The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February. One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment. The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.
In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist." Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident. The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.
The Supreme Judicial Court declined to construe the statute liberally. "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed. "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.
The second case described horrific injury inflicted on a juvenile in state custody. A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.) During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'" After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen. After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."
Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA. DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory. Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability. Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.
Associate Justice William J. Meade
Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic. Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort." As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability. Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.
The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia). Justice David A. Lowy wrote for a unanimous court in Drake. Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.
On Tuesday, an intermediate appellate court in the Netherlands upheld a verdict against the government demanding more state action to curb carbon emissions and combat climate change. The court's decision (unofficial English translation) in favor of energy NGO Urgenda came just one day after the dire 12-year warning of the special report of the U.N. Intergovernmental Panel on Climate Change. Meanwhile the Trump Administration filed an emergency motion in federal court in Oregon today in its latest bid to stop climate-change litigation in the United States.
The Netherlands is working mightily already to reduce carbon emissions. The state projects a reduction in the neighborhood of 20% by 2020 over 1990 levels. But that number still falls short of 25%, which the court calculated as the nation's minimum treaty commitment. That difference, The Guardian reported, could be enough to force the shutdown of a recently opened coal-fired power plant. The court's decision chiefly references the 1992 U.N. Framework Convention on Climate Change and traces the development of states' legal obligations through the history of climate conferences from Kyoto in 1997 to Bonn in 2017.
As the state observed in the case, "Dutch emissions are minor in absolute terms and ... the Netherlands cannot solve the global problem of climate change on its own" (¶ 30). So the global significance of the decision is mostly symbolic, and, activists hope, an example for climate-change activism in the courts around the world.
American iterations of climate-change litigation are many, but the one case that has captured the public imagination more than any other is Juliana v. United States in the District of Oregon. The case has played well in media because the plaintiff effort is spearheaded by a not-so-camera-shy youth group, the Earth Guardians, led by indigenous activist, hip-hop artist, and let's be honest, teen heartthrob Xiuhtezcatl Martinez. (Below: new promo video for Martinez's debut album, Break Free.)
Juliana might yet be described best as "ill fated." Unlike myriad climate-change-aiming lawsuits in areas such as environmental and business regulation, or upon collateral constitutional theories, such as the Commerce Clause or First Amendment, Juliana is a direct assault on the federal government under constitutional due process—literally, the right to life.
At first blush, this approach seems to face insurmountable hurdles before the merits could ever be reached: namely, standing, justiciability, official immunity, not to mention the hundred other reasons civil rights lawsuits are awfully hard to win. Then at the threshold of the merits lie the conventional tort problems of affirmative duty, causation, and injury. In the "constitutional tort" vein, the plaintiffs seek to breathe new breadth into the "public trust doctrine," which posits that government holds natural resources in trust for the public good. The doctrine has seen modest success in, for example, beach access cases, but jurisprudential conservatives do not enthusiastically embrace the raw, public-policy-driven invitation to judicial intervention.
Despite conventional wisdom, the Juliana suit survived both a motion to dismiss in the trial court and an aggressive effort by the Trump Administration to shut the action down in the Court of Appeals. (To be fair, the Obama Administration also was not ra-ra plaintiffs on this one.) In November 2016, District Judge Ann Aiken recognized, "This is no ordinary lawsuit." Upon detailed analysis, she rejected the government's arguments on both standing and justiciability, finding the question presented "squarely within the purview of the judiciary."
Then, analogizing to the Supreme Court's reasoning on due process in the 2015 gay marriage case, Obergefell v. Hodges, Judge Aiken "ha[d] no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society." The Ninth Circuit in March rejected the government's bold demand that the case be dismissed to protect the separation of powers, finding the government's claim premature and well shy of the high bar for writ of mandamus. In July, the U.S. Supreme Court denied the government's appeal for a stay.
Thus back on the District of Oregon docket, Juliana was scheduled to open at trial on October 29. A headline in The Japan Times, over a pro-plaintiff commentary by Princeton bioethics professor Peter Singer, titled Juliana "the trial of the century." One week ago, on October 5, the Administration filed another motion for stay in the trial court. Undoubtedly buoyed by the appointment of Justice Brett Kavanaugh, the Government today renewed its motion to stay and asserted its intention to petition the U.S. Supreme Court for mandamus relief.
In the Dutch case, the government tried to fend off the lawsuit on grounds equivalent to standing and justiciability, but to no avail. The Dutch Civil Code authorizes class actions (a rarity in Europe) specifically by interest groups on behalf of citizens. Moreover, the court reasoned that individual human rights claims must be justiciable in Dutch courts if individuals could bring the same claims in the European Court of Human Rights. The government argued "trias politica," that is, separation of powers, to which the court responded (cheekily?): "This defence does not hold water. The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including [the European human rights convention]. After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them" (¶ 69).
Under the European human rights convention, Urgenda relied on articles 2 and 8, respectively the rights to life and privacy, the latter including the inviolability of family life—the same two notions cited by Judge Aiken in her Obergefell-inspired due process analysis under the Fifth and Fourteenth Amendments.
You can await the next development in Juliana via PACER under case no. 6:15-cv-01517. [UPDATE: U.S. Supreme Court issued an extraordinary stay on Oct. 19. See, e.g., Richard Franks @ Legal Planet. HT @ Flannery Rogers.]
[UPDATE: Joel Stronberg at Resilience reported that despite the earlier Roberts stay, SCOTUS issued an order on November 2 clearing the way for Juliana to go to trial.]
[UPDATE: Juliana returns to oral argument in the Ninth Circuit in Portland, Oregon, on June 4, 2019. Track the case at Climate Case Chart, which explains: "The government [appellant argues] that the plaintiffs lacked
standing and that their lawsuit was not a cognizable case or controversy
under Article III of the Constitution. The government contended that a 'quick look at the climate change issues and actions pending before
Congress and the Executive Branch'—including the Green New Deal, carbon
tax legislation, and the replacement for the Clean Power Plan—'confirms
that Plaintiffs have petitioned the wrong branch.' The government also
argued that the plaintiffs were required to proceed under the
Administrative Procedure Act and that their constitutional claims failed
on the merits."]
[UPDATE: The Dutch Supreme Court upheld the outcome in Urgenda on Dec. 20, 2019.]
[UPDATE: On January 17, 2020, the Ninth Circuit dismissed Juliana for failure of standing. An appeal to the U.S. Supreme Court is inevitable, but extremely unlikely to succeed. The case is Juliana v. United States, No. 18-36082.]
In a civil rights case involving the freedom of religion, the Massachusetts Appeals Court today denied qualified immunity to public officials who prevented the employee-plaintiff from going to church for Christmas, even without a plain prior case on similar facts. The decision has important implications across the field of qualified immunity and "constitutional tort," because civil rights plaintiffs routinely claim violations of fundamental rights that officials should know trigger strict scrutiny in constitutional law.
Teresa Krupien was working at the Soldiers' Home in Chelsea, a veterans' healthcare facility. Another employee reported that Krupien injured the other's wrist when the two were moving a patient into a wheelchair. After investigation, and upon mixed conclusions among officials, Krupien was issued a "stay-away directive," barring her from the home premises. Krupien promptly informed officials that the directive would prevent her from attending Christmas services at the chapel, her "spiritual home," and alleged in her civil rights complaint that the directive in sum barred her from church services for 37 days. Officials for that time refused to modify the directive.
The trial court dismissed claims under the Massachusetts civil rights act on grounds of qualified immunity, and the Appeals Court reversed. Qualified immunity pertains when (1) a plaintiff complains of a public official's violation of statutory or constitutional rights, (2) the plaintiff's right was clearly established at the time of the alleged violation, and (3) a reasonable person in the shoes of the defendant would have understood that plaintiff's rights were clearly violated. Qualified immunity is an important defense in the law of "constitutional tort," because torts with public-official defendants usually must rise to the level of civil rights violations in order to overcome sovereign immunity, which is absolute unless waived.
The argument in qualified immunity usually centers on the second element, with an assist from the third, the two forming something like a "reasonable belief" test. Public officials, who bear the burden of proof of immunity, invariably argue that they were clueless about any clear violation because never before have the courts had a case quite like this one. Plaintiffs invariably respond by saying that of course this has never happened before, but come on, a lot of cases just like this have happened. Where element two is hard on plaintiffs with its clarity requirement, element three gives plaintiffs an assist by testing officials' denial objectively. Many a commentator has noted that the odd yet defensible effect of this rule is to give public officials a pass on a kind of civil rights offense once--but only once.
True to form, defendants here argued that no precedent provided clear guidance to officials on how to handle Krupien's desire to go to church. Nevertheless, the court opined, ample precedents demonstrate that struct scrutiny applies to claims of free religious exercise. And strict scrutiny, a public official should know, tests for narrow tailoring to achieve a legitimate state interest. Officials here had no evidence that Krupien's attendance at church would jeopardize anyone's safety. It would have been a simple matter to narrow the order and let her attend worship services.
Our job is the humbler one [than Congress's, in extending or abolishing immunity] of applying the immunity doctrine. We begin
with the elementary proposition that it would be improper to deny
immunity to a particular defendant on the ground that his conduct could
be subsumed under some principle of liability in force when he acted.
That approach would shrink immunity to trivial dimensions, since it is
always possible to find a principle of comprehensive generality (such as "due process of law"). But the immunity doctrine as it has evolved goes
much further than this to protect public officers. It is not enough, to
justify denying immunity, that liability in a particular constellation
of facts could have been, or even that it was, predicted from existing
rules and decisions, even though law, as Holmes famously remarked, is a
prediction of what courts will do faced with a particular set of facts.
(Maybe it is more than that, but it is at least that.) Liability in that
particular set must have been established at the time the defendant
acted.
It begins to seem as if to survive a motion to dismiss a suit on
grounds of immunity the plaintiff must be able to point to a previous
case that differs only trivially from his case. But this cannot be
right. The easiest cases don't even arise. There has never been a
section 1983 case accusing welfare officials of selling foster children
into slavery; it does not follow that if such a case arose, the
officials would be immune from damages liability because no previous
case had found liability in those circumstances.
Murphy ex rel. K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (paragraph break added). The Massachusetts Appeals Court here sought to fine-tune that balance between the general principle, religious freedom, and the specific distinction between one strict-scrutiny case and the next.
The case is Krupien v. Ritcey, No. AC 17-P-870 (Sept. 26, 2018). The opinion was authored by Associate Justice Vickie L. Henry. A graduate of Wellesley College and Boston University Law, Judge Henry left a lucrative commercial litigation practice with Foley Hogg in 2011 to serve as senior staff attorney and youth initiative director for Gay & Lesbian Advocates & Defenders (GLAD). In that capacity, she appeared in the consolidated cases that became Obergefell v. Hodges (U.S. 2015), establishing the federal constitutional right of gay marriage. Judge Henry was appointed to the bench by Governor Baker in 2015.
Persons listed on a part of the Massachusetts sex-offender registry for perpetrators who "moved out of state" have no constitutional privacy claims, state or federal, against commonwealth officials, despite a possibility of egregious error in listings, the Massachusetts Appeals Court ruled yesterday. The case is John Doe, Sex Offender Registry Board No. 474362 v. Sex Offender Registry Board, No. 17-P-985 (Mass. App. Ct. Sept. 19, 2018).
Plaintiffs sued officials of the Massachusetts Sex Offender Registry Board (SORB) on theories of procedural and substantive due process under the federal and state constitutions after their names, pictures, and criminal histories were posted on the SORB website as "moved out of state." The claimants alleged errors in the reporting, both in accuracy of the information and in the propriety of the posting. The court recited the facts of one egregious case that suggested merit in the allegations of error:
[John] Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history. Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph—this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.
The SORB abandoned its practice of publishing "moved out of state" records in 2015, but the superior court rejected the state's mootness defense.
Nevertheless, the Appeals Court rejected all plaintiff claims. Affirming on federal procedural due process, the court held that the defendants were entitled to qualified immunity, because federal case law has not established any clear wrong in privacy violation. Indeed, federal constitutional law points widely to the contrary. Affirming on federal substantive due process, the court held that the claimants were unable to meet the demanding "shocks the conscience" standard that can turn what otherwise might be a state tort into a violation of the Fourteenth Amendment. And reversing on claims under the Massachusetts Declaration of Rights, the court held that the defendants were entitled to sovereign immunity. The Massachusetts legislature has voluntarily abrogated sovereign immunity for claims of "threats, intimidation or coercion" under the Massachusetts Civil Rights Act, but plaintiffs did not make such claims.
The court's reasoning on constitutional law is sound, but the facts point to the continuing failure of U.S. law to keep pace with Americans' privacy expectations in the digital age, especially relative to the pace of privacy law developments elsewhere in the interconnected world. John Doe No. 106929's case is especially troubling in light of his California expungement. Expungement already is an embattled concept—cf. "ban the box" movement—in the age of the internet that never forgets and the refusal of American policymakers to engage with the right to erasure. For persons who committed crimes but served their time, that can mean stinging and enduring punishment well beyond what society and the justice system already determined was due. The consequences are even more grave when the punishment is civil in nature, not even necessarily predicated on a criminal conviction.
The state should have no more license to defame or invade privacy than any person. The common law maxim prized by the renowned Justice Oliver Wendell Holmes, Jr., himself a Bay Stater, asserts that for every wrong, the law provides a remedy (ubi jus ibi remedium). Yet where digital privacy is concerned, profitable commerce in information seems to be holding at bay common law evolution, legislative innovation, and good sense.
Sovereign immunity
and affirmative duty were at issue
in a state tort claims act case of tragic facts decided 3-2 upon rehearing in the
Massachusetts Appeals Court on April 12.Pedagogically, the case well illustrates the famous interchangeability
of duty and causation, my favorite articulation of which appeared in then-Circuit
Judge Scalia’s footnote
4 in Romero v. NRA, 749 F.2d 77,
¶ 10 (D.C. Cir. 1984).On the nuts
and bolts, the case well reiterates and demonstrates the strict application of
the no-affirmative-duty rule under the state tort claims act, even in a
famously progressive jurisdiction.
Plaintiff Jane J. alleged rape by a male patient while they
both occupied the recreational TV room of a locked unit of the Tewksbury State
Hospital.The court engaged solely with
the question whether failure to segregate male and female patients in the rec room
legally caused the rape under the state tort claims act.Holding no cause, the court, per Justice Diana
Maldonado, affirmed summary judgment for the Commonwealth.
Here illustrated in 1907, the Tewksbury State Hospital is on the National Register of Historic Places.
The classic American case of (no) affirmative state duty for
law students studying due process in constitutional law is DeShaney v. Winnebago County, 489 U.S. 189 (1989).The U.S. Supreme Court rejected liability for
state failure to intervene and prevent fatal child abuse.The case essentially restated the peculiarly
American “no duty” doctrine of common law for the context of “constitutional
tort.”Thus the rule of no affirmative
duty manifests across the contexts of common law, due process, and sovereign
immunity.The doctrine of federal law is
replicated in the states, though may be varied by statutory interpretation when
claims are controlled by state waivers of sovereign immunity in tort cases.In this Massachusetts case, statutory
interpretation of the state claims act molded the question into one of
causation—though the DeShaney
question nonetheless constitutes the heart of the inquiry.
Arguments focused on state claims act Mass.
Gen. L. ch. 258, § 10(j).In
relevant part (a list of exceptions omitted here), the section maintains
sovereign immunity against “any claim based on an act or failure to act to
prevent or diminish the harmful consequences of a condition or situation,
including the violent or tortious conduct of a third person, which is not
originally caused by the public employer or any other person acting on behalf
of the public employer.”Thus the
problem of affirmative duty is phrased in terms of “original[] cause[],” and
the appeals court set out to determine whether non-segregation could be said to
have been an “original cause” of the rape.
In the court’s interpretation, original cause is “strict,”
requiring “‘an affirmative act [not a failure to act] … that creates the “condition or situation”
that results in harm’” (quoting precedent; court’s added text; my
italics).The court recounted a series
of cases rejecting recovery under § 10(j), including one case that held state
lifeguards having negligently abandoned their posts was not the original cause
of a drowning.That result pertained
even though the argument for an intact causal chain was stronger for lack of an
intentional and criminal intervening actor.Jane J.’s claim could not survive such strict examination.
Justice Gregory Massing, joined by Justice Peter Rubin,
filed a vigorous dissent predicated on special relationship duty arising from involuntary
commitment, or alternatively, on the merits, arguing in the latter vein that the
“hospital ‘materially contributed to creating,’ and did not merely fail to
prevent, the condition that resulted in the plaintiff’s being attacked in the
common room.”
The case is Jane J. v.
Commonwealth, No. 15-P-340 (Mass. App. Ct. Apr. 12, 2017) (Justia).
