George MacKie v. Robert Joss.

• Court: Massachusetts Appeals Court
• Decided: July 31, 2023
• Docket: 22-P-0450
• Status: Unpublished

Opinion

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

2 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

3 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

5 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

6 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

7 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.

8 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-

9 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.

10 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

11 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

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.

12 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

13 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.