WENDY SUSAN IRWIN vs. COMMISSIONER OF THE DEPARTMENT OF YOUTH SERVICES & others. [Note 1]

LYNCH, J. In this case the court considers a question of the construction of G. L. c. 258, as appearing in St. 1978, c. 512, Section 15. [Note 2] The matter was certified to us by the United States District Court for the District of Massachusetts, pursuant

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to S. J. C. Rule 1;03, as appearing in 382 Mass. 700 (1981), as a result of certain pretrial proceedings in an action now pending in that court. Irwin v. Calhoun, 522 F. Supp. 576 (D. Mass. 1981). The first count of the plaintiff's complaint alleged a violation of 42 U.S.C. Section 1983 (1976 & 1980 Supp.) through a deprivation of her constitutional rights by individual employees of the Department of Youth Services (department). The second count of the complaint, brought under G. L. c. 258, alleged that the Commonwealth, the department, and the Executive Office of Human Services had negligently failed to provide the plaintiff with reasonable medical services while she was in the custody of the department. The Commonwealth moved to dismiss the negligence claim on the ground that the Eleventh Amendment to the United States Constitution bars any action in Federal courts against the Commonwealth. The judge then requested the parties to address, inter alia, whether the Commonwealth has waived its constitutional immunity from suit in Federal courts by enacting G. L. c. 258. On motion of the Commonwealth, the judge certified the following question to this court: "Does Massachusetts General Laws Chapter 258 by its terms, either expressly or impliedly, indicate the Commonwealth's consent to suit by citizens in federal as well as state courts, thereby waiving its eleventh amendment immunity?" We answer that it does not.

1. Eleventh Amendment immunity. Briefly stated, the Eleventh Amendment to the United States Constitution, submitted to the Legislatures of the several States in 1974 and ratified by the requisite three-fourths States by 1798, was a measure to protect State treasuries from the power of the Federal judiciary. [Note 3] While by its terms the amendment bars only suits against a State by citizens of a sister State or of a foreign State, the United States Supreme

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Court "has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well." Edelman v. Jordan, 415 U.S. 651, 662-663 (1974), and cases cited. The general rule, affirmed in Edelman, is that the Eleventh Amendment bars suit in Federal courts by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Id. at 663. A State may consent to be sued in its own courts, as Massachusetts has by statute, but a waiver of its Eleventh Amendment immunity from suit in Federal courts will not readily be inferred. See Edelman v. Jordan, supra at 673, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909) (waiver will be found only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction"); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959), citing Chandler v. Dix, 194 U.S. 590, 591-592 (1904) ("Nor will a waiver of immunity from suit in state courts do service for a waiver of immunity where the litigation is brought in the federal court"); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 465 (1945), quoting Great N. Ins. Co. v. Read, 322 U.S. 47, 54 (1944) ("When a state authorizes a suit against itself to taxpayers who deem themselves injured by any exaction, it is not consonant with our dual system for the federal courts to be astute to read the consent to embrace federal as well as state courts"); Massachusetts Hosp. Ass'n v. Harris, 500 F. Supp. 1270, 1278 (D. Mass. 1980) ("it is well settled that in the absence of a clear declaration of consent to suit in federal court, a state's consent to actions in its own courts will not be held to abrogate its Eleventh Amendment immunity"); Skehan v. Trustees of Bloomsburg, 669 F.2d 142, 148-149 (3d Cir. 1982) ("This rule of clear and express waiver has been consistently applied in cases in which a state has consented to suit in its own courts by statute; absent a clear declaration of a state's consent to a similar suit against itself in federal court, such

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consent has not been inferred"). [Note 4] The Federal District Court has determined that, in this case, the question of waiver "hinge[s] entirely on the meaning of ambiguous terms [in G. L. c. 258] and therefore requires interpretation by the state court in light of the legislative intent. In such case, the question of waiver may thereby be determined by an issue of state law appropriately decided by the state's highest court." Irwin v. Calhoun, 522 F. Supp. 576, 585 (D. Mass. 1981), citing Parden v. Terminal Ry. of the Ala. Docks Dep't, 377 U.S. 184, 194-195 (1964), and Ford Motor Co. v. Department of Treasury of Ind., supra at 465-466. See and compare Marrapese v. Rhode Island, 500 F. Supp. 1207, 1213 n.13 (D. R.I. 1980). We undertake to answer the question certified to us on that narrow basis alone.

2. Claims against the Commonwealth, 1879-1973. At the time St. 1978, c. 512, Section 15, was enacted, the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims. Statute 1879, c. 255, Section 1, provided: "The superior court shall have jurisdiction of all claims against the Commonwealth, which are founded on contract for the payment of money, or which may have arisen under . . . [former statutory provisions relating to the management of railroads, see McArthur Bros. v. Commonwealth, 197 Mass. 137, 138 (1908)], and petitions setting forth such claims may be brought before said court sitting for the county of Suffolk, and shall be returnable on the return day of any regular term thereof." See Pub. Sts. c. 195, Section 1 (1882) (retaining the jurisdictional provision and deleting reference to former railroad management provisions). Following close upon our decisions rejecting

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a contract claim not founded on the payment of money, Wesson v. Commonwealth, 144 Mass. 60 (1887), and holding that the statute did not permit recovery to reimburse a town for certain expenditures, Milford v. Commonwealth, 144 Mass. 64 (1887), the Legislature amended Pub. Sts. c. 195, Section 1 (1882), as follows: "The superior court shall have jurisdiction of all claims against the Commonwealth, whether at law or in equity . . . and all claims shall be subject to the same set off and recoupment as they would be if the Commonwealth was a private person . . . ." St. 1887, c. 246. We construed this amendment as demonstrating a legislative intent "to extend the jurisdiction of the courts to claims which had not been included in the previous statute, such as those which had been considered in [Wesson, supra, Milford, supra], but not necessarily to claims of a different and distinct character." Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 30 (1890). We held that Pub. Sts. c. 195 (1882), as amended, did not mean to extend the jurisdiction of the Superior Court to include tort claims against the Commonwealth, but rather "to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized." Id. at 31-33. See Nash v. Commonwealth, 174 Mass. 335, 338 (1899); McArthur Bros. v. Commonwealth, 197 Mass. 137, 138-139 (1908); Burroughs v. Commonwealth, 224 Mass. 28, 29 (1916); Glickman, v. Commonwealth, 244 Mass. 148, 150 (1923).

Public Statues c. 195 (1882) was recodified in 1902 as R. L. c. 201 and in 1921 as G. L. c. 258. The statute was amended several times between 1887 and 1978. Each version, however, retained a provision conferring jurisdiction of claims, with exceptions not here material, on the Superior Court. [Note 5] In a 1908 decision, reviewing the then

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twenty-nine-year history of the statute, the court stated: "It is first to be noted that the Superior Court alone is given original jurisdiction. This has been the tribunal designated in all the statutes, although until St. 1905, c. 263, other litigants having claims in contract or replevin of more than $1,000, or within Suffolk County of more than $4,000, had the option of bringing their litigation either in the Supreme Judicial Court or the Superior Court, and in most matters in equity there is now concurrent jurisdiction. While many statutes have conferred exclusive jurisdiction upon the Supreme Judicial Court, this one constitutes the Superior Court, which is the great trial court of the Commonwealth, the exclusive tribunal for trials of this class of causes." McArthur Bros. v. Commonwealth, 197 Mass. 137, 139 (1908).

Five years before the major revision of G. L. c. 258, the Legislature amended Sections 1 and 2 through St. 1973, c. 1114, Sections 337 and 339. Section 1, as amended, provided: "The superior court, except as otherwise expressly provided, shall have jurisdiction of all claims against the commonwealth." Section 2, as amended, provided: "The laws relative to tender, offer of judgment and counterclaim shall apply to the said action, and the case shall be tried by the court without a jury. All hearings shall be in open court, except that on motion by the attorney general or the plaintiff a master may be appointed, and questions of law may be taken to the supreme judicial court, as in other cases. If the amount claimed exceeds two thousand dollars, the action shall be brought in Suffolk county, otherwise in Suffolk

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county or in the county where the plaintiff resides. If the action is to recover damages for injuries sustained while travelling on a state highway, it may be brought in Suffolk county or in the county where the plaintiff resides or where the injuries were sustained." In the same year, we reiterated that G. L. c. 258 did not authorize tort claims against the Commonwealth. Morash & Sons v. Commonwealth, 363 Mass. 612, 614-616 (1973).

3. The Tort Claims Act. By St. 1978, c. 512, Section 15, the Legislature struck the former G. L. c. 258, and inserted the present, commonly known as the Tort Claims Act. [Note 6] This legislative action followed two significant decisions of this court. In Morash & Sons v. Commonwealth, 363 Mass. 612, 619-624 (1973), we expressed our view that the judicially created doctrine of governmental immunity from tort liability was "logically indefensible," but we declined then to abolish it ourselves as we deemed "the comprehensive approach available to the Legislature [to be] the preferable course." See also Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 662 (1975). Four years after the Morash decision, when the case of Whitney v. Worcester, 373 Mass. 208 (1977), came before us, the Legislature had not yet acted. Therefore, we announced in the Whitney decision our intention to abrogate the doctrine, retroactively to the date of our decision in Morash, should the Legislature fail to act by the conclusion of its 1978 session. Id. at 210. Statute 1978,

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c. 512, Section 15, was passed within one year of our decsion in Whitney, and was made retroactive by Section 16, to apply to all causes of action arising on or after the date of the Whitney decision.

We think the conclusion is unmistakable that the Legislature, in enacting the Tort Claims Act, was responding to our Morash and Whitney decisions, and was not undertaking otherwise a substantive revision of G. L. c. 258. [Note 7] See Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 30 (1890) ("In view of the fact that the statute [St. 1887, c. 246] was passed shortly after [our] decisions . . . it is reasonable to infer that its object was to extend the jurisdiction of the courts to claims . . . such as those which had been considered in [those decisions]"; Nash v. Commonwealth, 174 Mass. 335, 338 (1899) ("Shortly after these decisions, and it reasonably may be inferred, in consequence of them, St. 1887, c. 246, was passed. . . . While the language of this statute is full and comprehensive, it is not to be interpreted as imposing any new obligation upon the Commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible"); Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 350 (1940) ("The following year [1909] [R. L. c. 201] was amended . . . . It may be inferred that the purpose of the Legislature in enacting this amendment was to meet the difficulty presented by [our] decision"). As did each of its predecessors, St. 1978, c. 512, Section 15, contains a provision expressly conferring jurisdiction

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on the Superior Court of "[a]ll civil actions" arising under the act. [Note 8] Seventy-five years have passed since we termed the jurisdiction of the Superior Court "exclusive" under the act. McArthur Bros. v. Commonwealth, 197 Mass. 137, 139 (1908). There, Justice Rugg also observed: "The statute taken as a whole indicates an intent on the part of the Legislature to create a special tribunal composed of trained and experienced judicial servants, sitting, when large amounts are involved, in the capital of the State, to deal with this peculiarly important class of claims, which is not comprehended within any general classification of actions, under an unusual form of procedure." Id. at 141. See Putnam Furniture Bldg., Inc. v. Commonwealth, 323 Mass. 179, 186 (1948). We have found no hint in any subsequent amendments of the statute, including St. 1978, c. 512, Section 15, that the Legislature had deemed incorrect our interpretation that the jurisdiction conferred upon the Superior Court is exclusive. Compare Marrapese v. Rhode Island, 500 F. Supp. 1207 (D. R. I. 1980) (Legislature took no action for five years following United States District Court's first opinion that the State statute contemplated suit in Federal courts). Nor do we find in the present statute a clear intention on the part of the Legislature to depart from, alter, or expand the grant of jurisdiction to the Superior Court which has characterized each of the earlier versions of the law. [Note 9] See McArthur Bros. v. Commonwealth, supra

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("The argument is much stronger for giving to these words [of R. L. c. 201] a strict and accurate construction in a statute, by which the Commonwealth is suffering itself to be brought to the bar of its own courts at the instance of everybody who has a claim against it, and stating in distinct but limited terms the conditions upon which it may be impleaded"); Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 353 (1940), quoting Main v. County of Plymouth, 223 Mass. 66, 69 (1916) ("It is a familiar principle of statutory construction that mere verbal changes in the revision of a statute do not alter its meaning and are construed as a continuation of the previous law"). See also G. L. c. 212, Section 3, as amended by St. 1973, c. 1114, Section 51 (conferring on the Superior Court exclusive original jurisdiction of claims against the Commonwealth); J. R. Nolan, Civil Practice Section 90 (1975).

Applying our rules governing statutory waiver of governmental immunity, we find in the terms of G. L. c. 258, neither an express nor a necessarily implicit consent by the Commonwealth to suit in Federal courts. See Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981); Smith v. Commonwealth, 347 Mass. 453, 455-456 (1964). Where, as here, the Commonwealth consents to suit in its own courts, "it can be impleaded only in the manner and to the extent expressed . . . [by] statute." Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722 (1977), quoting General Elec. Co. v. Commonwealth, 329 Mass. 661, 664 (1953). See Oliver Am. Trading Co. v. Government of the U.S. of Mex., 5 F.2d 659, 662 (2d Cir. 1924), citing McArthur Bros. v. Commonwealth, supra. We think that the Legislature's failure to include the term "exclusive jurisdiction " of the Superior Court in G. L. c. 258, Section 3, is

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insufficient basis to infer therefrom its consent to suit in Federal courts, particularly as such consent is not lightly to be inferred. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959), citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909). See also Massachusetts Hosp. Ass'n v. Harris, 500 F. Supp. 1270, 1278 (D. Mass. 1980) ("G. L. c. 258], Section 12 provides that `[c]laims against the commonwealth, except as otherwise expressly provided in this chapter or by any general or special provision of law, may be enforced in the superior court.' In the face of its clear statement directing claims to the Massachusetts superior court, we cannot find a consent to suit against DPW in federal court"); Jacobs v. College of William & Mary, 495 F. Supp. 183, 190 (E.D. Va. 1980), aff'd, 661 F.2d 922 (4th Cir.), cert. denied, 454 U.S. 1033 (1981) (Virginia statute authorizing claims against the Commonwealth in "an appropriate circuit court" did not evince "a clear legislative intent" to consent to be sued in Federal courts); Riggle v. California, 577 F.2d 579, 585-586 (9th Cir. 1978) (venue statute of State Tort Claims Act showed consent to suit applied only to State courts).

The District Court judge found an ambiguity in reading Section 3, the jurisdictional provision of G. L. c. 258, with Section 2, the section describing liability of public employers and providing in part: "Public employers shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances . . . . " The judge concluded that "[t]he inclusion of the jurisdictional provision in the Massachusetts law makes the question of the extent of the Commonwealth's waiver ambiguous . . . ." Irwin v. Calhoun, 522 F. Supp. 576, 585 (D. Mass. 1981). We think that the clear language of the jurisdictional provision, specifying venue procedures in detail and denominating the Superior Court as the forum for all claims, is not modified by the language of Section 2, which provides liability "in the same manner and to the same extent as a private individual under like circumstances." Section 2 describes the nature of a public employer's liability and the limitations of recovery

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therefor. It precludes a levy of execution on real and personal property, interest prior to judgment and punitive damages, and fixes a maximum amount of recovery. It provides an exclusive remedy and sets standards for public employees relating to the defense of a claim arising under the act. The provision as a whole defines the extent of liability and recovery under the act, and the language "[p]ublic employers shall be liable . . . in the same manner and to the same extent as a private individual," is a natural and logical term descriptive of the limits of liability. Section 3, on the other hand, simply and straightforwardly directs where a public employer shall be compelled to defend himself. Its language is clear, unequivocal, and we think, controlling of the question of the limit of the Commonwealth's consent to suit. Compare Marrapese v. Rhode Island, 500 F. Supp. 1207, 1216, 1217 (D.R.I. 1980) (language of statute, providing liability "in all actions of tort in the same manner as a private individual or corporation." and including no directions as to procedure and venue, was "sweeping" and "extraordinarily liberal in comparison to then existing law in most states"); Kiesel v. Florida Dep't of Natural Resources, 479 F.2d 1261 (5th Cir. 1973); Mifsud v. Palisades Geophysical Inst., Inc., 484 F. Supp. 159, 162 (S.D. Tex. 1980); Adams v. Harris County, 316 F. Supp. 938, 950-951 (S.D. Tex. 1970), rev'd on other grounds, 452 F.2d 994 (5th Cir. 1971), cert. denied, 406 U.S. 968 (1972).

In sum, we find nothing in the legislative history of G. L. c. 258, or in its terms, to suggest that the Commonwealth, by enacting G. L. c. 258, has waived, expressly or by implication, its Eleventh Amendment immunity to suit in Federal courts. Accordingly, we answer the question of the District Court, "No."