Opposition Brief — Ram v. Massachusetts Department of Transportation

Sesteme Court, U.S.

} LE Dp

\ D JUL 23 199}

No. 90-1948 —

In the

Supreme Court of the United States.

October Term, 1990

MARY T. RAM

Petitioner

Vv.

COMMONWEALTH OF MASSACHU SETTS,

DEPARTMENT OF TRANSPORTATION,

COMMONWEALTH OF MASSACHUSETTS,

DEPARTMENT OF PUBLIC WORKS,

TOWN OF CHARLTON

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

SURPREME JUDICIAL COURT

OF MASSACHUSETTS

STATE RESPONDENTS' BRIEF IN OPPOSITION

Scott Harshbarger

Attorney General

of Massachusetts

David Hofstetter

Judith Fabricant*

arnt | Assistant Attorneys General

AVA [ ABLE C (PY One Ashburton Place

| ; a Boston, Massachusetts 02108

(617) 727-2200

*Counsel of Record

QUESTIONS PRESENTED

1. Whether a Masschusetts statute

nich waives sovereign immunity and

reates a cause of action for plaintiffs

10 are injured due to road defects,

rovided that plaintiffs give notice of

jury within thirty days, is consistent

th the due process provisions of the

ited States Constitution.

a. Whether this Court should

nsider the constitutionality of a

ssachusetts statute limiting the

iount of damages in cases of injuries

sulting from road defects, where that

Sue was neither before the court below

r decided by it.

TABLE OF CONTENTS

PAGE

NION BELOW 2

TEMENT OF THE CASE 2

SONS FOR DENYING THE PETITION 4

THE DECISION OF THE COURT BELOW

IS CONSISTENT WITH APPLICABLE

DECISIONS OF THIS COURT >

A. The Decision Below Cor-

rectly Applies the Decisions

of This Court Concerning Time

Limitations in Statutes Abro-

gating Sovereign Immunity. 6

B. The Decision Below Correctly

Applies the Decisions of This

Court Applying the Due Pro-

cess Clause to State-Created

Property Rights 11

REGARDING THE ISSUE OF DAMAGES,

THIS COURT SHOULD NOT GRANT

CERTIORARI REVIEW TO DECIDE AN

ISSUE THAT WAS NEITHER BEFORE THE

COURT BELOW NOR CONSIDERED BY IT. 20

‘-LUSION 23

BLE OF AUTHORITIES

PAGE

dy, 416 U.S. 136

14

nm and David

N.W. 2d 489

9

rn, 465 A. 2d 1120

9

ens Savings Assoc-

Supp. 874 (1975) 9

s of University of

Olo. 335, 586 P. 2d 23

of Commissioners for

7 Ind. App. 74, 378 N.E.

son, 277 N.W. 2d 445

3 U.S. 202 (1892)

Co, 553 F.2d 549

), cert. den. 434

- iii -

10

(Cas

Loga

455

Mart

i F

U.S.

Oque:

Puer’

1030

Palke

U.8.

Pankc

ose

2d 8s§&

Pauls

2d 13

Ram v

Mass

208 (

San A

Rodri

Soria!

U.S.

Unitec

i ;

it ‘“d) PAGE

,immerman Brush, Co.,

22 (1982) ai, 12, 23, 24

California, 444

1980) reh. den. 445

1980) 17

Insurance Co. of

Oo, 388 F. Supp.

R. 1974) iS)

Onnecticut, 302

(1937) 15

Sunty of Cook, 42

34 912, 356 N.E.

976) 10

Chaloner, 54 App. Div.

\, N.Y.S. 2d K.P (1976) 10

1 Of Charlton, 409

67 N.E. 2d

2, Passim

} Ind. School District v.

411 U.S. 1, (1973) 16

United States, 352

1957) 7: 2, 26

CS v. Kubrick, 444

979) 7, 10

PAGE

Ahern

upp. 760,

G

-

8

§18 2s aa

§15 6, 22

§18 G6, 22; 22

e 10 5

e 15 1

tions of

10

Supreme Cc

Oc

COMMONWE:’

ON PETITION F

SUPRE

OF

STATE RESPONL

Pursuant t

Court Rule 15,

Department of

the

the United States

erm, 1990

MASSACHUSETTS,

TRANSPORTATION,

MASSACHUSETTS,

PUBLIC WORKS,

CHARLTON

ndents

T OF CERTIORARI TO THE

JICIAL COURT

\CHUSETTS

BRIEF IN OPPOSITION

ed States Supreme

ndents Massachusetts

ortation,

nt of Public

ealth of

nmmonwealth")

sposition to the

certiorari filed

case.

ELOW

Massachusetts

appearing at

tion is reported

-E. 2d 208 (1991).

HE CASE

Court Rule 15.1,

nents the

2y Ram at pages

is follows:

|

First, the

the statement

proceedings se

the Massachuse

at pages 56-64

Mass. at 482-4

The Common

pursuant to th

which requires

“address any p

fact or law se

that Ram’s rep

petition toa!

limitations" sé

be misleading.

Laws ("M.G.L.")

thirty day not;

only that the yf

entity responsi

injured person’

the time, place

ealth incorporates

and prior

in the opinion of

eme Judicial Court

petition, 409

N.E. 2d at 209-210.

lso notes,

9n of Rule 15.1

2ondent to

mistatement of

in the petition",

ference in her

lay statute of

Pet. at 24, may

lusetts General

1i8 establishes a

.rement, mandating

ijured inform the

the road of the

ind address and

ise of injury

within thirty days of the event.

Although this notice requirement is a

condition precedent to filing suit, the

actual statute of limitations for such a

suit is three years from the date of

injury.

REASONS FOR DENYING THE PETITION

Under Supreme Court Rule 10, “"[{a)

review on writ of certiorari is not a

matter of right but of judicial

discretion, (and) will be granted only

where there are special and important

reasons therefore." The purpose of

certiorari jurisdiction is to permit the

Court to select cases "of such gravity

and general importance" as to warrant

plenary review. In Re Woods, 143 U.S.

202, 206 (1892).

For the reasons set forth below,

Ram’s petition does not satisfy the

traditional criteria which guide the

Court’s discretionary review.

Accordingly, the petition should be

denied.

I. THE DECISION OF THE COURT BELOW IS

CONSISTENT WITH APPLICABLE DECISIONS

OF THIS COURT

Ram seeks review pursuant to Rule

10.1(c) of this Court, allowing review

"when a state court or a United States

court of appeals has decided an

important question of federal law which

has not been, but should be, settled by

this Court, or nas decided a federal

question in a way that conflicts with

applicable decisions of this Court." As

will be shown below, the decision of the

ee

Massachusetts Supreme Judicial Court is

completely consistent with the decisions

of this Court. Moreover, the decision

‘below raises no unsettled federal

questions.

A. The Decision Below Correctly

Applies the Decisions of This

Court Concerning Time

Limitations in Statutes

Abrogating Sovereign Immunity.

This case concerns a presentment or

notice requirement contained in the very

statute which waives the state’s

sovereign immunity and permits suits

against the state under certain

circumstances. It is not disputed that

the statutes here at issue, M.G.L.

Cc. 81, §18, and c. 84 §§15 and 18,

create causes of action which did not

exist at common law. As the court below

held in this case,

Ram

—_——

567

U.S.

Before the statutes were enacted,

all claims against government

entities for injuries caused by

defects in public ways were barred

by the doctrine of sovereign

immunity. When the Legislature

waived this immunity...it

established limitations and

conditions on that waiver.

Pet. at 78-79, 409 Mass. at 490,

N.E. 2d at 213-214.

In United States v. Kubrick, 444

111 (1979), this Court considered

an essentially identical challenge to

the

presentment provision in the Federal

Tort Claims Act, 28 U.S.C. §2401(b).

The

id.

Court held:

The Act waives the immunity of the

oe States and...in construing

he we ae limitations, which is

Waive we

s d it ourselves to

extend the waiver beyond that which

Congress jntended See Soriano v.

United States, 352 U.S. 270, 276, 77

S.Ct. 269, 273, 1 L.Ed.2d 306 (1957);

at 117-118. Emphasis added.

In Soriano v. United States 352

- 270, 276 (1957), a case concerning

laim filed under 28 U.S.C. §2501 by a

eign national for reimbursement for

time service to the United States the

rt held,

And this Court has long decided that

limitations and conditions upon

which the Government consents to be

sued must be strictly observed and

exceptions thereto are not to be

implied.

at 276.

While not unmindful that this rule

on occasion create harsh results,

Court emphasized, "this Court can

srce relief against the sovereign

y within the limits established by

jress." Id. at 277. d/ The

—

Plaintiff does not claim that any

rgence of authority or confusion

ig the lower federal courts or the

courts exists regarding the issues

tnote continued)

plicit, but nevertheless clear teaching

ootnote continued)

ised by the petition, and it would

pear there is none. See, e.g., Fenton

Citizens Savings Association. 400 F.

atute creating cause of action which

d not exist at common law, failure to

mply with time limitation deprives

urt of jurisdiction over the subject

tter); Kalmich v. Bruno 553 F.2d 549,

3 (7th Cir., 1977) (limitation

ntained in statute creating rights not

-ant at common law is not statute of

nitation in normal sense and time

sment is integral part of enactment) ;

lendo _v. Insurance Co. of Puerto Rico,

} F. Supp. 1030, 1035-1036 (D.P.R.,

14) (notice period for tort claims

\inst municipalities does not violate

> process or equal protection

irantees); United States v. Southern

ific Co., 210 F. Supp. 760, 762 (N.D.

1962) (expiration of time

itation in statute creating right

nown at common law extinguishes right

sue, not merely remedy) ; Faucher v.

urn, 465 A. 2d 1120, 1124 (Me. 1983)

vereign immunity abrogated only as

ressly provided by Statute); Budahl

don a vi ssociates, 287 N.W.

489, 493 (S.D. 1980) (Same) ; erman

Magnuson, 277 N.W. 2d 445, 454 (N.D.

9) (notice requirement in tort claims

tute is rationally related to

islative goals and does not deny

al protection); Gosner v. Board of

Itnote continued)

ubrick and Soriano is that limitations

eriods in statutes modifying sovereign

mmunity do not affect due process

Jarantees (See Section "B", below).

>cause the Massachusetts statute

spresents the state’s voluntary

imitation of its sovereignty, failure

» comply with the statute’s notice

>quirement cannot constitute a

—

‘ootnote continued)

mmissioners for Owen County, 177 Ind.

p.- 79, 378 N.E. 2d 425, 428 (1978)

ame) ; Vv. Regents of Universit

_Colorado, Colo., 196 Colo. 335, 586

2d 23, 25 (1978) (Same); Panko v.

unty of Cook, 42 Ill. App. 3d 912, 356

E. 2d 859, 862 (1976) (Same); Paulsey

Chaloner, 54 App. Div. 2d 131, 388 of

Pp. 874, 879 (1975) (where

me-barring provision is part of very

Y.-S. 2d 35, 37-38 (1976) (notice

quirement in tort claims statute does

t deny equal protection or due

ocess); 51 Am. Jur. 2d, Limitations

Actions, §15 and cases cited therein,

cluding state court decisions of

orida, Georgia, Illinois, Kansas,

ntucky, Maryland, Michigan, Minnesota,

lahoma, South Dakota, Tennessee,

rmont, Washington, Wisconsin.

- 10 -

ee

leprivation of Ram’s rights. Simply

ut, Ram has no rights without the

tatute, and, therefore, has no rights

eyond those granted by the statute.

B. The Decision Below Correctly

Applies the Decisions of This

Court Applying the Due Process

Clause to State-Created

Property Rights.

Ram asserts that the thirty day

resentment requirement violates her

ights to procedural and substantive due

rocess. In fact, as set forth above,

cause the statutes at issue partialiy

rogate sovereio. immunity, the

nditions of that abrogation form part

' the substantive right granted and are

mstitutionally permissible. In

guing otherwise, Ram misunderstands

is Court’s cases.

Ram relies principally on Logan v.

mmerman Brush, Co., 455 U.S. 422

- l11-

Logan involved an Illinois

it discrimination statute which

the administrative agency to

within 120 days of the filing

ylaint, a fact-finding

-e to investigate the employee’s

n Logan, the employee committed

lural missteps but the agency

iled to convene the required

e within the 120 day period.

ployee’s subsequent suit

he employer under the statute,

ois Supreme Court upheld the

of the employer’s motion to

ased on the agency’s failure to

nvene the fact-finding

b.

-ourt reversed the Illinois

surt, holding that the 120-day

1 was not a substantive element

sic right conferred by the

- 12 =

|

st

li

Co)

but merely "a procedural

on on the claimant’s ability to

is rights." Id. at 433.

n is in no way inconsistent with

ing of the court below in the

case. While Logan involved a

ocedural requirement, compliance

ch was entirely out of the

of the Plaintiff, the present

olves a notice requirement which

stantive element of the right

i, part and parcel of the

as

1’s abrogation of immunity.

1 and the present case differ in

‘ritical way. The 120-day

- issue in Logan was Clearly

to benefit the

‘plaintiff by requiring the

) process his claim

usly. When the fact finding

‘@ was not convened within 120

ever, employer-defendant

_ to seize upon this fortuity

t to his own benefit. Faced

irony, this Court held that

continued)

- 13 ~

eld in Arnett v. Kennedy

93-54 (1974), “[w)here

substantive right is

-ertwined with the

-he procedures which are

.n determining that

it...must take the bitter

juiring thirty days

lefect cases does not

mental right as Ram

"substantive due

t. Clearly, the right

ued)

lure to convene the

not be used to penalize

n the present case, by

tice period in the

atute is clearly

fit the defendant (e.g.,

icipality). Compliance

period is the duty of

ot the defendants.

failure to comply with

rement renders

gan inapposite.

- 14 -

to sue the

fundament:

disputed |}

Connectici

(A fundame

part of "t

ordered li

Indeed

identify a

by the sta

"the right

opportunit

33. Ram’s

In essence

day notice

fundamenta.

to comply \

requirement

nature of t

that not ev

reign in tort is not a

it, a proposition not

see, Palko v.,

1 U.S. 319, 325 (1937)

‘ight is one which forms

yY essence of a scheme of

my.

ntiff is unable to

damental right impaired

ther than what she calls

ve a meaningful

ress a claim." Pet. at

Sis here is circular.

argues that the thirty

rement deprives her of a

be Sc@., the right not

ie thirty day notice

" analysis ignores the

lerlying right, a right

petitioner claims as

the right to sue the

ental right is

ice requirement, it

scrutiny if

a permissible

3/

w found:

Ould have decided

equirement is

guard public

t frivolous claims

bility by allowing

> investigate and

5 expeditiously and

[oO evaluate claims

at an early stage

could be imposed

not identify an

‘ttion" in her

Pet. 1-3, she

e to equal

1 her brief. Pet.

» to identify

, or the

mental right,

ction of any equal

_Antonio Ind.

riquez 411 U.S. 1,

Ram, Pet. a

567 N.E. 2d

In Mart.

277 (1980).

whether a Cz

immunity to

crimes commi

rationally r

State purpos

a rational r

went on to d

in constitut

tort laws.

statute coul.

deprivation |

held,"it wou:

State’s inte

rules of tort

discernible {f

perhaps an ir

individual ci

), 409 Mass at 490-491,

|} (Citations ommited.)

California, 444 U.S.

Court considered

ila statute granting

actors in cases of

YY parolees was

to a permissible

e Court held that such

nship did exist and

e the standard applied

Challenges to state

f the challenged

naracterized as a

perty, the Court

ain true that the

1 fashioning its own

iS paramount to any

interest, except

in protecting the

from state action

lj -

that is wholly arbitrary or

irrational." Id. at 282. Because the

Massachusetts statute is neither wholly

arbitrary nor irrational, the decision

below is consistent with this Court’s

decisions and, therefore, plaintiff’s

petition should be denied.

Finally, Ram’s claim that certiorari

is warranted because her case was

decided on the basis of "a short statute

of limitations and not on the merits",

Pet. at 2, and because the court below

did not "entertain her alternative legal

theory", Pet. at 42, raises no

substantial federal issue and should be

rejected.

The court’s action was indeed

decided based on her failure to comply

with the notice requirements of the

Massachusetts statute. But entry of

judgment for failure to comply with

- 18 -

"procedural" steps is judicial action of

the most common sort. Beyond the

obvious conclusion that a litigant who

fails to comply with procedural

requirements is not entitled to judgment

"on the merits", no more need be said.

Ram’s claim that the court below

"did not entertain her alternate legal

theory", Pet. at 42, is equally without

merit, both as a factual matter and as a

ground for this Court’s review. Ram’s

Claim, in essence, is that the court

below was incorrect in its decision as

to which of two state statutes applied

to her case. Far from not

"entertaining" her claim, the court

below devoted the majority of its

opinion to an exhaustive analysis of the

applicability of the two statutes. Ran,

Pet. at 65-76, 409 Mass. at 485-489, 567

N.E. 2d at 211-213. The court’s

- 19 -

rejection of Ram’s "alternate" theory of

the case does not, of course, create any

federal issue for this Court’s review.

II. REGARDING THE ISSUE OF DAMAGES, THIS

COURT SHOULD NOT GRANT CERTIORARI

REVIEW TO DECIDE AN ISSUE THAT WAS

NEITHER BEFORE THE COURT BELOW NOR

CONSIDERED BY IT.

Ram argues that this Court should

grant certiorari to consider whether the

limited damages provided for by the

Massachusetts road defect statutes

constitute a violation of her due

process rights. Pet. 1-2, 38-39. This

Court should reject Ram’s petition on

this issue because the question of

damages was not before the court below.

This case was decided in the

Massachusetts trial courts on two

motions for summary judgment (one motion

brought by the town and one by the state

defendants) on the issue of whether her

failure to provide notice within 30 days

- 20 -

iia

as required by G.L. c. 84 §18 barred her

action. The Massachusetts Superior Court

found that her failure to provide the

statutory notice did indeed bar her claim

and accordingly allowed both summary

judgment motions. Ram, Pet. at 61-63,

409 Mass at 483-484, 567 N.E. 2d at 210.

Petitioner appealed these decisions to

the Massachusetts Appeals Court and the

Massachusetts Supreme Judicial Court,

Sua sponte, transferred the case from

the Appeals Court. Ram, Pet. at 67,

409, Mass at 481, 567 N.E. 2d at 208.

Thus, the only issues properly before

the Supreme Judicial Court concerned the

validity of the notice period contained

in Massachusetts G.L. c.84, §18. Peti-

tioner’s attempt to argue the validity

of the damage limitations of the road

Gefect statutes was explicitly rejected

by the Supreme Judicial Court:

- 21-

The plaintiff also contends that the

$5,000 liability limit of G.L. c. 84,

§15 and the $4,000 liability limit of

G.L. c. 81, §18, violate equal protec-

tion and due process guarantees.

Summary judgment was properly granted

on the issue of liability; the issue

Ram, Pet. at 80, 409 Mass at 459i, n. 9,

567 N.E. 2d 214, n.9. Emphasis added.

The issue of the validity of the

statutes’ damage limitations was simply

not before the court. Petitioner, in

essence, asks this Court to presume that

the court below would have ruled in a

particular way if it had considered the

issue at all, which it did not. Rather,

the issue remains, in effect, preserved

for the Massachusetts Supreme Judicial

Court to decide in an appropriate future

case. 4/

4/ Presumably, such a case would be one

in which, at a minimum, the notice

requirements were complied with and the

record revealed evidence of damages

beyond the statutory limit.

- 22 -

Fa vate ated! ONC Tia h q

E Sail na tks tie gk 2B PRAY A lms GS

ee eee ee

der these circumstances,

oner’s request for certiorari

as to the issue of the

tutionality of the statute’s

limitations must be denied.

CONCLUSION

r the reasons set forth above, the

on for a writ of certiorari should

Led.

SCOTT HARSHBARGER

ATTORNEY GENERAL

OF THE COMMONWEALTH

OF MASSACHUSETTS

David Hofstetter

Judith Fabricant*

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts

(617) 727-2000

l of Record

July 18, 1991

-~ 23 -