ROBERT A. BORUCKI vs. W. MICHAEL RYAN, individually and as District Attorney for the Northwestern District.

The sole issue before us is whether G. L. c. 123, Section 36A, [Note 1] creates a private right of action. After the plaintiff's arraignment on twenty-three complaints alleging malicious destruction of property arising out of damage to twenty-three airplanes at La Fleur Airport, Northampton, he was committed to Bridgewater State Hospital for determinations of competency to stand trial and criminal responsibility. See G. L. c. 123, Section 15 (b). After a hearing at which, by stipulation, the competency report was admitted in evidence, the judge determined that the plaintiff was competent. Approximately two months later, the district attorney's office entered a nolle prosequi on all the charges. See Mass. R. Crim. P. 16, 378 Mass. 885 (1979). On the same day, the defendant held a press conference and openly discussed the contents of the report on criminal responsibility.

In 1986, the plaintiff brought a civil action alleging that the defendant's conduct in releasing information contained in the hospital report on criminal responsibility at a press conference was a violation of G. L. c. 123, Section 36A. The plaintiff sought damages from the defendant. The defendant filed a motion to dismiss, see Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that violation of G. L. c. 123, Section 36A, did not create a private cause of action. The motion was denied. Pursuant to G. L. c. 231, Section 118, the defendant petitioned a single justice of the Appeals Court for permission to seek interlocutory review, which was allowed. We transferred the case to this court on our own motion. We agree with the defendant that G. L. c. 123, Section 36A, does not create a private right of action. We therefore reverse and remand to the Superior Court for allowance of the defendant's motion to dismiss.

Clearly, the words of the statute do not expressly create any private cause of action. "Elementary rules of statutory construction require that each statute be interpreted as enacted." Commonwealth v. Gove, 366 Mass. 351, 354 (1974). We also believe that, had the Legislature intended to create a private cause of action, it would not have permitted the judge's exercise of discretion to defeat that cause of action. Cf. G. L. c. 214, Section 1B. The word of the statute, if we were to accept the plaintiff's argument, would do just that.

The history of the statute also does not support the plaintiff's position. Section 36A was enacted based on a bill filed with the House of Representatives

Page 1010

in 1972 by Franklin N. Flaschner, the then Chief Justice of the District Courts. See St. 1972, c. 398. See also St. 1986, c. 599, Section 38 (chapter rewritten without change to Section 36A). Chief Justice Flaschner wrote to the Governor's legislative secretary that the bill was filed to fill "a gap in the new Mental Health Code." Chief Justice Flaschner wrote that, "[u]nder [prior c.] 123, there was a provision for the [maintenance] of private dockets and records concerning mental commitment cases. No comparable provision was encoded in the revision of Chapter 123. This bill takes care of that situation in a fair and comprehensive manner." Letter to Edward S. Morrow, the Governor's legislative secretary, from Franklin N. Flaschner dated April 28, 1972. The history of the legislation indicates a legislative intent to protect the privacy of persons subjected to mental examinations by courts, but the history does not indicate an intent to create a cause of action for violation of the statute.

Thus, neither the words of the statute nor the history of the legislation supports the plaintiff's position. The ruling on the defendant's motion to dismiss is reversed. The case is remanded to the Superior Court for entry of an order allowing the defendant's motion to dismiss because the complaint fails to state a claim on which relief can be granted. [Note 2]

So ordered.