Opposition Brief — Hunter v. Porter

No. 04-483 eo

IN THE

Supreme Court of the United States

NOREEN JUDITH HUNTER,

Petitioner,

V.

NONA PORTER, ADMINISTRATRIX OF THE ESTATE OF

JOSEPH S. HUNTER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

APPEALS COURT FOR THE COMMONWEALTH OF MASSACHUSETTS

BRIEF IN OPPOSITION

JOHN T. DALEY

DanE & Howe, LLP

45 School Street

Boston, MA 02108-3204

(617) 227-3600

Counsel for Respondent

LYOR4S ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............ 1

Pe. | er ae l

REASONS FOR DENYING THE PETITION .... 6

The underlying case was correctly decided in

the Probate and Family Court of the

Commonwealth of Massachusetts, and that

judgment was affirmed by the Massachusetts

Appeals Court. The Supreme Judicial Court

for the Commonwealth denied an application

for further appellate review. There has been

no compelling argument put forth by the

petitioner for the granting of a writ of

SE oer eas eee 6

MO, ee oe aka a eine wk 12

il

TABLE OF CITED AUTHORITIES

Page

Cases: .

Attorney Gen. v. Massachusetts Interscholastic

Athletic Ass'n, 378 Mass. 342 (1979) ......... 9

Blixt v. Blixt, 437 Mass. 649 (2002) ............. 11,12

Christo v. Edward G. Boyle Insurance Agency,

402 Mass. 815 (19G0S c.xcnceueeeeter estes 8

Commonwealth v. Chase, 385 Mass. 461 (1982) .. 7

Department of Revenue v. Roe, 29 Mass. App. Ct.

S67 (1990)... <skcccccese eee aes 7

Flynn v. Connors, 39 Mass. App. Ct. 365 (1995) .. 8

Goodridge v. Department of Public Health,

440 Mans. 209 (20GS) oun s na vceee ken eee 1]

Keville v. McKeever, 42 Mass. App. Ct. 140 (1997),

further appellate review denied, 494 Mass. 1107

Uh) ee 1,4

Lowell v. Kowalski, 380 Mass. 663 (1980) ..... 8, 10, 11

MacKeen v. Kasinskas, 333 Mass. 695 (1956) .... 8

McLearn vy. Hill, 276 Mass. 519 (1931) .......... 8

Mills v. Habluetzel, 456 U.S. 91 (1982) ......... 8

iil

Cited Authorities

Page

Powers v. Wilkinson, 399 Mass. 650 (1987) ...... 7

Shafnacker v. Raymond James & Associates, Inc.,

eo Wames. 724 (1997) .. ccc eee 8

Telesetsky v. Wight, 395 Mass. 868 (1985) ....... 7

Trimble v. Gordon, 430 U.S. 762 (1977) ......... 8

Williams v. Ely, 423 Mass. 467 (1996) ........... 7

United States Constitution: |

Fourteenth Amendment ....................... 1]

Statutes:

a 3,8

WE is cb xnav ccnadcrscceccs 7, 12

Ey Re 3,10 -

Rules:

se +

U.S. Supreme Court Rule 10 .................. 6

1

STATEMENT

The statement of facts filed by the petitioner herein is

remarkable both for what is alleged and for what is not

included. The history of the aggressive actions taken by

Noreen McKeever Hunter against Joseph Hunter and his

daughter, Nona Porter, the administratrix of his estate, is

extensive, and it received far from detailed treatment by

Ms. McKeever Hunter in her petition to this Court.

The most dramatic recital is perhaps that which is

contained in the reported decisions Keville v. McKeever, 42

Mass. App. Ct. 140 (1997), further appellate review denied,

494 Mass. 1107 (1997). In the first of those reported

decisions, the Massachusetts Appeals Court quoted at some

length from the judgment of the Probate and Family Court

(all page references being to the Appeals Court decision):

“Joseph Hunter was declared to have been

incompetent from at least August of 1982...

(p.143);

“The McKeevers were also adjudged liable to

Joseph, individually, or jointly and severally, for

various sums amounting to approximately

$1.5 million dollars . . . (p.143);

The judge found that there was no credible

evidence that Noreen was, in fact, Joseph’s

daughter... (p.144);

Noreen told Ron that ‘Joseph was crazy, had

always been crazy, and that he didn’t know what

was going on...’ (p.145);

2

The judge found that, starting in 1988,

‘the McKeevers engaged in a thorough stripping

of all of (Joseph’s) assets’... (p.145);

Noreen forged Joseph’s name to obtain credit

cards... (p.146);

On March 3, 1990, Marian forged Joseph’s

signature on a deed transferring title to the

Harvard Avenue property from him individually

and as trustee of the J. Hunter Realty Trust, to

Marian and Noreen, as trustees of the Bourne-

Hunter Realty Trust, a trust they had created that

same day and of which they were the sole

beneficiaries . . . (p.146);

Within days of receiving the September 23, 1991,

order restraining them from using or disposing of

any of Joseph’s cash assets, or cash assets

traceable to him, the McKeevers closed several

bank accounts containing substantial sums of

money, that, the probate judge found, were directly

traceable to Joseph . . . (p.154);

The judge found that Noreen’s purpose in

obtaining the mortgage loan was to put as much

on the property as soon and as quickly as possibie

because Nona and Ron were going to try to take

the property from her, and by having a lien on the

property, it would be a lot harder to so . . . (p.161)”

In a judgment on a complaint for contempt brought by

Ms. Porter as administratrix of her father’s estate on

September 25, 1997 (Suffolk County Probate and Family

3

Court case no. 90P 2892), the Court on February 10, 1998,

said that

“having stolen the bulk of Joseph Hunter’s assets

when he was alive but mentally incompetent,

Ms. Hunter now seeks, after his death, to destroy

what is left of his estate... . The defendant ...

said she would stay at 390 Marlborough St.,

‘forever’ and that she would take the administrator

to court until she ‘died’.... The defendant’s

actions in this case constitute criminal contempt

of this court. No jail sentence is imposed at this

time. However, it is clear that the defendant is

determined to follow a policy of destruction

concerning the estate of Joseph Hunter. . . .”

Mr. Hunter died on April 27, 1996, and Noreen

McKeever Hunter, who was then 42 years old, filed a

complaint for declaratory judgment against Nona Porter as

administratrix in Norfolk County Probate and Family Court

under docket no. 97E 0118-GC1 on December 11, 1997,

seeking an adjudication that Noreen was the daughter of

Joseph Hunter for the purpose of establishing entitlement to

his estate. At that time more than 19 months had gone by |

since Mr. Hunter’s death, and there had been no court

adjudication of paternity during Mr. Hunter’s lifetime, nor

had Ms. McKeever Hunter commenced in Court an action in

which the administratrix was a named party within one year

after Mr. Hunter’s death (the requirements of Massachusetts

General Laws c.190, § 7 and c.197, §13).

The administratrix moved to dismiss, citing those

two statutes and the litigation history between the parties.

The Probate and Family Court dismissed the complaint for

4

declaratory judgment on January 19, 1999, (more than 5 1/2

years ago), referring to the above statutes, and saying further

that “extraneous equity considerations, if relevant, would

favor the defendant. See Keville v. McKeever, 42 Mass.

App. Ct. 140 (1997).”

The petitioner, Noreen McKeever Hunter, appealed, and,

with the permission of the Massachusetts Appeals Court, the

administratrix, Nona Porter, the defendant on that complaint

for declaratory judgment, submitted to the Appeals Court a

copy of the Judgment on the Complaint for Contempt referred

to above. -

The Court of Appeals for Massachusetts affirmed the

judgment dismissing the complaint for declaratory judgment

on January 29, 2003, and judgment after rescript was entered

on February 28, 2003. The Massachusetts Rules of Appellate

Procedure (Rule 27.1) provide that “within twenty days after

the date of the rescript of the Appeals Court any party to the

appeal may file an application for leave to obtain further

appellate review of the case by the full Supreme Judicial

Court.

As time went on Ms. Porter was justified in believing

that despite the earlier threat of endless litigation made by

Ms. McKeever Hunter, perhaps the lawsuits were over.

However, fourteen months after the entry of the judgment

after rescript Ms. McKeever Hunter through her third

appellate attorney of record filed in-the Massachusetts

Supreme Judicial Court a motion to file late and an

application for leave to obtain further appellate review. That

Court denied the application for further appellate review on

June 30, 2004. * ;

Jakaddoeo aa

5

Again, the expectation was that the litigation was

concluded. On October 13, 2004, a message came from a

printer of Supreme Court briefs to Ms. Porter’s attorney that

a petition for a writ of certiorari had been filed by

Ms. McKeever Hunter in the United States Supreme Court

on September 28, 2004. The petitioner — as of the date this

opposition is being filed — has served nothing on the

respondent in this matter. Respondent’s familiarity with the

petition is thanks to the kindness of the Clerk’s office, which

forwarded a copy of it on request.

In the course of the thin recital of the background in Ms.

McKeever Hunter’s petition, she has made no mention

whatever of the substantial monetary judgment entered

against her in the Probate and Family Court in September

1998, nor has she alluded to any efforts to make payment of

that judgment obligation. -

On the other hand, Ms. McKeever Hunter has sprinkled

through her statement in this case arguments and contentions

as if they were facts found in some legal proceeding.

Her statements as to her mother’s thoughts and activities are

both irrelevant and not proved. The alleged affidavit of

Joseph Hunter has never been admitted in evidence in any

court. Alleged “statements to his attorneys” have never been

admitted in evidence in any court. Allegations regarding

statements by Nona Porter and her brother Ronald Hunter

allegedly made in the course of discovery in other litigation

are misleading, irrelevant, and taken out of context. Despite

the contentions in Ms. McKeever Hunter’s current petition,

she did not “adduce proof” of anything in her unsuccessful

opposition to the motion to dismiss.

ey re a ee

6

Referring in her current petition to her date of birth,

December 9, 1955, Ms. McKeever Hunter says that “there

was no formal adjudication of Joseph’s paternity of Noreen

at that time.” The more accurate rendition of that sentence

would be that “there was never any adjudication of Joseph’s

alleged paternity of Noreen at any time.”

REASONS FOR DENYING THE PETITION

The underlying case was correctly decided in the

Probate and Family Court of the Commonwealth of

Massachusetts, and that judgment was affirmed by

the Massachusetts Appeals Court. The Supreme

Judicial Court for the Commonwealth denied an

~ application for further appellate review. There has

been no compelling argument put forth by the

petitioner for the granting of a writ of certiorari.

There is no compelling reason for this Court to exercise

judicial discretion by granting a writ of certiorari. Petitioner

has cited no conflicts of court decisions regarding issues

presented in this case. No federal questions have been decided

by the Massachusetts Courts in this case. In short, the

petitioner has completely failed to set forth reasons for this

Court to grant a writ of certiorari under Rule 10.

The petitioner has repeated contentions which she

previously made to the Massachusetts Appeals Court, and

has made new references to most of the cases cited by her in

her arguments in that Court. Since her theories are the same,

the rebuttals are fundamentally the same.

She alleged that she was born on December 9, 1955, and

that in 1980, at age 24, she filed a petition in Suffolk Probate

j

Court to change her name from McKeever to Hunter.

She has argued that Joseph Hunter lived with her mother for

many years. Despite those allegations, she has submitted to

this Court that there should be equitable tolling of the statute

of limitations, and to Support that contention, she has cited

the holding on the starting date of the statute of limitations

in a legal malpractice case, Williams v. Ely, 423 Mass. 467

(1996), quoting from page 473 of that decision that the

running of the statute would begin when the plaintiff “learned

or reasonably should have known of the harm caused by the

defendant’s conduct.” Further on that same page of the

decision, the Court went on to say that “once [the plaintiff]

knows or reasonably should know that he or she has sustained

appreciable harm. . . the statute of limitations starts to run.”

It is difficult to credit that in light of her other allegations

the appellant could seriously put the argument that she falls

into the category of plaintiff for whom the statute of

limitations should be tolled because of lack of knowledge.

In her argument the petitioner stressed holdings in cases

which are not in dispute and which have no bearing on issues

in the present case. Commonwealth v. Chase, 385 Mass. 461

(1982), dealt with the starting date for child support, but that

is not in dispute here. Powers v. Wilkinson, 399 Mass. 650

(1987), determined that the word “issue” includes all

biological descendants regardless of the marital status of the

parents, but no language of any estate planning instrument

is being construed here. Telesetsky v. Wight, 395 Mass. 868

(1985), interpreted the then language of the statute limiting

actions by creditors against estates, M.G.L. c.197 § 9, but

that statute has since been amended and its meaning is not

currently in dispute. Department of Revenue v. Roe, 29 Mass.

App. Ct. 867 (1990), determined that a retroactive order of

child support was constitutional and that the entered order

8

was appropriate, but here there is no such order or

controversy. Flynn v. Connors, 39 Mass. App. Ct. 365 (1995),

discussed the statute of limitations for the pursuit of past

child support, and the appropriate methods of pursuing

someone who has not fulfilled his child support obligations

despite a previous court determination of paternity.

Appellant has then cited cases in which Massachusetts

has allowed the equitable tolling of a limitations statute —

McLearn v. Hill, 276 Mass. 519 (1931); MacKeen vy.

Kasinskas, 333 Mass. 695 (1956); Christo v. Edward G. Boyle

Insurance Agency, 402 Mass. 815 (1988). All of those cases,

however, turned on the allegation that representatives of the

defendant had said or done something deceptive or

misleading which caused the prospective plaintiff not to file

suit or assert a claim in timely fashion. No such allegation

can be, or is, made in this case. She has cited a fourth case,

Shafnacker v. Raymond James & Associates, Inc., 425 Mass.

724 (1997), in which the Court noted that equitabie toiling

is used only sparingly and ruled that that was not a case for

the rare invocation of an equitable tolling of the statute of

limitations.

The discussion of cases in other jurisdictions where local

statutes imposed far more stringent curbs on the assertion of

rights by one alleging paternity is also unrelated to any issue

now before this Court. See Trimble v. Gordon, 430 U.S. 762

(1977); Mills v. Habluetzel, 456 U.S. 91 (1982).

Lowell v. Kowalski, 380 Mass. 663 (1980), has

already discussed the constitutionality of M.G.L. c. 190 § 7,

at pp. 668-669:

“We consider then whether there is any

compelling State interest in support of

9

distinguishing between the right of an illegitimate

child to inherit from his or her natural father and

such child’s right to inherit from his or her natural

mother. The statutes extending rights of

inheritance to illegitimate children were enacted

to give rights to illegitimate children that they did

not have at the common law. At common

law an illegitimate child could inherit from no one.

Vallin v. Bondesson, 346 Mass. 748, 750 (1964).

If an illegitimate child’s status as an heir could be

ascertained with equal ease as to each natural

parent, no statutory distinction between the two

situations would be needed or could be justified.

There is a difference, however, between

establishing paternity and establishing maternity.

See Lalli v. Lalli, 439 U.S. 259, 268-271 (1977).

A distinction between rights to inherit from a

natural father and rights to inherit from a natural

mother may properly be based on the greater

difficulty of proving paternity than of proving

maternity.

In Commonwealth v. MacKenzie, 368 Mass.

613 (1975), a case that involved a proceeding to

establish the defendant’s paternity, we concluded

that a statutory distinction between paternity and

maternity of an illegitimate child rested “on more

than a sex-based classification.” Commonwealth

v. MacKenzie, supra at 617-618. ' The distinction

1. That case was decided before the adoption of the State ERA,

but we acknowledged the appropriateness of its analysis subsequent |

to the adoption of the State ERA. See Attorney Gen. v. Massachusetts

Interscholastic Athletic Ass'n, 378 Mass. 342, 357-358 (1979).

10

reflected significant circumstantial differences

between the fathers and the mothers of illegitimate

children. “[B]ecause the woman carries and bears

the child, the pressures of society make it nearly

impossible for her successfully to deny parenthood

or to avoid responsibility for the child. The father,

on the other hand, because not visibly linked to

the child, often is unaware of the tie or denies it,

and thus the fact of his parenthood is more

difficult to prove.” Jd. At 617.

In the case before us where the father is

deceased, as was not the situation in the

MacKenzie case, the problem of determining the

truth and of avoiding the fraudulent claims is even

more difficult. Thus, because the possibility of

fraud is usually greater with respect to claims

against the estate of a deceased man than against

the estate of a deceased woman, we recognize that

the State has a compelling interest in imposing-a

stricter standard for establishing an illegitimate

child’s right to inherit from its father than from

its mother. ?

The analysis is as appropriate now as it was at the time

of Lowell v. Kowalski.

Massachusetts General Laws Chapter 197, Section 13,

cited in the petition, would perhaps have been relevant if the

2. We reject as an adequate compelling State interest any greater

difficulty in an estate’s representative identifying and giving notice

to the illegitimate children of a man than of a woman. Notice by

publication should be adequate as to persons whose alleged status is

not known by the estate’s representative.

11

petitioner’s right of action had not accrued within one year

after the date of Mr. Hunter’s death. Since, however, the

petitioner could have brought suit to establish paternity

(either through an action filed by her mother while the

petitioner was a minor, or in her own name after she achieved

her majority), her paternity cause of action actually accrued

in 1955.

The contentions made as to the Equal Protection Clause

have nothing to do with the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

A detailed discussion of the state’s interest in distinguishing

rights to claim through a father from rights to claim

through a mother is set forth in Lowell v. Kowalski, supra,

at 668, 669.

Ms. McKeever Hunter for this petition has added

references to two relatively recent Massachusetts decisions,

Goodridge v. Department of Public Health, 440 Mass. 209

(2003), and Blixt v. Blixt, 437 Mass. 649 (2002). The former

addresses the issue of same sex marriage, and the latter is

concerned with the visitation rights of grandparents. Neither

case is on point for any issue raised by the petitioner, although

the Massachusetts Supreme Judicial Court did say in

Blixt, at 652, that

“a facial challenge to the constitutional validity

of a statute is the weakest form of challenge, and

the one that is the least likely to succeed. See

United States v. Salerno, 481 U.S. 739, 745

(1987). A statute so questioned is presumed

constitutional. See Landry v. Attorney Gen., 429

Mass. 336, 343 (1999), cert. denied, 528 U.S.

1073 (2000).”

12

Nine months after the Blixt decision, the Massachusetts

Supreme Judicial Court correctly denied Ms. McKeever

Hunter’s petition for further appellate review.

Her original complaint for declaratory judgment to

determine paternity was correctly dismissed because there

was no way that the petitioner could get around the

limitation barriers of Massachusetts General Laws, c.190,

§ 9. There was no judgment of paternity during Mr. Hunter’s

lifetime, and within one year following his death on

April 27, 1995, Ms. McKeever Hunter did not commence in

court an action in which the administratrix was a named party.

Finally, as the Probate and Family Court Justice concluded

on January 19, 1999, “extraneous equity considerations, if

relevant, would favor the defendant.”

CONCLUSION

For all the above reasons, this Court should deny the

Petition for Writ of Certiorari, and grant such other and

further relief as it may deem meet and just.

Respectfully submitted,

JOHN T. DALEY

Dane & Howe, LLP

45 School Street

Boston, MA 02108-3204

- (617) 227-3600

Counsel for Respondent