Opinion
No. 11–P–1030.
2012-10-15
Barry M. COHEN v. CLERK–MAGISTRATE OF the NEWTON DIVISION OF the DISTRICT COURT DEPARTMENT & others.
“Officer Marini and the Police then prepared a false and misleading incident report about that encounter, suggesting that the plaintiff had engaged in criminal conduct. When Police Chief Jose M. Cordero learned of the incident, he became upset and ordered that the plaintiff be arrested. Later, the Police applied for an arrest warrant, knowing that no basis existed for the application. Assistant Clerk Magistrate McEvoy denied the application. The Police re-submitted the application to Clerk–Magistrate Schultz, who issued a warrant for the plaintiff's arrest for attempted breaking and entering into a motor vehicle at night. There was, however, no probable cause to arrest the plaintiff. Nevertheless, the Police urged both magistrates to issue the arrest warrant. In a telephone call, Police Captain Boudreau urged Magistrate Schultz to issue the warrant because the then-Police chief wanted a warrant. The involvement of senior police officials in urging a magistrate to issue process is highly unusual. In these unusual circumstances, the decision to issue criminal process resulted from the Commonwealth's improper training, supervision and oversight of Clerk–Magistrate Schultz. The Commonwealth argues that the word “order” in § 10( e ) should be read to include the issuance of an arrest warrant because the issuance of a warrant is a judicial order. We disagree.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the dismissal of the plaintiff's remaining claim in a Superior Court action. Because we disagree with the motion judge's analysis, we vacate the dismissal of the claim and remand the case for further proceedings.
Background. The allegations in this case arise from incidents that took place in September of 2003. The allegations, as taken from the plaintiff's complaint, and taken as true by the motion judge for purposes of the motion to dismiss, are as follows:
“On September 25, 2003, at approximately 1:15 A. M., Mr. Cohen left his parents' home in Newton, Massachusetts to take a walk. He was wearing gloves and carrying a flashlight. After traveling approximately four blocks, while walking along Fellsmere Road, he heard rustling noises coming from a white van parked on the opposite side of the street. He saw the driver's door on the van begin to open and heard a voice from the van calling to him to ‘get over here .’ He began to run. While running, he looked over his shoulder and saw a man dressed in a black sweater and dark trousers running after him, carrying a badge in his hand. Upon seeing the badge, Mr. Cohen stopped and explained to the man, who was Officer Marini of the Newton Police Department (‘Police’), that he was taking a walk and had run away because he was afraid he was being attacked or kidnapped. After relaying information about the plaintiff over his radio and learning that Mr. Cohen had no outstanding warrants, Officer Marini declined to arrest the plaintiff and told him that he was ‘free to go.’
“Officer Marini and the Police then prepared a false and misleading incident report about that encounter, suggesting that the plaintiff had engaged in criminal conduct. When Police Chief Jose M. Cordero learned of the incident, he became upset and ordered that the plaintiff be arrested. Later, the Police applied for an arrest warrant, knowing that no basis existed for the application. Assistant Clerk Magistrate McEvoy denied the application. The Police re-submitted the application to Clerk–Magistrate Schultz, who issued a warrant for the plaintiff's arrest for attempted breaking and entering into a motor vehicle at night. There was, however, no probable cause to arrest the plaintiff. Nevertheless, the Police urged both magistrates to issue the arrest warrant. In a telephone call, Police Captain Boudreau urged Magistrate Schultz to issue the warrant because the then-Police chief wanted a warrant. The involvement of senior police officials in urging a magistrate to issue process is highly unusual. In these unusual circumstances, the decision to issue criminal process resulted from the Commonwealth's improper training, supervision and oversight of Clerk–Magistrate Schultz.
“In the evening of September 25, 2003, Mr. Cohen heard loud knocking on the front door of his parents' home. When he opened the door, three police officers entered and arrested him without displaying an arrest warrant. During the arrest, the officers used unreasonable and excessive force. At the station, they continued to use excessive force and harassed, threatened and intimidated Cohen. He was placed in a cell, eventually released on bail after some delay and was arraigned the next morning on one count of attempted breaking and entering into a motor vehicle. A report of the arrest appeared in the local paper. On October 21, 2003, the Newton District Court dismissed the charges against Mr. Cohen.”
The plaintiff filed a five-count complaint against the clerk-magistrate of the Newton Division of the District Court Department and others. After a hearing, counts one, two, three, and five were dismissed. Subsequent to the dismissal, after another hearing before a second judge, count four, alleging negligence, was dismissed. At the second hearing, the Commonwealth argued that the discretionary function exemption of G.L. c. 258, § 10( b ), exempted the Commonwealth from liability. The Commonwealth also argued that the provisions of § 10( e ) exempted the Commonwealth from liability. The motion judge concluded that the application of the provisions of § 10( b ) would require a factual determination and, therefore, consideration of this section was not an appropriate subject for a motion to dismiss. The motion judge did, however, interpret § 10( e ) as exempting the Commonwealth from liability and dismissed the remaining claim. The plaintiff appeals the dismissal of the negligence claim.
Discussion. The question to be decided is whether § 10( e ) of G.L. c. 258 exempts the Commonwealth from liability in consideration of the facts alleged. Section 10( e ), inserted by St.1993, c. 495, § 57, exempts the following:
“any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.”
The Commonwealth argues that the word “order” in § 10( e ) should be read to include the issuance of an arrest warrant because the issuance of a warrant is a judicial order. We disagree.
In order to interpret the meaning of a word in a statute, we first look to its plain meaning. See Cote–Whitacre v. Department of Pub. Health, 446 Mass. 350, 358 (2006). Although “order” has several definitions, none of the definitions helps us to interpret whether any definition should be construed to include a judicial order. Furthermore, the statute itself does not define “order,” nor is there case law in the Commonwealth that defines the word as it appears in this statute.
Although § 10( e ) may appear ambiguous, we are guided by rules of statutory interpretation to resolve any perceived ambiguity. “Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Banushi v. Dorfman, 438 Mass. 242, 244 (2002) (citation omitted). Similarly, “ordinarily the coupling of words denotes an intention that they should be understood in the same general sense.” Commonwealth v. Hamilton, 459 Mass. 422, 432 (2011) (citation omitted). Section 10( e ) exempts claims arising out of a “permit, license, certificate, approval, order or similar authorization ” (emphasis supplied). At first glance, “order,” as used in the statute, appears to be a general word and thus might encompass a judicial order. However, each of the words in the series preceding the disputed word pertains to public regulatory agencies. See Morrissey v. New England Deaconess Assn.—Abundant Life Communities, Inc., 458 Mass. 580, 592–593 (2010) (permit). See also Tivnan v. Registrar of Motor Vehicles, 50 Mass.App.Ct. 96, 102 (2000) (license). Furthermore, the Legislature chose to use the words “similar authorization” at the end of § 10( e ) as a term of reference. Thus, we must construe the general word “order” to refer to claims based on actions of public regulatory agencies and the like. The basis for this view also is supported by a law review article written soon after § 10( e ) was adopted.
“New subsection (e) provides immunity for claims based on the issuance, denial, suspension, revocation or refusal or failure to issue, deny, suspend or revoke a permit, certificate, approval, order or other authorization by a public employer. In the course of public regulation, state and local officials consider applications for a multitude of permits, certificates, variances, and other approvals. Day care licenses, driver's licenses, building permits, occupancy permits, environmental permits, food service permits, septic system permits, and subdivision approvals are just a few examples. The issuance of such permits generally involves public oversight of private conduct, situations in which public entities endeavor to assure the safety or proprietary of private activities rather than situations in which public employees themselves engage in conduct which creates or increases risk.” (Footnotes omitted.)
Glannon, Liability for “Public Duties” Under the Tort Claims Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass. L.Rev. 17, 20 (1994).
Moreover, a “statute's terms must be read harmoniously to effectuate the intent of the Legislature, ... and in seeking to do so, ‘we look first and foremost to the language of the statute as a whole.’ “ Commonwealth v. Raposo, 453 Mass. 739, 745 (2009) (citations omitted). “[T]he primary purpose of [G.L. c. 258] was to replace the common-law doctrine of governmental immunity, and its myriad judicially created exceptions, with a comprehensive statutory scheme governing the tort liability of public employers.” Morrissey, 458 Mass. at 590.General Laws c. 258, § 10( b ), carves out an exemption for negligence claims based on the issuance of an arrest warrant. See Sena v. Commonwealth, 417 Mass. 250, 256 (1994) (“decisions of law enforcement officers regarding whether, when, how, and whom to investigate, and whether and when to seek warrants for arrest are based on considerations of, and necessarily affect, public policy”). See also Morrissey, supra at 593 (§ 10[ b ] provides immunity “for discretionary conduct that involves policy making or planning” [citation omitted] ). Here, the Commonwealth argues that § 10( e ) also should apply to the issuance of judicial orders, despite the fact that § 10( b ) governs such conduct. Should we accept the Commonwealth's argument, we not only would be expanding the definition of the word, in contravention of the intent of the Legislature, but also reigniting the “myriad judicially created exceptions” that the Legislature sought to simplify with the amendments to G.L. c. 258. Id. at 590.
As the motion judge noted, liability or lack thereof, pursuant to G.L. c. 258, § 10( b ), is necessarily dependent on a factual determination as to the claim. There is no evidence in the record as to the training, or lack thereof, of clerk-magistrates. It may be that § 10( b ) will provide the Commonwealth with immunity in this case. However, the record needs to be further developed before a judge can rule on the propriety of a defense of immunity pursuant to § 10( b ). Accordingly, we must vacate the order of dismissal and remand the case to the Superior Court for further proceedings as to the applicability of G.L. c. 258, § 10( b ), to the plaintiff's negligence claim.
So ordered.