Sullivan v. Chief Justice for Admin.

Citation448 Mass. 15,858 N.E.2d 699
Decision Date15 December 2006
CourtUnited States State Supreme Judicial Court of Massachusetts

Page 699

858 N.E.2d 699
448 Mass. 15
Edward J. SULLIVAN1 & others2
Supreme Judicial Court of Massachusetts, Suffolk.
Argued September 7, 2006.
Decided December 15, 2006.

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Richard M. Zielinski, Special Assistant Attorney General, & David A. Guberman, Assistant Attorney General (Richard W.

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Renehan, Special Assistant Attorney General, with them) for the defendant.

Chris A. Milne, Dover, for the plaintiffs.



In this case, we consider the actions or inaction of the Chief Justice for Administration and Management of the Trial Court (CJAM) pertaining to the maintenance of the Edward J. Sullivan Courthouse (Sullivan Courthouse) in Cambridge. The thrust of the plaintiffs' complaint is that, as a direct result of the CJAM's conduct, they have suffered significant exposure to asbestos, a highly toxic substance. On April 18, 2006, the plaintiffs filed their first amended complaint (complaint) in the Supreme Judicial Court for Suffolk County seeking declaratory and equitable relief, or, in the alternative, petitioning the Supreme Judicial Court to exercise its powers of general superintendence under G.L. c. 211, § 3. Additionally, the plaintiffs' complaint alleges claims for nuisance, assault and battery, and violations of environmental laws.3 The CJAM filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974).4 After holding several hearings on preliminary matters, a single justice reserved and reported the following questions, pertaining to the CJAM's motion to dismiss, to the full court:

"1. Whether some or all counts of the plaintiffs' first amended complaint must be dismissed on the grounds cited by the [CJAM] in [his] motion to dismiss, namely:

"a. that the plaintiffs lack standing to bring these claims;

"b. that the complaint fails to state a claim on which relief can be granted;

"c. that the claims are barred by sovereign immunity.

"2. Whether the first five counts of the amended complaint are barred, as the [CJAM] contend[s], for the additional reason that general superintendence by this court is the exclusive form of review of the actions or inactions of the [CJAM] in this area.

"3. If one or more of the first five counts survive the motion to dismiss, whether the Superior Court has concurrent jurisdiction with this court over those counts.

"4. If general superintendence by this court is the plaintiffs' exclusive remedy, whether a determination can be made on this record to dismiss count six of the amended complaint, i.e., the count seeking general superintendence.

"5. Whether the provisos added to the second paragraph of G.L. c. 211, § 3, by St.1992, c. 379, § 61, are valid limitations on this court's inherent power to superintend the court system, and, if so, what constitutes `extraordinary circumstances leading to a severe, adverse impact on the administration of justice' for purposes of this case."

1. Background. We begin with an overview of the facts as alleged in the plaintiffs' complaint, reserving additional facts for later discussion. The Sullivan Courthouse

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is the home of the Middlesex County district attorney's office, the Superior Court in Middlesex County, the Cambridge District Court, and the Cambridge jail. As such, the plaintiffs all have their principal places of business in the Sullivan Courthouse, or they practice law there. In the summer of 2004, the plaintiffs became concerned about the potential health effects of maintenance work, including elevator replacement and asbestos abatement in the elevator shafts and mechanical room, that was scheduled to begin in December, 2004, and to occur while the Sullivan Courthouse was occupied. The plaintiffs learned, through requests made pursuant to the Federal Freedom of Information Act, 5 U.S.C. § 552 (1996), that approximately 90,000 pounds of asbestos had been applied throughout the building as fireproofing insulation when the building was constructed in the late 1960's. Beginning in the 1980's and continuing through November, 2004, maintenance and renovation work was performed regularly without the implementation of any asbestos safety measures. These activities exposed building occupants, maintenance personnel, and outside contractors to friable asbestos,5 without any warnings of hazardous conditions.

In May, 2000, the CJAM advised the division of capital asset management (DCAM) that the presence of asbestos in the Sullivan Courthouse may "pose a potential exposure hazard to the general building occupants as well as in-house maintenance workers and outside trades." The CJAM asked that asbestos "in all areas of the building" be investigated, and that DCAM undertake "all necessary steps to contain or abate the asbestos."

By 2004, a plan was being developed to perform substantial renovations to the Sullivan Courthouse, including elevator upgrades and asbestos abatement. Once they learned about this plan, the plaintiffs consulted environmental and health professionals to assess the potential health hazards posed by the renovations. In December, 2004, a report from these professionals was delivered to the CJAM and stated as follows: "Neglect on the part of building owners has allowed [unmanaged friable asbestos] to exist for years. Although problems were identified in the early 1980's, to date there has been a) no inspection and identification of asbestos-containing material in the building, b) no description of the condition of this asbestos-containing material, c) no development and implementation of an operations [and] maintenance program, and d) no informing of those at risk, with asbestos training for custodians and maintenance personnel." The report further stated that such conditions "have created an unacceptable health risk for those who work in or occupy the building." The environmental and health professionals recommended, inter alia, that all asbestos be removed immediately from the Sullivan Courthouse, that an operations and maintenance plan be developed and implemented before the commencement of the asbestos abatement, and that building occupants be relocated for the duration of the abatement.

On December 22, 2004, in response to widespread public concerns, the CJAM, along with DCAM, released the "Edward J. Sullivan Courthouse High Rise Building Action Plan and Protocol" (action plan). In this action plan, the CJAM represented that transparency would be maintained throughout the renovation process, that an asbestos operations and maintenance manual would be implemented in the next few

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weeks, that all information (including air sampling data) would be made available for public review, that occupants of the Sullivan Courthouse would be notified in advance of work activities in the building, and that a planned elevator project was on hold and would not proceed until discussions were first held with building occupants about the scope of the work. Similar assurances were given by the CJAM to the house of delegates of the Massachusetts Bar Association and to the public in several press statements.

Notwithstanding the CJAM's repeated assurances, asbestos abatement occurred in the basement of the Sullivan Courthouse in January, 2006. The building's occupants were not notified about this project as required by the action plan. On February 10, a complaint was made to the division of occupational safety (division) about this work and a related elevator project. The plaintiffs were unable to obtain any information about these matters. In March, occupants of the Sullivan Courthouse learned that five elevators had failed inspection for the second time in ninety days, and that many of the building's elevators had failed their annual inspections in December, 2005. Repeated requests for information from the Administrative Office of the Trial Court (AOTC) about conditions in the Sullivan Courthouse were denied.

On April 4, 2006, the Middlesex County district attorney's office received a telephone call from the environmental coordinator at the Sullivan Courthouse, advising that work on one of the elevators would begin on April 7. The work involved "pre-cleaning" and "cable replacement operations." No information as to the specifics of the project was given to the plaintiffs, notwithstanding the presence of asbestos in the elevator shafts and mechanical rooms, and the CJAM's promises to keep the building's occupants fully informed about any maintenance projects. The plaintiffs immediately sought a temporary restraining order (TRO) in the Superior Court to stop the work. At the hearing on the TRO, a field supervisor in the asbestos and lead program of the division testified that, while he did not consider the work on the elevator shaft to be an abatement project, debris containing asbestos would be removed from the top of the elevator. Nonetheless, the plaintiffs' request for a TRO was denied, and work on the elevator proceeded as planned. The present action ensued.

2. Standard of review. In reviewing a motion to dismiss under rule 12(b)(1) or (6), "we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true." Ginther v. Commissioner of Ins., 427 Mass. 319, 322, 693 N.E.2d 153 (1998). See Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977), and cases cited. "[A] complaint is sufficient against a motion to dismiss if it appears that the plaintiff may be entitled to any form of relief, even though the particular relief he has demanded and the theory on which he seems to rely may not be appropriate." Id. at 104, 360 N.E.2d 870. A motion to dismiss will be granted only where it appears with certainty that the nonmoving party is not entitled to relief...

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