Edwards v. Commonwealth

• Decision Date: 12 October 2021
• Docket Number: SJC-13073
• Parties: Saundra R. EDWARDS v. COMMONWEALTH & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 555

174 N.E.3d 1153

Saundra R. EDWARDS

v.COMMONWEALTH & another.¹

SJC-13073

Supreme Judicial Court of Massachusetts, Essex.

Argued May 5, 2021.

Decided October 12, 2021.

Terence P. McCourt, Special Assistant Attorney General, for the Commonwealth.

Gail M. McKenna, Brockton, for the plaintiff.

Present: Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GAZIANO, J.

In September 2014, Governor Deval Patrick dismissed the plaintiff from her position as chair of the Sex Offender Registry Board (SORB), to which he had appointed her some seven years earlier. In statements to the media, Patrick said that he had fired the plaintiff because she had interfered in a sex offender classification proceeding and had attempted inappropriately to influence the hearing examiner. The case involved a question whether a California statute was a "like offense" to a crime in Massachusetts; the petitioner in the proceeding was Patrick's brother-in-law. The plaintiff subsequently filed a complaint against Patrick for defamation and against the Commonwealth for wrongful termination under G. L. c. 149, § 185, the Massachusetts whistleblower act. We ordered the claims against Patrick dismissed on the ground that the plaintiff did not plead sufficient facts to show that Patrick's statements to the media were made with actual malice, see Edwards v. Commonwealth, 477 Mass. 254, 255, 76 N.E.3d 248 (2017), and a Superior Court judge subsequently denied the Commonwealth's motion for summary judgment on the remaining whistleblower claim. At issue here is the Commonwealth's interlocutory appeal from that decision. We conclude that the whistleblower act is applicable in these circumstances and that there was no error in the judge's decision to deny the Commonwealth's motion for summary judgment, as genuine issues of material fact remain in dispute.

1. Background. We recite the relevant facts from the summary judgment record, reserving certain details for later discussion. See Edwards, 477 Mass. at 255-259, 76 N.E.3d 248. We view the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," Flesner v. Technical Communications Corp., 410 Mass. 805, 808, 575 N.E.2d 1107 (1991), in the light most favorable to the nonmoving party, here, the plaintiff, see Chambers v. RDI Logistics, Inc., 476 Mass. 95, 99, 65 N.E.3d 1 (2016).

a. Plaintiff's work with SORB. SORB is an administrative agency within the Executive Office of Public Safety and Security (EOPSS); it is responsible for classifying and maintaining a centralized registry of sex offenders under the Massachusetts sex offender registration act, G. L. c. 6, §§ 178C - 178Q (registration act). SORB is led by a chair who "shall be appointed by and serve at the pleasure of the governor ... [to] be the executive and administrative head" of the agency. G. L. c. 6, § 178K (1), second par. The plaintiff served in this role from November of 2007 to September of 2014, after having worked for over thirteen years as an assistant district attorney in Plymouth County.

Before she was hired at SORB, the plaintiff interviewed with EOPSS's Secretary (Secretary) and Undersecretary of Criminal Justice (Undersecretary); she was not interviewed by Patrick, and was never introduced to him. Her appointment letter, dated October 4, 2007, was printed on letterhead from the Commonwealth and was signed by Patrick as Governor. During her time at SORB, the plaintiff understood her supervisor to be the Undersecretary, with whom she was in contact on at least a weekly basis. The plaintiff received positive annual personnel reviews, which were completed by the Undersecretary.

b. Sigh/Paglia matter. In 1993, Bernard Sigh pleaded guilty in California to the crime of spousal rape, see Cal. Penal Code § 262. He admitted that he had "accomplished an act of sexual intercourse with [his] wife against her will by means of force." After serving a term of incarceration, Sigh moved to Massachusetts, but he did not register as a sex offender. Generally, any person who has been convicted of a sex offense in another State that is a "like offense" to a sex offense that requires registration under Massachusetts law must register with SORB if the individual moves to the Commonwealth. See G. L. c. 6, § 178C (sex offense includes "like violation of the laws of another [S]tate"); G. L. c. 6, § 178E (g ) (registration by sex offender is required within two days of moving to Massachusetts). See, e.g., Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615–616, 925 N.E.2d 533 (2010) (Maine sex offense was "like violation" because elements were "the same or nearly the same as an offense requiring registration in Massachusetts").

After Sigh's offense and failure to register became a public issue during Patrick's 2006 gubernatorial campaign, SORB undertook an investigation of Sigh's case. SORB made a preliminary recommendation that Sigh be required to register as a low-risk, level one sex offender. At that time, such a classification did not mandate public disclosure. Sigh requested a hearing pursuant to G. L. c. 6, § 178L (1) (a ), and 803 Code Mass. Regs. § 1.04(3) to challenge the preliminary classification; he also filed a motion seeking relief from the requirement that he register. SORB's general counsel, Daniel Less, asked the parties to brief the issue whether the conviction of "spousal rape" in California was a "like offense" to rape in Massachusetts, and also asked the Attorney General for an opinion on that question.² SORB's acting director wanted to wait to hold a hearing on Sigh's motion until the Attorney General had responded.

An assistant general counsel at SORB (who had been told that Sigh was Patrick's brother-in-law) thought that no hearing was necessary because the offense of rape carries a lifetime registration requirement in Massachusetts, and the level one classification order should issue, as no better outcome for Sigh would be possible. He therefore filed a motion for a required finding that Sigh be classified as a level one sex offender. Hearing examiner Attilio Paglia denied that motion and began a three-day hearing on Sigh's motion for classification that same day, August 1, 2017. Paglia had arranged to take the Sigh matter from the hearing officer to whom it originally had been assigned. At the end of the hearing, Paglia made an oral ruling that the crime of spousal rape in California was not equivalent to rape in Massachusetts, but rather to indecent assault and battery, and that Sigh was relieved of the obligation to register as a sex offender.³ For an oral ruling to be made at a SORB hearing was rare; Paglia testified that he could recall two out of approximately 250 cases he had decided where he made an oral ruling rather than take the matter under advisement at the end of the hearing. On September 14, 2007, Paglia internally submitted his initial written decision absolving Sigh from the requirement of registration.

The plaintiff began her service as chair of SORB several months later, in November of 2007. During her first days in the position, Paglia himself informed her about a particular matter she later learned was the Sigh matter; he told her that he felt others at SORB were upset by the way it had been handled and were calling and sending him e-mail messages about it, and that he was unsure how to handle the decision where others at SORB did not agree with the outcome he had reached. When the plaintiff met with senior SORB staff several days later, they explained their view of the situation to her and told her of their frustration with the decision and their belief that it was incorrect. The plaintiff reviewed the decision and the recordings of the hearing and determined that Paglia's conclusion that Sigh had not committed an offense that was equivalent to the crime of rape in Massachusetts was erroneous; the plaintiff also believed based on those recordings that the level one determination was incorrect and Sigh's risk of reoffense was higher. The plaintiff and senior staff at SORB and EOPSS accordingly decided to wait for the opinion by the Attorney General before allowing a written decision to be released, and delayed issuance of Paglia's written decision. They also contemplated issuing a one-line decision stating simply that, after a hearing, Sigh's motion to be relieved of the obligation to register was allowed.

In May of 2008, the plaintiff again met with Paglia. She explained the elements of rape under Massachusetts law and emphasized that "rape is rape" regardless of the relationship of the parties involved;⁴ she did not, however, tell Paglia specifically what to do with the decision in the Sigh matter, and she explicitly declined to answer when he asked her what she wanted him to do, instead directing him to seek advice from another SORB employee if he needed help with the legal analysis. Paglia later told her that he had based his decision on a Superior Court decision he found compelling, and on his belief that the conclusion that the Sigh matter involved a violent offense was "not fair." Shortly thereafter, and following further consultation by the plaintiff with her superiors at EOPSS, SORB issued the Sigh decision as Paglia originally had drafted it.

The plaintiff then implemented a staff-wide training on the elements of every offense over which SORB had jurisdiction, with instruction by a former assistant district attorney, and informed Paglia that he would need to have remedial training on these elements. The plaintiff also promulgated a regulation permitting board-level review of decisions by individual hearing examiners. Prior to that, individual hearing examiners generally could issue decisions without further review within SORB, and SORB staff doubted they had any authority to prevent issuance of a decision by an individual examiner; although a respondent could appeal from a decision of a hearing...