DOCKET |
04-P-1261 |
Dates: |
June
15,
2005. -
March
10, 2006 |
Present |
Greenberg,
Beck, &
McHugh,
JJ. |
County |
Hampden |
KEYWORDS |
Abuse
Prevention.
Domestic
Violence
Record
Keeping
System.
Fraud.
Practice,
Civil,
Fraud,
Costs.
Criminal
Records.
Statute,
Construction. |
Civil action commenced in the Springfield Division of the District
Court Department
on November 1,
2002.
Motions to
vacate an abuse
prevention
order, to
destroy records
of the vacated
order, and for
reconsideration
were heard by W.
Michael Ryan,
J., and a motion
for costs was
also heard by
him.
David M.
Lieber,
Assistant
Attorney
General, for the
plaintiff.
Mary Ann
Chase for the
defendant
BECK, J. In
this case we are
asked to decide
whether a
District Court
judge has the
inherent power
to expunge a
civil abuse
protection
order, issued
pursuant to G.
L. c. 209A, from
the Statewide
domestic
violence
registry when
the order was
obtained through
fraud on the
court. We hold
that he does.
Introduction.
Jake Jones and
Amanda Adams
were involved in
a romantic
relationship.
Adams ended the
relationship
because Jones's
violence and
threats of
violence caused
her to fear for
her life and
safety. On
October 30,
2002, Adams
obtained an
emergency abuse
protection order
against Jones
pursuant to G.
L. c. 209A. (We
will refer
hereafter to all
abuse protection
orders issued
pursuant to G.
L. c. 209A as
209A orders.) In
retaliation,
Jones filed a
complaint for a
209A order
against Adams.
At an ex parte
hearing on
November 1,
2002, a District
Court judge
entered a
temporary 209A
order against
Adams. On
November 8,
2002, following
a hearing at
which both Jones
and Adams were
present, another
District Court
judge extended
both 209A orders
for one year.
The order
against Jones
was later made
permanent.
Meanwhile, Jones
was charged in
both the
Worcester and
Springfield
Divisions of the
District Court
Department with
a violation of
the 209A order
against him,
threats to
commit a crime,
and criminal
harassment.
On April 29, 2003, Adams filed
a motion to
vacate the 209A
order against
her and
requested the
destruction of
all records of
the order. A
different
District Court
judge granted
her motion to
vacate the 209A
order but denied
her request to
destroy the
records. Adams
then filed a
separate motion
to destroy all
records of the
vacated order,
including the
records located
in the Statewide
domestic
violence record
keeping system
(system)
maintained by
the office of
the Commissioner
of Probation
(commissioner)
pursuant to G.
L. c. 209A, § 7.
See St. 1992, c.
188, § 7. The
commissioner
intervened and
opposed the
motion. The
judge granted
the motion,
reasoning that
the prejudice to
Adams outweighed
the State's need
to maintain
records, and he
ordered
expungement of
the record from
the system.
The commissioner filed a motion
to reconsider
and to vacate
the expungement
order. The judge
denied the
commissioner's
motion,
reasoning that
the District
Court had the
inherent power
to expunge the
record of the
209A order
against Adams
where the order
was obtained by
fraud on the
court.(2) The
judge also found
that Adams is an
attorney, and
that before
either party had
obtained a 209A
order, her work
had involved
representing
children. He
further found
that Jones
falsely
complained of
Adams to the
Board of Bar
Overseers. As a
result of
Jones's false
complaints, the
terms and
conditions of
Adams's
employment were
altered to
prevent her
unsupervised
contact with
children. The
judge found, but
did not further
specify why,
Adams lost
employment
opportunities
because of her
listing in the
system as an
abuser. The
commissioner
appeals, arguing
that the
District Court
has no authority
to expunge the
record of a 209A
order from the
system. We
affirm.
General Laws c. 209A. "Civil
restraining or
protective
orders . . . may
be entered
pursuant to G.
L. c. 209A,
which provides
that the courts
have
jurisdiction
over abuse
prevention cases
as described
therein. Orders
for the
protection of
those abused may
be granted under
G. L. c. 209A,
§§ 3, 4, and 5,
and are enforced
under G. L. c.
209A, § 7. By
St. 1992, c.
188, § 7, the
Legislature
authorized and
directed the
Commissioner of
Probation . . .
to develop and
implement the
system, which is
to contain a
computerized
record of the
issuance and
violation of any
restraining or
protective
order. Section
Seven . . .
restrict[s]
access to the
records in the
system to judges
and law
enforcement
agencies."
Vaccaro v.
Vaccaro, 425
Mass. 153, 155
(1997).(3)
"There is
nothing in St.
1992, c. 188, §
7, or in G. L.
c. 209A, that
permits a record
to be removed or
that authorizes
the entry of a
judicial order
directing
expungement of a
record from the
system." Id. at
156. "The system
is designed to
promote the goal
of preventing
abuse . . . by
providing a
judge (and other
authorized
agencies) with
complete
information
about a
defendant." Id.
at 157.
Fraud on the court. The Supreme
Judicial Court
has long
recognized the
court's powers
to protect its
authority: "[T]he
inherent powers
of the courts
are those whose
exercise is
essential to the
function of the
judicial
department, to
the maintenance
of its
authority, or to
its capacity to
decide cases.
Opinion of the
Justices, 279
Mass. 607, 613
(1932).
Blankenburg v.
Commonwealth,
260 Mass. 369,
373 (1927)."
Sheriff of
Middlesex County
v. Commissioner
of Correction,
383 Mass. 631,
636 (1981). "[E]very
judge must
exercise his
inherent powers
as necessary to
secure the full
and effective
administration
of justice."
O'Coin's, Inc.
v. Treasurer of
the County of
Worcester, 362
Mass. 507, 514
(1972).
In essence, the District Court
judge found that
the 209A order
against Adams
was obtained
through fraud on
the court. We
recognize that
the judge did
not use the
words "fraud on
the court."
However, he
found that "[the
nineteen]
allegations by
[Jones] are
false and
perjurious";
"[his behaviors]
are indicative
of an obsessive
compulsion that
is extremely
alarming"; "[t]he
seeking of the
restraining
order . . . is
part of a larger
pattern of
harassment"; and
"[i]n addition
to filing
affidavits that
contain
falsehoods . . .
, [Jones] has
falsely
complained of
[Adams] to the
Board of Bar
Overseers." In
addition, the
judge found that
Jones obtained
the ex parte
order against
Adams "without
disclosing that
[Adams] had a
restraining
order against
him." See G. L.
c. 209A, § 3
(requiring
disclosure of
pending abuse
prevention
orders). See
also Szymkowski
v. Szymkowski,
57 Mass. App.
Ct. 284, 287
(2003) (in
considering 209A
complaint, judge
"must be alert
against allowing
process to be
used" for
purposes of
harassment). We
hold that these
findings support
a conclusion
that the order
was obtained
through fraud on
the court.
It has been repeatedly held
that courts have
the inherent
power to revoke
judgments
obtained by
fraud on the
court. See Jose
v. Lyman, 316
Mass. 271, 280
(1944); Rockdale
Mgmt. Co. v.
Shawmut Bank,
N.A., 418 Mass.
596, 598 (1994);
Gray v.
Commissioner of
Rev., 422 Mass.
666, 672-673
(1996); Winthrop
Corp. v.
Lowenthal, 29
Mass. App. Ct.
180, 184 (1990).
"Fraud on the
court implies
corrupt conduct
and embraces
only that
species of fraud
which does, or
attempts to,
defile the court
itself."
Munshani v.
Signal Lake
Venture Fund II,
LP, 60 Mass.
App. Ct. 714,
718 (2004),
quoting from
Winthrop Corp.
v. Lowenthal,
supra. "A 'fraud
on the court'
occurs where it
can be
demonstrated,
clearly and
convincingly,
that a party has
sentiently set
in motion some
unconscionable
scheme
calculated to
interfere with
the judicial
system's ability
impartially to
adjudicate a
matter by
improperly
influencing the
trier or
unfairly
hampering the
presentation of
the opposing
party's claim or
defense."
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A., 418
Mass. at 598,
quoting from
Aoude v. Mobil
Oil Corp., 892
F.2d 1115, 1118
(1st Cir. 1989).
A court must be sufficiently
empowered in
order to prevent
fraud on the
court, because
allowing the
court to be
manipulated by
fraud poses a
danger to its
authority. See
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A.,
supra; Gray v.
Commissioner of
Rev., supra.
Thus, the
Supreme Judicial
Court has held
that "[w]hen a
fraud on the
court is shown
through clear
and convincing
evidence to have
been committed
in an ongoing
case, the trial
judge has the
inherent power
to take action
in response to
the fraudulent
conduct."
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A.,
supra.
Fraud on the court has been
found in cases
where a party
has perjured him
or herself to
the court and
the court has
relied upon the
fabrications
when reaching a
judgment. See
Matter of
Neitlich, 413
Mass. 416, 423
(1992) (fraud on
the court where
attorney made
false statement
with intent to
deceive court);
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A., 418
Mass. at 598-599
(fraud on the
court where
party forged
letter,
proffered forged
letter in
response to
interrogatories,
and testified
under oath as to
authenticity of
letter);
Munshani v.
Signal Lake
Venture Fund II,
LP, 60 Mass.
App. Ct. at
719-720 (fraud
on the court
where party
fabricated an
electronic mail
message
[e-mail],
submitted
fabricated
e-mail with
false affidavit
to court, and
attempted to
hide fabrication
from court for
several months).
In this case,
Jones committed
fraud on the
court through
his calculated
pattern of false
statements to
the court, which
influenced the
District Court
judge's decision
to issue a 209A
order against
Adams. The
District Court
judge found that
Jones made
nineteen
separate false
statements under
oath in four
different
affidavits
submitted to the
court, and that
Jones's
application for
a 209A order
against Adams
was part of a
larger pattern
of harassment
and lies to the
court and to the
Board of Bar
Overseers.
When faced with a finding of
fraud on the
court, "[t]he
judge has broad
discretion to
fashion a
judicial
response
warranted by the
fraudulent
conduct."
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A., 418
Mass. at 598.
The judge should
seek "to secure
the full and
effective
administration
of justice."
O'Coin's, Inc.
v. Treasurer of
the County of
Worcester, 362
Mass. at 514.
Judges may
exercise their
inherent powers
to fashion
remedies that
not only
realistically
protect the
integrity of the
pending
litigation, but
that also "send
an appropriate
message to those
who would so
abuse the courts
of the
Commonwealth."
Munshani v.
Signal Lake
Venture Fund II,
LP, 60 Mass.
App. Ct. at 721.
When courts
invoke their
inherent
authority to
fashion remedies
to respond to
fraud on the
court, "lack of
statutory
authorization .
. . is
immaterial."
Brach v. Chief
Justice of the
Dist. Ct. Dept.,
386 Mass. 528,
535 (1982). Such
power exists
"without
statutory
authorization
and cannot be
restricted or
abolished by the
Legislature."
Gray v.
Commissioner of
Rev., 422 Mass.
at 672, quoting
from Brach v.
Chief Justice of
the Dist. Ct.
Dept., supra.
"We examine
judicial
responses to
findings of
fraud on the
court for an
abuse of
discretion."
Rockdale Mgmt.
Co. v. Shawmut
Bank, N.A.,
supra.
It is well established that,
upon a finding
of fraud on the
court, judges
may enter
default
judgments,
dismiss claims,
or dismiss
entire actions.
See Rockdale
Mgmt. Co. v.
Shawmut Bank,
N.A., 418 Mass.
at 598-599;
Munshani v.
Signal Lake
Venture Fund II,
LP, 60 Mass.
App. Ct. at 721.
In cases where
an attorney has
committed fraud
on the court,
judges have used
their inherent
authority to
suspend or
disbar the
attorney. See
Matter of
Neitlich, 413
Mass. at
423-425; Matter
of Otis, 438
Mass. 1016, 1017
(2003). Common
to these cases
is the notion
that judges have
the authority to
fashion remedies
that will
protect the
integrity of the
courts, and that
will discourage
the public from
attempting to
use the courts
to perpetuate
fraudulent
schemes. See
Munshani v.
Signal Lake
Venture Fund II,
LP, supra.
In this case, vacating the 209A
order against
Adams is
insufficient to
protect the
integrity of the
courts and does
not send an
appropriate
message to the
public. Vacating
the order leaves
a record of the
order in the
system. See St.
1992, c. 188, §
7. Not only does
this leave a
permanent mark
against Adams,
but it also
leaves, in
perpetuity, a
record of a
fraudulently
obtained court
order. Although
labels such as
"dismissed" or
"closed" are
applied to
records in the
system, no
explanation is
provided as to
why the order
was dismissed or
the case closed.
Many vacated
209A orders are
vacated because
of the victim's
failure to
prosecute. See
Vaccaro v.
Vaccaro, 425
Mass. at 158
n.5. Law
enforcement
officials will
not be notified
that the order
was vacated
because it was
obtained by
fraud on the
court. Rather,
they may presume
it was vacated
because of the
victim's failure
to prosecute or
because of
insufficient
evidence. The
perpetuation of
a fraud amounts
to a defiling of
the court itself
when law
enforcement
officials rely
on inaccurate
information
produced by the
court. See
Winthrop Corp.
v. Lowenthal, 29
Mass. App. Ct.
at 184.
Just as vacating the order is
an insufficient
remedy in those
circumstances,
sealing the
record of the
order is equally
inadequate. When
records are
sealed, they do
not disappear.
While sealed
records become
unavailable to
the public, "the
raw data
continues to be
available to law
enforcement
officials
(police,
probation
officers, and
courts)."
Commonwealth v.
Roberts, 39
Mass. App. Ct.
355, 356 (1995).
Law enforcement
officials would
retain access to
information that
is inaccurate
and misleading
and was obtained
through fraud on
the court.
Therefore,
sealing would
not remedy the
defiling of the
court.
Adams argues that Police Commr.
of Boston v.
Municipal Ct. of
the Dorchester
Dist., 374 Mass.
640, 661 (1978),
controls the
outcome of this
case. In that
case, the
Supreme Judicial
Court concluded
that the "power
to order
expungement or
its equivalent
is a power that
properly may be
exercised by the
courts of the
Commonwealth as
a necessary
adjunct to their
exercise of
judicial power."
Ibid. (citation
and footnote
omitted). "The
power properly
may be exercised
where the
utility of the
records for law
enforcement
purposes is
likely to be
minimal or
nonexistent."
Ibid. In that
case, the court
held that a
Juvenile Court
judge had the
inherent power
to order the
police
department to
expunge the
arrest records
of a juvenile
after a
delinquency
proceeding
against the
juvenile had
been dismissed
with prejudice.
Id. at 641-642.
In doing so, the
court reasoned
that the
unnecessary harm
to the juvenile
outweighed the
government's
interest in
maintaining and
disseminating
records of a
dismissed case.
Ibid.
The commissioner argues that
this case is
controlled by
Vaccaro v.
Vaccaro, 425
Mass. at
157-159, in
which the
Supreme Judicial
Court held that
the District
Court had no
statutory or
inherent power
to order
expungement of a
c. 209A record
from the system.
In order to
understand that
holding,
however, it is
crucial to
understand the
facts of that
case. There, the
plaintiff, Mrs.
Vaccaro,
obtained an ex
parte temporary
protective order
against the
defendant, her
husband,
pursuant to c.
209A, § 5. Id.
at 154. At a
subsequent
hearing, Mrs.
Vaccaro
testified to
incidents of the
defendant's
verbal and
physical abuse
and her ongoing
fear that he
would harm her.
Ibid. The
District Court
judge found that
the plaintiff
was genuinely
fearful, but
that there was
insufficient
evidence to
justify the
continuation of
the protective
order. Ibid.
Therefore, the
judge vacated
the 209A order
and directed
that the record
be expunged from
the system. Id.
at 155. On
appeal, the
Supreme Judicial
Court held that
"no power to
order
expungement can
be implied." Id.
at 157. The
court reasoned
that the purpose
of the system is
to provide a
judge with
complete
information
about a
defendant, and
to allow a judge
to identify
subsequent
situations in
which a
subsequent
plaintiff may
face a
particularly
heightened
degree of
danger. Ibid.
See Commonwealth
v. Gavin G., 437
Mass. 470 (2002)
(where case
against juvenile
was dismissed
due to
Commonwealth's
failure to
prosecute,
Juvenile Court
has no inherent
authority to
expunge records
maintained
pursuant to a
statutory scheme
where statute
does not
authorize
expungement).
In Vaccaro v. Vaccaro, the
Supreme Judicial
Court
distinguished
Police Commr. of
Boston v.
Municipal Ct. of
the Dorchester
Dist., on the
ground that the
Vaccaro case was
"not a case
where there is
'little or no
valid law
enforcement
purpose . . .
served by the
maintenance and
dissemination of
. . . records."
425 Mass. at
158, quoting
from Police
Commr. of Boston
v. Municipal Ct.
of the
Dorchester
Dist., 374 Mass.
at 642. In
enacting G. L.
c. 209A, the
Legislature was
concerned with
the prevalence
of domestic
abuse and wanted
to ensure that
abusers were
easily
identifiable by
law enforcement
officials when
they either
violated 209A
orders or
committed other
crimes in the
future. Id. at
157-158. The
Legislature
specifically
omitted an
expungement
provision in the
statute because
it did not want
vacated 209A
orders to go
unnoticed. See
id. Recognizing
the realities of
domestic abuse,
the court noted
that many
victims
initially obtain
209A orders but
then either fail
to prosecute
them or, as in
Vaccaro, fail to
present enough
evidence to
allow a court to
continue the
issuance of one.
See Vaccaro v.
Vaccaro, 425
Mass. at 158
n.5. Therefore,
although many
209A orders
would likely be
vacated, the
Legislature
determined that
records of such
orders would
still provide
valuable
information to
law enforcement
officials. Ibid.
In Vaccaro, the Supreme
Judicial Court
also
distinguished
Police Commr. of
Boston v.
Municipal Ct. of
the Dorchester
Dist., supra, by
pointing out
that while there
is no statutory
authority
requiring the
maintenance of
juvenile arrest
records, there
is an express
legislative
directive to
implement the
domestic
violence
registry system.
Vaccaro v.
Vaccaro, 425
Mass. at 158.
That distinction
is immaterial to
this case
because when
courts invoke
their inherent
authority to
fashion remedies
to respond to
fraud, "lack of
statutory
authorization .
. . is
immaterial."
Brach v. Chief
Justice of the
Dist. Ct. Dept.,
386 Mass. at
535. See Gray v.
Commissioner of
Rev., 422 Mass.
at 672. The
District Court
judge in the
Vaccaro case was
not invoking the
court's inherent
authority to
remedy fraud on
the court;
therefore, the
legislative
directive
omitting a
provision for
expungement
controlled.
Here, however,
there has been
fraud on the
court, and the
judge's inherent
power to fashion
an appropriate
remedy is not
vitiated by the
statute's
omission
regarding
expungement. See
Commonwealth v.
S.M.F., 40 Mass.
App. Ct. 42,
43-45 (1996)
(where sealing
statutes are
inapplicable and
no statutory
remedy is
therefore
available, trial
courts may
invoke inherent
power to order
expungement).
Contrast
Commonwealth v.
Roe, 420 Mass.
1002, 1002-1003
(1995) (even
though charges
against
defendant
dismissed for
want of
prosecution,
court lacked
inherent
authority to
expunge criminal
records of an
adult because
legislative
scheme allows
such records to
be sealed).
Allowing expungement in this
case does not
offend the
Supreme Judicial
Court's
rationale in
Vaccaro.(4) As
the court stated
in that case,
the purpose of
G. L. c. 209A is
to protect
prospective
victims. Vaccaro
v. Vaccaro, 425
Mass. at 157. In
the case before
us, Adams was
the victim of
abuse. The 209A
order against
her was obtained
fraudulently as
a means of
retaliation
against her for
seeking a 209A
order against
Jones, and the
court was used
as a mechanism
to perpetuate
the fraud.
Compare Jose v.
Lyman, 316 Mass.
at 280 (use of
court's inherent
powers
permissible to
prevent fraud on
the court), and
Winthrop Corp.
v. Lowenthal, 29
Mass. App. Ct.
at 184 (same),
with Vaccaro v.
Vaccaro, 425
Mass. at 158,
and Commonwealth
v. Gavin G., 437
Mass. at 473.
Expunging
Adams's record
not only
remedies any
harm suffered by
her, but it also
sends the
appropriate
message to the
public: the
courts will not
be used as a
vehicle for
abusing G. L. c.
209A as a means
of harassment
through the
seeking and
obtaining of
fraudulent 209A
orders.
Moreover, the
court in Vaccaro
stated that
these orders
should not be
expunged because
vacated orders
serve an
informational
purpose. 425
Mass. at 158. In
contrast, the
order in this
case serves no
informational
purpose. Because
the order was
obtained through
fraud on the
court, a
subsequent
discovery of the
order in the
system by a law
enforcement
official will
provide
incorrect
information to
the official.
Adams has not
posed any threat
to Jones, and
any contrary
record will
impede the
administration
of justice.
Balancing test. The Supreme
Judicial Court
has cautioned
that, before a
court may invoke
its inherent
power to expunge
a record, it
must ensure that
the government's
interest in
maintaining the
record does not
outweigh the
harms suffered
by the
maintenance of
the record.
Police Commr. of
Boston v.
Municipal Ct. of
the Dorchester
Dist., 374 Mass.
at 658-661. As
in that case,
the resulting
harm here from
the maintenance
and
dissemination of
the fraudulent
209A order
against Adams
outweighs the
government
interest in
keeping the
record in the
system. We have
already
discussed how
the court's
integrity and
ability to
secure the full
administration
of justice is
severely
weakened when a
court order
obtained through
fraud remains a
record available
to and perhaps
relied upon by
law enforcement
officials.
Contrast Vaccaro
v. Vaccaro, 425
Mass. at 157.
Moreover, the
harm suffered by
Adams is
obvious. Without
expungement, she
will suffer from
a blemish on her
record for the
rest of her
life. The
District Court
judge found that
the existence of
this record
already has had
a detrimental
impact on the
terms and
conditions of
her
employment.(5)
The existence of
a record can
also adversely
affect Adams if
she is involved
in any future
209A proceeding.
See Wooldridge
v. Hickey, 45
Mass. App. Ct.
637, 638 (1998).
Furthermore, the
existence of an
order can have a
negative effect
on her during
future bail
proceedings. See
Frizado v.
Frizado, 420
Mass. 592, 594
(1995).
The potential harm to the
courts and to
Adams outweighs
the governmental
interest in
maintaining and
disseminating
the fraudulently
obtained 209A
order because
the order
contains
absolutely no
informational
purpose.
Contrast Vaccaro
v. Vaccaro, 425
Mass. at 157;
Commonwealth v.
Gavin G., 437
Mass. at 473.
Because the 209A
order was
obtained by
fraud on the
court, it does
not offer any
assistance to
law enforcement
officials. If
anything, the
existence of a
vacated 209A
order that was
obtained through
fraud is
unhelpful
because it
provides false
information to
law enforcement.
This impedes the
fair
administration
of justice.
The commissioner also argues
that the
government has
an interest in
conserving
resources and
not having to
defend against
frivolous
attempts to
expunge records
from the system.
We do not find
this argument
sufficiently
persuasive to
outweigh the
egregious harms
suffered by the
courts and c.
209A defendants
if expungement
were not allowed
in those limited
circumstances.
Courts must
afford a hearing
to c. 209A
defendants
within ten
business days of
the entry of a
temporary order.
G. L. c. 209A, §
4. An additional
hearing is
required in
order to extend
the length of a
209A order
beyond one year.
G. L. c. 209A, §
3. Should a c.
209A defendant
claim that a
plaintiff is
pursuing the
order through
fraud on the
court, he or she
will have
adequate
opportunity to
assert that
argument at
either or both
of these
hearings. If the
judge does not
make a finding
of fraud on the
court, the
defendant will
have no basis
for a subsequent
motion to
expunge the
record of the
order from the
system. Nothing
in G. L. c.
209A, or in this
opinion,
requires a
hearing on a
defendant's
motion for
expungement.
Furthermore, the
"clear and
convincing
evidence"
standard of
proof required
for
demonstrating a
fraud on the
court finding
will necessarily
limit the number
of instances
when expungement
may even be
considered as an
appropriate
remedy.
We therefore conclude that a
judge has the
inherent
authority to
expunge a record
of a 209A order
from the
Statewide
domestic
violence
registry system
in the rare and
limited
circumstance
that the judge
has found
through clear
and convincing
evidence that
the order was
obtained through
fraud on the
court. Because
the District
Court judge's
finding of fraud
on the court was
not an abuse of
discretion, we
hold that
expungement of
the order from
the system in
this case was
appropriate.(6)
Cf. Corrado v.
Hedrick, 65
Mass. App. Ct.
477 (2006).
Costs. The commissioner also
appeals from the
judge's order
that the
commissioner
reimburse Adams
for costs in the
amount of $500
due to the
commissioner's
failure to
attend a hearing
at the initial
hearing on her
motion to
destroy all
copies of the
209A order.(7)
We conclude that
the judge erred
because he was
without
statutory
authority to
order the
payment of costs
in these
circumstances.
"[C]osts against the
Commonwealth,
its officers,
and agencies
shall be imposed
only to the
extent permitted
by law."
Mass.R.Civ.P.
54(d), as
appearing in 382
Mass. 821
(1980).
"Consequently,
express
statutory
authority is
required to levy
costs on the
Commonwealth."
Judge Rotenberg
Educ. Center,
Inc. v.
Commissioner of
the Dept. of
Mental
Retardation (No.
1), 424 Mass.
430, 468 (1997).
See Broadhurst
v. Director of
the Div. of
Employment
Security, 373
Mass. 720, 722
(1977); Ware v.
Commonwealth,
409 Mass. 89, 90
(1991). "This
requirement
arises out of
the general rule
of law that the
Commonwealth
'cannot be
impleaded in its
own courts
except with its
consent, and,
when that
consent is
granted, it can
be impleaded
only in the
manner and to
the extent
expressed . . .
[by] statute.'"
Judge Rotenberg
Educ. Center,
Inc. v.
Commissioner of
the Dept. of
Mental
Retardation (No.
1), 424 Mass. at
468, quoting
from General
Elec. Co. v.
Commonwealth,
329 Mass. 661,
664 (1953).
The District Court judge did
not ground his
decision to levy
costs against
the commissioner
on any express
statutory
authority. Adams
argues that G.
L. c. 261, § 14,
authorizes the
judge to levy
such costs. That
statute
provides: "In
civil actions
and in
proceedings
which are
instituted by,
or in the name
of, the
commonwealth,
and not at the
relation, in
behalf, or for
the use, of a
private person,
the commonwealth
shall be liable
for costs as is
an individual."
G. L. c. 261, §
14. It has been
repeatedly held
that § 14
provides for the
recovery of
costs in civil
actions that are
initiated by the
Commonwealth and
does not allow
for recovery of
costs from the
Commonwealth in
civil actions
initiated by a
private
plaintiff. See
Broadhurst v.
Director of the
Div. of
Employment
Security, 373
Mass. at 724;
Ware v.
Commonwealth,
409 Mass. at 92;
Judge Rotenberg
Educ. Center,
Inc. v.
Commissioner of
the Dept. of
Mental
Retardation (No.
1), 424 Mass. at
468-469. The
present action
was initiated by
a private
plaintiff.
Adams's motion
seeking an order
of expungement
necessarily
compelled the
commissioner to
intervene and
oppose the
motion.
Therefore, G. L.
c. 261, § 14,
does not
authorize the
District Court
judge to levy
costs against
the
commissioner.
That portion of the order dated
February 27, 2004, awarding
costs against
the Commissioner
of Probation is
vacated. In all
other respects,
the order is
affirmed.
Footnotes
(1) 1 A pseudonym. The
Commissioner of
Probation
intervened to
oppose Adams's
motion for
expungement and
is now the
appellant in
this matter. The
original
plaintiff, Jake
Jones (a
pseudonym), is
not a party to
this appeal.
(2) The judge found that Jones
made the
following false
statements under
oath:
"1. [Adams]
stated she
had me under
surveillance
for six
months."
"2. She
stated to me
that the
people
following me
were members
of organized
crime."
"3. The
defendant's
family have
many links
to organized
crime."
"4. Her
uncle was 'Bendo,'
an enforcer
for the
Puglione
family."
"5. I broke off our
relationship."
"6. She has
threatened
my new
girlfriend."
"7. She has threatened myself."
"8. The
defendant
has made
numerous
threats
using the
term 'The
boys owe me
a favor.'"
"9. I feel
the real
danger is to
myself as
well as my
children."
"10.
[Adams's]
threats to
my children
remain . . .
very real."
"11. [Adams]
. . .had
made
repeated
threats such
as 'Your
children
will
suffer,' and
I will make
things very
inconvenient
for you."
"12. She had
me followed
for six
months by
members of
organized
crime."
"13. [Adams]
has made
fraudulent
statements."
"14. . . .
the
relationship
ceased after
I met
another
woman of
another
race."
"15. [Adams]
arrived at
my residence
on October,
29, 2002
clearly
intoxicated
. . . in a
rage . . .
threatening
my children
. . . and
stating she
would make
my life very
inconvenient."
"16. [Adams]
personally
sabotaged a
personal
injury case
for my
father."
"17. [Adams]
does in fact
misrepresent
herself by
using an
alias in her
work as a
lawyer."
"18.
[Adams's]
HIDDEN
AGENDA to
settle an
old vendetta
is her real
motivation
in this
case."
"19. [Adams]
is using her
title to
further
harass me."
(3) The relevant portion of St.
1992, c. 188, §
7, provides as
follows:
"The
commissioner
of probation
is hereby
authorized
and directed
to develop
and
implement a
statewide
domestic
violence
record
keeping
system . . .
. Said
system shall
include a
computerized
record of
the issuance
of or
violations
of any
protective
orders or
restraining
orders
issued
pursuant to
. . . [G. L.
c. 209A].
Further,
said
computerized
system shall
include the
information
contained in
the court
activity
record
information
system
maintained
by the
office of
said
commissioner.
The
information
contained in
said system
shall be
made
available to
judges
considering
petitions or
complaints
pursuant to
[G. L. c.
209A].
Further, the
information
contained in
said system
shall be
made
available to
law
enforcement
agencies
through the
criminal
justice
information
system
maintained
by the
executive
office of
public
safety."
(4) In fact, leaving the record
on the system
would reward
Jones in his
attempt to
harass and
destroy Adams.
Refusal to
expunge the
record would
fail to
discourage
others from
committing
similar frauds
on the court.
(5) The
commissioner
suggests that
the judge's
findings were
unsubstantiated.
He argues that
the record in
the system did
not harm Adams
because it was
Jones who
notified Adams's
employer of the
209A order. The
commissioner has
failed to show
that the judge's
findings of fact
were clearly
erroneous. See
Mass.R.Civ.P.
52(c), as
appearing in 423
Mass. 1408
(1996).
(6) As we hold that fraud on
the court allows
expungement of
Adams's record
from the system,
we need not
address Adams's
due process
argument.
(7) According to the judge's
findings, "[c]ounsel
for the
commissioner
acknowledged
receipt of
notice of the
first hearing
but was unable
to explain why
the commissioner
did not appear
in opposition." |