-: SJC-13470,
Jane Doe v. Massachusetts Trial Court Department.
-: Okay.
Attorney Gleason, whenever you're ready.
-: Good morning, Your Honors.
Attorney Thomas Gleason, representing Jane Doe.
There are a couple issues here, Judge, Your Honors,
that we're dealing with,
and that is we're dealing with the immunity provision
of the Mass Tort Claims Act, Chapter 258,
Sections 10-J and 10-B.
Relative to the public duty exception,
which is Section 10-J, in my review of the cases,
obviously the cases are many and varied,
and it seems to me that it's a very
factually intensive inquiry
relative to the application of 10-J.
My understanding of it generally,
I'm kind of a big picture guy,
is there must be an affirmative act
which materially contributes
to a dangerous condition causing harm.
So in terms of this situation, Judge,
what we say is obviously in our brief,
we've enumerated a number of what we think
were failures of the trial court, multiple ones.
I do understand.
-: Can I push you a little bit on the facts?
If the trial court is not on notice that he's a groper,
this doesn't meet the affirmative act requirement, right?
Isn't that clear?
Because they may be negligent, but you know,
he's on the hook, but they're not, right, under 10-J?
-: I can't disagree with you on that, Judge.
I think that there are numerous incidents here
of what we would would call,
plaintiff would call negligence.
-: Let me just press you again one step further.
So that means the 2009 groping incident,
they can't be responsible for under 10-J, correct?
-: Other than the statute of limitations, of course as well.
We're not claiming that, but I would agree, Judge.
-: There's no prior indication of any groping
before 2009, right?
-: There is not, Judge.
-: So your 10-J argument only potentially
is applicable to the 2014 incident
after the 2013 groping incident,
right? -: Correct,
and why we say, Judge, factually that we think
that there's enough evidence to prove notice
to the trial court.
Justice Kafker: I was gonna get there.
Go ahead.
-: I think it boils down to a number of different things.
Is number one, we have a plaintiff
who's gonna get some credibility,
because relative to the 2014 incident,
at least one aspect of it,
probably the most serious aspect of it,
there doesn't appear to be any dispute
that she was removed from a cell,
taken to a room that was not accessible to the detainees,
go in through a locked door,
where she says there was sexual contact.
That's admitted. -: I think on the facts,
this is an immunity case, but on the facts,
you have a very strong case,
as far as the court officer goes.
-: Correct, but I think, Judge,
putting it all together for you,
is that first you have somebody who has some credibility.
Number two is you have proof, independent proof.
I don't think it's a disputed fact in this case,
is that she did give notice to New Hampshire in 2009
that something
had happened to her. -: But there's no indication
they've communicated any of that
to the trial court, correct?
-: No, I would disagree with that, Judge.
I think that's the second part,
that we know that she communicated it to New Hampshire.
The third part of it is, and very frustrating
in a situation like this, Judge, is during discovery,
of course, as you might imagine,
one of the areas of inquiry we had was,
is did the trial court know about the 2009 incident?
Did you get notice?
Did somebody tell you?
Did New Hampshire tell you?
And the responses that the plaintiff received was,
is that there was no information concerning that.
There was none forthcoming.
No incident report, no knowledge.
The depositions that were taken
didn't prove fruitful in that regard.
-: But doesn't that hurt you?
I'm confused by that.
That's not helpful to you.
-: It's not helpful to us, Judge,
until you get to the very last deposition that I took,
and that if you look at the deposition of,
and it's in the materials,
and that is the deposition of
the deputy director of security.
He indicates, and this is at the appendix
at 778 through 781, one of the final questions I asked
to the final person I'm deposing is
did the trial court know anything about a 2009 incident?
And what he reports at this point in time is he says
that he just had a conversation with somebody I had deposed
two days earlier, who was the regional director of security,
who told him that there had been an incident in 2009,
and gave some specifics,
that it had been investigated by the police,
that it involved something that happened in an elevator,
and that it had been unsubstantiated.
-: I think that's the 2013 incident.
-: No, this is 2009, Judge.
-: I thought the unsubstantiated one was the 2013,
July, 2013.
I may be confusing them.
As I read Judge Lou's findings in what the defendants say
is that the 2000 and the prior one reported to New Hampshire
was not for whatever reason transmitted to the trial court,
and then there was a July, 2013 complaint
against the court officer, and that was unsubstantiated.
Am I getting that wrong?
-: There are two separate incidents, July 13th.
I don't know.
The security people that I deposed, they had some knowledge.
-: I didn't read the depositions, and you were there,
so I don't know if I'm getting it wrong.
-: Yeah, a little bit off, Judge.
The 2013 incident, there was no incident report filed.
One of the court officers that we deposed,
the assistant chief court officer recalled
that there had been a complaint,
and it actually was a police officer from Lawrence
came to the trial court and said,
"Somebody came into our department
and complained about this."
Apparently, there was no investigation,
there was no incident report.
-: But that's
the 2013 incident. -: Correct.
On the 2009, is that this last deposition that I'm taking,
and it's that at the appendix at 778 to 781,
is this witness, who is the deputy director of security,
said that the regional director of security
had told him a week before his deposition
about the fact that there had been a 2009 complaint
that was made, that it was investigated by the police,
that it was unsubstantiated, it involved an elevator,
and a specific question that I asked was,
because frankly, I'm real surprised at this point
that I've received no information
that they know anything about it,
and then this very last witness is saying this to me,
is that this witness, I would ask the question,
"Well, do you have any information,
did he tell you anything about New Hampshire,
informing you of this or informing the authorities of this?"
And this person confirmed, "Yes,
that's what the regional director of security told me."
-: Is this in your brief anywhere?
I read the excerpts at 718.
I may have missed the 780.
You sure it's 780 as opposed to 718?
Because I'm looking at the actual deposition excerpts
on page 718, and there's, I'm reading the wrong ones?
-: 778 to 781, and I do site it in the brief, Judge.
-: Attorney Gleason, could I just ask you about the 2009?
Because I'm slightly confused as to whether or not
this really helps you or hurts you.
But even if all of that is true, if at the end of the 2009,
whatever investigation was done,
that it was unsubstantiated,
does that help you with respect to notice
for the trial court?
-: I think, Judge, that the focus here that we have
that when I'm looking at this immunity issue
in trying to sign a specific type of negligence
that involves an affirmative act is one of the requirements
under PREA, and one of the requirements
under the policy manual is the requirement that there be
the filing of an incident report.
That triggers a whole bunch of things.
It's something that technically will get distributed
to other people within the trial court.
It triggers an investigation,
it triggers all kinds of things where it gets out there
into everybody's knowledge.
Technically under the rules of the policy manual,
in certain circumstances, in serious cases,
it goes to the justice in the court.
-: I'm sort of confused by that, Mr. Gleason.
First of all, I thought the Federal Rape Elimination Act
issue, putting aside whether it's been adopted
and what Massachusetts has to do
to be able to receive the 5%, put aside all those issues.
I thought that went to the 10-B issue.
I don't see how this issue helps you on 10-J,
whether there was an affirmative act
that would constitute liability
when the action is being taken by a third person.
How does the Federal Rape Elimination Act
help you in any way with the 10-J issue,
as opposed to, at least theoretically,
I understand how it helps you with the 10-B issue.
-: Our theory on the 10-J issue is that,
generally speaking, is that Mr. Martinez
should not have had any access at all to my client.
Based on the circumstances,
if the trial court. -: Is that an affirmative act?
I think it's hard, but how is that an affirmative act,
as opposed to not doing something?
Justice Georges: Or the original cause?
-: Yeah, even better, or the original cause.
-: Well, I think it's an affirmative act,
because it's in the spirit of the cases that I cited,
Bonnie, Baptista and Devlin.
In those cases, basically what happened
is that there was some act by the government
whereby individuals were allowed into areas
where they shouldn't have been,
and by that act of allowing that person into those areas,
that's what creates the dangerous condition.
Other than the areas of where we say it's deficient,
there's nothing really wrong with the Lawrence lockup.
What's wrong with it is when he's allowed access to it.
-: How is this different than the school bullying case
that we had where the school let the bully on the loose
and the poor kid was thrown down the stairs?
-: Is that Brum, Judge?
-: Cormier. -: Cormier.
The difference is that, as I understand that case,
is that I believe it was a young child
who was pushed downstairs and received some tragic injuries.
There had been some general notice of bullying,
but I don't know that there was ever,
I don't recall that there was specific notice
that the individual that pushed the child had pushed,
had any notice about that individual child.
-: So your argument is that the original cause
is the lax trial court practice, not the rapist CO,
essentially?
-: I'm sorry, I misunderstand, Judge.
-: The original cause, to get under J,
the original cause of the harm to your client
has to have been the failure of the trial court
to supervise this person, having notice.
-: You know, I wouldn't put it that way.
I think that the affirmative act is.
-: Using the original cause language,
how would you put it, Mr. Gleason?
-: The affirmative act is first,
is the enormity of this situation.
We know my client made the accusation,
confided in the New Hampshire authorities in 2009.
We know that.
And then a few years later,
here she is in the same position again,
and who is it that's taking care of her
and supposedly safeguarding her in a situation
where she's detained and helpless
and shackled and handcuffed and in a cell?
It's the same individual she complained about.
So the affirmative act is that we say
that the trial court had notice
and they nevertheless acted.
They allowed this person to continue to be in that area,
be in the lockup, be in the position
where he could open the cell door,
where he could take her out of a cell,
where he could bring her to a room, a private room,
enter a locked room,
and where he could sexually assault her again.
-: Attorney Gleason, I know you know this record,
and we're gonna pour into it after the fact,
but those two things, I just want to make sure
I understand what you're saying.
So first you are saying in the record,
the 2009 complaint to the New Hampshire authorities
was communicated back to Massachusetts.
-: Yeah, let me be specific, Judge.
At the appendix at 778, 781.
-: Can you read us the relevant portion of that,
because for some reason, I can't pull up that page.
-: My understanding of, and again,
you know it better than I do, that neither of the complaints
to New Hampshire were communicated back to Massachusetts.
-: That's true based on the record, Judge.
There's nothing in the record,
other than what I'm gonna read to you,
that New Hampshire was ever notified.
-: But this is Massachusetts. -: Right.
-: Okay, what are you gonna read us?
-: It's a little bit lengthy.
-: From what I understand, it says New Hampshire
told some unspecified Massachusetts authorities about this,
but not the trial court in particular, right?
-: It didn't say the trial court in particular.
It does say, a portion of it, and this is at page 779,
appendix 779.
"Question, did he mention the New Hampshire authorities?
Answer, he mentioned something about somebody
up in New Hampshire.
He didn't say who, just New Hampshire.
Question, did he say that New Hampshire
had alerted the Massachusetts authorities
to something that had happened in the Lawrence lockup?
Answer, yes."
And it goes on.
-: I mean, not to state the obvious,
but we need to know who that Massachusetts authority is
for you to get into the affirmative act.
-: For summary judgment purposes.
-: You call the police, right?
They may have decided it was junk,
but you need to show, right,
that for this to be an affirmative act,
you need to demonstrate that basically they knew
of his past practice of groping
and put her in front of him.
You need that level of knowledge
for this to be an affirmative act.
Otherwise, it fits within the negligence
that they're protected against,
and you could only sue the court officer himself, right?
-: I would disagree, Judge.
That fact that I can add for you is on,
because it says what it says,
and that's the evidence that we have.
But what I can add for is maybe just the blatantly obvious,
is that the information that this is being reported
to New Hampshire is coming from
the regional director of security for the mass trial court.
I think putting all of those things together
as circumstantial evidence.
-: But years and years later,
while he's preparing for his deposition, right?
Where he's trying to, it's a little different, right?
He may have heard this as part of.
-: Let me add one other thing, Judge.
Two days before I deposed him,
the regional director of security, I asked him,
"Do you know any information about a 2009 incident?"
The answer I got was, "No."
So I think circumstantially,
when you put all of that together,
do we have enough to get over the bar of summary judgment
looking at a light most favorable to the plaintiff,
and do we have potentially preponderance of the evidence?
I think the trier of fact could conclude,
could very well conclude on this evidence.
Trial court knew.
I don't know, I'm way over.
Unless the court has some further questions.
-: Is there anything in the record indicating
whether you had a follow-up deposition
with the person you now are saying lied to you?
-: No, that's the last deposition that I took,
was the individual who said he had the conversation
that I indicated to.
-: Was there something that precluded you from going back?
-: I'm not sure whether we were running up
against a discovery deadline or not, Judge.
I don't know.
-: But you didn't ask for an extension, for example,
of any deadline.
-: No, I did not ask for any extension.
At the conclusion of this deposition
of the individual who told me this right at the end,
and council and I had some words about it,
is that I did leave it open.
I didn't conclude the deposition,
but other than that, there was no other follow up.
-: Okay, thank you. -: Thank you.
-: Okay, Attorney Ernst.
-: Thank you, Madam Chief Justice.
Good morning, Your Honors, and may it please the court,
Ben Ernst on behalf of the Trial Court Department.
With me today is Assistant Attorney General Dan Cromack.
The actions of former court officer Martinez are horrific,
indisputably horrific, but as awful as those actions were,
superior court here correctly concluded
that the negligence claim against the trial court
for failure to prevent those horrific acts
is barred by sovereign immunity.
I'd like to start, if I could, with 10-J
and the questions that were being addressed to my brother.
-: Particularly, it would be helpful if you addressed
this back and forth about 781.
-: Certainly, Your Honor.
This confusion is nothing more than confusion.
It was undisputed for the purposes of summary judgment
that the trial court had no knowledge,
tragically had no knowledge of these 2009 or 2014 incidents
until April, 2015.
I say tragically because they were bravely reported
by Misto in 2009 to New Hampshire authorities,
who failed to transmit that report to Massachusetts.
-: How do we know?
Go ahead.
Justice Wendlandt, go ahead.
-: On 779, it does appear that there is testimony
to the effect that there was knowledge
of some Massachusetts authority and an investigation done,
and that is part of the record.
I'm wondering if that's true, how it's possible
that it's undisputed that until April, 2015,
the trial court had no knowledge.
-: Let me address that specific confusion.
In this deposition that was discussed
in my brother's argument,
Mr. Connolly is asked the question.
I think the back and forth begins with the question,
"Other than the 2014 incident, sir,
are you aware of any other incidents
involving Mr. Martinez?"
And he says, "Well, I heard as part of my preparation
for this deposition that there was a 2009 incident.
I wasn't aware of that before."
He's referring to the 2009 incidents at issue in this case,
and what he's referring to is the fact
that those incidents occurred, not that the trial court
had knowledge of those incidents prior to 2014.
I think that's absolutely clear from the record,
which admittedly is a bit confusing,
but you can look at the testimony.
He says, "I spoke with a colleague of mine
who is also being deposed, Mr. McPherson.
We were chatting, and I said, gosh,
I never heard about these 2009 incidents."
-: What about the July, 2013 complaint by another detainee?
-: That complaint was investigated
by the Lawrence Police Department,
and what the record shows is not only was the complaint
investigated by the Lawrence PD,
but the trial court assisted with that investigation,
including by pulling and reviewing
the available security footage of that incident.
Based on that investigation,
the complaint could not be substantiated,
and when we don't have a substantiated complaint against
Mr. Martinez in 2013. -: The 2013 incident
says that the groping happens after he leaves,
after she leaves the elevator, right?
-: That's correct, Your Honor.
-: And the video is of the elevator.
I read also the police report goes further
and says that there would be people
standing outside of that area.
Is that what we should rely on?
It's just, looking at an elevator video
when you know that the groping occurred
after he left the elevator isn't that helpful, is it?
-: What I would say, Your Honor,
is that the trial court assisted
the Lawrence Police Department in the investigation.
They were asked to pull the video.
My understanding is they pulled what they had,
and when they reviewed that video,
that video didn't help substantiate this complaint.
But the Lawrence Police Department
was running the investigation.
-: Your position is, when we look thoroughly
through this record, the only thing we're going to find
as far as prior knowledge of anything amiss with Martinez
is this July, 2013, another detainee investigation
that was unsubstantiated.
Ben: That's correct, Your Honor.
-: That's your position? -: It is,
and I'd like to point out that.
-: If we don't agree with you
and we find that there is notice,
does that preclude your 10-J defense?
-: I don't think it does, Justice Gaziano,
and that's the point that I'd like to address now.
I think this court has shown in decisions like Brum
and decisions like Cormier,
that mere knowledge of a dangerous situation,
even extreme knowledge that a student is going to be stabbed
that day in your school, that knowledge alone
is never enough to transform a failure to act
into an affirmative act.
-: Except here we're putting,
the trial court is putting this known dangerous person,
assuming the record substantiates that,
in charge of an extremely vulnerable person.
I don't understand why that's not an affirmative act
that really is actually creating the condition
that caused the harm.
-: To answer your question,
and not to fight your hypothetical,
but of course that's not our case.
-: We'll go back in the record. -: Even if it were the case
that the trial court did have knowledge,
you would still need to identify an affirmative act
that materially contributed,
and here there's no record evidence
that Mr. Martinez was directed to engage with Ms. Doe.
-: They don't have to go that far, right?
If the trial court knows he's sort of a serial groper,
or even knows he's groped a detainee in the past
and then they put him alone with a female detainee,
isn't that enough to get to the affirmative act exception?
-: It very well may be.
That hypothetical scenario, Your Honor,
which is not this case.
That very well may be.
-: I get it, if they have no notice,
it's not an affirmative act, but if they do have notice,
it may very well be an affirmative act, right?
-: Right, and I think the Bonnie W. cases illustrates this,
and Bonnie W., what this court held was that there was no
10-J barred the claim
that was solely based on a failure to supervise.
But because the parole officer in that case
had knowledge that the individual was dangerous,
he knew that he was a sexually violent person.
To take that knowledge and then affirmatively recommend
to the trailer park where he was employed,
you should continue to employ this person.
That's an affirmative act, and it's enough to meet
the material contribution standard
because of that knowledge.
The reason why our case is distinguishable
is because we don't have that knowledge
and we don't have an affirmative act.
-: If he did have that knowledge, would you still have
the discretionary function available to you?
-: We would, Your Honor, and I'm happy to address 10-B.
-: One last question on the 10-J before you do.
This 2009 complaint, assume for the sake of argument
that there's enough specificity to say
that that could be localized back to the trial court.
I thought there was an investigation
and they found they couldn't substantiate that complaint.
Am I wrong about that record?
-: As a factual matter as to the 2009
and the 2014 allegations, it's possible that that testimony
refers to the criminal proceedings against Mr. Martinez,
who immediately after the 2014 incidents,
which were reported to trial court, learned about them,
this individual was no longer employed by the trial court.
He was criminally prosecuted.
-: I'm just speaking about the 2009 complaint
to the New Hampshire authorities
and what happened with that complaint,
if that's in the record.
My memory was that it was investigated
and they didn't find anything.
-: I don't believe that's correct, Your Honor.
I think that what the record shows
is it was simply never transmitted
to a Massachusetts authority,
and this was part of the civil case
that appellant brought against that New Hampshire prison
for failure to transmit that report.
That case ended in a settlement with the prison.
Justice Georges: Thank you.
-: On 10-B, is it your argument
that our failure to implement PREA
takes us out of discretionary function?
-: It does not take us out of discretionary function,
because PREA at the time, both in 2009
when there were no PREA guidelines
and in 2014 when there were PREA guidelines,
but Massachusetts, the Commonwealth,
had permissibly submitted an assurance
that says we are working toward it,
that Massachusetts and along with 41 other states
in the nation had submitted that assurance.
So PREA didn't prescribe any specific course of conduct,
either in 2009 or in 2014.
-: It has to be a statute of regulation
or established practice that we failed to follow,
and you're saying that because we hadn't fully adopted PREA,
there's no standard, so anything the Commonwealth did
was discretionary.
-: That's right.
At step one of the analysis, Your Honor,
we would say that there is no statute of regulation
that strips us of our discretion,
and the trial court maintains great and weighty discretion
to implement security policies throughout the trial courts
and the Commonwealth
to protect people visiting the courthouse,
to protect detainees, to protect judges.
-: Including a failure to use same gender matrons, et cetera.
-: Right.
So the policies which are in the record,
the policies that were in place,
which are in the record in this case,
don't require that every single instance
when a female detainee is transported,
that she be transported by another female detainee.
The record is quite clear about why that's the case.
These policies were the product
of a deep deliberative decision making process.
There's a policy committee.
That policy committee is listed
in each one of those policies.
The policies are put together by the committee,
and what are they doing?
They're weighing alternatives.
They're weighing the resource constraints
that the trial courts have and making those tough decisions.
That's the core of what 10-B protects.
It's the core of what the Whitney case said.
We shouldn't be questioning those judgments in a tort case,
because of the deleterious effects
that that could have on the process.
-: Could you answer Justice Wendlandt's question
about the relationship between the discretionary function
and the affirmative act?
If there's knowledge that he's a groper,
even though the overall management of the courthouse
is a discretionary function,
that doesn't protect you, does it?
He'd still have the affirmative act.
I'm trying to understand the relationship,
just because it doesn't meet the,
just because the PREA, whatever it is,
doesn't satisfy the discretionary function issue.
There's still this affirmative act avenue
if you have knowledge, right?
-: I would agree that the immunities in Section 10
operate independently of one another.
-: If he doesn't satisfy the 10-B requirements,
that doesn't protect you from the issue under 10-J, right?
-: Right, and put another way, Your Honor,
if 10-J bars this claim,
it doesn't matter whether 10-B applies or not,
and vice versa.
If 10-B bars the claim. -: But you have to establish
either 10-B or 10-J. -: That's right, Your Honor.
That's correct, Your Honor,
and that comes from this court's decision in the Brum case.
-: I want to follow up on that,
because he's got different theories of liability.
He's got the liability theory,
look, you should have been doing what PREA is doing,
but he also has a separate theory of liability,
which is you knew he was a groper
and you put him with her.
Just because the PREA stuff doesn't get you,
just because he doesn't meet that prong, he can still,
that doesn't protect you
from the knowing groper issue, does it?
-: I would cripple with that. -: I don't mean,
I don't know the answer.
It's a question. -: Certainly, Your Honor.
I would just tweak the framing there,
and what I would say is I do believe
that the appellant's claim in this case
was predicated on alleged failures
of the trial court to act.
What failures?
It was consistently throughout the case, in discovery,
in the complaint stage, it was a failure
to implement particular security policies,
failure to design security policies
that could have prevented these assaults.
And so while there is this allegation now on appeal
that an affirmative act here
was the failure to remove Mr. Martinez,
that's always throughout the litigation been cashed out
in terms of you ought to have had a different type of policy
that would've allowed you to earlier detect
Martinez's behavior or take him out of the equation.
-: But if you had a cause of action that made it clear
that we are not alleging anything wrong with the policy
in this particular count of the complaint.
What we are complaining about here
is that you affirmatively caused this.
10-B doesn't prevent the cause of action.
-: I would agree with that, Your Honor.
If there were two distinct theories of negligence,
there's a scenario in which you could imagine
that one of those theories surviving, even if 10-B applies.
-: That's not clear in this complaint from your perspective.
-: It's not clear in this complaint,
it's not been clear in discovery,
and I would also say it's never been raised by appellant
at any stage in this case, least of all on appeal here,
that there's some slice of the theory
that should survive even if 10-B applies.
I see that I'm close to out of time,
and if there are no more questions, I'll rest on the briefs.