Federal Lawsuit Against Trial Court Judges of the Commonwealth of Massachusetts


UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

 

JAMES NOLLET, JAMES CARROLL,

DAVID MERCHANT, DONALD ROINE,

RICHARD SCANLON, EARL SHOLLEY,

COALITION FOR PRESERVATION OF FATHERHOOD

Plaintiffs

CIVIL DOCKET NO.

vs.

JUSTICES OF THE TRIAL COURT OF

THE COMMONWEALTH OF MASSACHUSETTS

Defendants

 

 

COMPLAINT

 

INTRODUCTION

 

1. This action is instituted for the purpose of addressing discrimination against males in domestic relations cases in the Trial Court of the Commonwealth of Massachusetts.

 

Plaintiffs seek equitable relief against defendants for the purpose of enjoining unequal administration of justice in the areas of domestic violence and abuse petitions, and declaratory relief as to the constitutionality of Massachusetts General Law ch.209A.

 

JURISDICTION

 

2. Plaintiffs state that jurisdiction of the federal court is necessary, that state court remedies are inadequate in these circumstances, and that a federal question exists.

 

Plaintiffs have brought suit under a federal statute, Title 42 US Code 1983, seeking to enforce rights pursuant to the Fourteenth Amendment of the United States Constitution, as it applies to male litigants in the District Courts and Probate and Family Courts of Massachusetts.

 

VENUE

3. Venue is properly in the United States District Court for the District of Massachusetts. All of the events complained of occurred in Massachusetts. All of the parties either live or work in Massachusetts or were present in Massachusetts when the conduct complained of occurred.

PARTIES

4. Plaintiff James Nollet is an individual with a residence at 40 Franklin Street, Woburn, Massachusetts. He was a litigant in the Middlesex Probate and in Woburn District Court, Massachusetts, where he was the subject of restraining orders.

 

5. Plaintiff James Carroll is an individual with a residence in Lowell, Massachusetts. He was a litigant in the Middlesex Probate and Family Court in East Cambridge Court, Massachusetts.

 

6. Plaintiff David Merchant is an individual with a current residence in the state of Vermont. He was a litigant in Norfolk Probate and Family Court in Dedham, Massachusetts.

 

7. Plaintiff Donald Roine is an individual with a residence in Hull, Massachusetts. He was a litigant in Norfolk Probate and Family Court in Dedham, Massachusetts.

 

8. Plaintiff Richard Scanlon is an individual with a residence at in Duxbury. He was a litigant in Plymouth Probate and Family Court in Brockton, Massachusetts.

 

9. Plaintiff Earl Henry Sholley is an individual residing in Holliston, Massachusetts. He was a litigant in Middlesex Probate and Family Court and the suspect of a restraining order in Framingham District Court which resulted in suspension of his firearm permit.

 

10. Plaintiff Coalition for Preservation of Fatherhood (CFP), is a non-profit organization representing the interests of the fathers in domestic relations matters. Its members consist predominantly of persons of the male gender who suffered the kinds of injuries described herein.

 

11. Each of the individual Plaintiffs has suffered gender based discrimination by the defendants.

 

12. Defendants are the Justices of the Trial Court of the Commonwealth of Massachusetts who preside over domestic relations, custody and abuse matters in the Probate and Family Courts of the Commonwealth of Massachusetts and the District Courts.

 

BACKGROUND

 

13. Defendant Justices of the Probate and Family Court sit at courts adjudicating dissolutions of marriage, alimony and child support, child custody and visitation and division of marital assets. Said Justices also issue under color of law, ex parte restraining orders based on allegations of domestic violence, commanding alleged perpetrators to vacate their homes based on ex parte petitions in which litigants have no notice of proceeding, no opportunity for a meaningful hearing, and no hearing prior to being ordered to vacate their homes. The defendants in these cases are overwhelmingly male.

 

14. Defendant Justices of the District Court, under color of law, pursuant to Massachusetts General Law ch. 209A have similarly continued to engage in the practice of conducting "ex parte" hearings on allegations of domestic violence, after which orders are issued commanding litigants, overwhelmingly male, to leave their homes without notice of hearing, and without the opportunity to be heard until after they have been forced out of their homes.

 

15. Litigants, once ordered to vacate their homes, have their names entered into an abuser database and are then deprived of their constitutional right to keep and bear arms and subjected to various other "badges of infamy."

 

16. Plaintiffs, and others similarly situated, have been irreparably damaged by the customs and rules of the Courts of the Commonwealth which:

  1. only allow a perfunctory hearing without full due process, and where the rules of evidence do not apply, after a male resident has been ordered out of his home.
  2. Permit so called "victim witness advocates" to act as defacto unlicensed lawyers for women who pursue what are often exaggerated accounts of domestic abuse concocted for the purpose of gaining full possession of the homes and apartments of the Plaintiffs and similarly situated persons. Under public pressure, the Judges of the District Courts punish male litigants in restraining order cases harshly and unfairly. For example, writing a letter or sending a Christmas card to a child can be grounds for two years imprisonment for a "restraining order violation."

17. As a direct and proximate consequence of the failure of the Justices of the District Courts to allow male defendants due process and equal protection of the law, male defendants who face proceedings under M.G.L. ch. 209A suffer loss of use of their home and companionship of their children, since Judges are prohibited from issuing visitation orders under this Chapter. Frequently they become destitute as a consequence of being unable to maintain two residences and are estranged from their children.

 

18. Massachusetts General Law ch. 209A, in its most important sections, is incorporated herein as EXHIBIT "A" affixed. Specifically, Section 4 of the statute permits an "ex parte" procedure which is unconstitutional on its face.

 

19. The hearings on these restraining orders generally last about 15 minutes. There is no jury trial, no discovery, no strict rules of evidence and no presumption of innocence. The discrimination and violations of due process suffered by male litigants at the District Court violates Title 42 U.S. Code Section 1983. the United States District Court has the jurisdiction to enjoin such conduct. (See Pulliam v. Allen , 466 U.S. 522(1983))

 

COUNT ONE

(VIOLATIONS OF THE 5TH AND 14TH AMENDMENT RIGHTS TO DUE PROCESS)

20. Each and every allegation stated above is realleged and incorporated herein by reference.

 

21. The "ex parte" nature of the hearings under M.G.L. ch. 209A violates the procedural due process rights of the defendants and violates Title 42 U.S. Code 1983.

 

22. The Plaintiffs and all similarly situated male litigants are harmed thereby.

 

WHEREFORE, Plaintiffs pray this Court issue declaratory and injunctive relief accordingly declaring M.G.L. ch. 209A unconstitutional and enjoining defendants from further enforcement of said statute.

 

COUNT TWO

(14TH AMENDMENT RIGHT TO EQUAL PROTECTION)

 

23. Each and every allegation stated above is realleged and incorporated herein by reference.

 

24. The Commonwealth of Massachusetts Probate and Family Court system evidences a wide spread bias against males in its judgments.

 

25. This bias evidences itself in the decisions of the Court pertaining to child custody, child support, division of property, and visitation.

 

26. For example, in the matter of Carroll vs. Carroll, Docket # 86D-1651-D2, a divorce case, the Justices of the Middlesex Probate and Family Court awarded the wife the entire retirement pension of the husband virtually his entire life savings as well as the marital home.

 

27. In Allen v. Allen, a divorce case decided in the Norfolk Probate and Family Court, the former husband, facing a contempt complaint by the Court, was found in contempt of a payment order even though he presented evidence that he was not working and was receiving unemployment compensation. The Court did not believe him and believed his former wife whose attorney said he "suspected the former husband of holding a secret job." When it was pointed out by the former husband’s attorney that this was mere speculation, Justice Eileen Shavel stated "It’s okay, its commonly alleged" and proceeded to find the former husband in contempt.

 

28. In Scanlon v. Scanlon, 89-D-2048-D1, in Plymouth Probate and Family Court, Plaintiff Richard Scanlon appeared before Judge Anna Doherty. Judge Doherty made no pretense of impartiality or due process and threatened Mr. Scanlon with imprisonment before he was allowed to even speak on his own behalf. The Court order imposed on Mr. Scanlon was beyond his ability to afford. The Court gave credibility to the wife’s testimony and did not allow the husband a meaningful opportunity to be heard. In a situation where the wife’s income increased and the husband’s income decreased, his support was also increased.

 

29. In the matter of Hunter v. Hunter, Docket # 84D-09231. judge Christina Harms of the Norfolk Probate and Family Court imprisoned the husband for failure to pay child support from proceeds of a student loan which would be a fraudulent misapplication of this student loan money. At the time, the husband was receiving $96.00 monthly in disability payments, and $172.00 a month from service in the National Guard. As a consequence of his imprisonment, the National Guard dismissed the husband from his position. Judge Harms then wrongly accused the former husband of leaving the National Guard to avoid imprisonment.

 

30. In Roine v. Roine, a divorce case, in Norfolk Probate and Family Court, in which the parties reached a mutually satisfactory accommodation in a separation agreement, Judge Christina Harms sua sponte advised the wife she could obtain a better result and that she need not accept the agreement. This biased tutoring of one side from the bench deprived the male litigant of his right to equal protection under the 14th Amendment of the United States Constitution.

 

31. These and similar examples of discrimination against males are widespread in the Massachusetts Probate and Family Court system. This discrimination is shown by:

    1. A widespread refusal to accept the testimony of male litigants as equal in credibility with female litigants.
    2. A widespread refusal of the Court to allow males the same opportunities for the society and companionship of their children are allowed.
    3. Intimidation by Family Services Officers, and coercion into accepting unfair custody agreements, as a consequence of an institutional bias.
    4. In situations in which the parties reach agreements on their own, the Court may still intervene on the side of the female in a biased manner.

 

32. The pattern of discrimination as described above represents an ongoing violation of the Plaintiffs’ rights to equal protection of the law, as guaranteed by the 14th Amendment to the United States Constitution, and in violation of Title 42 U.S. Code 1983.

 

33. The Plaintiffs have been harmed thereby by the loss of property, companionship of their children, loss of assets, income and reputation.

 

WHEREFORE, Plaintiffs pray this Court issue declaratory and injunctive relief accordingly, commanding the Defendants to adopt measures to prevent discrimination against men in the Probate and Family Court system.

 

COUNT THREE

(VIOLATION OF SECOND AMENDMENT)

 

34. Each and every allegation stated above is realleged herein and made part of this paragraph.

 

35. The defendants continue to enforce M.G.L. ch. 209A 3(b) which is affixed herein and which allows the Commonwealth to seize the firearms of persons subject to restraining orders.

 

36. Massachusetts General Law ch. 209A 3(b) violates the Second Amendment rights of the Plaintiffs.

 

37. The hearing process at the District Court level is flawed. There is no meaningful opportunity for discovery, there are no strict rules of evidence and there is no meaningful opportunity either to be heard or to cross examine witnesses.

 

38. No objective criteria exists by which a judge can determine if an alleged victim of domestic violence demonstrates a substantial likelihood of immediate danger of abuse, thus the statute is inherently flawed. No criminal conviction is required, no actual act of violence is required, often mere shouting is considered spousal abuse.

 

39. Nevertheless, plaintiff Earl Henry Sholley and other plaintiffs, as well as members of plaintiff Coalition, and similarly situated persons of male gender have been deprived of their Second Amendment rights, deprived of their natural right of self defense and defense of their family members.

 

WHEREFORE, Plaintiffs pray this Court issue declaratory relief to the effect that M.G.L. ch. 209A 3(b) violates the Second Amendment and is unconstitutional.

 

Respectfully,

 

 

David C. Grossack, Esquire

294 Washington Street, Suite 435

Boston, Massachusetts 02108

BBO# 212890

July 14, 1999


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