The
Fatherhood
Coalition

Plaintiff James Nollet on Dismissal of Suit

Suit is being appealed

By James Nollet


March 9, 2000

Dear All:

        I have noticed that there is a great curiosity Out There in regard to the Grossack lawsuit.  What happened to it, and where does it lie now?

        I refer to the lawsuit which the Coalition for the Preservation of Fatherhood and six individual plaintiff's filed against the Trial Judges of the Commonwealth, in which it was alleged that the plaintiffs' Civil Rights were violated in that the judges exercise anti-male gender bias when handing out Restraining Orders.  In January, this lawsuit was Dismissed on Motion for Summary Judgment by the Defendants.

        Now, I am in a good position to talk about it, because I happened to be the lead Plaintiff in this case.  In fact, the case is known as "Nollet et al v. the Trial Judges,  etc."  This is what happened, and what can still happen:

        The Commonwealth brought four grounds for Dismissal.  Judge Harrington threw out two of the grounds, and allowed the other two.   These are appealable.  We have filed for an Appeal, and the case is STILL open.

        Atty. Grossack is not involved at this point.  For personal reasons, he had to withdraw.  He deserves all the thanks, prayers, and even money which we could spare, because he did the work of the Angels.   We are appealing it pro-se.

        Here's how it will go: We had sued on the basis of the Pulliam v. Allen decision, which in 1984 cracked the absolute shield of immunity which judges had.  However, what we didn't know was that in 1996, the Congress modified Pulliam, and disallowed pursuit of Injunctive Relief, unless and until Declaratory Relief was unavailable, or unless a judge was operating in the face of a Declaratory decree to the contrary.

        In effect, Pulliam had allowed plaintiffs one-stop shopping.  Congress felt that this weakened judicial immunity too much, so they made the pursuit of Injunctive Relief into a 2-step process.  Now, at the outset, one can only pursue Declaratory Relief.  Then, only later, after it has been shown that the judge persisted, only then can one pursue Injunctive Relief.  Congress reasoned that it is not right to slap an injunction on a judge ex post facto, if he hasn't first even been placed on notice that he was committing wrongful acts.  That would be like arresting someone for a Restraining Order violation for a Restraining Order which he didn't even know was in effect.  That is why Declaratory Relief now must precede Injunctive Relief.

        Now, Judge Harrington threw out our lawsuit because he ruled that the Relief which we sought was entirely Injunctive in nature.   He was right to rule that we were not entitled to Injunctive Relief.  But what we will Appeal is his finding that we had not availed ourselves of Declaratory Relief.

        In the first place, even he admitted that we claimed Declaratory Relief. In the second place, Declaratory findings are an intrinsic element of Injunctive Relief anyway.  After all, Injunctions don't just arise out of thin air, or because a judge woke up on the wrong side of be one day and picked somebody out of a phone book whom he could enjoin.  Injunctions arise as a CONSEQUENCE of Due Process, where FIRST a finding must be made that wrong-doing has occurred.

        Even if it were true that we didn't explicitly ask for Declaratory Relief (and even this is not true), it follows that INTRINSICALLY we certainly did, because Declaratory Relief is a NECESSARY component of Injunctive Relief, because there can be no Injunctive Relief without being preceded by some kind of declaratory finding of fact and law.

        I am quite hopeful about this line of reasoning.  I think it explores a new area of law, and Appeals judges LOVE doing that.

        Also, Judge Harrington made the bizarre finding that when judges hand out Restraining Orders, they are functioning in the same way that a wire conducts electricity.  They only pass it along.  Gee, that is EXACTLY what we were saying in the lawsuit anyway!  That's EXACTLY what judges really do when they hand down Restraining Orders -- if the victim is a woman, that is.  In effect, Judge Harrington unwittingly was taking our side.  I am hopeful that when we point this out to the Appeals Court, they will agree with us.

        Now: John Flaherty of the Coalition feels that we can nudge the Appeals Court toward our position with some well-placed publicity.   I will let him speak more to this himself in due course.  But please stay tuned, and find out how you can help us help you...

                                                James A. Nollet

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