George MacKie v. Katrin Rouse-Weir / George MacKie v. Robert Joss

SUPREME JUDICIAL COURT

GEORGE MACKIE vs. KATRIN ROUSE-WEIR / GEORGE MACKIE vs. ROBERT JOSS

Docket:

SJC-13554 / SJC-13558

Dates:

September 6, 2024 - January 24, 2025

Present:

Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

County:

Plymouth

Keywords:

Judicial Immunity. Privileged Communication. Witness, Expert. Evidence, Privileged communication, Expert opinion, Sex offender. Sex Offender. Practice, Civil, Sex offender, Civil commitment, Motion to dismiss.

Civil action commenced in the Superior

Court Department on February 12, 2021.

A motion to dismiss was heard by Valerie

A. Yarashus, J.

After review by the Appeals Court, 103

Mass. App. Ct. 1102 (2023), the Supreme Judicial Court granted leave to obtain

further appellate review.

Civil action commenced in the Superior

Court Department on February 12, 2021.

A motion to dismiss was heard by Sharon E.

Donatelle, J.

After review by the Appeals Court, 103

Mass. App. Ct. 1102 (2023), the Supreme Judicial Court granted leave to obtain

further appellate review.

George Mackie, pro se.

Kenneth B. Walton (Patricia B. Gary also

present) for the defendants.

Mary P. Murray for Department of

Correction.

GEORGES, J. Where the Commonwealth contends that a

prisoner who was previously convicted of a qualifying sexual offense is a

"sexually dangerous person" (SDP) as defined in G. L.

c. 123A, § 1,[1] it may file a petition seeking to civilly commit the

person following his or her release from custody. See G. L. c. 123A,

§ 12 (a)-(b). The provisions

of the SDP statute, G. L. c. 123A (c. 123A), as well as our

decisional law, require the use of at least two types of expert witnesses

during this process: probable cause

experts, whose opinions are required to begin the process; and qualified

examiners, whose opinions dictate whether the case may proceed to trial. This case addresses whether these experts are

immune from liability for the opinions they provide during the process.

The plaintiff, George Mackie, was

vindicated on appeal from a jury verdict adjudicating him an SDP. He later commenced separate civil actions

against Dr. Katrin Rouse-Weir, a probable cause expert hired by the office of

the district attorney for the middle district (district attorney's office),

which petitioned for Mackie's commitment; and Dr. Robert Joss, a qualified

examiner whose services were paid for by the Department of Correction

(DOC). In his complaints, Mackie alleged

that Rouse-Weir and Joss submitted inaccurate reports to the court and falsely

represented that Mackie met the criteria to be committed as an SDP.[2]

Rouse-Weir and Joss each filed a motion to

dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974), contending entitlement to qualified immunity for the acts complained of

by Mackie. Separate Superior Court

judges allowed the motions and entered judgments for the defendants, with both

judges concluding that the defendants were entitled to absolute quasi judicial

immunity, rather than addressing the initial basis of the experts' motions –‑

that is, qualified immunity. Mackie

appealed from these judgments to the Appeals Court. In separate unpublished decisions, the same

Appeals Court panel reversed both dismissal orders, ruling that Joss and

Rouse-Weir were entitled only to qualified immunity and not to absolute quasi

judicial immunity. See Mackie v. Joss,

103 Mass. App. Ct. 1102 (2023); Mackie v. Rouse-Weir, 103 Mass. App. Ct. 1102

(2023).

We granted the defendants' applications

for further appellate review and paired the appeals for argument. For the reasons that follow, we conclude that

absolute quasi judicial immunity protects qualified examiners from liability,

and they are further protected by the litigation privilege. We also conclude that probable cause experts

are immune from liability by the litigation privilege. Accordingly, because Mackie brought his

claims against Joss and Rouse-Weir based on conduct taken solely in their

expert capacities, we affirm the Superior Court judgments dismissing his

complaints.[3]

Background. To contextualize our discussion, we first

provide a brief overview of SDP commitment proceedings, focusing on the roles

of probable cause experts and qualified examiners. We then summarize the relevant facts from the

complaints, reserving certain details for later discussion.

1.

Chapter 123A proceedings. After

an SDP petition is filed, a Superior Court judge holds a hearing to determine

whether there is "probable cause" to believe the subject of the

petition is sexually dangerous.

G. L. c. 123A, § 12 (c). In Commonwealth v. Bruno, 432 Mass. 489, 511,

513 (2000), we held that expert testimony is required at this stage, reasoning

that the question "[w]hether a person suffers from a mental abnormality or

personality defect, as well as the predictive behavioral question of the

likelihood that a person suffering from such a condition will commit a sexual

offense, are matters beyond the range of ordinary experience and require expert

testimony."

If, in light of the expert's testimony,

the judge determines that there is probable cause to believe the person is

sexually dangerous, that person "shall be committed to the [Massachusetts

Treatment Center] for a period not exceeding [sixty] days for the purpose of

examination and diagnosis under the supervision of two qualified

examiners." G. L.

c. 123A, § 13 (a). See

Chapman, petitioner, 482 Mass. 293, 300 (2019). As defined in § 1 of the SDP statute, a

qualified examiner is "designated by the commissioner of correction,"

but "need not be an employee of the [DOC] or of any facility or

institution of the [DOC]."

Qualified examiners serve a unique

gatekeeper function. Johnstone,

petitioner, 453 Mass. 544, 552 (2009).

Specifically, if neither examiner finds the person sexually dangerous,

"'the Commonwealth cannot rely upon other sources of potential expert

evidence . . . to meet its burden of proof at trial,' and the

[person] must therefore be discharged before trial." Chapman, 482 Mass. at 303 , quoting Johnstone,

supra at 553 . However, if one or both

examiners find the person is sexually dangerous, the Commonwealth may petition

the court for a trial within fourteen days from the time that the qualified

examiners submit their reports to the court.

G. L. c. 123A, § 14 (a). At trial, a person may be civilly committed

only if the jury find "unanimously and beyond a reasonable doubt that the

person named in the petition is a sexually dangerous person." G. L. c. 123A,

§ 14 (d).

2.

Underlying SDP commitment proceedings.

The district attorney's office hired Rouse-Weir as its probable cause

expert to evaluate Mackie and determine whether he met the criteria for an

SDP. After evaluating Mackie, Rouse-Weir

prepared a report opining that Mackie met the criteria of an SDP. Armed with this preliminary determination,

the district attorney's office filed in the Superior Court a petition pursuant

to G. L. c. 123A, § 12, seeking to civilly commit Mackie. At his own request, Mackie was subsequently

evaluated by another expert,[4] who determined that Mackie did not meet the

criteria for sexual dangerousness.

Mackie then met with Rouse-Weir to point out factual inconsistencies in

her report and to contest her conclusion that he met the criteria of an

SDP. Following this second interview,

Rouse-Weir updated her report, reaffirming her conclusion that Mackie was an

SDP.[5] A Superior Court judge found

probable cause that Mackie was sexually dangerous and ordered him detained at

the Massachusetts Treatment Center pending trial.

Following the probable cause

determination, Mackie was interviewed by Joss, one of the qualified examiners

hired to evaluate Mackie as statutorily required. Joss submitted his report to the court, in

which he concluded that Mackie met the diagnostic criteria for pedophilic

disorder and opined that he was an SDP.

At a jury trial held in the Superior

Court, Joss testified. Joss reiterated

his diagnosis of Mackie's pedophilic disorder, as well as his related opinion

that Mackie met the criteria for sexual dangerousness. Ultimately, the jury found unanimously and

beyond a reasonable doubt that Mackie was an SDP, and he was civilly committed

for an indefinite period.

Mackie then appealed, challenging the

Commonwealth's reliance on evidence alleging prior sexual offenses for which he

was never convicted. See Commonwealth v.

Mackie, 100 Mass. App. Ct. 78, 79 (2021).

While acknowledging that there was sufficient evidence "to support

the defendant's adjudication as an SDP," the Appeals Court agreed with

Mackie that the admission of that evidence was prejudicial error. The Appeals Court vacated the judgment and

set aside the verdict, remanding the case to the Superior Court. Id. at 88, 91 .

3.

Procedural history. a. Rouse-Weir.

Mackie commenced a civil action in the Superior Court against

Rouse-Weir. Relevant to this appeal,

Mackie alleged that Rouse-Weir "fil[ed] . . . a false report

with the [Superior] Court and ma[de] false statements under oath, which denied

[Mackie] his liberty." Rouse-Weir

filed a motion to dismiss, arguing that she was entitled to qualified immunity

as a government-hired probable cause expert performing "a discretionary task." Mackie opposed the motion, contending that

Rouse-Weir, as a private party, was not entitled to qualified immunity.

At the hearing on the motion to dismiss,

counsel for Rouse-Weir did not rely on the qualified immunity argument raised

in her written motion. Rather,

Rouse-Weir's counsel shifted arguments, asserting orally that she was instead

entitled to absolute quasi judicial immunity based on Massachusetts case

law. However, Mackie continued to focus

his arguments solely on disputing Rouse-Weir's claim to qualified

immunity.

The motion judge dismissed the case

against Rouse-Weir on the ground that she was protected by absolute quasi

judicial immunity. The judge reasoned

that Rouse-Weir "performed the essential function of evaluating [Mackie's]

record and rendering an expert opinion as to whether or not he met the criteria

of an SDP . . . . In

other words, [she] functioned as an 'arm of the court.'" Mackie timely appealed from the decision.

Before the Appeals Court, Mackie argued

that Rouse-Weir had waived her right to claim quasi judicial immunity by not

asserting it in her written motion to dismiss.

He also disputed Rouse-Weir's entitlement to both quasi judicial and

qualified immunity.[6] In response,

Rouse-Weir claimed that she had not waived her absolute quasi judicial immunity

argument where it was raised orally during the motion hearing. She further maintained that quasi judicial

immunity applied because she was performing "an essential judicial

function." As a result, Ross-Weir

argued, the Appeals Court did not need to consider qualified immunity since

quasi judicial immunity already provided her with absolute protection from

Mackie's claims.

At oral argument, Rouse-Weir's counsel

emphasized, in maintaining that Rouse-Weir was entitled to quasi judicial

immunity, that her role as a probable cause expert was "closely associated

with the judicial process."[7] When

asked about qualified immunity, counsel confirmed that it was not being pursued

as a defense. Similarly, when pressed

whether the litigation privilege applied to Rouse-Weir, her counsel responded

that while she believed that quasi judicial immunity sufficed to resolve the

case, the court could affirm on other grounds apparent in the record.[8]

In an unpublished decision, the Appeals

Court ultimately affirmed in part and reversed in part the lower court's

judgment. Unlike the motion judge, who

focused on quasi judicial immunity, the Appeals Court analyzed Rouse-Weir's

claim under the framework of absolute prosecutorial immunity. The Appeals Court concluded that Ross-Weir

was not entitled to this theory of immunity because her role as a probable

cause expert was more akin to "an investigator and a witness, at most no

more than a complaining witness."

In support, the Appeals Court cited Kalina v. Fletcher, 522 U.S. 118,

129 (1997), in which the United States Supreme Court held that absolute

prosecutorial immunity does not apply when prosecutors act outside their

prosecutorial duties and instead act as witnesses.[9] The Appeals Court also determined that

Rouse-Weir was entitled to qualified immunity for some, but not all, of

Mackie's claims, referencing Filarsky v. Delia, 566 U.S. 377, 393-394 (2012).[10]

b.

Joss. Mackie commenced a separate

lawsuit against Joss, raising similar claims to those he alleged against

Rouse-Weir.[11] Specifically, Mackie

alleged that Joss falsely reported and testified that he met the diagnostic

criteria for pedophilic disorder and was sexually dangerous. Joss responded with a motion to dismiss, asserting

qualified immunity as the ground for dismissal, which Mackie opposed.

Like Rouse-Weir, Joss did not mention

quasi judicial immunity in his written motion but raised the argument and cited

supporting case law orally during the motion hearing. A different Superior Court judge granted

Joss's motion, concluding that qualified examiners are entitled to absolute

quasi judicial immunity. The judge

reasoned that qualified examiners perform essential judicial functions and,

under c. 123A, serve as "independent" experts who function

"as though appointed by the court."

Chapman, 482 Mass. at 303 .

Additionally, unprompted the judge noted in a footnote that Joss's

statements appeared to be "protected by the litigation

privilege." Mackie subsequently

appealed.

On appeal, Mackie similarly argued that

Joss had waived any claim to absolute quasi judicial immunity by failing to

raise it in his written motion to dismiss.

Mackie also contended that Joss was entitled to neither quasi judicial

immunity nor qualified immunity. In

response, Joss's counsel argued that he had not waived quasi judicial immunity

because the motion judge understood during the motion hearing that Joss was

seeking absolute immunity rather than qualified immunity, such that the judge did

not raise the issue "sua sponte."

Joss's counsel further maintained that, as a qualified examiner, Joss

performed "an essential judicial function" and was therefore entitled

to quasi judicial immunity.

Additionally, although the issue had only been raised by the motion

judge, Joss's counsel claimed he was protected by the litigation privilege as a

witness in a judicial proceeding.

In a separate decision, the same Appeals

Court panel that decided Rouse-Weir's case likewise vacated the order of dismissal

in Joss's case and remanded it for further proceedings.[12] The panel concluded that Joss, like

Rouse-Weir, was entitled only to qualified immunity and not to absolute

prosecutorial immunity. The Appeals

Court explained that, while qualified examiners are hired by the prosecuting

party, they do not qualify for absolute prosecutorial immunity because their

statutory role "makes them at most analogous to a complaining

witness" in a criminal case. See

Kalina, 522 U.S. at 129 . The panel also

determined that Joss was not entitled to absolute quasi judicial immunity, the

issue addressed by the parties on appeal, reasoning that qualified examiners

"are not appointed by an arm of the court," but are instead hired by

"one of the parties before the court."

Discussion. 1.

Standard of review. We review the

allowance of a motion to dismiss de novo.

See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In conducting our review, we accept as true

all the facts alleged in the complaint and draw all reasonable inferences in

the plaintiff's favor. See Flagg v.

AliMed, Inc., 466 Mass. 23, 26 (2013).

"To survive a motion to dismiss for failure to state a claim, the

claimant must plausibly allege an entitlement to relief above the speculative

level." Hornibrook v. Richard, 488

Mass. 74 , 78 (2021), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008).

While the procedural history of both cases

raises several theories of immunity, we focus on two: (1) absolute quasi judicial immunity; and (2)

the litigation privilege. We begin with

a discussion of the principles governing each.

2.

Quasi judicial immunity. Judicial

immunity is a well-settled principle in our common law. See Allard v. Estes, 292 Mass. 187 , 189–190 (1935). Judges are entitled to judicial immunity,

meaning they are "exempt from liability to an action for any judgment or

decision rendered in the exercise of jurisdiction vested in [them] by

law." LaLonde v. Eissner, 405 Mass.

207, 210 (1989), quoting Allard, supra.

Notwithstanding its name, this immunity is not limited to judges. See Comins v. Sharkansky, 38 Mass. App. Ct.

37, 39 (1995). Rather, judicial immunity

has been extended to persons who perform quasi judicial functions. See Hornibrook, 488 Mass. at 80 (court-appointed

conservator); LaLonde, supra at 210-211, 212 (court-appointed psychiatrist);

Temple v. Marlborough Div. of the Dist. Court Dep't, 395 Mass. 117, 133 (1985)

(court clerks); Sarkisian v. Benjamin, 62 Mass. App. Ct. 741, 745 (2005)

(guardian ad litem).

To determine whether a person performs a

quasi judicial function warranting absolute immunity, we apply a functional

analysis. LaLonde, 405 Mass. at

212 . This approach evaluates the

"nature of the duties performed, and whether they are 'closely associated

with the judicial process.'" Cok v.

Cosentino, 876 F.2d 1, 3 (1st Cir. 1989), quoting Cleavinger v. Saxner, 474

U.S. 193, 200 (1985). See LaLonde, supra

(defendant entitled to quasi judicial immunity where he rendered expert opinion

to judge). Quasi judicial immunity is

granted to persons whose roles are "an integral part of the judicial

process," because these persons "must be able to act freely without

the threat of a law suit." Id. at

211 . In other words, those

"appointed to perform essential judicial functions are entitled to

absolute immunity." Id. at

213 . However, this immunity does not

apply "when such persons perform acts which are clearly outside the

scope" of their role in the adversarial process. Cok, supra.

3.

Litigation privilege. In

Bassichis v. Flores, 490 Mass. 143 , 149-152 (2022), this court examined the

scope of the litigation privilege, which broadly protects attorneys and

witnesses from "civil liability generally" for their statements

during judicial proceedings (citation omitted).

Specifically, the privilege ensures that statements made by witnesses

during judicial proceedings, as long as they are relevant to the case, are

"absolutely privileged, even if uttered maliciously or in bad

faith." Aborn v. Lipson, 357 Mass.

71, 72 (1970), quoting Mezullo v. Maletz, 331 Mass. 233, 236 (1954). See Bassichis, supra at 150, 154; Correllas

v. Viveiros, 410 Mass. 314, 319 (1991).

Furthermore, the litigation privilege

"extends beyond statements that are made in the court room itself to

'communications preliminary to a proposed judicial proceeding.'" Bassichis, 490 Mass. at 150, quoting Sriberg

v. Raymond, 370 Mass. 105, 108 (1976) (adopting construction of privilege as

laid out in Restatement [Second] of Torts).

The purpose of the litigation privilege is twofold: to encourage "zealous advocacy" by

attorneys and to promote "full disclosure" by witnesses, without the

fear of civil liability. Bassichis,

supra at 151-152.

4.

Analysis. a. Joss.

Mackie argues that Joss is not entitled to absolute quasi judicial

immunity because, as a qualified examiner, Joss was not appointed, hired, or

paid by the court, but rather "hired by the [DOC]."[13] We disagree with this argument because it

disregards established precedent consistently noting that "[a]lthough

appointed by the Commissioner of Correction, . . . an expert who

serves as a qualified examiner is recognized to be independent and to serve as

though appointed by the court."

Chapman, 482 Mass. at 303 . See

Commonwealth v. Felt, 466 Mass. 316 , 322 & n.9 (2013); Gangi v.

Commonwealth, 462 Mass. 158, 162 (2012); Johnstone, 453 Mass. at 551 ;

Commonwealth v. Sargent, 449 Mass. 576, 580 (2007); Commonwealth v. Connors,

447 Mass. 313 , 314 n.2 (2006).

The "functional analysis" central

to determining the scope of quasi judicial immunity examines the nature of the

person's duties and his or her relationship to the judicial process, rather

than who hires (or pays) him or her. For

example, in LaLonde, 405 Mass. at 212 & n.9, we held that a psychiatrist

appointed by the Probate Court to evaluate a family and report findings to the

court was entitled to quasi judicial immunity, even though a member of the

family was ordered by the court to pay for the expert's services.

With that aperture in mind, applying a

"functional analysis" here we conclude that qualified examiners

perform an "essential judicial function[]." LaLonde, 405 Mass. at 212-213 . First, qualified examiners are essential to

SDP commitment proceedings, as recognized in Johnstone, 453 Mass. at 551-552 ,

where we highlighted their indispensable role.

See id. (qualified examiners are "integral to nearly every step of

the civil commitment process").

Detailing the critical role played by qualified examiners under c. 123A,

we explained:

"The

statutory scheme . . . expressly sets the qualified examiners apart

from other sources of expert evidence.

Indeed, the role of the qualified examiners within that scheme persuades

us that the Legislature intended them to serve in a capacity similar to that of

a gatekeeper, deciding whether a person warrants commitment as a sexually

dangerous person. Implicit in this view

is the conclusion that, if both qualified examiners determine that a person is

not sexually dangerous, the Commonwealth cannot meet its burden of

proof."

Id. at 552 . In this respect, qualified examiners serve a

purpose beyond that of a regular expert witness. Their testimony is "the essential basis

for a finding of sexual dangerousness."

Green, petitioner, 475 Mass. 624, 630 (2016).

Second, both legal precedent and the

statutory framework of c. 123A establish that the role of qualified examiners

is not only essential, but quasi judicial.

Although appointed through the DOC, qualified examiners act as independent

experts functioning as an arm of the court, not beholden to any party. See Chapman, 482 Mass. at 303 . Moreover, much like how a judge may, in

certain circumstances, act as a gatekeeper, qualified examiners'

"gatekeeper" role underscores their quasi judicial functions. See id. at 307-308 ; Green, 475 Mass. at 630 ;

Johnstone, 453 Mass. at 551-552 ; LaLonde, 405 Mass. at 212-213 . Because qualified examiners play such an independent

(and essential) role in SDP commitment proceedings, the question of their

immunity raises the same practical and policy concerns identified in Lalonde,

supra at 211-212. That is, without quasi

judicial immunity, "human nature indicates that [qualified examiners],

faced with the threat of personal liability, will be less likely to offer the

disinterested objective opinion that the court seeks." Id. at 212.

Given these considerations, qualified

examiners discharging their duties pursuant to c. 123A are entitled to absolute

quasi judicial immunity.[14] Because

Mackie's complaint pertains solely to Joss's conduct as a qualified examiner,

he is entitled to absolute quasi judicial immunity.

b.

Rouse-Weir. Mackie argues that

Rouse-Weir is not entitled to absolute quasi judicial immunity because, as a

probable cause expert, she was not acting on behalf of the judiciary.[15] As a source of friction with Mackie's

argument, probable cause experts play an essential role in SDP commitment

proceedings, analogous to the integral "gatekeeper" function

performed by qualified examiners. See

Chapman, 482 Mass. at 303 ; Bruno, 432 Mass. at 511, 513 . The nature of their role alone, however, does

not determine what type of immunity, if any, to which probable cause experts

are entitled. As discussed, whether

these experts qualify for quasi judicial immunity requires a functional

analysis. While there is some overlap

between their responsibilities and those of qualified examiners, the quasi

judicial immunity granted to qualified examiners does not automatically apply

to probable cause experts. This is due

to significant differences in their roles within c. 123A proceedings.

At the probable cause stage, the

Commonwealth can consult as many experts as necessary until it finds one

willing to testify that the person is sexually dangerous. See Chapman, 482 Mass. at 304 ("a

finding of probable cause . . . can rest on the opinion of any expert

[the Commonwealth] retained to testify that the individual is sexually

dangerous"). Indeed, a probable

cause expert's testimony must "establish probable cause" regarding

sexual dangerousness for the Commonwealth to seek to have the person committed

as an SDP. Bruno, 432 Mass. at 511,

513 . In contrast, qualified examiners operate

independently, see Chapman, 482 Mass. at 303 ; they do not need to agree with

the Commonwealth on the question of sexual dangerousness, and may even disagree

with each other.[16] These differences

are significant in determining the scope of potential immunity.

Notwithstanding, we need not decide

whether probable cause experts are entitled to absolute quasi judicial immunity

because they are independently protected by the litigation privilege. On this point, we are persuaded by the

Appeals Court's articulation of when the litigation privilege applies -- that

is, a court must analyze the facts on "a case-by-case basis" to

determine "whether a proceeding is sufficiently judicial or quasi judicial

in nature" (citation omitted).

Patriot Group, LLC v. Edmands, 96 Mass. App. Ct. 478 , 484-485

(2019). Probable cause hearings are a

"formal adversary proceeding."

Bruno, 432 Mass. at 512-513 . See

G. L. c. 123A, § 12 (c), (d). The respondent has the right to counsel, the

right to present evidence, and the right to cross-examine. G. L. c. 123A,

§ 12 (d) (1)-(3). See

Bruno, supra. Because "a proceeding

that include[s] the right to counsel, the right to present evidence, the right

to cross-examine adverse witnesses, and the threat of perjury, constitute[s] a

quasi judicial proceeding" (quotations and citation omitted), Patriot Group,

LLC, supra at 485, the litigation privilege applies to probable cause hearings

conducted pursuant to G. L. c. 123A, § 12.

The litigation privilege protects experts

who testify at probable cause hearings, allowing them "to testify without

fear of civil liability."

Bassichis, 490 Mass. at 152. This

privilege also extends to "communications preliminary to litigation,"

Sriberg, 370 Mass. at 109 , including reports prepared by probable cause experts

in anticipation of a hearing.

Importantly, the privilege applies even if the expert's statements were

made "maliciously or in bad faith."

Mezullo, 331 Mass. at 236 . See

Bassichis, supra at 150.[17]

In this case, Rouse-Weir was engaged by

the district attorney's office to evaluate whether Mackie met the criteria of

an SDP. Her opinion was necessary to

initiate the SDP commitment proceedings.

See Bruno, 432 Mass. at 511, 513 (requiring use of experts at SDP

probable cause hearings). After meeting

with Mackie twice, Rouse-Weir prepared evaluation reports in which she

concluded –- and later reaffirmed -- that Mackie was an SDP. Based on her opinion, the court found

probable cause that Mackie was an SDP and detained him pending trial.

The conduct Mackie challenges, including

Rouse-Weir's allegedly false testimony and her submission of an allegedly

inaccurate report, arises solely from her communications preliminary to or

during the probable cause hearing. As

such, the litigation privilege shields Rouse-Weir from liability.[18]

Judgments

affirmed.

footnotes

[1] General Laws

c. 123A, § 1, states, in relevant part, that a "sexually

dangerous person" is

"any person

who has been (i) convicted of or adjudicated as a delinquent juvenile or

youthful offender by reason of a sexual offense and who suffers from a mental

abnormality or personality disorder which makes the person likely to engage in

sexual offenses if not confined to a secure facility; (ii) charged with a

sexual offense and was determined to be incompetent to stand trial and who

suffers from a mental abnormality or personality disorder which makes such

person likely to engage in sexual offenses if not confined to a secure

facility; or (iii) previously adjudicated as such . . . and whose

misconduct in sexual matters indicates a general lack of power to control his

sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by

either violence against any victim, or aggression against any victim under the

age of 16 years, and who, as a result, is likely to attack or otherwise inflict

injury on such victims because of his uncontrolled or uncontrollable

desires."

[2] Against both

defendants, Mackie also alleged "medical malpractice" and violations

of both G. L. c. 12, § 11I, and his right to liberty as secured

by art. 10 of the Massachusetts Declaration of Rights. He further accused Rouse-Weir of perjury and

claimed that Joss failed to comply with the statutory criteria detailed in

G. L. c. 123A, § 1.

[3] We

acknowledge the amicus brief submitted by the DOC.

[4] "[T]he

person named in the petition may retain experts or professional persons to

perform an examination on his behalf."

G. L. c. 123A, § 14 (b). See Bruno, 432 Mass. at 495-496 .

[5] The updated

report had twenty-seven paragraphs missing from the initial report.

[6] At oral

argument, Mackie reiterated his claim that Rouse-Weir is not a State actor,

emphasizing that she was not hired by the court.

[7] At oral

argument before the Appeals Court for Joss's case, appellee counsel stated

that, for both cases, they "will argue" for "either or"

with respect to quasi judicial immunity and qualified immunity.

[8] When the

court asked for further clarification as to when counsel for the appellees

briefed the litigation privilege issue, counsel stated that the litigation

privilege was briefed in "one of the cases." The record reflects that the litigation

privilege was raised in Joss's brief to the Appeals Court but was not mentioned

in Rouse-Weir's brief.

[9] Below,

Rouse-Weir did not expressly claim absolute prosecutorial immunity in her

written motion to dismiss or orally at the motion hearing. Rather, the motion judge discussed, but did

not rely on, prosecutorial immunity in her decision granting the motion to

dismiss.

[10] In Filarsky,

566 U.S. at 393-394 , the Court extended qualified immunity to a private

attorney temporarily retained by a city to assist in internal affairs

investigations. The Court determined

that as "[t]here is no dispute that government employees performing such

work are entitled to seek the protection of qualified immunity," those

acting on the government's behalf should be entitled to that same protection. Id.

[11] A few

immaterial differences in the causes of action, not worth reciting here, have

no bearing on the court's decision.

[12] The Appeals

Court remanded Joss's case for consideration of whether Mackie had alleged any

violation of a clearly established statutory or constitutional right for the

purpose of determining whether qualified immunity applied.

[13] In his

complaint, Mackie alleged that Joss "was hired by the [DOC] as a

[qualified examiner] and assigned to interview [Mackie] . . . by a

private firm, which is subject to [a] contract [with], hired by and paid by the

DOC." The DOC, in its amicus brief,

similarly explains: "The DOC

contracts with a vendor for the provision of [qualified examiner] services.

. . . The [qualified

examiners] are paid for their services through DOC's contract with its

vendor."

[14] We recognize

that Joss is also protected by the litigation privilege for reasons discussed

below. Because a qualified examiner's

report must be filed with the court in advance of trial, G. L.

c. 123A, § 13 (a), the "reports are admissible at the trial

of the petition," Johnstone, 453 Mass. at 549 , and qualified examiners may

testify at trial. Accordingly, they are

protected by the litigation privilege.

See Bassichis, 490 Mass. at 152, 158 (privilege protects testifying

witnesses for communications made during judicial proceeding and conduct during

course of litigation).

[15] Mackie

continues to argue that because the defendants only moved to dismiss the

complaints on qualified immunity grounds, any alternative immunity theories

have been waived. However, as noted

earlier, both defendants raised the issue of absolute quasi judicial immunity

at the hearings on their motions to dismiss.

The litigation privilege extends to witnesses in judicial proceedings,

who are "absolutely privileged" to publish even defamatory statements

related to the proceedings, as their testimony is essential to the

"administration of justice."

Restatement (Second) of Torts § 588 & comment a (1977). Furthermore, "we may consider any ground

apparent on the record" that supports the trial court's decision. Feeney v. Dell Inc., 454 Mass. 192, 211

(2009).

[16] See, e.g.,

LeSage, petitioner, 488 Mass. 175 , 177 (2021) (two qualified examiners produced

differing opinions as to petitioner's possible sexual dangerousness); Chapman,

482 Mass. at 297 (both qualified examiners concluded that defendant was not

sexually dangerous); McIntire, petitioner, 458 Mass. 257, 259 (2010), cert.

denied, 563 U.S. 1012 (2011) (same); Johnstone, 453 Mass. at 546 (same).

[17] Mackie

argues against immunity, claiming that potential liability would deter

negligent or fabricated reports and perjury.

While we acknowledge the public policy concerns surrounding immunity in

such cases, we note that "our judicial system has inherent safeguards that

minimize the risk of decisions based on inaccurate, misleading, or negligently

conducted evaluations." LaLonde,

405 Mass. at 212 . Additionally,

G. L. c. 123A, § 12 (d) (3), provides respondents with

the right to cross-examine witnesses who testify against them to highlight any

deficiencies in the witnesses' reports or testimony. LaLonde, supra. Furthermore, respondents also have the right

to "seek appellate review," providing an additional safeguard against

decisions based on negligent or fabricated reports. Id. at 213 .

In summary, various procedural protections exist to shield respondents

from the risk that a probable cause expert might intentionally misrepresent facts

or act improperly during SDP commitment proceedings.

[18] Because we

determine that Rouse-Weir is protected by the litigation privilege, we do not

reach the questions whether a probable cause expert under G. L.

c. 123A is entitled to absolute prosecutorial immunity, quasi judicial

immunity, qualified immunity, or any other form of immunity.