Laubinger v. Department of Revenue

• Decision Date: 14 November 1996
• Docket Number: No. 95-P-1441,95-P-1441
• Citation: 672 N.E.2d 554,41 Mass.App.Ct. 598
• Parties: Richard LAUBINGER & others 1 v. DEPARTMENT OF REVENUE & another. 2
• Court: Appeals Court of Massachusetts

Page 554

672 N.E.2d 554

41 Mass.App.Ct. 598

Richard LAUBINGER & others ¹ v. DEPARTMENT OF REVENUE & another. ²

No. 95-P-1441.

Appeals Court of Massachusetts Plymouth.

Argued June 11, 1996.

Decided Nov. 14, 1996.

Joyce Laubinger, pro se.

Salvatore M. Giorlandino, Boston, for Department of Revenue & another.

Before DREBEN, GILLERMAN and LAURENCE, JJ.

DREBEN, Justice.

Richard Laubinger and his second wife, Joyce, acting pro se, brought this action under 42 U.S.C. § 1983 (1994) against the Department of Revenue (department) to recover monies seized, allegedly in violation of due process, from their joint bank and credit union accounts. The funds were taken, without notice to Joyce, to satisfy Richard's child support arrearages to the children of his prior marriage to Elizabeth. The plaintiffs claimed damages for emotional distress on account of the wrongful seizure, ³ and Joyce also made claims on behalf of the three children of her previous marriage. A judge in the Superior Court allowed the defendants' motion for summary judgment. The question of the return of the funds is no longer a matter of contention between the parties as the department, at oral argument, indicated its willingness to return the monies, presumably with interest. ⁴ The other claims of the plaintiffs, however, remain to be addressed, and we must determine whether the defendants are, as they claim, qualifiedly immune from suit. We conclude that they are immune and affirm the judgment dismissing the complaint.

1. Background. After Richard failed to meet his child support obligations under a 1988 judgment of divorce, Elizabeth and the children received welfare benefits under the Commonwealth's program for Aid to Families with Dependent Children. A 1991 "temporary order" of a probate judge required Richard to pay, by wage assignment, $200 weekly child support to the department and, in addition, $10 weekly to the department and a like sum to Elizabeth to satisfy his arrearages of $816 owed to Elizabeth and $3,261 owed to the department.

On April 28, 1992, the department made written demand on Richard for payment of $4,601, the amount claimed to be then due, within thirty days. The demand notice, which listed Jerry J. Fay as deputy commissioner, informed Richard that if he failed to pay in full within the time stated, his debt would become "an assessment subject to the full range of administrative collection remedies" including "[l]ien, levy and seizure of real or personal property pursuant to M.G.L. c. 119A, sec. 6." ⁵ Additional notices of assessment and demand were sent to Richard by the department on June 5, 1992, and July 26, 1992. These notices declared that the assessment was now a lien on any "real and/or personal property" belonging to him and that the department would proceed to levy on his property without additional advance notice if the amount was not paid within thirty days. The notice contained a reference to administrative review but in large letters stated: "The only defense to these collection remedies is that you do not owe the money."

On February 1, 1993, the department sent levy notices, over the signature of defendant Fay, with copies to Richard, to several financial institutions instructing them to remit to the department all funds held by Richard up to $4,497 for past due child support. ⁶ The notices recited that the levy was applicable even if the account was a joint account and even if the support obligor had been making periodic payments toward past due support. This appears to have been the first notice to Richard that a joint account was subject to levy.

The levy notices resulted in the seizure of $315.36 from joint bank and credit union accounts of Richard and Joyce. The copies to Richard of the notices sent to the financial institutions were accompanied by a form advising Richard of his opportunity to request an administrative review of the department's levy actions. Since the form is not contained in the record, we do not know the nature and extent of the review as explained in the form.

As previously indicated, the defendants' motion for summary judgment was allowed, the complaint was dismissed, and this appeal followed. As also previously indicated, there is no longer any contention about the return of the funds seized; that claim has become moot.

2. Joyce's claims for damages under § 1983 against the department and against Deputy Commissioner Fay in his official capacity. Section 1983 of Title 42 of the United States Code (1994) provides in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress" (emphasis supplied).

Joyce's claims against the department may not be maintained because an agency of the Commonwealth is not a "person" subject to suit for monetary damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-2312, 105 L.Ed.2d 45 (1989); Johnson v. Rodriguez, 943 F.2d 104, 108-109 (1st Cir.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992) (State agency cannot be sued for damages in a § 1983 claim). Similarly, Joyce's claim for damages against Deputy Commissioner Fay in his official capacity must be dismissed, as "State officials sued for damages in their official capacity are not 'persons' under § 1983 because the law treats the action as [one] against the official's office and hence against the State." O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141 n. 13, 612 N.E.2d 641 (1993). "[T]o avoid a State's sovereign immunity to a damages suit, a plaintiff must sue the State official in his individual and not his official capacity." Ibid.

3. Qualified immunity--Joyce's claims against Fay in his individual capacity. We turn, therefore, to the more difficult question of Joyce's claim for damages against the only remaining defendant, Fay in his individual capacity. The gist of Joyce's complaint is that the defendant is liable because he violated her due process rights by depriving her of her property without notice or an opportunity for hearing. While Joyce's statements as to her ownership of the funds in the summary judgment materials were not always consistent, the defendant does not dispute that she, as a joint depositor, is entitled to challenge a creditor's attachment or levy. See R.H. White Co. v. Lees, 267 Mass. 112, 115, 166 N.E. 705 (1929). A joint owner has the right to show the extent of his or her real interest. Ibid. See Blanchette v. Blanchette, 362 Mass. 518, 521-523, 287 N.E.2d 459 (1972); Heffernan v. Wollaston Credit Union, 30 Mass.App.Ct. 171, 177 n. 7, 567 N.E.2d 933 (1991). Cf. United States v. National Bank of Commerce, 472 U.S. 713, 728-729, 105 S.Ct. 2919, 2928-2929, 86 L.Ed.2d 565 (1985) (statutory scheme permitting Internal Revenue Service levy and seizure of joint property is subject to postseizure administrative or judicial proceeding in which the ownership of funds can be resolved). Nor does the defendant dispute that Joyce as a joint depositor has due process procedural rights. See Zinermon v. Burch, 494 U.S. 113, 125-126, 110 S.Ct. 975, 983-984, 108 L.Ed.2d 100 (1990) (§ 1983 action may be brought for a violation of procedural due process). See also Carey v. Piphus, 435 U.S. 247, 259-261, 98 S.Ct. 1042, 1050-1051, 55 L.Ed.2d 252 (1978); Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 573-74, 121 L.Ed.2d 494 (1992).

What Fay does contest is that Joyce was constitutionally entitled to preseizure notice, and he claims that in any event he is entitled to qualified immunity, an affirmative defense, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-1924, 64 L.Ed.2d 572 (1980), which he raised in his answer. Because no material fact is in dispute, the question before us is one of pure law.

The doctrine of qualified immunity shields public officials who are performing discretionary functions, not ministerial in nature, from civil liability in § 1983 actions if at the time of the performance of the discretionary act, the constitutional or statutory right allegedly infringed was not "clearly established." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26 31 -32, 513 N.E.2d 1277 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). Dobos v. Driscoll, 404 Mass. 634, 646-647, 537 N.E.2d 558, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989). Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493, 649 N.E.2d 770 (1995). ⁷ Accordingly, qualified immunity must be decided according to the law in effect at the time of the alleged violation.

Since "[e]ven defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard," Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984), and since resolution of the constitutional question under current law presents difficult questions unnecessary to our decision, we proceed directly to the questions raised by the qualified immunity defense, without deciding what notice or hearing is constitutionally required under current law. Acierno v. Cloutier, 40 F.3d 597, 606 n. 7 (3d Cir.1994). See Duarte v. Healy, 405 Mass. 43, 46, 537 N.E.2d 1230 (1989).

The first question to be determined in analyzing qualified immunity is whether Fay's actions in levying and seizing the joint accounts without prior notice or hearing were discretionary functions. "A law that fails to...