#86, Drano Series
Barb's Proposed Findings of Fact, Memorandum of Law, and
Proposed Rulings of Law
after Hearing on the Motion by Bar Counsel for the Release of RecordsA Battle in the War between Barb
and
the Office of Bar Counsel of the Board of Bar Overseers
COMMONWEALTH OF MASSACHUSETTS BRISTOL, ss. PROBATE & FAMILY COURT
NO. 88W0113-P1
-----------------------------------
James Linnehan,
Plaintiffv.
Robyn L. (Gerry) Sylvia,
Defendant
------------------------------------PLAINTIFF’S PROPOSED FINDINGS OF FACT, MEMORANDUM OF LAW, AND PROPOSED RULINGS OF LAW AFTER HEARING ON BAR COUNSEL’S
MOTION FOR RELEASE OF IMPOUNDED OR SEGREGATED RECORDS
Now come James Linnehan ["Linnehan"] and his counsel, Barbara C. Johnson ["Johnson"] and submit herein this pleading their Proposed Findings of Fact, Memorandum of Law, and Proposed Rulings of Law after hearing on Bar Counsel’s motion for the release of impounded or segregated records. INTRODUCTION
This section is composed of the following sections: (1) the Bar Counsel’s purpose, (2) the statutory background, and (3) the factual background of Linnehan’s paternity and custody case.
The Bar Counsel’s Purpose. The purpose of the Bar’s motion is to find evidence proving that Johnson published court-impounded evidence in files on her website. Because Assistant Bar Counsel Susan Strauss Weisberg ["Weisberg"], the agent of the Bar Counsel, Daniel Crane, has never identified specifically those files which allegedly violate any statute or rule, Johnson can only speculate that Weisberg is complaining about the following four files:
Drano #22: Filed in Bristol County Probate & Family Court Similarly, because Weisberg has never identified specifically those quotes which the Bar finds offensive, Johnson can only assume the following direct quotes from a court-appointed investigator’s deposition and reports are those with which Weisberg is concerned:
Amended Complaint for Modification Pursuant to Mass.R.Civ.P. 15(a) (James Linnehan v. Robyn Gerry Sylvia)Drano #5: Filed in United States District Court
Amended Complaint Based on the Deprivation of Parental RightsDrano #9: Filed in United States District Court
Opposition to Christopher Salt's Motion to DismissDrano #31: Filed in United States District Court
Linnehan's Opposition and Combined Memorandum in Support of His Opposition to Children's Hospital's and Eli Newberger's Motion to Dismiss
(1) "justification" [Investigator’s depo at 15], (2)"no live-in boyfriend" [Investigator’s 7/1/88 report at 25],
(3) "there appears to be no significant males in [the child’s] life other than Mr. Linnehan." [Investigator’s 7/1/88 report at 25],
(4) "dated a few times and have remained good friends" [Investigator’s 7/1/88 report at 17]. None of the quoted material is sufficient to constitute "good cause" for an impoundment order. Rule 7 of the Uniform Rules of Impoundment Procedure.\1/(5) "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress" [Investigator’s 11/10/88 deposition at 34], (6) "her husband Michael is very important to [Linnehan’s son] and that Michael treats her son as if he were his own" [Investigator’s 1/5/92 report at 2; also 15].
(7) "except for one or two" [Investigator’s 1/5/92 report at 8].
1An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law. In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request. Agreement of all parties or interested third persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.Paragraph 1, Rule 7 of the Uniform Rules of Impoundment Procedure.Johnson did also make reference to the following pages of the investigator’s deposition (not filed in any court) and reports (filed only in Juvenile Court):
Investigator’s 7/1/88 report at 17 and 25,
Investigator’s 11/10/88 deposition at 13-17 and 28, and
Investigator’s 1/5/92 report at 8, 10, and 16.
In sum, Weisberg is not only attempting to censor Johnson’s website, to violate both her First Amendment rights and her human rights to think and make conclusions, and to censure Johnson, Weisberg is also trying to violate the public’s common-law right to scrutinize and police the judicial system.Statutory Background. Prior to 31 March 1998, court records as itemized in §13 of G.L. c. 209C, governing out-of-wedlock paternity and custody disputes and the care and support of children born out of wedlock, were automatically impounded, but the impoundment was not absolute. Exceptions were allowed where there was good cause for public scrutiny. Rule 7 of the Uniform Rules of Impoundment Procedure.
On 31 March 1998, an amendment of §13 became effective, and files in out-of-wedlock cases began to be treated the same as files in divorce cases. After that date, the effect of the statute was inverted: the public was given a presumptive right of access to all court records itemized in §13.\2/ Restriction of access was deemed to be of constitutional dimension,\3/ and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.\4/
2Because Rule 7 of the Uniform Rules must be implemented in accordance with applicable law, it supports the shift of the burden of showing "good cause" to the person seeking denial of public access. Globe, 2002 WL 202464 at 4.Factual Background of Linnehan’s Case. During and after the year 2000, Johnson\5/ uploaded diverse pleadings filed in U.S. District Court in Boston, a pleading or two from a divorce action entitled Robyn L. Gerry-Sylvia v. Michael Sylvia, Linnehan’s Amended Complaint for Modification, filed on or around 10 May 2000 in this court, and photographs of Linnehan and his biological family.3"When a document in a court case is filed with the court, that document is presumptively available to the general public and the press as part of the general principle that judicial proceedings, both criminal and civil, are open to all." Globe, infra, 2002 WL 202464 at 2, citing generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977) and Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000).
4The denial of access to the files of a divorce case requires "a showing of overriding necessity." Globe Newspaper Co., Inc. v. Clerk of Suffolk County Superior Court, 2002 WL 202464 at 4, No. 01-5588-F (Sup.Ct. Feb. 4, 2002) (Gants, J.), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509 (1984), and George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279.
5Johnson was Linnehan’s seventh lawyer. None of the six prior counsel fought or opposed the system by calling attention to the deprivations of due process and equal protections which were plaguing Linnehan’s quest to see his son.In those uploaded pleadings, Johnson cited or referred to pre-1998 "Linnehan documents," for example, the seven quotations listed above from (1) the two reports filed by an investigator appointed by the Juvenile Court in a chapter 119 Care and Protection case,\6/ and (2) the transcript of the investigator’s deposition, which was taken on 10 November 1988 in the chapter 209C paternity and custody case in Probate & Family Court. The Juvenile-Court investigator’s 1988 report was the subject of the deposition. The investigator’s second report was not filed until 1992.6See Subsidiary Facts section below for details.Further, (1) because there was not a shred of due process in the closed chapter 119 case in Juvenile Court, and the court was unlikely to have welcomed the imperative scrutiny, Johnson was con-vinced that it would have been futile\7/ for her to seek permission to quote from the investigator’s reports and (2) because at least one of the reports was the subject of the Probate & Family Court deposition and public access to documents in a chapter 209C case was presumptive, Johnson had no need to seek permission of the Probate & Family Court to publish the documents.\8/7"The ‘law does not require the doing of a useless act.’" Loomer v. Dionne, 338 Mass. 348, 353 (1959), citing Mowry's Case, 112 Mass. 394, 400, and Schayer v. Commonwealth Loan Co., 163 Mass. 322, 323-324.So the primary questions to be answered by this court are ones of first impression: Does one or both versions of the statute apply to Johnson’s uploaded post-2000 pleadings? And, does the amendment have only prospective effect or does it also have retrospective or retroactive effect? Johnson contends that for consistency and logic, the amendment must also operate retroactively.8Johnson had Linnehan’s consent, and Robyn L. Gerry Sylvia, who was a public figure, having run for elective office once in Fairhaven, never filed a motion seeking impoundment under the Trial Court Rules or the amended §13 of any documents.
PROPOSED FINDINGS OF FACTS
(followed by Memorandum of Law and Proposed Rulings of Law)Pursuant to Rule 52(a) of the Massachusetts Rules of Domestic Relations Procedure, at the conclusion of all the evidence, Plaintiff James Linnehan and his counsel move this Court to make the following findings of fact and conclusions of law in the above-captioned action.
For the convenience of the court, Linnehan has divided this set into two sections: subsidiary and ultimate findings.
SUBSIDIARY FINDINGS OF FACT
- In 1986, Linnehan brought a paternity and custody case in the State of Maine.
- Soon thereafter Robyn fled Maine with their son.
- After searching for her and the child for ten months, he found them in Massachusetts and settled here to be near the child.
- In the Maine action, they were sent to mediation. When mediation did not go well for Robyn, she returned to Massachusetts and brought the child the very next day to a therapist, who immediately filed a report of abuse pursuant to c. 119, sec. 51A.
- On 4 May 1988, the Department of Social Services or the therapist (noted as the Complain-ant/Petitioner on the docket sheet) filed a Care and Protection case in Juvenile Court and a day later both appointed Christopher Salt to investigate and report and ordered a parenting assessment of the mother. Within two months, Linnehan’s motions for custody rights and for visitation with his son were denied . . . before Salt’s report was even filed.
- In fact, by the docket sheet, it appears Salt’s first report was never filed in Juvenile Court. (Johnson had filed the U.S. District Court case\9/ before receiving the Juvenile Court docket sheet, which had been withheld despite multiple requests for it, and did not know this fact).
9The Amended Complaint of the U.S. District Court case was filed on or around 25 September 2000 and uploaded to http://www.falseallegations.com/complaint-linn.htm.
- The Juvenile Court judge, now-retired Ronald Harper, ordered Linnehan to drop the Maine action. Foolishly, Linnehan did so. One assumes on the advice of counsel.
- Then, on 24 June 1988, Linnehan filed a paternity and custody action in accordance with chapter 209C in Bristol County Probate & Family Court in New Bedford.
- On 22 August 1988, both cases were assigned to Juvenile Court Judge Ronald Harper, who was to act as the judge in both cases.
- On 2 October 1991, Christopher Salt was again appointed to investigate and report. The docket sheet is ambiguous as to whether the second report was filed on 6 January 1992 . . . because the case was continued for the report for almost a year until that time, and at that point, there is no entry that even the second report was filed.
- Between 1988 and 31 March 1998, in accordance with G.L. c. 209C, §13, all complaints, pleadings, papers, documents or reports filed in connection with the Linnehan action, docket entries in the permanent docket and record books were presumptively unavailable for public inspection unless ordered by a judge for good cause shown and allegedly segregated. Peckham v. Boston Herald, Inc., 48 Mass.App.Ct. 282, 289-290 (1999) (publisher prevailed where the subject of a judicial proceeding is a subject of inherent interest and concern to the public).
- Bar Counsel presented no proof either attached to its motion or during oral argument to evidence that c. 209C §13 was enforced in the Linnehan case prior to 31 March 1998.
- Bar Counsel presented no proof either attached to its motion or during oral argument to evidence that an exception to c. 209C §13 was made by a court prior to 31 March 1998.
- Between 1988 and 31 March 1998, there was no proceeding or pleading which invoked G.L. c. 209C, §13.
- The pre-1998 statute G.L. c. 209C §13, which made docket entries and other court papers connected with paternity proceedings presumptively unavailable for public inspection, did not preclude a determination that the paternity proceeding reported on was a matter of legitimate public concern. Peckham, at G.L. c. 209C, §13; c. 214, §1B.
- On 31 March 1998, an amendment to G.L. c. 209C, §13 (St.1998, c. 64, §229), became effective. The statute became inverted, making impoundment discretionary; that is, the types of documents named above became available for inspection unless the judge for good cause shown orders otherwise. Peckham, at 290.
- After 31 March 1998, the burden of showing good cause shifted to the entity who wanted to deny public access to the files of an action brought pursuant to c. 209C.
- Linnehan complains that since the incipience of both cases – in the juvenile and the probate and family courts -- he and the public have had an interest in the disclosure of the following information relevant to misuse of authority and official wrongdoing:
a.Juvenile Court conducted closed sessions, where there was no scrutiny by the public and where possibly unscrupulous practices -- such as the denial of due process – occurred; b. there was no hearing at which evidence was taken in either court. Linnehan was never allowed to put someone on the stand and cross-examine them. He was never allowed to rebut any of the reports which were written by an assortment of workers and which he believed contained untruths;
c. after 1988, he saw his son for two 40-minute sessions in December 1990 and January 1991 with therapists, who did find that he and his son should have a relationship . . . but their recommendations were shoved aside;
d. Linnehan was at all timed denied due process, i.e., he was NEVER allowed to cross-examine Eli Newberger ["Newberger"] and his team on their report outside or inside any court;
e. six lawyers unsuccessfully lawyering later, Linnehan caused to be served both a Complaint for Modification in Probate & Family Court on Robyn Gerry-Sylvia ["Robyn"] and deposition subpoenas on Newberger;
f. in May 2000, Linnehan then duly served, in accordance with M.R.Civ.P 15(a), an Amended Complaint [Paper 55]. Judge Prudence McGregor did not acknowledge the proper service of the Amended Complaint and ignored it;
g. Deborah Wolf ["Wolf"], who claims to be the child’s court-appointed attorney, was allowed to file and argue a motion to dismiss Linnehan’s complaint,\10/ although the minor child alleged to be her client was not a party to the complaint, and therefore lacked standing, and she had not been either appointed to him in Probate & Family court or re-appointed to him in Juvenile Court;\11/
10The original, unamended Complaint. h. subsequently, Attorney Bruce Lider\12/ ["Lider"] filed Robyn’s complaint for modification for increase in support [Paper 82] but IMproperly served it,\13/ as noted in some detail in Linnehan’s counsel’s letter of June 24th of 2001 to Judges Grace and Dunphy (in response to Lider’s request that Robyn’s complaint be heard in Juvenile Court).11Johnson believes that Wolf billed the Commonwealth for the alleged services she allegedly performed for the minor child in family court, although she does not appear to have been appointed in that court.
12Lider was originally court-appointed to represent the mother in Juvenile Court in 1988. No re-appointment appears on the docket sheet. Nor does any affidavit of indigency for Robyn L. Gerry (maiden name) or Robyn L. Sylvia (married name), or Robyn Gerry-Sylvia (hyphenated name assumed pending divorce) appear on the docket sheets in either Juvenile Court or Probate & Family Court. 13That Linnehan’s Complaint, duly served in accordance with M.R.Civ.P. 15(a), was not accepted by the court but Gerry-Sylvia’s, not duly served, was accepted and acknowledged by the court is prima facie evidence of the continuing gender discrimination practiced by the Probate & Family Court.
The abridged version of the improper service and service of process is as follows:
- the service was not in HAND as the server certified [Paper 83],
- upon information and belief, the server was not authorized to serve in Essex County, and
ULTIMATE FINDINGS OF FACT
- the rain-soaked-and-crumpled complaint for modification was UNsigned was found in the wrong mailbox by a neighbor who recognized Linnehan’s name and delivered it to him; the neighbor’s affidavit was ignored by the court;
i. the judgment of increased support entered against Linnehan’s interest in his absence, due to lack of service, must be deemed void nunc pro tunc, and restitution be made, given that the court had not acquired jurisdiction over him. Farley v. Sprague, 374 Mass. 419, 420 (1978) (a judgment based upon improper service of process is void as a matter of law); j. the judge (LaStaiti) who allowed Robyn's complaint for modification was acting outside her authority -- having no jurisdiction; k. when Judge LaStaiti applied and increased Linnehan’s child support payments, she violated the Child Support Guidelines, which assume that traditional custody and/or visitation arrangements be in place, and here they were never in place; in fact, from the incipience of the cases in either court, any order of child support by Linnehan was unlawful.
l.rising to the level of a misrepresentation of a material fact to divers trial courts was the assertion by Lider that he was not Robyn’s attorney when there was no action pending: he argued the contrary before Judge McGregor on 11 August 2000.
- There is no pending action in the Probate & Family Court to underlie the motion.
- Linnehan’s counsel, Johnson, was not a party to any action in Probate & Family Court or in Juvenile Court. Johnson also has never represented Linnehan in Juvenile Court.
- Johnson is also an Internet publisher.\14/
14"The rule seems to be that `[i]f a newspaper lawfully obtains truthful information about a matter of public significance then [the] state ... may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.’" Peckham, at 290 n. 9, quoting The Florida Star v. B.J.F., 491 U.S. 524, 533 (1989), quoting from Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979).
- Linnehan has no control over Johnson’s website.
- The Bar Counsel, Daniel Crane, does not seek the impoundment of materials.
- The Bar Counsel has not specified the material to be impounded and duration of the impoundment.
- The Bar Counsel seeks, instead, to inspect the entire file of this action, including documents filed before and after 31 March 1998.
- The Bar Counsel seeks to have a fishing expedition for discovery purposes, as evidenced by his failure to identify even one item for which it is looking.
ARGUMENTS (followed by Proposed Rulings of Law) Pursuant to Rule 52(a) of the Massachusetts Rules of Domestic Relations Procedure, at the conclusion of a non-evidentiary hearing, Plaintiff James Linnehan moves this Court to make the following conclusions of law in the above-captioned action.
1. Where the 1998 amendment to §13 of G.L. c. 209C is administrative. the
amendment has retroactive as well as prospective effect, and Linnehan and
the public are entitled to access to the entire file of his chapter 209C action."The general rule is that statutory procedural changes properly apply to pending cases and to trials that concern events occurring before the enactment of the change." News Group Boston, Inc. v. Com., 409 Mass. 627, 630 (1991), citing Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959) ("[s]tatutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively").
Ordinarily, statutory, and thus regulatory, changes of substance apply only to events that occur after the change's effective date. Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 219 (1997), quoting from Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 3 (1914). To that general rule, however, there are several exceptions. One such exception gives retroactive effect to "curative" changes, i.e., changes "designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice." Canton v. Bruno, 361 Mass. 598, 609 (1972), quoting from Graham & Foster v. Goodcell, 282 U.S. 409, 429 (1931) . . . ("[A]n amendment may apply retroactively if it is curative or remedial and intended to clarify rather than change the law"); 2 Singer, Sutherland Statutory Construction § 41:11, at 468 (6th ed. rev.2001).
Figueroa v. Director of Dept. of Labor and Workforce Development, 54 Mass.App.Ct. 64, 70-71 (2002) [internal cites to out-of-state cases omitted].Given that the presumption of openness and the notion that the public must be able to scrutinize judicial proceedings is so consistent and unyielding, the entire record of the action from the date it was filed is required. Thus where the amendment to G.L. c. 209C, §13, is administrative, this court must deem that the 1998 amendment operates retroactively.
Further, even assuming arguendo that the amendment were not operating retroactively, because there were many wrongs done Linnehan which prejudiced and deprived him of his rights to due process and equal protection under both the federal and state constitutions while the action was pending, that defective judicial process warrants public scrutiny.
"Publicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987). There was no error where "`[t]he public interest in overseeing the integrity of the judicial process is clear while court proceedings are pending ... but the utility of the glare of publicity fades after the termination of the proceedings.' Id. at 332, quoting New Bedford Standard-Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 414 (1979).
We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.
H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280 (concluding "that the documents at issue here may only be impounded on a showing of overriding necessity, which is based on specific findings"). .
There is a well-established common law right of access to the judicial records of civil proceedings. See Nixon v. Warner Communications, Inc., [435 U.S. 589], 597 (1978) ("the courts of this country recognize a general right to inspect and copy public records and documents" [footnotes omitted] ); Ottaway Newspapers, Inc. v. Appeals Court, [372 Mass. 539], at 546 (affirming "with emphasis" general principle of publicity in the absence of statutory limitation on access to judicial records). The presumption of access facilitates "the citizen's desire to keep a watchful eye on the workings of public agencies," permits the media to "publish information concerning the operation of government," Nixon v. Warner Communications, Inc., supra at 598, and supports the public's right to know "whether public servants are carrying out their duties in an efficient and law-abiding manner." George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, supra at 279, quoting Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Access to otherwise unrestricted records of judicial proceedings may therefore be viewed as an essential component of the general principle of publicity: "the public often would not have a 'full understanding' of the proceeding and therefore would not always be in a position to serve as an effective check on the system" if it were denied access to judicial records. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989). See New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 417 (1979) (Abrams, J., concurring) ("greater access to information about the actions of public officers and institutions is increasingly recognized as an essential ingredient of public confidence in government").
Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 605-606.Where the repeated abuses by the judges of their power in the Linnehan cases, Linnehan asks whether they would have been committed if public scrutiny had been allowed and if judges and those they appoint to investigate, evaluate, or determine custody and visitation issues were not given, respectively, judicial and quasijudicial immunity, perhaps Linnehan would not have lost knowing his son for the past 15 years. The tragedy is irremedial. Such denial of due process must be disclosed so that, at least with a little luck, similar tragedies will not occur.
2. If this court were to deem the amendment to §13 to have only prospective
effect, but opens the records of a case to the Bar Counsel, then it must
also open the court records to Linnehan, his counsel, and the public.Where in George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. at 278, the Supreme Judicial Court refused to impound private information in a divorce case in which the husband at the time held two public positions, this court must refuse to impound the information in this out-of-wedlock paternity and custody action. Cf. Roberts v. Noon, 23 Mass.App.Ct. 596 (1987) (child was entitled to assert right to support after age of 18 in same manner as children of divorced parents under like circumstances).
It follows that if Assistant Bar Counsel wants the so-called impounded records to be released from impoundment or segregation so that she may gather material to buttress the Office of Bar Counsel’s argument that Johnson published materials that were impounded, then in order to preserve Linnehan’s and his counsel’s rights to equal protection, the released records would have to be declared released and open to Linnehan and his counsel and the general public nunc pro tunc to the time Johnson first published any Linnehan matter.
In fact, equal rights and equal protection demand the records be open for all, for there is a "great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing." H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280.Given this rationale, clearly the Legislature deemed the unamended section §13 violative of due process rights under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights, and that on a balancing of opposing considerations, the unamended statute was unreasonable and as such unconstitutional. Cf. In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. 272, 282 (2001).
Given the relative weakness of the argument asserted by the Bar Counsel, the sufficiency of the public interest that motivated the Legislature to enact the 1998 amendment, and the narrow range of claimants who have been or will be affected by the statute as amended, this court must conclude that the retrospective application of G.L. c. 209C, §13 is reasonable and does not violate anyone’s constitutional guarantees of due process. See In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. at 287.
Lastly, Bar Counsel would suffer no prejudice by this court releasing all the records to Linnehan, his counsel, and to the public. At the moment, Bar Counsel is seeking to perform an injustice secretly and to deny Linnehan, his counsel, and the public the scrutiny warranted and considered desirable by the cases and constitutions in this Commonwealth and of our nation.
3. Where Bar Counsel brought an arbitrary, capricious, and frivolous motion,
Linnehan is entitled to an award of attorney’s fees and sanctions against
the Office of Bar Counsel.Linnehan is further entitled to an award of attorney’s fees and sanctions against the Bar Counsel for what was a frivolous motion brought arbitrarily, capriciously, and in bad faith for political reasons. As was made clear during the hearing at this court, Assistant Bar Counsel Weisberg had not even read the statute or case law to learn that the amended section provided for a presumptive right of access by the public and discretionary impoundment only on a very narrow, limited basis upon a showing of specificity of what was to be impounded.
In a nutshell, the Assistant Bar Counsel needlessly brought the Bar Counsel’s motion to inspect what they already had a right to inspect without bringing the motion. Apparently, as she argued, Weisberg took the telephonic word of an anonymous clerk that the file was unavailable because of alleged impoundment. Her reliance on the clerk was an "`abdication of continuing responsibility’" to use due diligence before filing her pleading. Brown v. Quinn, 406 Mass. 641, 644 (1990, quoting from Hackney v. Butler, 339 Mass. 605, 609 (1959), and cases gathered. Jones v. Mann, 33 Mass.App.Ct. 485, 492 (1992) ("[R]eliance on a clerk's incorrect legal advice is not a form of neglect considered excusable"). Krupp v.Gulf Oil Corp., 29 Mass.App.Ct. 116, 119 (1990) ("We know of no authority for treating as excusable neglect reliance on a clerk's incorrect advice concerning a general principle of law"), and cases gathered. Arequipeno v. Hall, 2000 Mass.App.Div. 97, 2000 WL 420622 *3 n. 4 ( 2000) (erroneous information given to defendants by trial court clerk does not afford a basis for avoiding dismissal of notice of appeal).
Thus the Office of Bar Counsel clearly has made a rush to premature judgment and has acted with malice in their enthusiasm to harm Johnson professionally in retaliation for her public position in favor of court reform, the abolishment of judicial and quasijudicial immunity, the enforcement of Article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts.
PROPOSED RULINGS OF LAW
- It is a matter of first impression as to whether the Rules 10 and 11 of the Uniform Rules of Impoundment Procedure, Trial Court Rule VIII, can be applied to a case that is no longer open. If applicable to a closed case, the Rules are in conflict with §20 of G.L. c. 209C.
- Where this court (LaStaiti, J.) would not hear a motion for modification \15/ in or around April 2000 because the case was "closed," this court must deny Bar Counsel’s motion for the same reason.
15Linnehan’s counsel filed both a Complaint for Modification (accompanied by a motion seeking the Court to serve the Complaint on Robyn Gerry-Sylvia inasmuch as her address was impounded) and a motion for modification.
- An order pursuant to Rule 8 of the Rules of the Trial Court must specify the material to be impounded and duration of the impoundment. Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dept., 403 Mass. 628, 632 (1988).
- The Bar Counsel has the burden of showing good cause if he wants to deny the public access to the files of the 209C action.
- Where the Bar Counsel seeks to have a fishing expedition for discovery purposes, as evidenced by his failure to identify even one item for which it is looking, such vagueness cannot constitute the requisite "good cause" to trigger the exception. Section 13 of G.L. c. 209C, as amended in 1998, had prospective effect. See Figure 1.
- Where the 1998 amendment to §13 of G.L. c. 209C is administrative. the amendment has retroactive as well as prospective effect, and Linnehan and the public are entitled to access to the entire file of his chapter 209C action. See Figure 1.
- Given that the post-1998 pleadings must rely on the earlier proceedings; e.g., to modify custody, one must show a substantial change in the basis for the previous custody order, making it necessary to discuss the old as well as the new.
- Where Bar Counsel brought an arbitrary, capricious, and frivolous motion, Linnehan is entitled to an award of attorney’s fees and sanctions against the Office of Bar Counsel.
Pre-3/31/98 pleadings Post-3/31/98 pleadings o y
o x o y o
x x
o y o oPresumptive Impoundment
Good cause required to open filesPresumptive Right of Access
Good cause required to close files/\ 31 March 1998 Amendment of §13Key: o = Comment on fact from pre-3/31/98 pleading
x = quoted phrase from pre-3/31/98 pleading
y = quoted sentence from pre-3/31/98 pleadingNote: The number of o’s, x’s, and y’s in the figure is not intended to represent the number of o’s x’s, and y’s in the post-3/31/98 pleadings, i.e., the Amended Complaint.
Figure 1
WHEREFORE, Linnehan and his counsel pray:(1) that the Bar Counsel’s motion, filed by Assistant Bar Counsel Susan Strauss Weisberg, motion be denied(a) UNLESS all the records are declared open and/or released to Linnehan, his counsel, and to the public, so that they will be deemed to have been lawfully opened and will continue to be deemed to be lawfully open to scrutiny by the public or(b) UNLESS this court deems the amendment to §13 as having retroactive as well as prospective effect and
(2) that Linnehan be awarded attorney’s fees of $25,000 and sanctions against the Office of Bar Counsel in an amount to be deemed appropriate for the Office acting in bad faith and with malice.
BARBARA C. JOHNSON, ESQ., PRO SE
PLAINTIFF JAMES LINNEHAN,
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833CERTIFICATE OF SERVICE