Petition for Writ of Certiorari — Desmarais v. Wachusett Regional School District

P

f

,

ke

E

Table of Contents.

Opinions below 1

‘Jurisdiction 2

Questions presented 2

‘Constitutional provisions involved 3

' Statement of facts 3

"Reasons for granting the writ 5

“Appendices

' A. Rescript opinion of Massachusetts Appeals

Court 17

- A-1. Opinion of Massachusetts Supreme Judicial

Court 18

-. B. Declaration, demurrers, and rulings 22

C. Decision of Massachusetts Supreme Judicial

Court on application for further appellate review 42

D. Plaintiffs’ brief in Massachusetts Superior

RAS Pe a Fee

~ Court 43

- E. Excerpt from plaintiffs’ brief in Massachu-

| setts Appeals Court 47

- F. Excerpt from plaintiffs’ application to Massa-

chusetts Supreme Judicial Court 55

Table of Authorities Cited.

| CasEs.

Anders v. California, 386 U.S. 738 13

Armstrong v. Manzo, 380 U.S. 545 7

Baker v. Carr, 369 U.S. 186 16

Barbier v. Connolly, 113 U.S. 27 16

Beers v. Arkansas, 20 How. 527 5

-Boddie v. Connecticut, 401 U.S. 371 7, 8, 15, 16

Brown v. Board of Education of Topeka,

347 Mass. 483 16

Cooper v. Aaron, 78 S. Ct. 1401 16

Desmarais v. Wachusett Regional School District,

- Mass. Adv. Sh. (1971) 1763 3

Douglas v. California, 372 U.S. 353 13, 16

a ——

DE LO IETS, SRA TERM BI Pee th eR

ii TABLE OF AUTHORITIES CITED

F. S. Royster Guano Co. v. Virginia, 253 U.S. 412 12, 13

Gibbes v. Zimmerman, 290 U.S. 326 9

Glona v. American Guarantee & Liability Insurance

Co., 391 U.S. 73 13, 16

Gomillion v. Lightfoot, 364 U.S. 339 13, 16

Griffin v. Illinois, 351 U.S. 12 13, 16

Guinn v. United States, 238 U.S. 347 14, 16

Harper v. Virginia Board of Elections, 383 U.S.

663 13, 14, 16

Hurtado v. California, 110 U.S. 516 16

Jones v. Union Guano Co., Inc., 264 U.S. 171 9

Kawananokoa v. Polybank, 205 U.S. 349 5

Lane v. Wilson, 307 U.S. 268 14, 16

Levy v. Louisiana, 391 U.S. 68 13, 16

McDonald v. Board of Election Commissioners of

Chicago, 394 U.S. 802 12, 13, 16

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 7

Palmer v. Ohio, 248 U.S. 32 5, 6, 11

Parden v. Terminal Railway of Alabama State

Docks Department, 377 U.S. 184 6

Pritchard v. Norton, 106 U.S. 124 9, 16

Reed v. Reed, 404 U.S. 71 14, 16

Reynolds v. Sims, 377 U.S. 533 14, 16

Rochin v. California, 342 U.S. 165 10, 11, 16

Shapiro v. Thompson, 394 U.S. 618 12, 15, 16

Skinner v. Oklahoma, 316 U.S. 535 16

Tigner v. Texas, 310 U.S. 141 12, 13

Truax v. Corrigan, 257 U.S. 312 10, 15, 16

United States v. Kras, 409 U.S. 434 8

StTatuTEs.

United States Constitution, Amendment XIV

28 U.S.C. § 1257(3)

6 <BR EG Se

Supreme Court of the United States.

Octoser Term, 1972.

BRUCE R. DESMARAIS er at., Petitioners,

v.

WACHUSETT REGIONAL SCHOOL DISTRICT

ET AL., RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO THE

MASSACHUSETTS APPEALS COURT.

The petitioners, Bruce R. Desmarais and Robert F. Des-

marais, pray for a writ of certiorari to review a decision of

the Massachusetts Appeals Court.

Opinions Below.

The decision of the Appeals Court from which review is

being sought is Bruce R. Desmarais et al. v. Wachusett

Regional School District et al. A copy of said decision is

appended hereto as Appendix A. That decision affirmed

the orders of the Massachusetts Superior Court in an un-

reported decision of that Court which sustained defendants’

demurrers to plaintiffs’ declaration without leave to amend.

A copy of that decision is appended hereto as Appendix B.

2

In another unreported decision, the Supreme Judicial Court

of Massachusetts denied petitioners’ application for further

appellate review of the Appeals Court decision. A copy of

that decision is appended hereto as Appendix C.

Jurisdiction.

The date of the denial of petitioners’ application for

further appellate review by the Supreme Judicial Court was

May 1, 1973 (App. C). This petition has been filed within

90 days of said date. Jurisdiction is based upon 2s U\S.C.

§ 1257(3).

Questions Presented.

The Superior Court sustained demurrers to plaintiffs’

declaration, and the Appeals Court affirmed the orders sus-

taining the demurrers on the grounds that the individual

defendant in the action was a public school teacher, and,

as such, he was a public officer, and that a public officer

was liable in tort for malfeasance, and not for nonfeasance;

that the acts complained of in the declaration at worst

amounted to nonfeasance, as opposed to malfeasance. The

demurrers of the Wachusett Regional School District were

sustained on the ground of the doctrine of sovereign in-

munity.

The actions below present the following federal consti-

tutional questions :

1. Does denial by the Massachusetts Court of a plain-

tiff’s right to a trial by jury in an action of tort by a public

school student against a public school teacher amount to a

denial of due process of law as guaranteed by Amendment

XIV to the United States Constitution?

2. Does the Massachusetts case law which states that a

public school student may recover damages in a tort action

3

from a public school teacher only upon a showing of mis-

feasance (as opposed to nonfeasance) amount to a denial

of equal protection of the law as guaranteed by Amendment

XIV to the United States Constitution?

3. Is the doctrine of ‘‘governmental immunity’’ from

tort liability violative of said Amendment XIV in the area

of tort liability on the part of a public school system to a

student within that system?

Note — for the Massachusetts case law on the sub-

ject, reference is made to Desmarais v. Wachusett Re-

gional School District, Mass. Adv. Sh. (1971) 1763.

This was an earlier case involving the same parties

and arising out of the same set of circumstances. A

copy of this decision is appended as Appendix A-1.

Constitutional Provisions Involved.

United States Constitution, Amendment XIV: Section 1.

‘All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the laws.’’

Statement of Facts.

Inasmuch as the case arises upon sustaining of demur-

rers, for the purposes of argument and appeal, the facts,

as alleged in plaintiffs’ declaration, are uncontroverted,

and are summarily stated:

PR RC R EON ate mage

4

THE PLAINTIFFS AND THEIR COMPLAINT, AND THE Derenpayts,

At the time the cause of action arose, the plaintiff Bruce

R. Desmarais was a 16-year-old student at the Wachusett

Regional High School, a publie school under the control of

the defendant Wachusett Regional School District, a public

body corporate and politic. The defendant David H. Byron

was a chemistry teacher at that school.

Toward the end of the school year, Byron ordered his

class, in which the young plaintiff was a member, to con-

duct a certain experiment involving the use of volatile and

explosive chemicals, This defendant knew that if the

chemicals exploded there would be a serious risk of injury

to the students. The minor plaintiff conducted the experi-

ment, as ordered. An explosion occurred and the minor

plaintiff suffered irreparable injury causing total and

permanent loss of sight to one of his eyes.

The plaintiff Robert F. Desmarais brought suit for con-

sequential damages for medical expenses incurred for his

minor son.

Defendant Wachusett Regional School District was

joined under the doctrine of ‘*respondeat superior."

Decision BELow.

The Courts below sustained defendants’ demurrers and

thereby denied plaintiffs a jury trial on the factual issues

on the grounds set forth under ‘*Questions Presented,”

above. Although the federal constitutional issues were

raised in the briefs and arguments before the Superior

Court and Appeals Court, and in the application for further

review filed with the Supreme Judicial Court, none of those

Courts saw fit to meet those issues, and, in effect, decided

the federal constitutional questions presented by plaintiffs

adversely to them, i.¢., that this rule did not violate plain-

5

tiffs’ constitutional rights. Appended hereto as appendices

D, Eand F are salient portions of plaintiffs’ briefs and ap-

plication for further review indicating the manner in which

the federal constitutional issues were raised in the State

Courts.

Reasons for Granting the Writ.

The petitioners below could find no case of this Court

which deals precisely with the narrow questions presented.

Hence, plaintiffs can only herewith present an argument

based upon a history and analysis of cases dealing with

due process and equal protection, and cull therefrom those

cases deemed most closely analogous in law and in fact to

the plaintiffs’ case.

SvuprEME Court TREATMENT OF SOVEREIGN IMMUNITY.

The Court has exhibited great reluctance to disturb state

law or policy with regard to governmental immunity. Beers

v. Arkansas, 20 How. 527 (1857), a pre-Fourteenth Amend-

nent case, is the progenitor of the current approach. Beers

held, at page 529, that since permission by a sovereign to

be sued ‘tis altogether voluntary on the part of the

sovereignty, it follows that it may prescribe the terms and

conditions on which it consents to be sued.’’ Fifty years

later, Justice Holmes stated ‘‘[a] sovereign is exempt from

suit, not because of any formal conception or obsolete

theory, but on the logical and practical ground that there

can be no legal right as against the authority that makes

the law on which the right depends.’’ Kawananakoa v.

Polyblank, 205 U.S. 349, 353 (1907). The controlling case is

Palmer v. Ohio, 248 U.S. 32 (1918), which addressed itself

to the issue of an individual's right to sue the state vis-a-vis

the Constitution :

ne * a,

he SYS 3 tse wieny BPS NaeaUmeNceRe ea nae

FRR Ee NA apt S eae Te —

SEAT EN eS UR TOO tay

IITA De SBE Ee EA Re RDP APE IS

‘‘The right of individuals to sue a State, in either g

federal or state court, cannot be derived from the Con.

stitution or the laws of the United States. It can come

only from the consent of the State.... Whether Ohio

gave the required consent must be determined by the

construction to be given to the constitutional amend.

ment quoted [referring to Ohio Constitution], and this

is a question of local state law, as to which the decision

of the State Supreme Court is controlling with this

court, no federal right being involved.’’ Ibid., at 34.

(Emphasis supplied.)

The validity of Palmer was reaffirmed as recently as 1964

in Parden v. Terminal Railway of Alabama State Docks

Department, 377 U.S. 184 (1964), where the Court cited

Palmer in allowing suit against a state agency on the theory

of implied consent resulting from certain agency activity

under a federal statute. While the Court upheld the peti-

tioner’s claim to his day in court, it did so within the con-

fines of the Palmer consent theory.

Thus it appears that the Court discerns no impairment

of federal rights in cases where suits against the State are

defended on ground of governmental immunity.

The issue in the instant case, however, is distinguishable

in that it is clear that neither defendant performs any

purely governmental function and, therefore, should not

have the benefit of the State’s immunity. Moreover, there

is considerable doubt, which arises in the rational mind, as

to the soundness of the Massachusetts Supreme Judicial

Court’s position that no federal right is involved, especially

in light of more recent cases which have expanded the

dimensions of equal protection and due process.

Access To THE Courts anD DveE Process.

Indeed, private structuring of individual relationships

and repair of their breach is largely encouraged in

7

American life, subject only to the caveat that formal

judicial process, if restored to, is paramount. Thus, this

Court has seldom been asked to view access to the courts

as an element of due process.

“The legitimacy of the State’s monopoly over

techniques of final dispute settlement, even where some

are denied access to its use, stands unimpaired where

recognized, effective alternatives for the adjustment of

differences remain.’’ Boddie v. Connecticut, 401 U.S.

371, 375-376 (1971) (per Harlan, J.).

Boddie involved a challenge to Connecticut’s fee require-

ment as a prerequisite to the filing of a divorce action. The

Court held that due process of law prohibited a state from

denying, solely because of inability to pay court fees, access

to its courts to indigents. In so holding, it relied on two

essential elements of due process jurisprudence.

(a) ‘‘[dJue process requires, at a minimum, that absent

a countervailing state interest of overriding significance,

persons forced to settle their claims of right and duty

through the judicial process must be given a meaningful

opportunity to be heard’’ (at 377) and the Constitution

does require ‘‘an opportunity . . . granted at a mean-

ingful time and in a meaningful manner,’’ Armstrong v.

Manzo, 380 U.S. 545, 552 (1965), ‘‘for [a] hearing ap-

propriate to the nature of the case.’’ Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

(b) A statute or a rule may be constitutionally infirm

when it operates to deprive an individual of a protected

right even though its general validity as a measure enacted

in the legitimate exercise of state power is beyond question.

Boddie, at 379.

The Court in Boddie was quite specific, however, that the

due process clause did not require open access for all in-

EOS Sb Ect St SIE ca ABB NG LEE ROE ORILLIA CEP ORIEL

dividuals to the courts. It established two due process

criteria for open access to the courts.

(a) That the judicial mechanism be the exclusive means

for resolving the dispute; and

(b) That the dispute involve some fundamental subject

matter.

Hence, Boddie presents three important questions with

regard to due process:

(a) Is the judicial process the exclusive means of re-

solving a private dispute?

(b) Does the dispute involve some fundamental subject

matter? ae

(c) Is there present a countervailing state interest of

overriding significance sufficient to deny open access to the

courts?

A recent case, United States v. Kras, 409 U.S. 434 (1973),

held, on these grounds, that the requirement of bankruptcy

filing fees were not violative of the Fifth Amendment, due

process or equal protection clauses. It saw other avenues

of resolution for the bankrupt (e.g., creditor arrangements)

and ‘‘no fundamental interest that is gained or lost depend-

ing on the availability of a discharge in bankruptcy.”’ (At

445.)

As applied to the instant case, there seems little doubt

that a full trial on the merits represents the exclusive

means of dispute resolution. There is doubt, however, on

two grounds:

(a) as to whether the appellant’s right of action is

‘‘fundamental’’ within the confines of Boddie and Kras and

other due process cases;

(b) as to whether state immunity is of overriding signif-

icance. This second point is clearly one of equal protection

consideration and will be discussed post.

As noted in Justice Harlan’s opinion in Boddie, access

to the courts as a due process question plays a minor role

9

in the Court’s history. Of the existing case law raising the

issue, most have dealt with state statutes eliminating cer-

tain causes of action. With unanimity, they speak of

“vested rights of action.’’

‘Hence it is that a vested right of action is property

in the same sense in which tangible things are property,

and is equally protected against arbitrary interference.

Whether it springs from contract or from the principles

of the common law, it is not competent for the legisla-

ture to take it away.’’ Pritchard v. Norton, 106 U.S.

124, 132 (1882).

Jones v. Union Guano Co., Inc., 264 U.S. 171 (1924), held

that a statute which required certain chemical analysis of

fertilizer as a precondition to a suit for damages (on breach

of merchantability) was not repugnant to due process of

law under the Fourteenth Amendment:

‘‘The Fourteenth Amendment does not prevent a

State from prescribing a reasonable and appropriate

condition precedent to the bringing of a suit of a

specified kind or class so long as the basis of distinc-

tion is real, and the condition imposed has reasonable

relation to a legitimate object.’’ Ibid., at 181.

Gibbes v. Zimmerman, 290 U.S. 326 (1933), is another

example of the Court’s laissez-faire attitude with respect

to State impairment of judicial redress. It recognized the

“property’’ characteristics of a vested right of action

(citing Pritchard) and noted:

‘‘all that is guaranteed by the Fourteenth Amend-

ment is the preservation of his [the appellant’s] sub-

stantial right to redress by some effective procedure.”’

Tbid., at 332.

GALA EI SIE ERTL PEE ELS SEATING TEPER ELEVATE DL IEE EDR ELS BOREL LE TM OT A PS

10

Rochin v. California, 342 U.S. 165 (1952), proposes a dis.

interested view by the Court into questions of due process,

It speaks of due process of law as a summarized constity-

tional guaranty of respect for those personal immunities

which are so rooted in the traditions and conscience of the

nation as to be ranked as fundamental or implicit in the

concept of ordered liberty. Moreover, it holds that due

process of law requires in each case

‘*... an evaluation based on a disinterested inquiry

pursued in the spirit of science, on a balanced order of

facts exactly and fairly stated, on the detached con-

sideration of conflicting claims . .. [and] on a judgment

not ad hoc and episodic but duly mindful of reconciling

the needs both of continuity and of change in a progres.

sive society.’’ [bid., at 172.

In Truax v. Corrigan, 257 U.S. 312 (1921), a case where

the Supreme Court reversed the lower court’s sustaining

demurrers pleaded under a statute relating to labor dis-

putes, in which injunctive relief was sought, the Court

(per Taft) said:

‘‘The due process clause requires that every man

shall have the protection of his day in court, and the

benefit of the general law, a law which hears before it

condemns, which proceeds not arbitrarily or capri-

ciously but upon inquiry, and renders judgment only

after trial, so that every citizen shall hold his life,

liberty, property and immunities under the protection

of the general rules which govern society. Hurtado v.

California, 110 U.S. 516, 535.’’ Ibid., at 332. (Emphasis

added. )

Thus we may logically conclude that while the Court does

recognize the fundamental nature of a right of action, the

11

recognition has been weighed against State interest in re-

stricting access to the Court. This ‘‘balancing of the

equities’ is largely a problem of equal protection.

Access TO THE CouRTs AND Equa PRortecTION oF THE Law.

Where the State Common Law creates two classes of

litigants, those who have a cause of action because injured

by a private tortfeasor and those whose cause of action is

barred by governmental immunity, does the application of

this immunity constitute a denial of equal protection or

due process of law under the Constitution?

In light of Palmer, which appears to be the controlling

law on governmental immunity, the question stated above

would be answered in the negative. But, the facts of

Desmarais can be differentiated from the Palmer situation.

There may indeed be sufficient reason to protect the State

from the claims of its citizens (disruption of the orderly

flow of government, overly generous juries awarding ver-

dicts to be paid from state treasuries, liability to suit dis-

couraging availability of needed services, etc.) but the

justification for this immunity becomes vague when all

governmental officials and bodies are so immune. When

lesser public officers are not required to answer for their

act of negligence, the time has come for re-examination, as

per Rochin’s disinterested inquiry, of the reasonableness of

the classification of litigants. In the last decade, many

states have overturned the doctrine of sovereign immunity.

But this erosion of the antiquated doctrine has been with

unanimity, on the ground that immunity presents an in-

equitable situation. None of the cases decided in the state

courts have dealt with the constitutional aspects presented.

Supreme Court ApproacH To Equat PROTECTION.

In its most rudimentary state, equal protection of the

law means that all individuals who are similarly situated

VORA RR

Aol YTS RETA. J Ae ws Sasa

12

must be treated alike. If the Jaw of the land (including

common law) presents a situation where two or more

classes of individuals are not similarly treated, then the

Court asks if the classifications are reasonably related to

a legitimate state objective. In answering this inquiry, the

Court has applied varying tests. Is there a rational basis

for the classification? Is there substantial justification? Is

there a compelling state interest requiring the different

treatment?

‘‘The distinctions drawn by a challenged statute must

bear some rational relationship to a legitimate state

end and will be set aside as violative of the Equal

Protection Clause only if based on reasons totally un-

related to the pursuit of that goal.... [Legislative]

classifications will be set aside only if no grounds can

be conceived to justify them.’’ McDonald v. Board of

Election Commissioners of Chicago, 394 U.S. 802, 809

(1969).

‘‘The equality at which the ‘equal protection’ clause

aims is not a disembodied equality. The Fourteenth

Amendment enjoins ‘the equal protection of the laws,’

and laws are not abstract propositions. They do not

relate to abstract units A, B and C, but are expressions

of policy arising out of specific difficulties, addressed to

the attainment of specific ends by the use of specific

remedies. The Constitution does not require things

which are different in fact or opinion to be treated in

law as though they were the same.’’ Tigner v. Texas,

310 U.S. 141, 147 (1940) (per Frankfurter, J.).

‘*TA] classification must be reasonable, not arbitrary,

and must rest upon some ground of difference having

a fair and substantial relation to the object of the

legislation, so that all persons similarly circumstanced

shall be treated alike.’’ F. S. Royster Guano Co. v.

Virginia, 253 U.S. 412, 415 (1920).

13

McDonald, Tigner and Royster, represent the older ap-

proach by the Court. In more recent cases, however, wherein

fundamental rights were denied as a result of classification,

the Court has required that there be not only a rational

basis but also a compelling state interest. Thus, Shapiro v.

Thompson, 394 U.S. 618 (1969), struck down several state

residency requirements for welfare benefits as invidious

classifications prohibited under Fourteenth Amendment

equal protection. Douglas v. California, 372 U.S. 353 (1963),

held that economic classification which permits criminal

appeals by the rich and denies them to the poor (unable to

afford counsel) is violative of the equal protection clause.

Gomillion v. Lightfoot, 364 U.S. 339 (1960)—‘‘When a

State exercises power wholly within the domain of state

interest, it is insulated from federal judicial review. But

such insulation is not carried over when state power is

used as an instrument for circumventing a federally pro-

tected right.’’ Jbid., at 347. (Striking down ‘‘Georgia’’ re-

apportionment scheme.) Glona v. American Guarantee ¢&

Liability Insurance Co., 391 U.S. 73 (1968)—that a Loui-

siana wrongful death statute as construed to bar recovery

to the parent of an illegitimate child violates equal protec-

tion, there being no rational basis for the distinction. Levy

v. Louisiana, 391 U.S. 68 (1968)—same Louisiana statute

as in Glona: ‘‘[W]e have been extremely sensitive when it

comes to basic civil rights (Skinner v. Oklahoma [316 U.S.

535], at 541; Harper v. Virginia Board of Elections, 383

U.S. 663, 669-670) and have not hesitated to strike down

an invidious classification even though it had history and

tradition on its side.’’ [bid., at 71. Griffin v. Illinois, 351 U.S.

12 (1956)—right of indigent convicted defendants to have

free transcript for appellate review. Anders v. California,

386 U.S. 738 (1967)—indigents’ right to counsel on appel-

late review.

ah ROLLA LAND OEM AER A ESA OP LE EL ALLEL DEEP, SELES CE IESE ICDL PELE CALA DES ED EFT

atta ai elie athe |

WIR

SRI Ga RD FG

3

a

@

#

4

;

4

Z

3

4

:

3

&

a4

4

E

3

4

3

2

%

Ae

3

a

3

%

*

¥

3

2

&

B

ES

#

‘

4

14

In all of the above eases, the Court saw some fundamental

right being impaired. Justice Douglas captured the ap.

proach in Harper, supra, at 670:

‘‘We have long been mindful that where fundamental

rights and liberties are asserted under the Equal Pro-

tection Clause, classifications which might invade or

restrain them must be closely scrutinized and care.

fully confined.’’

This careful scrutiny has long been evident in cases

where a law, nondiscriminatory on its face, but discretionary

in its application, has been challenged:

(a) Guinn v. United States, 238 U.S. 347 (1915)—striking

down constitutional state amendment (grandfather clause),

apparently equal-handed (i.e., applying to all potential

voters), but discriminatory against blacks in practice.

(b) Lane v. Wilson, 307 U.S. 268 (1939)—statute enacted

after Guinn also found to be discriminatory in practice.

(c) Reynolds v. Sims, 377 U.S. 533 (1964)—invalidating

‘‘Georgia’’ apportionment plan: ‘‘One must be ever aware

that the Constitution forbids ‘sophisticated as well as

simple-minded modes of discrimination.’ ’’ [bid., at 563.

(d) Reed v. Reed, 404 U.S. 71—(1971)—Idaho probate

code provisions giving men preference over women when

persons of the same entitlement class apply for appointment

as administrator is based solely on a discrimination pro-

hibited by equal protection clause.

Equa Protection ConsIDERATIONS IN DEsMaRAIs.

The petitioners suggest that the thrust and trend of the

more recent cases dealing with equal protection is toward

resolving doubts as to whether or not a given law is dis-

criminatory in favor of the individual as opposed to the

15

State. The petitioners urge that the facts in the Desmarais

ease fall into the pattern of these more recent cases and

that this case should therefore be treated in the same

fashion.

If we construe the right to sue for personal injuries

allegedly caused by a public official’s negligence as funda-

mental, then are the present disparities (between victim of

public and private tortfeasors) justified by a compelling

state interest (Shapiro) or by countervailing state interests

of overriding significance (Boddie)? Can it be said as a

matter of law that the reasons proffered for the sovereign

immunity rule as applied to this case are capricious or

arbitrary or that they bear no reasonable relation to a

legitimate state objective? The petitioners urge that the

first question should be answered in the negative and the

second in the affirmative.

In concluding, a quotation from Truaz, supra, at 333, is

appropriate :

‘Immunity granted to a class, however limited,

having the effect to deprive another class, however

limited, of a personal or property right, is just as

clearly a denial of equal protection of the laws to the

latter class as if the immunity were in favor of, or the

deprivation of right permitted worked against, a

larger class.’’

Petitioners urge that granting immunity from that lia-

bility to a limited class (public school teachers) has the

effect of depriving another limited class (public school

students) of a property right. Hence, Truaxz should be ap-

plied to this case.

Plaintiffs respectfully suggest that the cases listed below

are those most closely analogous in fact or law in the in-

stant case, and that if the trend and thrust of those cases

CR AeA OO PETE MID 0 BH UN AEN INE SOME

core

16

is followed, plaintiffs should prevail, and the Massachusetts

case law complained of should be declared unconstitutional;

23 thie en a

tes

Boddie v. Connecticut, 401 U.S. 371 (1971),

Pritchard v. Norton, 106 U.S. 124 (1882).

Rochin v. California, 342 U.S. 165 (1952).

Truax v. Corrigan, 257 U.S. 312 (1921).

Hurtado v. California, 110 U.S. 516 (1884).

. McDonald v. Board of Election Commissioners of

CSidong, 394 U.S. 802 (1969).

g. Shapiro v. Thompson, 394 U.S. 618 (1969).

4 h. Douglas v. California, 372 U.S. 353 (1963).

i. Gomillion v. Lightfoot, 364 U.S. 339 (1960).

F j. Glona v. American Guarantee & Liability Insur-

ance Co., 391 U.S. 73 (1968).

k. Levy v. Louisiana, 391 U.S. 68 (1968).

l. Skinner v. Oklahoma, 316 U.S. 535 (1942).

m. Harper v. Virginia Board of Elections, 383 US.

663 (1966).

n. Cooper v. Aaron, 78 S. Ct. 1401 (1964).

Griffin v. Illinois, 351 U.S. 12 (1956).

. Guinn v. United States, 238 U.S. 347 (1915).

Lane v. Wilson, 307 U.S. 268 (1939).

Reynolds v. Sims, 377 U.S. 533 (1964).

Reed v. Reed, 404 U.S. 71 (1971).

Baker v. Carr, 369 U.S. 186 (1962).

u. Brown v. Board of Education of Topeka, 347 US.

483 (1954).

v. Barbier v. Connolly, 113 U.S. 27 (1885).

(RP ae se

Lt hie nlp gg LY GLEE EES EAL LR LELED LEN

ue

Sane

—

Sete ei Ai SGP CARERS

Fig asta S FS,

cg nese

Respectfully submitted,

RICHARD J. SARAPAS,

CORBIN, SARAPAS,

MADAUS & ARAKELIAN, INC.,

Attorneys for the Petitioners.

ee

17

Appendix A.

W. 72-53-L Appeals Court

BRUCE R. DESMARAIS & another vs. WACHUSETT REGIONAL SCHOOL

DISTRICT & another.

(Rescript Opinion)

This is an action of tort brought by Bruce R.

Desmarais, a minor, for personal injuries, and by his

father, Robert R. Desmarais, for consequential damages

against the defendants, David H. Byron, a teacher in the

classroom where the minor Desmarais sustained his in-

juries, and the Wachusett Regional School District. Both

defendants’ demurrers were sustained and the plaintiffs'

appeals from the orders bring this case before us. This

is the second action by the plaintiffs against these de-

fendants for the same injury arising out of the same

accident. In the earlier action, an order sustaining

the defendants’ demurrers was affirmed by the Supreme

Judicial Court. Desmarais v. Wachusett Resional School

District, Mass. WY. Following that rescript, the

plaintiffs commenced the instant action. A careful

examination of the present counts of the declaration dis-

closes no significant difference from those filed in the

previous case. Therefore we hold that the court below

was correct in sustaining the demurrers.

Orders sustaining demurrers

affirmed.

Judgments for defendants.

WW Mass. Adv. Sh. (1971) 1763.

has OND te es NEN SL PW RRR MO OE TL OND:

4 mn

¥

E Appendix A - 1.

;

; |

; ADVANCE SHEETS

‘ OPINIONS oF THE SUPREME JUDICIAL COURT

{ Published ander authority of Chapter 402 of Acts of 1935

j Wriunt & Porrea Privtina € ‘OMPANT, 32 Deane Street, Rostos

Bruce R. Desmanats & another ts. Wachusett

Rea@ionat Scuoot District & another.

Worcester. November 3, 1971. — December 9, 1971.

Present: Tavro, C.J., Currer, Rearpon, Bravcuer, & Hennessey, JJ.

School and School Committee. Regional School District. Public Officer.

Negligence, Public school teacher, Public officer. Municipal Corpora-

tions, Liability for tort, Officers and agents.

Action heard in the Superior Court by Lappin, J., on demurrers.

Tauro, C.J. Thisis an action of tort brought by Bruce R.

Desmarais, a minor, for personal injuries, and by his father

Robert R. Desmarais for consequential damages against

the defendant Wachusett Regional School District and the

defendant David H. Byron, the teacher in the classroom

where the minor Desmarais sustained his injuries. The

plaintiffs are here on their appeals from orders sustaining

the defendants’ demurrers to the plaintiffs’ amended decla-

ration.

In essence the amended declaration alleged: (1) that

contrary to the provisions of G. L. ¢. 71, § 55C, the de-

fendant Byron ‘engaged in a continuing course of mis-

feasant conduct in that he led his pupils to believe that

he would not discipline or punish them in any way if they

failed to wear safety glasses during the conduct of danger-

ous experiments” and (2) that the defendant Byron “ negli-

gently and carelessly failed to use due care in his supervision

{ 1763 |

litte cba nine hemsuan

ee ees ee

Ss

1

of the [minor] plaintiff... in that he... allowed the

[minor] plaintiff? to conduct an experiment at his direction

Which involved the use of volatile and explosive chemicals

without wearing safety glasses.” ‘The defendant school dis-

trict was alleged to be responsible for the actions of Byron

whom .t employed. It is further alleged that as a result the

plaintiff Bruce R. Desmarais was not wearing safety glasses

when an explosion occurred causing the permanent loss of

sight in one eve.

The defendants’ demurrers are based on the following

grounds: (1) the plaintiffs fail to state a cause of action;

(2) the defendant Byron, a schoolteacher, was a public of-

ficer with limited duties and powers and was not liable for

the failure to perform the duties of bis office; (3) the de-

fendant school district was protected from liability under

the doctrine of governmental immunity.

The plaintit's argue that Byron is not entitled to the

status of a public officer, and that, even if this contention

is rejected, his conduct constituted misfeasance which made

him liable to the plaintiffs. The plaintiffs further argue

that governmental immunity is not a defence by reason of

G. L. «. 41, § 1000, as appearing in St. 1964, ¢. 518, which

provided for the indemnification of teachers.

The pertinent part of G. L. ¢. 71, § 55C, as appearing in

St. 1966, ¢. 21, is as follows: ‘Each teacher and pupil of

any school... shall, while attending school classes ee

laboratories in which caustic or explosive chemicals . . .

are used . . . exposure to which may be a source of danger

to the eves, wear an industrial quality eye protective de-

vice.” Prior to its amendment, the statute provided as

follows: “The school committee of each city or town shall

require each pupil and teacher in a public school to wear

... eve protective devices ....' The amendment thus

removed from the school committee the responsibility of

enforcing compliance with the statute and did not place a

similar responsibility on anyone else except those who might

be exposed to possible harm.

The general rule is that “public officers engaged wholly in

the performance of public duties are liable only for their

| 1764]

AAA AEE SS a ee

Mc tT Re Pl ES LS OTR GR a OS EE

20

own acts of misfeasance in connection with ministerial

matters.” Fulgoni v. Johnston, 302 Mass. 421, 423.

Moynihan v. Todd, 188 Mass. 301, 303. The defendant

Byron as a teacher in a public school is governed by the

same standard of tort liability as a public officer. Fulgoni v.

Johnston, supra, at 423. Even assuming that Byron was

bound to require the wearing of safety glasses, he cannot be

held guilty of misfeasance for mere inaction. “‘[NJegligence

which amounts to nothing more than an omission or non-

feasance creates no liability. . . . [NJonfeasance is the

omission of an act which a person ought to do, misfeasance

is the improper doing of an act which a person might law-

fully do.” Trum v. Parton, 329 Mass. 434, 438.

The defendant Wachusett Regional School District has

the same protection from liability as a town under the doc-

trine of governmental immunity since a regional school dis-

trict by statute has been placed in the same position as a

town for the purpose of lawsuits. G. L. ¢. 71, § 16 (b).

It is settled law in this Commonwealth that a municipality

is not liable for the acts of public officers acting in the dis-

charge of public duties imposed upon them. Molinari v.

Boston, 333 Mass. 394, 395. A municipality is not liable

for negligent or tortious acts in the conduct of its schools.

Hill v. Boston, 122 Mass. 344, 345. Bolster v. Lawrence,

225 Mass. 387, 389. Moreover, a municipality is not liable

for the misfeasance of the public officers “ performing duties

strictly public” since “the doctrine respondeat superior does

not apply to the servants of one who is acting only as a

representetive of the government, for the benefit of the

public.” Moynihan v. Teda, supra, at 304. We reject the

plaintiffs’ contention that by enacting G. L. ¢. 41, § 100C,

and G. L. c. 40, § 5 (1), the Legislature “waived” govern-

mental immunity.' See Kosiba v. Syracuse, 260 App. Div.

1 In effect, G. L. c. 41, § 100C, as in St. 1964, c. 513, provided

that & ity, town oF regional schnal detnct should indemnify tucher fo

expenses or

him arising out of his negligence or other act of his resulting in

bodily inj to any person. —%, - 1 A OT that a

town may copoeguias ‘d ich provides indemnity or

or insurance

Spaabettg tt: ce 41, § 100C.

{ 1765]

21

(N. Y.) 557, reb. den. 261 App. Div. (N. Y.) 884, modified

on other grounds 287 N. Y. 283.

There was no error in the orders of the Superior Court

judge sustaining the defendants’ demurrers.

Orders sustaining demurrers affirmed.

Gerald F. Madaus for the plaintiffs.

T. Philip L.adcr for the defendants.

{ 1766 }

NE PIA CI PSOE ONES IR RE SE OE TERE ES LE EE

Appendix B.

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT.

WOoRCESTER, ss. 184605

BRUCE R. DESMARAIS and

ROBERT F. DESMARAIS

vs.

WACHUSETT REGIONAL SCHOOL DISTRICT

and DAVID H. BYRON

Plaintiff's Declaration

COUNT I: (Bruce R. Desmarais vs. David H. Byron, for personal

injuries)

Now comes the plaintiff and says that on or about June 10, 1966,

the defendant David H. Byron was employed as a chemistry teacher

at the Wachusett Regional High School, a public school in Holden,

Massachusetts, by the Wachusett Regional School District, a body corporate

and politic; that he had been so employed by said District from the

beginning of the school year in September, 1965, and prior thereto;

that the plaintiff was a pupil in one of the defendant’s chemistry classes

during the school year which began in September of 1965, to and including

June 10, 1966; that during said school year, the defendant from time

to time, as was his right, ordered his pupils, including the plaintiff,

2

to conduct and carry out certain chemical experiments; that the defendant

knew, or should have known, that some of the experiments would involve

the mixture of certain chemicals which either separately or as mixed

were volatile or explosive; that the use of such chemicals, whether

properly or improperly mixed, might lead to an explosion; that if such

an explosion should occur, there would be a danger of injury to the

pupils conducting the experiment, particularly to their faces and eyes;

that as a teacher he had the duty and the right to properly conduct

chemistry classes at the times, and to the classes and pupils that were

assigned to him by the School Administration; that during the school

year 1965-1966 the plaintiff was a pupil in one of the defendant's chemistry

classes, having been so assigned by the Administration; that during that

school year, the plaintiff was aged 17, and that the other pupils in the

same chemistry class, approximately 25 in number, were generally in the

same tender, immature, unsophisticated relatively uneducated age bracket

as the plaintiff; that the pupils in said class, including the plaintiff, had

no choice as to their teacher, but were instead ordered to the defendant's

class by the School Administration; that while in such class, they were

subject to his custody, control and supervision; that the defendant, while

any particular class was in his classroom, had the right and the duty to

properly teach, supervise, control and discipline the members of the class,

including the plaintiff; that whereas he had the duty and obligation to

teach said pupils chemistry, the specific manner and means in which he

conducted his courses, subject to school rules and regulations, were

within his sole proper discretion and control; that during said school

year the defendant was aware of the fact that there was in force and

Betinisttaiciins pe meray ne Bt

3

effect a statute directing that during the conduct of any experiments

wherein volatile or explosive chemicals were to be used, pupils and

teachers were to wear safety glasses in order to avoid possible injuries

to the eyes; that separate and apart from the statute, the defendant knew,

or should have known, that if such experiments were to be ordered by

him, in order to protect the pupils who were under his charge, direction

and control, without any choice of their own, and who were bound to

follow his instructions while in his classroom, should have made certain

as part of his duties, that each and every one of such pupils, including

the plaintiff, wore safety glasses during any potentially dangerous

experiment; that during the school year in issue, the defendant, as was

his right and duty, ordered the pupils to conduct various experiments

which involved the use of volatile or explosive chemicals; that the

defendant, prior to ordering the conduct of such experiments sometimes

announced, as was his duty, that the pupils should wear the safety glasses

which had been furnished and provided by the School Administration;

that during the course of said school year the defendant learned that some

of the pupils, including the plaintiff, did not always use safety glasses,

when they should have, and that they would either not use them at all,

or use them only a portion of the time; that on or about June 10, 1966,

toward the end of the school year, the defendant, even though he realized

and knew that some of the pupils, including the plaintiff, might not wear

safety glasses, ordered his pupils, including the plaintiff, to conduct an

experiment involving the use of especially volative or explosive chemicals,

and he knew or should have known, that the use of said chemicals involved

an especially great risk of an explosion, which explosion could cause a

serious injury to the eye or eyes of some of the pupils; that on the date in

4

question the plaintiff failed to wear safety glasses, while he was in a

classroom which he was not in by his own choice, and while under the

supervision and control of the defendant, dutifully conducted the

experiment as ordered by the defendant; that during the conduct of said

experiment, the chemicals exploded, through no fault of the plaintiff,

the chemicals entered one of his eyes and caused permanent loss of sight

in that eye and also caused the plaintiff to endure hospitalization, medical

treatment, excrutiating pain and suffering, both mental and physical,

which such pain suffering, and medical treatment have persisted from

the date of the incident to the date of this declaration, and will probably

continue for the rest of the plaintiff's life; that whereas the defendant

had the right to conduct his classes in any way he deemed correct, in

his reasonable discretion, he had.the duty to conduct them properly, bearing

in mind that he had the custody, control and supervision of his pupils

while in his classroom, through no choice of their own, and he had

the particular duty to use reasonable care to see to the safety of such pupils

from physical harm while under his care and supervision, to the extent

which he could; that also bearing in mind that the experiment in question

was particularly dangerous, and bearing in mind that it was ordered

close to the end of the school year in question, and bearing in mind

that he knew or should have known by that time that some of his

pupils, including the plaintiff, would probably fail to use safety glasses,

and bearing in mind their tender, immature, unsophisticated relatively

uneducated age bracket, and bearing in mind that this fact would greatly

increase the danger of serious eye injury to the pupils, including the

plaintiff, who were then and there under his custody, control and

PUES SRT I Ca LILI SBE Rca aOR SL ON BS on ARATE AB ate EN ER EAD Lt EO

26

5

supervision, the defendant nevertheless improperly ordered them to

conduct the experiment: that under all of these circumstances, the positive

act of the defendant in ordering the particular experiment at the particular

time was an improper doing of an act (conducting a class) which the

defendant might lawfully do, or, misfeasance; that as the result of the

defendant's misfeasance, or as the result of his improper doing of the

act of ordering the experiment, which order the plaintiff was bound to

follow, the plaintiff suffered the injuries hereinbefore referred to, and

therefore claims damages from the defendant in the amount alleged in his

writ.

COUNT II: (Robert F. Desmarais vs. David H. Byron, for consequential

damages)

Now comes the plaintiff, Robert F. Desmarais, and says that he is the

father of Bruce R. Desmarais and was responsible for his medical

expenses up to and including July 29, 1970, at which time, Bruce R.

Desmarais became twenty-one years old; that the defendant David H.

Byron, was employed as a chemistry teacher at the Wachusett Regional

High School, a public school in Holden, Massachusetts, by the Wachusett

Regional School District, a body corporate and politic; that he had been

so employed by said District from the beginning of the school year in

September, 1965, and prior thereto; that the plaintiff was a pupil in

one of the defendant's chemistry classes during the school year which

began in September of 1965, to and including June 10, 1966; that during

to

~~

6

said school year, the defendant from time to time, as was his right,

ordered his pupils, including the plaintiff, Bruce R. Desmarais, to conduct

and carry out certain chemical experiments; that the defendant knew,

or should have known, that some of the experiments would involve the

mixture of certain chemicals which either separately or as mixed were

volatile or explosive; that the usg¢ of such chemicals, whether properly

or improperly mixed, might lead to an explosion; that if such explosion

should occur, there would be a danger of injury to the pupils conducting

the experiment, particularly to their faces and eyes: that as a teacher

he had the duty and the right to properly conduct chemistry classes at the

times, and to the classes and pupils that were assigned to him by the

School Administration; that during the school year 1965-1966 the

plaintiff Bruce R. Desmarais was a pupil in one of the defendant's

chemistry classes, having been so assigned by the Administration; that

during that school year, the plaintiff Bruce R. Desmarais was aged 17,

and that the other pupils in the same chemistry class, approximately

25 in number, were generally in the same tender, immature, unsophisticated

relatively uneducated age bracket as the plaintiff, Bruce R. Desmarais;

that the pupils in said class, including the plaintiff, Bruce R. Desmarais,

had no choice as to their teacher, but were instead ordered to the defendant's

class by the School Administration; that while in such class, they were

subject to his custody, control and supervision; that the defendant, while

any particular class was in his classroom, had the right and the duty

to properly teach, supervise, control and discipline the members of the

class, including the plaintiff, Bruce R. Desmarais; that whereas he had

the duty and obligation to teach said pupils chemistry, the specific manner

Cprerasie eter oe MONA FOO 2 DA SANE Ni EAN WEBI EI EE BLS MLE GIS AP OPNE DE A AB ENA DIO: Gal ON BE RE

Desens er ib RE aL

Beatrice GA MNES S X6.

7

and means in which he conducted his courses, subject to school rules and

regulations, were within his sole proper discretion and control; that

during said school year the defendant was aware of the fact that there

was in force and effect a statute directing that during the conduct of any

experiments wherein volatile or explosive chemicals were to be used,

pupils and teachers were to wear safety glasses in order to avoid possible

injuries to the eyes; that separate and apart from the statute, the defendant

knew, or should have known, that if such experiments were to be ordered

by him, in order to protect the pupils who were under his charge, direction

and control, without any choice of their own, and who were bound to

follow his instructions while in his classroom, should have made certain,

as part of his duties, that each and every one of such pupils, including

the plaintiff, Bruce R. Desmarais, wore safety glasses during any potentially

dangerous experiment; that during the school year in issue, the defendant,

as was his right and duty, ordered the pupils to conduct various

experiments which involved the use of volatile or explosive chemicals;

that the defendant, prior to ordering the conduct of such experiments

sometimes announced, as was his duty, that the pupils should wear the

safety glasses which had been furnished and provided by the School

Administration; that during the course of said school year the defendant

learned that some of the pupils, including the plaintiff, Bruce R.

Desmarais, did not always use saiety glasses when they should have, and

that they would either not use them at all, or use them only a portion

of the time; that on or about June 10, 1966, toward the end of the school

year, the defendant, even though he realized and knew that some of his

pupils, including the plaintiff, Bruce R. Desmarais, might not wear

29

8

safety glasses, ordered his pupils, including the plaintiff, to conduct an

experiment involving the use of especially volative or explosive chemicals,

and he knew, or should have known that the use of said chemicals involved

an especially great risk of an explosion, which explosion could cause a

serious injury to the eye or eyes of some of the pupils; that on the date

in question the plaintiff Bruce R. Desmarais failed to wear safety glasses,

while he was in a classroom which he was not in by his own choice, and

while under the supervision and control of the defendant, dutifully

conducted the experiment as ordered by the defendant; that during the

conduct of said experiment, the chemicals exploded, through no fault

of plaintiff Bruce R. Desmarais, the chemicals entered one of his eyes

and caused permanent loss of sight in that eye and also caused the plaintiff

Bruce R. Desmarais to endure hospitalization, medical treatment,

excrutiating pain and suffering, both mental and physical, which such

pain, suffering, and medical treatment have persisted from the date of

the incident to date of this declaration, and will probably continue for

the rest of the plaintiff, Bruce R. Desmarais’ life; that whereas the

defendant had the right to conduct his classes in any way he deemed

correct, in his reasonable discretion, he had the duty to conduct them

properly, bearing in mind that he had the custody, control and supervision

of his pupils while in his classroom, through no choice of their own, and

he had the particular duty to use reasonable care to see to the safety

of such pupils from physical harm while under his care and supervision,

to the extent which he could; that also bearing in mind that the experiment

in question was particularly dangerous, and bearing in mind that it was

ordered close to the end of the school year in question, and bearing in

DOMAINE Ao Sa ln NRW Ds Salles Su, Ln LINO EE ER I yah oat

9

mind that he knew or should have known by that time that some of his

pupils, including the plaintiff Bruce R. Desmarais would probably fail

to use safety glasses, and bearing in mind their tender, immature,

unsophisticated relatively uneducated age bracket, and bearing in mind

that this fact would greatly increase the danger of serious eye injury

to the pupils, including the plaintiff, who were then and there under his

custody, control and supervision, the defendant nevertheless improper!

ordered them to conduct the experiment; that under all of | these

circumstances, the positive act of the defendant in ordering the particular

experiment at the particular time was an improper doing of an act

(conducting a class) which the defendant’ might lawfully do, or,

misfeasance: or as the result of the defendant's misfeasance, or as the

result of his improper doing of the act of ordering the experiment, which

order the plaintiff was bound to follow, the plaintiff Bruce R. Desmarais

suffered the injuries hereinbefore referred to, and therefore the plaintiff

Robert F. Desmarais, became obligated to pay for his son substantial

medical expenses, all to his great damage as alleged in this writ.

COUNT U1; (Bruce R. Desmarais vs. Wachusett Regional School District,

for personal injuries)

Now comes the plaintiff and says that the defendant is a body

corporate and politic and was on or about June 10, 1966, charged with

the duty of operating and maintaining Wachusett Regional High School, a

public school in Holden, Massachusetts; that on or about said date and

10

beginning in September, 1965, and prior thereto the defendant had in

its employ as a chemistry teacher, David H. Byron and the defendant

was responsible for his actions as such; that the plaintiff! was a pupil

in one of the said David H. Byron's chemistry classes during the school

vear Which began in September of 1965, to and including June 10, 1966;

that during said school year, David H. Byron from time to time, as

was his night. ordered his pupils, ineluding the plaintiff, to conduct

and carry out certain chemical experiments; that David HL. Byron knew,

or should have known, that some of the experiments would involve the

mixture of certain chemicals which either separately or as mixed were

volatile or explosive; that the use of such chemicals, whether properly or

improperly mixed, might lead to an explosion; that if such an explosion

should occur, there would be a danger of injury to the pupils conducting

the experiment, particularly to their faces and eyes; that as a teacher

he had the duty and the right to properly conduct chemistry classes at

the times, and to the classes and pupils that were assigned to him) by

the School Administration: that during the school year 1965-1966 the

plaintiff was a pupil in one of David H. Byron's chemistry classes,

having been so assigned by the Administration; that during that school

year, the plaintiff! was aged 17, and that the other pupils in the same

chemistry class, approximately 25 in number, were generally in the same

tender. immature, unsophisticated relatively uneducated age bracket as

the plaintiff; that the pupils in said class, including the plaintiff, had

no choice as to their teacher, but were instead ordered to the defendant

David H. Byron's class by the School Administration; that while in such

class, they were subject to his custody, control and supervision; that

32

11

David H. Byron, while any particular class was in his classroom, had

the right and the duty to properly teach, supervise, control and discipline

the members of the class, including the plaintiff; that whereas he had

the duty and obligation to teach said pupils chemistry, the specific manner

and means in which he conducted his courses, subject to school rules and

regulations, were within his sole proper discretion and control; that

during said school year the defendant, David H. Byron, was aware of

the fact that there was in force and effect a statute directing that during

the conduct of any experiments wherein volatile or explosive chemicals

were to be used, pupils and teachers were to wear safety glasses in order

to avoid possible injuries to the eyes; that separate and apart from the

statute, David H. Byron knew, or should have known, that if such

experiments were to be ordered by him, in order to protect the pupils

who were under his charge, direction and control, without any choice

of their own, and who were bound to follow his instructions while in his

classroom, should have made certain, as part of his duties, that each and

every one of such pupils, including the plaintiff, wore safety glasses

during any potentially dangerous experiment; that during the school

year in issue, the defendant, David H. Byron, as was his right and duty,

ordered the pupils to conduct various experiments which involved the use

of volatile or explosive chemicals: that David H. Byron, prior to

ordering the conduct of such experiments sometimes announced, as was

his duty, that the pupils should wear the safety glasses which had been

furnished and provided by the School Administration; that during the

course of said school year the defendant, David H. Byron, learned that

some of the pupils, including the plaintiff, did not always use safety

33

12

glasses, when they should have, and that they would either not use them

at all, or use them only a portion of the time; that on or about June 10,

1966, toward the end of the school year, David H. Byron, even though he

realized and knew that some of the pupils, including the plaintiff, might

not wear safety glasses, ordered his pupils, including the plaintiff, to

conduct an experiment involving the use of especially volative or

explosive chemicals, and he knew, or should have known, that the use

of said chemicals involved an especially great risk of an explosion,

which explosion could cause a serious injury to the eye or eyes of some of

the pupils; that on the date in question the plaintiff failed to wear safety

glasses, while he was in a classroom which he was not in by his own

choice, and while under the supervision and control of David H. Byron,

dutifully conducted the experiment; as ordered by David H. Byron

that during the conduct of said experiment, the chemicals exploded,

and caused permanent loss of sight in that eye and also caused the

through no fault of the plaintiff, the chemicals entered one of his eyes

plaintiff to endure hospitalization, medical treatment, excrutiating pain

and suffering, both mental and physical, which such pain, suffering and

medical treatment have persisted from the date of the incident to the

date of this declaration, and will probably continue for the rest of the

plaintiff's life; that whereas David H. Byron had the right to conduct

his classes in any way he deemed correct, in his reasonable discretion,

he had the duty to conduct them properly, bearing in mind that he had

the custody, control and supervision of his pupils while in his classroom,

through no choice of their own, and he had the particular duty to use

reasonable care to see to the safety of such pupils from physical harm

y

A

34

13

while under his care and supervision, to the extent which he could; that

also bearing in mind that the experiment in question was particularly

dangerous, and bearing in mind that it was ordered close to the end

of the school year in question, and bearing in mind that he knew or should

have known by that time that some of his pupils, including the plaintiff

would probably fail to use safety glasses, and bearing in mind their

tender, immature, unsophisticated relatively uneducated age bracket, and

bearing in mind that this fact would greatly increase the danger of serious

eye injury to the pupils, including the plaintiff, who were then and there

under his custody, control and supervision, the defendant, David H. Byron,

nevertheless improperly ordered them to conduct the experiment; that

under all of these circumstances, the positive act of David H. Byron

in ordering the particular experiment at the particular time was an

improper doing of an act (conducting a class) which David H. Byron

might lawfully do, or, misfeasance; that as the result of David H. Byron's

misfeasance; or as the result of his improper doing of the act of ordering

the experiment, which order the plaintiff was bound to follow, the plaintiff

suffered the injuries hereinbefore referred to, and therefore claims

damages from the defendant in the amount alleged in his writ.

COUNT IV: Robert F. Desmarais vs. Wachusett Regional School District,

for consequential damages)

Now comes the plaintiff, Robert F. Desmarais, and says that he is the

father of Bruce R. Desmarais, and was responsible for his medical

14

expenses up to and including July 29, 1970, at which time Bruce R.

Desmarais became twenty-one years old; that the defendant is a body

corporate and politic and was on or about June 10, 1966, charged with

the duty of operating and maintaining Wachusett Regional High School,

a public school in Holden, Massachusetts; that on or about said date and

beginning in September, 1965, and prior thereto the defendant had in

its employ as a chemistry teacher, David H. Byron and the defendant

was responsible for his actions as such; that the plaintiff Bruce R.

Desmarais was a pupil in one of the said David H. Byron’s chemistry

classes during the school year which began in September of 1965, to and

including June 10, 1966; during said school year, David H. Byron from

time to time, as was his right, ordered his pupils, including the plaintiff

Bruce R. Desmarais, to conduct and carry out certain chemical

experiments; that David H. Byron knew, or should have known, that some

of the experiments would involve the mixture of certain chemicals which

either separately or as mixed were volatile or explosive; that the use of

such chemicals, whether properly or improperly mixed, might lead to an

explosion; that if such an explosion should occur, there would be a danger

of injury to the pupils conducting the experiment, particularly to their

face and eyes; that as a teacher he had the duty and the right to properly

conduct chemistry classes at the times, and to the classes and pupils that

were assigned to him by the School Administration; that during the school

year 1965-1966 the plaintiff Bruce R. Desmarais was a pupil in one of

David H. Byron’s chemistry classes, having been so assigned by the

Administration; that during that school year, the plaintiff Bruce R.

Desmarais was aged 17, and that the other pupils in the same chemistry

OMS AE ast Gad Ws DY Noe

15

class, approximately 25 in number, were generally in the same tender,

immature, unsophisticated relatively uneducated age bracket as the

plaintiff Bruce R. Desmarais; that the pupils in said class, including the

plaintiff Bruce R. Desmarais, had no choice as to their teacher, but were

instead ordered to David H. Byron's class by the School Administration;

that while in such class, they were subject to his custody, control and

supervision; that David H. Byron, while any particular class was in his

classroom, had the right and the duty to properly teach, supervise, control

and discipline the members of the class, including the plaintiff Bruce R.

Desmarais; that whereas he had the duty and obligation to teach said

pupils chemistry, the specific manner and means in which he conducted

his courses, subject to school rules and regulations, were within his sole

proper discretion and control; that during said school year David H.

Byron was aware of the fact that there was in force and effect a statute

directing that during the conduct of any experiments wherein volatile

or explosive chemicals were to be used, pupils and teachers were to

wear safety glasses in order to avoid possible injuries to the eyes; that

separate and apart from the statute, David H. Byron knew, or should

have known, that if such experiments were to be ordered by him, in

order to protect the pupils who were under his charge, direction and

control, without any choice of their own, and who were bound to follow

his instructions while in his classroom, should have made certain, as part

of his duties, that each and every one of such pupils, including the plaintiff

Bruce R. Desmarais, wore safety glasses during any potentially dangerous

experiment; that during the school year in issue, David H. Byron, as

was his right and duty, ordered pupils to conduct various experiments

16

which involved the use of volatile or explosive chemicals: that David H.

Byron, prior to ordering the conduct of such experiments sometimes

announced, as was his duty, that the pupils should wear the safety

glasses which had been furnished and provided by the School Admini-

stration; that during the course of said school year David H. Byron

learned that some of the pupils, including the plaintiff Bruce R. Desmarais

did not always use safety glasses, when they should have, and that they

would either not use them at all, or use them only a portion of the time;

that on or about June 10, 1966, toward the end of the school year, David

H. Byron, even though he realized and knew that some of the pupils,

including the plaintiff Bruce R. Desmarais, might not wear safety glasses,

ordered his pupils, including the plaintiff Bruce R. Desmarais, to conduct

an experiment involving the use of especially volative or explosive

chemicals, and he knew, or should have known, that the use of said

chemicals involved an especially great risk of an explosion, which explosion

could cause a serious injury to the eye or eyes of some of the pupils; that

on the date in question the plaintiff Bruce R. Desmarais failed to wear

safety glasses, while he was in a classroom which he was not in by his own

choice, and while under the supervision and control of David H. Byron,

dutifully conducted the experiment as ordered by David H. Byron; that

during the conduct of said experiment, the chemicals exploded, through

no fault of the plaintiff Bruce R. Desmarais, the chemicals entered one

of his eyes and caused permanent loss of sight in that eye and also caused

the plaintiff, Bruce R. Desmarais, to endure hospitalization, medical

treatment, excrutiating pain and suffering, both mental and physical, which

such pain, suffering and medical treatment have persisted from the date

38

17

of the incident to the date of this declaration, and will probably continue

for the rest of the plaintiff Bruce R. Desmarais’ life; that whereas David

H. Byron had the right to conduct his classes in any way he deemed

correct, in his reasonable discretion, he had the duty to conduct them

properly, bearing in mind that he had the custody, control and supervision

of his pupils while in his classroom, through no choice of their own, and

he had the particular duty to use reasonable care to see to the safety

of such pupils from physical harm while under his care and supervision,

to the extent which he could; that also bearing in mind that the experiment

in question was largely dangerous, and bearing in mind that it was

ordered close to the end of the school year in question, and bearing in

mind that he knew or should have known by that time that some of his

pupils, including the plaintiff Bruce R. Desmarais would probably fail to

use safety glasses, and bearing in mind their tender, immature,

unsophisticated relatively uneducated age bracket, and bearing in mind

that this fact would greatly increase the danger of serious eye injury to

the pupils, including the plaintiff Bruce R. Desmarais, who were then

and there under his custody, control and supervision, David H. Byron

nevertheless improperly ordered them to conduct the experiment; that

under all of these circumstances, the positive act of David H. Byron in

ordering the particular experiment at the particular time was an improper

doing of an act (conducting a class) which David H. Byron might lawfully

do, or, misfeasance; that as the result of David H. Byron’s misfeasance, or

as the result of his improper doing of the act of ordering the experiment,

which order the plaintiff Bruce R. Desmarais was bound to follow, the

plaintiff Bruce R. Desmarais suffered the injuries hereinbefore referred

39

18

to, and therefore the plaintiff Robert F. Desmarais, became obligated to

pay for his son substantial medical expenses, all to his great damage as

alleged in his writ.

BRUCE R. DESMARAIS

ROBERT F. DESMARAIS

By: Gerald F. Madaus

Their Attorney

FILED May 1, 1972

Defendant's Demurrer

Now comes the defendant, Wachusett Regional School District in the

above entitled action and demurs to Counts II] and IV of the plaintiffs’

declaration and for reason assigns as follows:

1, That the said counts do not state concisely and with substantial

certainty the substantive facts necessary to constitute a legal cause of action

against this defendant.

2. That this defendant is not, as a matter of law, liable for the

tortious conduct of its alleged servants, agents or employees, and as

ae

en yy ch Ce ve

40

19

a consequence the said counts fail to state a cause of action against this

defendant.

3. That this defendant is immune from tort liability under the doctrine

of governmental immunity.

WACHUSETT REGIONAL SCHOOL DISTRICT

By its attorneys,

Mason, Crotty, Dunn & O'Connor

FILED May 18, 1972

June 15, 1972 Sustained with leave to amend denied. (Meagher, J.)

Now comes the defendant, David H. Byron in the above entitled action

and demurs to Counts I and II of the plaintiffs’ declaration and for reason

assigns as follows:

1. That the matters contained in the said counts are insufficient in

law to enable the plaintiffs to maintain this action.

2. That the said counts do not state concisely and with substantial

certainty the substantive facts necessary to constitute a legal cause of action

against this defendan’

41

20

3. That the defendant, David H. Byron was a public schoolteacher and

was governed by the same limited powers, duties and standard of tort

liability as a public officer.

4. That the defendant, David H. Byron was fully engaged in the

performance of his public duties as a public school teacher.

DAVID H. BYRON

By his attorneys,

Mason, Crotty, Dunn & O’Connor

FILED May 18, 1972

June 15, 1972 Sustained, with leave to amend denied. (Meagher, J.)

PRR eo

42

Appendix C.

COMMONWEALTH OF MASSACKUSETT

Supreme Judicial Court for the Commonwealth»

At Boston,

1973.

IN THE CASE OF

BRUCE R. DESMARAIS, ET AL

Ve

WACHUSETT REGIONAL SCHOOL DISTRICT, ET AL

?

pending in the Appeals Court

ORDERED, that the following entry be made in the

docket; viz.,—

Petition for Further Appellate Review Denied.

By the Court,

Fos) Bm

FREDERICK J. QUINLAN, Clerk.

May 1 » 1973-

TREAT LL LON LANE

43

Appendix D.

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT

No.

WORCESTER, SS.

BRUCE R. DESMARAIS, ET AL.

vs.

WACHUSETT REGIONAL SCHOOL DISTRICT ET AL.

PLAINTIFFS' BRIEF IN OPPOSITION TO WACHUSETT REGIONAL

SCHOOL DISTRICT'S DEMURRER

LAW

A regional school district has the same protection from

lability as a town under the doctrine of governmental immunity

since a regional school district by statute has been placed in

the same position as a town for the purpose of lawsuits.

&L. Chap. 71, Sec. 16 (b).

A municipality is not liable for the act of public

officers acting in the discharge of public duties. Molinari

*. Boston, 333 M. 394, 395.

A municipality is not liable for negligent or tortious

acts in the conduct of its schools. Hill v. Boston, 122 M. 344,

345.

A municipality is not liable for the misfeasance of

public officers "performing duties strictly public" since "the

‘octrine respondeat superior does not apply to the servants of

se who is acting only as a representative of the government,

‘or the benefit of the public”. Moynihan v. Todd, 188 M. 301,

304

mee

Bitte caswscietan

44

ARGUMENT

The underlying contentions of the plaintiffs is first,

that the doctrine of sovereign immunity violates equal protec-

tion of law because it establishes two categories of claimants,

those offended by governmental action, with different protec-

tions, but without any foundation of reasonableness. Withhold-

a remedy from persons injured by governmental torts but not

private ones or from some persons but not others injured by

government in tortious, but different, phases of its activity

is the denial of equal justice which is prohibited by the

equal protection clause of the Fourteenth Amendment to the

Constitution of the United States.

Long ago in Yick Wo v. Hopkins (1886), 118 U.S. 356,

373-374, in a case involving nationality discrimination, the

test of equal protection in the administration of a law was

delineated. The Court said, "Though the law itself be fair on

its face and impartial in appearance, yet, if it is applied and

acaministered by public authority with an evil eye and an unequal

hand, so as practically to make unjust and illegal discrimina-

tions between persons in similar circumstances, material to

their rights, the denial of equal justice is still within the

prohibition of the Constitution."

Much later in the case of Baker v. Carr, (1962), 369,

U.S. 186, the Supreme Court of the United States gave a defini-

tion of a Court's function under the equal protection clause:

"it has been open to the Courts since the enactment of

2 Fourteenth Amendment to determine, if on the particular

sts they must, that a discrimination reflects no policy, but

ily arbitrary and capricious action."

The operation of the doctrine of sovereign immunity

sults in different consequences for injured persons in at

ast two wayS. Persons victimized by private tortfeasors may

compensated for their damages. But so long as sovereign

snity is extant persons suffering damage through comparable

ston the part of a governmental unit may not recover unless

tortious action happens to be one within a specific excep-

son, then two classes of persons injured by the state develop--

tose hurt in the course of the excepted activity and those not.

ch circumstances raise the question whether such differences

those described mount arbitrary and unreasonable distinctions

compatible with the constitutional standard established by

ye equal protection clause.

The plaintiffs contend therefore that there is no

sional policy for the distinctions created by the immunity.

wther, that the distinctions so based are capricious and an

titrary attempt to remove governmental responsibility without

eason. The withholding of a remedy against the plaintiffs on

“se grounds is a denial of due process and fatally offends

“¢ Constitution.

COPY BOUND CLOSE IN CENTER

Picts seiiccs 2s

46

The second contention of the plaintiffs is that the

doctrine of sovereign immunity is grossly incompatible with th

rule of law. The notion that the government or its agents nay

irresponsibly maim a person contravenes the most elemental

notions of justice and due process. In controversies between

any powerful governmental body and a relatively feeble individ:

due process should not allow the contest to start with such

a fatal impediment to the individual's case. Since the doctrine

is essentially judge-made in this jurisdiction, it can and

should be abolished by the same authority.

BRUCE R. DESMARAIS, ET AL.

By

Gerald F. Madaus

Sarapas & Madaus, Their Attcr:

Appendix E.

Cc. Second argument.

to hold that “public officers engaged wholly in the

yerformance of public duties are liable only for their

48

own acts of misfeasance in connection with ministerial

matters," Fulgoni v. Johnston, 302 Mass. 421, 423,

infringes on a most fundamental requirement of due pro-

cess found in the constitutions of the Commonwealth and

the United States, at least insofar as this rule is held

to apply to teachers in a public school system.

The ability of a person to seek redress in the courts

is a fundamental right. Denying this right to the plain-

tiffs in this case, on a classification such as whether

or not the defendant's conduct was misfeasant, is repug-

mant to justice and fairness. Had the plaintiff been a

student privileged enough by income to attend a private

school, he would not have been so invidiously discrimina-

tea against by the distinction which the present law

seeks to enforce. Because the plaintiff was a public

school student he should not thus become a member of a

disadvantaged group, who is denied equal treatment before

the court.

Certainly there is no compelling state interest which

would require the continuance. of such a discriminatory

classification as deprives this plaintiff of his right

to trial. The plaintiffs contend that there must be a

49

10

substantial justification shown by the state to justify

denial of equal access to the courts to any of its

subjects. Substantial justification cannot be shown

here.

II. Re: the demurrer of Wachusett

Regional School District.

A. Present law.

1. A regional school district has the same protection

from liability as a town under the doctrine of governmen-

tal immunity, since a regional school district by statute

has been placed in the same position as a town for the

purpose of lawsuits. G.L. c. 71, sec. 16(b). Desmarais

v. Wachusett Regional School District, Mass. Adv. Sh.

(1971) 1763.

2. A municipality is not liable for the acts of pub-

lic officers in the discharge of public duties. Molinari

v. Boston, 333 Mass. 394, 395.

3. A municipality is not liable for negligent or tor-

tious acts in the conduct of its schools. Hill v. Boston,

122 Mass. 344, 358.

pegt

aE y

Sle

ll

4. A municipality is not liable for the misfeasance

of public officers “performing duties strictly public"

since “the doctrine respondeat superior does not apply

to the servants of one who is acting only as a represen-

tative of the government, for the benefit of the public.’

Moynihan v. Todd, 188 Mass. 301, 304.

B. Constitutionality of present law.

1. The plaintiffs submit that the doctrine of sover-

eign immunity violates the constitutions of the Common-

wealth of Massachusetts and the United States. The doc-

trine denies equal protection, violates due process and

contravenes the most elemental notions of justice and

fairness. The doctrine should be abolished.

2. The first contention of the plaintiffs is that

the doctrine of sovereign immunity violates equal pro-

tection of the law because it establishes two categories

of claimants, those injured by governmental action and

those injured by private action. Each class has differ-

ent protection, but without any foundation of reasonable-

ness. Withholding a remedy from persons injured by gov-

ernmental torts, but not private ones, or from some

Aye? Me Rl OR

persons, but not others injured by government in tortious,

out different, phases of its activity is the denial of

equal justice which is prohibited by the equal protection

clause of the Fourteenth Amendment to the Constitution of

the United States.

3. Im Yick Wo v. Hopkins, 118 U.S. 356, 373-374

(1886), a case involving nationality discrimination, the

test of equal protection in the administration of a law

was delineated. The court said,

"Though the law itself be fair on its face and

impartial in appearance, yet, if it is applied

and administered by public authority with an

evil eye and an unequal hand, so as practically

to make unjust and illegal discriminations

between persons in similar circumstances, mate-

rial to their rights, the denial of equal jus-

tice is still within the prohibition of the

Constitution.”

Many years later in the case of Baker v. Carr, 369

U.S. 186 (1962), the Supreme Court of the United States

gave a definition of a court's function under the equal

protection clause:

"... it has been open to courts since the en-

actment of the Fourteenth Amendment to deter-

mine, if on the particular facts they must,

that a discrimination refle:ts no policy, but

we arbitrary and capricious action.” At

6.

isi]

te

13

4. The operation of the doctrine of sovereign immun-

ity results in different consequences for injured persons

in at least two ways. Persons victimized by private

tortfeasors may be compensated for their damages. But so

long as sovereign immunity is extant, persons suffering

damage through comparable fault on the part of a govern-

mental unit may not recover unless the tortious action

happens to be one within a specific exception. Thus, two

classes of persons injured by the sovereign develop--

those hurt in the course of the excepted activity, and

those not. Such circumstances raise the question whether

such differences amount to arbitrary and unreasonable

distinctions, incompatible with the constitutional stand-

ard established by the equal protection clause.

5. The plaintiffs contend that there is no rational

policy for the distinctions created by the immunity.

Further, they contend that the distinctions so based are

capricious, and an arbitrary attempt to remove governmen-

tal responsibility without reason. The withholding of a

remedy from the plaintiffs on these grounds is a denial

or due process and fatally offends the Constitution.

Sn PAGCOR ne SOS

53

14

6. The second contention of the plaintiffs is that

the doctrine of sovereign immunity is grossly incompati-

ble with the rule of law. The notion that the govern-

ment or its agents may irresponsibly maim a person con-

travenes the most elemental notions of justice and due

process. In controversies between any powerful govern-

mental body and a relatively feeble individual, due pro-

cess should not allow the contest to start with such a

fatal impediment to the individuals’ case. Since the

doctrine is essentially judge-made in this jurisdiction,

it can and should be abolished by the same authority.

To hold that the Wachusett Regional School District

is not responsible for certain acts of its servants and

employees unconstitutionally discriminates against the

victims of municipal acts of negligence in violation of

the equal protection provision of the United States Con-

stitution. Where the agent of a municipality commits

intrinsically the same negligent act as would justify re-

covery if committed by an agent of a private entity, and

the law says unequally that the plaintiff may not recover

tere .

NG

15

because he has been the unfortunate victim of the munici-

pality, there is as much discrimination as if the victim's

rights had been abrogated because of his race or nation-

ality.

The plaintiff was compelled to attend school by the

laws of this Commonwealth. If he was not so fortunate as

to have financial means to attend a private school, the

law should not deprive him of his basic constitutional

rights of equal protection and due process simply because

he was a member of a “disadvantaged” group who attended

public school.

RR i BE at LAS

vd

Appendix F.

B Plaintiffs assert that the doctrine that a public

school teacher, as he is a public servant, is

liable only for misfeasant, as opposed to non-

feasant, conduct, is violative of the “due

process" and “equal protection" clauses of the

Massachusetts and United States Constitutions,

and should be abolished. The Appeals Court did

not meet this issue, and, therefore, further

review is sought.

°. Argument

Plaintiffs assert that further review is

warranted for two substantial reasons:

A In the interest of justice to the plaintiffs.

B Because the public interest is affected.

&-iIn the Interest of Justice

Here we have a plaintiff who, at a tender age,

suffered a serious, painful and disabling injury -

the permanent loss of the vision in an eye.

He has thusfar been denied the opportunity of

having his case presented before a jury.

In the earlier Desmarais case, previously

cited, this Court stated that “'public officers

Ce ee ee eee

whe Re

db

engaged wholly in the performance of public duties

are liable only for their own acts of misfeasance

- - -'" Accepting that as the stated law of the

Commonwealth, the plaintiffs assert that the declar-

ation in the instant case alleges a positive act of

misfeasance (ordering the experiment to be conducted)

and is distinguishable in fact and in law from the

declaration in the earlier case. Hence, the plain-

tiffs argue that their declaration in the instant

case sets forth a cause of action, and they should

have been allowed to try their case to a jury.

Failure to allow that trial results in a substantial

injustice to the plaintiffs, particularly bearing in

mind the severity of the injury.

In the Public Interest

Plaintiffs assert that it is in the public in-

terest to have a judicial determination as to

whether or not the rule set forth in the earlier

Desmarais case violates the “due process" and the

"equal protection" clauses of the Massachusetts and

United States Constitutions. This issue was not

met by (nor, to the best of plaintiffs'. memory and

belief argued before) the Supreme Judicial Court in

the earlier case. It was suggested to the Appeals

Court when this case was argued before that Court,

St OEE OSB RELATE TA Sep aat } DRE Sei

oa

but not met, insofar as a reading of its rescript

opinion would indicate.

Plaintiffs urge that, at the very least, they

are entitled to a deliberation of the issue on the

following basis:

This Commonwealth has decreed by statute that

all children (with certain exceptions) under age

sixteen (16) must go to school. (Massachusetts

General Laws, Chapter 76) It has also undertaken

historically to provide and maintain free public

school systems. (No citation required.) A child

born to parents of means has the choice of attending

a free state-financed public school, or, if his

parents can pay, an accredited private school of

his (or their) choice.

The poor and disadvantaged student has no

such freedom of choice. Although it is mandated

by statute that he must attend school, because of

his accident of birth, he has no choice but to

attend a public school.

Nevertheless, the highest court of this

Commonwealth has decreed (in the earlier Desmarais

case) separate but unequal treatment for this

Student - a public school teacher is liable only

ie

as

ee

en

for misfeasance. By inference, at least, a private

school teacher would be liable to a private school

student for ordinary negligence; the private school

student would not have to engage in the tenuous and

semantic task of trying to determine the difference

(if any) between "misfeasance" and "nonfeasance,"

"A rose by any other name would smell as sweet."

Hence, the plaintiffs argue that the rule as

stated in the earlier Desmarais case deprives these

plaintiffs, and many others like them, of their

constitutional rights to equal protection of the

laws, and to due process of the law. This rule has

made public school students second class citizens,

‘ without a showing of any substantial state reason

for doing so.

In support of their argument, the plaintiffs

cite the following cases: Brown vs. Board of

Education, 347 U.S. 483; Skinner vs. Oklahoma, ex

rel. Williamson, 316 U.S. 535, 541; ("When the law

lays an: unequal hand on those who have commited in-

<otrinsically the same quality of offense ... it.

“has made... an invidious . . . discrimination

| a | Reynolds vs. Sims, 377 U. S. 533; Alma vs.

American Guarantee & Liability Insurance Company,

391 U.S. 73; King vs. Smith, 392 U.S. 309, 334;

I=

Levy vs. Louisiana, 391 U.S. 68; Griffin vs.

Illinois, 351 U.S. 12; Takahashi vs. Fish and Game

2i2i007°

Commission, 334 U.S. 410; Yick Wo vs. Hopkins, 118

U.S. 356; Reed vs. Reed, 404 U.S. 71; Baker vs. Carr,

369 U.S. 186; Douglas vs. California, 372 U.S. 353.

In summary, the plaintiffs argue that the

question of tort liability, or immunity or limited

immunity from tort liability vis-a-vis the public

school student vs. the public school teacher, in-

volves a serious and substantial question affecting

the public interest, particularly from the stand-

point of Federal and State Constitutional guarantees

of equal protection of the laws, and the rights to

due process of law, including especially the right

to a jury trial. Since the Appeals Court failed

to meet these questions, plaintiffs request that

this Court do so, on the grounds that justice and

the public interest so require.

Respectfully submitted,

BRUCE R. DESMARAIS

ROBERT F. DESMARAIS

By

Richard J. Sarapas, Their

Attorney

=: