, Massachusetts cannot bring criminal charges. Cf. Kesler v. Pritchard, 362 Mass. 132 (72).
"Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State. . . ." The United States Constitution Article 4, sec. 1. "Records and judicial proceedings or copies thereof ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken." 28 U.S.C. sec. 1738. "The records and judicial proceedings of a court of another state or of the United States shall be admissible in evidence in this commonwealth, if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal." G.L. c. 233 sec. 69.
Keane v. Shalat, 1998 WL 1182065 *2 (Mass.Super. 1998) Borenstein, J.).
4. Where (a) there was no detrimental effect of the Florida-taking in Massachusetts, there was no crime under G.L. c. 265, sec. 26A, and (b) where it is uncontroverted that there was neither a contempt order against Meuse in Massachusetts, nor a custody order from any court -- except the one District Court order granting custody to Meuse -- and thus no crime in Massachusetts, prosecution in the Commonwealth is unlawful.
Issue (a): Where Massachusetts declared that it would exercise jurisdiction and no subsequent Massachusetts order was filed in Florida, there was no crime committed in Florida.
With no crime or detrimental effect in Massachusetts, the Commonwealth does not have territorial jurisdiction. Where the alleged act of kidnapping occurred in Florida and where the child's mother, having previously removed the child from the Commonwealth and still residing in Florida, Meuse could not form the intent to produce detrimental effects within the Commonwealth. Nor did he produce unintended detrimental effects in the Commonwealth. Thus, Massachusetts is not justified in charging or punishing Meuse. See In re Vasquez, 428 Mass. 842, 848-849 (1999), citing Strassheim v. Daily, 221 U.S. 280, 285 (1911).
This is consistent with "the general rule in that crime occurs where the effect is felt, not where the offender is located." In re Vasquez, at 848 n. 4 and 849 n. 5, and cases gathered. "[S]tand[ing] as an explicit recognition in the law of this Commonwealth of the effects doctrine" is G.L. c. 276, sec. 13. In re Vasquez, at 850 n. 6.
Where there is no proof of territorial jurisdiction, the action must be dismissed. Com. v. Fafone, 416 Mass. 329, 330-331 (1993) (Massachusetts lacked territorial jurisdiction over crime of accessory before the fact to trafficking in cocaine, where alleged criminal acts took place outside of Massachusetts and there was no evidence that defendant knew cocaine would be distributed within Massachusetts).
Other jurisdictions have similarly held that crimes committed in a foreign state and having no detrimental effect in the prosecuting state did not have territorial jurisdiction: State v. Sung, 999 P.2d 430, 128 N.M. 786 (2000) (in order for state to have criminal jurisdiction to prosecute custodial interference, child must be present in state when acts of custodial interference are committed). Gore v. State, 573 So.2d 87 (1991) (trial court lacked territorial jurisdiction over charged crime of attempted murder of victim's child, as overt acts comprising crime were committed in Georgia). State v. Harvey, 730 S.W.2d 271 (Mo.App. E.D., 1987) (trial court had no jurisdiction over the capital murder charge for a murder which took place in Illinois, notwithstanding the State's argument that when the defendant kidnapped the victim in Missouri, the defendant had the requisite intent and premeditation to commit the capital murder, so as to support the concurrent jurisdiction with the State in which the murder occurred). Frye v. State, 489 A.2d 71, 62 Md.App. 310 (1985) (where third party understood that he was being asked in the District of Columbia to assist in kidnapping victim and transporting her to a place where she would be gang-raped, offense of solicitation was complete in the District, and subsequent meeting between defendant and third party in Maryland was nothing more than first stage of the agreement's execution; therefore, there was no solicitation in Maryland and Maryland courts lacked jurisdiction in solicitation prosecution). People v. Holt, 440 N.E.2d 102, 91 Ill.2d 480, 64 Ill.Dec. 550 (1982) (under Illinois law, Illinois could not try defendant for rape or ordinary murder which were committed entirely in Wisconsin, though following a kidnapping that began in Illinois). People v. Gerchberg, 181 Cal.Rptr. 505, 131 Cal.App.3d 618 (1982) (where father's acts in sending for children were consistent only with intent to recognize mother's custodial rights by returning children to her after agreed visitation period was over, the fact that he later, in New York, changed such intent and did not return children could not subject him to prosecution in State criminal court).
Thus, where Massachusetts does not have territorial jurisdiction, the charges against Meuse must be dismissed. In re Vasquez, supra; Strassheim, supra.
Issue (b):: Where the Essex Probate & Family Court, eleven days after the taking, explicitly refused to find Meuse in contempt of any order, there was no crime in Massachusetts, despite the visitation order of 5 June 2000.3Motion to Dismiss, Exh. D, pp. 26-27 from the transcript of the 11 October 2000 hearing
at Lawrence, Massachusetts.3 Meuse contends that the visitation order is predicated on the mother of the child complying with the recommendations of the Early Intervention program in Florida. Once the mother did not comply and take the child for the prescribed physical and occupational therapy, it was she who was in violation of the spirit of the order and not Meuse, and it was she who put the child's physical and mental well-being at risk. It was Meuse who took the child out of harm's way.Therefore, prosecution under G.L. c. 265, sec. 26A, is unlawful.
5. Where the motion judge held that the District Court c. 209A custody award to the biological father, Meuse, did not meet the requirements of chapter 209C, making not only c. 209A custody awards invalid when applied to unwed, biological parents, but giving custody by operation of law to unwed biological mothers, the decision must be reversed on the grounds that it is unconstitutionally discriminatory against unwed biological males.
That Meuse is the undisputed biological father was acknowledged by the judge [p.1 of Memorandum of Decision and Order ("MDO")]. Therefore, when the motion judge applied c. 209C, sec. 10(b), which is applicable only in those cases where there is not an order or judgment relative to custody, the motion judge raised a constitutional problem. DOR v. C.M.J., 432 Mass. at 77.
Specifically, the motion judge discounted the award of custody to Meuse in the Haverhill District Court [p. 2 of MDO] on the grounds that the standard for custody in the District Court is different than the standard used in the Probate & Family Court. Meuse contends that it only appears different.
More often than not, the Probate & Family Court hears no more evidence before awarding custody than Judge Herlihy heard in Haverhill District Court. In either case, is this Appeals Court willing to say that a custody award in a 209A order issued by a District Court is unreliable or invalid because the standard is allegedly different? Logically, it follows that every custody award under chapter 209A would be reversible . . . or should be ignored.
Were we to assume arguendo that the motion judge was correct, to wit, that the award of custody to the undisputed biological father, Meuse, by District Court (a) was untrustworthy (notwithstanding the fact that it had expired), (b) was equivalent to no proceeding at all, and (c) triggered the application of c. 209C, sec. 10(b), then the court would be giving custody by operation of law to unwed biological mothers, to the detriment of the class of unwed biological fathers. Such a result must be reversed on the grounds that it is unconstitutionally discriminatory against unwed biological males, for it denies them the equal protection of the laws. Com. v. MacKenzie, 368 Mass. 613, 615-616 (1975) ("A sex-based classification `must rest upon some ground of difference having a fair and [impartial] relation to the object of legislation, so that all persons similarly circumstanced are treated alike"), quoting Reed v. Reed, 404 U.S. 71, 76 (1971), quoting from F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
In sum, to impose a criminal charge for taking the child where there has been no custody order from a probate and family court, and not impose a criminal charge on the mother for taking the child where there has been no such custody order would be a violation of Meuse's rights to the equal protection of the laws. MacKenzie, 368 Mass. at 616. There is no "possible justification for the distinction between men and women in a criminal context which would satisfy the appropriate equal protection test." Id. Moreover, were Meuse to be convicted, any sentence would be unconstitutional. Id. at 619.
Even were we to assume arguendo that the motion judge was correct, to wit, that the award of custody to Meuse by District Court was both untrustworthy and equivalent to no proceeding at all, c. 265, sec. 26A, would still not be applicable. "A parent who has taken his or her children from the other parent before there was any court proceeding cannot be convicted of parental kidnapping under G.L. c. 265, s 26A. The defendant's motion to dismiss should be granted." Beals, 405 Mass. at 556. Therefore the parental kidnapping charge against Meuse must be dismissed.4
4 Meuse also assumes that the above conclusion was the rationale behind the authorities' failure to charge Susan Pane with parental kidnapping after she absconded with the child to Florida.Moreover, were the court to affirm the motion judge's conclusion that Beals applies only to married men, the court would be creating another suspect class, to wit, unwed men, victimized by discrimination. The natural parental rights of unwed men are, Meuse contends, the same as those of wed men. Department of Revenue v. C.M.J., 432 Mass. at 76-77. Art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution. Id. at 77. Griswold v. Connecticut, 381 U.S. 479 (1965).
BRIAN MEUSE,
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
I, Barbara C. Johnson, counsel for Brian Meuse, hereby certify that on ____ December 2001 I served by first-class mail a true and accurate copy of the within pleading on John V. Apruzzese, Esq. Office of the District Attorney, Two East India Square, Salem, MA 01970.
___ December 2001 _________________________________
Barbara C. Johnson, Esq.
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833