#69, Drano Series
First Round of an Appeal
Fighting Immunity:* Sovereign Immunity
for the State* Absolute, Quasijudicial Immunity
for so-called mental-health workers appointed by the court* Qualified Immunity
for public officials and certain private parties
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Theodore S. Brown
James Linnehan
Plaintiff/Appellantsv.
Eli Newberger
Children's Hospital
Amy C. Tishelman
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
Defendant/Appellees
JURISDICTIONAL STATEMENT1. Jurisdiction of the Court of Appeals arises under 28 U.S.C. sec. 1291, 1294, and 1295.
2. Final judgment dismissing all claims in the District Court, with Memorandum and Order [Add. 1-37], entered on 28 August 2001 [Add. 38-39].
3. Permission was received on 14 December 2001 for an enlargement of time to 29 January 2002 for filing this appellate brief [Add. 40].
STATEMENT OF THE ISSUES
1. Where the Eleventh Amendment has two prongs and it is the second prong (by judicial fiat), which was not duly enacted by the Legislature and upon which the court relied, the Eleventh Amendment can neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth of Massachusetts or Department of Social Services where there was no immunity ab initio.
2. Where Congress enacted 42 U.S.C. 1983 to enforce provisions of the Fourteenth Amendment, and Massachusetts has explicitly consented to suit at all times, the Fourteenth Amendment effectively overrides the judicially derived prong of the Eleventh Amendment.
3. The Commonwealth of Massachusetts and its agency are "persons" for purposes of 42 U.S.C. 1983.
4. Where DSS is financially self-sufficient, the Eleventh Amendment's core concern is not implicated.
5. Where judicial immunity, like the second prong of the Eleventh Amendment, arose from judicial fiat, Article 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. 5 of the Declaration of Rights, Massachusetts Constitution. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. 5 of the Declaration of Rights, Massachusetts Constitution.
6. Where this case has arisen out of Probate & Family Court matters but plaintiffs neither seek a divorce, alimony, or child-custody decree, nor seek the review or voiding of any judgment of the state lower court, Ankenbrandt v. Richards is inapplicable.
7. Where Christopher Salt's actions were contrary to public policy, the defense of immunity would not be available to him, making dismissal inappropriate and reversible error.
8. Where Sandra Fyfe, found to be a state actor, knowingly committed a baseless act which deprived Linnehan of his fundamental liberty and property rights, she was, under the Fourteenth Amendment, not entitled to absolute, quasijudicial immunity, making dismissal on this ground reversible error. In the alternative, if Fyfe was entitled to immunity, at most she was entitled to qualified immunity.
9. Where there were genuine disputes as to whether John J. McCarthy, Jr., was a state actor and whether he was incompetent, and where the court arbitrarily chose the wrong tests to determine whether McCarthy was a state actor and quite wrongly assumed that McCarthy's participation with the state was an isolated event, and did not "count," the dismissal for failure to state a claim was inappropriate and reversible error.1 In the alternative, if McCarthy was entitled to immunity, at most he was entitled to qualified immunity. Further, where there was a genuine issue as to whether he was a state actor, discovery should have been allowed.
1 The dismissal was based on a two-pronged analysis: if McCar-thy was a state actor, he had quasijudicial immunity, and if he was not, Linnehan had no claim.10. Where Eli Newberger, Children's Hospital, and Amy Tishelman were private parties whose conduct was attributable to the Commonwealth, and the Commonwealth "so far insinuated itself into a position of interdependence with [these three defendants,] it must be recognized as a joint participant in the challenged activity," making dismissal inappropriate and reversible error. Further, where there was a genuine issue as to whether they were state actors, discovery should have been allowed before dismissal.11. Where Eileen Kern was a state actor, dismissal of the sec. 1983 claim against her, on the grounds that she was not, was inappropriate and reversible error.
12. Where the court gave no reasons either from the bench or in writing for setting aside Defendant Newberger's default, and plaintiffs satisfied all the elements for leaving a default in place, it was reversible error to set aside the default.
STATEMENT OF THE CASE
1. This appeal is from the dismissal of the Plaintiff/Appellants' federal claims brought under 42 U.S.C. 1983 for, primarily, the deprivation of parental rights, and the dismissal without prejudice of their state-law claims.
2. The natural defendants are a cadre of so-called mental-health workers. The defendant hospital is a key player in the arena of child physical- and sexual- abuse evaluations in Massachusetts.
3. The grounds for the dismissal of the federal-law claims were sovereign and quasijudicial immunity. Sovereign immunity was decided upon law.
4. The motion judge found sovereign immunity based solely on Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057 (1978), a case not cited by any of the defendants, and Edelman v. Jordan, 415 U.S. 651 (1974). In this brief, plaintiffs demonstrate that at the confluence of Art. 5 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and the "second prong" -- the judicial-fiat prong -- of the Eleventh Amendment, the Fourteenth Amendment overrides the Eleventh Amendment.
5. The issue as to whether the natural defendants and the hospital were state actors was treated variously by the motion judge. Plaintiffs contend that where the determination of state action requires questions mixed with fact and law, the grant of quasijudicial immunity was, in addition to being unconstitutional, premature and reversible error.2
2 Situationally, this case arises out of the federal Child Abuse Prevention and Treatment Act and the State mini-CAPTA, M.G.L. c. 119, by which the Commonwealth and/or its agencies receives federal monies by complying with the federally mandated regulatory program. "Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences, state officials remain accountable to the people." New York v. United States, et al County of Allegany, -- U.S. --, 112 S.Ct. 2408, 2424 (1992).6. Plaintiffs contend that the granting of quasijudicial immunity defense to those defendants deemed to be state actors must be reversed for the same reason.7. Christopher Salt ["Salt"], who was court-appointed, and Sandra Fyfe ["Fyfe"], who was not court-appointed,3 were deemed state actors and granted quasijudicial immunity.4
3 Fyfe’s appointment, according to the motion judge’s decision, appears to be a derivative appointment. Because her employer was deemed to have been appointed, she was so deemed. Linnehan has not seen the reference of appointment.8. By applying the tests set out in Rodriguez-Garcia v. Davila, 904 F.2d 90, 96 (1st Cir. 1990), the motion court deemed John McCarthy, Jr., ["McCarthy"] not to be a state actor. Plaintiff Linnehan contends that the wrong tests were applied to the facts surrounding McCarthy's status; the tests for determining who is a state actor are discussed in some detail throughout this brief.4 Although Fyfe asserted immunity as an affirmative defense in her Amended Answer, she did not plead or brief the defense of immunity in her motion for judg-ment on the pleadings. Because immunity can be raised at any time, Linnehan did not make her failure into an appellate issue, but it seems telling that even she did believe she was entitled to it.
9. Eileen Kern ["Kern"] was deemed not to be a state actor. Linnehan contends that a mandatory reporter who acts pursuant to M.G.L. c. 119, sec. 51A, is a state actor. This appears to be a case of first impression. Linnehan contends, also, that were Kern deemed a state actor, given that she did not plead the affirmative defense of immunity in her motion for judgment on the pleadings, she would not be entitled to a grant of quasijudicial immunity.
10. Eli Newberger ["Newberger"] and Amy Tishelman ["Tishelman"] were deemed not to be state actors, on the grounds that submitting a report to be used in court is insufficient to establish state action. Linnehan contends that the finding was again wrongly based on the Rodriguez-Garcia test, that the "reasonably foreseeable" test of Blanchard, infra, should have been applied, that the question is one of mixed fact and law and should not have been decided prior, at the very least, to an opportunity for discovery, if not by a jury.
11. Children's Hospital, which runs the cost center consisting of Newberger and Tishelman's team and department and receives federal grants, was deemed not to be a state actor, on the grounds of respondeat superior. Plaintiffs Linnehan and Brown contend that Newberger, the hospital, and Tishelman were state actors. Plaintiffs further contend that the Newberger and Tishelman team's report appeared on the Children's Hospital letterhead with the knowledge of the hospital, which profited from the preparation of the report and Newberger's prominence as a so-called expert who testifies regularly for the Commonwealth in child physical-abuse and sex-abuse cases. Linnehan and Brown further contend that the facts do not support the conclusions of law arrived at by the motion judge.
12. Plaintiff/Appellants also appeal the setting aside of the default against Defendant/Appellee Eli Newberger.
13. The motion judge erred by failing to distinguish between a motion for judgment on the pleadings and a motion to dismiss.
14. Plaintiff/Appellants also appeal the conclusion by the motion judge that the Plaintiffs’ state-law claims would interfere with their pending claims in state court. They would not. Plaintiffs neither sought review or the voiding of any state-court judgments or orders.
STATEMENT OF THE FACTS RELEVANT TO THE ISSUES
Because of space limitations, plaintiffs incorporate by reference the facts, as if set forth herein, detailed in the Complaint in the District Court [App. I:15-55 (Appendix vol:page)]. Notwithstanding the incorporation, plaintiffs state the following.
1. Brown at all relevant times has been a citizen of Maine. While his divorce was pending in Maine and within days of his wife arriving in Massachusetts with their children, Massachusetts unlawfully exercised personal jurisdiction over him without his consent and denied him visitation [App. I:21; II:549].
2. While Linnehan had a paternity and custody action in Maine, the mother and their child fled to Massachusetts [App. I:30]. When he found them ten months later, he moved to Massachusetts to be near his son and filed a paternity and custody action in Massachusetts. To deprive Linnehan of their son because he would not marry the mother, she caused Kern to file with DSS an abuse report pursuant to M.G.L. c. 119, c. 51A. The other remaining defendants became and stayed involved in the two cases between 1988 and 1998 [App. I:31-36].
3. Absent jurisdiction, Brockton District Court repeatedly denied Brown visitation with his children. SeeApp. II:549 n. 2.
4. Department of Social Services ["DSS"] received reports of sexual abuse by Linnehan and Brown in 1988 and 1995, respectively. DSS allowed Brown's children to continue living with a confessed child sex abuser, the boyfriend of his estranged wife (who later became his ex-wife) [App. I:23-25, 28-29, 32].
5. Eileen Kern was a mandatory reporter in Linnehan's case [App. I:32].
6. Christopher Salt was a court-appointed investigator in Linnehan's case who twice filed reports recommending the denial of visitation by Linnehan with his son [App. I:30-32].
7. Sandra Fyfe was a worker at New Bedford Child and Family who interviewed the mother and child in Linnehan's case and allegedly filed a report recommending the denial of visitation by Linnehan -- although she had never met Linnehan before she filed that report. Although Fyfe had not been court-appointed, the state court did accept her filing [App. I:31].
8. John McCarthy was allegedly a therapist for Linnehan's son but met with him only once with his mother. Yet McCarthy charged Linnehan and his insurance provider for more than twenty visits of visits alleged to be for the child’s therapy but that were in reality with the mother alone [App. I:34-36; III:886-889]. McCarthy was to file a report with the probation office, but from the documents, it appears he sent his letter-reports to only the mother's and the child's counsel and not to Linnehan's [App. I_879-885]. Somehow, McCarthy's reports found their way to the judge assigned to sit over both the Care and Protection in re Linnehan's son in Juvenile Court and Linnehan's paternity and custody case in family court. Those so-called reports were based on Newberger and Tishelman's report and were the basis for denying Linnehan either visitation of any kind or custody for many years .
9. Eli Newberger, an M.D. and alleged expert on child physical and sex abuse led the child-abuse cost center of Children's Hospital, and was on both Brown's and Linnehan's cases in the state courts. His team’s so-called evaluation reports were the primary basis for denying Linnehan and Brown either visitation of any kind or custody for many years with their children. [App. I:21-30; 33-36]
10. Amy Tishelman was on Newberger’s team at the Hospital and was a signatory to the team’s report filed in the state court at Brockton [App. I:17-30].
SUMMARY OF ARGUMENT
Federal courts have invoked the Eleventh Amendment to dismiss cases brought by citizens from any State against any State unless the defendant State has waived its sovereign immunity or explicitly consented to suit in federal courts.5
5 Both plaintiffs contend that the Massachusetts Tort Claims Act, the immunity-waiver statute, is likely unconstitutional inasmuch as Art. 5 of the Declaration of Rights has never been amended since its ratification in 1780.Brown contends that the Eleventh Amendment as ratified may not be invoked against him, a citizen of Maine, because Massachusetts, which took personal jurisdiction of him without his consent, constitutionally guarantees accountability at all times to the people, of which he constructively became one. This means that Massachusetts has no immunity in place to waive and that its consent to suit is explicit.Linnehan contends that that part of the Eleventh Amendment which was never ratified and about which Congress's intent was never determined may neither be invoked against him nor override or preempt Article 5 of the Massachusetts Declaration of Rights, which has since 1780 constitutionally guaranteed
accountability at all times by all three branches of government to the people, of which he is one.
For the same reasons for which the Commonwealth is not lawfully immune from suit in any court, DSS is also not entitled to immunity. Having the same origin in judicial, quasijudicial immunity is equally as inapplicable to any defendant in the instant case.
Linnehan and Brown satisfied all the elements for leaving Newberger’s default in place and where Newberger presented no reasonable excuse sufficient to conclude that he had good cause for failing to respond timely to the Amended Complaint, setting aside the default was reversible error.
Fyfe failed both to plead the affirmative defense of immunity in her motion for judgment on the pleadings and to meet her burden of proving it. The court could not sua sponte grant her immunity.
Plaintiffs argue that they sought neither review nor the voiding of any state-court judgments or orders, and therefore it was error to dismiss their state claims.
ARGUMENTS
1. Where the Eleventh Amendment has two prongs and it is the second prong (by judicial fiat), which was not duly enacted by the Legislature and upon which the court relied, the Eleventh Amendment can neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth of Massachusetts or Department of Social Services where there was no immunity ab initio.
In this case, there are many constitutional articles and amendments, which come to bear. On the federal side, we must look at Article 3, Article 6, and the Eleventh and Fourteenth Amendments. On the Massachusetts side, we look at Articles 5 and 11.
THE FEDERAL CONSTITUTION
Art. 3: Art. 3 states that federal judges can hear all sorts of cases, including the right of a citizen from one State to sue a second State in federal court.
Art. 6: Art. 6 contains the Supremacy Clause. It is well-settled that in determining whether the Supremacy Clause is invoked, one must conclude, for instance, that there was congressional intent to preempt a State law.
Eleventh Amendment: After Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), in which Georgia was sued in federal court by a citizen from another State, a hue and cry arose. In response to Chisholm, the Eleventh Amendment was born on 8 January 1798. It said that a State may not be sued by a citizen or subject of a foreign State.
And at that time, in 1798, although, according to Alden v. Maine, -- U.S. --, 119 S.Ct. 2240, 2250 (1999),
[t]he Massachusetts Legislature, for example, denounced as "repugnant to the first principles of a federal government," and called upon the State's Senators and Representatives to take all necessary steps "to remove any clause or article of the Constitution, which can be construed to imply or justify a decision, that, a State is compellable to answer in any suit by an individual or individuals in any Court of the United States. 15 Papers of Alexander Hamilton 314 (H. Syrett & J. Cooke eds.1969) (internal quotation marks omitted)."
neither that same Massachusetts Legislature nor any other ever repealed, altered, or amended Article 5 of the Massachusetts Declaration of Rights, which had been ratified 18 years earlier and constitutionally guaranteed to the people accountability, which precluded the grant of immunity to all three branches of government, the legislative, executive, and the judiciary. The Court in Alden failed to point to that fact. If it had, perhaps its argument would have been less dramatic, if not compelling. See Alden, 119 S.Ct. at 2250. But one thing is certain: the Court in Alden did confirm that if a State enjoyed "inviolable sovereignty" [id. at 2243, quoting Federalist, No. 39, p. 245] before the U.S. Constitution was ratified, unless their sovereignty was "altered by the plan of the Convention or certain constitutional Amendments." Id. Perhaps by inadvertence, the Court in Alden simply overlooked Art. 5 of the Declaration of Rights of the Massachusetts Constitution and the fact that through it, Massachusetts had done away with immunity 18 years before the Eleventh Amendment was ratified in 1798.Eleventh Amendment Enhancement by Judicial Fiat: One hundred years after Chisholm, in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504 (1890), the court enhanced the Eleventh Amendment by judicial fiat, holding that a citizen cannot sue his/her own State in federal court.
So the Eleventh Amendment ended up having two prongs. One a legitimate prong, duly ratified, and a second prong, not duly proposed and ratified in accordance with Art. 5 of the United States Constitution,6 and, instead, imposed by judicial fiat.
6 See National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486 (1920).It is also well-settled that to overcome the Eleventh Amendment, a party must prove that his/her State either waived its sovereign immunity or consented to suit in federal court.Fourteenth Amendment: "Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and `act[s] pursuant to a valid grant of constitutional authority.'" Board of Trustees of the University of Alabama v. Garrett, -- U.S. --, 121 S.Ct. 955, 962 (2001), cite omitted.
And this Congress did when it ratified the Fourteenth Amendment, about 70 years after the Eleventh Amendment, and included the clause that provides us with rights to due process and the equal protection of all the laws. Hafer v. Melo, 502 U.S. 21, 28 (1991). Since it was Congress's explicit intent that the Fourteenth Amendment allow States to be sued in federal court on issues to which it pertains, namely, equal protection of the laws, any plaintiffs seeking a remedy guaranteed by the Fourteenth Amendment must be free of Eleventh Amendment constraint.
. . . federal question cases are not touched by the Eleventh Amendment, which leaves a State open to federal question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana.
Seminole Tribe of Florida v. Florida, 517 U. S. 44, 119 (1996) (Justice Souter, with whom Justice Ginsburg and Justice Breyer joined, dissenting).THE MASSACHUSETTS CONSTITUTION
Art. 5 of the Mass. Declaration of Rights: Art. 5 was ratified on 16 June 1780, 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. It dictates that all magistrates (judges) and officials from all three branches of government -- the legislative, executive, and judicial -- are at all times accountable to the people, of whom Linnehan and , constructively, Brown are two.
Several colonial charters, including those of Massachusetts, ... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.
Alden v. Maine, 119 S.Ct. at 2271.
Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.'" 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted).
Alden, 119 S.Ct. at 2254 (emphasis supplied).That surrender and consent to suit by its citizens was the plan of the
Massachusetts convention.7 See also Federalist Paper No. 80 ( McLean's ed., June 21, 1788, New York) (Hamilton). With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.87 John Adams, one of a committee of 30, drafted "`a Declaration of Rights, and the Form of a Constitution,' to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26)." The adopted instrument "is still in force today as the organic law of the Commonwealth of Massachusetts." L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962).To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.9,10 Those procedures have never been invoked vis-à-vis Art. 5, leaving in effect the unequivocal mandate memorialized by the forefathers of Massachusetts memorialized in Art. 5 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated.8 The Massachusetts Tort Claims Act ["MTCA"], M.G.L. c. 258, enacted in 1978, implies that there is sovereign immunity in Massachusetts with certain exceptions set out in that statute -- meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates Art. 5 -- and has yet to be deemed unconstitutional -- appears to have escaped challenge. For the MTCA to be "constitutional," Art. 5 would have had to be repealed or amended before the MTCA was passed.
9 Article LXXIV was ratified by the voters in 1944."Moreover, [given that] the Eleventh Amendment is `necessarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment'" [Atascadero, 473 U.S. at 238, 105 S.Ct. at 3145, quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671 (1976)],11 and that "[a]s a result, when acting pursuant to sec. 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States' consent [id.], Massachusetts needs not consent anew: its constitutional art. 5 has never been repealed, altered, or amended in the 221 years since its ratification on 14 October 1780.1210 According to Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1 (1985), a waiver of a State's constitutional mandate may be effectuated by a state statute or constitutional provision. This, clearly, is not wholly true in Massachusetts.
11 The Eleventh Amendment does not foreclose Congress’s power to authorize federal courts to award money damages to a private individual against a state government as a means of enforcing the substantive guarantees of the Fourteenth Amendment. Fitpatrick, supra, where Connecticut was found liable for sex-based discrimination (against present and retired male employees of the State of Connecticut).. . . Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298 (1973): The States surrendered that immunity, in Hamilton's words, "in the plan of the Convention" that formed the Union, at least insofar as the States granted Congress specifically enumerated powers.Fitzpatrick, supra, at 457-458 (Brennan, Concurring in the judgment).12 "[I]f a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action." Atascadero, 473 U.S. at 238, 105 S.Ct. at 3145, citing, e.g., Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883 (1883).
Art. 11 of the Massachusetts Declaration of Rights: Art. 11 (also ratified in 1780) states that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." SeeAlden, 119 S.Ct. at 2293-2294, 2293 n. 42. "The generation of the Framers thought the principle so crucial that several States put it into their constitutions." Id. at 2293.Although the court in Aldendid point out that "A State is not the sovereign when a federal claim is pressed against it" [id. at 2294], it is well-settled that the Eleventh Amendment yields to a State waiving or consenting to suit.
Therefore, given that Art. 5 of the Massachusetts Declaration of Rights is alive, albeit ignored, the Eleventh Amendment cannot override the accountability guaranteed therein, without which a remedy can not be provided for wrongs done to citizens.
Because it is only the judicially derived prong of the Eleventh Amendment which the defendants can try to apply to this case -- in that Congress did not duly ratify it, and therefore could form no intent to have it reign supreme over Art. 5 of the Massachusetts Declaration of Rights -- the Eleventh Amendment may not be
deemed supreme, in accordance with Art. 6, and preclude Linnehan, a citizen of Massachusetts, from suing the Commonwealth of Massachusetts or its agency DSS in federal court. And because the Trial Court in Brockton made Brown into a constructive subject of Massachusetts, the Amendment should also not apply to him.
The conclusion that a citizen of Massachusetts can sue the Commonwealth of Massachusetts in federal court is consistent with the goal inherit in Art. 11: that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const. Art. 11 (1780).
2. Where Congress enacted 42 U.S.C. 1983 to enforce provisions of the Fourteenth Amendment, and Massachusetts has explicitly consented to suit at all times, the Fourteenth Amendment effectively overrides the disputed judicially derived prong of the Eleventh Amendment.
While the dual-pronged Eleventh Amendment forbade any citizen to sue any State in federal court for any wrongs, the Fourteenth Amendment was enacted13 to provide people due process and equal protection rights and to forbid legislation, in any form, by any State which wrests any property from an individual for the benefit of another or of the public. Cotting v. Kansas City Stock Yards Company and the State of Kansas, 183 U.S. 79, 87, 22 S.Ct. 30, 34 (1901).
13 The Fourteenth Amendment was approved by Congress in 1866 and ratified by the States in 1868.The tension between the two Amendments has spawned a continuing debate
that has nourished many opinions throughout the federal court system. Finally, in 1998, the Court explicitly identified the Fourteenth Amendment as a third way to overcome the Eleventh Amendment:
While [ ] [Eleventh Amendment] immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment -- an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448 (1883).
College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, -- U.S. (N.J.) -- , 119 S.Ct. 2219, 2223 (1998) (where neither waiver nor consent was present).That pronouncement coupled with the force of Hafer, infra, the Fourteenth Amendment must prevail over the Eleventh Amendment in the instant case:
. . . Congress enacted sec. 1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. . . . Because of that intent, . . . I 1983 actions, the statutory requirement of action "under color of" state law is just as broad as the Fourteenth Amendment's "state action" requirement.
Hafer v. Melo, 502 U.S. 21, 28 (1991), quoting Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), quoting Monroe v. Pape, 365 U.S. 167, 171-172 (1961), and citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744 (1982).Too, where Massachusetts, through Art. 5, unequivocally expressed its consent to suit against it [see Edelman v. Jordan, 415 U.S. 651, 673 (1974)], the Fourteenth Amendment abrogates Eleventh Amendment immunity [Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907 (1984) Pennhurst II], citing Fitzpatrick, supra, particularly where there was no "congressional intent to `overturn the constitutionally guaranteed immunity of the
several States.'" Id., quoting Quern v. Jordan, 440 U.S. 332, 342 (1979).This past year, in Board of Trustees, infra, the Eleventh Amendment lost further ground to the Fourteenth Amendment:
. . . the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment. . . . As a result, . . . Congress may subject [even] nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its sec. 5 power.
Board of Trustees, 121 S.Ct. at 962, quoting Fitzpatrick, 427 U.S. at 456 (cite omitted).14 "Congress may, in determining what is `appropriate legislation' for the purposes of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Fitzpatrick, 427 U.S. at 456.14 The original citation to Hans was omitted from Board of Trustees.The principle of state sovereignty is also limited in two instances where Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908) has been applied. Idaho v. Coeur d'Alene, -- U.S. -- , 270, 117 S.Ct. 2028, 2035 (1997). "The first is where there is no state forum available to vindicate federal interests." Id. at 2035. The second is "when the case calls for the interpretation of federal law [,] . . . when [there is an] interest in having federal rights vindicated in federal courts." Id. at 2036.The instant case is one of those cases, and the plaintiffs have such an interest.
3. The Commonwealth of Massachusetts and its agency are "persons" for purposes of 42 U.S.C. 1983.
Where the Fourteenth Amendment overrides the Eleventh Amendment here, the argument as to whether a State is a "person" for purposes of sec. 1983 must also fail.
". . . the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.'"
Quern v. Jordan, 440 U.S. 332, 355 n. 10, 99 S.Ct. 1139, 1152 n. 10 (1979) (Brennan, J., with whom Marshall, J. joins, Concurring) (emphasis supplied), quoting Ex parte Virginia, 100 U.S. 339, 346., 25 L.Ed. 676 (1880). Mr. Justice Brennan continued:
The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that sec. 1983, in effectuating the provisions of the Amendment by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights" [cite omitted], is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute. . . .Monell, [infra,] held that "[s]ince there is nothing in the 'context' of the Civil Rights Act [of 1871] calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." [Cites omitted.] Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States. [Cites omitted.] Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1 L.Ed. 507] (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf.id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act.
Quern, 440 U.S. at 355-357, 99 S.Ct. at 1152-1154 (1979) (Brennan, J., with whom Marshall, J. joins, Concurring).The case relied upon by the motion judge, Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057 (1978), "does not stand for the proposition that a State is not a `person' for purposes of sec. 1983." Quern, 440 U.S. at 352, 99 S.Ct. at 1151.
In fact, Pugh fails even to mention sec. 1983. Id. Apologetically, the Court in Quern wrote: "The parsing of Pugh is strengthened by a consideration of the circumstances surrounding that decision. Pugh, a short per curiam, was issued on the last day of the Term [months before Monell v. New York City DSS, 436 U.S. 658, 98 S.Ct. 2018 (1978), was announced] without the assistance of briefs on the merits or argument." Quern, 440 U.S. at 353, 99 S.Ct. at 1151.
Mr. Justice Brennan continued:
They were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of sec. 1983. Respondents did not even raise the possibility that Alabama might be a "person" for purposes of sec. 1983. Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 1145 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of sec. 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue.
Quern, 440 U.S. at 352-354, 99 S.Ct. at 1151-1152.
Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat. . . . This fiat is particularly disturbing because it is most likely incorrect.
Id, at 354, 99 S.Ct. at 1152. Thus Pugh is not exactly the type of case upon which to rely for dismissing a complaint as important as Linnehan and Brown's, a complaint about which the motion judge wrote:
In light of the complicated nature of the state law claims raised by plaintiffs, and the existence of "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar," Ankenbrandt, 504 U.S. at 705-706, I approach plaintiffs' complaint, and the motions to dismiss, by first considering the federal claims, which provide the basis for this court's jurisdiction.
Add. 8-9.Plaintiffs further contend that where the Eleventh Amendment cannot be implicated, where the Fourteenth Amendment must be followed, and where the Commonwealth consents to suit, the Commonwealth would still be liable for relief. See id.
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.L.Rev. 1175, 1183 (1989) ("Even where a particular area is quite susceptible of clear and definite rules, we Judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided."). . . . In short, we have no authority to bar a claim that Congress, the United States Supreme Court, and the Supreme Court of New Hampshire would permit.
Irving v. United States, No. 96-2368 (1st Cir. 1998).Given that accountability is constitutionally mandated in Massachusetts, there is no need for the sovereign to "waive" immunity, for the sovereign's unrepealed, unaltered, or unamended constitutional consent to suit has been in place for more than two centuries.
Although the defendants can argue that Massachusetts' consent to suit in its own courts is not a waiver of Eleventh Amendment immunity in federal court [see Pennhurst II, 465 U.S. at 99 n. 9, 104 S.Ct. at 907 n. 9], Linnehan and Brown insist that every word of a statute must be given meaning and therefore that the words "at all times" in Art. 5 be interpreted as including suit in federal courts as well as in State courts. Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999), quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985) ("All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous");15 United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Therefore, this court must "attempt to ascertain legislative intent first, as [it does] with all statutes, `from the words used.'" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942).
15Com. v. Conaghan, 433 Mass. 105, 110 (2000) ("A statute is to be interpreted according to the plain and ordinary meaning of its words"). Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) (the language of a statute is the best indication of legislative intent). Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985) (a statute must not be interpreted so as to render it or any portion of it meaningless). Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985) (to determine the intent of the legislature, the reviewing court looks to both language and purposes of an act).
4. Where DSS is financially self-sufficient, the Eleventh Amendment's core concern is not implicated.Where an agency such as DSS "is financially self-sufficient, i.e., it generates its own revenues and pays its own debts, the Eleventh Amendment's core concern is not implicated." Cf.Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 63 U.S.L.W. 4009 (1994) ("PATH is not cloaked with the Eleventh Amendment immunity that a State enjoys," where there is a compact between three sovereigns, the two States and the federal government).
DSS is one of 50 state agencies included in the Child Abuse Prevention and Treatment Act ["CAPTA"], 42 U.S.C. 5101 et seq., the Child Abuse Prevention and Treatment and Adoption Reform Act, 42 U.S.C. 5111 et seq., and diverse other
Acts. It is statutorily enabled to receive millions of dollars in grants annually from the federal government. See, for example, 42 U.S.C. 5106, 5106a, 5106c, 5116b, 5119b. By contracting with Title IV-E expert consultants, DSS's revenue maximization efforts have claimed up to $40 to $70 million extra dollars per year. Its relationship with the federal government may be likened to the "Compact" in Hess, supra.
5. Where judicial immunity, like the second prong of the Eleventh Amendment, arose from judicial fiat, Art. 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. 5 of the Declaration of Rights, Massachusetts Constitution. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. 5 of the Declaration of Rights, Massachusetts Constitution.
Confluence of judicial immunity and Art. 6 (U.S.): Judicial immunity, too, is derived from judicial fiat. Judicially created law does not fall within the penumbra of Art. 6 of the U.S. Constitution. Therefore the judicially derived judicial immunity may not reign supreme over the command of accountability in Art. 5 of the Declaration of Rights and preclude a citizen either of Massachusetts or of a foreign State from suing Massachusetts in federal court. (Brown, a citizen from Maine, would be able to sue Massachusetts simply because Massachusetts' consent to suit "at all times" is explicit in Art. 5, making even the ratified prong of the Eleventh Amendment inapplicable where consent has been explicitly given.)
Confluence of quasijudicial and qualified immunity and Art. 5 (Mass.): If sovereign immunity for all three branches of state government does not exist because Art. 5 of the Massachusetts Declaration of Rights is deemed to be operative, making waiver unnecessary and consent to suit in state and federal courts explicit, then judicial, quasijudicial, and qualified immunity also do not exist and thus do not preclude any of plaintiffs' claims against the defendants.
Confluence of the Eleventh Amendment and Art. 5 (Mass.): Where the Eleventh Amendment is inapplicable by virtue of Art. 5 of the Declaration of Rights for Massachusetts citizens, and the Fourteenth Amendment, as written explicitly, is implicated, then judicial, quasijudicial, and qualified immunity, the products of judicial fiat, are not available as defenses to the defendants, and, as a result, do not preclude any of plaintiffs' claims against the defendants.16
16 According to Hafer, 502 U.S. at 29, citing Burns v. Reed, 500 U.S. 478, 486-487 (1991), "officials seeking absolute immunity [other than legislators or judges] must show that such immunity is justified for the governmental function at issue.
6. Where this case has arisen out of Probate & Family Court matters but plaintiffs neither seek a divorce, alimony, or child-custody decree, nor seek the review or voiding of any judgment of the state lower court, Ankenbrandt v. Richards is inapplicable.In dismissing plaintiffs' state claims, the motion judge relied upon Ankenbrandt v. Richards, 504 U.S. 689, 707 (U.S.La. 1992) (complaint sought monetary damages for alleged sexual and physical abuse of the children committed by the divorced father of the children and his female companion).
Whether or not the domestic relations "exception" is properly grounded in principles of abstention or principles of jurisdiction, I do not believe this case falls within the exception. This case only peripherally involves the subject of "domestic relations." "Domestic relations" actions are loosely classifiable into four categories. The first, or "core," category involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity. The second, or "semicore," category involves declarations of rights or obligations arising from status (or former status), e.g., alimony, child support, and division of property. The third category consists of secondary suits to enforce declarations of status, rights, or obligations. The final, catchall category covers the suits not directly involving status or obligations arising from status but that nonetheless generally relate to domestic relations matters, e.g., tort suits between family or former family members for sexual abuse, battering, or intentional infliction of emotional distress. None of this Court's prior cases that consider the domestic relations "exception" involves the type of periphery domestic relations claim at issue here.
Ankenbrandt, at 713 (Blackmun, J., concurring in the judgment).Plaintiffs incorporate as if set forth herein by reference the remainder of this argument in their two briefs on the domestic-relations exception. The briefs are at App. III:926ff. and 940ff.
Further, as in Ankenbrandt, none of the plaintiffs' claims involves the type of periphery domestic relations claims at issue here.
7. Where Christopher Salt's actions were contrary to public policy, the defense of immunity would not be available to him, making dismissal inappropriate and reversible error.
Linnehan incorporates herein his arguments in his opposition brief, App. I:198-217, for this proposition.
Notwithstanding the arguments there, Linnehan states that where Christopher Salt knowingly violated Linnehan's clearly established rights -- deprivation of constitutional due process and deprivation of parental rights -- Salt had neither absolute, quasijudicial or qualified immunity.
Where Salt's conduct was not policy-related, Salt's conduct was nondiscretionary, and procedural safeguards were absent, Christopher Salt has neither absolute, quasijudicial nor qualified immunity as a shield to his common-law tort claims.
Where Salt had neither absolute, quasijudicial nor qualified immunity, and immunity was the only basis upon which he claimed that Linnehan failed to state a claim upon for which relief could be granted, the Rule 12(b)(6) prong of his motion must fail as to all counts against him.
8. Where Sandra Fyfe, found to be a state actor, knowingly committed a baseless act which deprived Linnehan of his fundamental liberty and property rights, she was, under the Fourteenth Amendment, not entitled to absolute, quasijudicial immunity, making dismissal on this ground reversible error. In the alternative, if Fyfe was entitled to immunity, at most she was entitled to qualified immunity.
Assuming that this court finds untenable Linnehan's argument against the application of the Eleventh Amendment, Linnehan argues in the alternative that where Fyfe was not personally appointed by the state lower court in any capacity -- neither investigator nor therapist nor evaluator, but when she filed a report with the court and the court accepted it, the court thereby insinuated itself into joint action with Fyfe and made her into a state actor. (The motion judge found Fyfe to be a state actor [Add. 19-20].)
Given that with the filing of a baseless report, Fyfe could reasonably foresee and had knowledge that she was violating Linnehan's clearly established rights, to wit, acting to deprive him of constitutional due process and of his parental rights. Therefore, under the Fourteenth Amendment, Fyfe may not claim to not have absolute quasijudicial immunity under either federal or state law.
While the motion judge summarily dismissed Linnehan's claims against Fyfe on the grounds that Fyfe's function was decisive and deserving of quasijudicial immunity, and not on the grounds that Fyfe was not a state actor by virtue of her not having been personlly appointed by the court, the judge's decision lacked any legal authority for his conclusion.
The several tests which can apply to the Fyfe-Linnehan relationship are detailed in Issue 9, infra.
Linnehan contends that without a proper reference of appointment, the state court had no authority to accept her report and/or recommendation without Linnehan having an opportunity to cross-examine Fyfe and rebut adverse materials, if any, against him.
Fyfe's unilateral interference in Linnehan's paternity and custody action was actionable: she was but an ordinary lay witness and she had no authority to interfere and do Linnehan harm. Cf. Laurenza v. Laurenaza, 7 Mass.App.Ct. 906, 388 N.E.2d 704 (1979).
In Laurenza, 7 Mass.App.Ct. at 906, 388 N.E.2d at 704. the decree of appointment was invalid and vacated because no citation or notice was issued or given to the minor above the age of fourteen. In the absence of that notice, that there was not a validly appointed guardian, either permanent or temporary, who could authorize the commitment of the minor to a mental health or retardation facility.
In City of Somerville v. Somerville Mun. Employees Ass'n, 20 Mass.App.Ct. 594, 599, 481 N.E.2d 1176, 1180 (1985), a civil service case, a provisional promotion on the municipal level could not be made without express authorization from the administrator.
Without an explicit grant of authority to Fyfe, she could have been found liable for negligence as well as for Linnehan's claims. Matter of Spring, 380 Mass. 629, 639, 405 N.E.2d 115, 122 (1980): "Immunity afforded by court authorization would seem to be subject to similar limitation, for example, if the physician is negligent in implementing the court order." Id. "[C]ourt approval may serve the useful purpose of resolving a doubtful or disputed question of law or fact." Id.
Moreover, Linnehan incorporates herein by reference his arguments in his opposition and surreply at App. II:378-388 and 399-410, which the motion judge did not reach. Linnehan contends that there are genuine issues of material fact which should be sent to a jury.
9. Where there were genuine disputes as to whether John J. McCarthy, Jr., was a state actor and whether he was incompetent, and where the court arbitrarily chose the wrong tests to determine whether McCarthy was a state actor and quite wrongly assumed that McCarthy's participation with the state was an isolated event, and did not "count," the dismissal for failure to state a claim was inappropriate and reversible error.17 In the alternative, if McCarthy was entitled to immunity, at most he was entitled to qualified immunity. Further, where there was a genuine issue as to whether he was a state actor, discovery should have been allowed.
17 See footnote 1, supra.The court pointed out that there was a genuine issue on the material fact as to whether McCarthy was court-appointed [Add. 21-22].18 The court was also explicit that no matter how erroneous McCarthy's acts were, he was still entitled to absolute, quasijudicial immunity. The judge relied upon Cleavinger v. Saxner, 474 U.S. 193, 201 (1985) for that proposition. The court also dismissed the claim against McCarthy because it wrongly applied a numerosity requirement greater than one where there has never been a numerosity requirement:18 Discovery had not yet been performed."[T]he mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within contemplation of sec. 1983."
Lugar, 457 U.S. at 927 (cite omitted) (emphasis supplied).Linnehan contends that while it is, indeed, accurate to state that the cases "indicate that immunity analysis rests on functional categories, not on the status of the defendant" [id. at 201], the word "status" refers to the position of the defendant, not on whether the defendant is a state actor or not a state actor. Id. There, in Cleavinger, the cases cited were against state prison officials, school board members, police officers, Postmaster General, and Government officials, all clearly state actors. It was their function at their jobs which went to the essence of the proposition about "status."
In Richardson v. McKnight, 521 U.S. 399 (1997), prison guards employed by a private firm were not entitled to a qualified immunity from suit by prisoners charging a sec. 1983 violation. (McCarthy, too, was a co-owner or employed by a private firm [App. III:886-889].) There, the court wrote, "The Court has sometimes applied a functional approach in immunity cases, but only to decide which type of immunity -- absolute or qualified -- a public officer should receive." Id. at 408 (cites omitted).
And it never has held that the mere performance of a governmental function could make the difference between unlimited sec. 1983 liability and qualified immunity, [ ] especially for a private person who performs a job without government supervision or direction. Indeed a purely functional approach bristles with difficulty, particularly since, in many areas, government and private industry may engage in fundamentally similar activities. . . .
Id. at 408-409 (cite omitted).In the instant case, the court did not use McCarthy's function to determine which type of immunity, if any, would protect him. Were it absolute, quasijudicial, McCarthy would be protected from suit. Were it qualified immunity, McCarthy might or might not be protected from liability.
Linnehan further contends that McCarthy, like Fyfe, would not have been entitled to immunity had he not been duly appointed, and that if McCarthy was entitled to immunity, it would have been at the most qualified immunity. Linnehan argued, "Qualified immunity protects `all but the plainly incompetent OR those who knowingly violate the law.'" Anderson v. Creighton, 483 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). And Linnehan averred both, i.e., that McCarthy was both plainly incompetent and did knowingly violate the law.
Nevertheless, the court wrote that dismissal was not based on those grounds: that, for all intents and purposes, the court did not have to reach that level of inquiry, for if McCarthy was a state actor, he would have quasijudicial immunity and if he was not, he could not be sued under section 1983.
Linnehan contends, however, that after McCarthy came on the scene, he was deprived of a parental relationship with his son solely because of McCarthy’s incompetence and fraud (pretending to be -- and charging for being -- the child’s therapist when McCarthy met, in fact, only with the mom). Linnehan also contends that it was "reasonably foreseeable" by McCarthy that the recommendation (for no visitation) in his letters to mom’s and the child’s counsel [App. III:879ff.] would be filed in the lower court and then relied upon to forbid Linnehan visitation with the child. McCarthy’s foreseeability and the State’s reliance are sufficient to constitute "joint action" and turn McCarthy into a state actor. See Blanchard, infra. That determination should have lead to scrutiny of his performance and in turn, to the determination of the type of immunity to which he was entitled, if any.
The court was correct that "the absence of a state actor is fatal to a complaint under 42 U.S.C. sec. 1983" [Add. 23], but that would not have been cause to dismiss the state claims. Even more significant, the court's position was internally inconsistent: For instance, the same conundrum existed with Fyfe – was she or was she not a state actor -- but the court said a court appointment in accordance with statutory procedures was unnecessary; it was Fyfe's function which was relevant. Here, with McCarthy, the court chose to take the opposite side of the fence and applied a set of three tests from Rodriguez-Garcia v. Davila, 904 F.2d 90, 96 (1st Cir. 1990). All are fact-intensive, and given that discovery had not yet taken place, it was premature to apply those tests.19
19 In Casa Marie, Inc. v. Superior Court of Puerto Rico for the District of Arecibo, 988 F.2d 252 (1st Cir. 1993) (finding state action), the court rejected the Rodriguez-Garcia state-action tests, propounded by the appellees, who lost on appeal, because "these grounds [were] neither suggested nor established in the present record." Id. at 259 n. 7.Additionally, the Rodriguez-Garcia tests are not the only ones courts apply to test whether a private party is a state actor. In Lugar, supra, the Court recognized that there are " number of different factors or tests in different contexts: e.g., the "public function" test, the "state compulsion" test, the "nexus" test. . . ." Lugar, 457 U.S. at 939, 102 S.Ct. at 2754-2755 (cites omitted).
Whether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation need not be resolved here. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860 [(1961)] ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance").
Lugar, 457 U.S. at 939, 102 S.Ct. at 2754-2755.In Rockwell v. Cape Cod Hospital, 26 F.3d 254, 257 (1st Cir. 1994), the First Circuit preferred the (1) the state compulsion test, (2) the nexus/joint action test, and the (3) public function test.
In Blanchard v. Peerless Insurance Co., 958 F.2d 483 (1st Cir. 1992), not a section 1983 case, the court chose the "totality of the circumstances test, which "requires at least two `reasonableness' evaluations (namely, `reasonably recent' presence and `reasonably foreseeable' return) normally entrusted to the jury." Id. at 488, quoting Aetna Life & Cas. Co. v. Carrera, 577 A.2d 980 (R.I. 1990). The "totality of the circumstances" test, which is a question of mixed law and fact precluding summary judgment, is also appropriate here -- given the documentary proof of McCarthy's knowing violation of the law, if not also his incompetence, which the Rodriguez-Garcia tests can and reach. Under Rockwell, Blanchard, and Carrera, McCarthy would be deemed a state actor, and under Anderson and Malley, immunity would be deemed unavailable to him ab initio.
See further discussion of joint action/participation at Issues 10 and 11.
10. Where Eli Newberger, Children’s Hospital, and Amy Tishelman were private parties whose conduct was attributable to the Commonwealth, and the Commonwealth "so far insinuated itself into a position of interdependence with [these three defendants,] it must be recognized as a joint participant in the challenged activity," making dismissal inappropriate and reversible error. Further, where there was a genuine issue as to whether they were state actors, discovery should have been allowed before dismissal.
Here, Newberger and the hospital have an international reputation as child-sex-abuse evaluators. Newberger regularly sought out as an expert for the Commonwealth in child abuse cases (e.g., the Amirault and the Woodward Au Pair cases). Newberger and his team, which includes Tishelman, are regularly sought out by so-called mental-health workers, as well as by private parties to perform sex abuse evaluations.
Newberger admitted that he knew his team's reports would be used in court – in fact, he prepared them for that purpose -- against Linnehan and Brown and that they would have a long life [App. II:533, 553]. And when Newberger team's reports were filed with the court, the court bought into what those reports had to say, making the court a joint participant with Newberger and the employing hospital.
The motion court overlooked the law below.
A private party's conduct is attributable to the state if the state "has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity."
Camilo-Robles v. Hoyos, 151 F.3d 1, 10 ((1st Cir. (P.R.) 1998) (cite omitted). For instance, when a state allows an ex parte attachment pursuant to a state statute which is "being challenged as being procedurally defective under the Due Process Clause" [Lugar, 457 U.S. at 923] there is "a sufficient nexus between state and individual to demonstrate state action and permit a sec. 1983 suit against the individual who sought the attachment." Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000), citing Lugar, 457 U.S. at 942 ("a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment"). Brentwood Academy v. Tennessee Secondary School Athletic Association, -- U.S. --, 121 S.Ct. 924, 930 (2001). Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970 (joint action, acting "under color of law" for purposes of sec. 1983); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) ("significant encouragement, either overt or covert"); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856 (1961) (symbiotic relationship); and Evans v. Newton, 382 U.S. 296, 299, 301 (1966) (state action where a private entity is controlled by an "agency of the State", e.g., the entity has been delegated a public function by the State or when it is "entwined with governmental policies"). See further discussion at Issue 11.
Inasmuch as [he] is and was a private citizen, liability under 42 U.S.C. sec. 1983 requires a showing that he collogued with state actors--persons acting under color of state law--to deprive the plaintiff of his civil rights. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) ... Accord Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966). As the district court told the jury in its charge, "[a] sec. 1983 defendant need not be an officer of the state. It is enough if he is a willful participant in joint activity with the state or its agents."
Wagenmann v. Adams, 829 F.2d 196, 209-210 (1st Cir. 1987).For the reasons cited above, the dismissal of Linnehan's and Brown's claims against Newberger and the hospital was inappropriate and reversible error.
11. Where Eileen Kern was a state actor, dismissal of the sec. 1983 claim against her, on the grounds that she was not, was inappropriate and reversible error.
The motion court's confusion as to what position Kern held at New Bedford Child & Family when she performed an assessment of Linnehan's child and the child's mother and when she filed with DSS a report, pursuant to M.G.L. c. 119, sec. 51A, of suspected abuse were facts that had yet to be discovered. For that reason, the dismissal was premature. At the very least, Kern had the burden of proof as to whether she made the 51A report in good faith. Hope v. Landau, 398 Mass. 738, 740 n. 3, 500 N.E.2d 809, 810 n. 3 (1986) ("sec. 51A provides immunity only for good faith action, which contrary to the Appeals Court, we believe should not be presumed in favor of defendants, who would have the burden of proof on that issue").
While it appears on the surface that Kern was a private actor, New Bedford Child & Family, by which Kern was employed, has an ongoing relationship, believed to be contractual, with DSS. This would make Kern a state actor, a conclusion contrary to the one drawn by the motion court. So, here again, the court was inconsistent: i.e., in similar circumstances, Fyfe, the motion judge concluded, was deemed to be a state actor.
Even more significant is that Kern was compelled by M.G.L. c. 119, sec. 51A, to make such a report. If she did not so report, she would be fined [Add. 32, 52]. The motion judge failed to take this into consideration. Cf. Rockwell v. Cape Cod Hospital, 26 F.3d 254 (1st Cir. 1994) (no state action when acting under M.G.L. c. 123, sec. 12). The instant case is distinguishable, however, in that in section 12, neither the hospital nor the doctors were under the threat of being fined as was Kern in section 51A of chapter 119. In a nutshell, there is state compulsion here, sufficient joint participation, a sufficient nexus, to deem Kern a state actor.
In Brentwood Academy v. Tennessee Secondary School Athletic Association, -- U.S. --, 121 S.Ct. 924 (6th Cir. 2001), the Court wrote, "State action may be found only if there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" Id., at 930, quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (1974).
We have [ ] held that a challenged activity may be state action when it results from the State's exercise of "coercive power," Blum, 457 U.S. at 1004, when the State provides "significant encouragement, either overt or covert," ibid., or when a private actor operates as a "willful participant in joint activity with the State or its agents," Lugar, 941 (internal quotation marks omitted). We have treated a nominally private entity as a state actor when it is controlled by an "agency of the State," [cite omitted], when it has been delegated a public function by the State, [cites omitted], when it is "entwined with governmental policies" or when government is "entwined in [its] management or control," Evans v. Newton, 382 U.S. 296, 299, 301 (1966).
Brentwood, 121 S.Ct. at 930. "If a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action `under color of law' for sec. 1983 purposes." Id. at n. 2, quoting Lugar, at 935.Moreover, given that Kern under M.G.L. c. 119, sec. 51A, is afforded statutory protection for reporting to DSS any good-faith accusations of abuse, it follows logically that she must be deemed a state actor for purposes of suit under sec. 1983. Once DSS insinuated itself into a position of interdependence with Kern, DSS, the state agency, and Kern were joint participants in the challenged activity [Camilo-Robles v. Hoyos, 151 F.3d at 10] and she became a state actor for her role in the Linnehan cases is the lower state courts.
12. Where the court gave no reasons either from the bench or in writing for setting aside Defendant Newberger's default, and plaintiffs satisfied all the elements for leaving a default in place, it was reversible error to set aside the default.
"In determining whether to set aside a default decree, the district court should consider [1] whether the default was willful, [2] whether setting it aside would prejudice the adversary, and [3] whether a meritorious defense is presented." . . . That compendium is by no means exclusive; a court may also examine into such things as [4] the proffered explanation for the default, [5] the good faith of the parties, [6] the amount of money involved, and [7] the timing of the motion.
Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. (R.I.), 1989) (cites omitted) (numbering of elements added).Where Newberger's default was willful, setting it aside would prejudice the plaintiffs, no meritorious defense was presented, his proffered explanation for the default was unreasonable and untrue, he lacked good faith, the amount of money involved is an unliquidated amount, i.e., it is incalculable at this moment, and the motion to vacate came months after the default entered, the default should not be set aside.20
20 Newberger’s defense was made of whole cloth. Linnehan and Newberger were never parties in the same case. Newberger was but a potential nonparty witness in Linnehan's Probate & Family Court action for a declaration of paternity and custody of his son. [See App. I:120-138].These elements were discussed fully in Brown and Linnehan's OPPOSITION TO ELI NEWBERGER'S MOTION TO REMOVE ENTRY OF DEFAULT [App. I:120-134].RELIEF REQUESTED
Linnehan and Brown seek the reversal of the dismissal of their claims.
Respectfully submitted,
PLAINTIFF/APPELLANTS,
By their attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833CERTIFICATE OF SERVICE
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