Cobb v. Cobb

Decision Date08 November 1989
Citation545 N.E.2d 1161,406 Mass. 21
PartiesDiane COBB v. James COBB.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Charles W. Rankin, Boston, for Diane Cobb.

James M. Shannon, Atty. Gen., and Jon Laramore, Asst. Atty. Gen., for the Atty. Gen. et al., amici curiae, submitted a brief.

Stuart E. Schiffer, Acting Asst. Atty. Gen. of the U.S., Wayne A. Budd, U.S. Atty., Anthony J. Steinmeyer and Jeffrica Jenkins Lee, of the District of Columbia, Attys., U.S. Dept. of Justice, for Dept. of the Army, amici curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The presiding justice of the Ayer Division of the District Court Department has reported two questions, pursuant to Mass.R.Civ.P 64, 365 Mass. 831 (1974), concerning his authority to issue a restraining order under G.L. c. 209A (1988 ed.) that would apply to residents of Fort Devens, an area that Massachusetts has ceded to the United States. See St.1921, c. 456; St.1933, c. 290; St.1950, c. 778; St.1966, c. 482

The plaintiff, a member of the armed forces, lives with her minor son at Fort Devens and works there. She is married to the defendant who, before the order was entered, lived with the plaintiff at Fort Devens. She presented sufficient facts to the judge to warrant the issuance of an abuse prevention order under G.L. c. 209A. The judge issued a temporary order on December 6, 1988, granting the plaintiff custody of the parties' minor child and directing the defendant to leave and remain away from their home. On the same day, the judge reported two questions to the Appeals Court as to his power to issue abuse prevention orders affecting persons who reside at Fort Devens. He noted that "[t]he availability of relief under G.L. c. 209A for residents of Fort Devens is a question which has repeatedly confronted this Court." He further noted an apparent shift of position by the Supreme Court of the United States in recent years, moving away from the view that this court expressed years ago that, barring a statute to the contrary, State law does not apply in lands ceded to the Federal government. The reported questions are set forth in the margin. 1 We granted the plaintiff's application for direct appellate review.

After discussing whether, because the case is now moot, we should answer these questions, and deciding that we should, we shall explain why the order was applicable to the defendant and effective within Fort Devens.

This case is moot because the order has expired by its own terms, and before the order expired, as far as appears, the defendant did not violate it. We have discussed circumstances in which we might or would not decide a moot case. See Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159-160, 484 N.E.2d 1015 (1985); Lockhart v. Attorney Gen., 390 Mass. 780, 782-784, 459 N.E.2d 813 (1984), and cases cited. We have answered questions in moot cases where, as in the case before us, the issue was of public importance, was likely to arise again, and was not likely to be capable of appellate review before the recurring question would again be moot. Id. at 783, 459 N.E.2d 813. In deciding to answer a moot question, we have given weight to the fact, not present here, that the issue had been fully argued on both sides. In this case, however, the interests of the amici curiae and their thorough, balanced briefs, even though they support the plaintiff, tend to offset the absence of argument from the defendant.

We have been particularly reluctant to decide a moot constitutional issue. See Solimeno v. State Racing Comm'n, 400 Mass. 397, 402, 509 N.E.2d 1167 (1987); Lockhart v. Attorney Gen., supra at 784, 459 N.E.2d 813; Blake v. Massachusetts Parole Bd., 369 Mass. 701, 707, 341 N.E.2d 902 (1976). The issues here, however, are not directed to unresolved constitutional issues as much as they are to whether this court should now abandon (indeed must abandon) its earlier views in favor of the United States Supreme Court's more recent controlling interpretations of the Constitution of the United States. Because the authority of Massachusetts judges to issue c. 209A orders intended to be effective and enforceable in various areas ceded to the Federal government is doubted, we conclude that we should answer the reported questions. 2

In several opinions, none of which is less than fifty years old and some of which are far older, this court (or its Justices) concluded that art. 1, § 8, cl. 17, of the Constitution of the United States granted exclusive jurisdiction to the Federal government over land ceded by the Commonwealth. See Employers' Liab. Assurance Corp. v. DiLeo, 298 Mass. 401, 404-405, 10 N.E.2d 251 (1937) (absent Federal statute authorizing otherwise, workers' compensation act did not apply to injury on land ceded to United States where contract of employment was made on that land); Opinion of the Justices, 1 Met. 580, 583-584 (1841) (unless act ceding land to Federal government states otherwise, inhabitants of the ceded land have neither benefits nor burdens of residency in municipality in which ceded land lies); Mitchell v. Tibbetts, 17 Pick. 298, 302 (1836) (unlicensed activity on ceded land could not be offense committed within the Commonwealth); Commonwealth v. Clary, 8 Mass. 72, 76-77 (1811) (same). The conclusions expressed were based solely on a construction of the Federal Constitution.

Opinions of the United States Supreme Court in more recent years have shown that the Constitution of the United States does not bar extension of the benefits and burdens of all State laws to inhabitants of land ceded to the Federal government. See Evans v. Cornman, 398 U.S. 419, 426, 90 S.Ct. 1752, 1756-57, 26 L.Ed.2d 370 (1970) (residents of Federal enclave ceded to United States must be given right to vote in State elections); Howard v. Commissioners of the Sinking Fund of Louisville, 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953) (city could annex area ceded to United States and, pursuant to Federal statute, impose income tax on persons working there). "The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government." Id. Since the Howard case, State courts have recognized that State law may apply in a Federal reservation provided that the State does not interfere with the primary jurisdiction of the Federal government. See In re Terry Y., 101 Cal.App.3d 178, 182, 161 Cal.Rptr. 452 (1980) (child abuse); County Comm'rs of Arapahoe County v. Donoho, 144 Colo. 321, 330-332, 356 P.2d 267 (1960) (public assistance); Matter of Salem Transp. Co., 55 N.J. 559, 563, 264 A.2d 47 (1970) (per curiam) (regulation of transportation services to and from military bases); Common Council of Gloversville v. Town Bd. of Johnstown, 32 N.Y.2d 1, 4-5, 342 N.Y.S.2d 841, 295 N.E.2d 644 (1973) (applying Federal rule to annexation of State-owned land by townships); Adams v. Londeree, 139 W.Va. 748, 768-769, 83 S.E.2d 127 (1954) (right to vote and run for public office). 3

The briefs filed as friends of the court (1) by the Attorney General of the Commonwealth on his own behalf and on behalf of the Department of Social...

To continue reading

Request your trial
13 cases
  • Commonwealth v. Eldred
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 16, 2018
    ...one issue appears to be moot. We therefore employ our general superintendence power to address the matter. See Cobb v. Cobb, 406 Mass. 21, 24 n.2, 545 N.E.2d 1161 (1989). See also Commonwealth v. Doe, 420 Mass. 142, 145-146, 648 N.E.2d 1255 (1995), overruled on another ground by Commonwealt......
  • Aviall Servs. v. Tarrant Appraisal Dist.
    • United States
    • Texas Court of Appeals
    • October 29, 2009
    ...by state over federal area within its boundaries, so long as there is no interference with federal jurisdiction); Cobb v. Cobb, 406 Mass. 21, 545 N.E.2d 1161, 1163 (1989) (stating state courts have recognized state law may apply in a federal reservation provided the state does not interfere......
  • L.F. v. L.J.
    • United States
    • Appeals Court of Massachusetts
    • May 30, 2008
    ...who live on Federally owned land because there is no entrenchment on the jurisdiction of the Federal government. Cobb v. Cobb, 406 Mass. 21, 26, 545 N.E.2d 1161 (1989) (court could issue an effective c. 209A order within the confines of an area ceded to the Federal government). Here, it is ......
  • Commonwealth v. Samuel S.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 17, 2017
    ...discretion to comment on issues presented despite fact that report from lower court was not properly before court); Cobb v. Cobb, 406 Mass. 21, 24 n.2, 545 N.E.2d 1161 (1989) (citing authority provided by G. L. c. 211, § 3, to answer improperly reported questions). 2. Registration as a sex ......
  • Request a trial to view additional results
2 books & journal articles
  • Incomplete justice: unintended consequences of military nonjudicial punishment.
    • United States
    • Air Force Law Review No. 60, December 2007
    • December 22, 2007
    ...Gregory O. Block, Exclusive Federal Legislative Jurisdiction: Get Rid of It!, 154 MIL. L. REV. II 3, 114 (1997); but see Cobb v. Cobb, 545 N.E.2d 1161, 1164 (Mass. 1989) (finding, contrary to older case law, state court restraining order effective on federal military base absent showing int......
  • Disciplinary Opinions
    • United States
    • Colorado Bar Association Colorado Lawyer No. 41-4, April 2012
    • Invalid date
    ...within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government."); Cobb v. Cobb, 545 N.E.2d 1161, 1164 (Mass. 1989) (holding that a state court had authority to apply a restraining order within the boundaries of a military reservation bec......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT