COMMONWEALTH vs. MICHAEL GUILFOYLE.

LIACOS, J. In August, 1986, the Attorney General filed a complaint on behalf of the Commonwealth against three juveniles, the appellant, Michael Guilfoyle, and his friends, Mark Wahlberg and Derek Furkart. The complaint alleged that

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the juveniles had violated the Massachusetts Civil Rights Act (Act), G. L. c. 12, Section 11H, [Note 1] and sought injunctive relief, pursuant to G. L. c. 12, Section 11J. [Note 2] The judge appointed Guilfoyle's mother as his guardian ad litem. Mass. R. Civ. P. 17 (b), 365 Mass. 763 (1974). After a hearing, Guilfoyle was found to have violated the Act, and a permanent injunction was entered. He appealed, and we transferred the case to this court on our own motion. [Note 3]

The judge made the following findings which the parties do not dispute. On June 15, 1986, twelve year old Shamele Jesse Coleman (Jesse Coleman) and his brother and sister, who are black, were walking home from Savin Hill Beach through Savin Hill, an almost exclusively white section of Dorchester. As they were walking, they were met by Guilfoyle and other

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white youths who shouted, "Kill the nigger," and various racial epithets. The youths threw rocks at the Coleman children and chased them for several blocks. The judge made no finding whether Guilfoyle made the statements, but found that he was present, heard the statements, threw a rock at the Coleman children, intentionally joined with his friends in intimidating them, and pursued them with his friends down the street.

The following day, Mary Deshaies, a teacher at the Mather School in Dorchester, took her fourth grade class (thirty-two students, of whom three were white) to Savin Hill Beach. Jesse Coleman was a member of the class. As the class walked back from the beach, Guilfoyle and two friends followed them, walking on the opposite side of the street. The youths made racial and obscene remarks to the class. Again, the judge made no findings as to whether Guilfoyle made the statements, but the judge noted that Guilfoyle heard the statements and continued to follow the group of students.

When the class, shadowed by Guilfoyle and his friends, reached the corner of Bay Street and Maryland Street, Guilfoyle and his friends spoke to several white youths who were gathered on the front porch of a nearby house. Several of the youths left the porch, walked out to the street, and threw rocks at the class. With their teacher, the class began to run down Bay Street. Guilfoyle threw a rock which hit one of the students and, with other white youths, chased the students down the street.

The teacher sought help from an ambulance driver who was in the area. While the teacher was talking with the ambulance driver, more rocks were thrown at the students. The judge made no finding as to whether Guilfoyle threw rocks at this time, but found that Guilfoyle remained with the group while rocks were thrown. The ambulance driver radioed for help and then drove toward the youths. Guilfoyle and the others fled. Guilfoyle was fifteen years old at the time of these incidents. He does not attend the Mather School.

The judge concluded that Guilfoyle violated G. L. c. 12, Section 11H, and issued a permanent injunction pursuant to G. L. c. 12, Section 11J, against Guilfoyle, as reproduced in the margin. [Note 4]

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On appeal, Guilfoyle contends that (1) G. L. c. 12, Sections 11H & 11J, are inapplicable to minors, (2) the sanction imposed was unreasonable in scope and duration, (3) the judge erroneously denied Guilfoyle's motion for a trial by jury, and (4) the judge erroneously used the "preponderance of the evidence" standard of proof when the proper standard was "beyond a reasonable doubt." We affirm the judgment.

1. Applicability of G. L. c. 12, Sections 11H & 11J, to minors. Guilfoyle argues that minors are given a special status in many areas of the law. He cites various statutes giving special treatment

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to juveniles, e.g., G. L. c. 152, Section 28 (1986 ed.) (Workmen's Compensation Act); G. L. c. 231, Section 85Q (1986 ed.) (child trespassers). Guilfoyle's main argument seems to be, however, that G. L. c. 12, Section 11H, is criminal in nature, providing for adult criminal sanctions, including incarceration, and thus should not apply to juveniles. He contends that the judge failed to provide the defendant the protection given juveniles. G. L. c. 119, Sections 65-72A (1986 ed.).

General Laws c. 12, Section 11H, is clear and unambiguous. It applies to "any person." Guilfoyle is requesting that we interpret the statute so as to restrict its application to adults only. The reference he makes to other statutes which provide special treatment for juveniles shows that the Legislature knows quite well how to exclude juveniles from legislative provisions applying generally to other persons. The Legislature did not provide such an exception in Section 11H. We decline to rewrite the statute as Guilfoyle asks. The Act, remedial in nature, was enacted to combat the serious problem of racial harassment by private parties. Batchelder v. Allied Stores Corp., 393 Mass. 819, 821-822 (1985). To narrow the application of the statute to adults would undermine the intent of the Legislature.

Furthermore, Guilfoyle misreads G. L. c. 12, Section 11H. The essence of the statute is not criminal, and the sanction imposed pursuant to the statute is not incarceration or a fine. The statute specifies that the Attorney General may bring a civil action for injunctive or other equitable relief. A juvenile is not immune to civil actions.

Guilfoyle asserts that the Act conflicts with the juvenile protection statutes found in G. L. c. 119. The intent of those statutes is to try to treat criminal juvenile offenders "not as criminals, but as children in need of aid, encouragement and guidance." G. L. c. 119, Section 53. A Juvenile v. Commonwealth, 370 Mass. 272, 281 (1976). The present case is a civil action; the problem which G. L. c. 119 was enacted to alleviate is not involved in this action. [Note 5] In addition, a judge has discretion,

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within constitutional limits, in handling contempt proceedings against a juvenile. "A Superior Court judge who tries a contempt complaint [arising out of a violation of an order issued pursuant to G. L. c. 12, Section 11H] against a juvenile has discretion, within constitutional limits, to impound papers in the case, to protect the juvenile's identity, and to close the proceedings to the public." Doe v. Commonwealth, 396 Mass. 421, 423 (1985).

2. Scope and duration of injunction. Guilfoyle argues that the injunction was unreasonable in scope and duration in that it enjoins Guilfoyle from being in his "own backyard" and has no termination date. "It is a well settled principle that, in fashioning appropriate relief, the issuance and scope of equitable relief rests within the sound discretion of the judge." Johnson v. Martignetti, 374 Mass. 784, 794 (1978). The injunction in this case is one that promotes the public interest and is not to be judged by the standards applicable to private litigation. See Commonwealth v. Mass. CRINC, 392 Mass. 79, 88-89 (1984). Viewed in light of that standard, we conclude that the relief forged in this case is highly reasonable.

The first four paragraphs enjoin Guilfoyle from again violating the Act. The fifth paragraph prohibits him from being at the Mather School, a school he does not attend, during specified hours. Finally, Guilfoyle is prohibited from knowingly approaching within 100 yards of the victims. There was no error.

3. Right to jury trial. The judge properly denied Guilfoyle's motion for a jury trial. Guilfoyle concedes that there is no constitutional right to a trial by jury when the cause of action arises in equity. McAdams v. Milk, 332 Mass. 364, 366 (1955). Parker v. Simpson, 180 Mass. 334, 353-354 (1902). See Gulesian v. Newton Trust Co., 302 Mass. 369, 371 (1939). At common law, there was no cause of action for violations of civil rights. Batchelder v. Allied Stores Corp., 393 Mass. 819, 821 (1985). Thus, art. 15 of the Declaration of Rights providing

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a right to trial by jury in actions known to the common law is inapplicable. McAdams v. Milk, supra. Parker v. Simpson, supra. See Nei v. Burley, 388 Mass. 307, 311-315 (1983) (no right to jury trial in G. L. c. 93A actions). General Laws c. 12, Section 11H, creates an entirely new cause of action, not a new version of a traditional criminal proceeding. The statute prescribes equitable remedies -- "injunctive or other appropriate equitable relief." G. L. c. 12, Section 11H.

4. Standard of proof. Generally, the standard of proof in civil cases is a preponderance of the evidence. Callahan v. Fleischman Co., 262 Mass. 437 (1928). In the past, we have made exceptions to this general rule when constitutional rights hung in the balance, and have applied the stricter "beyond a reasonable doubt" standard. See Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-276 (1978), and cases cited therein. Guilfoyle argues that, because of the criminal nature of the sanctions that would be imposed if he violates the injunction, an exception to the general rule should be made in this case. We disagree. The injunction imposed does not require the incarceration of, or fining of, Guilfoyle. At this stage, none of Guilfoyle's constitutional rights is hanging in the balance. Only if he violates the injunction does Guilfoyle become subject to the possibility of criminal sanctions.

Judgment affirmed.