# Opposition Brief — Desmarais v. Wachusett Regional School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0621%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 414 U.S. 859 ## Text 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 2 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. 6 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0621%3A2. Public record. Not legal advice.