# Petition — Roslindale Cooperative Bank v. Greenwald

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 831

## Text

> f) :
6U=2071
In The JUN 4 1981

Supreme Court of the Huited-States

+

October Term, 1980
ROSLINDALE COOPERATIVE BANK, et ai.,
Petitioners,
vs.
CAROL S. GREENWALD, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

ALBERT G. TOBIN
TOBIN AND TOBIN
Attorneys for Petitioners
735 South Street
Roslindale, Massachusetts 02131
(617) 325-1010

5048 LUTZ APPELLATE PRINTERS, INC.
NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363
NJ (201) 257-6850 © PA (215) 563-5587 © DC (202) 783-7288 @ MA (617) 227-1133

QUESTIONS PRESENTED

1. Whether the district court must exercise its
jurisdiction?

2. Whether the Supreme Judicial Court, the district
court, and the appellate court have granted the respondents
defenses that the respondents did not plead, contrary to F.R.
Civ. Proc. Rules 8(c) and 56(e)?

3. Whether the petitioners have pleaded specific facts
which must be taken by the court as true, and therefore it is
the petitioners who are entitled to summary judgment?

4. Whether the district court has aided the respondents to
continue the violations of the petitioners’ rights by failing to
grant timely orders to enable the petitioners to obtain judicial
due process in either state or federal courts?

5. Are M.G.L. c. 170 App. 2, §§4 and 5, and M.G.L. c.
167, §5 unconstitutional on their face; or at least
unconstitutional without rules and regulations, and/or as used
by the respondents against the petitioners?

6. Whether the M.G.L. c. 167, §5 hearing was conducted
by a “judge” who was biased as a matter of law, and the
hearing procedures violated the petitioners’ (four)
constitutional rights of due process?

ii
LIST OF PARTIES

All of the parties are not in the caption of the case and
are therefore listed in the footnote below.'

1. Petitioners:

A. Roslindale Cooperative Bank of Boston, Mass.
(1) The Roslindale Bank as a corporation;
(2) The shareholders of the Roslindale Bank.

B. Directors who have not been charged by any notice of any proceeding
as individuals, but who were de facto removed on October 28, 1977.

(1) Six directors who were elected and holding office on October 28,
1977, and who have been de facto removed since then:

(a) Benedetto Faletra;

(b) Harold T. Hourihan;

(c) Charles Jannotta;

(d) Dr. Joseph Marcantonio;
(e) James J. Rock; and

(f) Charles W. Wiggins.

(2) One director who was not in office on October 28, 1977, and who
has been de facto not allowed to serve: Dr. H. Thomas O'Hara.

C. Four directors who were in office on October 28, 1977, and who were
de facto removed along with all of the other directors on October 29, 1977.

These four directors received notice of charges over one year later on
November |, 1978. They were then “purportedly” de jure removed on January
4, 1979. The petitioners claim that this de jure removal can never be established
lawfully because the respondent Greenwald refused to appoint a clerk, so that
the petitioenrs could summon records, this refusal contrary to M.G.L. c. 66 §6
procedures, results in no lawfully-made record of the M.G.L. ¢. 167. §5
hearing.

(Cont'd)

iii

(Cont'd)
(1) Leonard F. DeLosh;
(2) James M. Quinn:
(3) Albert G. Tobin; and
(4) Robert H. Tobin.

D. One director who was in office on October 28, 1977 and whe
subsequently resigned to avoid charges and impairing his failing health: Orest
Falcione

Respondents:

A. The former Commissioner of Banks, Carol S. Greenwald whose term
of office has expired on January 4, 1979, being sued in her official capacity and
as an individual.

B. The present Commissioner of Banks, Gerald T. Mulligan, is being sued
in his official capacity.

C. The Deputy Commissioner of Banks, Edward Flynn, who has been
Deputy Commissioner under Greenwald and Mulligan, and who is bcing sued
in his official capacity and as an individual.

D. Cooperative Central Bank.

E. The Executive Officer of Cooperative Central Bank and its fifteen
directors, who are being sued in their official capacities, and also as
individuals:

(1) Sydney Dunn, President;

(2) Earle C. Harvey. Vice-President;

(3) George Sutton, Clerk;

(4) James L. Burns, Executive Vice-President;
(5) Harold S. Adams;

(6) Robert F. Currie;

(7) Alexander J. Guittan;

iv

(Cont'd
(8) Charles W. Hickson;

(9) Joseph W. Higgins:

(10) Felix A. Kulick;

(11) Francis M. Metterville;
(12) Joseph C. Murray;

(13) William D. Palmer;

(14) Everett P. Pope;

(15) John G. Wallwork;

(16) Henry S. Thompson; and
(17) James G. Perkins, Jr.

F. The Board created under M.G.L. c. 167, §5, who are being sued in
their official capacity, consisting of:

(1) Attorney General;
(2) The State Treasurer; and
(3) The Commissioner of Revenue.

Vv

TABLE OF CONTENTS

Page
SE SHE, obouciecccvarcipesdsveetveskeeceven i
BMG GE FOCUE ccd ccnecccrvocccecsedvcctnessessosescoces ii
Table of Contents MPYYTTITIT Titi rrr rrr v
RE GE CRAGOEE. ciciccvcccvcerecessovccdovecsescoccss vi
SD I cece scpecpesetenicnsscadecesesseunsones l
DRONE AS. WO DOMGOR cccciccccsccdevcvccccsesecs 2

PPT TTITITTTIE TTT TT TELE TITTLE 6
SeatemMenst OF CNS. FACS occccccccccccccvcccvevececcceces 11
NG OE PUREED oo vcckcvocceccncceccveceuecns 16
The Federal Questions Are Substantial ...............05+ 21

I. The district court must exercise its jurisdiction. .. 22

II. The Supreme Judicial Court, the district court, and
the appellate court, have granted the respondents
defenses that the respondents did not plead, contrary
to F.R.Civ. Proc. Rules 8(c) and S56(e). ......... 26

III]. The petitioners have pleaded specific facts which
must be taken by the court as true, and therefore it is
the petitioners who are entitled to summary
PURSE, Sicccciccospecedccovcuccescetecccess 29

vi

Contents
Page

IV. The district court has aided the respondents to
continue the violations of the petitioners’ rights by
failing to grant timely orders to enable the
petitioners to obtain judicial due process either in
state or federal Courts. .....cssecccsccccseccces 32

V. M.G.L. c. 170, App. 2, §§4 and 5 and M.G.L. c. 167,
§5 are unconstitutional on their face, or at least
unconstitutional without rules and _ regulations,
and/or as used by the respondents against the
BOURIONETS. cc ccccncccccccccccccccccccesceccece 33

VI. The M.G.L. c. 167, §5 hearing was conducted by a
“judge” who was biased as a matter of law, and the
hearing procedures violated the petitioners’ (four)
constitutional rights of due process. ...........+: 35

EE nn ee ee et Pe Oe ey re 38
TABLE OF CITATIONS
Cases Cited:

Allen v. McCurry, —. U.S. —, 66 L. Ed. 2d 308, Sl. Dec.
T9D3S (Dec. 9, 1980) .ccccccccccccccccccsccescccecs 4, 23

Amos Treat Co. v. Sec. Exc. Com., 306 F. 2d 260 (1970)

vii

Contents

Page

Anderson v. Great Republic Life Ins. Co., _. Cal. __, 106
P. OO GRID see hcd as newedecrdcactidecsecucesvess 33
Armstrong v. Manzio, 380 U.S. 545)... cece cece ence eees 3,6
Athas v. United States, 597 F. 2d 722 (Ct. Cl. 1979) ...... 13, 16
Camero v. United States, 375 F. 2d 777 (1971) ............ 37
- Carey v. Phipus, 435 U.S. 247 (1978) ..ccccccccccccccvees 32

Central Motors v. City of Pepper, 65 Ohio App. Ct. 2d 34,
GOD TE... 20 250 (IGSS) cc cvecceddsiccdvcscsvccces 4, 5, 23

Citizens to Preserve Overton Park v. Volpe, 491 U.S. 402
CIRTE) ccccdscddbvccccccccncccsscdccascaccescessone 28

Com. v. Bank of Mutual Redemption, 4 Allen | (Mass. 1862)
CSededacdvcceneveccecdogegnethbectesesscbssccscces 35

England v. Louisa Bd. of Medical Examiners, 375 U.S. I11
SIFT vac cr deceSewes ec cdiccckisbobsesdecucnasecce 22, 23

Feinberg v. F.D.1.C., 420 F. Supp. 109 (1976) .... 22, 24, 34, 37
Ferguson v. Ominedia, 469 F. 2d 194 (Ist Cir. 1973) ....... 27
Fuentes v. Shevin, 407 U.S. 67 (1972) ......cceeeceeees 3, 6, 29

Gomez v. Toledo, SI. Dec. 79-5601, _.. U.S. —_, 64 L. Ed.
on Sra, 100 BS. CR. Ren (ISSR) ivicccces 5, 17, 23, 26, 27, 31

Goss v. Lopez, 419 U.S. 565 (1975) wo. cece cece cece eee eeee 24

viii

Conients —
Page
Grayed v. Rockford, 408 U.S. 108 ...-...cceeeeeeeeeeeees 36
In re Murchinson, 349 U.S. 133... ccc cece ceeeereeeeeees 36
Joint Anti-Facist Committee v. McGrath, 341 U.S. 123 (1951)

poe SeWee ecb ues dereececceesececasevebeesoonscecs 34
Kearny v. Bd. of Reg. Pharmacy, 4 Ma. Ap. Ct. 25, 340 N.E.

Bb BAe CUPTOD cvncccevavecceccascsusocséecvees 13, 24, 28
Kessler Shoe Co. v. Philadelphia Fire & Marine, 295 Mass.

ESD, F:Ts GEG? enrevacvevccdcccoccctacccestdeses 28
Latrobe Electric Steel Co. v. Vascomy Ramet Corp., 55 F.

Supp. 347 (D. Del. 1944) .cccccccccccccccccccccccece 27
Manges v. Camp, 474 F. 2d 97 (1973) ....ceseeeeeceveees 22, 24
McNeese v. Board of Education, 373 U.S. 668 ((1963)

Pe cecsSeeebboesssdseeeVedescencccsdoscecees 4, 21, 23, 25
Minn. v. Cloverleaf, __U.S. —_, 101 S. Ct. 2d 715, 66 L. Ed.

ME TTIG oc ends ccctccsescccccenctcedentedevecdears 30
Monroe v. Pape, 365 U.S. 167 (1961) ....ceeeeeeeeees 4, 23, 25
N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ..... cece ee eees 35
National Pork Prod. Council v. Bergland, 484 F. Supp. 540

CUE ce bse Vdcusisehccccceveusbbesheheer siccccen 28

ix

Contents
Page
Ottoway Newspapers v. Appeals Court, _Mass. —, 386
DE MEEEOTED deb ctnensensyeseesaccueesiseses 35
Owens v. City of Ind., Mo., _ U.S. __, Sl. Op. 78-1779
SURO bac ccccepenvsesendsnedsatse cciebsdacenenecans 8, 30
Powell v. Ward, 392 F. Supp. 628 (1975) ......eeeceeeeees 37
Pupecki v. James Madison Corp., Mass. A.S. 2340, 382 N.E.
PEPE REEVE ccucccccccccccctcotecscceeecese 11, 12, 27
Purity Supreme v. Attorney General, _. Mass. —, 407 N.E.
PET CEDEEE Reccucceccccnccccccscccessesiosceeses 28
Richmond Newspapers v. Va., _. U.S. ——, Sl. Dec. 79-243
GEEZ, TIGGD ccccwccccccccccccccncscscoccccoees 5, 7, 38
Roslindale Cooperative Bank v. Greenwald, 481 F. Supp.
EEE Fe BOTED cccvccccccccvcce 2, 20, 24, 26, 29, 30, 31
Roslindale Cooperative Bank v. Greenwald, No. 78-11-Z
CE A NEED ccccocccccoccesccccsvccnsece 1, 20, 24, 31
Roslindale Cooperative Bank v. Greenwald, No. 80-1280,
dies ON tee COM. G, TRB) cc ccccccescccceneses 1, 21,2
Saxon Coffee Shop v. Boston Lic. Bd., _.. Mass __, 407 N.E.
ED stclmesgvdctececevessssaeceeecaseoans 28
Service v. Dulles, 354 U.S. 363 (1957) ......cceeeeeeeeeees 24

Suburban Land Co. v. Billerica, 314 Mass. 184; 49 N.E. 2d
RS 2 ia calkendeese6006ssosunecteneeecewess 8, 28

x

Contents
Page

Susquehanna Valley v. Three Mile Island, 619 F. 2d 231
SEs doheomss bodess ococccsbabacddaedeercescveus 23, 24

Swan v. Stoneman, 634 F. 2d 97 (2d Cir. i980) ....... 4, 23, 25

Swartz v? Dep't of Banking & Insurance, _. Mass. —_, 382
PUB. 26 BOSD CSTE) cece ccccccccccccsccccccvcccses 8

Tobin v. Commissioner of Banks, 1979 A.S. 498, 380 N.E. 2d
PC as DOPED 060 dé bb secedccdbeesews 2, 9, 17, 20, 21

United States v. Lynd, 301 F. 2d 818 (Sth Cir.), cert.denied,
FEE Ue SOO TAPED 0 cheb bd bccccccscicsesveccsooonce 32

United States v. Ward, _ U.S. —_, SI. Dec. 79-349 (1980)

IDTD) ccccccccccccccccccccccccccscccscccccccccces 34, 37

(1DZS) .cccccccccccccccccvcccccccccccccccccccceeces 10

Watson v. Johnson, — ~ Wash. — , 24 P. 2d 592, 89 A.L.R.
SEEN cb Gyn 564 640s James e's 0c Ug beRb ees tcengiec 33

Whiteside v. Kay, 446 F. Supp. 716 (1978) ...........eeee- 24
Wood v. Strickland, 420 U.S. 308 (1974) ......ceeeeeeeee 32

Wong Yang Sun v. McGfath, 339 U.S. 33 (1950) .......... 34

xi

Contents
Page
Worcester County Bank v. Com. of Banks, 340 Mass. 695, 166
Ne DE cccsecevaeetusUareswewsecsinssdcccccccrccss 17
Yeik v. Dept. of Taxation, 595 P. 2d 965 (1979) .......... 34, 37
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579
CIFSE) occccccccvecccccecccccccccccccsssccececcees 11, 22
Statutes Cited:
BO VBR. GUA cccccccccscccscesccccccccssoccccececess 6
BB USC. GITGAO) cccccccccccccwccsccccccccccscesceces 20
BB USC. BISST ccccccccccccsccccccccccccccvescccces 4,7, a2
Be WI, BEIGE ccccescccesccnccncsvcncesectecsececees 17, 22
BO VBR. GIS cccsccccccsccvasesscvccccsscenccccecees 2
2B USC, GEOL cccccccicccccccccccccccccccceeseoes a, 17, 23
G2 US.C. BISSS .ccccccccccccccccccccccsccccccsccccsccs 2, 17
GB USC, GISES nccccccccccvvccccccssccccccscoscece 2, 15, 17
G2 UBL. GIGS oc ccccvsvesccccccccsccccccccsceseve 2, 15, 17
DE.G.L. 6. SOA: ccccccccscccccccccccccccccceece 6, 7, 13, 14, 30
DAG. 6. SOA, G2 ccccccccscccvenscscccovcesedscececes 28, 34

ES MA BONO i gic iicakscncip ces bocca ses 15, 28, 34

xii

Contents

Page
BEAR. ©: TOA, GOA cccvcccicccccccccccescoctocccesces 15, 34
BELG.L. € JOA, FD cccccccsccccdcccccecvcccvesosces 14, 34, 37
DA.G.L. 6. SOA, GEE cccccccccccccccccccccccsccccccsccees 7
BE.G.L. 6. SBA, GURE) sccccccccccccccccccccccccescccece 12
MLG.L. ©. SOA, GLIA .cccccccccccccccccccccccces 6, 7, 12, 30
DE.G.L. 6. SBA, GIG cc ccccvcccrccccccccccccccccecccccses 17
DE.G.L. 6. 6 ccccccccccccccccccsccaccceees 6, 13, 14, 30, 32, 38
DE.G.L. 6. 66, GGA ceccccccccvcccccccccccccccsoccces 7, 12, 18
DEGRA. 6. 46, G6 ccccccccccrcccscccccccccosece ii, 7, 12, 13, 18
PO PBe Gs GB, BID cccccaccccccccesccceccccccccscesccces 30
WE.G.L. 6, 66, GIS .nccccccccccccccccsccccccccccccccocs 32, 38
DO.GL. 6. GGjBET cc cccccccccscccescscoccccccscccccece 32, 38
DEG. 6. G6, GETS cccccccccccccccccccscccccccccesccee 30
BENE E. O. GGA cccccccccvccccccsccccsccccssees 6, 8, 13, 14, 30
DEAR. ©. TGF GE csc ccvcccccccsccccccccecvsceses 8, 13, 14
Ack A) POPeerererrerrrerrrrrr errs rere 18, 19, 36
DEG: BOF BO oc icc cccccnccrecscvctccesacccccescece 14

xili

Contents
, Page

M.G.L. c. 167, §5 ....i, ii, iv, 9, 10, 13, 14, 18, 33, 34, 35, 36, 37

ne, RDP ep Ey Sarr ois a a 16, 21
OR aor cehiska ec ee 12
M.G.L. c. 170, App. 2, §4 «++. i, 9, 10, 13, 14, 23, 28, 33, 34, 36
iE eS AI RO scoccickeovcessvesevesns’ i, 10, 23, 33
ee SA li, SN ds oy veal cheat ivaas 12
M.G.L. €. 170, App. 2,98 sccccccccsscsecceees 1, 12, 14, 28, 34
AE OO Hee SM oso 5s cadckaoceuit iced: 17, 21
Me Tey ee EN TR mNe POE 8, 13
pace, CIN a ie) heded cn odes vec) 8, 13
WN MNO elo serciavis vse sacees 4, 7, 18, 21, 23
NN a MEIN 5c otra cha ceacdedeesssieteevs 21
Mea i sevasdhiavsices avostlisy aes 34

United States Constitution Cited:
PE PUES nb cacweccdbesecrercecedsesseegecee 5,7, 38

PORTIS ARGON ic cc dccdvcccecccccsccccess 6, 7, 24, 29

xiv

Contents
Page
Rules Cited:
Federal Rules of Civil Procedure:
Rule B66) wcccccccccccccccccccccccccccvevcces i, 5, 26, 27
Rule 44 nccccccccccccccccccccccvcvcceseccees 5, 7, 27, 28
Rule S6()) wccccccccccccccccccccccccces i, 5, 12, 19, 26, 27
Rule ST wcccccccccccvcccccccccccvccveccscccscccese 32
FRAT TTT T TTT ere eee TT rT TTT iT ee 20
Massachusetts Rules of Civil Procedure:
Rule 1206) occcccccccccccccccccccvevcvcccccsccccces 12
Rule 12(BON6) occcccccvcccccccscccccccccccccces 4, 17, 19
Rule 44 ncccccccccccccccccccccccccccccccvcceeecens 5
PRUNS FEED co vcccccccccceccoccceccesccccecencece 5, 18, 19
United States Supreme Court Rule 18 ........eeeeeeeeeee 11, 22
Other Authorities Cited:
Regulations of the Commissioner of Banks, Sec. |-4 ........ 7,9

147 A.L.R. 660 .cccccccccccvccccccccccccsccccveveveees 8

xV

Contents
Page
APPENDIX

Appendix A —- Order Denying Motion .........eeeeeeeee la
Appendix B — Motion ....cccccccccescscvssseseveveens 2a

Appendix C — Amended Decision Dated January 8, 1981
MPPTTTTITITITITT TILT TTTTT TT i Titi Sa
Appendix D — Decision Dated March 25, 1980 ........... lla

Appendix E — Roslindale Cooperative Bank, et al. v. Carol
Greenwald, et al., 481 F. Supp. 749 (1979) .......eee0s ISa

Appendix F — Tobin v. Commissioner of Banks, 1979 Mass.
A.S. 498, 380 N.E. 2d 1248 (1979) ...cccceeeeeeeeeees 29a

Appendix G — Relevant Statutes and Constitutional Pro-
VIRIONS seccccccccncccreccccncccoccccscesedocosoces 34a

No.

Supreme Court of the Huited States

o—
October Term, 1980

ROSLINDALE COOPERATIVE BANK, et ai.,

Petitioners,
VS.
CAROL S. GREENWALD, et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT
OPINIONS BELOW

1. Denial of petitioners’ motion to recall mandate dated
January 30, 1981 and denied by the appellate court on
February 11, 1981 (see Appendix A and B, infra, la-4a).

2. Roslindale Cooperative Bank v. Greenwald, No. 80-
1280, _.. F. 2d —— (January 8, 1981) hereinafter called
Roslindale III (see Appendix C, 5a-10a). °

3. Roslindale Cooperative Bank v. Greenwald, No. 78-
111-Z (March 25, 1980) hereinafter called Roslindale II (see
Appendix D, | la-14a).

2

4. Roslindale Cooperative Bank v. Greenwald, 481 F.
Supp. 749 (December 7, 1979) hereinafter called Roslindale |
(see Appendix E, 15a-28a).

5. Tobin v. Commissioner of Banks, 1979 A.S. 498, 380
N.E. 2d 1248 (February 28, 1979) hereinafter called Tobin (see
Appendix F, 29a-33a).

STATEMENT AS TO JURISDICTION

I. This is a petition for review of a decision of the
District Court of Massachusetts, for a complaint brought
under the authority of 28 U.S.C. §§1331, 1343 (ie., 42 U.S.C.
§§1983, 1985, 1986) and 28 U.S.C. §2201, by a financially
sound bank, its shareholders and directors, acting both as a
collective board in their official capacity, and as individuals.
The financially sound bank was “seized” and its directors and
shareholders’ rights to control its possessions were “removed”
by the Commissioner of Banks by the unauthorized use of a
“liquidation statute” which appointed the respondent Central
Bank, “a statutory administrative receiver” for liquidation
purposes. Neither the bank nor its officers have yet to receive
administrative notice of charges or a hearing after over three
years from October 28, 1977, and the petitioner bank has not
been “liquidated” but has been continued in business by the
administrative statutory receiver, Central Bank.

The petitioners say that the Supreme Judicial Court of
Massachusetts has decided a federal question which conflicts
with the decision of the First Circuit Court of Appeals and
with decisions of other circuit courts of appeal and also with
decisions of the Supreme Court of the United States.

The petitioners say that the First Circuit Court of
Appeals has decided a federal question, which conflicts with
the decision of the Supreme Judicial Court of Massachusetts,
other circuit courts, and also with decisions of the Supreme
Court of the United States.

The petitioners further say that the Supreme Judicial
Court of Massachusetts, the First Circuit Court of Appeals,

3

have decided an important question of law which apparently
has not been, but apparently should be settled by the Supreme
Court of the United States. Both decisions not only conflict
with each other but also conflict with applicable decisions of
the Supreme Court of the United States.

The petitioners say the gravamen of their complaint is
that they have been denied by the respondent administrators
as required by both constitutional law, and the statutes of
Massachusetts, as well as regulations of the Division of Banks,
“prior notice of charges” (or arguing in the alternative), “post
prompt” notice of charges, as well as the other requisites of
due process; an administrative confrontation hearing with a
record of findings of fact and law that a court can review; as
well as rights of review and appeal. The petitioners say no
administrative hearing at this late date can correct these
constitutionally required deficiencies of procedure within the
time frame set by Armstrong v. Manzio, 380 U.S. 545 and
Fuentes v. Shevin, 407 U.S. 67 (1972).

The petitioners say that the confusion in the decisions of
the district court, the appellate court and the Supreme
Judicial Court relative to the Doctrines of Primary Resort,
Primary Jurisdiction, and Exhaustion of Administrative
Remedies, in this case, has had a total effect worse than the
Doctrine of Abstention; for at least in abstention, the court
stays the action. See Am. Trial Lawyers Assoc. v. N.J. Sup.
Ct., 409 U.S. 467 (1973). It is to be noted that the district
court refused a motion copied exactly from American Trial
Lawyers, supra. Thus the petitioners have been subject to
“unfettered freedom” of administrators, who have continued
to refuse the petitioners administrative due process, over any
issue, and who have continued to do so for over three years,
without court intervention, and there still remains no record
that any court can review of any of the respondents’
adjudications.

To further explain the petitioners’ difficulties, the District
Court of Massachusetts and the First Circuit Court of
Appeals have, in fact, extended the doctrines to state that the
petitioners must use available State Judicial Declaratory

4

Judgment Procedures, M.G.L. c. 231A, contrary to the Supreme
Court decision of Monroe v. Pape, 365 U.S. 167 (1961) as
elaborated by McNeese v. Board of Education, 373 U.S. 668
(1963) and as recently elaborated in Allen v. McCurry, U.S.
——., 66 L. Ed. 2d 308, Sl. Dec. 79-935 (Dec. 9, 1980).

The conflict of decisions between the various circuit courts
on the Exhaustion Doctrine is set forth very clearly in Swan v.
Stoneman, 634 F. 2d 97 (2d Cir. 1980).?

The petitioners say that the Supreme Judicial Court allowed
a dismissal of the petitioners’ complaint under M.R.C.P. Rule
12(b)(6), because the petitioners failed to exhaust administrative
remedies, which were not offered by the agency and which did
not exist. The Supreme Judicial Court, sua sponte, allowed this
affirmative defense which the respondents did not raise by
pleadings. See Central Motors v. City of Pepper, 63 Ohio App.

2. Swan v. Stoneman, 634 F. 2d 97 (2nd Cir. 1980) at p. 103:

“The law is less clear, however with respect to
exhaustion of state administrative remedies. The language
of a number of Supreme Court decisions suggest that state
administrative remedies, like state judicial remedies, need
not be exhausted prior to commencement of a federal civil
rights suit. See e.g. Ellis v. Dyson supra; Steffel v.
Thompson, 415 U.S. 452, 472-473, Carter v. Stanton, 405
U.S. 669, 671 (1972); Houghton v. Shafer, 392 U.S. 639, 640
(1968); King v. Smith, 392 U.S. 309, 312 n4 (1968) Damico
v. California, 389 U.S. 416, 417 (1967). Several courts have
interpreted these decisions as laying down a flat rule that
exhaustion of administrative remedies is not required in
such cases. See e.g. Green v. Ten Evck, 572 F.2nd 1233,
1239-40 (8th Cir. 1978); McCray v. Bunell, 516 F.2nd 357,
361-365 (4th Cir. 1975) en banc cert. granted 423 U.S. 923
(1975) cert dismissed, 426 U.S. 471 (1976); Hawkins v.
Town of Shaw, 461 F.2nd 1171, 1176 (Sth Cir. 1972) (en
banc).”

“... We have held that before relinquishing its 1983
jurisdiction, a federal court must Le ‘positively assured’ — it
may not presume — that there are speedy, sufficient, and
readily available administrative remedies remaining open to
pursue,”

5

Ct. 2d 34, 409 N.E. 2d 258 (1980). The court also looked to the
petitioners’ pleadings for authority contrary to Rule 9. The
respondents had not pleaded that Tobin had no authority.

In spite of Gomez v. Toledo, S|. Dec. 79-5601, _. U.S.
—~, 64 L. Ed. 2d 572, 100 S. Ct. 2. (1980) which overruled
Gomez v. Toledo, 602 F. 2d 1018, and which the district court
cited in its decision (see 481 F. Supp. at 755, par. 19). The First
Circuit is still granting the respondents affirmative defenses that
they have neither pleaded by answer or raised by affidavits, such
as immunities and the Exhaustion Doctrine, which are both
affirmative defenses which must be pleaded. See F.R.C.P. Rule
8(c).

The petitioners say that both the First Circuit Court of
Appeals and the district court decisions in effect, deny the
Roslindale Bank due process of law, because they refuse the
petitioners federal jurisdiction and also because they will not and
have not in the past, ordered the respondents to give to the
petitioner bank sufficient funds of its own money, which they
hold in their possession adversely, to enable the petitioner bank
to hire independent knowledgeable counsel, and/or pay the costs
of court necessary to obtain discovery.

The district court and the First Circuit Court of Appeals
also have refused the petitioners protective orders that would
protect the petitioners’ First Amendment rights to obtain “public
records” for court procedure. The district court also refused to
order the respondents to appoint a clerk to certify “public
records” or the “lack of public records” to enable the petitioners
to meet the requirements of F.R.C.P. Rule 44 (similar to Mass.
R.C.P. Rule 44) or F.R.C.P. Rule 56(e) [similar to Mass. R.C.P.
56(e)], which the petitioners need to receive due process in either
federal or state courts. The petitioners say that since Richmond
Newspapers v. Va., —_— U.S. ———, Sl. Dec. 79-243 (July 2,
1980) they have a First Amendment right to gather information
from the state respondents for the purposes of obtaining judicial
due process, as well as a right to an “open trial” in
administrative decisions that effect their constitutional rights, or
at least a right to an “open trial” post promptly or at least a
“closed” hearing “post promptly”.

6

Il. The dates of entry of the last order denied by the First
Circuit Court of Appeals is February I1, 1981. The motion
denied by the order is set forth as Appendix B at page 2a. The
order is set forth as Appendix A at page la. The amended
decision sought to be reviewed is dated January 8, 1981 and is
set forth in Appendix C at page Sa. This Court (Brennan, J.) on
April 7, 1980 granted petitioners’ motion for an extension of
time until June 7, 1981.

III. The statute that confers jurisdiction on this Court for a
petition for a writ of certiorari is 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS, STATUTES AND
REGULATIONS INVOLVED

The basic constitutional issue involved is the Fourteenth
Amendment’s right to due process as elaborated by the other
amendments.

The petitioners also claim the equal protection of statutory
entitlements to procedural and substantive statutes that were
enacted by the Legislature to ensure that constitutional required
procedures were not violated by Massachusetts administrators
when dealing with its citizens’ constitutional rights.

The petitioners have pleaded that the respondents have
massively ignored and intentionally continue to violate the
following statutes: The Administrative Procedures Act; M.G.L.
c. 30A; M.G.L. c. 66; The Public Records Law; M.G.L. c. 66A;
The Fair Information Practices Act. All of, which similar to
their federal counterparts, are known and settled laws and have
known and settled court decisions, as well as the published
regulations of the Commissioner of Banks.

The petitioners say they are entitled by federal minimum
timely notice of charges and a hearing. Fuentes v. Shevin, 407
U.S. 67 (1972); Armstrong v. Manzio, 380 U.S. 545 and they are
also entitled to prior notice by M.G.L. c. 30A, §LIA'% of “48

3. Fourteenth Amendment (in pertinent part) can be found in the
appendix at p. 39a.

7

hours” notice,* and by M.G.L. c. 30A §11 of reasonable notice,‘
and by the Regulations of the Division of Banks of “ten days
notice”.®

The petitioners also say that since Richmond Newspapers v.
Virginia, _. U.S. —_, Sl. Op. 79-243 (1980), they have been
entitled to a First Amendment right to public records, especially
if these records are designed to be made to obtain judicial due
process and this is a guaranteed Fourteenth Amendment right.
However, the petitioners also say they were granted procedural
entitlements by M.G.L. c. 30A, §11A%’ and M.G.L. c. 66, §5A®
and §6° and the Regulations of the Commissioner of Banks.'°

The petitioners say that because the administrative bodies
have primary jurisdiction and the court has only the right of
review, the court is limited by F.R.C.P. Rule 44, to the
administrative record. M.G.L. c. 30A, certiorari and M.G.L. c.
231A give the court only secondary jurisdiction. As there was no
clerk appointed, or no record in anyone’s custody, any other
evidence as to the administrative hearings is barred by the parol
evidence rule. N.E. Box Co. v. C & R Const. Co., 313 Mass.
698, 49 N.E. 2d 121 (1943).!!

4. See appendix, infra at p. 39a.
5. See appendix, infra at p. 40a.
6. See appendix, infra at p. 4la.
7. See appendix, infra at p. 39a.
8. See appendix, infra at p. 40a.
9. See appendix, infra at p. 40a.

10. See appendix, infra at p. 4la.

Il. N.E. Box Co. v. C & R Const. Co., 313 Mass. 698, 49 N.E. 2d 121
(1943) at 127 N.E.:

“The provisions of section 6 of c. 66, to the effect that
all votes, orders, and proceedings shall be entered is
(Cont'd)

The parol evidence rule is not one merely of evidence but is
a rule of substantive law. Suburban Land Co. v. Billerica, 314
Mass. 184, 49 N.E. 2d 1013, 1016 (1943); 147 A.L.R. 660.'2

The petitioners also say that they have a “liberty right” to
privacy and ‘to enjoy their statutory entitlement to be bankers
and that the stigmatization cast upon them gave right to an
immediate name-clearing hearing. Owens v. City of Ind., Mo.,
— U.S. ——, Sl. Op. 78-1779 (1980); but the petitioners under
M.G.L. c. 214, §1B,"3 and §3B'* were given the right of privacy
and M.G.L. c. 66A, The Fair Information Practice Act, gives the
petitioners rights in the same vein but beyond the right. of
privacy.'* See Swartz v. Dep’t of Banking and Insurance, ——
Mass. ——, 382 N.E. 2d 1050 (1978).

The petitioners also claim the equal protection of special
statutory entitlements to procedures that the Legislature enacted
for the protection of banks and bankers, which the respondents
violated. M.G.L. c. 167, §2'5 sets forth procedures to be used for

(Cont'd)

sweeping. It is not confined merely to votes of a public
board, but includes also its orders and proceedings. The
obvious purpose of the section is to require that a public
board record of the proceeding shall be kept and it must
have been intended that a record so kept should constitute a
public record. We find nothing in the cases where the
provisions that suggest any other conclusion . . . As already
pointed out, the general rule forbids proof of acts of boards
by any other evidence other than a record.”

12. Suburban Land Co. v. Billerica, 314 Mass. 184, 49 N.E. at 1016:
“It is settled, as the plaintiffs correctly contend, that the
records of a town clerk, as of any public body are not open

to addition, contradiction, or variation by parol
evidence... .”

13. See appendix, infra at p. 4la.
14. See appendix, infra at p. 4la.

15. See appendix, infra ai p. 40a.

9

the determination of the value of a bank’s real estate mortgage
portfolio which requires prior notice and a “certified real estate
appraiser”.

The petitioners also claim that M.G.L. c. 167, §5'® sets forth
procedures to be used for the removal of bank officers which
entitle the petitioners to prior notice and procedures before
being removed. See Tobin v. Greenwald, supra, p. 1248. The
petitioner directors and individuals were removed on October
28, 1977 and their constitutional rights diminished. Four
directors received notice “not post promptly”, (one year later) on
November 1, 1978. Eight directors have never received any
notice at all.

The petitioners also claim the equal protection of
“regulatory entitlements” of prior notice and procedure in
published regulations of the Division of Banks entitled
“Regulations established in and in accordance with and under
the authority of section 9 of chapter 30A” (i.e., Administrative
Procedures Act) of the General Laws Governing the Conduct of
Adjudicatory Proceedings Before the Commissioner of Banks,
Department of Banking and Insurance, Division of Banks and
Loan Agencies.'’

One of the petitioners’ basic claims is for political reasons,
the respondent Greenwald maliciously misused the authority of
M.G.L. c. 170, App. 2, §4'8 and “certified” that the Roslindale
Bank was “unsafe” and “inexpedient to continue in business”,
when it was neither “unsafe” and three years later, it is still in
business. The petitioners have also pled that she had no
intention to order the bank liquidated.

The petitioners say the respondent deliberately misused
M.G.L. c. 170, App. 2, §4 to deliberately avoid giving the
petitioner bank’s directors and officers the due process of

16. M.G.L. c. 167, §5 is in full text in the appendix as it appeared in 1977.
17. See footnote 10.

18. M.G.L. c. 170, App. 2, §4 is found in the appendix in full text, as it
appeared in 1977 at p.*35Sa.

M.G.L. c. 167, §5; the officers removal statute to
administratively merge the petitioner individuals out of office; and
also to diminish the shareholders of Roslindale rights by
merging the shareholders with a larger bank whose voting offices
would not be in the Roslindale Bank’s geographical district.

Another important aspect of the petitioners’ complaint is
that M.G.L. c. 170, App. 2, §4, appoints Central Bank as an
“administrative statutory receiver” and M.G.L. c. 170, App. 2,
§5,'9 provides for return of the petitioner bank by Central Bank
with the approval of the Commissioner. The respondent Central
Bank resumed the petitioner bank’s business immediately
without turning it back. They continued to resume the business
even after they, themselves, decided, ex parte, at least on April
25, 1978, that the bank could not be liquidated. They have
ignored the Supreme Judicial Court’s decision of February 28,
1979, which stated that Vigilante v. Old South Church, 251
Mass. 385, 146 N.E. 670 (1925) applies toall(Roslindale) bank’s
business. Vigilante states that even the Commissioner cannot
appoint an agent to resume the business, “Great abuse might
result if he were allowed so to do... .”

At the time of the certification, there were no rules and
regulations enacted by the Commissioner of Banks as described
in M.G.L. c. 170, App. 2, §429, or by Central Bank as described

19. M.G.L. c. 170, App. 2, §5 is found in full text in the appendix at
p. 36a.

“At any time after the corporation has taken over
control . . . it may with approval of the Commissioner turn
back control... . to such member bank which may resume
business free from any control by the
corporation... subject to such conditions as the
commissioner may impose... .”

20. M.G.L. c. 170, App. 2, §4 is in full text in the appendix at p. 35a.

“... and shall operate such bank subject to such rules
and regulations as the commissioner may impose until the
bank shall resume business or until its affairs shall be finally
liquidated.”

in M.G.L. c. 170, App. 2, §8,?! to give the statute definition and
limit “overbreadth”, or “unfettered freedom”, or arbitrary
discretion, regarding the operation of or the return of the
Roslindale Bank’s assets and control.

STATEMENT OF THE FACTS

It seems inconceivable to the petitioners, that any court
would allow a sound bank to be “seized” for over three years,
knowing there has been no notice of charges, and no
administrative hearing regarding the seizure, or why the receiver
continues to keep the assets.

These facts alone are proof of irreparable harm as a matter
of law.

The Supreme Court of the United States during a time of
war would not allow the President of the United States to seize a
steel mill manufacturing essential war materials and declared in
that case that a governmental seizure of private property was, as
a matter of law, irreparable harm. See Youngstown Sheet and
Tube Co. v. Sawyer, 343 U.S. 579 at 585-586 (1952). The
Roslindale Bank is the last community bank in Roslindale. This
unwarranted governmental seizure for political purposes is of
great concern to the depositors as well as the whole banking
industry in Massachusetts who have suffered from the “activist”
political Bank Commissioner Greenwald. Note Rule 18 of the
United States Supreme Court Rules cites Youngstown Sheet and
Tube, supra. The petitioners state this case lies within the

principles set forth in that case.

The facts as pleaded in a verified complaint, see Pupecki v.
James Madison Corp., Mass. A.S. 2340, 382 N.E.2d 1030 at

21. M.G.L. c. 170, App. 2, §8:

“The directors of the corporation may make such rules
and regulations, subject to the approval of the
commissioner, as they may deem necessary in order to carry
out the provisions of this chapter, and for such purposes the
commissioner may confer and advise with the directors and
furnish them such information as they request.”

12

1033 (1978)2? are supported by many affidavits and answered by
the respondents by a motion under 12(b), with no supporting
affidavits or counteraffidavits. See F.R.C.P. Rule 56(e).

The petitioners’ case concisely stated is that on October 28,
1977, the petitioner bank was a chartered cooperative bank
under the authority of M.G.L. c. 170. The petitioner directors
and officers were elected to serve under the authority of M.G.L.
c. 170, §§6 and 8. The petitioner shareholders had the right to
elect its officers and directors, who controlled the assets and
possessions of the Roslindale Bank.

On October 28, 1977, the Banking Commissioner, the
respondent Greenwald, knowing that the Roslindale Bank was
safe and it was expedient for it to continue in business, certified
the Roslindale Bank into a statutory administrative receivership,
and Greenwald, and her successor, Mulligan, and Central Bank
have taken a deliberate course of action by denying the
petitioners an administrative hearing to frustrate the Roslindale
Bank and its officers from proving that the Roslindale Bank was
wrongfully forced into receivership and has been wrongfully
kept in receivership for over three years.

The certification proceeding held by the respondent
Greenwald, was held in “secret” with no notice of charges given
to the petitioner bank, or any of its officers, either “prior” or
“post” promptly as required by constitutional law; or “48 hours
prior” as described in M.G.L. c. 30A, §11A4; or “within a
reasonable time” as described in M.G.L. c. 30A, §11(1); or “10
days prior” as described in the regulations in effect on October
28, 1977, of the Commissioner of Banks. No record of the |
proceeding was made in conformity with M.G.L. c. 66, §§5A or
6, and no clerk was appointed in accordance with M.G.L. c. 66,

22. Pupecki v. James Madison Corp., 78 Mass. A.S. 2340, 382 N.E. 2d
1030 (1978) at p. 1033:

“The complaint was verified and is therefore treated as
an affidavit insofar as it contains specific facts that the
signer knows to be true Khan v. Garanzini, 411 F. 2nd 210,
212-213 (6th cir. 1969) 2A Moores Federal Practice p. 1104
at 11-13 (2nd Ed 1975) 5 C.A. Wright and Miller, Fed. Prac.
and Proc. sec. 1335 at 508 (1969).”

13

§6. See Kearney v. Bd. of Reg. Pharmacy, 4 Ma. Ap. Ct. 25, 340
N.E. 2d 215 (1976), note Epray decision.

On October 29, 1977, the agents of Central Bank, knowing
that the Commissioner of Banks had avoided giving the
petitioners the procedural administrative due process of M.G.L.
c. 167, §5 (the removal statute), or M.G.L.c. 170, App. 2, §4, or
M.G.L. c. 30A, or M.G.L. c. 66, and the regulations of the
Division of Banks, seized the Roslindale Bank and ousted the
petitioners without giving the petitioner bank or the petitioners
any prior or post prompt administrative due process; and since
October 28, 1977, the respondents Greenwald, Mulligan and
Central Bank refuse to give the Roslindale Bank or any of its
officers administrative due process regarding the certification or
the continued possession of the Roslindale Bank or rights of
administrative or judicial review. See Athas v. United States, 597
F. 2d 722 (Ct. Cl. 1979).

On October 28, 1977, the respondents stigmatized the
petitioners by making statements to the public media that
contained falsehoods, half-truths, exaggerations and hearsay in
violation of the petitioners’ liberty rights. These statements were
made in violation of the petitioners’ constitutional liberty rights
and the petitioners’ “statutory entitlements” of M.G.L. c. 167,
§§2 and 5; M.G.L. c. 214, §1B*” and 3B** regarding M.G.L. c.
66A.

The respondent Central Bank's act of de facto removing the
petitioner individuals from office, coupled with the
stigmatization has actually denied to the petitioner individuals,
their careers in banking and their statutory entitlements, /.e., loss
of compensation and enjoyment of their elected offices. The
respondents did not give the petitioner individuals the
opportunity of a name-clearing hearing, either “prior” or “post
promptly” and denied to the petitioners, their rights of review as
set forth in statutory law, regulations and constitutional
decisions. See Athas v. United States, supra.

23. See footnote 13.

24. See footnote 14.

14

On October 28, 1977, the Roslindale Bank was safe and it
was expedient for the Roslindale Bank to continue in business.
The Roslindale Bank met or exceeded all statutory requirements
of a safe bank. The Roslindale Bank had been recommended
for approval by the Federal Home Loan Bank on September 27,
1977 (one month prior). No extraordinary situation existed at
the Roslindale Bank on October 28, 1977. On October 28,"1977,
the “purported” information the respondent Greenwald acted
upon was gathered and compiled in violation of M.G.L. c. 167,
§2, in that a certified appraiser was not appointed to value the
petitioners’ mortgage portfolio and no notice was given ‘o the
petitioners and the Division of Banks had no regulations relative
to gathering personal data as required by M.G.L. c. 66A.

The petitioner individual directors had a statutory
entitlement to due process regarding mismanagement claims
“prior” to their removal as officers as set forth in M.G.L. c. 167,
§5, and the respondent Greenwald, purposely knowing that the
financial conditions did not exist for authority to use M.G.L. c.
170, App. 2, §4, to certify the Roslindale Bank, knowingly and
maliciously for political reasons, certified that it was unsafe and
expedient for it to continue in business, in an attempt to remove
the petitioner directors permanently by way of a forced
“administrative merger” to deprive the petitioners of their
procedural due process rights set forth in M.G.L. c. 167, §5.

The Commissioner of Banks and Central Bank are subject
to M.G.L. c. 30A (The Administrative Procedures Act); M.G.L.
c. 66 (The Public Records Laws), and M.G.L. c. 66A (The Fair
Information Act), and they have massively violated same.

On October 28, 1977, the respondents, the Commissioner of
Banks and Central Bank, had promulgated no rules and
regulations as described in M.G.L. c. 170, App. 2, §§4 and 8 and
the Commissioner of Banks and the Board created under
M.G.L. c. 167, §5, had promulgated no rules and regulations as
required by M.G.L. c. 30A, §9 (as it appeared in 1977).

The respondents have used statutes arbitrarily, capriciously
and maliciously and they have failed to enact regulations, even
after demand by proper procedures that would give the statutes

15

requisite standards of definition and/or give the petitioners
procedural and substantive rights.

The respondents have made unlawful rules and regulations
not in accordance with M.G.L. c. 30A, §§2 to 6B th.at exceeded
their legislated authority and that are void by statutory mandate.
See M.G.L. c. JOA, §3A.

On or about November |, 1978, after a judicial conference,
in which the original district court justice had declared the
respondents had violated the petitioners’ rights and in which he
said he would appoint a master to assess damages against the
respondents, the respondent Greenwald had four of the
petitioners brought up on charges. The complaint consisted of
every minor violation that had occurred in banking division
reports for five years, committed by daily management. The
evidence consisted mainly of two reports and two witnesses, who
testified about the reports. Both witnesses testified the reports
contained “hearsay upon hearsay” evidence. The agency
stipulated that the four directors had no actual knowledge of the
violations they were charged with being responsible for and they
received no actual prior notice from the state as set forth in
M.G.L. c. 167, §5.

The prosecutor admitted in the record that he withheld
evidence. Both the prosecutor and the Commissioner, the
“judge”, had been in criminal violation of statutes. The “judge”,
the Commissioner of Banks, Greenwald, had determined on
three prior occasions ex parte that the petitioners were guilty as
charged and had made public statements defending her actions
by condemning the petitioners. The “judge” had been meeting ex
parte and corresponding ex parte for over one year with Central
Bank. The “judge” actually had conferences with the state's
witnesses during the trial. This fact was admitted by answer.
Evidence material to the petitioners was denied, monitored and
altered. Many other violations of due process were pleaded.

The petitioners also have pleaded that the respondents
conspired together to justify the original deprivations (1985),
and that all the respondents had it in their power to terminate or
to aid the termination of the constitutional violations (1986).

16

On October 31, 1977, the petitioner president Albert G.
Tobin had requested charges from the respondents Greenwald
and Central Bank, and in front of witnesses requested rights of
review. He was told that he and the bank had “no rights”. See
Athas v. United States, supra.

Course of Proceedings

On Friday, October 28, 1977, in a secret proceeding, the
respondent Greenwald, “purportedly” certified the Roslindale
Bank. On Saturday, after the close of business, also without
notice, the Central Bank seized the Roslindale Bank and ousted
its directors.

On Monday, October 31, 1977, the petitioners, in writing,
gave a request to the Commissioner and Central Bank for a bill
of particulars and a meeting, signed by all the directors, who met
on Sunday, October 30, 1977, with a copy of a vote authorizing
Tobin to bring a M.G.L. c. 167, §33 action.

On Monday, October 31, 1977, Tobin met with Deputy
Commissioner Flynn who told Tobin that the Roslindale Bank
and its directors had “no rights”, and the Commissioner wanted
the Roslindale Bank merged. Central Bank's executive officer
and its lawyer also had told Tobin, that he and the Roslindale
es had no rights, previous to Tobin's meeting with Deputy

ynn.

On November 8, 1977, the Roslindale Bank in its own name
and joined by Tobin as president, brought a petition to the
Supreme Judicial Court naming the Commissioner and Central
Bank as respondents.

This case was commenced in the Supreme Judicial Court
because the respondents denied that any of the petitioners had
rights of review under M.G.L. c. 30A, §14, and refused to give
the petitioners what their rights of review were, denying that the
petitioners had rights. See Athas v. United States, supra.

The petitioners complained to the Supreme Judicial Court
on November 8, 1977, because of M.G.L. c. 167, §33, in the

17

belief that possibly M.G.L. c. 170, App. 2, §10 was
unconstitutional if the respondents’ assertions were correct.
Words in Worcester County Bank v. Com. of Banks, 340 Mass.
695, 166 N.E. 2d indicate that the Superior Court has no
jurisdiction. The first count stated (1) there was no provision for
review, and (2) M.G.L. c. 30A, §14 was inapplicable to the fact
situation. Within thirty days, the petitioners, after they had
researched the law further added a count under M.G.L. c. 30A,
§14. One of the prayers was for the respondent Greenwald to
show cause.

The Supreme Judicial Court declined jurisdiction and
remanded the matter to the Superior Court. Since that time, the
Supreme Judicial Court has remanded related matters twice to
the Superior Court.

The Superior Court dismissed the petitioner bank's case
without prejudice and the petitioner Tobin's case under motions
for Rule 12(b)(6) and the petitioners appealed.

On January 11, 1978, after the Superior Court denied the
Tobin case, the petitioners brought this action in the United
States District Court of Massachusetts. The case was assigned to
Judge Freedman. The jurisdictional basis was 28 U.S.C. §§1331,
1341, ie., 42 U.S.C. §§1983, 1985, 1986; 28 U.S.C. §2201.

The respondents’ answers to the petitioners’ complaint were
motions under F.R.C.P. Rule 12(b)(6). However, the
respondents did not file then, or ever, any supportative affidavits
relative to the merits. On April 3, 1978, Judge Freedman heard
the motions and he took the matter under advisement. In an
effort to get Judge Freedman to act and because of the First
Circuit rule on pleading malice (i.e., Gomez v. Toledo, 602 F. 2d
1018, 1020 (Ist Cir. 1979), overruled by .—. U.S. —_, 64 L.
Ed. 2d 572, 100 S. Ct. (1980). The petitioners filed many
affidavits to make sure their pleadings exceeded this erroneous
rule.

On August 9, 1978, at the request of the petitioners, Judge
Freedman held a conference wherein he stated that although he
had not finalized his opinion, he believed the petitioners’ rights
had been violated. He would appoint a master to assess damages

against the respondents and he ordered the respondents to
report to his clerk by August 23, 1978, as to the status and/or
position Greenwald would take as to the return of the bank.

The respondent Greenwald answered the court that she was
going to call a M.G.L. c. 167, §2A presentation (not a due
process confrontation hearing). Instead of returning the bank,
the respondent Greenwald used this meeting to threaten five
directors with charges under c. 167, §5, and did not file a
complaint with the Superior Court as the statute directs.

The petitioners sought the protection of the district court
from a M.G.L. c. 167, §5 hearing on five grounds: (1) the
proposed hearing one year later was not “post prompt”; (2) both
the Commissioner and the Board created under M.G.L. c. 167,
§5 had no regulations as mandated by the Legislature; (3) the
respondents were suppressing evidence which the petitioners
needed for defense; (4) the obvious bias of the Commissioner
and (5) the petitioners requested additional time for discovery
purposes. The district court appointed a magistrate who granted
a one week postponement and refused the other requests, and on
appeal the First Circuit also refused the petitioners’ request.

Simultaneously the petitioner bank and the (four) directors
brought a M.G.L. c. 231A action on the same basis, and also
were denied temporary orders by the Superior Court and the
Appeals Court of Massachusetts.

One year after certification, without a hearing regarding the
certification, the respondent Greenwald as “judge” on her last
day as Commissioner, “purportedly” (there was no lawfully
made record, and no lawfully appointed clerk, see M.G.L. c. 66,
§§5A and 6) found the four petitioners guilty as charged and the
Board upheld the finding, who also had appointed no clerk.

On February 28, 1979, the Supreme Judicial Court filed its
decision. The decision stated the petitioner directors could
challenge the certification, but upheld the Superior Court for
reasons which the petitioners claim are affirmative defenses that
were not pleaded in accordance with M.R.C.P. Rule 56(e) by the
respondents, i.e., lack of authority of Tobin, and failure to
exhaust administrative remedies. This argument taken from the

19

respondents’ “brief” and not affidavits sua sponte denied the
petitioners the opportunity to deny the defense by affidavit,
under M.R.C.P. Rule 56(e) which is similar to F.R.C.P. Rule
56(e).

In April of 1979, the petitioners amended their complaint to
add current complaints relative to further violations of due
process. The respondents again answered with a 12(b)(6).

The petitioners filed more affidavits in an effort to get the
court to respond, but to no avail.

In early June, the case was reassigned to Judge Zobel, who
called for a new hearing for July 2, 1979 on respondents’ motion
for Rule 12(b)(6).

The respondent Mulligan as a result of new court activity
called another M.G.L. c. 167, §2A presentation for the seven
directors “not tried” and the petitioners filed the second
amended complaint.

At this M.G.L. c. 167, §2A presentation, the seven
petitioners were denied the right to have an attorney present
(one other than the Tobin's, as well as the Tobin's). The
petitioners filed a twelfth count. A §2A presentation is not a
due process hearing. The respondent Mulligan also did not file a
complaint with the Superior Court as the statute directs.

On July 2, 1979, the respondents’ attorneys stated to the
district court (without pleadings), that the respondents were
going to give the bank back to the seven petitioners not
“removed”. At this hearing the court also allowed the petitioners
amendments to their complaint about the respondents’ current
arbitrary activities.

By October 5, 1979, the directors of the petitioner bank
decided the respondents were not acting in good faith and sent a
letter to the court requesting some order. When the court gave
no indication of acting on November 29, 1977, the petitioners
sent a letter to Chief Justice McCaffrey complaining about “no
program for prompt disposition of protracted and widely
publicized cases” in the district court and indicating their

20

intention to appeal along with (1) motion to transfer; (2) motion
to request relief from regular assignments and (3) motion for
certification under 28 U.S.C. §1292(b).

On December 7, 1979, the court rendered its first decision
Roslindale I, dismissing the petitioner bank and all of the
directors, except the four petitioners.

In January 1980, after Roslindale I, the petitioners again
requested from the respondents Mulligan and Central Bank an
administrative hearing relative to the “certification” and the
continued possession of the petitioner bank as set forth in
Tobin, p. 1248 fn. 3 “before the Commissioner” and the request
was denied, the petitioners again requested “rights of review”
and this request was denied.

The petitioners appealed the case of Roslindale I, and asked
both the district court and the First Circuit Court for
preliminary and protective orders (1) motion to order the
respondents to comply with Massachusetts public meeting and
record laws; (2) motion for an advance for attorneys’ fees; (3)
motion for an advance for costs of court and (4) motion for a
protective order for the petitioners A. Tobin, R. Tobin, L.
DeLosh and J. Quinn.

On March 25, 1980, the district court decided Roslindale I]
and on April 23, 1980 the appellate court denied the appeal of
Roslindale I, 80-1069 and the petitioners’ motions. The
petitioners then appealed Roslindale I and // together.

On April 25, 1980, the petitioners brought a motion to
amend the judgment under F.R.C.P. Rule 59(e) requesting the
court to (1) retain jurisdiction but staying the proceeding and (2)
order a dismissal without prejudice, as set forth in Am. Trial
Lawyers Ass'n v. N.J. Supreme Court, 409 U.S. 497, 34 L. Ed.
2d 651 at 659 (1973). On April 29, 1980 the district court denied
the motion. The petitioners again appealed and consolidated
both appeals.

On June 6, 1980 after the decision of the district court of
Roslindale I and Roslindale II, the petitioners brought a motion

21

to amend the Tobin case to add a count under 231A, which was
denied by the Superior Court of Massachusetts.

The appellate court rendered its decision of Roslindale III
on November 21, 1980 stating sua sponte that the petitioners
should have pursued a cause of action under M.G.L. c. 167, §
33. This defense had not been pleaded by the respondents. The
petitioners had no opportunity to counter plead.

The petitioners requested a rehearing on the basis of
McNeese v. Board of Education and the fact that M.G.L. c. 170,
App. 2, $10 explicitly denied to Roslindale Bank as a member of
Central Bank the use of M.G.L. c. 167, §33. The appellate court
then amended its decision and stated the same conclusion as the
district court that M.G.L. c. 231A afforded the petitioners relief.

The petitioners then requested the second rehearing on the
basis that M.G.L. c. 231A was a (1) state judicial remedy; (2) it
gave the court secondary jurisdiction only and it was a limited
review and not a hearing on the facts and (3) it was questionable
that it could be used because M.G.L. c. 231A, §3 required an
affidavit of known procedure.

The appellate court denied the petition for a second
rehearing.

The petitioners then brought a petition for recall of the
mandate, to allow the petitioners to bring a motion for
protective order to order the respondents to give the petitioner
bank an advance of its own funds to appeal to the United States
Supreme Court. The appellate court denied the motion. The .
motion is in the Appendix, infra at p. 2a.

THE FEDERAL QUESTIONS ARE SUBSTANTIAL

The first and foremost reason to require plenary
consideration of this Court is that it is perfectly permissible in
the First Circuit for an activist Bank Commissioner to order a
sound bank taken over and seized without any form of due
process for over three years in regard to the original seizure or to
the reason why the bank is still in the state of seizure when it

22

was never intended that it be liquidated nor were there any debts
and the bank’s reserves exceeded all statutory mandates. No
director was involved in any criminal or fraudulent scheme.

The petitioners state that a determination of the
constitutionality of these banking statutes are important because
all cooperative and savings banks in Massachusetts and their
officers are subject to these same laws. The petitioners say the
statutes contain “overbreadth” and permit too much arbitrary
discretion which subject the bankers to political wiiims of one
Banking Commissioner. See Manges v. Camp, 474 F. 2d 97 at
101 (1973) and Feinberg v. F.D.I, 420 F. Supp. 109 (1976). See
also, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579
(1952) cited in Supreme Court Rule 18. The Roslindale Bank,
sound and healthy, remains “seized” by the government after
three years without due process.

IL.
The district court must exercise its jurisdiction.

The petitioners say that they have a constitutional right to
choose the federal forum for redress of their complaints against
the respondents for depriving them of their federal constitutional
rights “under color” of state law. England v. Louisa Bd. of
Medical Examiners, 375 U.S. 111 (1964) states at 415:

“When a federal cour? is properly appealed to in
a case over which it has jurisdiction .... The
right of a party to choose a federal court where
there is a choice, cannot be properly denied.”

The petitioners have pleaded that the United States District
Court has jurisdiction of this case under three separate and
distinct codes:

1. 28 U.S.C. §1331. The petitioners have pleaded their case
arises under the rights of the United States Constitution and that
their damages are in excess of $10,000.

2. 28 U.S.C. §1341. The petitioners have pleaded that their

23

constitutional rights have been violated under color of state law
(1982); that there has been a conspiracy by two or more persons
(1985) and that all of the respondents named had the power to
prevent or aid in the prevention of their constitutional rights
(1986).

3. 28 U.S.C. §2201, Declaratory Judgment. The Supreme
Judicial Court in Tobin, supra, states at p. 1248 fn. 3, that the
petitioners may challenge the “certification” before the
Commissioner or in some circumstances under M.G.L. c. 231A
(the Massachusetts declaratory judgment). The district court and
the First Circuit decline jurisdiction on the basis that a M.G.L.c
231A action will lie.

_ The petitioners say that this case is an actual controversy
and the petitioners are seeking to have their federal rights
declared, and if a, M.G.L. c. 231A action for a declaratory
judgment will lie then a 28 U.S.C. §2201 action for declaratory
judgment must also lie because the purposes of both are exactly
the same, to declare constitutional rights.

The petitioners say the law of Monroe v. Pape, 365 U.S.
167 (1961) as elaborated by McNeese v. Board of Education, 373
U.S. 668 (1963) and recently again reiterated in Allen v.
McCurry, 101 S. Ct. 2d 411 at 418, Sl. Op. 79-935 (Dec. 9,
1980). See also, England v. La. Bd. of Medical Examiners, 375
U.S. 111 at 115 (1964). The petitioners say the district court’s
application of withholding jurisdiction on a fiction that the state
respondents may return the bank, has in this case been worse
than if the court had immediately abstained, because the
petitioners were forced to wait over two years for the decision.
Furthermore, the petitioners say the Exhaustion Doctrine is an
affirmative defense and cannot apply to this case as the
respondents have not pleaded it. See Central Motors v. City of
Pepper Pike, 63 Ohio App. Ct. 2d 34, 409 N.E. 2d 258 (1980);
cf., Gomez v. Toledo, 64 L. Ed. 673, 100 S. Ct. 2d __, SI. Op.
79-5601 (1980). Even if it did apply, the petitioners have pleaded
there were and are no procedures available regarding M.G.L. c.
170, App. 2, §§4 and 5 for the petitioners to use. See Swan v.
Stoneman, 635 F. 2d 97 (2d Cir. 1980).25 Susquehanna Valley v.

25. See footnote 2.

24

Three Mile Island, 619 F. 2d 231 at 245 (1980); Feinberg v.
F.D.1.C., 420 F. Supp. 109 (1976) and Manges v. Camp, 474 F.
2d 97 (Sth Cir. 1973).

The petitioners say that no administrative hearing and/or
no judicial hearing held at this late date can timely correct these
constitutionally required deficiencies of procedure, and it does
not matter what the state law is. However, the petitioners also
claim that the respondents violated the state procedures which is
a separate and distinct constitutional-violation of the Fourteenth
Amendment’s equal application of the law clause. See Service v.
Dulles, 354 U.S. 363 (1957); Whiteside v. Kay, 446 F. Supp. 716
(1978) and Goss v. Lopez, 419 U.S. 565 (1975). See Kearney v.
Bd. of Reg. Pharmacy, supra; note Epray decision.

The denial of federal jurisdiction to the petitioners for a
complaint based upon violations of federally guaranteed rights
by the respondents is declared by the following court statements:
Roslindale I, 481 F. Supp. 749 at 754 (D.C. Mass. 1979);26
Roslindale II, —F. Supp. —— (D.C. Mass. 1980)?7;

26. Roslindale I, 481 F. Supp. 749 (D.C. Mass. 1979) at 754:

“The availability of equitable relief under Mass. Gen'l
laws ch. 231A, see Tobin v. Com. of Banks, 386 N.E.2d
1248, meets all requirements of due process in the context of
bank certification.”

27. Roslindale Ii, _. F. Supp. —. (D.C. Mass. 1980) at 4:

“As a matter of constitutional law, the only question
before me is whether the plaintiffs were afforded a fair
Opportunity to answer charges against them.”

At 5:

“Challenges to the sufficiency of the evidence upon
which Greenwald rendered her decision or to the soundness
of her evidentiary rulings are not within the subject matter
jurisdiction of this court, but may be, and are being,
pursued by the plaintiffs in accordance with their statutory
right of appeal within the state court system. See Mass.
Gen. Laws 167, sec. 5... .”

25
Roslindale III, _— F. 2d —— (Ist Cir. 1980).28

The petitioners say that these decisions are in conflict with
the Supreme Court decisions of Monroe v. Pape, 365 U.S. 167
(1961); McNeese v. Bd. of Education, 373 U.S. 668 (1963)?9 and
Swan v. Stoneman, 635 F. 2d 97 (2nd Cir. 1980).%

28. Roslindale, [1], _ F. 24 —— (Ist Cir. 1980) at 4:

“As for a post event hearing Mass. G.L. c. 167 sec. 33
provides for review in the Supreme Judicial Court whenever
any bank whose property and business feels itself aggrieved
thereby and files within ten days. In point of fact, while this
section originally covered Co-operative Banks, see Lowell
Co-operative Bank, 287 Mass. 338, 344-46, 191 N.E. 921,
924-25, it no longer does, Mass. G.L. 170 App. 2, sec. 10.
However, the broad provisions of the Massachusetts
Declaratory Judgment Act, Mass. G.L. c. 231 A, afforded
the plaintiffs an avenue for relief. See Tobin v. Com. of
Banks, ante 1979 Mass. A.S. at 499 n. 3, 386 N.E. 2d at
1248, n.3; Canney v. Mun. Court, 1975, 368 Mass. 648, 335
N.E. 2d 651; Franklin Fair Ass'n v. Sec. of the Comw.,
1964, 347 Mass. 110, 196 N.E. 2d 622... .”

29. McNeese v. Board of Education, 373 U.S. 668 (1963) at 671-72:

“That is the statute that was involved in Monroe v.
Pape. supra and we reviewed its history at length in that
case. 365 U.S. 171 et seq., 81 S. Ct. at 475, et seq. The
purposes were several-fold to overide certain kinds of state
law, to provide a remedy where the state remedy was
inadequate, to provide a federal remedy where the state
remedy, though adequate in theory was not available in
practice, and to provide a remedy in the federal courts
supplementary te any remedy any state may have... .”

30. Swan v. Stoneman, 635 F. 2d 97 (1980) at 102:

“It is well settled that exhaustion of state judicial
remedies is not a prerequisite to an adjudication of 1983
claims in federal court. Ellis v. Dyson, 421 U.S. 426 (1975),
Welwording v. Swenson, 404 U.S. 249, 251 (1971), McNeese
v. Board of Education. 373 U.S. 668 (1963); Monroe v.
Pape, 365 U.S. 167, 183 (1961).”

26

The Supreme Judicial Court, the district court, and the
appellate court, have granted the respondents defenses that the
respondents did not plead, contrary to F.R.Civ. Proc. Rules 8(c)
and 56(e).

The petitioners say that the acceptance by the courts in this
case, of the respondents’ arguments by either brief or motion not
supported by counter affidavits is wrong. The acceptance of
legal propositions that have as their basis facts not pleaded in
effect denies the the petitioners the opportunity to counter plead
by affidavit that is their right under F.R.C.P. Rule 56(e).

The petitioners filed a verified complaint on January 5,
1978. The state respondent filed a motion to dismiss on January
31, 1978 on the basis of two grounds (1) the complaint failed to
state a claim and (2) the petitioner bank and Albert Tobin had
commenced suit in the state court. The state respondents did not
file any supportative affidavits prior to the decision of
Roslindale I on December 7, 1979.

The Central Bank respondent filed a motion to dismiss
based upon (1) insufficiency of service which the petitioners
immediately corrected and (2) failure to state a claim. The
Central Bank did not file any supportative affidavits to challenge
the merits of the case prior to Roslindale I.

The respondents did not counter plead but continued to
argue only by briefs which were unsupported by affidavits.

Although the petitioners were not required to file
supportative affidavits the petitioners did file them concerning
ongoing additional violations of the respondents and also
because of the district court's inactivity as well as the First
Circuit’s erroneous rule regarding pleading of malice of the
respondents, which was overruled by Gomez v. Toledo, ——
U.S. —, supra.

The petitioners say that because their complaint was
verified it is similar to an affidavit which the respondents must

27

answer or it must be taken true as pleaded by the court. Pupecki
v. James Madison Corp., Mass. Adv. Sh. 2340, 2345-6, 382 N.E.
2d 1030 at 1033 (1978).3!

F.R.C.P. Rule 8(c) requires the respondents to plead “any
matter constituting an avoidance or affirmative defense.” see
Gomez v. Toledo, Sl. Dec. 79-5601 at p. 6.32

F.R.C.P. Rule 56(e)? requires the respondents, after a
motion for summary judgment has been made, to set forth

specific facts.

The court must view, because of the lack of the respondents’
affidavits, all of the petitioners’ pleadings in the light most
favorable to the petitioners. Ferguson v. Ominedia, 469 F. 2d
194 at 198 (Ist Cir. 1973) and all of the petitioners’ allegations
must be treated as facts. Latrobe Electric Steel Co. v. Vascomy
Ramet Corp., 55 F. Supp. 347 at 348, fn. 1 (D. Del. 1944).

The petitioners say they have plainly and clearly pleaded
that the respondents have made no record of any proceeding as
required by state law and many other violations of due process.

The petitioners say that the respondents can never plead an
affirmative defense that can justify their actions. Any affirmative
defense must have as a basis of origin in this case of either a
meeting in which there was a clerk appointed and a record made
that can be certified in accordance with Rule 44,* or rules and

31. See footnote 22.

32. Gomez v. Toledo, ___U.S_, 64 L. Ed. 2d 572, 100 S. Ct. _, SI.
Dec. 79-5601 (May 27, 1980) at 6:

“Since qualified immunity is a defense, the burden of
pleading it rests with the defendant. See Fed. Rule Civ.
Proc. 8(c) (defendant must plead any ‘matter constituting an
avoidance or affirmative defense’); 5 C. Wright & A Miller,
Federal Practice and Procedure, sec. 1271 (1969).”

33. See appendix, infra at p. 43a.

34. See appendix, infra at p. 42a.

regulations made under the authority of either M.G.L. c. 170,
App. 2, §§4 or 8. The petitioners say that no evidence of what
took place at the “purported” certification meeting can ever be
introduced in a trial because it would be in violation of not only
Rule 44, but also the parol evidence rule. See N.E. Box Co. v.
C.R. Construction Co.,*5 313 Mass. 698, 49 N.E. 2d 121 (1943)
and Suburban Land Co. v. Billerica, 314 Mass. 184, 49 N.E. 2d
1012 (1943).3* The parol evidence rule is a matter of substantive
law. Kessler Shoe Co. v. Philadelphia Fire & Marine, 295 Mass.
123, 3 N.E. 2d 257; see also, Kearney v. Bd. of Reg. Pharmacy,
supra, note Epray decision; cf, Citizens to Preserve Overton
Park v. Volpe, 491 U.S. 402 (1971) and National Pork Prod.
Council v. Bergland, 484 F. Supp. 540 at 544 (1980). The
petitioners say the respondents can never raise this affirmative
defense nor can the court accept evidence other than from a
record, which was never made. See N.E. Box. Co. v. C. & R.
Const., supra.

The respondents enacted rules and regulations but did not
file them with the state secretary as required by M.G.L. c. 30A,
§§2 to 6B and therefore the court can never take judicial notice
of them. This unlawful conduct of the respondents makes all
subsequent actions (after November 4 and 8, 1977) void by the
respondent Greenwald and Central Bank. See M.G.L. c. 30A,
§2, Saxon Coffee Shop v. Boston Lic. Bd., _. Mass. ——, 407
N.E. 2d 311 (1980);3’ Purity Supreme v Attorney General,
Mass. —_., 407 N.E. 2d 297 (1980).

35. See footnote 11.
36. See footnote 12.

37. Saxon Coffee Shop v. Boston Lic. Bd., __. Mass. —_., 407 N.E. 2d
311 (1980) at 316:

“The regulations of the Board are not published and
thus we are not permitted to take notice of them. see GL. c.
30A, sec. 6; Purity Supreme v. Attorney General, ——
Mass. —., 407 N.E. 2d 316 (1980).”

29
Il,

The petitioners have pleaded specific facts which must be
taken by the court as true, and therefore it is the petitioners who
are entitled to summary judgment.

The petitioners have clearly pleaded that they have a
“property right” and a “liberty right” and the district court in
Roslindale I agrees. The petitioners have pled that their property
interest and liberty interest have been denied for over three years
and the district court disagrees** even though the respondents
are in control of the petitioner bank's assets and the petitioner
individuals have not received compensation or controlled the
assets for three years.

In the respondents’ best light, the petitioners say that they
have at least temporarily diminished the petitioners’
constitutional rights without due proc:ss. It is no answer, that
the respondents may at some speculative time in the future
restore those rights. It is well settled that a temporary
deprivation is a protected right of the Fourteenth Amendment.
Fuentes v. Shevin, 407 U.S. 67 (1972).5%

38. Roslindale I, 481 F. Supp. at 754:

“A further reason compels dismissal of the plaintiff
directors’ claims arising out of certification of the bank. As
both the complaint and the certification statute indicate
Greenwald's action with respect to the bank did not
terminate the plaintiffs directorships. It is still possible that
the bank's business will be restored to full managerial
powers, indeed it appears from the complaint, steps toward
this end have been taken. In the absence of a conclusive
termination of status, plaintiff directors cannot argue that
they have been denied their constitutional rights. Board of
Regents v. Roth, supra; Paul v. Davis, 424 U.S. 701.”

39. Fuentes v. Shevin, 407 U.S. at 84-85:

“... But it is now well settled that a temporary non-
final deprivation of property is nevertheless a ‘deprivation’
in the terms of the Fourteenth Amendment. Snaidach v.
Family Finance Corp., 395 U.S. 337; Bell v. Burson, 402
U.S. 535. Both Snaidach and Bell involved takings of
property pending final judgment in an underlying dispute.”

30

The petitioners further say that the Roslindale Bank and its
directors were entitled to prior notice, by statute and by
regulations and that the district court had no right to
superimpose its wisdom on the Legislature or over the
regulations of the Commissioner of Banks. See Minn. v.
Cloverleaf, __. U.S. ——, 101 S. Ct. 2d 715 at 726, 66 L. Ed.
2d (1980).*°

The district court has also ignored the pleadings relative to
“stigmatization.” Owens v. City of Ind. Mo., __. U.S. ——.,
100 S. Ct. 1399 (1940).

The petitioners submitted an affidavit that contained 56
pages of derogatory newspaper articles which commenced with
the seizure. The local weekly newspaper's first edition in a
headline article after the seizure, quoted the respondent
Greenwald as saying: “No one in the bank could be trusted.”
Almost all the articles contained a charge of mismanagement.
The district court dispels this stigmatization pleaded in
Roslindale I, 481 F. Supp. at 754, fn. 3, by merely stating that
“the statute is neutral” and ignores the affidavits of the
petitioners containing derogatory newspaper articles that defame
the petitioner bank and the petitioner individuals.

The petitioners have pleaded that the respondents have
massively violated M.G.L. c. 30A, 66 and 66A. They have also
pleaded that at least three of the petitioners are registered voters
as described in M.G.L. c. 30A, §11A'4 and M.G.L. c. 66, §17C
and §10. These pleadings give rise to “statutory judicial
entitlements” which the district court has chosen to ignore, and
the respondents by failing to plead counter affidavits have
chosen not to sustain. These statutes place the burden of proof
on the respondents to show by a preponderance of the evidence
that the actions complained of in such a complaint are in
accordance with and authorized by the statutes involved or the
court must find summary judgment for the petitioners.

40. Minn. v. Cloverleaf, _. U.S. —— 101 S. Ct. 715 (1981):

“The Court has no authority to superimpose its wisdom
over procedures set forth by the Legislature.”

31

It is to be noted that in Roslindale I, 491 F. Supp. at 555,
the district court cites by name, Gomez v. Toledo, 602 F. 2d
1018 (Ist Cir. 1979). This citation by itself conclusively proves
that clear error exists in regard to the pleadings in both
Roslindale 1, 491 F. Supp. and Roslindale //1, _ F.2d
Therefore, both decisions are necessarily contrary to Gomez v.
Toledo, —.. U.S. —, supra.

The petitioners have pleaded many violations of due process
other than denial of their “property” and “liberty” rights, they
have far exceeded the minimum requirements of Gomez v.
Toledo, _.. U.S. —., supra. They have pled violations of basic
constitutional rights that go to the very heart of due process and
for which there could never be an affirmative defense pleaded to
justify the respondents’ actions (1) deliberate misuse of authority
of statutes; (2) suppression and alterations of “public records”;
(3) “missing” public records; (4) refusal to appoint clerks for the
obtaining of public records by subpoena; (5) one year of ex parte
conduct prior to trial by the “judge”; (6) ex parte conferences
between the “judge”, the prosecutor and the state witnesses
during the trial; (7) public pronouncements by the “judge” prior
to trial; (8) almost complete hearsay evidence; (9) bias of the
judge, which the district court finds “irrelevant™*'; (10) refusal of
the right of cross examination; (11) refusal of the right to have
an attorney present at an administrative hearing.

The petitioners say they have pleaded violations of
minimum requirements of the Federal Constitution regardless
what the state law is. If the state law approves this type of

41. Roslindale II Decision, March 25, 1980, last page:

“Nor do I find as relevant the allegations of
Greenwald's bias and malice. Whatever sentiments
Greenwald may have brought with her to the proceeding,
the end result was a fair, constitutionally adequate
administrative proceeding. Challenges to the sufficiency of
evidence upon which Greenwald rendered her decision, or to
the soundness of her evidentiary rulings are not within the
subject matter jurisdiction of this Court, but may be, and
are being, pursued by plaintiffs in accordance with their
statutory right of appeal within the state Court system. See
Mass. G.L. 167, sec. 5.”

32

conduct that law is unconstitutional. For violations of minimum
federal procedural requirements they are entitled to per se
damages, Carey v. Phipus, 435 U.S. 247 (1978) and
compensatory damages, Wood v. Strickland, 420 U.S. 308
(1974).

The petitioners also say they have pleaded sufficient facts to
prove subjective malice. There could be no possible affirmative
defense for the many violations committed and for the keeping
of the assets of a sound bank for over three years on the basis of
a liquidation statute, when only four directors out of twelve were
charged and the remaining majority of the board were willing to
serve. It is to be noted no “day to day” management has been
charged for any offenses, and the President of Central Bank has
testified he has seen no evidence of any criminal conduct or
fraudulent activity of any director who was “charged.”

IV.

The district court has aided the respondents to continue the
violations of the petitioners’ rights by failing to grant timely
orders to enable the petitioners to obtain judicial due process
either in state or federal courts.

The petitioners say that the failing to act on a declaratory
judgment for two years by itself is an abuse of discretion.
Declaratory judgments are supposed to be acted upon speedily.
_ See F.R.C.P. Rule 57; United States v. Lynd, 301 F. 2d 818 (5th
Cir.), cert. denied, 371 U.S. 893 (1962).

The petitioners had pleaded that the respondents were
violating M.G.L. c. 66 in full view of the district court, and they
called to the court's attention that violations of M.G.L. c. 66
were criminal violations. See M.G.L. c. 66, §§15 and 17.

The petitioners further say that they requested an
enlargement of time for filing affidavits until the respondents
allow the petitioners to obtain copies of their records which the
court refused to act upon.

33

The petitioners also requested funds to hire counsel and for
costs of court for the petitioner bank, to challenge the
“certification” which the court refused to act upon. See
Anderson v. Great Republic Life Ins. Co., _ Cal. —., 106
P. 2d at 82 (1940); Warson v. Johnson, _. Wash. —, 24 P.
2d 592, 89 A.L.R. 1527 (1933).

The petitioners say they have a First Amendment right tr
obtain “public records” for the purposes of obtaining judicial
due process. Richmond Newspapers v. Virginia, Si. Op. 79-243
(1980); see opinion of Brennan J., pp. 3-4 (the right to gather
information) and Stevens J.

Vv.

M.G.L. c. 170, App. 2, §§4 and 5 and M.G.L. c. 167, §5 are
unconstitutional on their face, or at least unconstitutional
without rules and regulations, and/or as used by the respondents

against the petitioners.

The petitioners say that M.G.L. c. 170, App. 2, §§4 and 5
are either unconstitutional on their face or their use by the
respondents in the manner used is unconstitutional, as the
respondents’ conduct toward the petitioners has been arbitrary
and capricious.

The petitioners say that M.G.L. c. 167, §5 is as serious, as
opposed to petty civil as well as penal contemnor,*? and their
trial by the administrative instead of the judicial branch of
government is a violation of the separation of powers of the
Constitution. United States v. Ward, _ U.S. —_, Sl. Dec. 79-
349 (1980).

The petitioners further say that M.G.L. c. 167, §5 mixes the
functions of adjudication-prosecution-and-investigation. See

42. M.G.L. ¢. 167, §5 (in pertinent part):

“.. Any person removed . . . who thereafter participates . . . shall
be punished by imprisonment . . . for not more than five years or by
fine of not more than five thousand dollars or both... .”

34

Joint Anti-Facist Committee v. McGrath, 341 U.S. 123 (1951)
and Wong Yang Sun v. McGrath, 339 U.S. 33 (1950).

One of the stipulations agreed to by the “prosecutor” Flynn
was that there have been no rules and regulations filed in
accordance with M.G.L. c. 30A, §2, by the Board created by
M.G.L. c. 167, §5, or the Commissioner. The petitioners also
pleaded that neither the Commissioner nor Central Bank have
enacted lawful rules as set forth in M.G.L. c. 170, App. 2, §4 or
§8, but enacted unlawful rules.

The petitioners say that the rules “adopted” by the Board
were not published by them as pertaining to M.G.L. c. 167, §5,
in accordance with M.G.L. c. 30A, §§2 to 6B, and were therefore
void. See M.G.L. c. 30A, §3A. The Commissioner’s “adopted”
rules were also void as repealed by the Acts of 1977 c. 963. (See
M.G.L. c. 30A, §9 as amended by Acts of 1977, c. 963), nor did
they meet the higher standards of jurisprudence as required by
the Acts of 1977 c. 963. The Board could have adopted the
tenative pre-published rules of the Commission of
Administration that met the higher standards required by the
Legislature and set forth in the Acts of 1977 c. 963, instead of
adopting the Commissioner of Banks Regulations without prior
publication as described in M.G.L. c. 30A, §2, that did not meet
the standards that were required by the Legislature.

The petitioners also say the failure of the agencies to make
the regulations set forth in the statutes, makes the use of the
statutes without the intended regulations to define or clarify the
statutes is a violation of due process because the statutes are
then overbroad and contain arbitrary discretion, or are vague as
to the petitioners’ procedural and substantive rights. Feinberg v.
F.D.L.C., 420 F. Supp. 109 at 114 (D.C. 1976); Van Wilpen v.
Van Wilpen, 370 So. 2d 231 (Fla. App. Ct. 1979); Yeik v. Dept.
of Taxation, 595 P. 2d 965 at 969 (1979).

35
VI.

The M.G.L. c. 167, §5 hearing was conducted by a “judge”
who was biased as a matter of law, and the hearing procedures
violated the petitioners’ (four) constitutional rights of due
process.

The petitioners have pleaded that in April 1978 the
respondent Flynn publically stated in a hearing before the
Legislative Committee on Banks and Banking that the reason
the Commissioner had not charged any person under M.G.L. c.
167, §5 was “In the absence of ‘real criminal activity’ I don't
think justice would be served by that approach.”

The district court completely ignored the stipulation agreed
to by the state at the M.G.L. c. 167, §5 hearing of the petitioners
(four); (1) that the directors charged had no actual notice of the
violations complained of (which were mostly attributed to daily
management, and not to the directors who met monthly [the
president is similar to the chairman of the board]); (2) that the
Commissioner of Banks and the Division of Banks gave no
notice to any of the individual directors, as described in M.G.L.
c. 167, §5; (3) that the petitioners (four) charged, or any other
director, had no opportunity to correct any violations
themselves (or to order the day-to-day management to correct
violations), as described in the procedures set forth in M.G.L. c.
167, §5.

It is the petitioners’ contention that unless the pre-notice
procedures set forth in M.G.L. c. 167, §5 are followed by the
Commissioner of Banks, that this statute is unconstitutional
because of overbreadth and vagueness, “regulatory standards are
narrower when amendment freedoms are at stake”, N.A.A.C.P.
v. Button, 371 U.S. 415 at 432 (1963). The petitioners say that if
M.G.L. c. 167, §5 is not a fair warning statute, as interpreted by
Kaplan, J. in Ottoway Newspapers v. Appeals Court, _ Mass.
——, 386 N.E. 2d 1189 at 1193 (1977), note fn. 6 and the “statute
is not singular”, fn. 6 contains the citation of six similar statutes
where prior notice and an opportunity to correct are
prerequisites, the statute lacks malice or scienter. See Com. v.
Bank of Mutual Redemption, 4 Allen | (Mass. 1862). It is to be

36

noted that the statute in 1932 was captioned “An Act for the
Removal and Punishment of Bank Officers Who Persist in
Improper Practices.” There are thousands of sections of banking
statutes and regulations that reasonable men may differ upon
the interpretation, and many enacted by Greenwald that
represented political activist ideas not based on sound banking
practices, as well as a usurping of authority.

The petitioners further state that the use of all banking
statutes, M.G.L. §§2A, 5, and M.G.L. c. 170, App. 2, §4, is a
latent example of the unequal treatment that the Roslindale
bankers have received from the Commissioners of Banks. The
reason there were no regulations is that the statutes have not been
used before in the manner in which the respondents applied
them to the petitioners. The court has allowed “unrestrained
discretion”. Grayed v. Rockford, 408 U.S. 108 at 109.

The Supreme Court has declared in /n re Murchinson, 349
U.S. 133, that, “Every procedure which would offer a possible
temptation to the average man as a judge not to hold the
balance clear and true between the state and the accused denies
the latter due process.” Yet after the district court made his
pronouncement that he believed the respondents were liable for
damages, both the district court and the appellate court allowed
the petitioners (four) to be the subject of a trial held by these
same respondents who the court had declared were to be liable
for damages.

It was not until Judge Freedman said in his conference that
(1) he believed the respondents had violated the petitioners’
constitutional rights; (2) that the respondents were liable for
damages; (3) that he intended to appoint a master to assess
damages. After this conference and over one year later than
their actual de facto removal, the petitioners (four) were brought
up on charges by the respondents.

The respondent Greenwald became the “impartial judge”.
The respondent Flynn became the “impartial prosecutor”. The
counsel for the respondent Central Bank “manufactured” an
“impartial report”, which was submitted in secret ex parte two
months before the hearing to the “impartial judge” Greenwald.

37

The assistant legal counsel for Central Bank became the
“impartial star witness” for the prosecution at the hearing. The
report he testified about was written by Central Bank’s legal
counsel and secretly given to Greenwald on the very same day
that the respondents were to report to Judge Freedman what
they were going to do about giving Roslindale Bank back, two
months earlier. .

The district court and the appellate court completely
ignored the petitioners’ verified fourth count as well as the
petitioners’ uncontroverted affidavits. The district court’s
statement, on page |4a, infra, “Nor do I regard as relevant the
allegations of Greenwald’s bias and malice.” shows the district
court’s strange concept of the requirements of a fair trial and an
impartial judge.

The petitioners’ verified fourth count and uncontroverted
affidavits which must be believed as true, stated: (1) the
respondent Greenwald continually for over one year engaged in
ex parte proceedings. During the trial, she engaged in ex parte
conferences not only with “her” lawyer, but also with the
prosecutor, the respondent Flynn and the state witnesses. This
fact was admitted in the respondent Greenwald’s answer and
also backed up by copies of the stenographic record of the
proceedings. See Camero v. United States, 375 F. 2d 777 (1971);
Amos Treat Co. v. Sec. Exc. Com., 306 F. 2d 260 (1970); Powell
v. Ward, 392 F. Supp. 628 (1975); (2) Neither the Commissioner
of Banks, the Board created under M.G.L. c. 167, §5, or the
Commissioner of Administration, had made rules and
regulations concerning M.G.L. c. 167, §5 as required by M.G.L.
c. 30A, §9 (cither prior or after the amendment change of July |,
1978). This fact was backed up by certificates from the Secretary
of State's office. See Yeik v. Dep't of Taxation, _.. Wyo. —_,
595 P. 2d 965 at 969 (1979); Van Wilpen v. Van Wilpen, —— Fla.
App. Ct. —, 370 So. 2d 231 (1979); Feinberg v. F.D.1.C., 420
F. Supp. 109 -at 114 (1976); (3) Prior to the hearing the
respondent Greenwald as “judge” “investigator” and
“prosecutor” had determined three times ex parte that the
petitioners were guilty of mismanagement and had made many
public statements to the media regarding the petitioners’ “guilt.”
These statements are backed up by facts pleaded in the verified

38

complaint and an affidavit consisting of about 56 pages of
various newspaper articles; (4) The respondents, including the
“impartial judge” were all in criminal violation of M.G.L. c. 66,
see M.G.L. c. 66, §§15 and 17, and that they had refused to
appoint a clerk so that the petitioners could summons records or
obtain records, or to prove the lack of records. The respondents
also suppressed records, altered records, monitored records, and
lied about the existence of records being available. This pleading
was backed up by certificates from the State Secretary, copies of
records blanked out, stenographic minutes wherein the
respondent Flynn admits he has denied the petitioners records
and testimony from the examiner that his report is “hearsay
upon hearsay” and that it had been altered.

The district court refused the petitioners’ motions to order
the respondents to appoint a clerk, or to make the respondents
comply with the Public Records Laws, M.G.L. c. 66; or the Fair
Information Practices Act, M.G.L. c. 66A. The petitioners claim
that since Richmond Newspapers v. Virginia, supra that these
statutes merely set forth procedures which are as a matter of law
a First Amendment right.

CONCLUSION

The petitioners say that this case is a perfect example of the
injustices created daily when “activist political appointees”
become administrative justices, and when citizens’ constitutional
rights have confrontations with the court-created doctrines of
primary jurisdiction, primary resort, and exhaustion of
administrative remedies. All of the doctrines should be abolished
because they diminish the jurisdiction of the court and cloud
sound judicial judgments when these type of cases reach the
judicial stage for any reason. At least in serious contemnors,
whether civil or penal in nature, the court should be
unhampered when it sees injustice by administrators.

The standard of jurisprudence that our country is noted for
in its court systems, i.e., impartial judges, discovery rules,
evidence rules should not be lowered merely because the
defendant is some administrative body. Political activist
appointees usually are blind experts to their particular field and

39

their particular viewpoints. Justice should not be lowered in
matters that concern citizens’ livelihoods. The above court-
created doctrines have led to administrative costs and to the
creation of an “administrative judiciary” that far exceeds the
reasons for their creation. The cases that have led to the
perversion of the doctrines of separation of powers should be
reviewed. Those cases have led to a revolt of the citizenry against
administrative regulation, which is a true function of the
Legislature not the executive. Decisions on adjudicatory
“serious” matters should remain unshackled in the judiciary,
who have limited time to read thousands of pages of “dry”
administrative hearing records.

The petitioners’ uncontroverted affidavits that are backed
up by supportative facts clearly prove that respondent
Greenwald and her political allies were engaged in seeking
federal block grants in the Roslindale Jamaica Plain area. The
petitioners’ facts prove without a doubt that Greenwald certified
the Roslindale Bank for political reasons. The act of certification
occurred within the hour that the president of the Roslindale
Bank, after being threatened, obtained an injunction for a pro-
life political community group led by a local parish priest. The
injunction was obtained against pro-abortion supporters of
Governor Dukakis’ administration who included the Bank
Commissioner's first administrative assistant. The respondent
supporters had been in constant communication with the first
administrative assistant, who was in communication with
Greenwald.

The petitioners say that state bankers in this situation need
the protection from state-elected officials that should be
obtainable in the federal courts. The shroud of secrecy that
surrounds the banking industry in administrative adjudicatory
decisions should not be allowed to act as a protective shield to
allow politically-appointed administrators to misuse their oath
of office to unlawfully thrust their activist ideas upon the
banking industry or upon bankers that disagree with the
political philosphy of the appointed commissioner.

The petitioners say the respondents have violated the
statutory scheme. However, if the court should determine that

40

the respondents have not violated the scheme, any statutory
scheme that clothes one person, unchecked by others, with the
power of the Legislature to enact or not to enact regulations,
and the power of the executives to investigate and enforce them,
is unconstitutional, if that scheme allows the same person to
have the powers of the judiciary to interpret the laws he enacted
and adjudicate the facts she investigated.

Respectfully submitted,
ALBERT G. TOBIN

TOBIN AND TOBIN
Attorneys for Petitioners

la
APPENDIX A — ORDER DENYING MOTION

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 80-1280

ROSLINDALE CO-OPERATIVE BANK OF BOSTON, ET
AL.,

Plaintiffs, Appellants,
v.
CAROL S. GREENWALD, ET AL.,
Defendants, Appellees.
ORDER OF COURT
Entered February 11, 1981

Upon consideration of appellants’ motion to recall
mandate.

It is ordered that said motion is hereby denied.
By the Court:

s/ Dana H. Gallup
Clerk.

[cc: Messrs. Tobin, Ostrach and McCarthy.]

2a
APPENDIX B — MOTION

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

CIVIL ACTION NO-1280

ROSLINDALE CO-OPERATIVE BANK, OF BOSTON,
MASS., ET ALS

Plaintiffs-Appellants
vs.
CAROL S. GREENWALD, ET ALS,
Defendants-Appellees
MOTION TO RECALL MANDATE

And now comes the plaintiffs and moves the Court to recall
its mandate to allow the plaintiffs to file the Motion for a
Protective Order to order the defendant Central Co-Operative
Bank to advance to the Roslindale Co-Operative Bank, funds
that it has in its possession, to enable the Roslindale Co-
Operative Bank and its directors, (other than A. Tobin and R.
Tobin) to obtain due process from the Supreme Court of the
United States.

The directors of the Roslindale Co-Operative Bank say the
law imposes upon them a fiduciary duty to the thousands of
shareholders of the Roslindale Bank, to fight the liquidation
order of the defendant Greenwald of the financially sound,
Roslindale Bank. Anderson v. Great Republic Life Insurance
Co., Cal. 106 P. 2nd 75, (1940). Watson v. Johnson,
174 Wash. 12, 24 P. 2nd 592, 59 A.L.R. 1527, (1933).

The directors say that for three years the bank’s assets have
been seized in full view of the United States District Court of

3a
Appendix B

Massachusetts by virtue of the defendant's violations of an
“emergency liquidation statute” without any form of
administrative due process afforded to the Roslindale Bank.

That for three years the Roslindale Bank has been
financially solvent and has been seized and continued in business
in an arbitrary, capricious and malicious abuse of the defendant's
purported emergency powers in clear violation of constitutional
law, receivership law, and statutory law that was enacted by the
legislature to safeguard the constitutional rights of the citizens of
Massachusetts in adjudicatory matters.

Counsel for the Roslindale Co-Operative Bank has been
prosecuting the bank’s claims without advances funds from the
bank by “necessity” because of their fuduciary responsibility to
the shareholders, their accepted elected offices, and the fact that
Robert Tobin was general counsel at the time of the seizure
three years ago.

Counsel states that during these three ‘years it has been a
great sacrifice to their personal life and to their professional life
that they have performed their fiduciary duty.

Counsel say that they and the directors have diligently tried
to obtain outside experienced counsel.

Counsel wishes to withdraw their appearance and cease
their fiduciary responsibility due to the opinion of the Appellate
Court of January 8, 1981. They intend however to continue to
pursue their own rights to the fullest extent to clear their
reputations from the “hearsay upon hearsay” cast upon them.

Counsel does not wish the contrived dishonor cast upon
them by the conspiracies of the defendants to further prejudice
the Appellate Court’s thoughts, or for that matter the thoughts
of the United States Supreme Court, over what the law is, or
what the rights are, of the following parties:

4a

Appendix B

1. The thousands of shareholder's of the Roslindale Co-
Operative Bank, the only Community Bank left, in Roslindale
due the state’s policy on mergers.

2. The remaining eight “uncharged” directors, whose
reputations have been tarnished because “no one in the bank
could be trusted.”

3. The three career banking officers, who have been
discharged over a $19,000 loss created by a head teller that was
fired in April and not them. Two were fired without a hearing
(they had received a hearing by the directors prior to Oct. 28 and
not fired) and one fired one year later, because he testified
truthfully at the M.G.L. c. 167 sec. 5 hearing, and also was
elected Treasurer after the seizure by the shareholders.

4. The Banking Industry of Massachusetts that will in the
future have to live with the pronouncement of the court that the
defendants should have “unfettered freedom” to violate all of the
laws of Massachusetts and of the United States.

Counsel would like to make the record clear that if in the
future they represent any of the above parties they do so by
necessity because of their fiduciary duties and not as a matter of
choice.

Respectfully submitted,

Albert G. Tobin,
Tobin and Tobin,
735 South St.,
Roslindale, Mass. 02131
325-1010

Filed Jan. 30, 1981

Sa

APPENDIX C — AMENDED DECISION DATED
JANUARY 8, 1981

United States Court of Appeals
For the First Circuit

No. 80-1280
ROSLINDALE COOPERATIVE BANK er At.,
PLAINTIFFS, APPELLANTS,

v.
CAROL S. GREENWALD er At.,
DEFENDANTS, APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Rya W. Zonet, U.S. District Judge)
[481 F.Supp. 749]

Before
Corrin, Chief Judge,
Avpnicn and Bowness, Circuit Judges.

Robert H. Tobin, with whom Tobin and Tobin was on brief, for
appellants.

Stephen S. Ostrach, Assistant Attorney General, with whom
ig X. Bellotti, Attorney General, was on brief, for State ap-

ees

—° J. McCarthy, with whom Stanley V. Ragalevsky, and
Warner & Stackpole were on brief, for The Central Bank efend-
ants.

January 8, 1981

Avpricn, Senior Circuit Judge. On October 28, 1977 Carol
Greenwald, Massachusetts Commissioner of Banks, pursuant
to Mass. G.L. c. 170 App. §§ 2-4 certified to the Cooperative
Central Bank (Central Bank) that it appeared to her “unsafe
and inexpedient” for the Roslindale Cooperative Bank (the
Bank) to continue to transact its business. The Bank is a
mutual cooperative bank organized under Mass. G.L. c. 170.

* Previously released in unpublished form and judgment entered
on November 21, 1980

6a
Appendix C

Central Bank is the reserve bank for all Massachusetts
cooperative banks. Mass, G.L. c. 170 App. §§ 1-1 et seq.In ac-
cordance with the statutory procedure Central Bank took im-
mediate possession and control of the Bank's assets and
business in place of its officers and directors, who were
notified of this action on November 2. It is still in such control.

A year later Greenwald commenced administrative pro-
ceedings under Mass. G.L. c.167 § 5 to remove five of the
Bank's twelve directors, one of whom forthwith resigned.
Plaintiffs having been notified and given a bill of particulars at
least a month in advance, a show cause hearing was held
beginning on December 8, 1978, attended by Creenwald, the
directors and their counsel, and a three-member statutory
board.' Following a ten day hearing, on January 4, 1979
Greenwald issued a 56 page opinion summarizing the evidence
and citing numerous infractions, including operation of the
Bank in an unsafe and unsound manner, negligence, and in
the case of two directors, direct violations of the banking laws
and self-dealing. She therefore removed all four. Her decision
was upheld a week later by the three member board, who,
having sat through the hearings, were fully informed.

The Bank purportedly, and its president Albert Tobin,*
brought an action in the state court promptly after the cer-
tification. The Bank's claim was dismissed without prejudice
on the ground that neither its attorney’ nor its president was
authorized, as required by Massachusetts law, to bring the suit
on its behalf. Tobin's individual claim was dismissed because
he had not exhausted available administrative remedies. The
Supreme Judicial Court affirmed in a rescript opinion. Tobin
v. Commissioner of Banks, 1979 Mass. A.S, 498, 386 N.E.2d

' The board consisted of designees of the state treasurer, the at-
torney general, and the commission of corporations and taxation, as
requir by the statute.

Tobin was one of the four later removed as officers and direc-
tors. ‘

9 Robert Tobin, Albert's brother and another of the directors later
removed.

Ta
Appendix C

1246. So far as appears, neither the Bank nor Tobin proceeded
further in the state court.

On January 11, 1978 the Bank and eleven of its directors fil-
ed the present action under 42 U.S.C. § 1983, seeking injunc-
tive relief and damages. After allowing several amendments,
chiefly to reflect the developments in the removal proceedings,
the court dismissed the complaint for failure to state a claim,
except for a count brought by the four removed directors. 481
F.Supp. 749. In due course this latter count was dismissed on
summary judgment. Both actions were correct.

Plaintiffs have done much to complicate a basically simple
case. The five volume Appendix contains almost two dozen of
‘ their motions and slightly more affidavits. Their brief on ap-
peal cites over ninety cases, over thirty Massachusetts statutes,
and a substantial number of federal statutes and rules. Their
contentions are equally diverse. Some are merely irrelevant.‘
Some are indecipherable.’ Even most charitably, some we can
only describe as silly.* Most consist simply of conclusory and
unsubstantiated allegations. With so much space and attention
given to such matters, even a court with unlimited time and
patience would run a serious risk of being distracted from ‘a
party's good points, if any there were. In fact — we hope not
for that reason — we find none.

* E.y., the observation that “Jailers have also been found liable
under 42 U.S.C. 1983.”

* E.y., that “M.G.L. ec. 170 Sec. 4 and 5, is unconstitutional due
to the conflict of interest of its members who have a paramount self-
interest and are not impartial as they are subject to the Commis-
sioner in their paramount interest, their other bank.”

* E.g., that defendants “have secretly communicated with each
other about plaintiffs’ affairs,” and, by way of elaboration, that
defendants “conspired ... to gather evidence against the plaintiffs
... Causing a report to be prepared containing evidence to be used
against the plaintiffs.” We may wonder how defendants, who in-

ude the Commissioner and Deputy Commissioner of Banks, the of-
ficers of Central Bank, the State Treasurer, and the Attorney
General, are expected to conduct their affairs, let alone defend this
lawsuit brought against them jointly.

8a
Appendix C

The Bank's claim that it was entitled to a hearing prior to

certification is effectively disposed of by one of the authorities
it cites. Fahey v. Mallonee, 1947, 332 U.S. 245, 253-54; see
also Fuentes v. Shevin, 1972, 407 U.S. 67, 90-91 & n.23; Cof-
fin Bros. v. Bennett, 1928, 277 U.S. 29; Federal Deposit Ins.
Corp. v. American Bank Trust Shares, 4 Cir., 1980,
F.2d . The drastic consequences of bank failure or
mismanagement and “the impossibility of preserving credit
during an investigation,” Fahey, ante, 332 U.S. at 253, call for
prompt and decisive action and place this proceeding among
the “extraordinary situations” in which notice and hearing
may be postponed until after seizure. Fuentes, ante, 407 U.S.
at 90-91 & n.23.

As for a post-event hearing, Mass. G.L. c. 167 § 33 provides
for review in the Supreme Judicial Court “[w]henever any
bank of whose property and business the commission has taken
possession deems itself aggrieved thereby” and files within ten
days. In point of fact, while this section originally covered
cooperative banks, see Lowell Cooperative Bank v.
Cooperative Central Bank, 1934, 287 Mass. 338, 344-46, 191
N.E. 921, 924-25, it does no longer. Mass. G.L. c. 170 App. 2
§ 10. However, the broad provisions of the Massachusetts
Declaratory Judgment Act, Mass. G.L. c. 231A, afforded
plaintiffs an avenue for relief. See Tobin v. Commissioner of
Banks, ante, 1979 Mass. A.S. at 499 n.3, 386 N.E.2d at 1248
n.3; Canney v. Municipal Court, 1975, 368 Mass. 648, 335
N.E.2d 651; Franklin Fair Ass'n v. Secretary of the Com-
monwealth, 1964, 347 Mass. 110, 196 N.E.2d 622. The Bank,
purportedly, and Albert Tobin did start down this road, and
were dismissed on valid, non-pretextual grounds. They have
not explained their faiiure to pursue the matter further.

The availability of the statutory proceeding satisfies the re-
quirements of due process. Federal Deposit Ins. Corp. v.
American Bank Trust Shares, ante. We cannot be sympathetic

9a
Appendix C

to a party who elects to forego the hearing provided him, and
then complains he received none. This is not a case of an inva-
sion of plaintiffs’ substantive civil rights, where they would
have the option of seeking federal rather than state redress.
Monroe v. Pape, 1961, 365 U.S. 167, 183. Rather, their com-
plaint is lack of due process, viz., the absence of a hearing.
Since a sufficiently timely hearing was available to them, they
cannot bootstrap themselves into the federal court by failing to
seek it.

Nor can the individual plaintiffs complain of the removal
procedure under chapter 167 § 5. That section provides for
notice and a reasonable opportunity to be heard prior to
removal,’ with post-termination review by the statutory three-
member board and, subsequently, in the Supreme Judicial
Court. These provisions are constitutionally generous; plain-
tiffs’ facial attack is frivolous.

There remains only plaintiffs’ contention that defendant
Greenwald so conducted the proceeding as to deny them a fair
opportunity to be heard. This claim survived defendants’ mo-
tion to dismiss. 481 F.Supp. at 755-56. In support of her subse-
quent motion for summary judgment, Greenwald submitted
her affidavit, together with the record of the proceedings. The
affidavit summarized the course of events and denied any
animus toward plaintiffs. The record amply refutes the direc-
tors’ allegations that they were given inadequate notice (a
month's formal; nearly two months’ more informal), and ac-
cess to evidence and the opportunity to cross-examine
witnesses.® It also sheds light on their contention that none of

7 We have recently indicated that, as in the case of certification,
even a post-termination hearing, if prompt, would be sufficient.
Rodriguez de Quinonez v. Perez, 1 Cir., 1979, 596 F.2d 486,
490-91, cert. denied, 444 U.S. 840.

* Plaintiffs were allowed extensive cross-examination of the Divi-
sion’s witnesses, but chose to spend much of their time (and to inter-
rupt the direct testimony as well) with lengthy speeches by the
Tobins charging persecution at the hands of the Division. _

10a
Appendix C

the discharged directors was allowed to take the stand except
Albert Tobin, who was allowed only one hour. Plaintiffs were
repeatedly told they would have four days following the Divi-
sion’s presentation to put on their substantive case. They
waited until the fourth day of their witnesses to complain that
they themselves had not been heard. The hearing was extend-
ed through the following morning; plaintiffs continued with
another witness until 11:30 A.M., when Albert Tobin took the
stand. His testimony consisted of a 96 page document which
he submitted as his statement for the record. None of the
others testified. The record abundantly demonstrates that
plaintiffs received an adequate opportunity to be heard. How
they chose to exercise it was their affair.

Finally, we are surprised, in the light of the evidence, that
plaintiffs could think they had legitimate complaints against
the Commissioner's findings of mismanagement, self-dealing
and illegality. The affidavits of Albert Tobin, to the extent
that they purport to bear on the issues, are merely conclusory
reiterations of the allegations of the complaint, and even at
that are often not made on personal knowledge. They are in-
sufficient. F.R.Civ.P. 56(e). Plaintiffs have failed to show the
existence of any genuine issue for trial, and summary judg-
ment was rightly entered.°

Affirmed.

* We are aware that plaintiffs have sought to raise a number of
other points. They require no discussion.

lla
APPENDIX D — DECISION DATED MARCH 25, 1980

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NQ. 78-111-Z
ROSLINDALE COOPERATIVE BANK, et al.
vs.
CAROL GREENWALD, et al.
MEMORANDUM OF DECISION
ZOBEL, D.J.

On December 7, 1979, I entered an order in this action,
brought pursuant to 42 U.S.C. $1983, granting certain of the
defendants’ motions to dismiss the complain’. The only claims
which survived that order are those of Albert Tobin, Robert
Tobin, Leonard DeLosh, and James Quinn against Carol S.
Greenwald, formerly the Massachusetts Commissioner of Banks,
for due process violations which allegedly occurred in the course
of an administrative hearing over which Greenwald presided.
The hearing, instituted at Greenwald's instance pursuant to
Mass. Gen. Laws ch. 167, §5, resulted in the removal of
plaintiffs from their positions as directors of the Roslindale
Cooperative Bank (the Bank). In her answer, Greenwald denies
the occurrence of any of the claimed constitutional violations,
advances an immunity defense, and urges that this court abstain
from review of the removal proceedings because such review is
pending in an action before the Massachusetts Superior Court
(DeLosh, et al. v. Commissioner of Banks, Suffolk Superior
Court Docket No. 33144). Greenwald also counterclaims for
abuse of process, and she requests an award of costs and of the
reasonable value of the services rendered by assistant attorneys
general who have conducted her defense. The case is before me
on Greenwald's motion for summary judgment.

In the amended complaint (Counts | and 4), plaintiffs allege
that Greenwald committed numerous procedural errors which in

12a
Appendix D

plaintiffs’ view, deprived them of their right to a fair removal
hearing. They also claim that personal bias and vindictiveness
motivated Greenwald's allegedly unconstitutional conduct.
Greenwald, in an affidavit submitted in support of her motion
for summary judgment, denies such animus and relies upon the
transcript of the hearing* and her report of findings as
conclusive refutations of plaintiffs’ assertions of unconstitutional
procedures.

When threatened with removal from their bank
directorships, plaintiffs were entitled to an opportunity to clear
their names and afiswer the charges made against them. Codd v.
Velger, 429 U.S. 624, 626-27 (1977); Rodriguez de Quinonez v.
Perez, 596 F.2d 486, 490-91 (Ist Cir. 1979). The thirteen-volume
transcript of the ten-day proceedings shows that plaintiffs were
abundantly afforded such an opportunity. During the first six
days of the hearing the Banking Division adduced evidence
against plaintiffs; however, much of this time was consumed by
plaintiffs’ lengthy cross-examination of the Division's two
witnesses. During the remaining four days plaintiffs called five
witnesses. The last day was also devoted to rebuttal testimony by
the Banking Division's third witness and to closing arguments by
both sides. Plaintiffs had a fair chance to confront the substance
_of the charges made against them, and Greenwald repeatedly
encouraged them to address the substantive issues efficiently.
That plaintiffs chose to fritter away so much of the opportunity
extended them by injecting personal invective and launching

* Plaintiffs attack the documents submitted in support of Greenwald's
mytion for summary judgment. They move for a “protective order” and to
strike the certification by Paul E. Bulman, Deputy Commissioner of Banks,
that the documents submitted comprise the entire record of the removal
proceedings on the ground that neither Paul E. Bulman nor anyone else was
appointed clerk for the proceedings in accordance with state law. Insofar as
these motions address the authentication of the record, they are denied as the
documents have been fully authenticated. A registered professional reporter
duly certified the accuracy of the transcript, and Greenwald in her affidavit
attests the accuracy of the copy of her decision. Insofar as plaintiffs’ motions
concern alleged violations of state law, they do not address the only issue in
this proceeding--whether the hearing comported with Due Process
requirements. Accordingly, both the motion to strike the certification by Paul
E. Bulman and for a “protective order” are denied.

13a

Appendix D

frivolous arguments into the midst of an evidentiary hearing was
their decision. The record controverts their claim of undue
curtailment of the proceedings by Greenwald.

Plaintiffs’ further assertion that they received untimely and
inadequate notice of the hearing flies in the face of the record.
The removal hearings were scheduled to begin December 1,
1978. Plaintiffs Albert Tobin, Robert Tobin, and Leonard
DeLosh were formally notified of the hearing date on November
1, 1978, Quinn on November 8, 1978. The notice included a bill
of particulars detailing the specific charges against the directors.
Moreover, as Greenwald states in her affidavit, plaintiffs were
aware of the matters contained in the bill of particulars as a
result of an earlier meeting with the entire Board of Directors of
the Bank convened on September 11, 1978 pursuant to Mass.
Gen. Laws ch. 167, §2A; on November 28, 1978, Greenwald and
other Banking Division officials met with plaintiffs for a pre-
hearing conference at which “an attempt was made to narrow
the areas of factual dispute, to exchange lists of witnesses, and to
provide plaintiffs wich copies of all the documents which would
be offered against them.” Plaintiffs sought and received a
postponement of the hearing which eventually commenced
December 8, 1978. In light of these uncontested facts, plaintiffs’
assertions of defective notice are frivolous.

Plaintiffs have also set forth claims that their ability to
defend themselves was impaired by Greenwald's failure to grant
them access to evidence. The record, however, does not bear out
these allegations either, and plaintiffs have pointed to no
instance of prejudice resulting to them from any obstructive
conduct by Greenwald. The record also discredits plaintiffs’
allegations that they were not permitted the assistance of their
chosen counsel—assuming that they had such a right—-or an
effective opportunity to cross-examine witnesses.

As a matter of constitutional law, the only question before
me is whether plaintiffs were afforded a fair opportunity to
answer the charges against them. Greenwald has come forward
with materials clearly showing that such an opportunity was

4a

Appendix D

extended plaintiffs, and plaintiffs have produced no affidavits or
other documents to suggest that there is a genuine issue for tria!
with respect to 1¢ constitutionality of the procedures followed
by Greenwald. Such affidavits as plaintiffs have submitted
merely reiterate in conclusory terms the allegations in the
complaint. They are, therefore, inadequate for purposes of Fed.
R. Civ. P. 56(e). Hahn v. Sargent, 388 F. Supp. 445 (D. Mass.
1975), aff'd, 523 F.2d 461 (ist Cir. 1975), cert. denied, 425 U.S.
904 (1976). Having determined that the removal hearing
conformed with Due Process requirements, I need not address
the numerous allegations of noncompliance with ancillary
features of state law. Nor do I regard as relevant the allegations
of Greenwald's bias and malice. Whatever sentiments Greenwald
may have brought with her to the proceedings, the end result
was a fair, constitutionally adequate administrative proceeding.
Challenges to the sufficiency of the evidence upon which
Greenwald rendered her decision or to the soundness of her
evidentiary rulings are not within the subject matter jurisdiction
of this court but may be, and are being, pursued by plaintiffs in
accordance with their statutory right of appeal within the state
court system. See Mass. Gen. Laws ch. 167, §5.

Since plaintiffs have not shown that a genuine issue exists
for trial and Greenwald is entitled to judgment as a matter of
law with respect to her conduct of the removal hearing,
Greenwald’s motion for summary judgment is allowed. There
being no just reason for delay, judgment may be entered
pursuant to Rule 54(b) Fed. R. Civ. P. 28 U.S.C., for defendant
Greenwald.

March 25, 1980 s/ R.W. Zobel
DATE DISTRICT JUDGE

15a

APPENDIX E — ROSLINDALE COOPERATIVE BANK,
ET AL. v. CAROL GREENWALD, ET AL., 481 F. SUPP. 749
(1979)

ROSLINDALE COOPERATIVE BANK et al.
v.
Carol GREENWALD et al.
Civ. A. No. 78-111-Z.
United States District Court, D. Massachusetts.
Dec. 7, 1979.

Bank and directors and shareholders brought civil rights
action charging the Massachusetts Commissioner of Banks and
others with violations of Fourteenth Armmendment due process
guarantees. The District Court, Zobel, J., held that: (1)
complaint failed to state a cause of action for deprivation of
constitutional rights resulting from certification by
Commissioner that it appeared to her unsafe and inexpedient for
bank to continue to transact its business, and (2) if show cause
hearing for removal of bank director was conducted in a way
which effectively denied removed directors an opportunity to
refute such charges, they would be entitled to relief for
deprivation of constitutional rights.

Motions to dismiss allowed in part and denied in part.

1. Constitutional Law

Bank and its directors had liberty or property interests
affected by certification by former Massachusetts Commissioner
of Banks that it appeared to her “unsafe and inexpedient” for
bank to continue to transact its business, which interests would
entitle bank and directors to procedural safeguards guaranteed
by due process clause. U.S.C.A. Const. Amend. 14.

16a
Appendix E
2. Civil Rights

Bank was entitled to maintain an action under section of
Civil Rights Act providing for civil actions for deprivation of
rights, despite claim that it could not do so as a creature of the
state. 42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2246%3A1. Public record. Not legal advice.