Opinion
20-P-260
06-06-2022
L.M. & another [1] v. L.J.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017 the plaintiffs each sought and obtained harassment prevention orders under G. L. c. 258E against the defendant. After a hearing in October 2019, a District Court judge permanently extended both G. L. c. 258E orders. The defendant appeals from the permanent G. L. c. 258E orders and from various actions taken by two single justices of this court. We affirm.
The appeals were all consolidated.
1. Single justice orders.
Two of the single justice orders on appeal relate in part to the defendant's various motions and requests for accommodation seeking leave to file a nonconforming reply brief and for additional time to file the reply brief. After appealing from those orders, dated December 1, 2021, and December 27, 2021, the defendant filed another motion on January 31, 2022, again seeking leave to file a nonconforming reply brief. The same day, the defendant filed the proposed reply brief. We now allow the January 31, 2022 motion and accept the proposed reply brief for filing. Our ruling renders moot that part of the defendant's appeal as concerns her reply brief.
The other single justice orders on appeal concern the defendant's motions and requests for accommodations seeking the following relief: appointment of counsel, stay of the G. L. c. 258E orders pending appeal, stay of the appeal, leave to rewrite the defendant's opening brief, leave to submit additional transcripts, and striking of pages from an existing transcript. We have reviewed the defendant's two memoranda of law submitted in the single justice appeals and discern no error of law or abuse of discretion in the single justices' rulings. See Troy Indus. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). The defendant's requests for appointment of counsel were properly denied, as there is no right to appointed counsel in most civil cases (including G. L. c. 258E cases) absent exceptional circumstances not present here.' See Genninger v. Genninger, 418 Mass. 732, 735 (1994). The motion to stay the G. L. c. 258E orders pending appeal should have been filed in the trial court in the first instance, as the second single justice noted in his omnibus December 13, 2021 order. The second single justice properly determined that the defendant had not demonstrated impracticability so as to justify deviation from the rule. See Mass. R. A. P. 6 (a), as appearing in 481 Mass. 1608 (2019).
Denied by orders dated November 17, 2021, and December 27, 2021.
Denied by the December 27, 2021 order.
Denied by orders dated November 29, 2021, and December 7, 2021.
Denied by the December 1, 2021 order.
Denied by the December 27, 2021 order.
Denied by the December 27, 2021 order.
The defendant was represented by counsel at the extension hearing.
For this reason, the defendant's May 20, 2022 motion for appointment of counsel in this appeal is denied.
The defendant's remaining requests for relief all derive from her allegation that plaintiff P.M. committed perjury during the extension hearing. But as the second single justice explained in his omnibus order, the evidence that the defendant seeks to rely on was not before the judge and thus would not properly be before us in this appeal. For the same reason, as the second single justice further explained, "any speculative prosecution" of P.M. would not properly be before us in this appeal. The single justices were also within their discretion to deny the defendant's requests to stay the appeal -- pending rulings on motions related to P.M.'s alleged perjury that the defendant filed (or planned to file) in the trial court -- as the resulting delay would have fundamentally altered the appeals process. Nor do we discern any abuse of discretion in the remaining single justice orders. See Troy Indus., 76 Mass.App.Ct. at 581.
The defendant's May 20, 2022 motion to stay the appeal while she challenges a New Hampshire guardianship order is denied for the same reason.
2. Permanent G. L. c. 258E orders.
We construe the defendant's briefs to be challenging the judge's decision on five grounds, which we address in turn.
First, the defendant appears to challenge the sufficiency of the evidence supporting the original G. L. c. 258E orders. The only question before us, however, is the propriety of the extensions of the original orders. See Iamele v. Asselin, 444 Mass. 734, 740 (2005) (although judge at extension hearing should "consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire," "[t]his does not mean that the restrained party may challenge the evidence underlying the initial order"). To the extent the defendant argues that the evidence was insufficient to support making the orders permanent, we disagree. The judge had the authority to enter permanent orders if "reasonably necessary to protect the plaintiff[s]." G. L. c. 258E, § 3 (d). P.M. testified at the extension hearing that the defendant had stated that she had "homicidal ideations of [the plaintiffs]" and wanted to kill them, that she had threatened to shoot the plaintiffs herself or to hire "a federal license[d] contractor . . . with an automatic weapon" to do so, and that she had threatened to "dress in black" and "burn [the plaintiffs'] house down while [they] were sleeping." P.M.'s testimony, which was uncontroverted and which the judge credited in its entirety, was sufficient to justify the permanent orders. Cf. Pike v. Maguire, 47 Mass.App.Ct. 929, 929-930 (1999) (evidence supported permanent extension of G. L. c. 209A order). We are unpersuaded by the defendant's contention that the plaintiffs' fear was not credible because the defendant was hospitalized in a psychiatric hospital at the time of the extension hearing. The judge found otherwise based on his assessment of P.M.'s credibility, and we will not overturn that assessment on appeal. See id. at 930.
We note that the defendant's counsel acknowledged at the extension hearing that the defendant is permitted to leave the hospital one day each week.
Second, the defendant suggests that the judge should not have proceeded with the extension hearing because the defendant was incompetent. But the defendant's counsel did not raise any such claim at the hearing, nor did he ask for a continuance on any basis. Instead, counsel simply stated that the defendant, who appeared by video conference, would not be testifying. This claim is therefore waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue raised for first time on appeal is waived).
Third, the defendant contends that G. L. c. 258E is unconstitutional because it regulates protected speech. This issue was conclusively resolved in O'Brien v. Borowski, 461 Mass. 415, 428 (2012), which holds that G. L. c. 258E "is not constitutionally overbroad because it does not prohibit a substantial amount of protected speech, either in an absolute sense or in relation to the statute's legitimate sweep." We also reject the defendant's argument that the statute is unconstitutional as applied to her "because the conduct complained of was protected speech." Again, the propriety of the original orders is not before us. Furthermore, even were we to consider the defendant's argument, we would have no trouble concluding that her threats to shoot the plaintiffs, to hire someone to shoot them, and to burn their house down constituted "true threats," unprotected by the First Amendment. Id. at 423.
Fourth, the defendant contends that the case should have been transferred to a different county because the judge and the plaintiffs are "friends." The defendant cites to nothing in the record to support this assertion, however. Nor do we see anything in the record to support the underlying implication that the judge was biased. See Adoption of Iliana, 96 Mass.App.Ct. 397, 407 (2019) ("judge is presumed to be a neutral arbiter in any matter before him or her").
Finally, the defendant challenges the provisions in the G. L. c. 258E orders requiring her to stay away from the plaintiffs' property in New Hampshire. The defendant summarily asserts that the District Court does not have jurisdiction to issue a G. L. c. 258E order that reaches outside of the Commonwealth. She does not develop the argument further or cite any legal authority in support of it. The argument is therefore waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); K.A. v. T.R., 86 Mass.App.Ct. 554, 567 (2014). We note that the challenged provisions appear in any event to be coextensive with a permanent injunction issued by a New Hampshire judge in September 2017, barring the defendant from coming within a five-mile radius of the plaintiffs' New Hampshire home.
Conclusion.
The orders dated October 25, 2019, permanently extending the G. L. c. 258E orders, are affirmed. The appeals from so much of the single justice orders dated December 1, 2021, and December 27, 2021, that relate to the defendant's reply brief are dismissed as moot. In all other respects, those orders are affirmed. The single justice orders dated November 17, 2021, November 29, 2021, and December 7, 2021, are affirmed.
To the extent we have not specifically addressed any of the defendant's arguments, we have reviewed them and see no grounds warranting relief.
So ordered.
The panelists are listed in order of seniority.