George MacKie v. Robert Joss. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-450
GEORGE MACKIE
vs.
ROBERT JOSS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case was heard together with the Mackie v. Rouse-Weir,
Appeals Court Case No. 22-P-268, decided in a memorandum and
order issued pursuant to Rule 23.0 on this same day. In this
case, the plaintiff, George Mackie, has brought suit against the
defendant, Dr. Robert Joss, a psychologist employed by the
Counseling and Psychotherapy Center in Needham, who served as a
Qualified Examiner (QE) in the trial at which it was determined
that Mackie would be incarcerated as a sexually dangerous person
(SDP). Mackie appeals a Superior Court judge's allowance of
Joss's motion to dismiss. For the reasons that follow, we
vacate the order of dismissal and remand. Some background about
QEs and the SDP process is in order.
Background. During the incarceration of one convicted of a
sexual offense, by statute the department of corrections is
required to "notify in writing the district attorney of the
county where the offense occurred and the attorney general six
months prior to the release of such person." G. L. c. 123A,
§ 12.
Under Section 12, should the district attorney or the
Attorney General determine the individual is likely to be an
SDP, either the district attorney, or the Attorney General at
the request of the district attorney, may bring a petition on
behalf of the Commonwealth alleging that the individual is an
SDP, and, subsequently, as described in more detail below, a
petition on behalf of the Commonwealth for the individual's
commitment to the "treatment center" for up to their natural
life. See Commonwealth v. Patton, 458 Mass. 119, 128 n.10
(2010) ("A person found to be sexually dangerous may be deprived
of his liberty for the remainder of his life").
Under G. L. c. 123A, § 9, once per year, a committed SDP
may petition for examination and discharge. See In re
Johnstone, 453 Mass. 544, 548 (2009). The respondent in such
proceedings is again the Commonwealth, now in the instantiation
of the department of correction, whose lawyers defend against
such petitions.
In both initial commitment proceedings, and petitions for
release, QEs play a statutorily required role. In an initial
proceeding, the first petition results in a probable cause
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hearing. If probable cause is found, the individual must be
sent to the treatment center for up to sixty days for
examination by two QEs. After the QE examinations, the district
attorney, or the Attorney General acting at the request of the
district attorney, may petition the court for a trial to
determine whether the individual should be committed as an SDP.
See G. L. c. 123A, § 14. In a petition for release, "the judge
'shall order the petitioner to be examined by two qualified
examiners, who shall conduct examinations, including personal
interviews, of the person on whose behalf such petition is filed
and file with the court written reports of their examinations
and diagnoses, and their recommendations for the disposition of
such person.'" Johnstone, 453 Mass. at 548, quoting G. L.
c. 123A, § 9.
In essence the QEs act as expert witnesses. They are
required in all SDP cases to prepare a report, which is made
admissible by statute. See In re McHoul, 445 Mass. 143, 148 n.4
(2005) ("Although [G. L. c. 123A, §§ 9 and 14(c)] makes the
qualified examiner's report admissible, . . . the qualified
examiner's report functioned as the equivalent of an expert
witness's direct testimony"). If the Commonwealth decides to go
forward with an initial commitment trial after the QE
examinations, it cannot sustain its burden of proof unless one
of the QEs has opined that the individual is an SDP. Likewise
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in a case involving a petition for release. See Johnstone, 453
Mass. at 553 ("[I]n order for the Commonwealth to proceed to
trial in a discharge proceeding under G. L. c. 123A, § 9, at
least one of the two qualified examiners must opine that the
petitioner remains sexually dangerous. If neither of the
qualified examiners is of the opinion that the petitioner is
currently a sexually dangerous person, the Commonwealth cannot
rely upon other sources of potential expert evidence . . . to
meet its burden of proof at trial. . . . [T]he same reasoning
applies as well to initial commitment proceedings brought
pursuant to G. L. c. 123A, § 12 (b)").
The two QEs in each case are designated by the
Commonwealth, from a list of individuals approved by the
Commissioner of Correction, an Executive Branch official. "The
QEs in each particular case are selected by the Department of
Correction (department), chosen from the pool of those
designated by the Commissioner of Correction (commissioner)
under the statute." In re Santos, 78 Mass. App. Ct. 280, 282
(2010). The department of correction is a commission within the
Executive Office of Public Safety and Security; the Commissioner
is appointed by the Secretary of Public Safety, a political
appointee of the Governor, only with the Governor's approval.
See G. L. c. 123A, § 1, amended by St. 1993, c. 489, § 1; G. L.
c. 27, § 1.
4
The department of correction also pays the QEs'
compensation. The statute provides that: "A 'qualified
examiner' need not be an employee of the department of
correction or of any facility or institution of the department,"
see G. L. c. 123A, § 1, and under department of corrections
policy, 103 Department of Correction regulations (DOC) § 458
(2021), "QUALIFIED EXAMINER EVALUATIONS PURSUANT TO M.G.L. c.
123A," it appears that all QEs are currently provided to the
department by contractors. See id. § 458.03. At the time of
Santos, "[q]ualified examiners [were] provided to the
Commonwealth by a for-profit corporation, Forensic Health
Services, Inc., a vendor that operates under a contract with the
department for the provision of such examiners and that also
holds contracts with the department to provide a wide range of
other services. See, e.g., Johnstone, petitioner, 72 Mass. App.
Ct. 123, 124 n.3 (2008), S.C., 453 Mass. 544 (2009);
Massachusetts Department of Correction, Program Description
Booklet at 44 (June 2008)." Santos, 78 Mass. App. Ct. at 282
n.2. And in In re Edwards, 464 Mass. 454, 457 (2013), the
Supreme Judicial Court noted that the department of correction
paid compensation "to Forensic Health Services, Inc. (FHS), for
a qualified examiner's evaluation and written report . . . and
testimony . . . which is greater than the amount the qualified
examiners themselves receive." In testimony from a trial in
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another case that Joss has acknowledged before us, Joss
testified, consistent with this, "When a decision is made to
hold a person for an evaluation [in an SDP proceeding,] the
Court notifies the Department of Corrections and the Department
of Corrections has a contract with an entity that sort of
supplies the qualified examiners. Despite the fact that we're
all designated by the Department of Corrections, we are actually
paid by the contractor."
Facts. Turning to the facts of this case, on June 19,
2018, the district attorney filed a petition under G. L.
c. 123A, § 12, alleging that Mackie, an individual incarcerated
for sexual offenses, was an SDP as defined by the statute. The
trial court determined that there was probable cause to believe
that Mackie was an SDP and ordered that Mackie be committed for
a period not exceeding sixty days for the purpose of examination
and diagnosis under the supervision of two QEs, as required by
G. L. c. 123A, § 13 (a). The department of correction chose
Joss as one of the two QEs under G. L. c. 123, § 13 (a), to
examine Mackie, and to file the report required by statute.
Joss did interview Mackie and wrote and submitted to the court a
report stating that Mackie met the diagnostic criteria for
pedophilic disorder. The district attorney moved for a trial,
in accordance with G. L. c. 123A, § 14, to determine whether
Mackie was an SDP. A jury trial was held at which the district
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attorney called Joss to testify. Joss testified that Mackie met
the Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition (DSM-5), diagnostic criteria for pedophilic disorder.
Mackie was found to be an SDP, a ruling that was reversed
by the Appeals Court due to the improper introduction of
"allegations that [Mackie] had committed various sexual offenses
of which he never was convicted." Commonwealth v. Mackie, 100
Mass. App. Ct. 78, 79 (2021). Eventually, on the basis of
alleged inconsistencies and errors in the report and testimony,
including an alleged "failure to comply with specifically
detailed diagnostic criteria contained in the DSM-5 manual
related to Pedophilic Disorders," Mackie brought this suit
against Joss alleging violations of 42 U.S.C. § 1983, the
Massachusetts Civil Rights Act, G. L. c. 12, § 11I, medical
malpractice, violations arising from Joss's "failure to comply
with . . . Statutory criteria" in G. L. c. 123A, § 1, and
violations of his "enjoyment of liberty," "pursuant to the
Massachusetts Declaration of Rights, Art. X."
Joss filed a motion to dismiss, arguing in his memorandum
in support of that motion that he was entitled to qualified
immunity. Mackie filed a written opposition arguing, inter
alia, that as a private person, not a government official, Joss
was not entitled to qualified immunity. At the hearing on the
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motion, Joss for the first time raised a claim of quasi-judicial
absolute immunity.1
In her ruling on the motion, the judge held that that
because he is a private party, "it does not appear that Dr. Joss
is entitled to qualified immunity." She held nonetheless that
the complaint must be dismissed because Joss had absolute quasi-
judicial immunity, because QEs play "a unique and central role
. . . in sexually dangerous commitment proceedings," "perform[s]
essential judicial functions," "are an integral part of the
judicial process," and "perform[] a function with an essential
connection to the judicial process." The judge also placed a
footnote at the end of the opinion stating, "In addition, it
appears that Dr. Joss' statements in the SDP probable cause
hearing and jury trial are protected by the litigation
privilege," raising that privilege sua sponte. Mackie has
appealed.
1 The verified complaint states Mackie was suing Joss in both his
individual capacity and "in any official capacity he may be
entitled to." "[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity" "of
which an officer is an agent," Kentucky v. Graham, 473 U.S. 159,
165-166 (1985). Mackie does not mention in his brief that Joss
was sued in any but his individual capacity, and makes no
argument about immunity based on the suit having named Joss not
only in his individual capacity, but in any official capacity to
which he was entitled. We therefore express no opinion on the
matter.
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Discussion. Our review of allowance of a motion to dismiss
under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), is "de
novo, accepting as true all well-pleaded facts alleged in the
complaint, drawing all reasonable inferences therefrom in the
plaintiff’s favor, and determining whether the allegations
plausibly suggest that the plaintiff is entitled to relief."
Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022).
Turning first to quasi-judicial immunity, we agree with
Mackie that it is not applicable here. Joss argues that QEs are
quasi-judicial actors because, though not judges themselves,
they "perform essential judicial functions." He argues that it
does not matter that they are not appointed by the court because
they are appointed by "an arm of the court," and act as an
integral part of the judicial process.
QEs, however, are not appointed by an arm of the court.
They are appointed by one of the parties, the Commonwealth
(indeed by the very agency that litigates SDP petitions under
Section 9), from a list including only individuals approved by
the Commissioner. In this they differ from appointees of the
probation department. The probation department is "a division
of the judicial branch." Commonwealth v. Milton, 427 Mass. 18,
20 (1998). This serves to distinguish LaLonde v. Eissner, 405
Mass. 207, 213 (1989), on which Joss would rely, in which quasi-
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judicial immunity was given to a court-appointed psychiatrist
who was "not specifically designated by the judge's order, but
rather by the probation department acting pursuant to a court
order" as part of a court-ordered investigation by the probation
department related to a child visitation matter before the
court.
As Joss notes, "Massachusetts uses a functional analysis
when determining whether an individual performs a quasi judicial
function and is therefore entitled to absolute immunity."
Hornibrook v. Richard, 488 Mass. 74, 79 (2021). But QEs do not
perform judicial functions; they could not given their
eligibility and selection are determined by one of the parties
before the court. They act essentially as expert witnesses
designated by the Commonwealth. QEs do have some independence
in that they are free to reach any conclusion after their
investigation,2 but they are designated and paid by the
Commonwealth.3
2 This perhaps explains the dictum in In re Chapman, 482 Mass.
293, 303 (2019), where the Court said, "an expert who serves as
a [QE] is recognized to be independent and to serve as though
appointed by a court."
3 Since the department of correction is itself the very agency of
the Commonwealth that is the respondent in § 9 proceedings like
the one in In re Chapman, supra, and that litigates them, the
Court's dictum there that "[t]he qualified examiners . . . are
not retained by, paid by, or beholden to any party," must either
mean only that the direct payor of the QEs is the contractor
working for the department, or be in error.
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Because the Commonwealth essentially prosecutes and defends
SDP actions, the only type of absolute quasi-judicial immunity
to which QEs might be entitled is the absolute prosecutorial
immunity, that, we will assume for present purposes only,
belongs to the office that hired them. Indeed, the other
factors identified by the motion judge -- "a unique and central
role . . . in [judicial] proceedings," being "an integral part
of the judicial process," and "performing a function with an
essential connection to the judicial process" -- could be said
of all expert witnesses chosen by the government.
Prosecutors do have "quasi-judicial" absolute prosecutorial
immunity in some circumstances. Other executive branch
officials exercising executive functions have, at most, only
qualified immunity. Joss does argue that because QEs "perform a
'gatekeeper role' in the statutory scheme to civilly commit
and/or discharge individuals under G. L. c. 123A," they are
entitled to absolute immunity. Prosecutors, however, are
entitled to absolute immunity only when they undertake tasks in
their prosecutorial capacity, not when they act as witnesses,
even as complaining witnesses. See Kalina v. Fletcher, 522 U.S.
118, 129 (1997). Joss was an investigator and a witness. To be
sure, QEs are required witnesses, and if neither of them
testifies that an individual is an SDP, he cannot be found to be
one. See Johnstone, 453 Mass. at 552-553 ("Implicit in this
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view is the conclusion that, if both qualified examiners
determine that a person is not sexually dangerous, the
Commonwealth cannot meet its burden of proof. . . . Because our
decision is based on the integral role of the qualified
examiners in the entire statutory scheme, the same reasoning
applies as well to initial commitment proceedings brought
pursuant to G. L. c. 123A, § 12 (b)"). But we think that
statutory role makes them at most analogous to a complaining
witness. Thus, even were Joss entitled to the immunity given to
prosecutors, a question on which we express no opinion, he would
not be entitled to absolute immunity.
Joss is, however, entitled to qualified immunity. The
judge, understandably, stated that it did not appear that he
was. Mackie included detailed argument in his memorandum in the
trial court citing cases in which private individuals have been
held not eligible for qualified immunity. Joss's attorneys
inexplicably failed even to address that question either in
response in the trial court, or, indeed, before us.
Nonetheless, in light of the Supreme Court's latest word on the
subject in the context of § 1983 in Filarsky v. Delia, 566 U.S.
377, 393-394 (2012), we conclude that Joss, even if he is
understood to be a private individual, is entitled to qualified
immunity. Mackie does not argue that the common-law immunity
with respect to his other claims differs from that under § 1983.
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The question, then, is whether Mackie has alleged any
violation of "clearly established statutory or constitutional
rights of which a reasonable person would have known." See
Rodriques v. Furtado, 410 Mass. 878, 882 (1991), quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). In this case, unlike
Rouse-Weir, because of the way in which the case was decided,
the motion judge did not reach that question. We think the
prudent course, therefore, rather than parsing all the
allegations of the complaint in the first instance here on
appeal, is to remand the case to the trial court for
consideration of that question in the first instance. Our
decision in Rouse-Weir may provide some useful guidelines. The
order of dismissal therefore is vacated and the case remanded
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for further proceedings consistent with this memorandum and
order.4
So ordered.
By the Court (Rubin,
Wolohojian & Brennan, JJ.5),
Clerk
Entered: July 31, 2023.
4 The judge sua sponte raised the issue of litigation privilege.
Without expressing any opinion as to whether the privilege may
or may not apply to this case, we note that the issue could not
properly have been decided without briefing and factual
development, which did not (and could not) occur in the context
of Joss's motion to dismiss. Therefore, the judge's ruling
regarding the litigation privilege is vacated without prejudice
to further consideration, after briefing and factual
development, on remand.
5 The panelists are listed in order of seniority.
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