Feature story: David Grossack

By Henriette Campagne, Massachusetts Lawyers Weekly

David Grossack, Hull

Born: Feb 3, 1956, Honolulu
Education: New England School of Law, 1981
Babson College, 1976
Massachusetts bar admission: 1981
Legal experience: Sole practitioner (1981-present)
Bar affiliations: None

December 27, 1999

Cite this page: 28 M.L.W. 930


David Grossack isn't likely to win any bar association awards in the near future.

And that's all right with Grossack because he doesn't seem to care what his fellow lawyers, or judges, think about him.

While many members of the bar have quietly debated issues concerning the fairness of the Probate & Family Court procedures, Grossack took things several steps further this September by filing a sweeping federal lawsuit against the Massachusetts Trial Court on behalf of six divorced men and a local fathers' rights group.

The lawsuit may not go anywhere (a motion to dismiss was heard on Dec. 16) but, regardless of the success or failure of this highly publicized legal challenge, Grossack is sticking to his guns in his very un-PC attack on the Family Court.

Since filing the suit, Grossack says he's received hundreds of unsolicited complaints alleging discrimination by a "select group" of Family Court judges in Massachusetts.

In fact, Grossack claims, gender bias in the Family Court has become so flagrant that, if the caller is from a certain county, he "can predict which judge [the caller]'s going to be complaining about."

Grossack's 11-page complaint boldly states that men involved in domestic relations cases are not being afforded equal protection under the law in Massachusetts.

And it isn't just child-custody matters or the Family Court that irk Grossack.

He claims that the current restraining-order process is flagrantly unconstitutional because it allows no jury trial, no discovery, no strict rules of evidence and no presumption of innocence. Grossack's suit further alleges that Chapter 209A deprives men of their Second Amendment right to possess firearms and that the wide availability of ex parte restraining orders denies men of due process under the Fifth and 14th amendments.

"There's an agenda in the District courts that is more political than constitutional when it comes to

domestic violence," asserts Grossack, who claims that 95 percent of all female applications for abuse

petitions against males are granted. "When men testify in these proceedings, their testimony is not treated as equally as females' testimony. Women can get away with all kinds of things in the context of a domestic relations battle that men can't get away with. They can flout orders, they can commit battery against men, and they go unpunished."

Grossack, 43, says he witnessed so many civil rights violations in the courts over the course of his 17-year career that he was finally prompted to take the case on behalf of the six divorced men and the 700-member Fatherhood Coalition (of which he is not a member).

"The situation has gotten out of hand in this state; that's why I'm looking for federal intervention," notes Grossack.

* * *

Q. What is it that your clients are so angry about?

A. I don't want to use the word angry that's a loaded word. They see the Constitution as being disrespected in this context. They see that all kinds of abuses go on in the restraining-order process and in the divorce process that is discriminatory. I wish we could install a video camera ... so people could watch on TV certain Probate & Family Court judges in this state. I think they would get the message really quickly that something is not right.

Q. Some people might say that the plaintiffs are merely disgruntled litigants -- many of whom have been abusive to their spouses or girlfriends -- who are simply trying to pin their own failings on the system. How would you respond to that?

A. If, in fact, they were abusive, give them due process of law in dealing with them. Give them a notice and a hearing. Don't throw them out of their homes without a hearing. We can't go around punishing people without giving them an opportunity to be heard. It's the most fundamental right in this country. That's exactly what the District courts and the Probate & Family courts do. ... If one of [my clients] committed an act of abuse and I don't know if any of them did because I wasn't there whether people are guilty or innocent, you don't go on a campaign of hysteria that creates an environment where they can't get a fair hearing and they can't get due process of law. And that's exactly what's happened. Why are these battered-women advocates allowed to act as de facto lawyers in the courtrooms? No other class of people has that going for them. There are situations that I'm hoping to be able to bring into evidence in this case where women are actually coerced into fabricating cases by police and social workers, because if they don't get restraining orders on their husbands, the [Department of Social Services] will take their children away. I haven't fully developed this yet, but I think it's going to come out that, in Massachusetts, there are persons acting under color of state law who are actually engaged in a practice that interferes with the ability of men to get due process.

Q. In your complaint, you allege that Massachusetts judges refuse to accept men's testimony as "equal in credibility with female litigants" and that there is no presumption of innocence. What evidence can you produce to back up such a sweeping statement?

A. We can do this through extensive investigation on our own, or through discovery. We have so many people who have come forward after filing this lawsuit. ... And the thing is, there wouldn't be so many intensely disgruntled people if the system was working. [So] we would want to do discovery on all the complaints we've received about certain judges in the Probate & Family Court; we would want to see all the statistics that the trial court compiled; [and] we would want to study tapes of the training seminars and the training manuals for Probate & Family Court judges. There's no question we'd have a strong burden of proof.

Q. In another claim, the plaintiffs assert that their rights are being abridged when they're not allowed to obtain a gun after a restraining order has been issued against them. Doesn't a woman's right not to be murdered by a spurned lover trump any right a man might have to carry a gun?

A. That is an incredibly loaded question. First I want to say no. If somebody really wants to commit murder, God forbid, a restraining order a piece of paper isn't going to stop him if he's that determined. [Second], these men who lose their right to own a gun haven't been convicted of any crime. All they've been confronted with is an affidavit from a spouse or girlfriend that she feels she's been abused or she's been threatened. The level of evidence and the kinds of hearings that are held in District Court aren't enough to overcome that Second Amendment right, which we are arguing is a fundamental constitutional right of people to have weapons as self defense and for the defense of others and for the common defense. ... This is a federal right for individuals, and while there are a lot of people who don't want to recognize the Second Amendment as a fundamental individual right, we are asserting that position. We have some good precedent for it. The cite is United States v. Emerson out of Texas, which makes it very clear that the founding fathers intended for every person to be able to own a gun. I think that's an important issue. This kind of preventative retaliation taking away their guns so they can't commit a crime in the future, punishing people before something really happens people should be punished when they're found guilty by a jury of their peers.

Q. Are you asserting that the restraining-order statute, Chapter 209A, is inherently flawed or do you think that, with proper controls, the statute could be implemented in a manner that would satisfy everyone?

A. I think it's flawed as long as there isn't notice, an opportunity to be heard, before a restraining order is issued. It's too easy to get an ex parte restraining order, and I think there's an awful lot of misrepresentation going on in these applications for emergency orders. It's an environment where judges feel under pressure to grant them. What we have now is a nightmare for them. There are tens and tens of thousands of these being granted every year and 85 percent of them are issued against men. Men have a pretty hard time getting them against women.

Q. Do your clients believe that there is no problem with domestic violence at all?

A. I don't think anyone would say that. That's nowhere in our argument and nowhere in our thinking. I think though, in my personal opinion, there are a lot of women who commit domestic violence, and I think men are more likely to be battered by women than the other way around. USA Today did a survey on that a few years ago.

Q. Some people look at the fathers' rights movement and may be sympathetic with some of the issues they raise but are turned off by some of the bitterness that seems to go along with it. Is the anger -- the refusal to acknowledge that many bad men do bad things to their wives counterproductive? Wouldn't your clients accomplish more if they tried to work productively within the system?

A. I think this lawsuit is an example of working with the system. ... [But] one of the problems is we don't elect our judges, so that option is not available. So when you say work with the system, what do you want [these men] to do? The system is the ballot box or the litigation process. I can't think of what else is available to them.

Q. If you were a judge and a woman came before you claiming that she had been beaten by her husband and was in fear of her life, wouldn't you feel obligated to believe her unless you had reason to believe otherwise?

A. If I were a judge, I wouldn't just give out an ex parte order. I'd want to say: "How badly were you beaten? Do you have scars? Do you have medical bills? Do you have witnesses?" I would say she's under an obligation to produce a preponderance of evidence to show that in a hearing where both sides are present. The key word here is both sides are present. A major portion of our grievance is that when these restraining orders are given out, only one party is present. So I'd want the opportunity to examine the credibility of both parties. And I'd also be very curious to know if the claim is in the context of a divorce proceeding.

Q. Many lawyers have expressed dismay with the lack of concern for the due process rights of those (mostly men) who are hit with Chapter 209A orders. And there is legitimate concern among some family lawyers that restraining orders have been misused and abused in order to gain an edge in a divorce. Why isn't it possible to get the organized bar behind some fundamental changes that everyone could support?

A. I'm not against that. But I think the initiative to get something done would have to come from one of the larger firms [that] have more clout in the bar. And there's going to be a lot of opposition from women's advocates. The place where this ultimately has to be resolved is in the federal court. In my 17 years as a lawyer, I haven't seen anything happen in that regard. So I don't see the likelihood of it happening in the future, unless maybe this lawsuit has woken some people up. And I think actually it has. The lawsuit did get a lot of attention in the press -- it was [picked up] by the Associated Press and was even on the BBC in London.

Q. The restraining-order registry, from which a name can apparently never be expunged (even after exoneration), has been criticized by civil libertarians, not just by fathers' rights groups. Isn't there some value to society in keeping track of people who have been abusive to their spouses and lovers?

A. Well, even if the order is vacated the [name] still stays on. So if an order is vacated, there's a question as to whether the information is accurate. We live in a dossier state, and I submit to you the fewer dossiers kept on people, the better.

Q. Your clients apparently believe that most Probate & Family Court judges are biased against men. Given that more than half the court's judges are men, isn't that assertion a little suspect?

A. No. I think the judges are under pressure to follow an agenda. Their flexibility is limited. Even male judges can feel a need to be overly protective of women, when in fact [women] don't need the protection. Maybe 40 years ago women deserved more consideration in the Probate & Family Court than they do now, but times have changed. Women are smarter, more able to handle themselves in a lot of situations, more able to find work and enter professions, and I don't think the courts have to bend over backwards for them any more. A male judge may think, "My mother was a great mother, therefore the woman in front of me is probably going to be a good mother and she should have the kids." Why do 90 percent of all the custody orders have to go to women? Why are men even afraid to ask for custody?

Q. Massachusetts has been criticized by some fathers' groups as hostile to fathers. But in a large majority of cases in which mothers are awarded physical custody, the fathers are not seeking custody. Do you have any statistics showing the breakdown of custody orders when the father is actively seeking custody?

A. That's something we're going to try to get in discovery and I'm pretty sure what the answer will be.

Q. You chose to file this case in federal court rather than state court, presumably because a state court judge would not look kindly on a suit against his colleagues. Do you really think you have any reasonable chance of winning this lawsuit, or are you merely interested in bringing some of these issues to the forefront?

A. I want to win real bad. I have known a client, who was reduced to telephone visitation with his children, overdose. This case is in response to serious abuses. My clients are not just disgruntled they are victims.

1999 Lawyers Weekly

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