Opinion
No. 10–P–899.
2012-10-29
Father Joseph RANDALL & another v. Marian HADDAD & others.
By the Court (KANTROWITZ, MILLS
Justice Mills participated in the deliberation on this case prior to retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs Randall, who is an Eastern Orthodox monk, and the St. Nectarios Monastery, appeal from a judgment
dismissing their claims for trustee process and injunctive relief against the Attorney General and the State Board of Retirement (board).
This appeal could be considered premature as claims remain pending against Marian Haddad, proceedings continue as to her in the trial court, and no separate and final judgment entered as to the Commonwealth defendants. No party raises this issue, however, and we proceed to the merits in our discretion.
On February 3, 2006, the defendants Marian Haddad and the Holy Annunciation Monastery Church of the Golden Hills (church), a nonprofit corporation essentially controlled by Haddad, sold the church's real property for $105,000. At the time of the sale, the property was the subject of the plaintiffs' pending Superior Court complaint to establish their ownership of the property. On March 2, 2006, a Superior Court judge, at a hearing on the plaintiffs' motion for injunctive relief, ordered that the proceeds from the sale be deposited in escrow. Haddad, who was present at the hearing, nonetheless withdrew $98,771 of the proceeds that same day from the church's account. She used $40,000 of the proceeds to purchase “back years” from the State retirement system, thus enhancing her pension benefits upon retirement. Ultimately, the court entered a default judgment in the plaintiffs' favor for $105,000, plus interest and costs. The plaintiffs then brought this action seeking to recover the funds misappropriated by Haddad. As to the Commonwealth defendants, the complaint sought (1) an injunction prohibiting the board from releasing to Haddad $40,000 held in her retirement account, and (2) attachment by trustee process on those funds. The Commonwealth moved to dismiss the claims against it on the grounds that it was entitled to sovereign immunity from trustee process claims and that State pensions are exempt from attachment pursuant to G.L. c. 32, § 19, except in limited circumstances not applicable here.
As noted by the motion judge, the Supreme Judicial Court has affirmed that the Legislature has not waived the Commonwealth's sovereign immunity from trustee process. See William J. McCarthy Co. v. Rendle, 222 Mass. 405, 406 (1916) ( “[T]he commonwealth cannot be summoned as trustee into its own courts”); MacQuarrie v.. Balch, 362 Mass. 151, 152 (1972) (“The law is clear that the Commonwealth cannot be summoned as a trustee under trustee process without statutory authorization and, therefore, there can be no attachment by trustee process of prospective aid payments before they are paid to eligible recipients”). This issue seems settled.
In addition, c. 32, § 19, inserted by St.1945, c. 658, § 1, provides unequivocally that the rights of a member of the State retirement system to the funds in the system “shall not be attached or taken upon execution or other process.” Indeed, the plaintiffs concede in the opening of their argument “that state statutes prohibit satisfaction of a money judgment from a state pension via trustee process. [G.L.] c. 32, § 19; [G.L.] c. 248, § 28.”
To avoid the clear statutory mandates involved here, the plaintiffs attempt some interesting, but unavailing, arguments. As to sovereign immunity, they contend that it is a judicially created doctrine which can be abrogated, judicially, when appropriate. As noted by the Commonwealth, this is an incorrect statement of the current law. Since the passage of the Massachusetts Tort Claims Act, exceptions to the Commonwealth's sovereign immunity are controlled by statute. See, e.g., Bain v. Springfield, 424 Mass. 758, 762–763 (1997).
The plaintiffs argue that the Commonwealth has waived its immunity by adopting the Uniform Fraudulent Transfer Act, G.L. c. 109A, and not exempting itself from its provisions. Again, as noted by the Commonwealth, “[t]he rule in Massachusetts is not that the Commonwealth may be sued unless it is specifically exempted; it is that the Commonwealth may not be sued unless it is specifically included.” See Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981).
The plaintiffs also argue that because Haddad deposited stolen money into her retirement account, she has, in effect, misappropriated State funds because State resources were used to administer her deposit of $40,000. Accordingly, they argue, her pension is subject to forfeiture under G.L. c. 32, § 15, and may be attached by a creditor. The argument that § 15 applies is simply incorrect. The provision applies only if Haddad had misappropriated funds of the “governmental unit in which or by which [s]he is employed or was employed at the time of [her] retirement or termination of service, ... or of any [retirement] system of which [s]he is a member,” and only if she were criminally charged or convicted. Id., inserted by St.1945, c. 658, § 1. These criteria have not been met, and the exception does not apply.
The plaintiffs also invite us to create a new equitable exception to the proscription on the attachment of retirement funds, on the ground that, here, the funds deposited into that account were stolen. They cite no authority whatsoever in support of this argument and we are not persuaded.
Finally, they argue that the common law doctrine of sovereign immunity is abrogated by art. V of the Massachusetts Declaration of Rights, which provides: “All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.” They argue that the last phrase, “are at all times accountable to [the people],” eliminated sovereign immunity in Massachusetts. This argument and their other arguments fail in the face of the settled case law and the specific applicable statutory provisions. We note that we are constrained by these authorities to reach this result whatever our view of its fairness.
Judgment affirmed.