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17-P-560 Appeals Court 17-P-1479
ELLIS E. vs. FINN F.1 (and a companion case2).
Nos. 17-P-560 & 17-P-1479.
Middlesex. December 4, 2018. - November 8, 2019.
Present: Meade, Agnes, & Englander, JJ.
Civil Harassment. Harassment Prevention. Protective Order.
Complaint for protection from harassment filed in the Superior Court Department on June 8, 2016.
The case was heard by Elizabeth M. Fahey, J.
Michael R. Byrne & Robert J. Cordy for the defendant. Ellis E., pro se. Daniel J. Cloherty for President and Fellows of Harvard College.
AGNES, J. The defendant and his employer, Harvard
University (university), appeal from civil harassment prevention
1 The parties' names are pseudonyms.
2 The companion case is between the same parties. 2
orders issued pursuant to G. L. c. 258E, § 3 (a).3 This case
presents another opportunity for us to clarify the requirements
for obtaining relief under that statute,4 as well as the scope of
relief that is available. The plaintiff was a fifth-year
graduate student in the Ph.D. program in the biological and
biomedical sciences program (BBS program) at the university.
The defendant is a professor and the director of the plaintiff's
research laboratory (lab) at the university.
The case involves the plaintiff's relationship with the
defendant and other lab members. The plaintiff sought a c. 258E
harassment prevention order against the defendant in June of
2016, alleging a series of actions described more fully in the
discussion section, infra. In August of 2016 a Superior Court
3 As a preliminary matter, the plaintiff argues that the university is a nonparty that does not have standing to appeal. As discussed infra, however, the judge purported to add the university as a party and used the plaintiff's complaint for protection from harassment to impose obligations on the university. Under these circumstances, the defendant's employer certainly has standing to appeal. See Corbett v. Related Cos. Northeast, 424 Mass. 714, 718 (1997) (even nonparties have standing to appeal if they have "a direct, immediate and substantial interest that has been prejudiced by the judgment, and [have] participated in the underlying proceedings to such an extent that [they have] intervened 'in fact'").
4 As we have previously noted, "[O]ur appellate courts have repeatedly held in appeals from issuance of orders under c. 258E that conduct that might be considered harassing, intimidating, or abusive in the colloquial sense" is not sufficient to support a harassment prevention order. A.R. v. L.C., 93 Mass. App. Ct. 758, 761 (2018). 3
judge found that the defendant had met the standards for
harassment under G. L. c. 258E, and entered a harassment
prevention order against him; in addition, the judge ordered
that the plaintiff "immediately be fully restored to his
position and research . . . with all [his] assistance,
equipment, and supplies." Thereafter the judge entered six more
orders directed to the plaintiff's relationships with the
university, culminating in an order that the university, among
other things, "vacate" the plaintiff's withdrawal from the
university and "restore" the plaintiff's status as a graduate
student. Because the evidence does not support the conclusion
that the plaintiff was harassed by the defendant, as defined by
c. 258E and subsequent case law, and because the expansive
relief ordered by the Superior Court judge far exceeded that
authorized by the statute, we vacate the harassment prevention
orders.
1. Background. a. Facts. There are two overarching but
interrelated factual narratives. The first is that on March 10,
2016, the plaintiff filed a confidential complaint with the
president of the university alleging research misconduct by the
defendant and other lab members. The second is that at roughly
the same time, if not before, the plaintiff's relationships with
at least some of his fellow lab members became acrimonious,
which eventually led to serious disruptions within the lab. 4
As to the research misconduct complaint, the plaintiff
alleged the knowing publication of false data by the defendant
and two other Ph.D. candidates. In accordance with the
university's process for investigating such complaints, two
university officials met with the plaintiff on March 25
concerning his allegations. The defendant did not become aware
of the complaint until May 4, when university officials advised
him that he was the subject of an inquiry into allegations of
research misconduct. Although the defendant was not advised
that the plaintiff was the complainant, the defendant suspected
that the complainant was the plaintiff. The university's
investigation did not substantiate the plaintiff's allegations;
this fact was communicated to the defendant on or around May 16.
From March through June of 2016, the plaintiff's
relationship with the lab, and the lab members, deteriorated
significantly. The plaintiff wrote an e-mail to the defendant
on April 6, 2016, in which he described hostile interactions
between himself and three different lab members, which at that
point had been occurring for at least several weeks. The
plaintiff's complaints included that other lab members had
called him "immoral" and a "hypocrite," and that he had been
accused both of lying about a potential collaboration and of
trying to steal a lab member's research assistant. The
plaintiff also stated in this e-mail that some lab members had 5
stopped communicating with him altogether. On April 21, the
plaintiff and the defendant met with a university ombudsperson
to discuss ways to alleviate the tensions. The meetings were
initially considered positive and plans were made for a future
meeting between the plaintiff and the other lab members, but the
plaintiff later declined a joint meeting, and relations did not
improve.
In granting the c. 258E order, the judge found five acts of
harassment. The first two were based on the following. In
early May, around the time when the defendant definitively
learned of the research misconduct allegations, the defendant
met with two of the lab members whom the plaintiff had accused
of acting hostile toward him; both of these lab members also had
been accused of involvement in the defendant's research
misconduct. The judge found that on May 10, at the defendant's
suggestion, the two lab members spoke to William Lensch, the
executive director of the department of stem cell and
regenerative history, and expressed concerns about the
plaintiff's behavior -- including concerns regarding the
plaintiff's welfare, their personal safety, and the potential
sabotage of their work. The judge found that the defendant's
suggestion that the lab members speak with Lensch was the first
act of harassment. Later on May 10, the defendant spoke with
Lensch regarding the plaintiff, and expressed his own concerns 6
about the plaintiff's erratic behavior. The judge found that
this conversation was the second act of harassment. The judge
also found that these acts were done maliciously with the goal
of intimidating and discrediting the plaintiff.
These May 10 conversations with Lensch started a series of
communications among several university administrators, and
culminated in a meeting between the plaintiff; David Cardozo,
the associate dean for graduate studies; and Susan Dymecki, the
head of the BBS program.5 The meeting was reportedly productive,
but any positive effects were short lived. On May 18, the
plaintiff sent an e-mail to the defendant and ombudsperson
Melissa Brodrick, in which the plaintiff requested that future
meetings with his fellow lab members be supervised, that he
receive lab mice for his experiments, and that he receive
additional research assistants. The defendant believed that the
tone of the e-mail was confrontational. He informed Cardozo and
Lensch of the e-mail and indicated he was still concerned about
the plaintiff's behavior. The plaintiff, Cardozo, and Dymecki
had another meeting on May 20 to discuss the situation -- plans
were made to meet again on May 25.
5 Lensch relayed the reports to David Cardozo. Cardozo reached out to several more people to inquire about the plaintiff's mental health, including the lab administrator, Harvard University health services, and the defendant. 7
On May 21, the plaintiff stopped coming to the lab
altogether; he canceled the May 25 meeting with Dymecki and
Cardozo, he canceled a meeting with the defendant, and he
canceled an appointment with his psychiatrist at the university
health services (HUHS). Following the cancelations, Dymecki and
Cardozo contacted the plaintiff out of concern for his welfare.
The plaintiff informed them that he was "alright," but that he
would only be "dealing with the [o]ffice of the [p]resident"6 for
now. He requested that Dymecki and Cardozo refrain from
contacting him.
The judge found that the defendant's actions on June 3,
2016, formed the basis of the third, fourth, and fifth harassing
acts against the plaintiff. Over the course of the afternoon on
June 3, the defendant reached out to Dymecki and others to
express alarm at the plaintiff's "hostile and erratic behavior."7
That evening at 8:27 P.M., after deliberating as to the best
course of action, the defendant suggested to Dymecki that they
should "get advice from a mental health professional." The
judge found that this suggestion from the defendant to Dymecki
was the third act of harassment. After Dymecki contacted HUHS
On May 25, the plaintiff sent an e-mail directly to the 6
president of the university, Drew Faust, recounting the tensions with the defendant and others.
The defendant also contacted Lensch, Cardozo, and Brodrick 7
on June 3. 8
at the defendant's request, a clinician from HUHS called the
defendant twice on the evening of June 3. The defendant told
the HUHS clinician that the plaintiff was exhibiting increased
paranoia and ideation and that the plaintiff had abruptly
canceled several meetings, and the defendant recounted the
plaintiff's conflicts with other lab members. The judge found
these two telephone calls to be the fourth and fifth harassing
acts.
At 11:15 P.M. on June 3, Dr. Ayse Atasoylu, a physician at
HUHS, authorized the temporary involuntary hospitalization of
the plaintiff pursuant to G. L. c. 123, § 12. That
authorization was based on information provided to Atasoylu by
the HUHS clinician who spoke with the defendant earlier in the
evening. Atasoylu never examined or spoke with the plaintiff
prior to authorizing the § 12 hospitalization. In the early
morning hours of June 4, three police officers arrived at the
plaintiff's home and brought the plaintiff to Cambridge Hospital
against his wishes. The plaintiff was examined and released
several hours later after physicians concluded that he was not
at "imminent risk for self-harm." On June 6, following his
release from the hospital, the plaintiff was barred from
returning to the lab.
b. Procedural history. The plaintiff filed a c. 258E
complaint against the defendant on June 8, 2016, based largely 9
on the G. L. c. 123, § 12, application that required the
plaintiff to undergo a mental health evaluation and his
subsequent expulsion from the lab. Following two hearings on
June 27 and July 6, 2016, the judge found that the defendant
engaged in the five aforementioned acts of harassment. The
judge thus entered an order on August 26, 2016, that required
the defendant "to stay at least [one hundred] feet away from
plaintiff and have no contact, direct or indirect, with
plaintiff." The order further provided that "[p]laintiff is to
immediately be fully restored to his position and research in
the . . . [l]ab with all the assistance, equipment, and supplies
he had on March 10, 2016."
The difficulty in following the judge's order soon became
apparent, and led to a lengthy and convoluted procedural
history. In particular, the August 26 order effectively barred
the defendant from engaging in his profession, as he could not
access his lab (or his office and classroom, which were adjacent
to his lab). Twice the defendant moved to vacate or modify the
order, arguing that his actions did not amount to harassment and
that the scope of the order was unreasonable.8 The university
also filed a memorandum as amicus curiae, arguing that the
8 The defendant also sought to stay the order pending appeal. 10
August 26 order was improper because it imposed obligations on
the university, which was not a party to the case.
On September 9, 2016, the judge issued the first of several
modifications to the original order, allowing the defendant to
work in his office and an adjacent classroom, but providing no
additional relief. The parties were unsatisfied with the
modification, and so numerous additional hearings were held
between September and November in an attempt to craft a workable
order. First, on October 4, the judge tried moving the
plaintiff to a different lab. Then, on October 17, the judge
reversed course and ordered the plaintiff to remain in the
defendant's lab, and under the defendant's direct supervision.9
Also on October 17, the judge removed the one hundred foot stay-
away order and tried to impose a schedule on the parties' lab
access -- allowing the defendant to access the lab between 7
A.M. and 10 A.M., Monday through Friday, and preventing the
plaintiff from accessing the lab during those times. On
December 13, the judge reversed course again, and removed the
provision limiting the defendant's access to the lab,
reinstituted the one hundred foot stay-away order, and imposed
additional requirements on the university, including requiring
9 The judge also ordered that a third party supervise any necessary meetings between the plaintiff and the defendant. 11
the university to provide the plaintiff with two research
assistants and the mice necessary to complete his research.
The defendant filed a motion for a partial stay of the
December 13 revised order with a single justice of this court.
On January 30, 2017, the single justice vacated the first
paragraph of the December 13, 2016 revised order and
reintroduced the provision restricting the defendant's lab
access to from 7 A.M. to 10 A.M. on weekdays.10 The case then
returned to the Superior Court.
In the months that followed, the plaintiff failed to
satisfy a number of the university's academic requirements, such
as meeting with his dissertation advisory committee (DAC) or his
academic advisor, which resulted in the plaintiff being placed
on academic probation. On May 15, 2017, after failing to appear
at a meeting with his academic advisors, the plaintiff was
withdrawn from the university. The university then moved to
intervene in order to modify the December 13 revised order. As
the university argued, because the plaintiff was no longer a
student, the university could not comply with the requirement
10The full paragraph reads: "[The defendant] is to have no direct contact with [the plaintiff], except that 1) [the defendant] is allowed access to [the building in which his research lab is located] only from 7 A.M. to 10 A.M. Monday through Friday, and to attend [l]ab [m]eetings, i.e., those meetings to which all those [the defendant] supervises are invited, and 2) as otherwise provided in [p]aragraph [three]." 12
that the plaintiff "remain in his position and research in [the
defendant's research lab]."11
More orders followed. On May 31, 2017, the judge added the
university as a party to the case and denied their motion to
modify the December 13 revised order. The judge also allowed a
motion filed by the plaintiff to restrain the university from
taking any action with regard to the plaintiff's immigration
status. On June 19, 2017, the judge amended the December 13
order once again to require the university to provide the
plaintiff with "full access" to two research facilities.
Finally, on July 14, 2017, after a hearing on several
pending matters, the judge entered a revised order that was
substantially similar to several of the previous orders,12
including that the plaintiff "be returned in all respects to the
status quo he enjoyed as of March 10, 2016." Notably, in order
to effectuate that relief, the July 14 order required the
university to, among other things, vacate the plaintiff's
withdrawal from the university and inform the United States
11Around the same time, the plaintiff also filed a motion to add the university as a party and filed additional motions to prevent the university from disturbing his student visa.
12The July 14 order also required the defendant to stay one hundred feet from the plaintiff and have no contact with the plaintiff except for periodic lab meetings in the presence of a third party, and precluded the defendant from using the plaintiff's research in any manner. 13
Department of Homeland Security that the plaintiff's status as a
graduate student was restored, have the plaintiff's access to
all university facilities restored, remove any security guards
at facilities used by the plaintiff that were not in place
before March 10, 2016, and obtain two research assistants for
the plaintiff.
The defendant and the university filed notices of appeal,
as well as motions to stay the judge's orders with a single
justice of this court.13 We now turn to the issues currently
before us.
2. Discussion. a. Requirements for obtaining relief. We
review an order pursuant to G. L. c. 258E to determine whether
the judge could conclude "by a preponderance of the evidence,
together with all permissible inferences, that the defendant had
committed '[three] or more acts of willful and malicious conduct
aimed at a specific person committed with the intent to cause
fear, intimidation, abuse or damage to property,'" Seney v.
Morhy, 467 Mass. 58, 60 (2014), and that those acts did "in fact
cause fear, intimidation, abuse or damage to property," G. L.
c. 258E, § 1. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).
13 The single justice issued a pair of orders that stayed, pending appeal, all aspects of the previous orders still in effect, with the exception of the requirements that the defendant stay one hundred feet away from the plaintiff and that the defendant refrain from using the plaintiff's research in any manner. 14
"[T]here are two layers of intent required to prove civil
harassment under c. 258E: the acts of harassment must be
[willful] and '[m]alicious,' the latter defined as
'characterized by cruelty, hostility or revenge,' and they must
be committed with 'the intent to cause fear, intimidation, abuse
or damage to property.'" O'Brien v. Borowski, 461 Mass. 415,
420 (2012), quoting G. L. c. 258E, § 1. To avoid constitutional
overbreadth, "fear" under the statute has been limited to mean
"fear of physical harm or fear of physical damage to property."
O'Brien, supra at 427. Someone seeking a harassment prevention
order may not avoid this narrowed construction by characterizing
the predicate act as one intended to cause intimidation instead
of fear. See A.R. v. L.C., 93 Mass. App. Ct. 758, 760-761
(2018).14
As indicated, the judge cited five acts in support of the
harassment prevention orders: (1) the defendant's May 10 report
of the plaintiff's erratic and threatening behavior, (2) the
defendant's instigating lab members to make similar reports, (3)
the defendant's June 3 suggestion that the head of the BBS
program get advice from a mental health professional, and (4 &
5) the two different telephone calls that the defendant had with
14The plaintiff's complaint for protection from harassment was not premised on abuse or damage to property, and we thus limit our discussion to fear of physical harm. 15
the health services clinician on the evening of June 3. Some of
these acts, however, cannot be construed as aimed at the
plaintiff and committed with the intent to cause fear of
physical harm, and none of these acts was the actual cause of
any fear of physical harm testified to by the plaintiff.
We first address the defendant's May 10 report of the
plaintiff's erratic and threatening behavior and the defendant's
instigating lab members to make similar reports. We assume that
the judge's findings regarding the defendant's malicious intent
are not clearly erroneous and that the defendant's acts were
intended to discredit the plaintiff. However, these findings go
to the first layer of intent only. The plaintiff also needed to
prove by a preponderance of the evidence that those acts were
aimed at the plaintiff and were committed with the intent to
cause fear of physical harm. The evidence does not support this
conclusion. The first two acts cited by the judge were oral
statements that were not made to the plaintiff or in his
presence, and nothing in the record supports an inference that
the defendant intended, by these statements, to cause the
plaintiff fear of physical harm. See Seney, 467 Mass. at 63 (e-
mail sent to third party "was not directed at [plaintiff]").
See also Petriello v. Indresano, 87 Mass. App. Ct. 438, 446-447
(2015) (false accusation may qualify as harassment only if said
to plaintiff). 16
The last three acts cited by the judge all involve
conversations that the defendant had on June 3, in the period
leading up to the plaintiff's involuntary psychiatric
evaluation. These three acts perhaps present a closer question
whether they could satisfy the requirement of intent to cause
physical harm. We assume without deciding, though with
misgivings, that the plaintiff's fear of being held against his
will and subjected to G. L. c. 123, § 12, procedures qualifies
as fear of physical harm.15 We also assume, without deciding,
that the judge's finding that the defendant had malicious intent
when he had the conversations was not clearly erroneous.16
However, we conclude that these three oral conversations the
defendant had with persons other than the plaintiff do not
qualify as "true threats" or "fighting words" under the standard
established in O'Brien. O'Brien, 461 Mass. at 422. "[O]nly a
threat intended to cause fear of physical harm (or physical
15To the extent that the plaintiff's complaint for protection from harassment was instead based on his fear that people would believe any rumors regarding his mental health, this fear does not satisfy the constitutional requirements of O'Brien. See O'Brien, 461 Mass. at 427. See also A.R., 93 Mass. App. Ct. at 760-761.
16While the plaintiff's sudden retreat from university meetings and the lab could have caused genuine concern, there was also evidence that the plaintiff was responding to inquiries into his well-being and that he indicated to everyone who asked that he was all right. Regardless, our decision does not depend on whether the judge's subsidiary findings regarding the defendant's malicious intent are clearly erroneous. 17
property damage) can qualify as one of the three predicate acts
for purposes of c. 258E. This is true even when the act is not
characterized as one intended to cause 'fear' . . . , but as one
intended to cause 'intimidation' or 'abuse' as well." A.R., 93
Mass. App. Ct. at 760. A statement or a recommendation made to
a mental health professional that another person is in need of
mental health services, including possible involuntary
confinement in a hospital or mental health facility, without
more, is not a "true threat" or "fighting words."
Alternatively, the evidence does not support the conclusion
that those three acts were the cause of the plaintiff's fear of
physical harm. The plaintiff testified that his fear arose from
his forced mental health evaluation at Cambridge Hospital.
Although the doctors concluded after an examination that the
plaintiff did not have any serious mental health issues, the
plaintiff testified that he was afraid that he would be declared
"mentally insane" and confined to a psychiatric unit. There was
a causal disconnect, however, between the plaintiff's fears and
any actions of the defendant. The defendant lacked the ability
to declare the plaintiff "mentally insane" or confine him to a
psychiatric unit. General Laws c. 123, § 12 (a), provides that
only certain individuals, such as physicians, may apply to have
someone admitted to a mental health facility. The defendant did
not have the requisite qualifications. The statute further 18
envisions that anyone who signs an application to have someone
admitted to a mental health facility will first examine that
person.17 See G. L. c. 123, § 12 (a). The physician who signed
the application to have the plaintiff admitted to a mental
health facility thus had a duty to exercise her independent,
professional judgment when signing that application. See Reida
v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 56 (1994) (discussing
examination requirement of statute). It was this application
and the physician's independent, professional judgment in
signing it, and not the defendant's statements, that caused the
plaintiff's fear of physical harm. While the plaintiff also may
have been afraid that others, including physicians, would
believe the rumors regarding his mental health, that does not
amount to fear of physical harm (see note 15, supra).18
b. Scope of relief. While our analysis above requires us
to vacate the harassment prevention orders, we nonetheless
17Under the statute, an examination is not required if it is "not possible because of the emergency nature of the case and because of the refusal of the person to consent to such examination" (emphasis added). G. L. c. 123, § 12 (a). The exception does not apply here, where the plaintiff did not refuse to consent to an examination. See Leininger v. Franklin Med. Ctr., 404 Mass. 245, 248 (1989) (failure to examine not excused, even due to emergency nature of case, where there was no refusal to consent to examination).
18We further note that the contrary result could deter people with genuine concerns about someone's mental health from expressing those concerns to a physician, for fear of later being the subject of a harassment prevention order. 19
address the arguments raised by the defendant and the university
regarding the scope of relief that is available through G. L.
c. 258E, § 3 (a), as those arguments have been fully briefed and
merit discussion. See Cambridge St. Realty, LLC v. Stewart, 481
Mass. 121, 130 (2018). The defendant and the university argue
that the scope of the plaintiff's relief under G. L. c. 258E,
§ 3 (a), was limited to four specified categories and that the
terms of the harassment prevention orders far exceeded the scope
of those categories.
In deciding this question, we compare the text of G. L.
c. 258E, § 3 (a), to the text of G. L. c. 209A, § 3, which
applies only in the context of family and household members.
General Laws c. 258E, § 3 (a), provides that "[a] person
[suffering from harassment] may petition the court . . . for an
order that the defendant: (i) refrain from abusing or harassing
the plaintiff . . . ; (ii) refrain from contacting the
plaintiff, unless authorized by the court . . . ; (iii) remain
away from the plaintiff's household or workplace . . . ; and
(iv) pay the plaintiff monetary compensation for the losses
suffered as a direct result of the harassment." General Laws
c. 209A, § 3, on the other hand, provides that "[a] person
suffering from abuse . . . may file a complaint . . . requesting
protection from such abuse, including, but not limited to, the
following orders" (emphasis added). The fact that G. L. 20
c. 258E, § 3 (a), does not contain similar language indicating
that the four categories of relief specified therein are
nonexclusive is a critical change from the language of c. 209A.
See J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017) (giving
weight to omission from G. L. c. 258E of language appearing in
G. L. c. 209A).
General Laws c. 258E was "intended to protect victims of
'harassment,' as that term is defined by [G. L. c. 258E, § 1],
who could not legally seek protective orders under G. L. c. 209A
due to the lack of familial or romantic relationship with the
perpetrator." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109
(2017). Thus, "much of the language in c. 258E is analogous to
the language found in c. 209A." Id. One notable exception,
however, is the omission of "the all-important phrase
'including, but not limited to' from the introductory sentence
of [G. L. c. 258E, § 3 (a)]." J.C., 92 Mass. App. Ct. at 230.
"The omission of particular language from a statute is deemed
deliberate where the Legislature included such omitted language
in related or similar statutes."19 Id. at 231, quoting Fernandes
19The plaintiff's reliance on language in G. L. c. 258E, § 3 (g), that "[a]n action commenced under this chapter shall not preclude any other civil or criminal remedies" is unavailing. This language permits the plaintiff to pursue other claims, through whatever other remedies may be available, but does not expand the scope of relief that is available through G. L. c. 258E, § (3) (a). See J.C., 92 Mass. App. Ct. at 232 ("The language in [§ 3 (g)] also plainly permits an applicant 21
v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). The
omission of the words "including, but not limited to" from the
introductory sentence of G. L. c. 258E, § 3 (a), suggests that a
plaintiff seeking a harassment prevention order pursuant to that
statute is limited to the four categories of relief specified
therein.
Here, there is no doubt that the terms of the harassment
prevention orders far exceeded the scope of the four specified
categories of relief authorized by G. L. c. 258E, § 3 (a). For
example, in addition to limiting the contact between the
defendant and the plaintiff -- a remedy which is authorized by
G. L. c. 258E, § 3 (a) (ii)20 -- the judge entered orders that
required, not just authorized, the defendant to have specific
contact with the plaintiff by ordering the defendant to continue
supervising the plaintiff in the lab, to meet with the plaintiff
to discuss his research progress, and to invite the plaintiff to
for a harassment prevention order to pursue other civil claims").
20We note that the December 13 revised order included a provision that the defendant stay at least one hundred feet away from the plaintiff. A single justice of this court modified that order to allow the defendant to access his lab during certain times. When the case returned to the Superior Court, however, the Superior Court judge entered an order effectively reinstating the general stay-away order. This the Superior Court judge could not do, even if otherwise authorized by G. L. c. 258E, § 3 (a) (ii), in the absence of any changed circumstances. 22
lab meetings. These terms, in addition to exceeding the scope
of G. L. c. 258E, § 3 (a) (ii), are at odds with other
constraints long recognized by equity courts -- for example, the
public policy of not ordering specific performance of a personal
service contract. See G. L. c. 214, § 1A ("The fact that the
plaintiff has a remedy in damages shall not bar an action for
specific performance of a contract, other than one for purely
personal services . . ."). The lengthy and convoluted
procedural history that resulted from the judge's attempts at
crafting a working relationship between the plaintiff and the
defendant amply demonstrates why this sort of specific
performance is disfavored.21 Regardless, these terms exceeded
the scope of the four specified categories of relief authorized
by G. L. c. 258E, § 3 (a).
In addition to the terms that required the defendant to
have specific contact with the plaintiff, the judge also entered
orders that interfered in the university's oversight of the
plaintiff. These terms required the university, among other
things, to vacate the terms of the plaintiff's academic
probation and to provide him with certain resources. In view of
21Insofar as equitable principles come into play when judges issue orders under G. L. c. 209A and c. 258E, judges must be mindful that equity is not "an all-purpose judicial tool by which the 'right thing to do' can be fashioned into a legal obligation possessing the legitimacy of legislative enactment." T.F. v. B.L., 442 Mass. 522, 533-534 (2004). 23
the result we reach, it is unnecessary to decide the precise
parameters of relief available under G. L. c. 258E,
§ 3 (a) (iv). The terms of the orders in this case certainly
have no basis in any of the four categories of relief authorized
by G. L. c. 258E, § 3 (a) (iv).
Furthermore, these orders are troubling in light of the
fact that the university was not even named as a defendant in
the plaintiff's harassment complaint. While the judge purported
to bind the university to the harassment prevention orders
through Mass. R. Civ. P. 65 (d), 365 Mass. 832 (1974), and later
added the university as a party through Mass. R. Civ. P. 71, 365
Mass. 837 (1974), neither of these rules may be used to
accomplish either of the intended goals in the context of this
case. Both rules contemplate that an order may be lawfully
enforced against a nonparty if, for example, the nonparty aids a
party in disobeying that order. See, e.g., Bird v. Capital Site
Mgt. Co., 423 Mass. 172, 178-179 (1996). That is very different
from what happened here, where several terms of the harassment
prevention orders applied directly and exclusively to a nonparty
(the university), which was not afforded the required procedural
protections.22
22The defendant and the university also have addressed whether the terms of the harassment prevention orders could be upheld on the basis of the Superior Court's general equity jurisdiction. We need only to add that the relief discussed 24
3. Conclusion. Acknowledging that the orders entered on
August 26, 2016, September 9, 2016, October 4, 2016, and October
17, 2016 were already vacated by the Superior Court judge, we
further vacate the December 13, 2016 revised order, the May 31,
2017 orders, the June 19, 2017 amended revised order, and the
July 14, 2017 revised order.
So ordered.
above was not related to the purpose of G. L. c. 258E. See J.S.H., 91 Mass. App. Ct. at 109 (statute exists to protect victims from harassment). See also Rossi Bros. v. Commissioner of Banks, 283 Mass. 114, 119 (1933) ("It is a maxim that equity follows the law as declared by a statute").