Opposition Brief — Desmarais v. Wachusett Regional School District

Supreme Court of the United States.

Ocroser Term, 1972.

BRUCE R. DESMARAIS er at., PEetiTioners,

v.

WACHUSETT REGIONAL SCHOOL DISTRICT er au,

RESPONDENTS.

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF

CERTIORARI TO THE MASSACHUSETTS

APPEALS COURT.

The Prior Proceedings.

_ The petitioners seek review of the decision of the Massa-

- ¢husetts Appeals Court in Bruce R. Desmarais & another

v. Wachusett Regional School District & another (Peti-

- tioners’ Brief, p. 17) after the Supreme Judicial Court of

Massachusetts denied their petition for further appellate

" feview (Petitioners’ Brief, p. 42). As the Appeals Court

said, ‘‘[t]his is the second action by the plaintiffs against

- these defendants for the same injury arising out of the

tame accident.’’ (Petitioners’ Brief, p. 17). The Supreme

~ Sndicial Court of Massachusetts decided the first case on

LANE ESERIES EI RR RS 1 DAE RI ON ACI ie RIS

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the merits and issued a full decision. Desmarais v. Wachv-

sett Regional School District, Mass. Adv. Sh. (1971) 1763

(Petitioners’ Brief, pp. 18-21).

Statement of Facts.

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 de-

fendants, David H. Byron, a teacher in the classroom where

the minor Desmarais sustained his injuries, and the Wa-

chusett Regional School District. Both defendants’ de-

murrers were sustained (Petitioners’ Brief, pp. 39-41).

The only facts before any court in this case have been

only the facts as stated in the plaintiffs’ declaration (Peti-

tioners’ Brief, pp. 22-39). ‘‘The facts well pleaded and

only the necessary inferences from those facts are admitted

by a demurrer.’’ Grammenos v. Zolotas, 356 Mass. 594,

597 (1970), quoting Monach v. Koslowski, 322 Mass. 466,

468.

Reasons for Denying the Writ.

No FEpeRaL QuEsTION PRESENTED.

The question whether a state is immune from suit in its

own courts is a question of state law only. So also is the

further question whether the state has given its consent

to be sued by its constitution or statutes. These are ques-

tions of local state law, as to which the decision of the state

supreme court is controlling. No federal question is pre-

sented. Palmer v. Ohio, 248 U.S. 32 (1918); Parden v.

Terminal Railway of Alabama State Docks Department,

377 U.S. 184, 194-195 (1964). See Employees of the De-

a Dees i. ee ee ee ee a a

3

partment of Public Health d Welfare, Mo. v. Department

of Public Health & Welfare, Mo. (April 18, 1973), 41 U.S.L.

Week 4493, 4496.

Petitioners accept this position in their brief (Petition-

ers’ Brief, p. 6). They correctly do not argue that sovereign

immunity has been waived by legislative action, since the

Supreme Judicial Court of Massachusetts, in the case of

these same litigants, has expressly held that no waiver

existed. Desmarais v. Wachusett Regional School District,

Mass. Adv. Sh. (1971) 1763, 1765. See also Morash & Sons,

Inc. v. Commonwealth, Mass. Adv. Sh. (1973) 785, 792.

RationaL Basis oF SovEREIGN Immunity as APPLIED TO

MUNICIPALITIES.

Even though the question of sovereign immunity is en-

tirely a question of state law, a well-defined rational basis

for the sovereign immunity of municipalities exists. Under

Massachusetts law, a regional school district has been

placed in the same posiien as a town for the purpose of

lawsuits. Massachusetts eneral Laws, c. 71, § 16 (bd).

Desmarais v. Wachusett Regional School District., Mass.

Adv. Sh. (1971) 1763, 1765.

A Massachusetts municipality is not liable for the tortious

acts of public officers or employees working under their

direction performing public duties imposed by the Legis-

lature. Molinari v. Boston, 333 Mass. 394, 395-396. The

rational basis for this position is ‘‘that there is no local

control over the public officer and hence no local respon-

sibility, since ‘the doctrine respondeat superior does not

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

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

Morash & Sons, Inc. v. Commonwealth, Mass. Adv. Sh.

(1973) 785, 789, quoting Moynihan v. Todd, 188 Mass. 301,

4

An exception lies, however, where the activity involved

has an element of special corporate benefit or pecuniary

profit. If it does, there may be liability; if it does not and

the activity is for the common good of all, there can be no

liability. Morash & Sons, Inc. v. Commonwealth, Mass,

Adv. Sh. (1973), 785, 792-793. Bolster v. Lawrence, 295

Mass. 387, 390. But petitioners do not argue that public

schools are operated for commercial benefit and thereby

come within the exception.

Petitioners do argue that the activities of a public school

and a public school teacher are not ‘‘purely governmental”

(Petitioners’ Brief, p. 6). But the Massachusetts Legisla-

ture has required municipalities to maintain public schools

for the benefit of their citizens. G.L. ¢. 71, § 1. Further.

more, the Massachusetts Supreme Judicial Court has de-

cided that school teachers are public officers. Desmarais

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

(1971) 1763, 1965. Indeed, even if no such legislative or

judicial action had been taken, could the operation of local

schools be called anything but governmental, with the huge

outlays of public funds earmarked for them, with the enor-

mous public concern and endeavor expended to conduct and

improve them, and with their control primarily in the hands

of publicly elected officials? Such a governmental function

has long been presumed by this Court. Brown v. Board of

Education of Topeka, 349 U.S. 294.

Tue Ricut to SvE ror Persona Inguries ts Nota

FuNDAMENTAL RIGHT.

The activities to which the petitioners attempt to anal-

ogize the present case are far more ‘‘fundamental rights”

than a personal injury claim. The cases relied upon by

SONIA APOE De SCT NN RTT REN §

3

petitioners all involve deprivation of the rights of individu-

als based upon their inclusion in a minority group, whether

that group is based upon race, geography, economics or

age. No such classification exists here. In fact, a far

wider opportunity for personal injury lawsuits has recent-

ly been eliminated in Massachusetts through the passage

of a statute which establishes a ‘‘no-fault’’ basis for recov-

ery for persons injured in motor vehicle collisions and

abrogates, to a great extent, recovery in tort for those so

injured. G.L. c. 90, § 34M. This statute has specifically

been held not to impair any fundamental right protected

by the United States Constitution. Pinnick vy. Cleary, Mass.

Adv. Sh. (1971), 1129, 1139.

Ricut To Sve bogs Exist.

It should be emphasized that Massachusetts law makes

only municipalities and school districts immune from suit,

and not school teachers. The general rule is that public

officers engaged wholly in the performance of public duties

are liable only for their own acts of misfeasance in con-

nection with ministerial matters. Desmarais v. Wachusett

Regional School District, Mass. Adv. Sh. (1971), 1763, 1764-

1765; Fulgoni v. Johnston, 302 Mass. 421, 423. Moreover,

municipalities may purchase insurance policies to indem-

nify employees against loss arising from suit claims, and

they are required to indemnify school department em-

ployees by reason of claims arising out of acts performed

within the scope of their employment. G.L. c. 41, § 100.

Morash & Sons, Inc. v. Commonwealth, Mass. Adv. Sh.

(1973), 785, 792.

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Conclusion.

The petitioners have not stated a substantial federal

question for review by this Court. In addition, a rational

basis for the state law exists and has been expressly stated

by the highest court of Massachusetts. Therefore, the

petition should be denied.

Respectfully submitted,

JOHN P. DUNN,

MASON, CROTTY, DUNN

& O’CONNOR,

Attorneys for Respondents.

RS Rha PA TE pes Sie epee