#94, Drano Series
A Special Petition about a Restraining Order in Another State:
When a Section of a Restraining Order Statute Has Not Been Interpreted by the High CourtCOMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK, SS. SJC DOCKET NO. SJ-2003-xxxx
Boston Municipal Court
No. 0201-CR-00xxxx--------------------------------------------------------------
John Quill,
Petitioner
v.Commonwealth of Massachusetts,
Respondent
--------------------------------------------------------------COMPLAINT IN THE NATURE OF A PETITION FOR A WRIT OF CERTIORARI
AND TO INVOKE THE GENERAL SUPERINTENDENCE OF THE COURT
(Affidavit of counsel at Addendum A-1)PRELIMINARY STATEMENT
This is an action to invoke the general superintendence of this Court to correct errors of law and abuses of discretion in the proceedings of the case entitled Com. v. John Quill, Docket No. 0201-CR-00xxxx in the Boston Municipal Court, Justice Sally A. Kelly, presiding.
It arose after an estranged wife, Cobaka Quill ["Cobaka"], domiciled in Maine, was granted a Maine restraining order against her husband, John Quill. ["Quill"]. He had been given exclusive use and possession of the couple’s Boston condominium and had been ordered by the family court to make it available for an inspection by Cobaka’s appraiser. Without notice to her husband, Cobaka showed up at the condominium for the inspection and caused her attorney to place a 911 cell-phone call and say that her husband would not leave the property. Quill, on the other hand, complied with the family court order and made the condominium available to the appraisers. To do otherwise would have put him in contempt of that Massachusetts order.
He had been facing a Hobson’s choice – to obey the Massachusetts order or despite the lack of notice from his wife about her intended presence and her surprise appearance, to disobey the Massachusetts order and obey, instead, the Maine order flashed in front of him that day\1/ by Cobaka’s attorney.
1 On that day, May 13th, Quill not only did not know that the Maine order had not been filed in any Massachusetts court, he also did not know that it had to be filed in order to be effective here in the Commonwealth.. So it was not an issue he considered.Quill chose to obey the Massachusetts order, for he did know that his presence at his home was required by the court, and thus no crime and no detrimental effect occurred in Massachusetts. "‘[A]n incidental contact’ occurring in the course of a permitted activity was not a violation of the c. 209A order." Com. v. Raymond, 54 Mass.App.Ct. 488, 493 (2002), citing Com. v.Leger, 52 Mass.App.Ct. 232, 237 (2001).The Charge: A Case of First Impression
Specifically, Quill is charged with the offense of violating here in Massachusetts a restraining order issued in Maine. The statutory basis for charging him in Massachusetts is found in the first paragraph of G.L. c. 209A, §5A.\2/Section 5A has not yet been interpreted by this Court, making this a case of first impression.\3/
2 Paragraph 1 of §5A of G.L. c. 209A reads:Quill contends that the Commonwealth may not give, in accordance with the first paragraph, full faith and credit to the Maine order because that order was never filed in any court in Massachusetts with or without the affidavit required of Cobaka by the second paragraph of G.L. c. 209A, §5A.\4/ Clearly, the first paragraph is not mutually exclusive of the second one. There would be no purpose of including the second paragraph, if the first were not dependent upon it. Thus, the first paragraph is triggered only if the procedure in the second paragraph has been followed. Here, where the second paragraph was not followed, the first paragraph may not and cannot apply.Any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction3 Section 5A also does not appear on the Criminal Complaint against Quill -- only §7 and §3B do – but §5A was argued by the assistant district attorney at the hearing on Quill’s motion to dismiss and relied upon by the court.4 The relevant portion of 2 of §5A of G.L. c. 209A reads:A person entitled to protection under a protection order issued by another jurisdiction may file such order in the superior court department or the Boston municipal court department or any division of the probate and family or district court departments by filing with the court a certified copy of such order. . . . Such person shall swear under oath in an affidavit, to the best of such person's knowledge, that such order is presently in effect as written. Upon request by a law enforcement agency, the register or clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction.
ISSUES1. Quill has a substantial claim of a violation of his substantive rights and irremediable error.
a. Impossibility of fair trial.
2. Cobaka’s obligation under the court order not relieved by the word "may." A finding that her failure to notify Quill of her intended attendance is sufficient to constitute contempt is appropriate.3.. Where the alleged incidental violation of a Maine restraining order occurred not only during a permitted activity but during a court-ordered activity in Massachusetts, no crime occurred in the Commonwealth.
4.. Where the Maine abuse prevention order has never been filed in a Massachusetts court, the full faith and credit clause was not triggered, making the Maine order and any alleged violation thereof unenforceable in the Commonwealth.
5.. here there was no detrimental effect on 13 May 2002 by Quill being in his own home, of which he had been given exclusive use and possession by the Probate & Family Court, and where he was on that date in obedient compliance with the court order dated 2 May 2002, there was no crime with which the defendant could lawfully have been charged in Massachusetts.
6.. Where there was no crime or detrimental effect in Massachusetts, the Commonwealth does not have territorial jurisdiction, making dismissal of the charge appropriate.
JURISDICTION
1. Jurisdiction is conferred upon this Court by M.G.L. c. 211, §3, which provides a party the right to seek review under the court's superintendency powers of interlocutory matters where the "party lacks an effective remedy," that is, "if the available methods of review would be unable to place him in ‘statu quo.’" Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128. 132 (1982). This right, as it applied to charges brought pursuant to G.L. c. 209A, had, earlier, been limited by the more rigorous standard introduced not by statute but by the Court in Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980): "defendant must demonstrate both a substantial claim of violation of his substantive rights and irremediable error, such that he cannot be placed in statu quo in the regular course of appeal."
PARTIES
2. Your Petitioner is the defendant both in the case entitled Commonwealth v. John Quill, Docket No. 0201-CR-00xxxx, in the Boston Municipal Court and in an action entitled Cobaka Quill v. John Quill, Docket No. 99D-yyyy-DV1, in the Suffolk County Division of the Probate & Family Court at Boston for the dissolution of marriage.
3. Respondent is the Commonwealth of Massachusetts.
FACTS
4. Cobaka Quill ["Cobaka"], Quill’s estranged wife, sued for divorce on 13 December 1999, moved to and took up residence in Cumberland Center in the State of Maine in August 2000.
5. On 26 April 2001, a judge sitting in the Suffolk Division of the Probate & Family Court gave Quill exclusive use and possession of the condominium, owned jointly by the couple, at 58 Temple Street in Boston.
6. On 1 May 2001, Quill took occupancy and possession of the Temple Street condominium.
7. During April 2002, Cobaka obtained a no-contact restraining order against Quill out of a state district court in Portland, Maine.
8. On Monday, 29 April 2002, during a hearing on Cobaka’s motion for the appraisal inspection, Quill’s counsel warned the Probate & Family Court Judge Hedge about the problems that could occur because of the Maine order should Cobaka appear. There was no abuse-prevention order in Massachusetts, i.e., there was no order pursuant to G.L. c. 209A.
9. On 2 May 2002, sitting in the Suffolk Division of the Probate & Family Court, Judge Hedge (a) ordered Quill to make available the condominium for inspection by a real estate appraiser on 13 May 2002 and (b) gave Cobaka a choice to attend the appraisal if she so chose. [Exh. B, page 2 of the Probate & Family Court order of 2 May 2002.]
10. The order 2 May 2002 was silent as to what was to be done by Quill if Cobaka chose to attend.
11. The order 2 May 2002 was also silent as to the Maine so-called protection order. Judge Hedge did not have the Maine order "before" her, given that the order was not then – nor has it since been – filed with any court in Massachusetts.
12. Cobaka and/or her counsel, John DeLiar, never gave Quill or his counsel any notice that she intended to exercise her choice of attending the appraisal at Temple Street on 13 May 2002.
13. On 13 May 2002, Cobaka appeared at the inspection without notice to Quill that she would appear.
14. On 13 May 2002, Quill was at the condominium in order to make it available, as he was ordered by the court, to two appraisers for inspection.
15. On 13 May 2002, one of Cobaka’s attorneys, John DeLiar ["DeLiar"], appeared at the condominium, was joined by Cobaka, and upon seeing Quill there at the doorway, DeLiar , with Cobaka at his side, cell-phoned the Boston Police Department ["BPD"] and stated that Quill would not leave the condominium, ignoring the fact that Quill had been ordered to make the condominium available for inspection by the appraiser. [Exh. C, transcript of 911 call to BPD on 13 May 2002.]
16. On 13 May 2002, when DeLiar had finished the 911 call, the appraisers asked and got DeLiar’s approval to enter the condominium for the inspection, whereupon Quill welcomed the appraisers into the condominium.
17. When the appraisal inspection was complete, the appraiser and his assistant left the condominium, whereupon Quill locked the condominium and he, too, left the property.
18. According to the police report, the police from Boston Area A-1 arrived shortly thereafter.
19. According to the appraiser, RAG, when he testified on 20 September 2002 as an expert appraiser in the couple’s divorce action, Cobaka and DeLiar did not appear to want to enter the condominium. [Exh. D, transcript of Vol. 25: 5420-5421, RAG’s trial testimony on 20 September 2002.]
20. Quill was arraigned on 30 September 2002, on the charge of violating a Maine restraining order by being at his condominium in Boston, Massachusetts, on 13 May 2002, although the charge itself read "209A:007 Violating a …. §3B." No mention on the charge was made of §5A of chapter 209A. . [Exh. E, Criminal Complaint.]
21. On 7 February 2003, Judge Sally A. Kelly denied Quill’s motion to dismiss on the grounds cited in this petition.
22. This event was the second time Cobaka had caused charges to be brought in Massachusetts against her husband, Quill. Out of the first event on 5 January 2001, four charges were brought. All were dismissed on 30 April 2001.
23. In Maine, she has done similarly. In August 2000, she wrote Quill [Exh. F, Cobaka’s handwritten note to Quill , marked as Trial Exhibit 75 on 5 September 2002] andasked him to join her in Maine for a Kindergarten Orientation meeting at the children’s school. Later she had her then-attorney write that he sat too close to her in the auditorium.
24. In October of 2000, Cobaka left with both his aunt and a mutual friend a message for Quill to go to Maine, pick the kids up at school, and plan on spending the weekend with them in Maine.
25. After he got to Maine to pick up the children up at school, he learned that she had alerted the school to call her when he arrived. Upon learning that he was at the school, Cobaka then proceeded to call the police and report he was stalking her. [Exh. G, Cumberland Police Department incident report.]
26. Charges were never brought forward in Maine.
27. Quill contends that Cobaka has been using the abuse-prevention laws in both Maine and Massachusetts as a weapon, a tool, to achieve a collateral advantage in their divorce action, in which they both seek custody of the children.\5/
5 In December 2000, Cobaka, who very often did not comply with order regarding where and when the children should be picked up and delivered, told a policeman that if Quill did not deliver the children in Maine, he’d be in contempt. This was untrue. The children were to be delivered at the Merrimack, MA, police station, not in Maine. The police officer then testified and impeached her.
GROUNDS IN QUILL’S MOTION TO DISMISS [ADDENDUM, PAGES 20-23]Quill set forth the following grounds in his written motion to dismiss and his argument:
In support of Quill’s position that only immediate reversal of the denial of his motion to dismiss is appropriate, he states the material facts in the FACTS section below.
- that where the alleged violation of a Maine restraining order occurred not only during a permitted activity but during a court-ordered activity in Massachusetts, no crime occurred in Massachusetts,
- that where the estranged wife went (a) voluntarily, (b) without notice to Quill, (c) to the defendant husband’s residence in Boston, (d) a location which he was court-ordered to make available for inspection by the wife’s alleged real estate appraiser, there can have been no crime in Massachusetts,
- that where the estranged wife was a resident and domiciliary of Maine, there was no detrimental effect in Massachusetts,
- that where there was no crime or detrimental effect in Massachusetts, the Commonwealth does not have territorial jurisdiction,
- that (a) where the Maine restraining order was never filed in any court in this Commonwealth in accordance with either ¶2 of §5A of G.L. c. 209A or any other statute, the courts may not give it full faith and credit (art. 4, U.S. Const.), and (b) without full faith and credit, Massachusetts lacks jurisdiction and ¶1 of §5A of G.L. c. 209A does not apply.
STANDARD OF REVIEW
Review by the Supreme Judicial Review is available when there is a substantial claim of a violation of substantive rights and irremediable error [Sizemore v. Commonwealth, 434 Mass. 1002, 1002 (2001)]; it should be exercised when there are exceptional circumstances, when necessary to protect substantive rights [Plymouth and Brockton Street Ry. Co, v. Leyland, 422 Mass. 526, 530 (1996); Commonwealth v. Yelle, 390 Mass. 678, 686 (1984)]; and there would be no relief were the petitioner required to follow the route of normal appellate review after trial. Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128. 132 (1982).
ARGUMENTS
1. Quill has a substantial claim of a violation of his substantive rights and irremediable error.
In denying Quill’s motion to dismiss, the BMC Justice Sally Kelly found Quill’s argument unpersuasive. She did not memorialize her decision in writing.\6/[Exh. A, docket sheet, BMC action.] And given her summary denial of Quill’s motion, it can be reasonably anticipated that at trial Judge Kelly (a) will take judicial notice of the Maine order, (b) will allow it to be marked as an exhibit and be sent to the jury room, (c) will inform the jury that they can consider the Maine order to be as valid as a Massachusetts order would be, and lastly, (d) will instruct the jury that it was not necessary for Cobaka to give notice to Quill that she would arrive at the property for the inspection.
6 There was also no written opposition from the Commonwealth.Given also that Cobaka’s failure to give Quill notice is undisputed, the judge could and would have allowed Quill’s motion to dismiss had she concluded that notice were necessary. That the motion judge failed to require Cobaka to give Quill notice is another violation of a constitutional right, under both Federal and State constitutions, to wit, his right to substantive due process.\7/ (See discussion in Issue 2.)7 The notice, "taken in conjunction with the hearing, [was not] sufficient toFor the above reasons, this Court must conclude that the BMC justice made an irremediable error, that the circumstances of the criminal action are exceptional, and that the available methods of review would be unable to protect Quill’s substantive rights and place him in statu quo.
accomplish substantial justice" [because] it "misled a licensee as to the possible
grounds for revocation which he should be prepared to meet at the public
hearing." Foster from Gloucester, Inc. v. City Council of Gloucester, supra at
289-290, citing Higgins v. License Commrs. of Quincy, 308 Mass. 142, 145-146
(1941), and Becker Transp. Co. v. Department of Pub. Util, 314 Mass. 522,
526-527 (1943).Highland Tap of Boston, Inc. v. Commissioner of Consumer Affairs and Licensing of Boston, 33 Mass.App.Ct. 559, 571-572 (1992). Like the notice in Highland Tap, which was insufficient because it misled Highland Tap to assume that the hearing would be about premise mismanagement when in actuality the hearing was about two other issues, the family-court order was silent as to what Quill should do if Cobaka appeared at the inspection.
While the family-court order in the Quill divorce case said, “the husband shall make available the condo … and the wife maybe present,” the order was silent as to what he should do if she did show up. It certainly did not order him to abort the appraisal inspection. Neither did it order him -- or put him on notice -- to have a third party there. Given that he never received notice from his wife of her intended participation, the need to consider getting a third party did not arise. And of course, for the family court to saddle him with more debt to pay a substitute party after saddling him with over $135,000 of unnecessary debt for court-appointed individuals would have been not only unconscionable but also uncontemplated. Quill believes that the court was silent about this issue because the court never anticipated Cobaka accusing him of violating the Maine order while simply making the condo available for inspection. Given the number of people who would be present, any fear by Cobaka would be conjured up and be an unreasonable fear. See Issue 5 below for discussion of the basis for concluding Cobaka had no fear.
If the court wrongly instructs the jury, which Quill contends is reasonably anticipated, it is clear by reason of Judge Kelly’s interpretation of the law that Quill will be convicted . . . unless the jury nullifies the law that they will have received in the anticipated instructions. Compare this situation with that in Commonwealth v. Hare, infra, as described in Morrissette, infra.
"(T)here is undeniable weight to the argument that, where it is clear by reason of established facts and established law that the defendant cannot be convicted, the Commonwealth and the defendant should not be put to the trouble and expense of a trial." Commonwealth v. Hare, 361 Mass. 263, 269 (1972). However, assuming that such a concern may in some circumstances rise to the level of a substantive right, as urged by the defendant, it does not do so in a case like the instant one where it is not "clear by reason of established facts" that the defendant cannot be convicted. ([FN2]) Morrissette v. Com., 380 Mass. 197, 198-199 (1980). In contrast, here the facts are in favor of acquittal, as is, he contends, the law, but the interpretation of the law that Judge Kelly intends inescapably to apply would force conviction in disregard of the facts.So it makes eminent common sense for this Court to review the interlocutory ruling and interpret §5A of chapter 209A. Were this court not to reverse Judge Kelly’s order, Quill, in order to receive a fair trial, would need to know the high Court’s interpretation of that statute.
Given that there are in this case only issues of law to be decided, which will be given as instructions to the jury, there would be for the jury to decide no material fact – other than whether both the husband and wife were at the condominium at the same time on May 13th. The Commonwealth will have no evidence that on May 13th Quill performed an assaultive act or that Cobaka was in fear of imminent, serious physical harm.
a. Impossibility of fair trial.
If the judge had believed the Maine order was not effective here, she would have allowed Quill’s motion to dismiss. Therefore, it is reasonable to conclude that the judge will instruct the jury that the Maine order was effective here.If the judge had intended to follow Com. v. Fortier, 56 Mass.App.Ct. 116, 117 (2002), or Commonwealth v. Gordon, 407 Mass. 340 (1990), for the proposition that a 209A defendant (1) had to have the specific intent to cause physical harm to the victim and (2) had to undertake an overt act towards the commission of the physical harm, and that the "overt act was some undertaking that could reasonably be expected to cause the physical harm" [Fortier, at 117], she would have allowed Quill’s motion to dismiss.\8/ Therefore, it is reasonable to conclude that the judge will not instruct the jury that they have to find that Quill undertook some overt act as defined above.
8 At the motion hearing, the assistant district attorney argued that Cobaka was harassed by Quill when she saw him with a videocamera. That was essentially the only other so-called basis he gave to support denying the motion to dismiss. So it would be no surprise were the judge to ignore the caution offered in Dollan v. Dollan, infra.Then, given that there is in the statute itself no mens rea requirement for conviction, even were defense counsel to use a chalk of the statute, conviction would be assured."Abuse" is defined to include any of the following occurrences between family members: "(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G.L. c. 209A, §1. Here, the judge appears to have based the issuance of the order on part (b) of the definition. In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm."Dollan v. Dollan, 55 Mass.App.Ct. 905, 905-906 (2002), quoting Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). Carroll v. Kartell, 56 Mass.App.Co. 83 (2002) (same quote from Wooldridge); Jones v.. Gallagher, 54 Mass.App.Ct. 883, 888-889 (2002) (same).In short, once the jury concluded that Cobaka and Quill were within 50 yards of each other, it would be all over: the jury would never have to decide the ultimate question – of whether there was a violation of c. 209A. It would have been dictated to them by the BMC judge’s instruction that the Maine order was effective here in Massachusetts.
Thus the denial of Quill’s motion to dismiss was tantamount to a premature dispositive decision on a criminal case, depriving him of his substantive right to a fair trial, his right to substantive due process. His substantive rights would be further impaired by being needlessly subjected to a trial, by being put in jeopardy for a non-crime [compare Plymouth and Brockton Street Ry. Co, v. Leyland, 422 Mass. 526, 530 (1996)], and by suffering increased liability by the "impos[ition of] costs and witness, expert, and attorney’s fees." Fontaine v. Ebtec Corp., 415 Mass. 309, 319-320 (1993) (distinguishing "between legislation that concerns ‘substantive rights’ and legislation that concerns ‘procedures’ and ‘remedies’"), citing Austin v. Boston University Hospital, 372 Mass. 654, 657 (1977) ("recognizing substantive aspect of legislation that imposes costs, and witness, expert, and attorney's fees on an unsuccessful litigant"). See also Greelish v. Drew, 35 Mass.App.Ct. 541, 544-545 (1993), following Austin.
2. Cobaka’s obligation under the court order was not relieved by the word "may." A finding that her failure to notify Quill of her intended attendance is sufficient to constitute contempt is appropriate.
The court order cried out implicitly for notice by Cobaka to Quill, and the lack of that notice has deprived Quill of receiving equal protection by the police, the DA’s office, and the BMC judge,\9/ and ultimately of substantive due process. "[A]mbiguity carries with it the potential for becoming ‘an instrument of [judicial] severity.’" Stabile v. Stabile, 55 Mass.App.Ct. 724, 726 (2002) (replacing word "shall" with phrase "will use his best efforts to" maintain a college fund did not create an ambiguity or relieve ex-husband of obligation to create and maintain the fund) (internal citations omitted). As in Stabile, the ambiguity caused by the word "may" to describe Cobaka’s duties under the order did not relieve her of the obligation to give Quill notice of her intended appearance. "[W]e ‘assume a construction of ‘best efforts’ in the natural sense of the words as requiring that the party put its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom.’" Id., at 727.
. . . ("best efforts" is the equivalent of acting in good faith, although it does not mean every conceivable effort). The term "best efforts" thus helps to delineate, rather than to obscure, Gerald's responsibilities under the order. Stabile, 55 Mass.App.Ct. at 727-728, citing Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225-226, 228 (1st Cir.1987), cert. denied, 485 U.S. 935 (1988).9 Each of these entities presumed him guilty rather than innocent of a violation.
This language, Quill contends, is persuasive of the notion not only that Cobaka should have known that she had to notify Quill that she had chosen to attend the inspection, but also that she should have acted in good faith, particularly where she had in mind that she would charge him with violating the Maine order if he were at the Boston property when she got there.Her conduct was slick. "Judges do not like slick." Com. v. McMiller, 29 Mass.App.Ct. 392, 410 (1990) (Brown, J., concurring); Britt v. Rosenberg, 40 Mass.App.Ct. 552, 554 (1996) (Brown, J.) (same). "Judges do not like slick conduct, and certainly abhor unethical conduct." Com. v. Mayne, 38 Mass.App.Ct. 282, 290 (1995) (Brown, J., dissenting).
Like Gerald Stabile, "if [Cobaka] was uncertain about her obligations under the [order], the proper remedy would have been to bring an action requesting clarification." Stabile, 55 Mass.App.Ct. at 727 n. 3, citing Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 451 (1997), citing Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 91 (1977).
Under Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 567 (1997), Cobaka’s failure to notify him could constitute contempt of the Massachusetts order regarding the appraisal inspection. For example,
We have upheld findings of contempt where the court order, although subject to some legal interpretation, has nonetheless placed the party bound by the order on notice that certain actions could constitute the basis for contempt. See Allen v. School Comm. of Boston, 400 Mass. 193, 194 (1987) (contempt proper where defendant had no reasonable basis for doubting meaning of judge's order); Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. 79, 89 (1977) (contempt appropriate where plain meaning of terms put defendants on notice that certain acts would be basis for contempt citations); Coyne Indus. Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 275-276 (1971) (dispute over meaning of terms in restraining order insufficient to render order ambiguous); Nickerson v. Dowd, 342 Mass. 462, 464-465 (1961) ("lawful" operation of business, while confusing term, nonetheless sufficient basis for contempt proceedings). Here, the order was not ambiguous as to the proscribed activity and served to put DSM on notice that payments to other defendants or family members could subject it to citations for contempt. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 567 (1997). In light of the Maine and Massachusetts conflicting orders, Cobaka had to have known she had to notify Quill of her intent to appear. After all, immediately upon the arrival of her attorney at the condominium, where Quill was waiting, she handed him the Maine order and instructed her attorney to call the Boston Police Department for the alleged violation of the Maine order. From that act alone, this court can conclude that she purposely did not want to notify him so that she could entrap him into violating the Maine order. And so far, she has been successful. This is slick. This conduct is sufficient to find Cobaka in contempt of the Massachusetts order.
3. Where the alleged incidental violation of a Maine restraining order occurred not only during a permitted activity but during a court-ordered activity in Massachusetts, no crime occurred in the Commonwealth.
"`[A]n incidental contact’ occurring in the course of a permitted activity was not a violation of the c. 209A order." Com. v. Raymond, 54 Mass.App.Ct. 488, 493 (2002), citing Com. v.Leger, 52 Mass.App.Ct. 232, 237 (2001) (incidental contact with wife when making permitted call to their daughter was not a violation of the c. 209A restraining order).
The Commonwealth argued that notice was unnecessary and that Quill should have had someone else make the condominium available for inspection – and Judge Kelly agreed – but it was not unreasonable of Quill to assume that he would have received notice from Cobaka’s counsel that she had chosen to be at the appraisal. Had Cobaka been at each and every proceeding of the divorce action, it might have been reasonable to assume that she would appear. But Cobaka has often not appeared at a proceeding; she did not even bother to appear for several days of the ongoing divorce trial. She has not appeared when she has had a cold or alleged symptoms thereof. She has not appeared when she has had a conflict in her schedule (she is a practicing litigator in Portland, Maine). Consequently, it was quite reasonable for Quill to assume that Cobaka was not going to appear inasmuch as he had had no notice that she planned on appearing. Notice must be sufficient to accomplish substantial justice. . Higgins v. License Comm'rs of Quincy, 308 Mass. 142, 146 (1941). Substantial justice has not been done in the instant case.
Given also that the costs of the divorce action have been horrendously expensive: conservatively estimated at a total of $135,000,\10/ excluding attorney’s fees for his prior and present counsel, far more disposable money than he has or hopes to have in the near future, and the money that he does have has been frozen by the divorce court, it made common sense not to hire a third party to make the condominium available for the scheduled inspection for the appraisal of the condominium.
10 Comprising the $135,000 (approximated) is over $15,000 for a guardian ad litem, over $10,000 for a “special” guardian ad litem, over $70,000 for a court-appointed so-called “Discovery Master,” over $40,000 for deposition and trial transcript costs and still rising. Not included is over $40,000 for prior counsel and the fees for current counsel.
So notice was quite significant to Quill. It was, at the very least, that part of substantive due process he needed most on May 13th of 2002.
4. Where the Maine abuse prevention order has never been filed in a Massachusetts court, the full faith and credit clause was not triggered, making the Maine order and any alleged violation thereof unenforceable in the Commonwealth.
Clearly there was no criminal intent, no mens rea, by Quill when he remained at his own condominium in order (a) to comply with a Probate & Family Court order and (b) to make the condominium available for an inspection by an appraiser. Given that an abuse-prevention order is based not on an act by a potential defendant but on the alleged fear of the accuser, an abuse-prevention order is characterized as a civil action. "A chapter 209A proceeding is a civil rather than a criminal proceeding." Dollan v. Dollan, 55 Mass.App.Ct. 905, 905 (2002), citing Frizado v. Frizado, 420 Mass. 592, 596 n. 3 (1995).
Where there was no overt or covert act by the defendant, Quill, who did not expect his wife to appear at his residence, the metamorphosis of the character of the action into a criminal or penal action by operation of law did not occur. So, at most, the action in the BMC was one to afford a private remedy for an alleged wrongful act.
The Supreme Court stated that, "whether a statute of one State, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to punish an offence against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act." Huntington v. Attrill, 146 U.S. 657, 673-674 (1892). The Supreme Court's decision concerned the full faith and credit clause of art. 4 of the United States Constitution. Id. at 666, 13 S.Ct. at 227. Desjardins Ducharme v. Hunnewell, 411 Mass. 711, 714 (1992). Under Desjardins, with the circumstances of the instant case, the Maine order cannot be characterized as a penal law, for (a) Maine public policy does not cry out to interfere with the court orders of a sister State, in this case, Massachusetts, (b) Quill also did not commit "an offense against the public justice of the State, and (c) Cobaka suffered no injury caused by Quill either in Maine or in Massachusetts. Therefore the metamorphosis from a civil action into a criminal action could not occur. Under the concept espoused in Desjardin, the full faith and credit clause of art. 4 of the United States Constitution was not triggered.Further, where the activity in which Quill was involved was a court-ordered activity, and Cobaka could not reasonably be in fear of Quill nor be in fear of imminent serious physical harm by Quill, it is reasonable to conclude there was no crime in either Maine or Massachusetts. This court, therefore, does not have to reach the question of the extent of Massachusetts's extraterritorial criminal jurisdiction. Of course, "[t]he general rule, accepted as ‘axiomatic’ by the courts in this country, is that a State may not prosecute an individual for a crime committed outside its boundaries." In re Vasquez, 428 Mass. 842, 847-848 (1999), citing Nielsen v. Oregon, 212 U.S. 315, 321 (1892); Com. v. Booth, 266 Mass. 80, 84 (1929) (rule against extraterritorial application of criminal laws ‘is a general principle’), and other cases gathered. SeeBassett v. Blanchard, 406 Mass. 88, 90-91 (1989). Restatement (Second) of Judgments.
To interpret §5A of c. 209A as having a meaning contrary to the well-settled law acknowledged in In re Vasquez and in Nielsen would be an unacceptable anomaly.
Moreover, here, the order was a Maine order not filed in Massachusetts, Quill was not charged with any crime at any time in Maine and Quill did not travel to Maine on 13 May 2002. Therefore, where no crime occurred either in Maine or in Massachusetts on 13 May 2002, Massachusetts cannot bring criminal charges.
Further, where Cobaka did not comply with ¶2 of §5A of chapter 209A, the full faith and credit clause was not triggered, making the Maine order and any alleged violation thereof unenforceable in the Commonwealth and any crime arising out of the Maine order being uncognizable here.
5. Where there was no detrimental effect on 13 May 2002 by Quill being in his own home, of which he had been given exclusive use and possession by the Probate & Family Court, and where he was on that date in obedient compliance with the court order dated 2 May 2002, there was no crime with which the defendant could lawfully have been charged in Massachusetts.
Where it is not alleged that Quill did anything except be at the condominium at the court-ordered time, where it is not alleged that Quill said anything to Cobaka at that time, and where it is not alleged that Cobaka’s had any apprehension or fear of Quill, any subjective and unspecified fear that Cobaka might have had of Quill is insufficient to meet the definition of "abuse" under G.L. c. 209A, §1(b), and thus there could be no detrimental effect in Boston, Massachusetts, on 13 May 2002. "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Carroll v. Kartell, 56 Mass.App.Ct. 83, 86 (2002), quoting Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 639 (1998) and citing Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020 (1997). See also other cases cited in margin at n. 8 on page 9.
With no crime or detrimental effect in Massachusetts, the Commonwealth does not have territorial jurisdiction. Where the alleged violation occurred while he was complying literally with a Massachusetts Probate & Family Court order, Quill could not form the intent to produce detrimental effects within the Commonwealth. Nor did he produce any intended detrimental effects in the Commonwealth. Thus, Massachusetts is not justified in charging or punishing Quill. SeeIn re Vasquez, 428 Mass. 842, 848-849 (1999), citing Strassheim v. Daily, 221 U.S. 280, 285 (1911).
Further, where Cobaka was with her lawyer in Boston on 13 May 2002, not unlike when she has appeared in court, there was no more detrimental effect to her on 13 May 2002 than there has been on each and every day she has appeared at a proceeding in the dissolution action. The reasonable conclusion is that there was no detrimental effect to Cobaka on May 13th.
Therefore Massachusetts cannot exercise jurisdiction: the Commonwealth simply does not have it. This conclusion is consistent with "the general rule is that crime occurs where the effect is felt, not where the offender is located." In re Vasquez, at 848 n. 4 and 849 n. 5, and cases gathered. "[S]tand[ing] as an explicit recognition in the law of this Commonwealth of the effects doctrine" is G.L. c. 276, sec. 13. In re Vasquez, at 850 n. 6.
Also significant is that, here, the estranged wife arrived unexpectedly – i.e., without notice to Quill or his counsel – on the scene where he had been ordered by the court to be. Clearly Cobaka arrived in Boston with the intention setting Quill up for a bogus claim of a violation. The Boston Police Department should have charged her and her lawyer – who made the 911 call on her behalf on the site -- with false reporting to the police, a criminal infraction of G.L. c. 269, §13A.
Further, even were we to assume arguendo that Quill should have had a third party there just in case Cobaka showed up – which was both the ADA’s assertion and BMC Judge Kelly’s take on the family-court order -- that he did not have a third party there to make the condominium available would have been no more than an innocent mistake of interpreting the court order, which was silent on the subject and which did not require him to get a third party. Only one fact was superclear on the subject of the appraisal: "The husband shall make the Boston property available to Wife’s attorney at 10:00 AM on May 13, 2002, . . . Wife may be present for the inspection of the Boston property. . . ." [Exh. B.]
A long-standing common law principle requires that, ‘" in the absence of specific words saying so,’ it is not supposed ‘that the legislature intended to make accidents and mistakes crimes.’ State v. Brown, 38 Kan. 390, 393 [16 P. 259] (1888)." Commonwealth v. Wallace, 14 Mass.App.Ct. 358, 364 (1982). This is especially so where the offense in issue calls for a severe penalty, in this case a possible penalty of up to two and one-half years of imprisonment. Id., and cases cited. See 1 W. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 3.5(e), at 314 (1986). Com. v. Collier, 427 Mass. 385, 388-389 (1998). A violation of an order – regardless of the State of origin -- pursuant to chapter 209A is such a case which calls for a severe penalty. Litchfield v. Litchfield, 55 Mass.App.Ct. 354, 356-357 (2002) (same), quoting Com. v. Finase, 435 Mass. 310, 315 (2001) (same), quoting Com. v. Collier, 427 Mass. 385, 388 (1998). Com. v. Raymond, 54 Mass.App.Ct. 54 Mass.App.Ct. 488, 493 (2002) (same).There is also no allegation or proof of a crime being or having been committed by Quill outside Massachusetts. Other jurisdictions have held that crimes committed in a foreign state and having no detrimental effect in the prosecuting state did not have territorial jurisdiction: State v. Sung, 999 P.2d 430, 128 N.M. 786 (2000) (in order for state to have criminal jurisdiction to prosecute custodial interference, child must be present in state when acts of custodial interference are committed). Gore v. State, 573 So.2d 87 (1991) (trial court lacked territorial jurisdiction over charged crime of attempted murder of victim's child, as overt acts comprising crime were committed in Georgia). State v. Harvey, 730 S.W.2d 271 (Mo.App. E.D., 1987) (trial court had no jurisdiction over the capital murder charge for a murder which took place in Illinois, notwithstanding the State's argument that when the defendant kidnapped the victim in Missouri, the defendant had the requisite intent and premeditation to commit the capital murder, so as to support the concurrent jurisdiction with the State in which the murder occurred). Frye v. State, 489 A.2d 71, 62 Md.App. 310 (1985) (where third party understood that he was being asked in the District of Columbia to assist in kidnapping victim and transporting her to a place where she would be gang-raped, offense of solicitation was complete in the District, and subsequent meeting between defendant and third party in Maryland was nothing more than first stage of the agreement's execution; therefore, there was no solicitation in Maryland and Maryland courts lacked jurisdiction in solicitation prosecution). People v. Holt, 440 N.E.2d 102, 91 Ill.2d 480, 64 Ill.Dec. 550 (1982) (under Illinois law, Illinois could not try defendant for rape or ordinary murder which were committed entirely in Wisconsin, though following a kidnapping that began in Illinois). People v. Gerchberg, 181 Cal.Rptr. 505, 131 Cal.App.3d 618 (1982) (where father's acts in sending for children were consistent only with intent to recognize mother's custodial rights by returning children to her after agreed visitation period was over, the fact that he later, in New York, changed such intent and did not return children could not subject him to prosecution in State criminal court).
Thus, where Massachusetts does not have territorial jurisdiction, Judge Kelly’s denial of Quill’s motion to dismiss must be reversed and the charges against Quill dismissed. In re Vasquez, supra; Strassheim, supra.
6. Where there was no crime or detrimental effect in Massachusetts, the Commonwealth does not have territorial jurisdiction, making dismissal of the charge appropriate.
Where Quill was at the condominium by order of the family court and had no knowledge that his estranged wife would appear at the planned inspection by the appraiser, he could not have formed the intent to produce or produce detrimental effects within the Commonwealth. Therefore Massachusetts is not justified in charging or punishing him for a non-existent crime. In re Vasquez, 428 Mass. 842, 848-849 (1999) citing Strassheim v. Daily, 221 U.S. 280, 285 (1911).
CONCLUSION
In conclusion, given the irremediable error by the BMC, the exceptional circumstances out of which the criminal action arose, and the need to protect Quill’s substantive rights, the denial of Quill’s motion to dismiss must be reversed. Com. v. Beals, 405 Mass. 550, 556 (1989). And where Massachusetts does not have territorial jurisdiction, the charges against Quill must be dismissed. In re Vasquez, supra; Strassheim, supra.
PRAYERS
WHEREFORE, your Plaintiff requests this Honorable Court to reverse the denial of the motion to dismiss the charge against John Quill, and declare such other relief as this Court deems just and fair.
John Quill,
By his attorney,
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
B.B.O. #549972CERTIFICATE OF SERVICE
I, Barbara C. Johnson, counsel for John Quill, hereby certify that on 3 March 2003 I caused to be served a true and accurate copy and summons of the within pleading on the Office of the District Attorney, One Bullfinch Place, Boston, MA 02114-2997; and the Office of the Attorney General, One Ashburton Place, 20th floor, Boston 02108.
3 March 2003 Barbara C. Johnson
Barbara C. Johnson, Esq.