Vining v. Com.

• Decision Date: 08 June 2005
• Docket Number: No. 04-P-835.,04-P-835.
• Citation: 63 Mass. App. Ct. 690,828 N.E.2d 576
• Parties: Stephen VINING v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

828 N.E.2d 576

63 Mass. App. Ct. 690

Stephen VINING v. COMMONWEALTH.

No. 04-P-835.

Appeals Court of Massachusetts, Middlesex.

Argued March 21, 2005.

Decided June 8, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph J. Balliro, Jr., Boston, for the plaintiff.

David B. Stanhill, Assistant Attorney General, for the Commonwealth.

Present: KANTROWITZ, SMITH, & GRAHAM, JJ.

GRAHAM, J.

We must decide whether the loss by court officers of property seized from a person in their custody gives rise to a cause of action under the Massachusetts Tort Claims Act (Act), G.L. c. 258. We hold that the exemption in G.L. c. 258, § 10(d), precludes recovery against the Commonwealth and affirm the ruling of a judge of the Superior Court dismissing the plaintiff's complaint.

Background. On or about September 16, 1998, the plaintiff was arrested and taken into custody by an officer of the Somerville police department. At the booking, an inventory was taken of the plaintiff's personal property, which included two rings and a watch.¹ The plaintiff was subsequently taken to Somerville District Court, where, according to a Somerville police department personal property inventory report, his personal property was transferred.

After his trial, acquittal, and release from custody, the plaintiff sought the return of his property. All of his property was returned except for the rings and the watch, which were never located. On September 12, 2000, the plaintiff filed a complaint in the Middlesex Superior Court against the city of Somerville, John Doe and the Commonwealth, alleging that officers of the Commonwealth seized his property with an intent to exercise temporary control over it, but either lost or converted the property while he was in custody.²

A judge in the Superior Court dismissed the plaintiff's action against the Commonwealth on the ground that the Commonwealth had not waived its sovereign immunity under the Act's "detention of goods" exception, § 10(d). This appeal followed.

Discussion. 1. General Laws, c. 258, § 10( d), exception. The Commonwealth may not be sued unless its sovereign immunity has been waived. See Irwin v. Commissioner of Dept. of Youth Servs., 388 Mass. 810, 812, 448 N.E.2d 721 (1983). The Act is such a waiver and grants subject matter jurisdiction to courts of the Commonwealth for claims against governmental entities, who historically have enjoyed sovereign immunity from such claims. General Laws c. 258, § 2, inserted by St.1978, c. 512, § 15, provides, in relevant part, that "[p]ublic employers shall be liable for ... loss of property ... caused by the negligent or wrongful act or omission of any public employee ... in the same manner and to the same extent as a private individual under like circumstances."³ The Act does not create any new theories of liability, but simply provides that tort actions brought against governmental entities are governed by the same theories of liability that apply to actions involving private parties. Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982).

The two major purposes of the Act are "to allow plaintiffs with valid causes of action to recover for harm suffered from public entities," and "to preserve the stability and effectiveness of government by providing a mechanism which will result in payment of only those claims against government entities which are valid." McGrath v. Stanley, 397 Mass. 775, 778, 493 N.E.2d 832 (1986). The Legislature has made clear that the Act "shall be construed liberally." St.1978, c. 512, § 18.

The Act's broad waiver of sovereign immunity is, however, subject to certain exceptions, including G.L. c. 258, § 10(d), as amended by St.1993, c. 495, § 57, which bars "any claim arising in respect of the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officer" (emphasis added). Neither the Supreme Judicial Court nor this court has determined whether "any law enforcement officer" under § 10(d) includes court officers. The plaintiff urges us to construe the foregoing language to cover only claims involving "the lawful seizure of money or goods connected to litigation initiated by the Commissioner of the Department of Revenue where a Court or statute has authorized the taking of property." The Commonwealth asks us to read the exception as a broad immunity from any and all claims originating from the lawful detention of property by any law enforcement officer.

The starting point of our analysis of these competing interpretations must, of course, be the language of the statute. We assume that the legislative purpose is expressed by the ordinary meaning of the words used. Courts "`are constrained to follow' the plain language of a statute when its `language is plain and unambiguous,' and its application would not lead to an `absurd result,' or contravene the Legislature's clear intent." Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79, 82, 706 N.E.2d 625 (1999), quoting from White v. Boston, 428 Mass. 250, 253, 700 N.E.2d 526 (1998). See Foss v. Commonwealth, 437 Mass. 584, 586, 773 N.E.2d 958 (2002) (when "statute is clear and unambiguous, [courts] construe the language in accordance with its plain and ordinary meaning"). "Where a statute is ambiguous, we may look to extrinsic circumstances to determine the intent of the Legislature as to its meaning. Accordingly, `[s]tatutes are to be interpreted ... in connection with their development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part....'" EMC Corp. v. Commissioner of Rev., 433 Mass. 568, 570, 744 N.E.2d 55 (2001), quoting from Pacific Wool Growers v. Commissioner of Corps. & Taxn., 305 Mass. 197, 199, 25 N.E.2d 208 (1940).

We find the interpretation urged by the Commonwealth to be persuasive. The language of G.L. c. 258, § 10(d), is clear and unambiguous. Section 10(d)'s broad language exempts from recovery "any claim" arising from the named conduct. "Any" in this context indicates "all" or "every." See Ballentine's Law Dictionary 80 (3rd ed.1969). Accordingly, a public employer is not liable for "any claim" that falls into the delineated conduct.

Further, when § 10(d)'s phrase "arising in respect of" is accorded its plain and ordinary meaning, it indicates that the claim "originates" or "stems" from a certain type of conduct. See Black's Law Dictionary 115 (8th ed.2004). Consequently, if the crux of the plaintiff's complaint refers to an incident or occurrence that originated from the type of conduct delineated in § 10(d), the action is barred.

We have long recognized that G.L. c. 258 is modeled closely on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq. (2000). See Pina v. Commonwealth, 400 Mass. 408, 414, 510 N.E.2d 253 (1987); Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-143, 587 N.E.2d 780 (1992). As such, Federal court decisions construing provisions of the FTCA are helpful in construing the Act. See Pina v. Commonwealth, supra; Sena v. Commonwealth, 417 Mass. 250, 255, 629 N.E.2d 986 (1994).

Section 2680(c) of the FTCA provides, in relevant part, that its general waiver of governmental immunity shall not apply to "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680(c). The Federal government, therefore, is not liable for "[a]ny claim arising in respect of ... the detention of any goods ... by ... [a] law enforcement officer." In Kosak v. United States, 465 U.S. 848, 854, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), the United States Supreme Court interpreted the phrase "arising in respect of" broadly, stating "`any claim arising in respect of' the detention of goods means any claim `arising out of' the detention of goods, and includes a claim resulting from negligent handling or storage of detained property."

The Court in Kosak v. United States, however, did not address whether the § 2680(c) exception applies to "law enforcement officer[s]" other than customs officials. Ibid. While the Federal courts do not provide clear guidance on this issue, the majority of Federal Circuit Courts of Appeals have read "§ 2680(c) expansively to include federal law enforcement officers beyond those who assess taxes or collect customs duties. See e.g., Chapa v. United States Dept. of Justice, 339 F.3d 388, 390 (5th Cir.2003) ([Bureau of Prisons] officers); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) ([Bureau of Prisons] officers); Halverson v. United States, 972 F.2d 654, 656 (5th Cir.1992) (Border Patrol officers); Cheney v. United States, 972 F.2d 247, 248 (8th Cir.1992) (drug task force agents); Schrob v. Catterson, 948 F.2d 1402, 1420 n. 16 (3d Cir.1991) ([Drug Enforcement Administration] agents); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 195 (11th Cir.1991) (U.S. Marshals); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed.Cir.1988) (Border Patrol officers); United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1491 (10th Cir.1984) (USDA inspection agents)." Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir.2003), cert. denied, ___ U.S. ___, 125 S.Ct. 45, 160 L.Ed.2d 14 (2004).

Similar to the majority of the Federal Circuit Courts of Appeals which interpret "law enforcement officer" in the FTCA expansively, we conclude that G.L. c. 258, § 10(d), should not be construed narrowly, as the plaintiff urges, to include only law enforcement officials engaged in tax or customs duties or who are authorized by court order to take custody of property or restrain the transfer of funds in civil actions.

General Laws c. 258, § 10(d), operates as a broad grant of immunity from claims originating from the "lawful detention of any goods or merchandise by any law...