-: SJC
13558.
George Mackie versus Robert Joss.
And SJC 13554,
George Mackie versus Katrin Rouse-Weir.
(door closes)
-: [Justice Wendlandt] Okay, Mr. Mackie,
you're up first.
George Mackie: May I please the court,
my name is George Mackie
and I'm a pro se litigant,
in both cases.
I am here to say that neither Dr. Joss,
nor Dr. Rouse-Weir should be entitled to any
type of immunity whatsoever.
There were violations of the statute and common
law based on the contents of both reports,
and the statute does not
specifically state that they're entitled
to immunity and whereas, the qualified examiner
is only qualified through the Department
of Corrections, which is
an executive
entity crossing over into the judicial,
I believe violates Rule 30,
due to the fact that the only way
a qualified examiner can be qualified
is through the Department of Corrections.
In the case of Dr. Rouse-Weir, she was hired
by the Worcester County District Attorney.
Now, that particular portion
of the statute is not a requirement for
determination of SDP, that is based,
be on the fact of the district attorney
wanting to look at that issue.
As far as, Dr. Joss, his immunity should not
be allowed based on the fact that,
again, he is only qualified
through the Department of Corrections.
Both reports, again,
make inferences to non-convictions,
which is the reason I'm able
to speak to you here today
because the decision as SDP was overturned
by the appeals court.
The DA could have hired any psychologist,
you know, to present information.
They did not, they chose to
hire a qualified examiner qualified through
the Department of Corrections.
The qualified examiners also serve
as on the CAB board for the Department
of Corrections, which is, outside the realm
of any judicial inference, allegedly.
So therefore, another conflict.
Justice Kafker: So if the qualified
examiner doesn't find the person
sexually dangerous, the case ends.
George Mackie: Correct. -: So they have
a sort of a finality role as well
in the judicial process, it's quite unusual.
-: Yes, however, as in my case with Dr. Joss,
after the appeals court overturned
the decision of SDP based on use of
non-convictions,
we'll say, the next two QE's that
I interviewed with
found me not sexually dangerous based
on the appeals court's decision as far as,
what can and can't be in these reports.
Dr. Joss has also made other errors
in other cases, as I stated in the brief,
Dr. Rouse-Weir removed 27 paragraphs
of information after an interview.
Now, in the defendant's
brief, they claim that, you know, Dr. Rouse-Weir
was acting on behalf of the court
and as an expert witness and based
her information on,
I don't wanna say, an interview,
based her information on an investigation.
However, that investigation does not
include an interview, it's all
done through documents.
On the advice of my counsel, I did meet with her
and that's when those 27 paragraphs were removed.
-: [Justice Wendlandt] So I have a question
about that. George Mackie: Okay.
-: So she removes the 27 paragraphs,
but still concludes the same conclusion.
George Mackie: Correct. -: How then,
I guess, I'm wondering, you know,
what your claim is as to the 27 paragraphs
like you know, that she misstated
but how did that affect you?
The removal of the 27 paragraphs?
-: I believe that she saw that as possible...
what's the word I'm looking for?
-: [Justice Wendlandt] Exculpatory?
-: Exculpatory evidence.
So if she removed it, she didn't have
to testify to it because she said on
the stand that she never saw it.
However, if it was there in the second report,
my attorney could have questioned her on,
"Well, isn't it true that this didn't happen?"
Or, "How do you think this could happen?"
And again, it's all based on information
that I was never convicted of.
And in re-Redgate, and I don't have the address
in front of me, it does say, qualified
examiners cannot use information that you
were not convicted of.
And both of these, Dr. Rouse-Weir
and Dr. Joss based their decisions on
that kind of information.
Whereas, the two qualified examiners that
found me not sexually dangerous
based their decision on, you know, the fact
that I was never convicted of those.
I do have some other notes here as far
as in Dr. Rouse-Weir's information,
the argument by the defendants that
I did not provide information in my original
complaint that allowed the judge to
dismiss under Rule 12(b)(6), I believe there
was sufficient evidence, especially, in the
removal of 27 paragraphs and,
you know, other information as far as,
what she did and did not do.
I did present facts in evidence form
to prove those allegations that I made.
I already said that.
Oh.
Okay, there's a thing on page 27
of the Rouse-Weir brief that states,
although, a psychiatrist in Luan was appointed
by the probation department and not the DOC,
the appeals court errored in both Mackie,
but however, the probation department does not
qualify, people who are allowed to testify
at SDP cases, the probation department,
you know, they pick the psychologist,
but not from a small group of individuals who
are qualified by the Department of Corrections.
And in the case of Dr. Joss,
where they say on page 23
that the courts
allow E.N Chapman explicitly recognize that QE
serve as though appointed by the court.
The statute is interpreted way too overbroad
in that situation
because nowhere in the statute does it say, any
of them are, you know, appointed by the court.
I'm sorry, please just...
trying to get through all my notes here.
Okay.
Both decisions by Rouse-Weir and Dr. Joss
are in conflict with the diagnosis
of a pedophilic disorder and violated my right
to liberty and due process.
Therefore, if any immunity was entitled, it would
be abandoned due to the constitutional violation.
You know, that's if any immunity, you know,
I mean, in the case of Annie Duke
and Farouk and I believe the district attorney,
all of their immunity was wiped out
because of the violation of the statute
in the drug cases.
And I think there was an issue raised
by the appeals court,
I believe I found a case that said that,
if it's a criminal case or a civil case
and there's nothing to cover one or the other,
the general principle is that the
common law would decide, it would be equal.
In other words, the civil law would cover
the criminal law, the criminal law would
cover the civil law.
And I believe I put that in my brief.
I don't know if this is a correct time to do
this or not, but I would like to object to
the presentation of the Department
of Corrections amicus brief based on
the fact that it parallels the defendant's
brief of itself, there are similar case laws
used to make certain arguments in both issues.
And in saying that, I would also like to
object to her testimony here today.
Okay, I don't know if I have to do that
in writing or I can do it before or after
or how that works, but I'd like to make
that known, are there any questions?
-: [Justice Wendlandt] I think we're all set.
-: All set? -: [Justice Wendlandt] All set.
Thank you. -: Okay, thank you.
-: [Justice Wendlandt] Okay, Attorney Walton.
-: Thank you, may I please the court.
My name is Ken Walton and together with my
partner, Patricia Gary, we represent
Dr. Robert Joss, Dr. Katrin Rouse-Weir.
And initially, your honors, I'd like to point
out that we have agreed to split our time
with attorney Mary Murray
of the Department of Corrections.
So if it's okay with the court,
I'll stop at the 10 minute mark and answer
any questions and then turn it over
to Attorney Murray.
As set forth in the brief, I think there
are numerous independent grounds supporting
the Superior Court's dismissal
of the lawsuits against both Dr. Joss
and Dr. Rouse-Weir, both of whom,
who have performed the important function
of a qualified examiner in the Commonwealth,
Dr. Joss for over 30 years, Dr. Rouse-Weir
for over 25 years.
Initially, I'll start with the Rule 12(b)(9)
standard, which this court has articulated
in the Lanier case, in the Sachs case.
And then of course, the Encino case by
the Supreme Court of the United States.
Every plaintiff, whether they are represented
or pro se, has the obligation to set forth
a clear statement of their case with,
to quote, "plausibly suggesting
an entitlement to relief."
Justice Gaziano: So the issue in this case
is this kind of hybrid model, because clearly,
they're paid for by the DOC
and similar to that of a expert witness hired
by the government in say, NGI,
a criminal responsibility case.
But they are also, statutorily appointed
or mandated and you can't get a SDP case
without two QE's and you need at least one.
So where does that fit the role of the QE
given the payment structure
and the statutory role of a QE?
-: Thank you, your Honor.
So on that question, in this case, to be clear,
Dr. Joss was a QE, that was his job.
Dr. Rouse-Weir was hired by the District
Attorney's Office to assist with the probable
cause procedure or hearing that precedes
the actual former hearing.
But I think it's important, and this court
articulated it in the Bruno case, that both
of those roles are statutorily required.
Now, is the district attorney's
retention of an expert
articulated explicitly in the statute?
No, it's not, however,
it is a necessary element for the district
attorney to be able to get over the probable
cause standard, they need that expert witness.
So the Bruno case was very clear on that point,
in my opinion, on saying that you need both
of these things for the district attorney to get
through the probable cause finding.
-: [Justice Wendlandt] But the difference between
the two is that the QE, regardless of
the outcome of their investigation,
and whether they conclude that the person
is an SDP or not, must submit that report
to the court, whereas, the probable cause expert,
the DA can keep hiring whoever they want to
until they get somebody who will say,
"Yeah, this person's an SDP."
-: That's very true.
-: So that makes them different in kind to me.
So the QE seems more like in a court appointed
expert because you, the DA don't control
whether that report comes to the court or not.
-: I think that that distinction is true,
however, the immunities that provide expert
witnesses, immunity, not only in this context,
but in really any civil case or criminal case.
Because if you have a case going to trial
on the civil level or the criminal level,
you're going to have two experts.
They are going to have two different opinions,
that's just the nature of the beast.
So if the new standard is that you can sue
an expert because you don't like their opinion,
because you don't agree with their opinion,
then the floodgates will open because in-
-: So are you arguing litigation privilege?
-: I have multiple arguments starting
with the qualified, I would argue, your Honor,
to start with the qualified judicial immunity
that they're entitled to because I-
-: But why is the probable cause expert
entitled to quasi-judicial immunity?
-: And this actually rolls into
the prosecutorial immunity, which is also,
argued in the brief because they are serving
as an arm of the prosecutor.
-: Okay, so not quasi-judicial,
but prosecutorial immunity? Attorney Walton: Yes, yes.
-: Okay, so Dr. Rouse-Weir might be entitled
to prosecutorial immunity,
how do you get around the Kalina case?
-: Well, the Kalina case is all about
whether the witness is a complaining witness.
That's the standard.
And what happened in that case,
the district attorney filed a application,
he filed an affidavit basically, with factual
allegations that the court said, you know,
this isn't even necessary for this filing
by a district attorney, it's unusual
for the district attorney to file this type
of affidavit with factual statements.
So really, he took himself out of the role
of a district attorney and became-
-: Just to clarify 'cause you are more
familiar with this than I am,
but I thought Kalina was about
the necessity of the prosecutor being
the signatory to the affidavit, not whether
or not, the affidavit was required at all.
It seemed like there needed
to be an affidavit, right?
Attorney Walton: Correct. -: Okay.
The role of the prosecutor as the signatory
to the affidavit, that was problematic?
Attorney Walton: That's correct, your Honor.
-: So why isn't that more like Rouse-Weir?
-: Because in Rouse-Weir, as I mentioned,
the Bruno case requires experts for these
two roles, the DA needs an expert
or they don't get by the probable cause hearing.
It's a necessary prosecutorial function.
Justice Gaziano: Do you separate
the prosecutorial function
by whether or not, there's a court role
versus an investigative role?
For one, if you act like a cop,
you get sued like a cop.
That's how I was always told.
Attorney Walton: Yes.
-: And cops only get qualified.
-: Right, because of the investigatory.
-: And Your Honor, I apologize,
if I missed your question.
-: No, so the question is, when we look at
Rouse-Weir, under prosecutorial immunity
isn't the issue of whether or not,
she's fulfilling a court role,
she's testifying in a probable
cause hearing, right?
-: Well, I think that the standard
for prosecutorial immunity or the best case
on that particular issue is the CM case
by this case, by this court, excuse me,
where the court held that absolute prosecutorial
immunity protects the social worker
initiating a care and protection proceeding.
And that case is almost identical procedurally,
I mean, you know, you change the names
and obviously, this involves doctors
and that involves the social worker,
but it's right on point.
-: [Justice Wendlandt] But Rouse-Weir didn't
initiate this proceeding, she was an expert
on behalf of the Commonwealth
that initiated the proceeding.
-: I agree, but her role,
the proceeding never could have gotten
to where it got to. -: Yeah, the Commonwealth
couldn't meet its burden of proof without her.
-: Right, which wraps her-
-: And so any evidence submitted to meet
the burden of proof is
immune under prosecutorial immunity.
-: If it's done in good faith, I mean,
an expert- -: If he alleges,
it was malicious, not in good faith.
-: But what I would say to that is,
there are no allegations to support that.
If you're gonna make an allegation against
somebody, a professional, and say,
you did something malicious or intentional,
then you have to come up with more
in your complaint or somewhere to support
those allegations, in saying that
Dr. Rouse-Weir because she allegedly...
she says, she didn't, but I'll accept
that is true for here because that's
the Rule 12(b)(9) standard.
If she deleted 27 pages,
we all write expert reports
or experts write expert reports.
Sometimes, they add information,
sometimes, they take information away.
I'm sure Your Honor's write opinions where you
add parts and you take parts away.
There's gotta be more to rise to the level
of allegedly bad conduct by a professional
than what's alleged in this case.
-: So I was a little confused by that
because I thought you were arguing absolute
immunity, which doesn't matter,
if it was good faith, bad faith,
maliciously, intentionally, it doesn't matter.
Now, it sounds like your move to qualified
immunity, in which those kind
of things do matter.
-: Well, what I was getting to is that
in my view, all of these immunities,
not every single immunity that exists,
but the ones that we've talked about
in our brief, they are all independent grounds.
So the court may not agree with me on one
of the immunities, but there's another
immunity exists so that was the next argument
I was gonna make, which is, absolute immunity.
In this court in the Schreiber case,
I wrote this quote down exactly because I think
it applies exactly, held that statements made
by a party counsel or witness in the institution
of, or during the course of a judicial
proceeding are absolutely privileged
and protected, provided such statements
relate to that proceeding.
-: Now, that was my question to you initially,
which is, you know, are you arguing litigation
privilege, which is what that Schreiber
case is all about, it sounds like, yes, you are.
Attorney Walton: Yes. -: And was that an argument
that you raised below?
-: We did not raise that below-
-: [Justice Wendlandt] Given that posture, what do we do?
-: Well, I think the Gibidian case also,
by this court says that it is well-established
that on appeal, the SJC may consider any ground
apparent on the record that supports
the result reached in the lower court.
That's the case I would cite too.
The lower court got it right,
they reached the right result,
they did not address and perhaps, counsel
did not address every single immunity that
is now discussed in our brief.
And you know, that's obviously, a very legitimate
question, but I think the Gibidian case saves it.
And I would conclude, just 'cause I don't wanna
cut off Attorney Murray that I do believe
all of these immunities that are discussed
in our brief and the 12(b)(9) standard
provide independent basis
to support the lower court's decision.
Before I sit down, are there any more
questions for me, Your Honors?
Justice Budd: I don't think so.
-: Thank you.
-: And Mr. Mackie, I think you were asking
your motion was for Attorney Murray not to-
George Mackie: Testify. -: Okay.
I'm going to deny that motion. George Mackie: Okay.
-: Good morning, and may it please the court,
Mary Murray for Amicus Department of Correction.
Thank you for extending the invitation
on our motion to be permitted to argue.
Two grounds in the Joss case
support affirming the superior court.
First, I'll pick up with the litigation
privilege, the litigation privilege applies
regardless of malice,
bad faith or nefarious motive according
to the facetious decision cited in the
department's papers, 490 Mass at 150,
Judge Donatelli in the Superior Court,
in her opinion, appears at page 53
of Amicus brief, in footnote four indicates
that it appears Dr. Joss's statements
in the SDP probable cause hearing and jury trial
are protected by the litigation privilege.
So she, Judge Donatelli herself
raised that issue, the litigation privilege
of course, protects all of the witnesses,
lay witnesses, expert witnesses,
the parties and counsel.
Otherwise, where would it end, if Dr. Joss
and Dr. Rouse-Weir are unhappy with the outcome,
if they prevail, can they turn and sue
Mr. Mackie for defamation?
If there's no litigation privilege,
what would stop them?
And then somebody's unhappy with that
and we have more litigation about litigation.
And there's no need for that here because
Chapter 123A's own robust procedures
protect against wrongful incorrect commitments.
As detailed in Amicus's brief, there are
the right to counsel, the right
to receive the reports.
And indeed, you heard in the earlier arguments
with respect to Dr. Rouse-Weir, that there
were 27 paragraphs missing.
The way that that's known is
because both reports were turned over.
If otherwise, you wouldn't know that there
were this allegation about that,
the reports are made available,
particularly, the QE reports by statute
are completed within 45 days of the finding
of probable cause, they're filed with their
court, they're made available.
The individual has the right to call his own
experts to cross-examine, to appeal,
to have process issued to secure witnesses
and funds for lawyers and experts, if indigent,
robust procedures.
Turning to the question of quasi-judicial
immunity, this court said in Johnstone,
within Chapter 123A statutory scheme,
the qualified examiners are and I quote,
"Established as independent
court-appointed experts."
A few paragraphs later, this court pointed
out the QE's are the only experts appointed
by the court under Chapter 123A.
And the question of who pays them
is immaterial because in Leland
where the psychiatrist performing
the probate court evaluation of family members
relative to a visiting scheduling issue
was paid by the father, one of the parties,
the Department of Correction is not a party
in an SDP proceeding.
The Commonwealth is the party.
I know that it sometimes, confuses people
because department attorneys have been asked
by the Attorney General to represent
the Commonwealth and the Attorney General,
of course, has the authority to make such
a designation under her statutory
right and authority, but the department is not,
the department only has the right
to file a petition and when that petition
is filed, if the department thinks
it's appropriate, the court still has to
appoint QE's and order their evaluations
and the QE's conduct their evaluations only
in the context of a pending proceeding
under court order.
The statute in the initial commitment cases,
once probable cause is found,
the court shall order evaluation by two QE's.
When a Section 9 petition is filed,
the court shall order evaluation by QE's.
And there are other protections,
the qualified examiners have to follow-
-: The Rouse-Weir is entitled to litigation
privilege and Joss Mary Murray: Absolutely.
-: is entitled to quasi-judicial.
-: Yes and litigation privilege.
And there may be some other privileges,
but those were the ones the court invited
Amicus to address and that's what we addressed
in the Joss case, absolutely.
Given the consistency and longevity of this
court saying that the QE's conduct
court-appointed evaluations, Sheridan 1992,
Connors 2006, Sergeant 2007, Johnstone 2009,
Gangi 2012, this court said that the QE's
are court-appointed experts,
but the Commonwealth must make sure
that the treatment center gets the reports
done on time and impose that burden
on the Commonwealth to keep the case moving
forward, which is reasonable enough,
it's the Commonwealth's petition.
Chapman in Green.
Justice Budd: I think if anybody...
we're all set.