Opposition Brief — Estate of Gilmore ex rel. Gilmore v. Buckley

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(?) FILED

No. 85-2134. JUL 31 1906

JOSEPH F. SPANIOL, Jr.

In the on

Supreme Court of the United States.

Octoser Term, 1985.

ESTATE OF PATRICIA E. GILMORE,

JOSEPH P. GILMORE, EXxEcuTor,

PETITIONER,

Vv.

JOHN J. BUCKLEY, ET AL.,

RESPONDENTS.

Brief in Opposition to a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

R. RoBert Poreo,*

THOMAS R. MURTAGH,

PETER A. BIAGETTI,

MINTZ, Levin, COHN, FERRIS,

GLOVSKY AND Popeo, P.C.,

One Financial Center,

Boston, Massachusetts 02111.

(617) 542-6000

JAMES F. MEEHAN,*

CYNTHIA J. COHEN,

MEEHAN, BoyvLe & CouHen, P.C.,

85 Devonshire Street,

Boston, Massachusetts 02109.

(617) 523-8300

*Counsel of Record

Dated: July 31, 1986

EDWARD E. KELLy,*

BARRON & STADFELD,

18 Tremont Street,

Boston, Massachusetts 02108.

(617) 723-9800

LEE CARL BROMBERG,*

BENJAMIN J. NAITOVE,

BROMBERG, SUNSTEIN & MCGREGOR,

10 West Street,

Boston, Massachusetts 02111.

(617) 426-6464

BATEMAN & SLADE, INC

Questions Presented.

I. Are the circuit courts in conflict in their applications of

the legal principles which this Court set forth in Martinez v.

California, 444 U.S. 277 (1980)?

II. Did the First Circuit Court of Appeals apply the Martinez

principles to the comprehensive record before it in a manner

so inconsistent with precedent to warrant this Court’s review

and rearticulation of those principles?

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Table of Contents.

Statement of the case

Statement of facts

Reasons for denying the writ

Introduction

I. There is no conflict in the circuit court’s consistent

applications of guiding principles to distinctive

facts

II. There was no error in the First Circuit’s thorough

analysis of the facts before it

Conclusion

Table of Authorities Cited.

CASES.

Beard v. O’Neal, 728 F.2d 894 (7th Cir.), cert. denied,

—__ U.S. —_, 105S.Ct. 104, 83 L.Ed.2d 48 (1984)

Beck v. Kansas University Psychiatry Foundation, 580

F.Supp. 527 (D. Kan. 1984)

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)

Daniels v. Williams, 474 U.S. ___, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986)

Estate of Bailey v. County of York, 768 F.2d 503 (3d

Cir. 1985)

Fernandez v. Chardon, 681 F.2d 42 (Ist Cir. 1982),

aff'd, 462 U.S. 650 (1983)

Fox v. Custis, 712 F.2d 84 (4th Cir. 1983)

Hariow v. Fitzgerald, 457 U.S. 800 (1982)

Humann v. Wilson, 696 F.2d 783 (10th Cir. 1983)

wo wea — —

13

ii TABLE OF AUTHORITIES CITED.

Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983),

cert. denied, 465 U.S. 1049 (1984) lin

Jensen v. Conrad, 747 F.2d 185 (4th Cir. 1984), cert.

denied, ___ U.S. __., 105 S.Ct. 1754, 84 L.Ed.2d

818 (1985) 5, 6

Jones v. Phyfer, 761 F.2d 642, reh. denied, 768 F.2d

1353 (11th Cir. 1985) 4

Martinez v. California, 444 U.S. 277 (1980) passim

Monell v. New York City Dept. of Social Services, 436

U.S. 658 (1978) 12n

Oklahoma City v. Tuttle, 471 U.S. __, 105 S.Ct. 2427,

85 L.Ed.2d 791 (1985) 12n

Parratt v. Taylor, 451 U.S. 527 (1981), overruled on

other grounds, Daniels v. Williams, 474 U.S. __.,

106 S.Ct. 662, 88 L.Ed.2d 662 (1986) 12n

Pembaur v. City of Cincinnati, 475 U.S. __., 106 S.Ct.

1292, 89 L.Ed.2d 452 (1986) 12n

Rizzo v. Goode, 423 U.S. 362 (1976) 12n

STATUTORY PROVISIONS.

United States Constitution

Fourteenth Amendment 6

42 U.S.C. § 1983 passim

Massachusetts General Laws

c. 258 12

No. 85-2134.

In the

Supreme Court of the United States.

OCTOBER TERM, 1985.

ESTATE OF PATRICIA E. GILMORE,

JOSEPH P. GILMORE, EXxEcuTor,

PETITIONER,

Vv.

JOHN J. BUCKLEY, ET AL.,

RESPONDENTS.

Brief in Opposition to a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Statement of the Case.

STATEMENT OF FACTS.

Respondents Middlesex County, John L. Danehy, Michael

E. McLaughlin, S. Lester Ralph, John J. Buckley and Ralph

J. Bens (hereinafter collectively referred to as “the County

defendants”), adopt by reference the summary of relevant facts

set forth by the First Circuit Court of Appeals, Petition at A.

2-8, with the following highlights of particularly important

facts.

At the time Bradford Prendergast was deemed eligible for

furlough from the Billerica House of Correction, the prison’s

2

furlough program was administered pursuant to a written set

of “General Guidelines Governing Furlough”. Petition at A.

6 & n.5. The “Guidelines” provided specific criteria by which

a prisoner “classification” board was to determine furlough

eligibility, id., required all Billerica personnel immediately to

report any information which might affect the release of a

furlough applicant to the furlough supervisor or to the prison

superintendent, id. at A. 7 & n.6, and mandated that, once

such information was reported, “. . . under no circumstances

shall the resident be released until the matter is resolved.” /d.

Prior to his murder of Patricia Gilmore, Prendergast had

been deemed eligible for furlough pursuant to the “Guidelines,”

_and twice had been released on furloughs, each time returning

to Billerica without incident. Jd. at A. 6, 7. At no time,

however, did any of the County defendants have knowledge

of Prendergast’s furloughs. /d. at A. 7. Neither Bens nor

Buckley ever received any information from any source regard-

ing Prendergast’s reported dangerousness to Patricia Gilmore.

Id. When the County Commissioners, sitting as the county

parole board, did receive such information, they denied Pren-

dergast’s petition for parole and forwarded his parole file,

including the full report of dangerousness, to Billerica, where

a “crisis intervention worker” mistakenly reported its contents

only to one inmate counselor. /d. at A. 5, 7. Contrary to the

explicit requirements of the “Guidelines,” the information re-

garding Prendergast’s reported dangerousness was not relayed

to then-Superintendent Bens, or to any other County defendant.

Id. atA. 7 & n.6.

On December 20, 1979, the second day of his third furlough

from Billerica, Prendergast kidnapped and murdered Patricia

Gilmore. /d. at A. 8. This occurred just two days prior to the

date on which Prendergast was to be discharged permanently

from the institution after having served his sentence in full. /d.

3

Reasons for Denying the Writ.

INTRODUCTION.

The petition for certiorari should be denied because the

guiding principles of Martinez v. California, 444 U.S. 277

(1980), consistently have been applied by the circuit courts,

and no further refinement of those principles is necessary. The

Martinez court could not have made clearer that: (1) a depri-

vation of constitutional right by a private actor does not con-

Stitute state action absent a showing of special circumstances;

and (2) each case in which such deprivation is alleged must

be determined with careful sensitivity to its particular factual

setting.

Guided by Martinez, the circuit courts have applied its

reasoning with remarkable consistency to the various records

before them. Any variations in result plainly are a function of

the factual settings in which the cases arose, and do not reflect

any conflict in the interpetation of Martinez. Indeed, the circuit

courts have been virtually uniform in their application of the

guiding principles set forth by this Court. Jnfra at Part I.

Moreover, the First Circuit’s application of those principles

to the facts before it in this case — facts amplified by petitioner

in the 1100 page appendix he submitted on appeal — is in

harmony with the decisions of the other circuit courts, and is

both legally and factually sound. /nfra at Part II.

I. THERE Is No CONFLICT IN THE CIRCUIT CouRTS’ CONSIS-

TENT APPLICATIONS OF GUIDING PRINCIPLES TO DISTINC-

TIVE FACTs.

The Martinez Court found that, “at least under the particular

circumstances” of the parole decision before it, “appellant’s

4

decedent’s death is too remote a consequence of the parole

officers’ action to hold them responsible under the federal civil

rights law.” 444 U.S. at 285. Since then, the “remoteness”

inquiry articulated in Martinez has been undertaken by the

various circuit courts confronting such cases. While obviously

based upon differing facts, the circuit cases have been remark-

ably consistent in both approach and result. State defendants

in virtually all cases have been found either to have had no

statutorily imposed duty to the victim, to have had no custody

or control over the victim, or to have done nothing to have

placed the victim in a position of danger.

Contrary to the position taken by petitioner, those cases

clearly demonstrate that there is no conflict in the legal prin-

ciples applied, and therefore no supportable basis for certiorari.

For example, in the Eleventh Circuit case to which petitioner

(Pezition at 11) and the First Circuit opinion (id. at A. 15 &

n.15) refer, the Court of Appeals first traced the continuity of

application of the Martinez rationale through each of the cases

cited by petitioner, then held that state youth authorities were

not liable under § 1983 for a furloughed prisoner’s attack on

a known potential victim, despite their knowledge of his psy-

chiatric and criminal history. Jones v. Phyfer, 761 F.2d 642,

644-646, reh. denied, 768 F.2d 1353 (11th Cir. 1985). Citing

the factors inferred from Martinez and the circuit court cases,

the Jones panel held that the defendant officials’ mere knowl-

edge of the potential victim’s identity was not, in view of all

the facts in the record, “. . . sufficient to establish the required

special relationship that would impose a duty on the state to

protect plaintiff or to warn her of [the prisoner’s] . . . release.”

761 F.2d at 646-647. Petitioner’s misplaced reliance on Jones

therefore runs headlong into the fact that its reasoning — and

result — mirror those of the First Circuit in this cuse.

Similarly, the Third Circuit Court of Appeals most recently

applied the reasoning of Martinez, and of virtually all of the

5

circuit court opinions on which petitioner seeks to rely, to

facts in which a child abuse victim was beaten to death after

a State agency negligently returned her to the home where she

previously had been abused. Estate of Bailey v. County of

York, 768 F.2d 503 (3d Cir. 1985). The Bailey court reversed

dismissal of a § 1983 claim alleged against the state, not

because of any conflict or inconsistency in the district court’s

application of the Martinez rationale, but simply on the ground

that, “We find it sufficient to hold that in the special cir-

cumstances pleaded here, this case falls on the other side of

the line suggested in Martinez.” Id. at 511. In Bailey, those

“special circumstances” included a statutory duty imposed on

the defendant child welfare officials to protect the victim, and

the fact that those officials previously had removed the victim

from the dangerous environment, and then deliberately resitu-

ated her in the same locus of danger. Jd. at 505, 509. None

of these circumstances was present in the record before the

First Circuit. Bailey’s reasoning simply demonstrates that,

when a principle by which facts are measured is drawn and

consistently applied, distinguishable sets of circumstances will

fall on either side of it.

Such consistent application of Martinez was underscored in

a Fourth Circuit opinion to which petitioner cites. Jensen v.

Conrad, 747 F.2d 185 (4th Cir. 1984), cert. denied,

U.S. , 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985). There,

the Court of Appeals first summarized the various circuit court

decisions, and then suggested, in dicta, “some of the factors

that should be included in a ‘special relationship’ analysis.”

Id. at 194 & n.11 (emphasis added). One of those factors, the

presence of an affirmative statutory duty to protect the victim,

was conspicuously absent from the record before the First

Circuit in this case. Petition at A. 14 & n.14.' Indeed, in a case

' Another of the Jensen factors, “[w]hether the State knew of the claimants’

plight,” 747 F.2d at n.11, also is particularly relevant to the record before the

6

more analogous to the record before the First Circuit in this

case, the Fourth Circuit Court of Appeals held that, absent

any such statutory duty to protect, parole officials’ failure to

incarcerate a parolee did not deprive the parolee’s victim of

any constitutional right. Fox v. Custis, 712 F.2d 84 (4th Cir.

1983). Moreover, the factors outlined in Jensen are consistent

with both the Martinez rationale and the scrutiny applied to

the peculiar facts of this case by the First Circuit Court of

Appeals. Petition A. 12-15. The First Circuit's holding that

no “special relationship” had been established on the extensive

record before it therefore is no more worthy of review by this

Court than the similarly fact-bound decision in Jensen. 747

F.2d at 195.

Petitioner also relies on a district court decision, Beck v.

Kansas University Psychiatry Foundation, 580 F.Supp. 527

(D. Kan. 1984), despite the fact that the Beck court erroneously

relied on state tort law principles to ascertain the existence of

a special relationship between the victims and the state defend-

ants. 580 F.Supp. at 534. Cf. Martinez v. California, 444

U.S. at 285 (§ 1983 claims not properly analyzed under state

tort law). See also Daniels v. Williams, 474 U.S. , 106

S.Ct. 662, 667, 88 L.Ed.2d 662, 669 (1986) (Fourteenth

Amendment does not embrace state tort law concepts). Further,

though the Tenth Circuit Court of Appeals had no opportunity

to review the reasoning in Beck, it has made clear its under-

standing of the Martinez rationale, noting that “[t)he remote-

ness discussed in Martinez was not simply a matter of time,”

and affirming — on other facts demonstrating remoteness —

the dismissal of a rape victim's § 1983 claim against parole

officers. Humann vy. Wilson, 696 F.2d 783, 784 (10th Cir.

1983).

First Circuit: none of the County defendants ever knew of Prendergast’s fur-

loughs, and two of them, Bens and Buckley, did not even know of any report

of Prendergast's dangerousness to Patricia Gilmore. Petition at A. 6, 7.

7

Finally, the Seventh Circuit opinion to which petitioner and

the First Circuit cite, Petition at 13, A. 10, 11, applied the

Martinez rationale in the context of the state’s allegedly reck-

less release of a murderous mental patient, noting that “. . .

there is no constitutional right to be protected by the state

against being murdered by criminals or madmen,” and there-

fore holding that a state may not be liable under § 198 unless

it “puts a man in a position of danger from private persons

and then fails to protect him . . ..” Bowers v. DeVito, 686

F.2d 616, 618 (7th Cir. 1982). Finding only a failure by the

state to protect the appellant, but no affirmative placement of

her in a position of danger, the Bowers panel affirmed dismissal

of the complaint on a ground just as cogent to the First Circuit’s

affirmance here. Petition at A. 14, 15.

In sum, it is clear that the circuit courts are in harmony in

their interpretation and application of Martinez, and that the

legal principles pertinent to this case have developed in an

orderly and consistent manner. Although specific facts, such

as the existence of an express statutory duty, may lead to

different results in different cases, that is not evidence of any

inconsistency in the courts’ legal analyses. In Martinez, this

Court marked the distinction between common law tort liability

and due process violations; no finer line need be drawn.

Il. THere Was No Error IN THE First CIrRcuIT’s

THOROUGH ANALYSIS OF THE FACTS BEFORE IT.

The First Circuit’s analysis, like that in Martinez, revolved

around the essential distinction between the conduct of a re-

leased prisoner and the action — or, more accurately, inaction

— of the state which allowed that release to occur. Petition

at A. 10, 11. As outlined in Part I, supra, circuit courts con-

fronted by claims and circumstances analogous to those pre-

sented in Martinez consistently have applied its distinction

between private conduct and state-sponsored deprivation, and,

in light of the factual Sensitigity underlined by Martinez, have

made independent assessments of the “remoteness” between

the state decision and the victim's deprivation. Mindful of this

precedent, the First Circuit Court of Appeals conducted pre-

cisely the sort of factual inquiry urged in Martinez:

It would seem from what we have just said that we

should affirm without more. However, both the Su-

preme Court in Martinez and various circuit courts,

including the Seventh Circuit, have indicated that in

some special circumstances, where a state has as-

sumed a ‘special custodial or other relationship’ in

respect of a particular person, the state’s failure to

protect that person might implicate the due process

clause. Fox v. Custis, 712 F.2d 84, 88 (4th Cir.

1983) (collecting cases). We must inquire, therefore,

whether any such special circumstances exist here.

Petition at A. 11, 12.

That inquiry began with a threshold finding, prompted by

the Martinez Court’s counsel that, state tort law principles of

duty and proximate cause notwithstanding, a violation of

§ 1983 could be proven only if the state defendants had “ ‘de-

prive[d]’ appellants’ decedent of life within the meaning of

the Fourteenth Amendment.” Martinez, 444 U.S. at 285. On

that score, and with the full range of constitutional and statutory

entitlements urged by petitioner before it, the First Circuit

panel correctly held that the state’s “fail[ure] to provide the

victim protection ... is not a violation of the due process

clause .. ..” Petition at A. 11 & n.10. Petitioner does not

now directly challenge that finding, but seeks to divert this Court’s

9

attention from it by citing to the broad, general provisions of

the Preamble and three Articles of the Constitution of the

Commonwealth of Massachusetts. Petition at A. 8-10. Nothing

in that sweeping language, however, cures the flaw in

petitioner’s argument, recognized by the First Circuit when it

observed, “: . . that the plaintiff has failed to cite any provi-

sions of state law that either imposed a constitutionally cogniz-

able duty on the defendants to protect Gilmore, or afforded

her an entitlement to protection.” Jd. at A. 14 & n.14.

The First Circuit followed this survey of constitutional, stat-

utory, and regulatory provisions with an equally complete in-

vestigation of the factual circumstances which alone might

support a finding of agency, custody or other special relation-

ship sufficient to elevate a madman’s act to the level of state-

sponsored deprivation of a constitutional right. See, e.g., Bow-

ers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). In so doing,

the First Circuit’s analysis did not depart from the principles

developed in Martinez and its progeny, but inferred from those

cases the full panoply of factors which might bear upon whether

the County defendants’ release of Prendergast was — or was

not — too “remote” from Patricia Gilmore’s death to support

a finding of the state action necessary to prove a violation of

§ 1983.

First, relying upon a factor applied by the Martinez court

and panels in the Third, Fourth and Seventh Circuits, the First

Circuit sought to determine whether Prendergast’s murder of

Gilmore affirmatively had been prompted or encouraged by

the County defendants in a manner which reasonably could

have placed him in an agency relationship with the state. After

its review of the extensive record, the Court concluded:

Furthermore, even though Prendergast was legally

in state custody while on furlough, Prendergast was

in no sense an agent of the state. The state played no

10

part in creating the threat that Prendergast posed to

Gilmore, Prendergast’s murderous design was inde-

pendently conceived and executed, and the state

neither condoned nor encouraged his behavior. See

Martinez, 444 U.S. at 285, 100 S.Ct. at 559; Estate

of Bailey v. County of York, 768 F.2d 503, 513 (3d

Cir. 1985) (Adams, J., dissenting); Beard v. O’ Neal,

728 F.2d at 899; Fox v. Custis, 712 F.2d at 87 n.2.

Petition at A. 14.

Next, the First Circuit sought to ascertain from the record

whether Gilmore herself had been in a custody relationship

with the state, such that her constitutional rights affirmatively

were placed in jeopardy by the state’s action, and found:

Here, the state and county defendants did not have

custody or control over Gilmore, nor did they con-

done, ratify or in any way instigate Gilmore’s homi-

cidal encounter. See, e.g., Jackson v. City of Joliet,

715 F.2d 1200, 1204-5 (7th Cir. 1983), cert. denied,

465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720

(1984).

Petition at A. 15.

Finally, the First Circuit went on to consider any evidence

in the record of some other sort of special relationship. In so

doing, the Court considered the very factors implicitly made

relevant by the inquiries undertaken in Martinez and in the

circuit court cases cited by petitioner, i.e., “any knowledge

the state defendants had of the special danger that Prendergast

posed to Gilmore or the temporal proximity between Prender-

gast’s release on furlough and Gilmore’s murder . . ..” /d.

11

at A. 14. Here again, the panel analyzed the relevant facts

squarely within the framework of the Martinez line, and con-

cluded that, “irrespective” of certain facts regarding those two

particular criteria, the circumstances in toto demonstrated“. . .

no special relationship of constitutional dimension between

Gilmore and the state .. ..” Jd. at A. 15. As such, the First

Circuit’s thorough examination of the voluminous record be-

fore it, and its decision based on all of those facts, presents

no more genuine a basis for review than analogous circuit

court decisions which considered similar factors and which

this Court prudently has declined to review.’

In fact, this case is less worthy of review, since at least

three substantively distinct grounds on which the First Circuit

explicitly reserved comment, Petition at A-16, provide alterna-

tive bases on which this Court could affirm without reaching

the question presented by petitioner.

First, even assuming arguendo that Martinez created a

“right” to be protected by prison officials from the acts of a

released prisoner, that purported right was not “clearly estab-

lished” in December, 1979, and therefore the County defend-

ants are entitled to qualified immunity in this case.’ Second, as

*See e.g., Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), cert.

denied, 465 U.S. 1049 (1984) (ordering dismissal of § 1983 claims against

state officials despite allegation that police at scene of victims’ accident knew

victims were burning to death in wrecked car and recklessly failed to intervene),

Beard v. O'Neal, 728 F.2d 894 (7th Cir.), cert. denied, _. U.S. —_, 105

S.Ct. 104, 83 L.Ed.2d 48 (1984) (affirming summary judgment of § 1983

claim against state officials despite proof that government informant who wit-

nessed murder of victim knew of imminent threat to victim yet failed to

intervene). These cases demonstrate, inter alia, that a state defendant's know!-

edge of a threat to a specific victim and the lapse of time between the defendant's

failure to act and the deprivation of constitutional rights are but two of the

many factors which pertain to the “remoteness” inquiry suggested in Martinez.

‘See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Jensen, 747 F.2d at

193-194 (affirming that state officials who failed to protect victims of fatal beat-

ings in 1979 were entitled to qualified immunity because “an affirmative duty

of protection under the fourteenth amendment did not emerge until after 1980”).

12

the District Court originally concluded in granting summary

judgment, the record here suggests neither a policy which

caused Patricia Gilmore’s death,‘ nor any deliberate indiffer-

ence toward or reckless disregard for her constitutional rights,’

particularly “in light of the uncontroverted evidence . . . that

the furlough program had a success rate of over 99% prior to

the Prendergast incident . . ..” Petition at A. 26, 27 & n.9.

Finally, even if petitioner could prove that Gilmore suffered

a deprivation as the proximate result of state action, he could

not proceed on his § 1983 claim in light of the adequate

post-deprivation remedy offered by the Massachusetts Tort

Claims Act, M.G.L. c. 258, pursuant to which petitioner,

along with Ms. Gilmore’s parents and siblings, already have

commenced three separate actions in state court against the

County of Middlesex and the Commonwealth of Massachu-

setts.°

These alternative grounds for the First Circuit’s decision

make review by this Court unwarranted.

*See Rizzo v. Goode, 423 U.S. 362, 371 (1976); Fernandez v. Chardon,

681 F.2d 42, 55-56 (ist Cir. 1982), aff'd, 462 U.S. 650 (1983).

*See Pembaur v. City of Cincinnati, 475 U.S. , 106 S.Ct. 1292, 89

L.Ed.2d 452 (1986); Oklahoma City v. Tuttle, 471 U.S. , 105 S.Ct. 2427,

85 L.Ed.2d 791 (1985); Monell v. New York City Dept. of Social Services,

436 U.S. 658 (1978).

*See Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds,

Daniels v. Williams, 474 U.S. , 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

13

Conclusion.

For the above-stated reasons, the County defendants submit

that there is no conflict between the circuit courts’ application

of the guiding principles of Martinez, no inconsistency between

those applications and the First Circuit’s comprehensive

analysis of the record in this case, and therefore, no basis for

compelling revie-/ by this Court. The Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

R. RoBerT Popeo,* EDWARDE. KELLy,*

THOMAS R. MURTAGH, BARRON & STADFELD,

Peter A. BIAGETTI, 18 Tremont Street,

MINTZ, LEVIN, COHN, FERRIS, Boston, Massachusetts 02108.

GLOVSKY AND PopEo, P.C., (617) 723-9800

One Financial Center,

Boston, Massachusetts 02111. For Respondents S. Lester Ralph and

(617) 542-6000 Michael E. McLaughlin

For Respondents Middlesex County

and John L. Danehy

JAMES F. MEEHAN,* Lee CARL BROMBERG, *

CynTuia J. COHEN, BENJAN™ J. NAITOVE,

MEEHAN, BoyLe & COHEN, P.C., BROMBERG, SUNSTEIN & MCGREGOR,

85 Devonshire Street, 10 West Street,

Boston, Massachusetts 02109. Boston, Massachusetts 02111.

(617) 523-8300 (617) 426-6464

For Respondent John J. Buckley For Respondent Ralph J. Bens

*Counsel of Record

Dated: July 31, 1986