Opposition Brief — O'Callaghanhan v. Shirazi (No. 06-1464)

(2 FILED

No. 06-1464 JUN § - 2007

CLERK

SUPREME CQURT, U.S.

an The

Supreme Court of the Gnited States

.

ALISON E. CLAPP O’CALLAGHAN

and

DANIEL J. O° CALLAGHAN,

Petitioners,

v.

HOMAYOUN SHIRAZI, M.D.; SEAN M. DUNPHY;

DAVID G. SACKS; GAIL L. PERLMAN; BULKLEY,

RICHARDSON & GELINAS, LLP; PETER B. IVES,

REVEREND; THE FIRST CHURCHES OF

NORTHAMPTON; CORASH, ZURN &

BELSKY, LLP; SUSAN C. SCHRODER; and

MARY LYNN CARROLL, ESQ.,

Respondents.

s

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The First Circuit

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

HARVEY WEINER

Counsel of Record

JOHN J. O’CONNOR

PEABODY & ARNOLD LLP

30 Rowes Wharf

Boston, Massachusetts 02110

(617) 951-2100

Attorneys for Honorable Gail L. Perlman, individually

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

THOMAS A. BARNICO

OFFICE OF THE ATTORNEY GENERAL

One Ashburton Place

Boston, MA 02108

(617) 727-2200, x2086

Attorney for Honorable Gail Perlman,

Honorable David Sacks, Honorable Sean Dunphy,

Homayoun Shirazi, M.D. and Mary Lynn Carroll

KATHERINE A. ROBERTSON

BULKLEY, RICHARDSON AND GELINAS, LLP

1500 Main Street, Suite 2700

Post Office Box 15507

Springfield, MA 01115

(413) 272-6215

Attorney for Bulkley, Richardson and Gelinas, LLP

JOHN P. PUCCI

FIERST & Pucci LLP

64 Gothic Street

Northampton, MA 01060

(413) 584-8067

Attorney for Peter B. Ives and

The First Churches of Northampton

WILLIAM C. NEWMAN

LESSER, NEWMAN, SOUWEINE & NASSER

39 Main Street

Northampton, MA 01060

(413) 584-7331

Attorney for Corash, Zurn & Belsky, LLP

SUSAN SACHS

MORRISON, MAHONEY LLP

1500 Main Street, Suite 2400

Springfield, MA 01115-0001

(413) 737-4373

Attorney for Homayoun Shirazi, M.D.

SUSAN SCHRODER, Pro Se

90 Maggie Bean Drive

Conway, MA 01341

(413) 369-4963

Mary LYNN CARROLL, ESQ., Pro Se

HAMPSHIRE PROBATE COURT

33 King Street

Northampton, MA 01060

COUNTER-STATEMENT OF THE

QUESTION PRESENTED FOR REVIEW

The Petitioners’ statement of issues is incorrect. The

question presented by the petition is as follows: Whether

the Courts below properly exercised their discretion in

denying the Petitioners’ Rule 60(b) motion to vacate a six-

year-old judgment where: (1) there had been no significant

change of law or circumstances; (2) the Petitioners were

seeking federal review and nullification of a state probate

court judgment; (3) the requested relief would have un- ,

fairly prejudiced the Respondents; and (4) the state courts,

District Court, and First Circuit had repeatedly considered

and rejected as meritless the same essential arguments

years before?

il

STATEMENT REGARDING THE PARTIES

All parties to the proceeding are listed in the case

caption.

ili

STATEMENT PURSUANT TO RULE 29.6

No publicly held company owns 10% or more of the

First Churches of Northampton.

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF THE QUESTION PRE-

SENTED FOR REVIEW

STATEMENT REGARDING THE PARTIES

STATEMENT PURSUANT TO RULE 29.6 .............000+0

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF THE CASE

I. THE UNDERLYING MASSACHUSETTS PRO-

BATE PROCEEDINGS

I]. THE FEDERAL ACTION

REASONS FOR DENYING A WRIT OF CERTIO-

I. THE LOWER COURTS PROPERLY APPLIED

RULE 60(b)

A. The Motion Was Untimely

B. There Are No Extraordinary Circum-

C. The Requested Relief Would Unfairly

Prejudice The Respondents

D. The Judgment Is Not Void

THE PETITIONERS’ CLAIMS ARE SUBJECT

TO DISMISSAL AND ARE MERITLESS IN

TABLE OF CONTENTS -— Continued

B. The District Court Properly Abstained

C. Pursuant to the Rooker-Feldman Doctrine,

the District Court Lacked Subject Matter

Jurisdiction

The Doctrine Of Judicial And Quasi-

Judicial Immunity Also Bars The Petition-

ers’ Claims

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

Ackermann v. United States, 340 U.S. 193 (1950).........064 9

Agostini v. Felton, 521 U.S. 203 (1997)......cesesserseeseerererees 9

Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.

BOIS. ccscccheccsvnsbinecsesinapiunitcdnatibinnsimnginimniniaiscsstdammamid 9

Baldwin County Welcome Center v. Brown, 466 U.S.

BOT CIBBED ccccocnvevsccvescceccussoccecocerecessvoverevesesacervspvenscctececese 16

Bettencourt v. Board of Reg. in Medicine, 904 F.2d

TTS Chat Che, TOD) vccscosvvccecsusessccscescssosevevessessovoseepenees 17,18

Blixt v. Blixt, 385 Mass. 555 (2002)........cccseereereeeeesererees 18

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871) ........00+. 23

Briscoe v. LaHue, 460 U.S. 325 (1983) .......ccccccscseseseeeereees 24

Brooks v. New Hampshire Supreme Court, 80 F.3d

GSB (1st Cle. TODS) eeccnocecsecececsevecnsseseoncvesecevserevesecseceuscenes 17

Browder v. Director, Dept. of Corrections of Illinois,

SBE UTD, BHT COI .ncccscssnsvstcissnrntninneciinintsicansveneiveniviian 9

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)........ssseee 24

Butz v. Economou, 438 U.S. 478 (1978).........cccceeceeeeeeeeeees 24

Chicot County Drainage Dist. v. Baxter State Bank,

SOS UD. B71 (RDGD) .ncceicccccccccscovesssctoncecsctccnvsesseccensensesens 14

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .....-.esseeveee 17

Cleavinger v. Saxner, 474 U.S. 193 (1985)......ceesseeeerrees 23

District of Columbia Court of Appeals v. Feldman,

460 UB. 462 (19GB) ..crvcccvccvegseveccsesscescscoscrscssnsssscsess passim

Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544

UB. BBD (BOOB) ceccvvccvecnesorencesscessonsonncenncenen 8, 11, 13, 19, 20

TABLE OF AUTHORITIES — Continued

Page

Federacion de Maestros de PR. v. Junta de

Relaciones del Trabajo de P.R., 410 F.3d 17 (1st

Cir. 2005)

Forrester v. White, 484 U.S. 219 (1988)

Gibson v. Berryhill, 411 U.S. 564 (1972)

Gonzalez v. Crosby, 545 U.S. 524 (2005)

Guardianship of Pollard, 54 Mass. App. Ct. 318,

rev. denied, 437 Mass. 1103 (2002) 4, 13, 16, 18, 22

Hemon v. Office of Public Guardian, 878 F.2d 13

(1st Cir. 1989)

Hicks v. Miranda, 422 U.S. 332 (1975)

Howlett v. Rose, 496 U.S. 356 (1990)

Imbler v. Pachtman, 424 U.S, 409 (1976).......cccccccceeeeeseoes 24

In the Matter of Moe, 385 Mass. 555 (1982)

Johnson v. DeGrandy, 512 U.S. 997 (1994)

Juidice v. Vail, 4380 U.S. 327 (1977)

Klapprott v. United States, 335 U.S. 601 (1949)

Kugler v. Helfant, 421 U.S. 117 (1975)

Liljeberg v. Health Serv. Acquisition Corp., 486 U.S.

847 (1988)

Marshall v. Marshall, 126 S. Ct. 1735 (2006)

Middlesex County Ethics Comm. v. Garden State

Bar Assn., 457 U.S. 423 (1982)

Mills v. Green, 159 U.S. 651 (1895)

Newman v. Commonwealth of Massachusetts, 115

F.R.D. 344 (D. Mass. 1987)

TABLE OF AUTHORITIES — Continued

Perez v. Ledesma, 401 U.S. 82 (1971)

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

(1995)

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)......passim

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

367 (1992)

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)

Smith v. Phillips, 455 U.S. 209 (1982)

State Resources Corp. v. The Architectural Team,

Inc., 433 F.3d 73 (1st Cir. 2005)

Stump v. Sparkman, 435 U.S. 349 (1978)

United States v. Boch Oldsmobile, Inc., 909 F.2d

657 (Ist Cir. 1990)

United States v. Morgan, 313 U.S. 409 (1941)

Withrow v. Larkin, 421 U.S. 35 (1974)

Worcester County Trust Co. v. Riley, 302 U.S. 292

(1937)

Younger v. Harris, 401 U.S. 37 (1971)

STATUTES, RULES, AND OTHER AUTHORITIES

42 U.S.C. § 1983

G.L. c. 201 § 1

Fed. R. Civ. P. 8

Fed. R. Civ. P. 15

TABLE OF AUTHORITIES — Continued

Page

PE ti HA Ti OD ecnnasebiteneiecniessictsenincunssudaenantntstbieiansnineiuntinten 6

oR Re Sf en cieilepaaenitaaiiiuidtisighin passim

C. Wright, A. Miller & E. Cooper, Federal Practice

Gnd Procedure $ 4256 (1907S) nccccoccevccesvesccscovccescccscoescovees 18

E. Chemerinsky, Federal Jurisdiction, 423 (2d ed.

INTRODUCTION

The “pro se” Petitioners are New York City attorneys

with 60 years combined legal experience. In 1999, un-

happy with case-specific rulings in a Massachusetts

Probate and Family Court (“Probate Court”) guardianship

proceeding that they had commenced, the Petitioners filed

suit in Federal District Court against ten parties: multiple

state judges, judicially appointed professionals, Probate

Court employees, a local minister and church, and others

associated with the state proceedings. The Petitioners’

essential allegation was that the defendants/respondents

(“Respondents”) all were conspiring to subvert the pending

guardianship proceedings and frustrate the Petitioners’

efforts to have the Petitioner Alison O’Callaghan ap-

pointed co-guardian of a distant, elderly, wealthy relative.

The Petitioners asked the District Court to issue an

injunction and supervise the Massachusetts Probate and

Family Court. The Respondents filed oppositions and

motions to dismiss.

The District Court properly declined to enjoin the

guardianship matter. A trial in the Probate Court followed.

The Petitioners called only one witness: a court-appointed

guardian ad litem who, in reliance on the findings of a

court-appointed physician, her own observations, and

other evidence had concluded that no guardianship was

necessary. Her testimony was not supportive of the re-

quest for a guardianship. The Probate Court denied and

dismissed the guardianship petition in June 1999. The

Petitioners appealed.

Thereafter in the federal action, the District Court

granted the Respondents’ motions and dismissed the action

in its entirety. Noting that the Petitioners’ submissions

2

were “compendious, confused, and confusing,” the District

Court held that, under the Rooker-Feldman doctrine, it

lacked subject matter jurisdiction, and that it would

abstain in any event. The Petitioners appealed. Before the

Respondents had even filed their brief, the First Circuit on

May 3, 2000 issued an opinion summarily affirming. Since

then, the Probate Court’s dismissal of the guardianship

petition has been affirmed by the Massachusetts Appeals

Court, the subject of the guardianship proceeding has

died, and her estate has been fully probated, distributed,

and closed.

In 2005, six years after the District Court’s dismissal,

the Petitioners resurfaced and filed a motion pursuant to

Fed. R. Civ. P. 60(b) seeking relief from the 1999 judgment.

The ostensible basis of the motion was a new decision by

this Court, but the Petitioners’ essential argument was not

new: the District Court’s Rooker-Feldman analysis was

wrong initially and remained wrong for the same reasons.

The District Court denied the Petitioners’ motion. The

Petitioners appealed, and the First Circuit again affirmed.

The lower orders and judgments unquestionably were

correct. There is no need for review by this Court.

+

3

STATEMENT OF THE CASE’

THE UNDERLYING MASSACHUSETTS PRO-

BATE PROCEEDINGS

1. In March 1998, the Petitioners filed a guardian-

ship petition in the Hampshire County Division of the

Massachusetts Probate and Family Court. The Petitioners

requested that a guardianship be created for proposed

ward Hortense Clapp Pollard (“Pollard”). The Petitioner

Alison E. Clapp O’Callaghan claimed to be an heir of and

second cousin to Pollard. The Petitioners requested that

Alison O’Callaghan and Kenneth B. Bowen be appointed

as Pollard’s guardians, on the ground that Pollard suffered

from mental illness. Pollard objected to the petition,

alleging good health and full capacity.

2. At the time, Pollard was in her nineties and a

wealthy woman with substantial holdings, including at

least three parcels of real property. Pollard resided in

Northampton, Massachusetts, where she was under the

care of home health-care workers. The Petitioners are

attorneys who have lived in New York City (approximately

161 miles from Northampton) for many years.

3. After the commencement of the Petitioners’ guardi-

anship proceedings, with the assent of the Petitioners and

Pollard, the Probate Court appointed as guardian ad litem

the Respondent Judge Gail Perlman, who was then a

Northampton-based attorney with twenty years probate

experience. The Probate Court ordered Perlman to conduct

an investigation and to submit a report concerning the

* The following statements of fact are based on the judicial filings

and other materials that comprised the record before the District Court

and the First Circuit.

4

pending guardianship petition. The Court also appointed

the Respondent Dr. Homayoun Shirazi to examine Pollard

as to her mental status and competency. Pursuant to the

Probate Court’s order, Perlman met with Pollard,

O’Callaghan, and others with information bearing on the

petition. For his part, Dr. Shirazi examined Pollard and

found her competent. .

4. On or about May 28, 1998, Perlman filed her

report with the Probate Court. In the report, Perlman

noted Dr. Shirazi’s finding that Pollard was not mentally

ill and did not require guardianship. Based on this finding,

Perlman made a number of recommendations to the

Probate Court as to steps to be taken to protect Pollard’s

interests short of creating a guardianship. Dr. Shirazi also

submitted a report discussing his findings.

5. On September 28, 1998, Perlman was sworn in as

a justice of the Massachusetts Probate and Family Court.

Other than as a testifying witness in the guardianship

trial, she had no further involvement with the guardian-

ship proceeding.

6. The Probate Court trial on the guardianship

petition took place on June 1, 1999. The Petitioners called

only one witness — Judge Perlman — whose testimony was

adverse to the Petitioners’ position. They rested the same

day. The Probate Court issued detailed findings of fact and

conclusions of law, and ruled against the Petitioners. The

Court dismissed the guardianship petition on June 25,

1999. The Petitioners appealed, the Appeals Court af-

firmed, and the Supreme Judicial Court denied further

review. See Guardianship of Pollard, 54 Mass. App. Ct.

318, 322-324, rev. denied, 437 Mass. 1103 (2002).

Il. THE FEDERAL ACTION

1. On April 29, 1999, about five weeks before the

Probate Court trial, the Petitioners commenced the in-

stant Federal action against virtually everyone who has

had any connection with the Probate Court guardianship

proceeding or underlying events, including three sitting

judges and an assistant register of probate. The Petition-

ers sought injunctive and declaratory relief and, as against

some defendants, damages.

2. The Petitioners vaguely alleged that, after she

became a judge of the Probate and Family Court, Judge

Perlman communicated with other judges on the Probate

Court who were involved in the guardianship proceeding.

The Petitioners implied that such communications con-

cerned the guardianship proceedings, but offered no

evidence in support of that suggestion and no evidence

concerning the substance of any such communications.”

3. For relief, the Petitioners requested that Judge

Perlman’s May 28, 1998 Report and Recommendation be

excised from the Probate Court record, and that Judge

Perlman be disqualified. They sought a “declaration” that

the “Judicial Defendants” violated the Petitioners’ unspeci-

fied due process rights. The Petitioners also sought an

injunction directing the course of the Probate Court

proceeding and trial.

4. On May 27, 1999, the District Court held a hear-

ing on the Petitioners’ request for an injunction. During

* The Petitioners had the opportunity to conduct Judge Perlman’s

deposition, but never did so. When they called Judge Perlman as a

witness at trial, the Petitioners did not ask about these alleged

communications. There was no evidence of improper communications.

6

the hearing, the Court expressed doubt as to the existence of

federal jurisdiction, and the petitioner Daniel O’Callaghan

repeatedly conceded that he also had doubts about the

Court’s jurisdiction. From the bench, the Court denied the

injunction and ordered that motions to dismiss be filed.

The Respondents all moved to dismiss.

5. On June 21, 1999, the Petitioners filed their

Amended Complaint. The Amended Complaint added

eighty-six new allegations and specifically criticized the

Probate Court’s conduct of the earlier (June 1) guardian-

ship trial. The Respondents renewed their motions to

dismiss.

6. The Petitioners also filed a variety of motions on

procedural and collateral matters. In relation to these

filings, on July 7, 1999 the District Court denied the

Petitioners’ motion under Rule 15 to amend their com-

plaint as to Judge Perlman and Susan Schroder. On

August 24, 1999 the Court denied the Petitioners’ motion

for leave to conduct a medical exam pursuant to Rule 35.

7. In a well-reasoned opinion dated December 22,

1999 (six months after the Probate Court’s final decree),

the District Court granted the motions to dismiss. Citing

the Rooker-Feldman doctrine, the District Court found the

action to be “nothing other than a collateral attack upon

interlocutory orders and a final judgment in a state court

guardianship proceeding.” The Court also noted that, in

any event, abstention was appropriate because the state

proceedings were presumptively adequate and involved

A

probate issues of particular concern to Massachusetts.

(App. 2a-3a)"

8. On December 29, 1999 the District Court denied

as moot the Petitioners’ motion for expedited relief. On

January 13, 2000 the Court denied the Petitioners’ mo-

tions for recusal and for discovery pending appeal, as both

requests were made after the case was dismissed. On

February 8, 2000, the Court denied the Petitioners’ mo-

tions to reconsider, for the posting of a bond by the Re-

spondents, and (again) for discovery pending appeal. On

the same date the Court also deferred to the First Circuit

the Petitioners’ motion to disqualify counsel for Judge

Perlman, and granted the Respondents’ motion for an

order requiring that the Petitioners post an appeal bond.

9. The Petitioners appealed. The First Circuit

summarily affirmed before the Respondents had filed their

brief. O’Callaghan v. Shirazi, 215 F.3d 1312 (1st Cir.

2000). The Court affirmed the District Court’s orders as to

appeal bonds and recusal of the District Judge. The Court

ruled that the following orders/pending motions by the

Petitioners were moot: (1) for discovery pending appeal; (2)

for an injunction pending appeal; (3) for an expedited

appeal; and (4) for retention of certain <ppendices. The

Court also denied the Petitioners’ motion to disqualify

Judge Perlman’s counsel. The Petitioners did not request a

writ of certiorari. (App. 5a-8a)

* Citations to the Appendix included in the Petition For Writ of

Certiorari appear as: (App. [page]). Citations to the Petition appear as:

(Pet. for Cert. at [page]). Citations to the Petitioners’ 2006 First Circuit

brief appear as: (Pet. First Cir. br. at [page]).

8

10. Pollard died on August 7, 2002. Her estate has

been probated, distributed, and closed.

11. On October 26, 2005, following issuance by this

Court of the decision in Exxon Mobil Corp. v. Saudi Basic

Ind. Corp., 544 U.S. 280 (2005), the Petitioners filed a

motion for relief from judgment pursuant to Rule 60(b).

The Respondents filed a detailed opposition with exhibits.

12. The District Court denied the motion on Decem-

ber 29, 2005, finding that the Petitioners had failed to

show good cause to revive the matter. The Petitioners

appealed. The First Circuit affirmed. (App. 1la-13a)

e

REASONS FOR DENYING A

WRIT OF CERTIORARI

The Petitioners have failed te identify any reason — let

alone a compelling reason — why review by this Court is in

order. They do not allege the existence of a circuit split or

a federal/state conflict, or that the First Circuit decision

clashes with decisions of this Court. Nor do they allege

that there is some open issue that should be resolved.

Rather, the Petitioners have simply recycled the same

“confused and confusing” arguments (App. 2a) that they

have previously presented over and over to the Massachu-

setts state courts, the District Court, and the First Circuit.

For the following reasons, these arguments merit no

further consideration.

9

I. THE LOWER COURTS PROPERLY APPLIED

RULE 60(b).

Rule 60(b) permits District Courts to vacate judg-

ments in limited circumstances whenever necessary to

accomplish justice. Klapprott v. United States, 335 U.S.

601, 614-615 (1949). The movant’s burden is to show

“extraordinary circumstances” justifying relief. Gonzalez v.

Crosby, 545 U.S. 524, 535 (2005) (citing Ackermann v.

United States, 340 U.S. 193, 199 (1950) and Liljeberg v.

Health Serv. Acquisition Corp., 486 U.S. 847, 864, 873

(1988)). Whether to grant relief pursuant to Rule 60(b) is

committed to the sound discretion of the District Court.

Browder v. Director, Dept. of Correc. of Ill., 484 U.S. 257,

263 n.7 (1998); Agostini v. Felton, 521 U.S. 203, 238 (1997).

An order denying such a motion will not be reversed in the

absence of an abuse of discretion. Anderson v. Cryovac,

Inc., 862 F.2d 910, 923 (1st Cir. 1988). The denial of a rule

60(b) motion is appealable, but only the order of denial is

before the Court, not the underlying judgment. Appellate

review is “limited and deferential.” Gonzalez, 545 U.S. at

535; Browder, 434 U.S. 257 at 263 n.7.

The District Court and First Circuit decisions fall

squarely within these general principles. Both Courts

properly focused only on the order of denial. (E.g., App.

1lla-13a) Further, in affirming the District Court’s denial,

the First Circuit acknowledged that the Petitioners were

required to show extraordinary circumstances. (App. lla)

The Court also acknowledged that an abuse of discretion

standard applied. (App. lla-12a) The Court’s analysis

flowed from these core principles, and was fully justified

on the following grounds.

10

A. The Motion Was Untimely.

Rule 60(b)(1)-(3), which the Petitioners relied on in

part, requires that motions asserting mistakes, newly

discovered evidence, or fraud must be brought within one

year of the allegedly erroneous judgment. The Petitioners’

60(b) motion violated this requirement and was therefore

properly denied.

The Petitioners argued below that the District Court’s

1999 judgment was erroneous in 2005 and was erroneous

in 1999 when rendered. Their argument was the same

below in 2005 as in 1999: Rooker-Feldman does not apply.

For example, on page 1 of their 2005 Rule 60(b) motion,

the Petitioners asserted that “Rooker-Feldman does not

bar — and never has barred — Federal jurisdiction.” (em-

phasis added) In their supporting memorandum, the

Petitioners repeated this argument:

[A] recent ... United States Supreme Court...

case ... confirms the long-standing validity of

Plaintiffs’ meritorious grounds for Federal juris-

diction.

(emphasis added).

Here, a Rooker-Feldman bar does not exist — and

has not ever existed.

(emphasis added). Their First Circuit brief was to the

same effect (Pet. First Cir. br. at 2, 24-26.), as is their

current petition. (Pet. for Cert. at 14.)

Thus, the position is that the 1999-2000 decisions

have always been mistaken for the same reasons that the

Petitioners expressed in 1999 and 2005 in the District

Court and the First Circuit. Given this posture, the Peti-

tioners had only one year from the date of the judgment to

11

seek relief under Rule 60(b)(1)-(3). They failed to do so, so

their motion was late.

Rule 60(b) provides that motions for relief under Rules

60(b)(4)-(6) can be brought later than one year post-

judgment, but must still be brought within a “reasonable

time.” Even if this more lenient provision is applicable, the

60(b) motion was still fatally late. Judgment dismissing

the suit issued in December 1999. The First Circuit

affirmed in May 2000. As noted above, the Petitioners

have believed since December 1999 that the District

Court’s judgment was erroneous. During those years, the

state court guardianship proceedings have run their

course. Pollard has died, her estate has been fully pro-

bated and closed. By any reasonable assessment, the

Petitioners’ motion was much too late.

This Court’s decision in Exxon Mobil Corp., 544 U.S.

280, does not alter this point, for several reasons. First,

Exxon does not apply “retroactively” here. See Reynolds-

ville Casket Co. v. Hyde, 514 U.S. 749, 752, 758 (1995)

(new decisional rules do not apply to finally decided, closed

cases).

Second, as the First Circuit correctly noted (App. lla-

12a), there is no “significant” change of law sufficient to

justify 60(b) relief. The Petitioners concede that Exxon

does not represent a change of law:

[T]he Supreme Court ... in Exxon ... identified

the always limited application of Rooker-Feldman.

Respectfully, this identification is/remains exactly

in the same manner [sic] and to the same effect as

Appellants have presented to the district court and

to this Court since 1999. case [sic] commencement.

* * kk *

12

[A] Rooker-Feldman bar does not exist — and has

not ever existed.

(Pet. for Cert. at 14; see also Pet. First Cir. br. at 2, 24-26)

The Petitioners are bound by the admission that Exxon

only clarifies prior law.

Third, in any event, not all purported changes in law

merit relief under Rule 60(b). E.g., Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367, 388, 405 (1992). All

things considered, there was no reason why Exxon war-

ranted vacation of the judgment, so the Petitioner’s motion

cannot be said to have been brought within a “reasonable”

time in relation to Exxon.

B. There Are No Extraordinary Circumstances.

The relevant circumstances here are garden-variety,

and far from extraordinary. The Petitioners brought an

action in the District Court and filed numerous submis-

sions and exhibits. They were fully and fairly heard both

at the time of their motion seeking a preliminary injunc-

tion and in opposition to the Appellees’ motions to dismiss.

After the District Court had ruled on their many petitions

and requests, they prosecuted an appeal to the First

Circuit, which issued a thoughtful opinion analyzing and

disposing of their contentions. All of the Petitioners’ issues

and requests were fairly and thoroughly considered.

No special circumstances have arisen since then. The

only development cited by the Petitioners is this Court's

Exxon decision in 2005 —- six years following the original

adjudication of the case. And the Petitioners do not even

contend that Exxon is some exceptional departure from

prior precedent. Instead, they say only that it bolsters the

13

same argument that they made six years ago — that the

Rooker-Feldman doctrine does not apply here. Thus, even

on the Petitioners’ view of Exxon, the decision is not an

extraordinary development.

And there is no other basis for such relief. The under-

lying factual circumstances have changed, but only in

ways that militate against Rule 60(b) relief and in favor of

finality: The proposed ward Pollard has died. Her estate

has been fully probated, distributed, and closed. The

Petitioners’ appeal from the underlying Probate Court

decree has been completed and the Probate judgment

affirmed. Pollard, 54 Mass. App. Ct. 318. Six years have

passed. These developments are all reasons why the Rule

60(b) request was properly denied.

C. The Requested Relief Would Unfairly Preju-

dice The Respondents.

Rule 60(b) relief is available in limited circumstances

when required to accomplish justice. In analyzing requests

for such relief, the importance of finality must be consid-

ered. Liljeberg, 486 U.S. at 873 (Rehnquist, C. J., dissent-

ing) (“{S]trict interpretation of Rule 60(b) is essential if the

finality of judgments is to be preserved.”). Justice and

finality would be hollow concepts indeed if the Petitioners

were granted the relief they seek here. The proposed ward

Pollard is dead and her estate distributed and closed. In

the six years since the District Court and this Court first

decided the Petitioners’ claims, many parties have relied

on that judgment, including the ten Respondents, defense

counsel, the Probate Court, the Massachusetts Appeals

Court, and all parties interested in Pollard’s estate.

Justice and finality should protect the reliance interests of

14

all of these parties and institutions against the undue

confusion and prejudice that continued proceedings would

entail.

D. The Judgment Is Not Void.

Federal authority over state judicial proceedings is

exceedingly limited. “Federal Courts hold no supervisory

authority over state judicial proceedings and may inter-

vene only to correct wrongs of constitutional dimension.”

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006) (quoting

Smith v. Phillips, 455 U.S. 209, 221 (1982)). In an effort to

skirt this principle, the Petitioners argue that the District

Court’s judgment is void and may be disregarded. This

argument is meritless.

The void judgment concept is well established:

A void judgment is from its inception a legal nul-

lity... . In the interests of finality the concept of

void judgments is narrowly construed. A judg-

ment is not void merely because it is or may be

erroneous, or because the precedent upon which

it is based is later altered or even overruled. A

judgment is void, and therefore subject to relief

under Rule 60(b)(4), only if the court that ren-

dered judgment lacked jurisdiction or in circum-

stances in which the court’s action amounts to a

plain usurpation of power constituting a viola-

tion of due process.

United States v. Boch Oldsmobile, Inc., 909 F.2d 657, at

661-662 (1st Cir. 1990) (citing Chicot County Drainage

Dist. v. Baxter State Bank, 308 U.S. 371, 376 (1940)).

The First Circuit correctly concluded that the void

judgment concept is inapplicable. (App. 12a-13a) To begin

15

with, the Petitioners do not allege that the District Court

lacked jurisdiction. The thrust of their position is that the

District Court’s dismissal somehow deprived them of due

process. That claim is frivolous. The Petitioners’ guardian-

ship petition has been carefully considered by the Massa-

chusetts Probate Court (which issued comprehensive

findings of fact and rulings of law) and the Massachusetts

Appeals Court. Their requests for federal intervention

have been considered by the District Court twice and by

the First Circuit twice. The order denying Rule 60(b) relief

was correct and grounded in well-settled rules. Even if it is

assumed arguendo that there was an abuse of discretion

(there was not) and that the 60(b) motion should have

been granted, that means only that there has been legal

error as to the denial, not that the underlying judgment

was void.

Il. THE PETITIONERS’ CLAIMS ARE SUBJECT

TO DISMISSAL AND ARE MERITLESS IN ANY

EVENT.

A. The Claims Are Moot.

The Petitioners’ claims are now entirely moot. Regard-

ing the equitable claims, the state guardianship proceed-

ings have been finally decided, and Pollard died over three

years ago. The prospective equitable relief that the Peti-

tioners sought in 1999 cannot be granted now because the

proceedings that the Petitioners had hoped to influence

have been complete for years.

Any theoretical damages claims are moot as well.

First, no real damages claim has been pled here. This

Court will search the prolix complaint, amended com-

plaint, and supplemental complaint in vain for a well-pled

16

allegation in compliance with Fed. R. Civ. P. 8 that any of

the Respondents caused harm for which damages are

recoverable. See generally Baldwin County Welcome Cenier

v. Brown, 466 U.S. 147, 149, 152 (1984). See also Newman

v. Commonwealth of Massachusetts, 115 F.R.D. 341, 344

(D. Mass. 1987) (dismissing “argumentative, prolix and

verbose” complaint). The pleadings make only token

requests for compensatory damages, and only as to some of

the Appellees. (Implicit in this silence is recognition that

the defendants are immune. See infra Section D.) Conso-

nant with this view of the matter, in their Petition for

Certiorari and First Circuit brief, the Petitioners have

effectively conceded that their pleadings do not presently

state a claim for damages. (Pet. for Cert. at 18-22; Pet.

First Cir. br. at 42-44)*

Second, the thrust of the federal claims is that the

guardianship proceedings in the Massachusetts courts

were irregular due to various alleged actions and conflicts

of the Respondents. The Petitioners had the right to assert

such arguments in the Massachusetts courts and pre-

sumably raised all points there that they considered

important. Those courts rejected the Petitioners’ conten-

tions and resolved all issues against the Petitioners.

Pollard, 54 Mass. App. Ct. 318. Those proceedings and

* What would a damages claim possibly look like here? Would it be

that, but for the actions of some of the Appellees, the plaintiffs would

have been Pollard’s guardians and would have caused the transfer of

her estate to themselves, that there would have been no effective

objection to this, that the transfer would have been approved by the

Probate Court, and that, therefore, the federal courts should now

overlook the contrary Probate and Appeals Court decrees and award

the plaintiffs the value of Pollard’s estate? Mootness may be the east of

the problems with this absurd theory.

17

decisions were presumptively correct and regular. See

Middlesex County Ethics Comm. v. Garden State Bar

Assn., 457 U.S. 423, 431 (1982); Bettencourt v. Board of

Reg. in Medicine, 904 F.2d 772, 776 (1st Cir. 1990). In this

context, any claims premised on the theory that the state

proceedings somehow were compromised have been

effectively mooted, and should not be subject to review.

E.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000);

Mills v. Green, 159 U.S. 651, 653 (1895).

B. The District Court Properly Abstained.

In any event, the District Court properly abstained.

Federal abstention under the doctrine of Younger v. Har-

ris, 401 U.S. 37 (1971) is appropriate in accordance with

principles of comity and federalism where necessary to

avoid interference by federal courts in state judicial

proceedings. Id. at 43-49. See also Middlesex Ethics

Comm., 457 U.S. at 432; Juidice v. Vail, 430 U.S. 327, 335

(1977). Under the Younger abstention doctrine, federal

courts should abstain where the state proceedings: (1) are

judicial in nature; (2) vindicate important state interests;

and (3) provide litigants an adequate opportunity to raise

federal constitutional challenges. Younger, 401 U.S. at 44-

46; Brooks v. New Hampshire Supreme Court, 80 F.3d 633,

638 (1st Cir. 1996). The District Court correctly abstained

here. First, the state guardianship proceedings and

judgment unquestionably are judicial in nature. And those

proceedings were “ongoing” at all relevant times for

Younger purposes, because the dispositive date as to

“ongoing” status is either the date on which the federal

complaint was filed, or on which “proceedings of sub-

stance” took place in the federal court. Hicks v. Miranda,

422 U.S. 332, 349 (1975); Bettencourt, 904 F.2d at 777.

18

The probate petition was pending when this federal action

began, and at the time of proceedings of substance.

Second, the Massachusetts proceedings implicated

and advanced important state interests. Massachusetts

has a comprehensive statutory scheme for addressing

probate and guardianship-related issues (see G.L. c. 201

§ 1 et seq.), and a strong interest in applying its own

probate law without interference from the federal courts.

See Hemon v. Office of Public Guardian, 878 F.2d 13, 15

(1st Cir. 1989). By contrast, federal courts have limited

authority to adjudicate probate matters. Marshall uv.

Marshall, 126 S. Ct. 1735, 1744-1750 (2006).

Third, the Massachusetts courts had the power to

assess any constitutional issues raised by the Petitioners.

E.g., Blixt v. Blixt, 385 Mass. 555 (2002) (Probate Court

has authority to decide constitutional questions); Jn the

Matter of Moe, 385 Mass. 555, 561 (1982) (Probate Court is

a court of “superior and general jurisdiction possessing

inherent powers. ...”). And the Petitioners had the oppor-

tunity to make their arguments in the Probate Court and

to press them on appeal, and did so. See Pollard, 54 Mass.

App. Ct. 318. The fact that the state courts ruled against

the Petitioners is immaterial, and no reason not to ab-

stain. Bettencourt, 904 F.2d at 779.

The Petitioners tacitly concede these points. They

attempt to argue instead that this case involves bad faith,

harassment, or ... other unusual circumstances within

the meaning of Younger. See 401 U.S. at 54. This exception

to abstention has been construed “very narrowly” by this

Court, and is applicable only in “unusual circumstances.”

Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975); Perez v.

Ledesma, 401 U.S. 82, 83-85 (1971); C. Wright, A. Miller &

19

E. Cooper, Federal Practice and Procedure § 4255 (1978).

No such circumstances are present here. There is no well-

pled allegation of bad faith, harassment, or other unusual

circumstances. There is no allegation or evidence that the

Probate Court judge or the justices of the Massachusetts

Appeals Court had any pecuniary interest in the guardi-

anship petition. Contrast Gibson v. Berryhill, 411 U.S. 564

(1972). There is nothing here other than state court

litigants who are unhappy with largely factual decisions of

state courts and seek to challenge them collaterally in

federal court.

Further, the Massachusetts Probate and Appeals

Courts are presumed to be tribunals “of conscience and

intellectual discipline, capable of judging a particular

controversy fairly on the basis of its own circumstances.”

Withrow v. Larkin, 421 U.S. 35, 55 (1974) (quoting United

States v. Morgan, 313 U.S. 409, 421 (1941)). The Petition-

ers have not come close to overcoming this presumption.

Finally, the federal oversight that the Petitioners seek

would fly in the face of the principles of comity that

underlie Younger. Comity has no practical value if litigants

who disagree with interlocutory findings of fact, orders,

and judgments in state proceedings can interrupt and

nullify those proceedings simply by citing section 1983 and

demanding supervision from a federal court.

C. Pursuant to the Rooker-Feldman Doctrine,

the District Court Lacked Subject Matter

Jurisdiction.

Even as explicated by Exxon, the Rooker-Feldman

doctrine still precludes precisely the kind of federal regu-

lation of state court proceedings and orders that the

Petitioners seek here. Rooker-Feldman holds that federal

20

courts lack subject matter jurisdiction over claims that

seek review of state court judgments. See generally Rooker

uv. Fidelity Trust Co., 263 U.S. 413, 415-416 (1923); District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

482-486 (1983). According to the Exxon Court:

The Rooker-Feldman doctrine ... is confined to

cases of the kind from which the doctrine ac-

quired its name: cases brought by state-court

losers complaining of injuries caused by state-

court judgments rendered before the district

court proceedings commenced and inviting dis-

trict court review and rejection of those judg-

ments. |

Exxon, 544 U.S. at 284. “Under the Rooker-Feldman

doctrine, federal district courts lack jurisdiction over

federal complaints ... [that] essentially invite federal

courts of first instance to review and reverse unfavorable

state-court judgments.” State Resources Corp. v. The

Architectural Team, Inc., 433 F.3d 73, 79 (1st Cir. 2005)

(quoting Federacion de Maestros de P.R. v. Junta de

Relaciones del Trabajo de P.R., 410 F.3d 17, 20 (1st Cir.

2005)).

Pursuant to these authorities, the lower Courts

properly denied the 60(b) motion. This case fits the para-

digm Rooker-Feldman pattern as described in Exxon: The

federal action and 60(b) motion were brought by state

court losers complaining of alleged harm caused by prior

state court proceedings, orders, and a judgme:t; and the

state court losers seek federal review and rejection of these

prior orders and judgment. As the federal suit seeks

nothing less than review and revamping of final decisions

of the Probate Court and the Massachusetts Appeals

21

Court, Rooker-Feldman still applies, and there is no

federal jurisdiction.

The fact that the Petitioners filed their first complaint

just before the Probate Court proceedings had fully con-

cluded does not alter this conclusion, as this chronology

illustrates:

The federal amended complaint was filed three

weeks after the Probate Court trial. It exten-

sively criticizes the Probate Court’s conduct of

the prior trial and the Court’s trial rulings, and

seeks relief on the basis of the Probate Court’s al-

leged errors.

The Probate Court issued its decision dismissing

the guardianship petition on June 25, 1999, ef-

fectively concluding the Probate Court’s review of

the Petitioners’ complaints — constitutional and

otherwise.

Thereafter, in September 1999, the Petitioners

purported to file their “Supplemental Com-

plaint,” which specifically criticized the Probate

Court’s June judgment, and sought a declaration

that the June judgment was actionable under 42

U.S.C. § 1983 due to the “apparent criminal con-

duct, fraud, deception and/or’ mistake

through/upon [sic] the conduct of some or all of

the ... Defendants.” (Supp. Comp. J 37).

After the Probate Court’s decision and the filing

of the Supplemental Complaint, the District

Court issued its memorandum and order of dis-

missal in December 1999.

* The District Court relied on and cited the Supplemental Com-

plaint in its Memorandum and Order of dismissal. (App. 2a)

22

e In 2002, the Massachusetts Appeals Court af-

firmed the judgment of the Probate Court and

the Supreme Judicial Court denied review. Pol-

lard, 54 Mass. App. Ct. 318.

¢ In 2005, the Petitioners moved pursuant to Rule

60(b), openly seeking current federal review and

nullification of the long-final Probate Court judg-

ment.

Given this history, Rooker-Feldman applies in either of

two ways.

First, this case fits the scenario anticipated in Federa-

cion de Maestros, in which federal review is sought while

the state proceedings are ongoing, but have ended as to

the disputed federal issue. See 410 F.3d at 27 n.14. That is

this case. The Petitioners were unhappy with rulings by

the Probate Court, and by the Probate Court’s dismissal of

their guardianship petition. They filed the federal suit

purporting to allege due process-type violations in three

pleadings that attacked virtually all aspects of the probate

proceedings, including the trial and judgment. The Pro-

bate Court proceedings the Petitioners were aggrieved by

ended with that Court’s June 25, 1999 decision, which

then was followed by the filing of the supplemental com-

plaint, the District Court’s consideration of the motions to

dismiss, and the District Court’s dismissal of the federal

suit. As the Probate Court proceedings that were the

subject of the Petitioners’ complaints had, “for all practical

purposes, ended as to the federal issue” before federal

review occurred (Federacion de Maestros, 410 F.3d at 27

n.14), Rooker-Feldman still fits.

Second, in any event, the Petitioners’ 60(b) motion

seeks in 2006 a federal review of state proceedings that

23

have been fully complete and final since all state appellate

review ended in 2002. Regardless how the chronology of

the state and federal matters in 1999 and 2000 may be

parsed, the Petitioners are now seeking to nullify a state

judgment that was affirmed in 2002 simply because they

disagree with the decision and dislike its effect on them.

Rooker-Feldman would not permit this if the Petitioners

were commencing their federal suit now. See Johnson v.

DeGrandy, 512 U.S. 997, 1005-1006 (1994); Howlett v.

Rose, 496 U.S. 356, 369-370 n.16 (1990); E. Chemerinsky,

Federal Jurisdiction, 423 (2d ed. 1994). They should not be

permitted to make an end run around this restriction

because, through a fortuity of timing, they are acting

through a 60(b) motion rather than a new complaint.”

D. The Doctrine Of Judicial And Quasi-Judicial

Immunity Also Bars The Petitioners’ Claims.

Even if there were no reason to abstain and good

subject matter jurisdiction, the Petitioners’ claims were

properly dismissed based on the doctrine of absolute

judicial and quasi-judicial immunity. Judges are abso-

lutely immune from civil liability for any judicial act. See

Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985); Forres-

ter v. White, 484 U.S. 219, 225 (1988); Stump v. Sparkman,

435 U.S. 349, 356-357 (1978); Bradley v. Fisher, 80 U.S.

(13 Wall.) 335, 347 (1871). Beyond judges, absolute immu-

nity has been extended to a variety of persons performing

quasi-judicial functions, including clerks, registers, and

* Nor can the Petitioners trump the issue by alleging diversity

jurisdiction. There can be no diversity jurisdiction here, as state actors

in their official capacities are not “citizens” of any state. See Worcester

County Trust Co. v. Riley, 302 U.S. 292, 299-300 (1937).

24

court-i,. \ intees. See, e.g., Buckley v. Fitzsimmons, 509

U.S. 259, 268 (1993); Briscoe v. LaHue, 460 U.S. 325, 335-

336 (1983); Butz v. Economou, 438 U.S. 478, 513 (1978);

Imbler v. Pachtman, 424 U.S. 409, 424-427 (1976).

These principles required dismissal of all claims

against Perlman (court-appointed guardian ad litem and,

later, judge), Shirazi (court-appointed physician), Sacks

and Dunphy (judges), Carroll (assistant register of pro-

bate), and all other Respondents to the extent they were

appointed by or assisting the Court, or otherwise acted in

judicial capacities. All such actors are immune.

®

v

CONCLUSION

For all of the foregoing reasons, the Respondents

request that the Petition for Certiorari be denied.

Honorable Gail L. Perlman,

individually

By her attorneys,

HARVEY WEINER

JOHN J. O;CONNOR

PEABODY & ARNOLD LLP

30 Rowes Wharf

Boston, MA 02110

(617) 951-2100

25

Honorable Gail Perlman, in Bulkley, Richardson and

her capacities as Guardian Gelinas, LLP

Ad Litem and Justice of the

Probate and Family Court,

Honorable David Sacks, KATHERINE A. ROBERTSON

individually and in his BULKLEY, RICHARDSON AND

capacity as Justice of the GELINAS, LLP

Probate and Family Court, 1500 Main Street, Suite 2700

Honorable Sean Dunphy, Post Office Box 15507

individually and in his Springfield, MA 01115

capacity as Justice ofthe (413) 781-2820

Probate and Family Court,

Huvicvoun Shirai, M.D. Corash, Zurn & Belsky, LLP

in his capacity as Physician By their attorneys,

appointed by Probateand = wryytam C. NEWMAN

Family Court, MaryLynn | xsser NEWMAN, SOUWEINE

Carroll, individually and & eo

in her capacity as First 39 Main Street

Assistant Register for the Northampton, MA 01060

Probate and Family Court (413) 584-7331

By their attorneys,

By their attorneys, Peter B. Ives and The First

THOMAS A. BARNICO, Esa. Churches of Northampton

OFFICE OF THE ;

eas Faneen By their attorneys,

One Ashburton Place JOHN P. Pucci

Boston, MA 02108 FYERST & Pucci LLP

(617) 727-2200, x2086 64 Gothic Street

Northampton, MA 01060

(413) 584-8067

26

Homayoun Shirazi, M.D.

By her attorneys,

SUSAN SACHS

MORRISON, MAHONEY & MILLER

1500 Main Street, Suite 2400

Springfield, MA 01115-0001

(413) 737-4373

Susan Schroder, Pro Se

Ms. SUSAN SCHRODER

90 Maggie Bean Drive

Conway, MA 01341

(413) 369-4963

Mary Lynn Carroll, Esq., Pro Se

Mary LYNN CARROLL, Esq.

HAMPSHIRE PROBATE COURT

33 King Street

Northampton, MA 01060

Dated: June 6, 2007.