Irwin v. Commissioner of Dept. of Youth Services

• Decision Date: 15 April 1983
• Citation: 388 Mass. 810,448 N.E.2d 721
• Parties: Wendy Susan IRWIN v. COMMISSIONER OF the DEPARTMENT OF YOUTH SERVICES et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 721

448 N.E.2d 721

388 Mass. 810

Wendy Susan IRWIN v. COMMISSIONER OF the DEPARTMENT OF YOUTH SERVICES et al.¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 9, 1982.

Decided April 15, 1983.

Roberta Thomas Brown, Asst. Atty. Gen. (Elizabeth E. Laing, Asst. Atty. Gen., with her), for the Commonwealth.

Neil Sugarman, Boston (Margaret A. O'Reilly, Boston, with him), for plaintiff.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

In this case the court considers a question of the construction of G.L. c. 258, as appearing in St.1978, c. 512, § 15. ² The matter was certified to us by the United States District Court for the District of Massachusetts, pursuant to S.J.C. Rule 1:03, as amended, --- Mass. --- (1981), as a result of certain pretrial proceedings in an action now pending in that court. Irwin v. Calhoun, 522 F.Supp. 576 (D.Mass.1981). The first count of the plaintiff's complaint alleged a violation of 42 U.S.C. § 1983 (1976 & 1980 Supp.) through a deprivation of her constitutional rights by individual employees of the Department of Youth Services (department). The second count of the complaint, brought under G.L. c. 258, alleged that the Commonwealth, the department, and the Executive Office of Human Services had negligently failed to provide the plaintiff with reasonable medical services while she was in the custody of the department. The Commonwealth moved to dismiss the negligence claim on the ground that the Eleventh Amendment to the United States Constitution bars any action in Federal courts against the Commonwealth. The judge then requested the parties to address, inter alia, whether the Commonwealth has waived its constitutional immunity from suit in Federal courts by enacting G.L. c. 258. On motion of the Commonwealth, the judge certified the following question to this court: "Does Massachusetts General Laws Chapter 258 by its terms, either expressly or impliedly, indicate the Commonwealth's consent to suit by citizens in federal as well as state courts, thereby waiving its eleventh amendment immunity?" We answer that it does not.

1. Eleventh Amendment immunity. Briefly stated, the Eleventh Amendment to the United States Constitution, submitted to the legislatures of the several States in 1794 and ratified by the requisite three-fourths of the States by 1798, was a measure to protect State treasuries from the power of the Federal judiciary. ³ While by its terms the amendment bars only suits against a State by citizens of a sister State or of a foreign State, the United States Supreme Court "has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well." Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), and cases cited. The general rule, affirmed in Edelman, is that the Eleventh Amendment bars suit in Federal courts by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Id. at 663, 94 S.Ct. at 1356. A State may consent to be sued in its own courts, as Massachusetts has by statute, but a waiver of its Eleventh Amendment immunity from suit in Federal courts will not readily be inferred. See Edelman v. Jordan, supra at 673, 94 S.Ct. at 1360-61, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909) (waiver will be found only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction"); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959), citing Chandler v. Dix, 194 U.S. 590, 591-592, 24 S.Ct. 766, 767, 48 L.Ed. 1129 (1904) ("[n]or will a waiver of immunity from suit in state courts do service for a waiver of immunity where the litigation is brought in the federal court"); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 465, 65 S.Ct. 347, 351, 89 L.Ed. 389 (1945), quoting Great N. Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (1944) ("When a state authorizes a suit against itself to do justice to taxpayers who deem themselves injured by any exaction, it is not consonant with our dual system for the federal courts to be astute to read the consent to embrace federal as well as state courts"); Massachusetts Hosp. Ass'n v. Harris, 500 F.Supp. 1270, 1278 (D.Mass.1980) ("it is well settled that in the absence of a clear declaration of consent to suit in federal court, a state's consent to actions in its own courts will not be held to abrogate its Eleventh Amendment immunity"); Skehan v. Board of Trustees of Bloomsburg, 669 F.2d 142, 148-149 (3d Cir.1982) ("This rule of clear and express waiver has been consistently applied in cases in which a state has consented to suit in its own courts by statute; absent a clear declaration of a state's consent to a similar suit against itself in federal court, such consent has not been inferred"). ⁴ The Federal District Court has determined that, in this case, the question of waiver "hinge[s] entirely on the meaning of ambiguous terms [in G.L. c. 258] and therefore requires interpretation by the state court in light of the legislative intent. In such a case, the question of waiver may thereby be determined by an issue of state law appropriately decided by the state's highest court." Irwin v. Calhoun, 522 F.Supp. 576, 585 (D.Mass.1981), citing Parden v. Terminal Ry. of the Ala. Docks Dep't, 377 U.S. 184, 194-195, 84 S.Ct. 1207, 1214-15, 12 L.Ed.2d 233 (1964), and Ford Motor Co. v. Department of Treasury of Ind., supra 323 U.S. at 465-466, 65 S.Ct. at 351-52. See and compare Marrapese v. Rhode Island, 500 F.Supp. 1207, 1213 n. 13 (D.R.I.1980). We undertake to answer the question certified to us on that narrow basis alone.

2. Claims against the Commonwealth, 1879-1973. At the time St.1978, c. 512, § 15, was enacted, the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims. Statute 1879, c. 255, § 1, provided: "The superior court shall have jurisdiction of all claims against the Commonwealth, which are founded on contract for the payment of money, or which may have arisen under ... [former statutory provisions relating to the management of railroads, see McArthur Bros. v. Commonwealth, 197 Mass. 137, 138, 83 N.E. 334 (1908) ], and petitions setting forth such claims may be brought before said court sitting for the county of Suffolk, and shall be returnable on the return day of any regular term thereof." See Pub.Sts. (1882) c. 195, § 1 (retaining the jurisdictional provision and deleting reference to former railroad management provisions). Following close upon our decisions rejecting a contract claim not founded on the payment of money, Wesson v. Commonwealth, 144 Mass. 60, 10 N.E. 762 (1887), and holding that the statute did not permit recovery to reimburse a town for certain expenditures, Milford v. Commonwealth, 144 Mass. 64, 10 N.E. 516 (1887), the Legislature amended Pub.Sts. (1882) c. 195, § 1, as follows: "The superior court shall have jurisdiction of all claims against the Commonwealth, whether at law or in equity ... and all claims shall be subject to the same set off and recoupment as they would be if the Commonwealth was a private person ...." St.1887, c. 246. We construed this amendment as demonstrating a legislative intent "to extend the jurisdiction of the courts to claims which had not been included in the previous statute, such as those which had been considered in [Wesson, supra, Milford, supra ], but not necessarily to claims of a different and distinct character." Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 30, 24 N.E. 854 (1890). We held that Pub.Sts. (1882) c. 195, as amended, did not mean to extend the jurisdiction of the Superior Court to include tort claims against the Commonwealth, but rather "to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized." Id. at 31-33, 24 N.E. 854. See Nash v. Commonwealth, 174 Mass. 335, 338, 54 N.E. 865 (1899); McArthur Bros. v. Commonwealth, 197 Mass. 137, 138-139, 83 N.E. 334 (1908); Burroughs v. Commonwealth, 224 Mass. 28, 29, 112 N.E. 491 (1916); Glickman v. Commonwealth, 244 Mass. 148, 150, 138 N.E. 252 (1923).

Public Statutes (1882) c. 195, was recodified in 1902 as R.L. c. 201 and in 1921 as G.L. c. 258. The statute was amended several times between 1887 and 1978. Each version, however, retained a provision conferring jurisdiction of claims, with exceptions not here material, on the Superior Court. ⁵ In a 1908 decision, reviewing the then twenty-nine year history of the statute, the court stated: "It is first to be noted that the Superior Court alone is given original jurisdiction. This has been the tribunal designated in all the statutes, although until St.1905, c. 263, other litigants having claims in contract or replevin of more than $1,000, or within Suffolk County of more than $4,000, had the option of bringing their litigation either in the Supreme Judicial Court or the Superior Court, and in most matters in equity there is now concurrent jurisdiction. While many statutes have conferred exclusive jurisdiction upon the Supreme Judicial Court, this one constitutes the Superior Court, which is the great trial court of the Commonwealth, the exclusive tribunal for trials of this class of causes." McArthur Bros. v. Commonwealth, 197 Mass. 137, 139, 83 N.E. 334 (1908).

Five years before the major revision of G.L. c. 258, the Legislature amended §§ 1 and 2 through St.1973, c. 1114, §§ 337 and 339. Section 1, as amended, provided: "The superior court, except as otherwise expressly provided, shall have jurisdiction of all claims against the commonwealth." Section 2, as amended, provided: "The laws relative to tender, offer of...