|
|
|
|
|
|
|
|
Restraining
Order - Case Law Update |
|
Both
cases from Mass Court of Appeals |
|
CASE 1:
An allegation of abuse under
Sec. 51B may be sustained
against a teacher by DSS but
since is a lower standard
(reasonable cause to believe),
the teacher’s abuse might
not have to be sustained by
the Department Education and
then decertified.
CASE 2: It was held
that a court has inherent
power to expunge a restraining
order obtained by fraud
on the court.
CASE 1: An allegation
of abuse under Sec. 51B may
be sustained against a teacher
by DSS but since is a lower
standard (reasonable cause
to believe), the teacher’s
abuse might not have to be
sustained by the Department
Education and then decertified.
RALPH
WILSON vs. DEPARTMENT OF
SOCIAL SERVICES
FACTS: Teacher is accused
of abusing special needs child
and the investigators never
speak to teacher or school
principle. The teacher
is accused of grabbing the
child by the neck and there
are marks. The DSS hold the
allegation of abuse is sustained.
But they want the teacher
in trouble with the Department
of Education when it comes
time to certify. Must
they? HELD; No. There are
different standards of evidence.
Other agencies have standards
higher than “reasonable cause
to be believe standards.”
NOTABLE QUOTES: ‘The
plaintiff, as indicated earlier,
sought in his complaint notification
to the Department of Education
that the decision of abuse
was unsupported. He asserts
that there may be consequences
to a supported finding of
abuse in the ‘recertification’
process he must undergo with
the Department of Education
to which, he claims, he must
report the supported finding.
Although we have determined
that on the standard of ‘reasonable
cause to believe,’ there was
substantial evidence to support
the findings of the [DSS]
department, that standard
has been characterized as
a ‘threshold determination.’
Care & Protection of Robert,
408 Mass. 52, 63-64 (1990).
That standard and the strict
ten day time limitation for
the investigation imposed
by G. L. C. 119, § 51B, serve
to prevent expeditiously further
harm to a child. However,
it also prevents a more thorough
investigation. The investigator
did not see the classroom,
did not have the child's disciplinary
report,(10) and was limited
by time constraints in the
number of witnesses she was
able to interview . . . .
In any event, as pointed out
in Lindsay v. Department of
Social Servs. 439 Mass. at
802-804 & n.12, the standard
of proof and kinds of evidence
that are appropriate for the
department's purposes may
not be the standard to be
used by another agency notified
of the department's decision
to ‘support’ an allegation
of child abuse or neglect.
We read the Lindsay case,
430 Mass. at 800-804, as cautioning
any agency intending to take
action involving a person's
liberty or property interest
that it must afford such person
additional safeguards and
that it may not rely automatically
on a department's decision
based on the ‘reasonable cause
to believe’ standard.
CASE 2: It was held
that a court has inherent
power to expunge a restraining
order obtained by fraud on
the court.
COMMISSIONER OF PROBATION
vs. AMANDA ADAMS
HELD: “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.”
INTERESTING POINT: This is
one of those rare cases where
both parties were given 209As.
GEE, WHY DO THEY ONLY SEEM
TO BE CONCERNED ABOUT FALSE
ALLEGATIONS AGAINST WOMEN:
“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.”
BY THE WAY, THIS CASE HAS
A LOT ON FRAUD ON THE COURT—QUESTION
WASN’T THIS KNOWN EARLIER?
It just seems the usual—should
have told us earlier argument—should
also NOT apply to men.
Others have notices that the
big breakthroughs in case
law are when women get screwed
by the system—be it a move-away
by a custodial father, or
when mom is the victim of
false allegations. Try these
arguments in a paternity fraud
case and they will fly like
a led zeppelin.
WHY SEALING ISN’T GOOD ENOUGH:
“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)."
. . . 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.”
BALANCING TEST: A lot on the
court’s inherent powers, versus
the rights of police department
to have good records.
Compared lots of prior cases.
Talked about the courts rights
balanced against police rights.
“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.” But the court
concluded . . . “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.
. . . . 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.”
MORAL OF STORY: If you can
prove your ex was lying, move
to have the restraining order
expunged from the record and
cite this case. |
COMMISSIONER
OF PROBATION
v.
ADAMS
|
NOTICE:
All slip opinions and orders
are subject to formal revision
and are superseded by the
advance sheets and bound volumes
of the Official Reports. If
you find a typographical error
or other formal error, please
notify the Reporter of Decisions,
Supreme Judicial Court, John
Adams Courthouse, Pemberton
Square, Suite 2500, Boston,
MA 02108-1750; (617) 557-1030;
SJCReporter@sjc.state.ma.us
04-P-1261 Appeals Court
COMMISSIONER OF PROBATION
vs. AMANDA ADAMS.[1]
No. 04-P-1261.
Hampden. June 15, 2005.
- March 10, 2006.
Present: Greenberg, Beck,
& McHugh, JJ.
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] 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." |
|
Back
to list of all information
on Restraining Orders and
their Abuse
|
|
|
|
|
|
|