An Elder Fights the Denial of Medicaid by Division of Medical Assistance and the Hearing Officer Needs the Immunity Defense Provided by the Massachusetts Tort Claims Act*
*An elderly woman appealed the administrative decision
by the Division of Medical Assistance
of the Office of Health and Human Services
to deny her MassHealth/Medicaid.
She sued a few folks in their official and individual capacities.
Those folks moved to dismiss the case against them as individuals . . . because the Commonwealth does not indemnify them (pick up the tab for them)
in their individual capacities, where their own bank accounts would be in jeopardy.
COMMONWEALTH OF MASSACHUSETTS
ESSEX COUNTY, ss. SUPERIOR COURT
DOCKET NO. 03-0103
Commonwealth of Massachusetts,
Executive Office of Health and Human Services,
Division of Medical Assistance,
Wendy E. Warring, Commissioner of the DMA,
Matthew Levin, in his official and individual capacities,
Jane and John Doe, in their official
and individual capacities,
GIGI’S OPPOSITION WITH SUPPORTING MEMORANDUM IN OPPOSITION TO
MOTION TO DISMISS CLAIMS BROUGHT AGAINST
MATTHEW LEVIN AND JANE AND JOHN DOE
IN THEIR INDIVIDUAL CAPACITIES
Now comes Plaintiff Suzie GiGi to oppose the defendants’ Motion, pursuant to Rule 12(b)(6), to Dismiss Claims Brought against Matthew Levin and Jane and John Doe in Their Individual Capacities.
The counts against Matthew Levin ["Levin"] and Jane and John Doe ["the Does"] are (1) violations of due process and equal protection under M.G.L. c. 30a, §§1 et seq. and (2) violations of due process and equal protection under the federal and state constitutions.
As grounds, GiGi states the following:
- Where Article V of the Massachusetts Declaration of Rights requires all public employees of the three branches of the government of the Commonwealth of Massachusetts to be accountable to the people at all times, this court is precluded from applying to this case the Massachusetts Tort Claims Act, G.L. c. 258, §§1 et seq., upon which Defendants Levin and Jane and John Doe rely to give them absolute or quasijudicial immunity from suit.
a. Where judicial immunity arose from judicial fiat, the doctrine of judicial immunity may not reign supreme over the command of accountability mandated by Art. V of the Declaration of Rights, Constitution of the Commonwealth of Massachusetts. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. V of the Declaration of Rights, Constitution of the Commonwealth of Massachusetts.
- Where Levin and Jane and John Doe were incompetent, acted in bad faith, and violated GiGi's constitutional fundamental civil rights to due process in the administrative process and to equal protection under the federal and state constitutions, Levin’s and the Does' immunity defense under the Massachusetts Tort Claims Act must fail.
GiGi is a 90-year-old client who has been a resident of a long-term nursing facility since July 2002, and continues to be in need of around-the-clock medical and nursing care.1 On or around 28 January 2003, after this appeal/complaint was filed, that skilled-nursing facility filed suit against GiGi for $38,824, allegedly payment due as a private patient because the defendants in the instant case have denied her MassHealth/Medicaid coverage. Without coverage by MassHealth, GiGi will be denied her right to that essential medical and nursing care,2 for she does not have the financial ability to pay approximately $6500 per month as a private patient.3 Cf.Hopper v. Callahan, 408 Mass. 621, 624-625 (1990) (constitutional rights of involuntarily committed individuals clearly established at time of defendants' acts).1. Suffering from osteoporosis, GiGi crushed her cervix and broke a rib on a fall from a bench on which she was sitting talking to friends. In need of monitoring of necessary painkillers, she entered a hospital and from there went to a nursing facility. There she got inadequate care, e.g., she fell three times because she was unassisted, the last time resulting in a broken arm and a broken hip, which required an emergency operation. Like a little broken bird, and overmedicated, her mind began going. She began to recover at another rehabilitation facility.The reasons detailed in Exhibit A attached to the Complaint were fabricated for the purpose of enhancing the administrative decision. The fabrication is proved by Exhibit B, also attached to the Complaint. Exhibit B, a letter from the Division, contained the very short list of documents requested of GiGi to supply. Exhibit A, the decision, provides an extensive list of documents not supplied by GiGi but also never requested to be supplied by her.
When her 100 days of state care ran out, she left that facility and went to live in a private residence with a friend. There she received excellent private care for a number of months, and using a walker, she began to be mobile again, but hallucinations became a daily occurrence. Ultimately a serious threat of suicide voiced to a Pioneer Valley elder-service caregiver caused her to be sent to the hospital and observed in the psychiatric ward. That day, according to the doctor, she thought it was the year 1001.
Although there appears to be no official diagnosis, she was housed in the ward for those with symptoms of dementia and Alzheimer’s. From the hospital, she entered a facility for long-term care, for which the costs have not been paid because of the Defendant Division declining her application for MassHealth.
2. GiGi has "constitutional right to a safe and appropriate environment and adequate medical care." McNemar v. Department of Public Health, 53 Mass.App.Ct. 1113, -- (2002) (unpublished). "This includes taking reasonable steps to prevent foreseeable suicides." Id.
3.It is elementary that "when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations." Maher v. Roe, 432 U.S. 464, 469-470 (1977). While the State retains wide latitude to decide the manner in which it will allocate benefits, it may not use criteria which discriminatorily burden the exercise of a fundamental right. Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 93 (1978). Opinion of the Justices, 375 Mass. 795, 806 (1978), and cases cited.Moe v. Secretary of Administration and Finance, 382 Mass. 629, 652 (1981)
Assuming arguendo that the documents listed in Exhibit A were necessary to make a
responsible, reasonable, or lawful decision, then it had to be, at the very least, gross negligence that the DMA failed to request them of GiGi, and that as a result of that gross negligence.
Essentially, faced with insufficient evidence to deny GiGi long-term nursing coverage by MassHealth, Levin acted in bad faith by itemizing as allegedly requisite to a finding in favor of GiGi documents which had never been requested of GiGi by Jane and/or John Doe.
STANDARD OF REVIEW
When determining a motion to dismiss a complaint for failure to state a claim, allegations of the complaint, as well as any reasonable inferences [and annexed exhibits] which may be drawn therefrom in plaintiff's favor, are to be taken as true. Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 321 (1998). Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991) and cases cited. See also Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979); Nader v. Citron, 372 Mass. 96, 98 (1977).
Dismissal is also not appropriate where GiGi is entitled to any form of relief for any wrong or injury. Brum, at 321. Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). Massachusetts Declaration of Rights, article XI. "A complaint is not subject to dismissal if it could support relief on any theory of law" [Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 89 (1979)], "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted).
"A complaint should [also] not be dismissed simply because it asserts a new or extreme theory of liability or improbable facts." Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 934 (1983). "[I]t is important that new legal theories be explored and assayed in light of actual facts rather than a pleader's suppositions." New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 30 (1988) quoting 5 Wright & Miller, Federal Practice and Procedure, §1357 at 603 (1969 and supp. 1987).Patriarca v. Center for Living and Working, Inc., 1999 WL 791888 at 4 (Mass.Super.
Sept. 8, 1999) (Wernick, J.).
1.Where Article V of the Massachusetts Declaration of Rights requires all public employees of the three branches of the government of the Commonwealth of Massachusetts to be accountable to the people at all times, this court is precluded from applying to this case the Massachusetts Tort Claims Act, G.L. c. 258, §§1 et seq.,, upon which Defendants Levin and Jane and John Doe rely to give them absolute or quasijudicial immunity from suit.
Article V of the Massachusetts Declaration of Rights was ratified on 14 October 1780, a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). It dictates that all magistrates (judges) and officials from all three branches of government -- the legislative, executive, and judicial -- be at all times accountable to the people, of whom Plaintiff GiGi is one.4,5See also Federalist Paper No. 80 (J. and A. McLean's ed., June 21, 1788, New York) (Hamilton).4. Under common law, too, the Commonwealth is subject to suit by its citizens.To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Constitution of the Commonwealth of Massachusetts, must be followed.6,7 Those procedures have never been invoked vis-à-vis Art. V, leaving in effect the unequivocal mandate memorialized by our forefathers in Art. V of the Declaration of Rights: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the doctrine of immunity for public employees has long been effectuated.
Several colonial charters, including those of Massachusetts, . . . expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.Alden v. Maine, -- U.S. --, 119 S.Ct. 2240, 2271 (1999). . . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.'" 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted).Alden, 119 S.Ct. at 2254 (emphasis supplied).
5. And that surrender and consent to suit by its citizens was the plan of the Massachusetts convention. John Adams, one of a committee of 30, drafted "`a Declaration of Rights, and the Form of a Constitution,' to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26)." The adopted instrument "is still in force today as the organic law of the Commonwealth of Massachusetts." L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962).6. The voters ratified article LXXIV in 1944.In sum, since its ratification almost 223 years ago, Art. V has never been repealed, altered, or amended by any Massachusetts legislature. With accountability mandated at the convention, it is impossible for agents of the sovereign Massachusetts or its branches of government to be afforded absolute judicial or quasijudicial8 or qualified immunity,9 for where the forefathers of Massachusetts memorialized in Art. V the belief unequivocally that "the several magistrates and officers" of all three branches of government at all times must be accountable to the people, the State's waiver has long been effectuated.
7.According to Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1 (1985), a waiver of a State's constitutional mandate may be effectuated by a state statute or constitutional provision. This, clearly, is not wholly true in Massachusetts.8.LaLonde v. Eissner, 405 Mass. 207, 210 (1989). In LaLonde, a court-appointed psychiatrist performing an allegedly essential function by rendering services to the court was deemed a "quasijudicial" officer involved in an integral part of the judicial process and therefore entitled to immunity in the performance of those services.
9.Waiver and/or consent as issues here are then inapplicable. Notwithstanding that conclusion, for waiver of a State's constitutional mandate may only be effectuated by a state statute or constitutional provision. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1 (1985). Massachusetts needs not consent anew: its constitutional article has never been repealed, altered, or amended in the 221 years since its ratification on 14 October 1780.
Art. XI of the Massachusetts Declaration of Rights: Article XI (also ratified in 1780) states that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." See Alden v. Maine, -- U.S. --, 119 S.Ct. 2240, 2293-2294, 2293 n. 42 (1999). "The generation of the Framers thought the principle so crucial that several States put it into their constitutions." Id. at 2293.a. Where judicial immunity arose from judicial fiat, the doctrine ofConfluence of judicial immunity and Art. 6 (U.S.):Judicial immunity was derived from judicial fiat by the court inBradley v. Fisher, , 80 U.S. (13 Wall.) 335, 350 n. (1871), which relied upon a case from the England’s Court of the Exchequer, Scott v. Stansfield, 3 L.R. Ex. 220, 223 (1868), even though we had thrown off the yoke of tyranny more than 100 years earlier. Due to Bradley and its progeny, the guarantee of accountability in Article V of the Massachusetts Declaration of Rights has become only a ghost in the shadow of the multitude of state and federal cases holding that accountability is to be frowned upon. Enronization of the judicial system thus stands on an infirm foundation.10,11
judicial immunity may not reign supreme over the command of
accountability mandated by Art. V of the Declaration of Rights,
Constitution of the Commonwealth of Massachusetts. Likewise,
the derivative quasijudicial and qualified immunities may also
not reign supreme over the command of accountability in Art. V
of the Declaration of Rights, Constitution of the Commonwealth
of Massachusetts.10. Legislative immunity was confirmed in Tenney v. Brandhove, 341 U.S. 367 (1951).Where judicially created law does not fall within the penumbra of Art. 6 of the U.S. Constitution, the judicially derived judicial immunity may not reign supreme over the command of accountability in Art. V of the Declaration of Rights.12
11. SeeGildea v. Ellershaw, 363 Mass. 800, 815ff (1973). While Judge Learned Hand’s argument, as summarized in Gildea, regarding immunity was impressive, the bottom line of it was, We must not sue ten public employees, of whom nine are angels, in hopes of catching the one devil amongst them. While admirable in the context of social morality -- If ten allegedly starving people come to our door, we must feed them all even if one of them is not starving -- it defeats the notion of fundamental fairness, the cornerstone of due process, when it is applied to the judicial system. The practical effect of giving immunity – particularly judicial and quasijudicial immunity and, sometimes, qualified immunity – has been to wipe out accountability. With no allegedly legal requirement of accountability, gross negligence, incompetence, bad faith, ulterior motives, and the like, have been allowed to blossom and proliferate in abundance. The public has thereby only suffered a constitutional right to seek a remedy, by having recourse to the laws, for wrongs committed against them.12.It may also not preclude a citizen either of Massachusetts or of a foreign State from suing Massachusetts in federal or in State court. This proposition rests on a similar interpretation of the Eleventh Amendment. The "real" or first prong of the Amendment, the one not allowing a State to be sued by a citizen from a foreign State in federal court, was ratified by Congress. The second prong, the one not allowing a citizen to sue his or her own State in federal court, arose by judicial fiat. "[I]t is not the proper province of a federal court to rewrite a statute under the guise of interpretation." Aulson v. Blanchard, 83 F.3d 1, 4 (1996) (Selya, J.).
Confluence of quasijudicial and qualified immunity and Art. V (Mass.): If immunity for the people populating all three branches of state government does not exist because Art. V of the Massachusetts Declaration of Rights is deemed to be operative, making waiver unnecessary and consent to suit in state and federal courts explicit, then judicial, quasijudicial, and qualified immunity also do not exist and thus do not preclude any of GiGi's claims against Levin and Jane and John Doe.1313.According to Hafer v. Melo, 502 U.S. 21, 29 (1991), citing Burns v. Reed, 500 U.S. 478, 486-487 (1991), "officials seeking absolute immunity [other than legislators or judges] must show that such immunity is justified for the governmental function at issue. Levin or Jane Doe or John Doe has made no such showing.2. Where Levin and Jane and John Doe were incompetent, acted in bad faith, and violated GiGi's constitutional fundamental civil rights to due process in the administrative process and to equal protection under the federal and state constitutions, Levin’s and the Does' immunity defense under the Massachusetts Tort Claims Act must fail. [Counts 2 and 3.]
First, Levin’s, Jane Doe’s, and John Doe’s acts or failures to act violated GiGi’s civil rights under the federal or state constitutions. Therefore, notwithstanding the article V issue, section 9 of chapter 258 of the General Laws preludes the defendants from relying in this case on the Massachusetts Tort Claims Act.
No such employee or official shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner.G.L. c. 258, §9. Significantly, however, the Tort Claims Act withheld immunity from public employees (and retained immunity for public entities) where the acts complained of were "intentional," as opposed to negligent, G.L. c. 258, §10(c); and the tort claims act authorized public employers to "indemnify public employees . . . in an amount not to exceed one million dollars" where harm is alleged "by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law." G.L. c. 258, §9.Breault v. Chairman of Bd. of Fire Com'rs of Springfield, 401 Mass. 26, 35 (1987) (immunity does not protect public officials from liability for intentional torts while performing ministerial acts).
In Stiles v. Municipal Council of Lowell, 233 Mass. 174, "(t)he cloak of office" did not protect three councilors despite their good faith when interfering with the plaintiff’s rights in ways unauthorized by law. Gildea v. Ellershaw, 363 Mass. 800, 806 (1973)
no immunity where nonjuridical officer acted in bad faith, maliciously, or corruptly);14Breault, 401 Mass. at 37.14. In Gildea, the court held that a public officer could be liable (a) for ministerial acts and (b) for nonministerial or discretionary acts that were done in bad faith, with malice, or corruptly. Rationale: We all can make mistakes . . . inadvertent mistakes. Further, immunity for discretionary functions does not extend to all acts requiring judgment inasmuch as performing any function involves some discretion and judgment Irwin v. Town of Ware, 392 Mass. 745, 753 (1984).Further, when determining a motion to dismiss, this court must take as true GiGi’s assertion that the movants’ acts were done incompetently and in bad faith. GiGi further seeks this court to deem those acts sufficient to constitute acts grossly negligent or done in a willful or malicious manner. And, even if this court does not deem these acts grossly negligent or done in a willful or malicious manner, this court must find that where Levin and the Does did not exercise due care in the execution of any statute or the regulations of their public employer, G.L. c. 258 does not apply. See G.L. c. 258, §10(a).
As a senior, GiGi also contends that she has clearly established fundamental interests,15specifically a "due process right to essential medical care" [Hopper v. Callahan, 408 Mass. 621, 624-625 (1990)], under both the federal and state constitutions.15. Article I of the Declaration of Rights gives GiGi the right to acquire, possess, and protect property and to seek and obtain safety and happiness. Article X provides: "Each individual of the society has a right to be protected by it in the enjoyment of his life, Liberty and property according to standing Laws."
Town of Milton v. Civil Service Commission, 365 Mass. 368, 371-372 (1974). In Memorial, the high court concluded that denying medical-care assistance – a necessity of life – on the grounds that someone had not lived in the county long enough was unconstitutional. "[G]overnmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements." Memorial,1974.SCT.40727 at ¶33 <http://www.versuslaw.com>.
In the Memorial Hosp. [v. Maricopa County, 415 U.S. 250 (1974)] case, the court, drawing upon prior cases, noted that denial of welfare benefits which made possible the 'necessities of life' as in the Shapiro [v. Thompson, 394 U.S. 618, 89 (1969)]16 case, or the denial of the franchise, 'a fundamental political right,' as in the Dunn [v. Blumstein, 405 U.S. 330 (1972)] case, amounted to penalties. The denial of medical care assistance at issue in the Memorial Hosp. case itself was found to be quite similar to the denial of welfare benefits in the Shapiro case as affecting the 'necessities of life.'
16.In Shapiro, concerned with interstate migration, the court stated that a "compelling-state-interest test would be triggered by 'any classification which serves to penalize the exercise of [a constitutional] right [to travel]."
And by denying her application for MassHealth, the defendants have, in effect, denied her the necessities of life; to wit, they have denied her long-term medical and nursing care, inasmuch as she cannot afford between $6200-$6500 per month, the charge for private-patient care.
Given the evidence of Levin’s and the Does' incompetence, to which the administrative decision to deny GiGi’s application gives testament, even were they to have had immunity, it would not protect them. "Qualified immunity protects `all but the plainly incompetent OR those who knowingly violate the law.'" Anderson v. Creighton, 483 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). Emphasis supplied.
Exhibits A and B are not only sufficient evidence to deem Levin and the Does incompe-tent but also to prove that they never requested those documents which they aver in the decision GiGi failed to produce. This is sufficient under Anderson and Malley to prove that Levin and the Does are not protected by the limited immunity defense offered by the Mass Tort Claims Act.
Levin and the Does do not reach in their motion GiGi’s argument that the procedural unfairness in the proceedings involving GiGi can be attributed to Levin and the Does.
The contrast of Exhibits A and B is an example of the work of people who performed their tasks incompetently and then tried to cover them up.17 For example, faced with insufficient evidence to deny GiGi long-term nursing coverage by MassHealth, Levin acted in bad faith by itemizing as allegedly requisite to a finding in favor of GiGi documents which had never been requested by Jane and/or John Doe. Where Exhibit B, which contained the very short list of requested documents, was in GiGi’s file, Levin had to know he was acting outside of the scope of his authority when he fabricated for his written decision a new list. This was a fraud on GiGi, an act violating her right to due process and equal protection of the laws, and consequently an act done in bad faith. That there was no written request for these documents noted on the boilerplate letter of which Exhibit B is an example, one used as a matter of policy and practice, is evidence that Levin’s conduct was malicious and in bad faith.17. GiGi speculates, but has not affirmatively pled, that the Division had received an order to contain approvals in order to reduce the projected MassHealth costs, which have been rising steadily in a time of statewide fiscal crisis.Therefore the Mass. Tort Claims Act, which affords immunity to public employees under certain circumstances, cannot apply. Reasonable good faith is necessary in order to be protected by either qualified or absolute immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). "Good faith" is, in fact, a synonym for "qualified immunity." Harlow, at 815. See n. 9.
Good faith or qualified immunity has two aspects, an objective and a subjective aspect. Harlow, at 815. "The objective element involves a presumptive knowledge of and respect for `basic, unquestioned constitutional rights.'" Harlow, at 815, quoting Wood v. Strickland, 420 U.S. 308, 322 (1975). See alsoLaubinger v. Department of Revenue, 41 Mass.App.Ct. 598, 605 (1996) ("Immunity does not follow from the good faith of the official; the test is objective, that is, `whether a reasonable [official] would have known that the conduct violated established constitutional norms in the circumstances as they appeared to the defendant [official]’"), quoting Pasqualone v. Gately, 422 Mass. 398, 402-403 (1996) and citing Martino v. Hogan, 37 Mass.App.Ct. 710, 718 (1994).
Therefore, if we assume arguendo that Levin is to be protected by qualified immunity, he would have to prove that he did not know or could not have known that expanding -- only for the purpose of enhancing18 the decision against GiGi -- the list of documents allegedly required of GiGi would violate her constitutional rights.19,2018. Levin enhanced his decision by misrepresenting that GiGi did not produce because she was not cooperating with Jane Doe. GiGi cooperated at all times with the DMA personnel and staff.
19.A court may set aside a State administrative agency's decision if it determines, based on the record before it, "that the substantial rights of any party may have been prejudiced because the agency decision is: in violation of constitutional provisions; in excess of the statutory authority or jurisdiction of the agency; based upon an error of law; unsupported by substantial evidence; unwarranted by facts found by the court on the record submitted; arbitrary or capricious; an abuse of discretion; or otherwise not in accordance with the law." G.L. c. 30A, § 14(7)(a)-(g).Bailey, 1999 WL 513888 at 2.
20. As GiGi pled in her Complaint, she could and would have produced the documents Levin listed in his decision had she been asked for them during the administrative process. Where GiGi had "good reason for [her] failure to present [the documents] in the original proceeding" – because it was never requested by the Division -- this "court may order that additional evidence be taken before the agency upon a showing that the evidence is material." Bailey v. Bullen, 1999 WL 513888 at 2, No. 98-00678 (Mass.Super. June 7, 1999) (Connolly, J), citing G.L. c. 30A, §14(6), and Benmosche v. Board of Registration in Medicine, 412 Mass. 82 (1992).
G.L. c. 30A, § 14(6) states in relevant part: If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.Bailey, 1999 WL 513888 at 2 n.6.
"The subjective component refers to `permissible intentions.'" Harlow, at 815, quoting Wood v. Strickland, 420 U.S. at 322. If Levin’s intentions were not permissible -- e.g., if Levin had a malicious intent to injure GiGi or had bad faith, or "`if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury [to GiGi]' [ibid.]," his qualified immunity defense is defeated. Harlow, at 815. Clearly, Levin’s mere possession of the entire GiGi file is evidence of Levin’s bad faith and/or malicious intention to deprive GiGi of her constitutional rights or other injury.
"By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct [Harlow, at 819] . . . and a person who suffers injury caused by such conduct may have a cause of action. Id.
WHEREFORE, based on the above, the defendant's motion should be denied without consideration of any other argument.
20 February 2003Respectfully submitted,
By her attorney,
Barbara C. Johnson
Barbara C. Johnson, Esq.,
6 Appletree Lane
Andover, MA 01810-4102
CERTIFICATE OF SERVICE
I, Barbara C. Johnson, hereby certify that on this day, 21 February 2003, I served by first-class mail two true and accurate copies of this pleading on opposing counsel, Shannon K. DeBra, Assistant General Counsel, Division of Medical Assistance is a state agency within the Executive Office of Health and Human Services of the Commonwealth of Massachusetts, 600 Washington Street, Fifth Floor, Boston, Massachusetts 02111.
21 February 2003 ___________________________
Barbara C. Johnson, Esq.
Justice Richard Welch, III's
Decision on the
Motion for Summary Judgment
I did NOT argue that the legislature is NOT entitled to waive the state's sovereignty immunity and thereby substitute itself in place of the individual state employees.
- that Levin is NOT protected by the doctrine of judicial immunity
- that such immunity (be it absolute or qualified) is the product of judge made common law and
- that it is not contained in any constitutional or statutary provision.
I disagree with the judge that little reason was given to overturn this well-established precedent.
That reason is
ARTICLE V OF THE DECLARATION OF RIGHTS OF THE
Constitution of the
commonwealth of Massachusetts
i Shall appeal