COMMONWEALTH OF MASSACHUSETTS
Appeals
Court
SUFFOLK COUNTY A.C.-03-P-1532
Roberta
Beck, )
David L. Higgs and )
Rodney W. Young, )
Plaintiffs-Appellants, )
v. )
)
Massachusetts Department of Education [DOE],
and )
[1]South Shore Charter School [SSCS], and )
David P. Driscoll, Commissioner of Education,
and )
Scott W. Hamilton, (former) DOE Associate
Commissioner of Education, and )
Edward Kirby, (former) Acting DOE Associate
Commissioner of Education, and )
Timothy Anderson, (former) SSCS Chief
Executive Officer, and )
Diane Ellis Miles, (former) SSCS Headmaster,
and )
Gregory L. Thornton, (former) Chairman, SSCS
Board of Trustees, )
Defendants-Appellees. )
Application of
Plaintiffs-Appellants to the Massachusetts Supreme Judicial Court for
direct appellate review
1. Per Massachusetts
Rule of Appellate Procedure 11, David L. Higgs and Rodney W. Young,
plaintiffs-appellants in the above named action, respectfully apply to
the Massachusetts Supreme Judicial Court for direct appellate review of
the dismissal by Plymouth Superior Court of their defamation suit.
2. Beck et al. vs. DOE
et al. is on appeal from a decision and order of summary judgment
signed on February 25, 2002 by Plymouth Superior Court Justice Richard
J. Chin, dismissing all charges against the eight defendants.
a. All claims against South Shore Charter School, an
original defendant, were dismissed the year before on February 12,
2001, per Plymouth Superior Court’s MEMORANDUM OF DECISION AND
ORDER ON MOTION OF DEFENDANTS GREGORY L. THORNTON AND SOUTH SHORE
CHARTER SCHOOL FOR JUDGMENT ON THE PLEADINGS. In that decision the
Court left standing all charges against Defendant Thornton.
The
Court denied a subsequent MOTION FOR ENTRY OF SEPARATE AND FINAL
JUDGMENT ON DISMISSAL OF CLAIMS AGAINST DEFENDANT SOUTH SHORE CHARTER
SCHOOL, PURSUANT TO RULE OF CIVIL PROCEDURE 54(b).
3. The plaintiffs’
appeal focuses upon the following issues:
a. The Court’s falsification of the record in Beck v.
DOE in thirteen instances, defeating plaintiffs’ arguments of malicious
defamation and rationalizing its decision and order of summary judgment
on behalf of the defendants. Three of the fabrications alleged are
presented in this application:
(1) In its decision the Court deliberately misquotes an
official report of the Federal Bureau of Investigation, to justify the
Court’s opinion that certain statements of the defendants, alleged
slanderous in the Complaint, were made without malice, and therefore
had not legally defamed “... the plaintiffs [judged] to be public
figures for the purpose of this defamation action.” [p. 35]
(2) Similarly the Court falsifies an internal
report prepared by trustees of the Defendant South Shore Charter
School, to justify the Court’s opinion that certain written statements
of a defendant, alleged libelous in the Complaint, were made without
malice, and therefore had not legally defamed “... the plaintiffs [as]
public figures ....”
(3) In its decision the Court falsely decreed “...
the plaintiffs to be public figures for the purpose of this defamation
action” on the basis of a contrived “public controversy,” namely,
“misuse of public funds,” in which the Court declared that that
plaintiffs had participated.
b. The Court failed to consider a pertinent
sub-paragraph, §10(j), of G.L.c._258 in dismissing claims against
Defendant Department of Education, as a public employer. The issue is
presented in this application.
c. Other issues of error that plaintiffs will argue in
their appeals brief but have not included in this application include:
(1) the Court’s misstatement of plaintiffs’ allegation of conspiracy;
(2) the Court’s ignoring material exhibits in the record; (3) the
Court’s faulting plaintiffs for failure to respond to defenses
articulated in the Court’s decision but not in defendants’ briefs; and
(4) the Court’s faulting plaintiffs for failure to “... allege[] ...
any false or defamatory statements”, when clearly they had charged only collusion–
not actual utterance or publication - by a defendant in statement(s)
attributed directly to other defendant(s).
Plaintiff-Appellants’ arguments are organized
in the following, 10-page section entitled “Argument,” into two
sections corresponding to ¶ 3.a and 3.b above: [I] “Misrepresentations
of the Record,” and [II] “Responsibility of the Public Employer.”
The passages challenged in the Superior
Court’s decision and order of summary judgment are bolded.
Parenthetical page references “(p. ##)” refer to numbers printed on the
outside margin of the exhibits, about one inch from the bottom edge.
All italics and bolding in the section are supplied for emphasis.
The plaintiffs acknowledge that their
accusations of deliberate wrongdoing against Justice Richard J. Chin,
might eventually prove more appropriately directed to member(s) of his
staff and/or to other personnel found to have introduced fraudulent, ex
parte materials into the Court’s decision-making process.
Argument
I. Misrepresentations
of the Record
1. (p. 26) ... A copy of Higgs’
FBI report states that the “[i]nvestigation
determined that access to the system
was obtained via default Windows 95 settings allowing file sharing from a remote access.” The passage constitutes a
substantial misquotation and total reversal of an official notice of
the FBI’s Boston Field Office – on record before the Court – regarding ‘case
closure,’ to wit:
“CASE
CLOSURES ... Investigation determined access to system was obtained via
default Windows 95 settings allowing file sharing and remote access. US
Attorney’s Office declined prosecution. Request case be closed.” [p.58]
The
Court omits from its order the second and third sentences from the
Bureau’s statement, effectively reversing the context from case
closure to a finding of wrongdoing. Plaintiff Higgs is the
supposed wrongdoer, as clearly suggested by the misquote “from a remote
access” and gratuitously substituted title “Higgs’ FBI report.”
The FBI document in question is a two-page
status report scheduling the School’s matter and four unrelated cases
for closure, and thus cannot be “Higgs’ FBI report.” The rewording
sanitizes of malicious defamation the defendants’ damaging
statements that Higgs and Young are targets of a “formal [FBI]
investigation.” [p.26]
Moreover, the record does not indicate that
the FBI ever copied or communicated its internal memorandum of case
closure to the School or any litigant. In January and March 2000 the
plaintiffs obtained the Bureau exhibits in response to
freedom-of-information-privacy-act [FOIPA] requests submitted to the
Bureau’s Boston Field Office. They then provided the complete set in
discovery.
Therefore, no FBI document in 1998 could
possibly have persuaded any defendant that Higgs and Young were subject
of “formal investigation,” as the Court opines.
Indeed, Young’s name was not even known
to the Bureau, as indicated in its response to Young’s FOIPA request.
Within
the 1998 FBI report referenced, the sentence “Investigation
determined...,” begins without the definite article, which the
Court in its version provides, “... the
‘[i]nvestigation determined ....’” Thereby an instance of investigating is rendered a “formal investigation” as basis for defendants’ reasonably
believing, and uttering, that plaintiffs were under investigation.
The Court improves nicely the chopped
federalese “... determined access to system ...” into the smoother
“... determined that access to the
system ....” But, ‘quote’ is defined as a passage attributed ‘word for word.’
Of much greater significance than curious
insertions of the article ‘the’ and conjunction ‘that,’ the Court
substitutes “file sharing from a remote
access” for “file sharing and remote access” – and omits
two succeeding sentences that establish the report’s context - per the
omitted title “CASE CLOSURES” – as indeed ‘case closure.’
Remote
access
might involve little or no actual file sharing. A student or parent
allowed remote access, for example, might be ‘served’ homework
assignments through a bulletin-board program, without file sharing privileges.
Indeed, a bulletin-board program was
available at the School. In its final report – ignored in the Court’s
decision – the Bureau concluded, “US Attorney’s office declined
prosecution since access to the system was gained via authorized
bulletin board dial-up....” [p.59]
The Court’s misquote “... file sharing from
a remote access” denotes remove access by a given
user to computer files. The Court’s distortion clearly suggests that the
distant, home workstation of Higgs was such “a remote access.” Indeed,
Higgs is the person whom Defendant Miles reported to the FBI as
illegally and remotely accessing school computers.
In none of the 24 FBI documents on record
does the Bureau name Higgs, Young, or anyone in particular, as
accessing the School’s system. Nor did the Bureau ever interview Higgs
or Young, both of whom were ignorant of the brief FBI visit to the
School until months later, after case closure, when defendants Anderson
and Miles began to allege that the two were under FBI investigation.
The Court has falsified in its decision an
official FBI investigative report to suit its decision and order of
summary judgment, similarly as it metaphrased other parts of the
record, such as the “Pollets Report.” [see next]
2. (pp.
26-27) “On June 16, 1999, the board of trustees of the SSCS
appointed two trustees of the school to investigate and compare the allegations raised by the defendants. According to the
preliminary draft of the resulting report, Beck did make
a number of errors in the reports prepared for DOE. The
only thing that was under dispute was the significance of the mistakes.
The committee concluded that even if the mistakes were significant, Anderson was ultimately ... responsible
for the accuracy of the reports and therefore Anderson inappropriately
blamed Beck and Young for the resulting enrollment errors....” In the passage, the Court blatantly metaphrases key
parts of the “resulting report” [hereafter referred to as ‘Pollets
Report’], shifting the report’s intended focus from Defendant Anderson
to Plaintiff Beck, and reversing its attribution of fiscal
irregularities to Anderson, to a finding that Beck and Young were to
blame.
Plaintiffs agree unequivocally with all
observations made in the ‘Pollets Report’ as prepared – not as adapted by the Court. The
report was commissioned by the School’s Board of Trustees, chaired by
Defendant Thornton, who designated members Miriam Brownewall and John
Pollets, Esq. to investigate plaintiffs’ charges and report back.
The
sense of the ‘Pollets Report’ returned on July 11, 1998 is that
Anderson routinely instructed his unwitting subordinate, Beck, to post non
enrollees on Fiscal Year Charter School Claim Forms, thereby
inflating state “tuition reimbursements.” While the report does not
speculate criminal impropriety, its findings are consistent with
plaintiffs’ attribution of fraud to Anderson.
The Court reports that Pollets and Brownewall
fault Beck for “a number of [enrollment] errors,” falsely indicating
that they found Anderson only to have poorly supervised his
error-prone subordinates. Indeed, the
Court places the onus of wrongdoing on Beck: “... Beck did
make a number of errors in the reports prepared for DOE ....”
Pollets and Brownewall actually wrote only
that “Anderson felt that Beck had made a large number of errors ...
and Beck believed that the errors were simple typos ....”
Indeed, the investigators found that Anderson believed that
“...a student was enrolled when an application was accepted and a space
was reserved ...,” even if the “student” never showed. And, that
“Anderson ... made various enrollment decisions that Beck may have
objected to.”
The
Court transforms a report of investigation of fraud alleged against
a defendant, into an “... investigation ... [of] ... allegations
raised by the defendants.”
As acknowledged in the first and third
paragraphs of report – ignored in the decision –
plaintiffs Beck and Young on June 16, 1999 filed
their formal complaint with the Board of Trustees, “... to
investigate statements made by ... Anderson ... blam[ing] [Beck and
Young] for enrollment errors ... in letters to the State Auditor and in
newspaper interviews.” The complainants did not request that the board
“... compare the allegations.”
The Court’s passage turns the Pollets Report
on its head, ostensibly to justify Anderson’s accusations
of error against Beck and Young as “substantially true” – thus not
defamatory – and rationalize dismissal of Count Two.
3. (p. 35) “[M]isuse
of public funds constitutes a public controversy and therefore this
court finds the plaintiffs to be public figures....”
The plaintiffs reject the Court’s illogical judicial notice that
misuse of public funds amounts perforce to public controversy - in
which the plaintiffs participated as “public figures.”
Certainly a purported misuse might become
embroiled in public debate, but only when opposing opinions on
expenditure(s) are publicly contended.
Importantly, “A public controversy is one which ‘affects the general
public or some segment of it in an appreciable way.’”[2]
Plaintiffs’ allegations of Anderson’s fraud
no doubt concerned the staff, parents, faculty, and students of one
public-school. As a group, however, the SSCS community cannot
constitute a slice of the “general public.” High concentrations of youths as students
and adults as teachers differentiate a school community from the
general population. Otherwise, the Cosa Nostra would constitute
a legitimate “segment of the general public.”
Moreover, the record does not indicate that a
public debate on misapplication of public monies at the School ever
occurred, despite the State Auditor’s 1999 report of $47,000 in
“questionable expenses,” nearly $24,000 of which were “relative to
the activities of SSCS’s CEO ...” Anderson from September 1995 through
December 1997.
Moreover, none of the parties to the action
purported in their respective briefs any misuse of public funds
whatsoever. Nothing on record, with exception of the 1990 state audit,
even hints at such wrongdoing. The plaintiffs have consistently
charged that Anderson committed fraud by manipulating student data on
state claim forms, not by misapplying monies howsoever ill-begotten.
Nonetheless, the Court declares the
plaintiffs “public figures” for having participated a groundlessly
asserted “public controversy” over “misuse of public funds.”
Recently affirming
a Superior Court decision in the defamation case Tony Martin vs. Avik
Roy[3]
the Appeals Court acknowledged that had plaintiff Martin not stipulated
he was a public figure – which he did – the Court would have been
obliged to perform an analysis “... to determine if Martin was a
limited public figure, namely, a determination that a public
controversy existed; [if] Martin had injected himself or
participated in the public controversy; and [if] the statement at
issue was germane to Martin’s participation in the public
controversy....”
None of the plaintiffs in Beck v. DOE ever
indicated or stipulated they were “public figures.” And, the Court
never performed the analysis described in Martin v. Roy.
In that enlightening case, a Superior Court
Judge found with specificity that “... a public
controversy existed regarding Martin’s scholarship ...,” identifying
racially related content of a course Plaintiff Martin taught, which, as
documented by Defendant Roy, caused a nation-wide stir and veritable
“public controversy.”
In Beck v. DOE,
by contrast, the Court does not identify one public utterance or
published statement by any plaintiff related to “misuse of public
funds.” But, the Court decrees “... the plaintiffs to be public figures
for the purpose of this defamation action.” [p.35]
Moreover, the several Courts adjudicating
Martin v. Roy observed that the libel Martin attributed to student
reporter Roy was “germane” to the Martin’s controversial rhetoric.
Indeed Roy’s published statements focused on the professor’s
anti-Semitic curriculum.
Martin lost largely because the Court found
Roy’s admittedly damaging statements against Martin were germane
to a public controversy which the limited-purpose public figure himself
had instigated.
Unlike the courts adjudicating Martin v. Roy,
the Plymouth Superior Court did not determine that the defamation
alleged pertained at all to a public controversy into which
plaintiffs had “injected ... themselves.”
The defendants’
damaging and false statements in Beck v. DOE – regarding falsified
reports, threatened students, tapped communications, and stolen data –
cannot be shown relevant to a public controversy over “misuse of public
funds” – nor to controversies over “attendance and curriculum” as
groundlessly alleged by the defendants.
II. Responsibility
of the Public Employer
(p.
42) “Massachusetts General Laws c.2.58(sic)
§10(c) creates governmental immunity for intentional torts. This
immunity extends to cases of defamation ... Therefore, the
Massachusetts Department of Education cannot be liable pursuant to the
plaintiffs defamation claims as a matter of law.” Plaintiffs
concur – and as citizens of the Commonwealth applaud – that Chapter
258 Section 10(c) immunizes the Department of Education for any intentional
libel and slander by its employees.
However,
plaintiffs have not charged DOE with tort.
The state’s Tort Claims Act Section 10(j) [p.
71] allows a claim based upon a public employer’s “... failure to act
to prevent or diminish the harmful consequences of ... tortious
conduct of a third person,” – when either the public employer or
“person acting on behalf of the public employer” had
“originally caused ... the tortious conduct.” [italics supplied] So,
while the plaintiffs do not charge that the DOE itself acted to
defame, they nonetheless hold this employer responsible for the one
and only fault applicable under G.L.c.258: failure to take steps to mitigate
such tort as was “originally caused” by “person[s] acting on [the
Department’s] behalf” – namely, Commissioner Driscoll and Associate
Commissioner Hamilton, who as alleged in the Complaint were advancing
“... the interests of the institution[] they represent.”
When top administrators conspire and act
to “abuse, discredit, and vilify” others – hopefully seldom – then, in
lieu of mitigating deeds, the public employer they represent perforce conspires
to allow “harmful consequences of ... the tortious conduct
of a third person.”
Arson is not at issue here. Putting out
the fire is.
The concept of “original causation” obviously
does not connote actual commission. However, when a “third person”
acting with “tortious conduct” is the same official or officials
“acting on behalf of the public employer,” then the “causation,” the
tortious act itself, and a failure to mitigate tortious consequences,
arguably merge.
The chemicals driving a tortious Mr.
Hyde is the “condition or situation” that Dr. Jekyll “originally
caused,” there being no ‘Who done it’ in a Jekyll-Hyde drama.
While, per G.L.c.258_§10(c), the conspiracy
alleged of the Department cannot be the collusion alleged of Driscoll
and Hamilton to commit tort, however, per §10(j),
arguably it can be their conspiracy to sustain the damage
– i.e., by sitting on their hands and refusing to mitigate damages,
which only incidentally they caused.
Plaintiffs can find no Massachusetts case,
other than their own, in which top executives acting on behalf
of a public employer are themselves cited for unrepentant “tortious
conduct,” so that inescapably, per §10(j), the public employer [i.e., themselves]
failed to “prevent or diminish” tortious consequences. The opinion
rendered by SJC Justice Charles Fried in Brum vs. Town of Dartmouth,
demonstrates the relevance of §10(j) to Beck v. DOE. [pp.63-71]
G.L.c.258 §10(j)
stands alongside §10(c) – cited by defendants and the Court –
and so is not necessarily superceded by it, as defendants argue and the
Court accepts. Importantly, unlike §10(c), §10(j) is not limited to
“intentional tort,” and thus appears to be much broader.
Reasons for Direct Appellate Review
I. Misrepresentations
of the Record
The
undersigned plaintiffs-appellants say there are thirteen gross
misrepresentations of the record in the Court’s Decision and Order of
Summary Judgment. We believe that the three examples included in this
application constitute self-evident judicial fraud.
The
purview of the Appeals Court, as generally limited to determination of judicial
error, not fraud, and the prospect of corruption of a
Superior Court on so large a public issue as charter schooling,
certainly raise, per Rule of Appellate Procedure 11(a)(3), “questions
of such public interest that justice requires a final determination by
the full Supreme Judicial Court.”
II. Responsibility
of the Public Employer
Likewise,
G.L.c.258_§10(j) addresses an
uncommon but so potentially tortious “condition or situation” as
demands adjudication at the highest state judicial level, lest state
government run amuck under ill-intentioned executives acting with
impunity against individuals.
Beck v.
DOE perfectly satisfies the cautionary standard suggested by
Massachusetts SJC Justice Charles Fried in Brum vs. Town of Dartmouth,
to wit, “... we must not adopt an interpretation of [§10(j)]
that construes the words “originally caused” so broadly as to encompass
the remotest causation and preclude immunity in nearly all
circumstances.” [pp.67-70]
Beck v.
DOE addresses tort alleged exclusively of the top executives of a
‘public employer,’ the Massachusetts Department of Education, and
therefore the application of G.L.c.258_§10(j) in our instance does not and
cannot possibly “encompass the remotest causation and preclude immunity
in nearly all circumstances,” as Justice Fried cautions against.
Respectfully submitted,
David
L. Higgs, pro se Rodney
W. Young, pro se
Date: December 15, 2003
Records Appendix
Pages
referenced are printed on the outside margin, up one inch from bottom.
Complaint...............................................1
Docket in Beck et al. v. DOE et al..................... 13
Decision and Order of Summary Judgment................. 21
FBI documents on record before the Court............... 45
Illustration: misquotation of FBI report............... 61
Illustration: misrepresentation of ‘Pollets
Report’.... 62
Excerpts from SJC decision in Brum v.
Dartmouth........ 63
Table comparing Brum v. Dartmouth with Beck
v. DOE..... 67
Diagram of text of G.L.c.258_§10(j)....................71
