Reply Brief — Landry v. Reilly

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(S)——

No. 99-359

Supreme Court, U. 3

IN THE: FILED

Supreme Court of the Unie States

OCTOBER TERM, 19p9

OFFICE OF THE CLERK

DONALD LANDRY, ETAL.,

Petitioners,

TOM REILLY, ETAL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

REPLY TO OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN H. KEEHN

Counsel of Record

COMMITTEE FOR PUBLIC

COUNSEL SERVICES

Public Defender Division

470 Atlantic Avenue

Boston, Massachusetts 02210

(617) 482-6212

JOHN REINSTEIN

AMERICAN CIVIL LIBERTIES UNION

OF MASSACHUSETTS

99 Chauncy Street, Suite 310

Boston, Massachusetts 02111

(617) 482-3170

December 13, 1999

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

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TABLE OF CONTENTS

I ce dinideandosanneptenranenens l

I PETITIONERS’ CLAIM IS NOT MOOT ...........:ecseeseeeeeeees 1

I. RESPONDENTS’ OPPOSITION UNDERSCORES THE

NEED FOR SUPREME COURT REVIEW: DIFFERING

RATIONALES HAVE BEEN USED BY THE LOWER

COURTS TO UPHOLD SUSPICIONLESS DNA SEIZURE

STATUTES, AND THE “SPECIAL NEEDS” ARGUMENT

ADVANCED BY RESPONDENTS HAS BEEN

REJECTED BY AT LEAST ONE CIRCUIT COURT ........... 4

ee saiiesudcgennepensebdscnavaneabanbieaheinns 6

SUPPLEMENTAL APPENDIX .............. follows conclusion

TABLE OF AUTHORITIES

CASES:

American Export Lines, Inc. v. Alvez,

GAG U.S. ZTE 19GB) ..ccccecceoverecsccccsscoscrosersescncesesorovsessnss 2n

Asarco Inc. v. Kadish,

490 U.S. GOS (19D), .ccccsccccoceseccccssenscssecsscsssnvecsovenssoncares 2n

Chandler v. Miller,

BL, Fee CED. cecieveccsnitevsnssstntnieiamersene: ~daeeaienaieas 5,6

Cox Broadcasting Corp. v. Cohn,

BBD U.S, BED CAG SD cscsnscicsnscrrisscnvesirnnniicscinconecotensressoete ‘

il

Edmond v. Goldsmith,

163 P3660 0" Ce TR cern 5,6

Jones v. Murray,

962 F.2d 302, cert. denied, 506 U.S. 977 (1992) ........006. 6

Judge Rotenberg Educ. Center v. Comm’r of the

Dept. of Mental Retardation (No. 1),

424 Mass. 430, 677 N.E.2d 127 (1997) ....cccscesseeereeeees 3n

Judge Rotenberg Educ. Center v. Comm’y of the

Dept. of Mental Retardation (No. 2),

424 Mass. 471, 677 N.E.2d 153 (1997) ......ssccsseesseeeeees 3n

Landry v. Attorney General,

429 Wane. SIG. CES GGY cissesicscvessstsssecervesasescuvtactnianiarnacoon 4

Rise v. Oregon,

59 F.3d 1556, cert. denied, 517 U.S. 1160 (1996) .......... 6

Roe v. Marcotte,

193 F.3d 72 (2d Cir. 1999), 1999 WL 731599 ............e 6

CONSTITUTIONAL PROVISIONS

United States Constitution

Fowth AtsOnGNOUS issicciitecissvciacsnconinen 2, 3, 5,6

STATUTORY PROVISIONS

28 U.S.C. § 1ZSTMD csciccarssismetaicciaatiaiiaien 2,3

No. 99-359

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1999

DONALD LANDRY, ETAL.,

Petitioners,

TOM REILLY, ETAL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

REPLY TO OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

ARGUMENT

I. PETITIONERS’ CLAIM IS NOT MOOT.

This case is not moot. Respondents’ contention that it is,

Opp. Pet. 16-17, is premised on the procedural fact that, after

issuance of the Supreme Judicial Court’s decision, the matter

was remanded to the Superior Court, where the complaint was

dismissed. Resp. App. at 25a-26a. The “mootness” argument is

2

wrong for two reasons: (A) as a matter of law, the case is re-

viewable-because the decision of the Supreme Judicial Court is

“final” within the meaning of 28 U.S.C. § 1257(a), Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975), and; (B) as a mat-

ter of fact, the final order of dismissal on which respondents’

mootness argument hinges has been vacated by the Superior

Court. See petitioners’ supplemental appendix, post, at Supp.

App. 19s.a.

A. The Supreme Judicial Court’s ruling that the act “does

not violate the Fourth Amendment,” App. 11a, is a “[f]inal

judgment or decree[] rendered by the highest court of a State”

under 28 U.S.C. §1257(a), and is therefore within this Court’s

certiorari jurisdiction, despite the fact that the Supreme Judicial

Court’s rescript remanded the case to the Superior Court “for

further proceedings consistent with” its opinion. App. 26a. In

its present posture, this case falls squarely within the first cate-

gory of cases described in Cox Broadcasting Corp., supra:

The Supreme Judicial Court’s resolution of the Fourth Amend-

ment question is “conclusive” of the entire case, and the out-

come of any further proceedings that may be had in the state

court is “preordained.” 420 U.S. at 479. Furthermore, whatever

further state court proceedings might take place cannot involve

any other federal questions, see id. at 478, because petitioners

have waived them. Supp. App. 20s.a.-23s.a.' Accordingly, the

' Although petitioners’ complaint alleged federal questions other than the

Fourth Amendment claim presented here, see App. 3 1a-32a at n.4, petition-

ers have not claimed an appeal from the Superior Court’s denial of their

motion to reconsider the dismissal of their complaint, and do not intend to

do so. Petitioners concede here, as they have in the trial court, Supp. App.

20s.a.-23s.a., that they have waived all claims raised in the amended com-

plaint other than the Fourth Amendment claim raised in the instant petition.

See, Asarco Inc. v. Kadish, 490 U.S. 605, 610-612 (1989) (state court deci-

sion “final” under § 1257, even though decision remanded case to state trial

court for determination of other federal law questions, where respondents

withdrew those requests on appeal); American Export Lines, Inc. v. Alvez,

446 U.S. 274, 277-279 (1980) (similar).

Supreme Judicial Court’s resolution of the Fourth Amendment

question must be “deemed final” within the meaning of

§ 1257(a). Id., at 479

B. After the Supreme Judicial Court issued its decision in

this case, petitioners’ moved to stay issuance of the rescript

pending the filing and disposition of the instant petition. Supp.

App. at 4s.a.-11s.a. That motion was rejected by the Supreme

Judicial Court, which instead allowed respondents’ motion to

expedite issuance of the rescript. Supp. App. at 1s.a.-3s.a.;

12s.a.-13s.a. Accordingly, the rescript issued to the Superior

Court, which, on May 26, 1999, dismissed the complaint, and

? Relying exclusively on Judge Rotenberg Educ. Center v. Comm’r of

the Dept. of Mental Retardation (No. 2), 424 Mass. 471, 677 N.E.2d 153

(1997), respondents attempt to shore up their “mootness” argument with the

assertion that, as a matter of state law, a “preliminary injunction lapses on

entry of a final judgment.” Opp. Cert. 16. This argument is disingenous.

In Rotenberg (No. 2), the defendants appealed a preliminary injunction

which enjoined them from decertifying the plaintiff's authority to use aver-

sive therapy on autistic children in plaintiff's care. /d., citing Judge Roten-

berg Educ. Center v. Comm'r of the Dept. of Mental Retardation (No. /),

424 Mass. 430, 677 N.E.2d 127 (1997). While this appeal was still pending,

the trial court, after a thirteen-day trial on the merits, entered a final judg-

ment against the defendants, who appealed that ruling as well. Rotenberg

(No. 1), 424 Mass. at 432-434, 677 N.E. 2d at 131. After first affirming the

judgment against the defendants on the merits of the underlying controversy,

id. at 464-465, 677 N.E. 2d at 150, the Supreme Judicial Court, in the sec-

ond Rotenberg case relied upon by respondents here, dismissed the pending

appeal from the allowance of the preliminary injunction because it was

“moot.” Rotenberg (No. 2), 424 Mass. at 472 & n. 4, 677 N.E. 2d at 154

(rejecting, “[flor the reasons stated in [Rotenberg (No. 1)],” defendants’

contention that the preliminary injunction had been entered erroneously).

Rotenberg (2) plainly has no application to this case, where the trial

court dismissed the complaint as a direct result of the Supreme Judicial

Court’s ruling, which vacated the preliminary injunction petitioners’ had

obtained in the trial court, and which conclusively rejected the merits of the

Fourth Amendment claim that petitioners seek to bring to this Court for re-

view.

then denied petitioners’ motion for reconsideration. Resp. App.

at 25a-26a. Respondents believe that petitioners’ failure to pur-

sue an appeal from the judgment of dismissal renders the in-

stant petition moot. Opp. Pet. at 17.

It would be a curious rule of law that enabled a party which

had prevailed before a state’s highest court on a dispositive

question of federal law to insulate its victory from this Court’s

certiorari jurisdiction simply by securing a final judgment in the

trial court before the losing side had time to have its petition

considered. Nonetheless, in order to eliminate the procedural

impediment perceived by respondents, as soon as petitioners

received respondents’ opposition, they presented the Superior

Court with an emergency motion to vacate the final judgment

and stay proceedings pending this Court’s disposition of the

case. Supp. App. at 14s.a.-18s.a. After a hearing, the Superior

Court allowed the motion, while leaving the injunction dis-

solved, “in accordance with the Supreme Judicial Court’s deci-

sion, Landry v. Attorney General, 429 Mass. 336, 338 (1999),

and related rescript.” Supp. App. at 19s.a. Therefore, even as-

suming, solely for the sake of argument, that respondents’

“mootness” concerns had any basis to them at all, those con-

cerns have been fully addressed: There is a “live dispute” be-

tween the parties.

II. RESPONDENTS’ OPPOSITION UNDERSCORES THE NEED

FOR SUPREME COURT REVIEW: DIFFERING

RATIONALES HAVE BEEN USED BY THE LOWER

COURTS TO UPHOLD MANDATORY DNA SEIZURE

STATUTES, AND THE “SPECIAL NEEDS” ARGUMENT

ADVANCED BY RESPONDENTS HAS BEEN REJECTED

BY AT LEAST ONE CIRCUIT COURT.

On the merits, respondents’ opposition serves only to high-

light why this Court should grant certiorari. Without respond-

ing to petitioners’ argument that the constitutionality of DNA

seizure and dissemination statutes has become an issue of truly

national importance since Congress enacted the DNA Identifi-

cation Act in 1994, Cert. Pet. 23-27, respondents contend that

review should not be granted because there is no split among

the decided cases. Opp. Cert. 8-13. Although petitioners have

not suggested that there is a split, a reading of the cases cited by

respondents does not reveal any coherent or consistent rationale

to justify the result they have reached. Respondents acknow!-

edge that the courts are divided on the question of whether the

“special needs” doctrine is applicable to the question of

whether suspicionless DNA seizure statutes are reasonable un-

der the Fourth Amendment. Opp. Cert. 14; App. 13a. Courts

and state legislatures are likewise divided on the limits, if any,

on the government’s authority to make use of DNA after it has

been seized, analyzed, and “databanked.” App. 1 la-12a &n.8.

None of the appellate cases that have upheld DNA seizure stat-

utes offer a basis on which courts might draw any principled

Fourth Amendment distinction between the suspicionless DNA

testing of convicted criminals and the testing of any other class

of persons who might reasonably be said to have a reduced pri-

vacy expectation in their identity, or to be statistically more

likely to commit crimes than the population as a whole.

Respondents’ own reliance on the “special needs” doctrine,

Opp. Cert. 14-15, is particularly significant because this is an

issue on which there is substantial disagreement among the

federal circuit courts. Compare, Edmond v. Goldsmith, 183

F.3d 659, 664-665 (7th Cir. 1999) (Posner, C.J.) (striking down

suspicionless drug interdiction roadblock: because, after Chan-

dler, suspicionless search regime must involve “‘concerns other

than crime detection,”” the “purpose” of the regime is “critical

to its legality. The program must be a bona fide effort to im-

plement an authorized regulatory policy rather than a pretext

for a dragnet search for criminals” (quoting Chandler v. Miller,

520 U.S. 505, 313 [1997]) (emphasis added by the Seventh

Circuit), with Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999),

1999 WL 731599 (upholding DNA seizure statute under “spe-

cial needs” doctrine, while conceding that DNA “‘samples may

later be used for law enforcement purposes”).

In recommending the “special needs” doctrine as a separate

basis for upholding the act, respondents implicitly endorse peti-

tioners’ view, Cert. Pet. 21, that the record in this case will pre-

sent the Court with an opportunity to consider whether that

doctrine may validate a suspicionless search regime explicitly

concerned with “search[ing] for criminals.” Edmond v. Gold-

smith, supra. The petitions for certiorari in Rise v. Oregon, 59

F.3d 1556, cert. denied, 517 U.S. 1160 (1996), and Jones v.

Murray, 962 F.2d 302, cert. denied, 506 U.S. 977 (1992), were

denied before the national DNA data base existed, at a time

when many states had not even enacted such a statute, and

when it was not certain, as it is now, that law enforcement

would seek to make the “collection” of DNA from convicted

persons a national goal.

CONCLUSION

If it is to be “reasonable” under the Fourth Amendment for

the millions of men, women, and children in this country who

have been convicted of a crime to have their expectation of pri-

vacy in their genetic identity reduced to zero (for that is pre-

cisely the consequence of legitimizing a regime that mandates

mass DNA seizures without any quantum of individualized

suspicion), it must be because this Court has said so, and has

explained to them, and all of us, why. Accordingly, the petition

should be granted.

December 13, 1999

Respectfully submitted,

BENJAMIN H. KEEHN

Counsel of Record

COMMITTEE FOR PUBLIC

COUNSEL SERVICES

Public Defender Division

470 Atlantic Avenue

Boston, Massachusetts 02210

(617) 482-6212

JOHN REINSTEIN

AMERICAN CIVIL LIBERTIES

UNION OF MASSACHUSETTS

99 Chauncy Street, Suite 310

Boston, Massachusetts 02111

(617) 482-3170

TABLE OF CONTENTS

APPENDIX A

Respondents’ Motion for Expedited Issuance of

RUT cies icidubisieideesitiibadieitldandidlsthcesiiiladiocs ented seniues 1s.a.

APPENDIX B

Petitioners’ Opposition to Expedited Issuance of

the Rescript and Motion to Stay Issuance of

the Rescript Pending the Filing and

Disposition of Petition for Writ of Certiorari ........... 4s.a.

ATTACHMENT TO APPENDIX B

Memorandum and Order of the Single Justice

on Respondents’ Motion for a Stay of the

Preliminary Injunction Pending Appeal .................. 8s.a.

APPENDIX C

Notice of the Supreme Judicial Court’s

Allowance of Respondent’s Motion for |

Expedited Issuance of Rescript .............cccccceeceeseeees 12s.a. |

APPENDIX D

Petitioners’ Emergency Motion for Relief

from Judgment and for a Stay of Proceedings ........ 14s.a.

11S.a.

APPENDIX E

Order of the Supernor Court Allowing in

Part Petitioners’ Emergency Motion for

Relief from Judgment and for a Stay of

PID a iccsctcrscersetiensstorsicitesticronenieamonmmaiaal 19s.a.

APPENDIX F

Petitioners’ Notice of Waiver ..............ccccccssseeeceeeees 20s.a.

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH

NO. 07899

NO. 07916

)

DONALD E. LANDRY, et al., )

)

Plaintiffs-Appellees, )

)

v. )

)

SCOTT HARSHBARGER, ATTORNEY _ )

GENERAL, et al., )

)

Defendants-Appellants. )

)

MOTION FOR EXPEDITED ISSUANCE OF RESCRIPT

In accordance with Mass. R. App. P. 23, the defendants-

appellants in the above-captioned matters move for an order

that the rescript in these matters issue immediately. As

grounds for this motion, the defendants-appellants state as

follows.

1. On April 13, 1999, the Court issued a decision

concluding “that the preliminary injunction cannot be

justified on the grounds relied on by the (Superior Court]

judge... .” Landry, et al. v. Attorney General. et al., Nos.

2s.a.

SJC-07899 and 07916, slip. op. at 2 (April 13, 1999). The

Court ordered entry of the following order on the docket:

“The preliminary injunction entered in the Superior Court is

vacated... .” Id. at 27.

2. The rescript in Nos. SJC-07899 and 07916 is dated

April 13, 1999. In the ordinary course, the rescript would

issue twenty-eight days later, on May 11, 1999. See Mass.

R. App. P. 23.

3. While the preliminary injunction continues in effect,

the defendants suffer significant harm. The injunction

prevents the defendants from making any serious progress in

carrying out the Legislature’s mandate to compile the 10,000

DNA samples that will form the nucleus of the state DNA

database. The harm is irreparable because inmates,

probationers, and parolees required to submit DNA samples

are regularly released from the custody or supervision of the

Commonwealth.

4. To avoid further harm to the public interest, the

defendants request that the Court issue the rescript

immediately. Contemporaneously with this Motion, the

defendants have filed in the Superior Court a Motion for

Entry of Order Vacating Preliminary Injunction Pursuant to

Pursuant to Order of Supreme Judicial Court.

3s.a.

WHEREFORE, the defendants request that their motion

for expedited issuance of the rescript be allowed.

Respectfully submitted,

DEFENDANTS,

by their attorneys,

THOMAS F. REILLY

ATTORNEY GENERAL

/s/

Rosemary S. Gale, BBO #557731

Government Bureau

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200, ext. 2081

Date: April 14, 1999

4s.a.

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPREME JUDICIAL COURT

NOS. 07899, 07916

DONALD LANDRY & others

ATTORNEY GENERAL & others

PLAINTIFFS’ OPPOSITION TO EXPEDITED ISSUANCE

OF THE RESCRIPT «*. MOTION TO STAY ISSUANCE

OF THE RESCRIF | ENDING THE FILING AND

DISPOSITION OF PLAINTIFFS’ PETITION FOR

CERTIORARI

Now come the plaintiffs and oppose the government’s

motion to expedite issuance of the rescript. The grounds for

this motion are as follows.

1. In an opinion and order dated April 13, 1999, this

Court vacated the preliminary injunction entered by the

Superior Court and remanded the case to that court for

further proceedings consistent with its opinion. Landry v.

Attorney General, Nos. SJC 07899 and 07916, slip op. at 27

(April 13, 1999).

2. Pursuant to Mass. R.A.P. 23, “the rescript shall issue to

the lower court twenty-eight days after the date of the rescript

unless the time is shortened or enlarged by order.”

3. The government, relying exclusively on the claim that

any delay in the issuance of the rescript will cause it

—————~_m

5s.a.

“significant” and “irreparable” injury, seeks an order

directing the clerk to issue the rescript forthwith.

4. The government’s claims of irreparable injury are not

different than the claims that were considered, and rejected,

by a single justice of this Court (Marshall, J.) when the

government previously moved to stay the injunction pending

appeal. See Memorandum and Order of the Single Justice in

Landry & others v. Attorney General & others, No. SJ-98-

M0065 (January 5, 1999) (copy attached).

5. Considering only the balance of harms and not the

merits of the plaintiffs’ constitutional claim, the single

justice concluded that continuing the injunction pending

appeal would cause the government “no specific resulting

harm any different from any other stay of the implementation

of legislation pending the resolution of a constitutional

challenge to the legislation.” Id. at 3.

The plaintiffs move to stay the issuance of the rescript

pending the filing and disposition of a petition for writ of

certiorari by the United States Supreme Court. The grounds

for this motion are as follows.

1. The Court’s conclusion in this case that a DNA blood

search and seizure may be conducted without probable cause

represents a substantial departure from the decisions of the

Supreme Court in California v. Schmerber, 384 U.S. 757

(1966) and Winston v. Lee, 470 U.S. 753 (1985), and is

based on a mischaracterization of the purpose of the DNA

Seizure and Dissemination Act as “not to search for evidence

of acrime.” Slip op. at 15. In fact, as the Court acknowledges

elsewhere in its opinion, the Legislature intended the DNA

collected under the Act to be used as ““‘an integral part of the

investigation and prosecution of criminal offenses.” Slip op.

at 3 (quoting the Act). Since the purpose of the bodily

intrusions mandated by a DNA data bank statute is precisely

to search for DNA evidence to be used in the investigation

6s.a.

and prosecution of criminal offenses, Schmerber and

Winston are controlling as a matter of federal constitutional

law.

2. The Court’s decision in this case is also inconsistent

with the Supreme Court’s decisions in Chandler v. Miller,

520 U.S. 305 (1997), Vernonia School Dist. 47J v. Acton,

515 U.S. 646 (1995), and Skinner v. Railway Labor

Executives’ Assn., 489 U.S. 602 (1989), which establish that

bodily intrusions conducted without probable cause may be

counted as “reasonable” under the Fourth Amendment only

when the searches are motivated by “concerns other than

crime detection.” Chandler, supra.

3. For these reasons, and because the issues to be

presented in the plaintiffs, petition for certiorari have

national significance, the case is one that will present

substantial issues as to which certiorari is appropriate.

4. Furthermore, as the single justice concluded, if

enforcement of the Act is not enjoined pending appeal, “the

plaintiffs will be subject to the precise search for which they

have sought constitutional protection, and will be unable to

retrieve any of the DNA data that the Commonwealth may

have shared with any other law enforcement officers in the

interim.” Memorandum and Order of the Single Justice at 4.

5. In these circumstances, it is appropriate that issuance

of the rescript be stayed. Indeed, such relief is specifically

authorized in the federal courts pending the filing of a

petition for a writ of certiorari. See Fed. R.A.P. 41(d)(2)

(Court of Appeals’ mandate to be stayed for a period not to

exceed 90 days where party shows that certiorari petition

“would present a substantial question and that there is good

cause for a stay”).

Wherefore, the government’s motion for immediate

issuance of the rescript should be denied. In addition,

issuance of the rescript should be stayed pending the filing

oOo

7s.a.

and disposition of the plaintiffs, petition for a writ of

certiorari.

Respectfully submitted,

/s/

Benjamin H. Keehn

BBO #542006

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division

470 Atlantic Avenue

Boston, Massachusetts 02210

(617) 482-6212

/s/

John Reinstein

BBO #416120

AMERICAN CIVIL LIBERTIES UNION OF

MASSACHUSETTS

99 Chauncy Street

Suite 310

Boston, Massachusetts 02111

(617) 482-3170

Dated: April 22, 1999.

8s.a.

ATTACHMENT TO APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO. SJ-98-M0065

SJC-98-079 16

SJC-98-07899

DONALD E. LANDRY, et al.

SCOTT HARSHBARGER, ATTORNEY GENERAL, et al.

MEMORANDUM AND ORDER

This case came before me for hearing on the motion of the

defendants to stay a preliminary injunction issued by a judge

in the Superior Court on August 12, 1998. The injunction

prohibits, inter alia, the collection, analysis, and

dissemination of deoxyribonucleic acid (DNA) samples as

provided in the DNA Seizure and Dissemination Act, G. L.

c. 22E, §§ 1-15.' The defendants have appealed from that

The order of the judge in the Superior Court entered on August 12,

1998, provides as follows:

“Pending further Court order, the defendants are hereby

enjoined from enforcing the DNA Seizure and

Dissemination Act. The defendants will not participate

in the collection, analysis and/or dissemination of DNA

of the plaintiffs or of anyone subject to the provisions

of the Act. DNA samples already in the possession of

the Director of the State Crime Laboratory shall remain

Tintern

9s.a.

order, pursuant to G. L. c. 231, § 118, second paragraph. On

November 18, 1998, we granted the application of all parties

for direct appellate review. Landry. et al v. Attorney General,

et al, SJC-07899. On November 17, 1998, we granted direct

appellate review in a related case Landry. et al v. Attorney

General, et al, SJC07916.* The defendants now seek a stay of

the preliminary injunction entered by the Superior Court in

this case until this Court resolves the appeal.

The defendants argue that a stay is warranted because the

public interest is harmed by preventing the development and

implementation of the DNA database “as an important safety

tool.”” Defendants claim that, pending appeal, “crimes go

unsolved and recidivistic criminal activity undeterred,” and

that a continuation of the injunction “may result in the

permanent inability of the Commonwealth to collect samples

from convicted criminals whose Custody or supervision

expires during the pendency of the injunction.’ The plaintiffs

have opposed the motion alleging that they will suffer

substantial prejudice if the stay is granted. They argue that,

unless the stay remains in effect, their DNA will be collected,

analyzed, and disseminated to State and Federal law

enforcement agencies, with no guarantee that it can be

retrieved if the plaintiffs ultimately prevail. They further

point to the financial costs that they will be required to pay

for DNA testing and analysis as provided in G. L. c. 22E,

§ 4(b). Finally, the defendants argue that any further delay in

the implementation of the statute will cause no discernible

harm to the defendants.

sealed, impounded, segregated and separately stored

pending further notice of the Court.”

* The Commonwealth has requested that the two matters be

consolidated. No action has been taken on that request.

10s.a.

Looking only at the issue of the balance of the harms, ry

deny the defendants’ motion for a stay of the preliminary

injunction. I recognize that the stay prevents the

implementation of the statute enacted by the Legislature,

G. L. c. 22E, §§ 1-15. However, the defendants point to no

specific resulting harm any different from any other stay of

the implementation of legislation pending the resolution of a

constitutional challenge to the legislation. As the plaintiffs

have pointed out, the Legislature was fully aware of the

pending constitutional challenge when it placed conditions

on the appropriation of public funds for the implementation

of the statute. See St. 1998, c. 194, § 2, line item 8100-0016.

In addition, if the plaintiffs do not prevail on appeal, nothing

precludes the Commonwealth from obtaining DNA samples

from those individuals who are subject to the statute, after

they are released from custody, parole or probation. The

Commonwealth makes no claim that it will be unable to

obtain DNA samples from those individuals at some point in

the future. Nor have they made any claim that the

Commonwealth will be required to expend any significant

funds in undertaking such an endeavor. On the other hand, if

the plaintiffs prevail, unless the stay remains in effect, the

plaintiffs will be subject to the precise search for which they

have sought constitutional protection, and will be unable to

retrieve any of the DNA data that the Commonwealth may

have shared with any other law enforcement officers in the

interim. That the DNA samples collected may be destroyed

will not be protection from the dissemination of DNA data

that already has occurred. In summary, I am not persuaded

> Because I conclude that the balance of harms tips toward the

plaintiffs, [ refrain from any consideration of the likelihood of success on

the merits, and express no view with respect to the success of the merits.

, ;

Lls.a.

that the public interest will be irreparably harmed, while the

harm to the plaintiffs is real and irremediable.

In the alternative, the defendants have requested that

consideration of their appeal be expedited. That request is

reasonable and in any event, is not opposed by the plaintiffs.

Accordingly, this matter shall be placed on the March list for

an expedited hearing by the Full Court. Expedited disposition

of the case will serve to minimize any interim harm, if it

occurs at all, that the defendants allege in support of their

motion to stay. It is ordered that the parties, after

consultation with the Clerk of the Full Court, agree to a

briefing schedule of this case (SJC-07899) and the related

case (SJC-07916) that is consistent with both matters being

heard in March by the Full Court.

/s/

Margaret H. Marshall

Associate Justice

Entered: January 5, 1999

12s.a.

APPENDIX C

Supreme Judicial Court for

the Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

APR 30 1999

Benjamin H. Keehn, Esquire

Committee for Public Counsel Services Appeals Unit

470 Atlantic Avenue, Suite 700 Boston, MA 02210

RE: Docket No. SJC-07899

DONALD E. LANDRY & others

VS.

ATTORNEY GENERAL & others

NOTICE OF DOCKET ENTRY

Please take note that on April 15, 1999, the following

entry was made on the docket of the above-referenced case:

MOTION to expedite issuance of Rescript, filed for Attorney

General by Rosemary S. Gale, A.A.G. under advisement.

jmk. Notice sent. April 28, 1999, Motion to Expedite

13s.a.

Issuance of Rescript ALLOWED. By the Court. Notice

sent.

Jean M. Kennett, Clerk

Dated: April 28, 1999

To: John Reinstein, Esquire

Benjamin H. Keehn, Esquire

Rosemary S. Gale, A.A.G.

Sandra F. Bloomenthal, Esquire Inst. for Science,

Law & Technol

Atty. Lori B. Andrews

John F. Palmer, Esquire

Atty. Tracey Maclin

Toni G. Wolfman, Esquire

Mary Prosser, Esquire

Amy R. Goldstein, Esquire

Josephine H. Ross, Esquire

Carolyn Baker Ringel, Esquire

Wendy-Jean Murphy, Esquire

Middlesex Superior Court Dept.

Jerome Napolitano

Gary King

14s.a.

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

NO. MICV98-462

DONALD E. LANDRY & others,

Plaintiffs

ATTORNEY GENERAL & others,

Defendants

PLAINTIFFS’ EMERGENCY MOTION FOR RELIEF

FROM JUDGMENT AND FOR A STAY OF

PROCEEDINGS

The plaintiffs in the above-entitled action hereby move

the Court pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828

(1974), and Superior Court Rule 9A(e)(1), to enter an order

vacating the final judgment for the defendants entered on

May 26, 1999, and staying further proceedings in this action

pending final disposition of the case by the Supreme Court of

the United States. The grounds for this motion are as

follows:

1. On August 18, 1998, the Superior Court entered a

preliminary injunction in this case enjoining enforcement of

St. 1997, c. 106, and holding that mandatory DNA testing

under the statute violates the Fourth Amendment to the

United States Constitution and Art. 14 of the Declaration of

a

15s.a.

Rights. The defendants appealed. The Supreme Judicial

Court granted direct appellate review. On April 13, 1999, the

Supreme Judicial Court reversed. The Court vacated the

preliminary injunction and remanded the case to the Superior

Court for further proceedings consistent with its opinion.

Landry v. Attorney General, 429 Mass. 336 (1999).

2. On May 26, 1999, this Court dismissed the complaint

and entered judgment for the defendants. Plaintiffs’ motion

to reconsider the judgment and order was denied on July 9,

1999.

3. On August 20, 1999, the plaintiffs filed a petition for a

writ of certiorari in the United States Supreme Court to

review the decision of the Supreme Judicial Court in this

case. Landry v. Reilly, Petition for Certiorari No. 99-359. (A

copy of the petition is submitted with this motion.)

4. Although the defendants initially waived their right to

file an opposition to the plaintiffs’ petition, the Supreme

Court, on October 1, 1999, ordered them to do so (A. 1).

5. On December 2, 1999, the defendants filed a Brief in

Opposition in the Supreme Court in which they have argued,

inter alia, that the action is moot because final judgment has

entered and the time for appeal to the Massachusetts Appeals

Court has expired (A. 2-3).

6. In order to secure a judgment susceptible to review by

the Supreme Court, the Attorney General argues that the

plaintiffs should be required to pursue an appeal from this

Court’s final judgment though the Massachusetts appellate

courts raising the same issues which were heard and

determined by the Supreme Judicial Court.

7. The rules of the Supreme Court require that plaintiffs,

reply to the defendants’ brief in opposition to certiorari be

filed on or before December 12, 1999, in order to ensure

consideration of the reply brief before disposition of the

petition by the Supreme Court.

eC

16s.a.

8. The procedure recommended by the Attorney General

is a waste of time and judicial resources. As a condition of

obtaining review in the Supreme Court, it would require a

second appeal, entirely pro forma, in all cases in which (a) an

appeal from the denial or allowance of a preliminary

injunction is resolved by reaching the merits of the

underlying legal claim, and (b) final judgment enters in the

trial court based on the judgment of the state appellate court.

9. The procedure is also manifestly unfair to the plaintiffs

and is inconsistent with the public’s interest in having

important issues conclusively resolved in an expeditious

manner. Should certiorari be denied on the present record, in

which mootness has been advanced [as a grounds] for denial,

it is certain that other persons subject to the statute would

bring separate actions challenging its constitutionality so that

the merits of the issue could be presented to the Supreme

Court. Such a course would significantly delay final

resolution of the important issues presented by the petition.

For the foregoing reasons, the plaintiffs request that this

court:

A. Treat this as an emergency motion pursuant to Superior

Court Rule 9A(e)(1);

B. Enter an order pursuant to Mass.R.Civ.P. 60(b)

vacating the judgment entered on May 26, 1999;

17s.a.

C. Stay further proceedings pending final disposition of

the case by the Supreme Court of the United States.

Respectfully submitted,

/s/

Benjamin H. Keehn

BBO #542006

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division

470 Atlantic Avenue

Boston, Massachusetts 02210 (617) 482-6212

On behalf of Miriam Cartagena,

John Hallett, Albert Troisi, Vincent

Gallello, and Geoffrey Pironti

/s/

John Reinstein

BBO #416120

AMERICAN CIVIL LIBERTIES UNION OF

MASSACHUSETTS

99 Chauncy Street

Suite 310

Boston, Massachusetts 0211]

(617) 482-3170

On behalf of Donald E. Landry and

William Pistorino

Dated: December 3, 1999.

18s.a.

CERTIFICATE OF SERVICE AND NOTICE

I, John Reinstein, certify that on December 3, 1999, I

served a copy of the foregoing “Plaintiffs’ Emergency

Motion for Relief from Judgment and for a Stay of

Proceedings,” by “faxing” it and mailing it, first-class and

postage prepaid, to Assistant Attorney General Catherine E.

Sullivan, Office of the Attorney General, One Ashburton

Place, Boston, MA 02108. I further certify that counsel for

the plaintiffs in this action notified AAG Sullivan that, at two

o’clock P.M. on Friday, December 3, 1999, the plaintiffs

would request that the foregoing motion be allowed or that a

hearing be promptly scheduled.

/s/

John Reinstein

BBO #416120

AMERICAN CIVIL LIBERTIES UNION OF

MASSACHUSETTS

99 Chauncy Street

Suite 310

Boston, Massachusetts 02111

(617) 482-3170

19s.a.

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

CIVIL NO. 98-0462

DONALD E. LANDRY, ET AL.,

Plaintiffs

Oo

6

fw

v2)

V.

ATTORNEY GENERAL, ET AL.,

Defendants

After hearing, it is Ordered, that Plaintiffs’ Emergency

Motion for Relief from Judgment and for a Stay of

Proceedings be, and the same hereby is, Allowed in part: and

it is

Further Ordered, that the Judgment entered May 26, 1999

dismissing the Complaint be, and the same hereby is, vacated

as improvidently entered, the preliminary injunction entered

August 18, 1998 nonetheless remaining dissolved, in

accordance with the Supreme Judicial Court’s decision,

Landry v. Attorney General, 429 Mass. 336, 338 (1999), and

related rescript.

/s/

Hiller B.Zobel,

Associate Justice,

Superior Court

Dated: December 3, 1999

| 20s.a.

APPENDIX F

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

NO. MICV98-462

DONALD E. LANDRY & others,

Plaintiffs

v.

ATTORNEY GENERAL & others,

Defendants

PLAINTIFFS’ NOTICE OF WAIVER

In conformity with their argument in support of their

“Emergency Motion for Relief from Judgment and for a Stay

of Proceedings” (see attached copy of letter to counsel for the

defendants), which was heard and allowed in part on

December 3, 1999 (Zobel, J.), the plaintiffs in the above-

captioned matter hereby waive all claims in their amended

complaint other than the Fourth Amendment claim that was

21s.a.

the subject of the Supreme Judicial Court’s decision in

Landry v. Attorney General, 429 Mass. 336 (1999).

Respectfully submitted,

/s/

Benjamin H. Keehn

BBO #542006

COMMITTEE FOR PUBLIC COUNSEL

SERVICES

Public Defender Division

470 Atlantic Avenue

Boston, Massachusetts 02210

(617) 482-6212

On behalf of Miriam Cartagena,

John Hallett, Albert Troisi, Vincent

Gallello, and Geoffrey Pironti

/s/

John Reinstein

BBO #416120

AMERICAN CIVIL LIBERTIES

UNION OF MASSACHUSETTS

99 Chauncy Street

Suite 310

Boston, Massachusetts 02111

(617) 482-3170

On behalf of Donald E. Landry and

William Pistorino

Dated: December 13, 1999.

22s.a.

December 13, 1999

Cathleen E. Sullivan

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

Re: Landry & others v. Attorney General & others

Middlesex County No. MICV98-462A

Plaintiffs’ Emergency Motion for Relief from

Judgment and for a Stay of Proceedings

Dear AAG Sullivan:

At the December 3, 1999, hearing before Judge Zobel on

the above-captioned motion, we were surprised to hear that

the government was concerned that allowance of the motion

might somehow enable the plaintiffs to continue litigating

claims in their amended complaint that do not pertain to the

Fourth Amendment issue which was the subject of the SJC’s

decision in Landry, and which is the subject of the plaintiffs’

petition for a writ of certiorari. As we represented to Judge

Zobel at the hearing, the purpose of the motion is solely to

address the contention raised by the government in its brief

in Opposition to that petition that the Superior Court’s entry

of a final judgment of dismissal had “mooted” the case

entirely, so as to deprive the Supreme Court of its Article III

jurisdiction to consider even the Fourth Amendment issue

that was resolved by the Supreme Judicial Court in the

government’s favor. Although we believe the “mootness”

argument to be wrong as a matter of law for reasons that we

will present to the Supreme Court in our reply to the

government’s opposition to certiorari, vacating the order of

23s.a.

dismissal seemed to us the simplest way to remove the

procedural bar that the government claimed to perceive. It is

not our intent, now or at any time in the future, to assert any

claim other than the Fourth Amendment claim, and, on

behalf of the plaintiffs, we hereby waive all claims raised in

the amended complaint other than the Fourth Amendment

claim. We further represent that, if certiorari is denied, we

will assent to entry of a final judgment of dismissal as to the

entire amended complaint.

Sincerely,

/s/

Benjamin H. Keehn

/s/

John Reinstein

BHK & JR: lf