MacLean v. Delinsky

• Decision Date: 09 July 1990
• Citation: 407 Mass. 869,556 N.E.2d 60
• Parties: John D. MacLEAN, et al. 1 v. Stephen R. DELINSKY, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 60

556 N.E.2d 60

407 Mass. 869

John D. MacLEAN, et al. ¹ v. Stephen R. DELINSKY, et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 2, 1990.

Decided July 9, 1990.

John F. Mee, Boston (Marshall E. Johnson with him), for plaintiffs.

Roberta T. Brown, Sp. Asst. Atty. Gen., for the Com.

Marshall Simonds, Sp. Asst. Atty. Gen. (Michael J. Tuteur, Sp. Asst. Atty. Gen., with him), for Frederick W. Riley.

Jack I. Zalkind, Lawrence F. O'Donnell, Sp. Asst. Atty. Gen., Harry L. Manion, III, Earle C. Cooley, & Leo J. Cushing, Boston, for Stephen R. Delinsky & others, joined in a brief.

Before WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

This action was commenced by the filing of a complaint alleging that the plaintiff John D. MacLean (MacLean) sustained severely disabling emotional injury and, as a consequence, the plaintiff Joan M. MacLean sustained loss of consortium, as a result of the conduct of the seven individual defendants. The case against the Commonwealth is based on the alleged negligence of the defendants Delinsky and Riley, assistant attorneys general, in connection with their authorization of electronic interception of MacLean's conversations, and is brought under G.L. c. 258 (1988 ed.), the Massachusetts Tort Claims Act. The case against the individual defendants presents several claims. The plaintiffs allege that MacLean's injuries resulted from the electronic surveillance of his conversations, in which surveillance all the defendants allegedly participated, in violation both of the Commonwealth's wiretap statute, G.L. c. 272, § 99 (1988 ed.), and its invasion of privacy statute, G.L. c. 214, § 1B (1988 ed.). The plaintiffs also allege against the individual defendants that MacLean's injuries were caused by his having been interrogated following the electronic surveillance and that that interrogation violated his rights under the Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H and 11I (1988 ed.). In addition, both the electronic surveillance and the interrogation were alleged to be grounds for a right of recovery on the common law tort theory of intentional infliction of emotional distress.

The defendants moved for summary judgment, and a judge of the Superior Court granted summary judgment for the defendant Barczak on MacLean's claims for violation of G.L. c. 12, § 11I, and G.L. c. 214, § 1B, and summary judgment for the other seven defendants on all counts (MacLean's and Joan MacLean's claims). ³ After the entry of final judgment, the plaintiffs appealed. We granted their application for direct appellate review, and now affirm.

In support of their motions for summary judgment, the defendants submitted affidavits of the defendants Delinsky, Riley, and Norton, and of Thomas R. Kiley, then first assistant attorney general. They also submitted excerpts and exhibits from a deposition given by MacLean. A fair summary of the relevant facts set forth in those materials is as follows. Barczak was a tax examiner in the Department of Revenue. On June 24, 1982, he was arrested after receiving a bribery payment from a delinquent taxpayer. Barczak informed the defendant Delinsky, who was then an assistant attorney general and the chief of the Attorney General's criminal bureau, and the defendant Riley, who also was an assistant attorney general and was the chief of criminal investigation, that a number of department employees were involved in a scheme to "shake down" delinquent taxpayers. According to the affidavits, that information tended to confirm other information previously received by the Attorney General's office. Barczak agreed to cooperate with an investigation that would be headed by Delinsky and Riley.

Barczak was placed in voluntary protective custody, which was performed by Massachusetts State troopers assigned to the State police unit of the Attorney General's office. MacLean, a State trooper, was assigned to guard Barczak on Saturday, June 26, 1982, from midnight to 8 A.M. and from 4 P.M. to the following midnight. He was directed to report to Barczak's house in Lawrence. Upon MacLean's arrival, the trooper whom he relieved introduced MacLean to Barczak and his wife and, with Barczak's consent, gave MacLean a device for recording calls on Barczak's telephone. MacLean then spent the night sitting in his cruiser in the driveway of Barczak's house.

During the 4 P.M. to midnight shift, Barczak approached MacLean's cruiser, which was parked in front of Barczak's house, and asked MacLean whether they could take a ride. MacLean agreed to do so, and Barczak and MacLean went to a restaurant in Salem, New Hampshire. Later in the evening, they visited two bars in Massachusetts where they drank beer and talked. On Monday morning, June 28, a newspaper article revealed that a Department of Revenue employee had been arrested for accepting a bribe and was cooperating with the office of the Attorney General. Delinsky and Riley feared that the publicity would interfere with their investigation, and their fears increased when Barczak told them that he no longer wanted to cooperate with the investigation because one of their own people was trying to "reach" him.

On June 28, Barczak told Riley about his Saturday evening with MacLean. Barczak told Riley that MacLean had said to Barczak: "If a dark cloud comes over your head, give me a call. We have a lot of money and good attorneys." According to Barczak, MacLean wrote the headquarters telephone number on a napkin and gave it to Barczak. Barczak gave the napkin to Riley.

On June 29, Barczak had an appointment with an attorney. MacLean was assigned to escort Barczak to that meeting. Later that day, Barczak told Riley that, on the way back from the attorney's office, Barczak had asked MacLean whether he remembered their earlier conversation in which MacLean offered his help. MacLean said that he did. Barczak then asked MacLean whether the telephone number MacLean had given him was MacLean's home telephone number. MacLean said "no," and gave Barczak his home number written on an envelope. Barczak gave the envelope to Riley. Also, in his conversation with Riley on June 29, Barczak told Riley that, on the evening of June 28, as Barczak was taking rubbish to the rear of his house, he was startled by an unidentified man, who was positioned so that he could not be observed by the trooper guarding Barczak. The man, according to Barczak's statement to Riley, said, "Hi, Stan ... [w]e want you to keep quiet. Don't say anything. We'll keep in touch with you." The man then left.

On June 30, Barczak reported to the Attorney General's office that he was again confronted by a second unidentified man who told him that, if he followed "our" instructions, and did not say anything, "we've got $250,000" and lawyers and would be in touch with him.

Riley passed on to Delinsky any of Barczak's reports that had not been made directly to Delinsky.

MacLean's assignment to the State police unit of the Attorney General's office terminated on June 30, 1982. MacLean said nothing to Delinsky or Riley about his trips with Barczak or the conversations that, according to Barczak's reports, had taken place between him and Barczak.

Delinsky and Riley decided to investigate MacLean. They instructed Barczak to telephone MacLean at his home on July 1 to arrange a meeting, and to record the telephone conversation electronically. Barczak agreed. The defendant Lieutenant Norton of the State police unit of the Attorney General's office was called in to assist in the technical preparations for the recording of the telephone call. On July 1, Barczak called MacLean and they agreed to meet in front of the New England Aquarium the next day. Both the telephone call and the subsequent meeting at the aquarium were electronically recorded with Barczak's consent but without a warrant. Pursuant to Delinsky and Riley's request, Norton assigned the defendants Staff Sergeant Francis McGovern, Lieutenant William P. Lennon, and Sergeant George Anderson to do undercover surveillance with him of the July 2 meeting. MacLean did not tell Delinsky, Riley, or Norton about the telephone call or the scheduled meeting.

Barczak went to the July 2 meeting wearing a concealed electronic device that recorded but did not transmit. There, the defendant troopers conducted visual, but not audio, surveillance. Trooper Charles Eastman drove with MacLean to the scheduled meeting with Barczak. Eastman remained in the vehicle while MacLean and Barczak talked in front of the aquarium for about thirty minutes. Eastman noticed that the meeting was being observed, and he informed MacLean, who then searched Barczak and found the recording device.

Later that same day, MacLean and Eastman were questioned at the Attorney General's office by Delinsky, Riley, and Norton. Subsequently, MacLean sought treatment with the State police stress unit. He remained out of work until December 21, 1983. No criminal charge was ever filed nor disciplinary action taken against MacLean.

A motion for summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with [supporting] affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [rule 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). See LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989), and cases cited.

This case presents several theories...