Petition for Writ of Certiorari — Bodhisattva Skandha, Petitioner v. Gloriann Moroney

Supreme Court briefOct 7, 2020

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IN THE

SUPREME COURT OF THE UNITED STATES

Bodhisattva Skandha — PETITIONER

(Your Name)

VS.

Massachusetts Appeals Court

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

FILED

OCT 0 7 2020

OFFICE OF THE CLERK

SUPREME COURT. U.S.

Massachusetts Appeals Court

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Bodhisattva Skandha

(Your Name)

W28163 - Box 43,

(Address)

Norfolk, MA 02056

(City, State, Zip Code)

(Phone Number)

RECEIVED

OCT 1 6 2020

OFFICE OF-THE CLERK

SUPREME COURT

QUESTION(S) PRESENTED

Issue #1:

WHETHER THE LOWER COURT ABUSED ITS

DISCRETION BY NOT ALLOWING THE TORT

CLAIM TO GO FORWARD?

pp. 7-16

Issue #2:

WHETHER MAKING FALSE STATEMENTS

IN AN OFFICIAL DOCUMENT CONSTITUTES

FRAUD?

pp. 16-20

Issue #3:

WHETHER THE DEFENDANT IS ALLOWED TO

REPRESENT THE PAROLE BOARD WHERE SHE

IS NOT AN ASSISTANT ^ATTORNEY GENERAL?

pp. 20-27

Issue #4:

WHETHER THE RESPONDENT WAS REQUIRED

TO APPLY THE LAW TO THE FACTS, AS

DELINEATED BY THE UNITED STATES SUPREME

COURT?

pp. 27-28

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

[*] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Massachusetts Appeals Court

Middlesex Superior Court

Marian T. [Ryan^ District Attorney

RELATED CASES

Skandha v. Gloriann Moroney, 97 Mass. App. Ct. 1 11 3 (2020—)

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

4-6

REASONS FOR GRANTING THE WRIT

7-28

CONCLUSION

INDEX TO APPENDICES

APPENDIX A \Jjkandha v. Gloriann Maroney, No. 2019-P-0847

APPENDIX B

Skandha v. Gloriann Moroney, No. FAR-27466

APPENDIX C Record Appendix pp. 1-42

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

Page No:

Citation:

U.S. Supreme Court

Armstrong v. Manzo, 380 U.S. 545 (1965)

Bray v. Alexandria Women's Health

Clinic, 506 U.S. 263 (1993)

Conley v. Gibson, 355 U.S. 41 (1957)

Cooter & Gell v. Harjimarx, 496 U.S. 384 (1 990)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Erickson v. Pardus, 531 U.S. 89 (2007)

Freytag v. Commissioner, 501 U.S. 868 (1991)

Musick, peeler & Gannet v. Employers Ins.

of Wausau, 508 U.S. 286 (1993)

Oneale v. Thornton, 10 U.S. 53 (1810)

Radszanower v. Touche Ross & Co., 426 U.S. 1 48 (1976)

U.S. v. Ron Pair Enterprises, Inc. 489 U.S. 235 (1989)

U.S. v. Throckmorton, 98 U.S. 61 (1878)_J

Wolff v. McDonnell, 418 U.S. 539 (1974)

Federal Court

United States v. Andrews, 462 F.2d 914 (1972)

Massachusetts

Attorney General v. Brissenden, 271 Mass. 172 (1930)

Brown v. Gerstein, 17 Mass.App.Ct. 558 (1984)

Cohen v. Santoianni, 330 Mass. 187 (1953)

Com., v. Kozlowsky, 238 Mass. 379 (1921)

TABLE OF AUTHORITIES CITED CONT'

Citation:

Page No:

Com • / v. Masskow, 362 Mass. 662 (1972)

Com., v. Seaver, No. 6081CR58384 (1960)

Correas v. Schoeck, 479 Mass. 686 (2018)

Coughlin v. Dept, of Corr., 43 Mass.App.Ct. 809 (1997)

Cumis Ins. Soc'y v. B.J.'s

Wholesale Club Inc., 455 Mass. 458 (2009)

Feeney v. Commonwealth, 373 Mass. 359 (1997)

Friedman v. Jablonski, 371 Mass. 482 (1976)

Galiastro v. Mortgage Electronic

Registration System, 467 Mass. 160 (2014)

Hashimi v. Kalil, 388 Mass. 607 (1983)

Hathaway v. Crocker, 48 Mass. 262 (1843)

Ha^yes v. Ellrich, 471 Mass. 592 (201 5)

Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008)

IN the Matter of Greene, 470 Mass. 100(61 {(2016)

Lazzaro v. Holladay, 15 Mass.App.Ct. 108 (1983)

Matter of Angela, 445 Mass. 55 (2005)

Matter of Komack, 429 Mass. 1029 (1999)

Merriam v. DeMoulas Super Mkts • / 464 Mass. 721 (2013)

Nader v. Cintron, 372 Mass. 96 (1977)

Nelson v. Comm'r of Corr. 390 Mass. 379 (1983)

Nichols v. Rogers, 139 Mass. 146 (1885)

Opinion of the Justices, 365 Mass. 639 (1974)

Passatempo v. McMenimen, 461 Mass. 279 (2011)

iii

TABLE OF AUTHORITIES CITED CONT I

Citation:

Page No:

Robinson v. Old Colony Street

Railway, 189 Mass. 594 (1905)

Russell v. Nichols, 434 Mass. 1015 (2001)

Sec'y of Admin & Fin. v.

Attorney General, 367 Mass. 154 (1975)

Skandha & Another v. Bonner & Others, NO. 1681cv02966

Skandha v. Gloriann Moroney, 97 Mass.App.Ct. 1113 (2020) 1

Skandha v. Moroney, No. 1681cv00246

Wilmington v. Dept, of Pub.. : i

Utilities, 340 Mass. 432 (1 9W)

Other •

14th Amend. U.S. Const.

Art II, §2, cl. 2

Art. VI, cl. 2, U.S. Const.

26 U.S.C.S. §7443A(b)(4)

42 U.S.C. §1983

Art. XII, Mass. Const.

Art. XXX, Mass. Const.

G. L. c. 12 §'j_J

G.L. c. 12 §3

G.L. c. 12 §27

G.L. c. 27 §5

G.L. c. 31 §23

G.L. c. 127 §130

TABLE OF AUTHORITIES CITED CONT I

Citation:

Page No:

Mass.R.Civ.P. 8(a)

Mass.R.Civ.P. 9(b)

Mass.R.Civ.P. 11

Mass.R.Civ.P. 12(b)(6)

Note:

Prisoners are not allowed copies of -Regulations, Statutes,

or Caselaw to create an Addendum, per the Law Librarian at

MCI-Norfolk.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[x] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix _A

to the petition and is

reported at 97 Mass. App. Ct. 1 1 1 3 (2020)

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

Massachusetts Appeals Court

The opinion of the

court

appears at Appendix_to the petition and is

[xj reported at 97 Mass. App. Ct. 1 1 1 3 (2020)

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[X] For cases from state courts:

The date on which the highest state court decided my case was /'April 29, 202o\

A copy of that decision appears at Appendix A

[ 9 A timely petition for rehearing was thereafter denied on the following date:

.27 f—2020________, and a copy of the order denying rehearing

appears at Appendix _b

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

-3-

STATEMENT OF THE CASE

The petitioner was involved in a civil suit against

members of the Massachusetts Parole Board, Skandha &

Another v. Bonner & Others, No. 1681cv02966.

The members

of the Parole Board were represented by Amanda N. Early,

whose usual and normal practice was to place Gloriann

Moroney' son 'Jier. pleadings. [Appendix C, p. 1]

After Ms. Early filed her Notice of Withdrawal of

Appearance, Jennifer Romeo Porcaro appeared using the

same Special Assistant Attorney General (SAAG desig

nation used by Early, only this time naming Shara

Benedetti.

[App. 2]

On August 8, 2018, Gloriann Moroney issued the

petitioner a "DECISION" by the Parole Board, based on

the October 3, 2017 hearing.

The petitioner served a

Notice of Tort Claim to Ms. Moroney on December 19, 2018.

Ms. Moroney did not respond to the petitioner's claim

of fraud. [App. 3-6]

On January 23, 2019, the petitioner filed a Tort

Claim in the venue of the defendant, Gloriann Moroney.

-4-

She was sued in personal capacity for fraud

because she acted outside her official capacity as

general counsel to the Massachusetts Parole Board.

[App. C, 7-9]

On March 4, 2019, the petitioner mailed a Notice

Of Claim to the Clerk of Middlesex County, Michael A.

Sullivan, for the breach of his fiduciary duty to

issue the summons for Skandha v. Moroney, No. 1981cv00246.

ON April 4, 2019 the Court, Barry-Smith, J.,

issued an Order pursuant to Standing Order 92==1

that the "complaint is to be entered without the

requirement of a filing fee." [&pp. C, p. 12]

The next day, April 5, 2019, the same Court,

Barry-Smith, J., issued an Order the petitioner had

failed to state for facts that show an entitlement to

relief, "...consistent with Mass.R.Civ.P. 8(a),"

i.e., that he failed to state a claim pursuant to

Mass.R.Civ.P. 12(b)(6) tAPP* c/ 13-14]

The petitioner filed a Notice of Appeal, which

was acknowledged by the Court, Yarashus, J., and

the petitioner presented the facts to the Respondent,

Massachusetts Appeals Court.

-5-

The petitioner was denied parole for a period of

4 years and will be reviewed again in 2021.

The DECISION from that hearing, issued August 8,

2018, is the written opinion of the defendant Gloriann

Moroney, General Counsel, not an SAAG, not a member

of the Parole Board.

[App. C, p. 5]

The DECISION contained fraudulent statements,

in the defendant's "opinion" in her personal capacity

where she fraudulently disclaimed authorship.

The petitioner's Tort Claim contained factual

claims that the defendant committed fraud, called

herself a Special Assisaant Attorney General, in

violation of G.L. c. 12 §3, and misrepresented the

Parole Board's decision-making process. Apparently,

the petitioner's request to be paroled was denied by

Moroney, not any member of the Parole Board. Members

of the Parole Board did not state any reason for

denial nor did they acknowledge Gloriann Moroney's

decision to deny parole.

[App. C, p. 5]

The defendant signed the DECISION of August 8,

2018 as "Gloriann Moroney, General Counsel," and

Maloney had no defense she was not an SAAG.

-6-

REASONS FOR GRANTING THE PETITION

Issue #1:

WHETHER THE LOWER COURT ABUSED ITS

DISCRETION BY NOT ALLOWING THE TORT

CLAIM TO GO FORWARD?

The Court, Barry-Smith, J., cited Mass.R.Civ.P.

8(a) and Mass.R.Civ.P. 12(b)(6), without prejudice,

allowing for an amended complaint by June 5, 2019.

[Appendix C ("App."), p. 13]

Discarding an amended complaint, the petitioner

filed a Notice Of Appeal on April 15, 2019 because he

believed he set forth in his Complaint proper 8(a),

12(b)(6), and Rule 9(b) factual claims.

Rule 8(a);

The petitioner set forth in his Tort Complaint

a short and plain statement of the claim, showing

he is entitled to relief, and a demand for judgment.

Conley v. Gibson, 355 U.S. 41, 45 (1957); Erickson

v. Pardus, 531 U.S. 89, 94 (2007)

All non-conclusory factual allegations must be

treated as true at the pleading stage. Erickson,

531 U.S. at 94.

-7-

"...the defendant has committed fraud...

using fraudulent statements and misrepresentations..."

And, "...only an attorney general may represent a

state agent, i.e, parole board members." [App. C,

p. 7]

The defendant "...is in violation of G.L. c.

12 §3..." [Id.,] "...The defendant acted outside

the purview of her official capacity as General

Counsel by fraudulently stating facts in her own

opinion which were patently false..." [App. C, p. 8]

The above statements are very "short and plain,"

which all the petitioner is required to do at the

pleading stage is to give the defendant notice of

the claim(s). (bnley, 355 U.S. at 45.

Rule 12(b)(6):

The Respondent must review the allowance

of motions to dismiss "de novo." Merriam v. Demoulas

Super Mkts., 464 Mass. 721, 726 (2013)

"...We accept as true the facts

alleged in the plaintiff's complaint

as well as any favorable inferences

that can reasonably be drawn from

them"

-8-

See, Galiastro v. Mortgage Electronic Registration

System, 467 Mass. 160, 164 (2014)

In order to survive the Court's "motion to

dismiss," the petitioner's Tort Complaint must

include factual allegations sufficient to raise a

right to relief above the speculative level. See,

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008)

Here the Tort Complaint [App. C, pp. 7-9]

only fails if it appears beyond doubt the petitioner

can prove no set of facts which would entitle him to

relief. Nader v. Cinitron, 372 Mass. 96, 98 (1 977)

Rule 9(b):

This rule is consonant with Massachusetts

Practice that averments of fraud must be stated with

particularity, which the petitioner has done. See,

Nichols v. Rogers, 139 Mass. 146 (1885); Cohen v.

-J

Santoianni, 330 Mass. 187 (1953), and that the

defendant has caused harm to the petitioner.

General Laws, c. 27 §5 provides in pertinent

part:

-9-

"The parole board shall (a) within its

jurisdiction...determinejwhrchjprisoners

in the correctional institutions of the

commonwealth or in the jails or houses

of correction may be released on parole

and when and under what conditions...."

General Laws c. 127 §130 provides:

"No prisoner shall be granted a parole

permit merely as a reward for good conduct,

permits shall be granted only if the board

is of the opinion, after consideration of

a risk and needs assessment, that there is

a reasonable probability that, if the

prisoner will live and remain at liberty

without violating the law and that release

is not incompatible with the welfare of

society. In making this determination, the

parole board shall consider whether, during

the period of incarceration, the prisoners

have participated in available work oppor

tunities and education or treatment programs

and demonstrated good behavior. The board

( ;shall also consider whether risk reduction

programs, made available through collaboration

with criminal justice agencies would minimize

the possibility of the prisoner re-offending

once released, The record of the board's

decision shall contain a summary statement

of the case indicating the reasons for the

decision, including written certification

that each board member voting ...has reviewed....

[Emphasis added]

-1 0-

The fraud, pursuant to Rule 9(b), is that

despite the disclaimer of the defendant, "This

signature does not indicate authorship of the de

cision," [App. C, p. 5], it is the only signature

on the 3rd page of the DECISION which certifies it

as an official document.

Contrary to the defendant's

opinion that "...the Board is of the unanimous opinion

that Bodhisattva Skandha is not yet rehabilitated and,

therefore does not merit parole at this time.

[App. C,

p. 5 fl5]

The transcript of the October 3, 2017 /review

hearing contradicts the defendant's statement,

The

petitioner is entitled to "produce all proofs,"

according to Article XII of the Massachusetts Consti

tution, so the transcript is evidence of the defen

dant's fraudulent statements. Coughlin v. Department

of Correction, 43 Mass. App. Ct. 809, 815-817 (1997)

The statements of the defendant are false

representations of material facts, with the defen

dant's knowledge of their falsity, to deter review

of a higher authority, which the petitioner is forced

to rely upon, to his detriment.

-11-

See, for example, Brown v. Gerstein, 17 Mass.

App. Ct. 558, 567 [n.14] (1984)(Fraud & Deceit

are interchangeable)

The August 8, 2018 DECISION and claims by the

defendant is that five (5) Board members voted to

deny parole with a four (4) year review.

One (1)

Board member voted to deny parole with a two-year

review. [App. C, p. 3 [n.1]]

This case is not about "making parole," but is

about Due Process and the concomitant legal procedures

to which the petitioner is entitled. Matter of Angela,

445 Mass. 55, 62 (2005)[citing] Armstrong v. Manzo,

380 U.S. 545, 552 (1965)

The transcript of the October 3, 2017 review/

revocation hearing would reveal the petitioner telling

the Board members he would not be back.

This is

deception by omission in the August 8, 2018 DECISION.

The fraudulent statements by the fdefeh.dant

include, but are not limited to:

"leaving the State of California..."

-1 2-

"...and for alcohol consumption..."

"...Montana and Hawaii..."

"Mr. Skandha told the Board that he has been

without drugs or alcohol for 25 years."

[App. C, p. 4]

"...has not demonstrated a level of rehabili

tative progress..."

"...yet to address his causative factors

through engagement in relative treatment/

.programming."

"...during the period of his incarceration."

"A risk needs assessment and whether risk

reduction programs could effectively minimize

Mr. Skandha's risk of recidivism."

The previous eight (8) statements made by the

defendant are false, and deliberately so.

The

transcript of the October 3, 2017 review/revocation

hearing would have none of these statements by the

defendant.

In Judge Barry-Smith's Order of April 5, 2019,

the Court dismissed the complaint unter Rule 12(b)(6)

and dunned the petitioner for an amended complaint.

[App. C,(£^TJj14]

Because the petitioner knew he had stated a

claim he chose to go forward. [App. C, p. 15-16]

-1 3-

The Court, Barry-Smith, J., cited Mass.R.Civ.P.

8(a) in its Order.

However, Rule 9(b) must be read

with Rule 8(a), and does not require the petitioner

to set out in detail all the facts upon which he based

his claims, nor did it require the plaintiff/petitioner

to plead detailed evidentiary matters. Lazzaro v.

Holladay, 15 Mass. App. Ct. 108, 110 (1983)

In Lazzaro, a trustee for a real estate .,,

investment trust (REIT) filed suit against REIT's

former trustees, claiming thatrthey committed fraud.

On [review of the record, the Court concluded the com

plaint complied with the specificity required by

Rule 9(b) for allegations of fraud.

The Court noted

that the trustee specifically alleged that the former

trustees knew of the falsity of their statements,

intended to induce reliance on their statements and

caused harm through their fraud.

So it is here.

The public document created by

the defendant is meant to show wrongdoing by the

petitioner in the performance of his parole agreement

\_"

with the Massachusetts Parole Board, or the Board's

failure to delineate a clear path to serious consider

ation for the serving of the sentence outside prison.

-1 4-

Skandha & Another v. Bonner, & Others, No. 1681cv02966.

Pertinent and true statements, that he would wear

a Global Positioning System (GPS) device because he

is Bipolar, is memorialized in the decision.

When he

is in the manic state he does not have the power to

control impulses.

He requested Lithium.

Prior to the October 3, 2017 hearing, the

plaintiff submitted requests to be seen by the insti

tutional psychiatrist, who refused to see him.

The

defendant's statement, "has not seen a psychiatrist,"

is misleading, implying it is the petitioner's fault

he was not allowed an interview. [App. C, p. 4]

The petitioner was interviewed by 5 psychiatric

social workers, some interns, who, because he was not

suicidal or violent, would not "open a case" for him.

In 2019, the ^Mid^lesex Superior Court, Fahey, J.,

in Commonwealth v. Seaver, No. 6081CR58384, appointed

Michael Nam-Krane to represent him at the 2021 review

parole hearing.

However, without the medication for

his Bipolar disease, parole would be an exercise in

futility. Nelson v. Comm'r of Corr., 390 Mass. 379,

397 (1983)

-1 5-

According to the "principle of least effort,"

it was easier for the defendant to write up the

DECISION in the form of a legal brief than to state

the truth, except at least 8 of the statements were

fraudulent, which vitiated the DECISION. United States

v. Throckmorton, 98 U.S. 61, 64 (1878); Hayes v.

Ellrich, 471 Mass. 592 (2015)

Issue #2:

WHETHER MAKING FALSE STATEMENTS

IN AN OFFICIAL DOCUMENT CONSTITUTES FRAUD?

In the Lazzaro case:

The complaint sets forth

a claim that the individual defendants, Holladay and

the Wallaces, owned or controlled five corporations

which, in turn, were the partners of defendant

E.onJiirental Advisors (Advisors), a partnership. The

; princip^alji business of Advisors was to act as Contin

ental Mortgage Investors (CMI) investment advisor.

Advisers

income would pass to the individual de

fendants, and any increase in income would be to the

benefit of the individual defendants.

The plaintiff alleged that i_byj misrepresentations

and the failure to disclose material information the

-1 6-

individual defendants undertook to increase dramati

cally the extent of CMI1s loan portfolio, and to

maintain an inflated value of the portfolio so as to

increase the fees paid to Advisers which were based on

a percentage of the amount of loans.

More specifically,

the complaint alleges that the individual defendants

recommended to their fellow severally liable trustees

of CMI that the portfolio be increased by making loan

commitments and disbursements to certain borrowers,

knowing that the loans, for reasons stated in the

complaint, created an unreasonable and substantial investment risk to CMI.

Advisors profited by their

fraudulent behavior.

At bar, the disturbing focal point of this

fraud was only enhanced with the defendant's signature

on the DECISION, which means that the signature con

stitutes certification the defendant read it and

believes it to be well-grounded in fact, and legally

tenable. Mass.R.Civ.P. 11; Cooter & Gell v. Hartmarx,

496 U.S. 384 (1990)

Apparently the defendant had no incentive to

investigate the facts more carefully before issuing

-1 7-

the August 8, 2018 DECISION, or worse, simply did not,

in a deliberate manner, care to be accurate.

The defendant had, or should have had, the

reasonable forseeability of harm she caused to the

petitioner. Correa v. Schoeck, 479 Mass. 686, 698

(2018)

Evidence that the defendant's fraudulent conduct

is real may be found in the documents of the Archer v.

Wall case, No. 1384cv04149. [App. C, pp. 17-29]

The defendant was listed as "By its attorney

designated by SAAG, Gloriann Moroney." [App. C, p. 20]

The document was signed by Shara Benedetti. [Id.,]

In the Notice Of Withdrawal of Appearance,

signed by Amanda N. Early, "Attorney designated by

SAAG, Gloriann Moroney," it is implied the defendant

is a)Special Assistant Attorney General. [App. C, p. 1[]

k___ )

Then in Defendants' Opposition to Plaintiffs'

Motion To Expand The Record With Appendices, Jennifer

Romeo-Porcaro signed the document showing her to be

the("Attorney~designated by SAAG Shara Benedetti,"

-1 8-

dated May 16, 2019. [App. C, p. 2]

This must be

some sort of "cloaking‘device^" kept in the office.

Previously, on September 21, 2018, Shara Benedetti

was just "Counsel" and Gloriann Moroney was an "SAAG."

[App. C, p. 22]

The preprinted form [App. C, p. 25] shows

the defendant, Gloriann Moroney, with no title, either

as an attorney or an SAAG.

In Cumis Ins. |S;oc' y Inc, v. B.J.'s Wholesale Club

Inc.,455 Mass. 458, 471 (2009) the Supreme Judicial Court

held the plaintiff must establishe that the defendant

made a false representation of material fact, with

knowledge of the falsity, for the purpose of inducing)

the petitioner to act on the defendant's representations.

The defendant is ai attorney who made false state

ments in an official document, made to memorialize the

truth of the matters involved. In the Matter of Greene,

476 Mass. 1006 (2016)(Attorneys who make false state

ments sometimes are disciplined with term suspensions

ranging from six months. Matter of Komack, 429 Mass.

1029 (1999)(Fraud); Passatempo v, McMenimen, 461 Mass.

279\(201 1 ) (Same)

-1 9-

If the petitioner was allowed to develop the

factual record with a transcript of the October 3,

2017 parole review/revocation hearing it would prove

by clear and convincing evidence the defendant's state

ments in the DECISION were false.

Issue #3:

WHETHER THE DEFENDANT IS ALLOWED TO

REPRESENT THE PAROLE BOARD WHERE SHE

IS NOT AN ASSISTANT ATTORNEY GENERAL?

The Complaint delineates fraud in the defendant

pretending to be an Assistant Attorney General. (SAAG)

[App. C, p. 7]

G.L. c. 12 §3 requirements are found, e.g.,

Commonwealth v. Kozlowsky, 238 Mass. 379 (1921)

Relevant to thei Petition, the Supreme Judicial

Court pointed to G.L. c.-12 §2, where the Attorney

General, Maura Healy, may "appoint such assistants

as the duties of the office require," and to employ

additional legal assistance with the approval of the

Governor and the Governor's Council. ■< Kozlowsky, 238

Mass, at 384.

The defendant here would have had to appear in

the Council Chamber and be duly sworn as an SAAG.

-20-

G.L. c. 12 §27 speaks to the relationship between

the attorney General and the District attorneys of

the Commonwealth. Kozlowsky, 238 Mass, at 389.

The Kozlowsky case lays the foundation of the

enabling statute, G.L. c. 12u §1-27, et. seq., which

'■------------------ j/

•

was enacted by the Massachusetts Legislature.

In the Kozlowsky case, Henry F. Hurlburt, Esq.,

made a statement of fact, and presented the record of

his appointment, where the defendant here, Gloriann

Moroney, who now is the Chairperson of the Parole Board,

did no such thing.

In Wilmington v. Dept, of Public Utilities, 340

Mass. 432 (1960), the Supreme Judicial Court held:

"...moreover, under G.L. c. 12 §3, the attorney

general 'shall appear...for state departments, officers

and commissions in all suits and other civil proceed

ings... in which the official acts and doings of said

departments, offers and commissions are called into

Question... I II

340 Mass, at 438.

In Feeney v. Commonwealth, 373 Mass. 359 (1997),

'V—.------------

Helen B. Feeney complained under the ^Federal statute,

42 U.S.C. §1983 because she was refused two civil

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service positions, claiming Veteran's preference under

G.L. c. 31 §23.2. Id., at 360.

"[U]nder the circumstances herein presented,

does Massachusetts law authorize the Attorney

General of the Commonwealth to prosecute an

appeal to this Court from the judgment

of the District Court without the consent

and over the expressed objections of the

state officers against whom the judgment

of the District Court was entered?"

The Court held the powers and duties of the

Attorney General are in part derived from G.L. c.

12 §3, as amended through St. 1943, c. 83, §1 :

"...all such suits and proceedings shall

be prosecuted or defended by him or under

his direction. Writs, summonses or other

processes served upon such officers shall

be forthwith transmitted by them to him.

All legal services required by such depart

ments, officers, commissions and commission

ers...in matters relating to their official

duties shall, except as otherwise provided,

be rendered by the attorney general or under

his direction."

[Emphasis added, because the language of the

statute is mandatory, indicating an obligatory duty.

Hashimi v. Kalil, 388 Mass. 607, 609 (1983)

The Massachusetts^,Legislature, by enacting G.L. c.

12 §3, consolidated the responsibility for all legal

matters involving the Commonwealth's agents and

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officers, etc., in the Office of the Attorney General.

Secretary of Administration & Finance v. Attorney

General, 367 Mass. 154, 163 (1975)

The defendant's interpretation of G.L. c. 12 §3

to include herself as an SAAG, violated the Separation

of Powers Clause under Article XXX of the Massachusetts

Constitution, and Art I'll,, r§2, clt 2 of the United States

Constitution. Attorney General v. Brissenden, 271 Mass.

172, 183 (1930); Opinion of the Justices, 365 Mass.

639 (1974) Freytag v. Commissioner, 501 U.S. 868, 870

(1991)

In Feeney, the Judicial Branch of the Government,

the Supreme Judicial Court, interpreted the statute for

Ms. Feeney, who claimed the Attorney General has a more

limited role when he appears for State Officers in

Tribunals other than the Courts of the Commonwealth,

when the Court held the statutory language, however,

does not bear such a construction:

The language of the statute properly read,

does not indicate that the Legislature in

tended to vary the power and duty of the

Attorney General to control the conduct of

litigation involving the interests of the

Commonwealth depending on the forum in which

he appears...."

Feeney, 373 Mass, at 367.

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There is no antipathy between the sections of

Chapter 12 and this Certiorari Court must presume the

Massachusetts Legislature says in the statute what it

means in the statute and means in the statute what it

says there.

United States v. Ron Pair Enterprises,

Inc., 489 U.S. 235, 241-242 (1989); Oneale v. Thornton,

10 U.S. 53, 6 Cranch 53, 68 (1810)(when the words in

the statute are unambiguous, "judicial inquiry is

complete.") Ron Pair, 489 U.S. at 241.

The defendant is unable to declare that G.L. c.

12 §3 has been repealed in any way, shape, manner or

form. Radzanower v. Touche Ross & Co. 426 U.S. 148, 154

(1976)

Should the Attorney General, Maura Healy, weigh

in and claim that Gloriann Moroney is "under her

direction," there still would have to be an official

appointment proceeding with the Governor and Council.

The Judiciary has already decided this in Kozlowsky,

ante, which there cannot be an impromptu general

appointment (in the back room, somewhere)

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In Freytag v. Commissioner, 501 U.S. 868 (1991)

it was held the Chief Judge of the Tax '.Court can assign

four categories of cases to Special Trial Judges,

pursuant to 26 U. S.cJ§:U $7443A(b)(4).

The taxpayers disputed Congress' authority under

26 U.S.C.S. §7443A(b)(4), claiming the statute violated

the Appointments Clause, Article II, §2, cl., 2.

The

United States Supreme Court ruled that §7443A(b)(4)

is constitutional and, in any case, the taxpayers had

consented to the sppointment of the Special Trial Judges.

Without the complete proceedings of the appoint

ment by the Attorney General of Massachusetts, certified

by the Governor and the Governor's Council, the defen

dant, just labeling herself an SAAG without an official

and approved appointment for a specific proceeding, is

fraud. Friedman v. Jablonski, 371 Mass. 482, 488-489

(1976)

In this case, the Respondent failed to take

notice of the petitioner's strong measure of freedom

to shape a sensible remedy which comports with the

statute. Musick, Peeler & Gannet v. Employers Ins.

of Wausau, 508 U.S. 286, 292-293 (1993)(the remedy

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cannot be at odds with the Legislative intent of the

statute)

The Respondent knows that G.L. c. 12 §3 requires

the Attorney General of Massachusetts to represent any

state agent who is impleaded in Court for any true

constitutional violations anent the petitioner's con

ditions of confinement. Wolff v. McDonnell, 418 U.S.

539, 555-556 (1974)

Gloriann Moroney knew it as well.

The proof lies in the fact she wrote it on ,document's

with no evidence of the official appointment.

In the final analysis, the petitioner was stymied

by the Respondent, denied the constitutional right to

confront the defendant, whose statements appear to be ]

outside the "business record" context, more toward being

of "testimonial" ilk, with an eye toward creating the

evidence to thwart a valid appeal, request for recon

sideration, petition in the nature of certiorari, to

challenge the fraud imbued in the DECISION.

Gloriann

cannot be immune from confrontation. Hathaway v.

Crocker, 48 Mass. 262, 266 (1843); Robinson v. Old

LColony

Street Railway, 189 Mass. 594, 596 (1905)

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(the transcript of the October 3, 2017 parole review/

revocation hearing will contradict the defendant)

Issue #4:

WHETHER THE RESPONDENT WAS REQUIRED

TO APPLY THE LAW TO THE FACTS, AS

DELINEATED BY THE UNITED STATES SUPREME COURT?

The petitioner has an absolute right to appeal

to the Respondent. Russell v. Nichols, 434 Mass. 1015,

1 01 6 (2001 )

The petitioner's "Day in Court" should

have to begin in the Appeals Court . United '■States V

v. Andrews, 462 F.2d 914, 918 (1st Cir. 1972)

The lower Court, Barry-Smith, J., dismissed the

case prior to service of the defendant. Respondent is

a Court of review, not "first view." Bray v. Alexandria

Women1 s Health /Clinic, *506 U.S. 263, 279 [n.10]

(1993); Cutter v. Wilkinson, 544 U.S. 709, 718 [n.7]

(2005)

Certainly, Article XII and the 14th Amendment

gives the petitioner the constitutional right to prove

the defendant deliberately made false statements, and,

that she is not a Special Assistant Attorney General.

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The Respondent, and similarly situated Courts of

Massachusetts are tethered: "...We are of course bound

by decisions of the Supreme Court on questions of Federal

Law....

Commonwealth v. Masskow, 362 Mass. 662, 667

(1972)

Again, the Courts of Massachusetts must be reminded

that according to the United States Constitution, decisions

of the United States Supreme Court are the "Supreme Law

of the Land." Article VI, cl. 2

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

“BbShisattva Skahdha, Fro Se

Box 43, Norfolk, MA O^-O'S^

Date:

October 14, 2020

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.