Bell v. Mazza

• Decision Date: 04 March 1985
• Citation: 474 N.E.2d 1111,394 Mass. 176
• Parties: Lowry M. BELL, Jr. et al. 1 v. Peter J. MAZZA et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1111

474 N.E.2d 1111

394 Mass. 176

Lowry M. BELL, Jr. et al. ¹ v. Peter J. MAZZA et al. ²

Supreme Judicial Court of Massachusetts Norfolk.

Argued Jan. 8, 1985.

Decided March 4, 1985.

Daniel F. Featherston, Jr., Boston (Susan S. Riedel, Boston, with him), for plaintiffs.

Marc K. Temin, Boston (Michael B. Keating, Boston, with him), for defendants.

Marjorie Heins, Robert P. Sherman, Victor D. Del Vecchio and Shelagh A. Ellman, Boston, for Civil Liberties Union of Massachusetts et al., amici curiae, submitted a brief.

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

NOLAN, Justice.

The plaintiffs, Lowry M. Bell, Jr., and Diana M. Bell, appeal from an order of a Superior Court judge which dismissed their complaint for failure to state a claim under G.L. c. 12, § 11I, and 42 U.S.C. § 1985(3) (1982). The plaintiffs alleged that certain actions of the defendants, interfered with and denied the plaintiffs' rights secured by the Constitutions of the United States and the Commonwealth of Massachusetts by threats, intimidation or coercion in violation of G.L. c. 12, § 11I. ³ The plaintiffs further allege that the defendants, in a conspiracy, acted with invidious and discriminatory animus to deprive the plaintiffs, solely because of their membership in a recognizable class, of rights guaranteed by the Constitution of the United States in violation of 42 U.S.C. § 1985.

On defendants' motion to dismiss, a Superior Court judge dismissed count one of the complaint, ruling that "[t]here is no violation of [G.L. c. 12, §§ 11H and 11I] here as the plaintiffs complain of no interference by state action or class based animus with rights secured by the constitutions of either the United States or the Commonwealth, nor do they complain of any infringement of rights secured by any statutory enactment." The judge dismissed count two of the complaint, ruling that the plaintiffs failed to allege a "conspiracy ... motivated by class-based invidiously discriminatory animus" as required by 42 U.S.C. § 1985(3). We allowed the plaintiffs' application for direct appellate review. G.L. c. 211A, § 10(A). For the reasons stated in this opinion, we reverse that portion of the judgment dismissing count one under G.L. c. 12, § 11I, and affirm that portion of the judgment dismissing count two under 42 U.S.C. § 1985(3).

On appeal, the plaintiffs argue that the rights asserted are secured by the Constitutions of the Commonwealth and United States against individual as well as State action. More specifically, the plaintiffs argue violation of their rights under arts. 1, 10, and 12 of the Declaration of Rights to the Constitution of the Commonwealth. In Brett v. Building Comm'r of Brookline, 250 Mass. 73, 77, 145 N.E. 269 (1924), the court said: "The right to enjoy life and liberty and to acquire, possess and protect property are secured to every one under the Constitution of Massachusetts and under the Constitution of the United States. These guaranties include the right to own land and to use and improve it according to the owner's conceptions of pleasure, comfort or profit, and the exercise of liberty and the pursuit of happiness " (emphasis supplied). In a word, the plaintiffs argue that the defendants' conduct "by threats, intimidation or coercion" interfered with their right to use and improve their property by construction of a tennis court. ⁴

Moreover, the plaintiffs adopt the argument of the amici curiae that G.L. c. 12, § 11I, authorizes a civil action against a private person regardless of whether State action is present. ⁵ The defendants counter that the rights the plaintiffs assert are not secured against individual action and that G.L. c. 12, § 11I, does not authorize a civil action against private persons where the asserted right is secured only against State action. Alternatively, the defendants argue that their acts did not constitute "threats, intimidation or coercion" under G.L. c. 12, §§ 11H and 11I.

We briefly summarize the allegations contained in the complaint. The plaintiffs owned a parcel of land in an affluent neighborhood known as Rice Island in the coastal area of Cohasset. In late 1979, they considered the construction of a tennis court on their property. Upon the plaintiffs' inquiry in February, 1980, the Cohasset building inspector (inspector) informed the plaintiffs that a building permit was necessary for a fence around the proposed tennis court and that no zoning problems existed regarding the tennis court construction. On March 5, 1980, the inspector issued the plaintiffs a building permit subject to the approval of the Cohasset conservation commission (commission). After the commission's approval, the plaintiffs encountered several construction problems which precluded use of the proposed site. Therefore, they decided to construct the tennis court on a triangular section of land in front of their home.

The defendants Peter J. and Marilyn Mazza, joint owners of abutting land, became aware of the plaintiffs' intention to build a tennis court. On March 30, 1980, Peter Mazza told the plaintiffs that he and his wife objected to the construction of the tennis court because of an expected increase in traffic and noise as well as concern over incursions into the wetlands. Peter Mazza offered to purchase the land where the plaintiffs planned to build. Failing that, he stated "that he had 'connections' and would do 'anything', 'at any cost', to prevent the [plaintiffs'] construction of any tennis court." Later the same day, the plaintiffs' general contractor began to demarcate the construction site. These defendants then pursued several steps, either personally or through an attorney, to question the legality of the plaintiffs' proposed construction.

On April 14, 1980, the defendant David L. Weltman wrote the plaintiffs a letter objecting to the proposed tennis court construction. This letter informed the plaintiffs that certain considerations caused the formation of an association which included all the defendants. ⁶ The Weltmans were summer residents of property, owned by Mr. Weltman's mother, which abuts the plaintiffs' property at its front corner. The Hurtigs are residents and joint owners of property which abuts the Mazzas' property. The association sought to prevent construction of the tennis court asserting that it would violate the Cohasset zoning by-law.

A series of the plaintiffs' other allegations concern the defendants' pursuit of their legal position that the proposed tennis court violated the Cohasset zoning by-law. This battle culminated in the decision of Bell v. Zoning Bd. of Appeals of Cohasset, 14 Mass.App. 97, 437 N.E.2d 532 (1982), on June 30, 1982. The Appeals Court, affirming the Superior Court, determined that the plaintiffs were entitled to construct the tennis court as proposed. Id. at 105, 437 N.E.2d 532. The tennis court had been completed prior to that decision. Id. at 98, 437 N.E.2d 532.

During the period from March, 1980, through August, 1982, the defendants pursued various political and legal methods to prevent construction of the proposed tennis court. Several incidents occurred during this period. The defendant Peter Mazza threatened to sue the plaintiffs' blasting contractor in early May, 1980. The Mazzas attempted to induce the electric company to discontinue electric service to the plaintiffs and at one point physically blocked Diana Bell's passage, responding to her greeting with several intemperate epithets. Sometime late in May, 1980, the building inspector called the Cohasset police to remove Peter Mazza from the inspector's office when Mazza refused to leave during a dispute concerning the tennis court construction. Several times during the ongoing antagonism, the Mazzas called the police and fire departments concerning the plaintiffs' actions in constructing the tennis court.

1. G.L. c. 12, §§ 11H and 11I.

a. State action. We recently stated that "the protections of constitutional rights introduced in the Massachusetts Civil Rights Act may not be limited to State action. See G.L. c. 12, § 11H; G.L. c. 265, § 37 ('whether or not acting under the color of law')." United States Jaycees v. Massachusetts Comm'n Against Discrimination, 391 Mass. 594, 609 n. 9, 463 N.E.2d 1151 (1984) (emphasis in original). The judge recognized this proposition. The judge, however, apparently avoided the application of the statute to private action by restrictively interpreting the phrase "rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth ...." G.L. c. 12, § 11I. The judge ruled that, where the constitutional right asserted requires State action to implicate a violation, absent State action, the plaintiffs do not have a secured right to assert under G.L. c. 12, § 11I. The judge ruled that the rights asserted by the plaintiff were only secured against State action. Therefore, the plaintiffs failed to state a cause of action under G.L. c. 12, § 11I.

In Batchelder v. Allied Stores Corp., 393 Mass. 819, 473 N.E.2d 1128 (1985) (Batchelder II ), we had the opportunity to examine the legislative history of G.L. c. 12, §§ 11H and 11I, Based on this examination, we concluded that "[t]he Legislature enacted G.L. c. 12, §§ 11H and 11I, to provide a State remedy for deprivations of civil rights. The statute extended beyond the limits of its Federal counterpart by incorporating private action within its bounds. We conclude that the Legislature intended to provide a remedy under G.L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983, except that the Federal statute requires State action whereas its State counterpart does not." Batchelder II, supra at 822-823, 473 N.E.2d 1128.

The Legislature at least intended to incorporate a proscription on private acts in deprivation of secured constitutional rights. ⁷ This clear intent cannot be inhibited by a restrictive interpretation of one...