12-26-2004, 10:53 PM
Finally, the department's argument that contempt sanctions are inappropriate has no merit. It is, of course, generally true that, HN23absent a statute imposing an affirmative obligation to act in good faith, "acts of administrative [***58] officers cannot be attacked in judicial proceedings on the ground that in fact those officers were not governed by the highest standards of impartial and unselfish performance of public duty," Brennan v. The [**148] Governor, 405 Mass. 390, 397-398, 540 N.E.2d 685 (1989), quoting Kelley v. School Comm. of Watertown, 330 Mass. 150, 154, 111 N.E.2d 749 (1953), for there is every presumption that public officials are [*461] motivated to act honestly and appropriately. LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459, 451 N.E.2d 112 (1983). Here, however, there was an independent agreement incorporated as an order of the court that required the department to act in good faith, and it is well settled that HN24contempt sanctions are an appropriate mechanism by which "the power of the court [can] secure to the aggrieved party the benefit of the decree." United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36, 278 N.E.2d 716 (1972). Moreover, while "HN25the tradition of judicial deference to agency decision making represents an important social policy decision that public agencies are generally in a better position than courts to make particular technical decisions . . . this policy rests on an assumption that public agencies [***59] will act properly when making the decisions," Matter of McKnight, 406 Mass. 787, 807, 550 N.E.2d 856 (1990) (Liacos, C.J., dissenting), and in the instant case, there was ample evidence to rebut any presumption that the department was acting in good faith.
2. Evidentiary errors. The department argues that, not only are the findings of fact clearly erroneous, certain evidentiary errors warrant reversal. We disagree.
a. Failure to extend discovery. The department argues that the judge erred in denying a motion to extend discovery, which would have given it the opportunity to depose JRC's accountant on matters germane to JRC's financial condition. n30 We disagree. "The conduct and scope of discovery is within the sound discretion of the judge." Solimene v. B. Grauel & [*462] Co., KG, 399 Mass. 790, 799, 507 N.E.2d 662 (1987). The department must show that the denial constituted an abuse of discretion which resulted in prejudicial error. Symmons v. O'Keeffe, 419 Mass. 288, 302, 644 N.E.2d 631 (1995), and cases cited. No such showing has been made. The department had notice that JRC's accountant was going to testify about its financial condition and had the opportunity to question him on cross-examination. n31 [***60] The judge was not required to extend discovery. See Wilson v. Honeywell, Inc., 409 Mass. 803, 809, 569 N.E.2d 1011 (1991) (judge properly admitted testimony of witness introduced on the first day of trial where no prejudice resulted from late disclosure). See also Bishop v. Klein, 380 Mass. 285, 288, 402 N.E.2d 1365 (1980). Thus, we conclude there was no abuse of discretion.
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n30 Pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974), the department requested JRC to produce "the person with the most knowledge with regard to the factual basis for the allegations contained in the Third Amended Complaint." In response, JRC produced the executive director of JRC, who testified about matters germane to the complaint, but claimed to have no particularized knowledge relevant to JRC's financial condition. Discovery ended before the department could depose anyone who had particularized knowledge; the judge denied the department's motion to extend discovery beyond May 18, 1995.
The department failed to state with particularity in its original request under rule 30 (b) (6), its desire to depose someone with particularized knowledge concerning JRC's financial condition. See Mitsui & Co. (U.S.A.) v. Puerto Rico Water Resources Auth., 93 F.R.D. 62, 66 (D.P.R. 1981). Given the broad net cast by the department's request for "the person with the most knowledge with regard to the factual basis for the allegations contained in the Third Amended Complaint," JRC's executive director was the logical official to attend the deposition. [***61]
n31 JRC listed its accountant as an expert witness in its pretrial memorandum. In addition, an offer of proof as to the accountant's qualification as an expert witness was made in writing on the first day of trial.
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b. Admission of evidence. Next, the department argues that the judge erred by not allowing it to introduce otherwise inadmissible evidence under the curative admissibility doctrine. We disagree. "HN26The curative admissibility doctrine allows a party harmed by incompetent evidence to rebut that evidence only if the original evidence created significant prejudice." Commonwealth v. Ruffen, 399 Mass. 811, 813-814, 507 N.E.2d 684 (1987) (failure to permit defendant to cross-examine police officer about defendant's statements prejudicial). The department failed to show that the evidence [**149] presented by JRC, even if it were inadmissible, created significant prejudice.
During the hearing, JRC offered testimony relevant to the harm caused to two patients when the specialized food program was canceled. The judge denied the department's motion for an order requiring the guardians of those two patients [***62] to consent to an examination so that it could rebut JRC's testimony. n32 The department claims that this was prejudicial because the testimony regarding the harm to these two patients was the basis for the finding of harm. We conclude that there was no significant prejudice because the judge made numerous findings of harm on independent grounds.
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n32 The judge denied the motion on the ground that, "This is a treatment decision which belongs in the substitute judgment process; it does not belong here."
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Second, JRC offered testimony that the department [*463] regulated other providers differently. The department argues that the judge erred by not allowing it to introduce evidence regarding its regulation of other providers on relevance grounds. The curative admissibility doctrine, however, does not apply because JRC's evidence was not inadmissible. Commonwealth v. Ruffen, supra.
We conclude there was no abuse of discretion on evidentiary issues.
Having concluded that the judge was warranted in finding the department [***63] to be in contempt of the settlement agreement, we must now consider whether the judge ordered the appropriate remedies.
3. Receivership. The judge appointed a receiver to administer, manage, and operate the department in all of its relationships with JRC. The department contends that the judge erred because the facts do not justify a receivership. A narrower and more plausible contention is that the judge exceeded her authority in fashioning the receiver's powers. We shall consider each argument in turn.
a. Facts justify a receiver. The Probate Court is a court of limited jurisdiction, which pursuant to G. L. c. 215, § 6, has general equity jurisdiction. Young v. Department of Pub. Welfare, 416 Mass. 629, 633, 624 N.E.2d 110 (1993). HN27A court with equity jurisdiction has broad and flexible powers to fashion remedies. Matter of McKnight, 406 Mass. 787, 791, 550 N.E.2d 856 (1990). Public officials who fail to abide by legal standards are not immune to these remedies. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971) (remedies to eliminate school segregation); Perez v. Boston Hous. Auth., 379 Mass. 703, 400 N.E.2d 1231 (1980) (receiver appointed to run public housing authority); [***64] Blaney v. Commissioner of Correction, 374 Mass. 337, 372 N.E.2d 770 (1978) (specific guidelines on treatment of prisoners). A court with equity jurisdiction has the discretion to appoint a receiver to take over the main functions of public officials. Perez v. Boston Hous. Auth., supra at 735-737. See Lopez v. Medford Community Ctr., Inc., 384 Mass. 163, 169, 424 N.E.2d 229 (1981); Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir. 1976), cert. denied, 429 U.S. 1042, 50 L. Ed. 2d 755, 97 S. Ct. 743 (1977). n33
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n33 HN28The power to appoint a receiver is not limited to constitutional violations. Perez v. Boston Hous. Auth., 379 Mass. 703, 733 n.27, 400 N.E.2d 1231 (1980).
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"[HN29A] receivership must be thoroughly justified on the facts, [*464] is always to be considered a remedy of 'last resort,' and therefore is not often applied in practice." Perez v. Boston Hous. Auth., supra at 733-737. The test is one of reasonableness in the circumstances. Id. at 735-736. Morgan v. McDonough, supra 540 F.2d at 533. In Perez, a combination of circumstances justified a [***65] receivership: "repeated or continuous failure of the officials to comply with a previously issued decree; a reasonable forecast that the mere continued insistence by the court that these officials perform the decree would lead only to 'confrontation and delay'; [and] a lack of any leadership that could be expected to turn the situation around within a reasonable time." Perez v. Boston Hous. Auth., supra at 736. See Morgan v. McDonough, supra at 533. HN30The judge may also consider bad faith and wasting of resources. See Perez v. Boston Hous. Auth., [**150] supra at 724-725, 737; New England Theatres, Inc. v. Olympia Theatres, Inc., 287 Mass. 485, 492, 192 N.E. 93 (1934), cert. denied sub nom. E.M. Loew's, Inc. v. New England Theatres, 294 U.S. 713, 79 L. Ed. 1247, 55 S. Ct. 509 (1935). In general, the more indurated the problems and less likely that intermediate steps will work, the greater the justification for a receivership. Perez v. Boston Hous. Auth., supra at 734.
We conclude that a receivership was justified in the circumstances of this case. The findings that the department repeatedly violated the settlement agreement, interfered with court-authorized treatment orders, n34 bypassed [***66] the court-appointed monitor, n35 and knowingly misled the judge, n36 warranted a conclusion that the department was unwilling to comply with a judicial decree. The department's refusal to acknowledge any wrongdoing in the contempt action indicated that less stringent remedies would only invite further [*465] confrontation and delay. Finally, the numerous findings that the commissioner, the general counsel, and senior staff acted in bad faith demonstrated a leadership which was unwilling to comply with the agreement.
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n34 In the January 20, 1995, letter, the commissioner ordered JRC to discontinue court-authorized aversive therapy for six patients.
n35 The commissioner did not apprise the judge or the court monitor of the serious allegations made in the August 6, 1993, letter. He considered contacting the court monitor prior to writing the letter, but elected not to do so. The department argues that this finding is clearly erroneous because the department had no obligation to bring these matters to the attention of the judge. This argument does not attack the factual finding itself but is directed to the significance of the finding. [***67]
n36 On September 22, 1993, the department filed a report to the judge regarding the status of JRC. This report failed to contain two certification team reports dated December 21, 1991, and July 15, 1993, which recommended that the department certify JRC.
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JRC devoted an enormous amount of time, effort, and money to fight off the department's indirect attacks on aversive therapies through needless and excessive regulatory demands. Furthermore, the judiciary spent a considerable amount of its limited resources trying to put an end to the war. Innocent patients, meanwhile, have been caught in the cross fire. n37 The department's intransigent conduct has wasted the resources of JRC, and the courts; it has also hurt the patients.
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n37 JRC staff was forced to take time away from its patients in order to meet department's excessive regulatory demands. As a result, JRC cut back on positive programming, individualized care, and precision teaching programs.
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We recognize that direct judicial intervention into the operation of a State agency is not to be undertaken lightly, but in this case it was necessary because there was no reasonable alternative. See Perez v. Boston Hous. Auth., supra at 736. See also Morgan v. McDonough, supra at 533. Thus, the judge did not abuse her discretion.
b. Scope of the receiver's powers. We consider now whether the judge exceeded her authority in fashioning the receiver's powers. The department contends that the receiver's powers: (1) offend the principles of separation of powers expressed in art. 30, and (2) are overly broad.
We begin by pointing out that HN31appointing a receiver is not a per se violation of the separation principle. Perez v. Boston Hous. Auth., supra at 739. When necessary, the role of the judicial branch in civil cases is to provide remedies for violations of the law, including violations committed by the executive branch. Id. Therefore, appointing a receiver to restore legality to a State agency which has failed, over a long period of time, to comply with the settlement agreement and abused its regulatory authority by acting in bad faith, does not derogate [***69] the separation principle. "To the contrary, when the executive persists in indifference to, or neglect or disobedience of court orders, necessitating a receivership, it is the executive that could more properly be charged with contemning the separation principle." 379 Mass. at 739-740.
[*466] The department correctly points out that HN32the judiciary lacks the authority [**151] to order a State agency to do anything that it is not required to do as a matter of law. See Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 629-630, 477 N.E.2d 361 (1985). See also Charrier v. Charrier, 416 Mass. 105, 110, 616 N.E.2d 1085 (1993). Along the same lines, we give great deference to a State agency's exercise of its discretionary functions. Matter of McKnight, 406 Mass. 787, 792, 550 N.E.2d 856 (1990). This deference, however, does not extend to unreasonable conduct or where an agency is found to be acting contrary to its legal duty. See Perez v. Boston Hous. Auth., supra at 739-740; Blaney v. Commissioner of Correction, supra at 342. Thus, to the extent that the receiver's powers are narrowly tailored to remedy the department's violations and restore legality to the situation, they do not violate the separation of powers [***70] principle.
Next, we consider the department's argument that the receiver's powers are overly broad. "HN33The law leaves to the sound discretion of the trial judge the issuance and scope of equitable relief." Commonwealth v. Adams, 416 Mass. 558, 566, 624 N.E.2d 102 (1993). As with all judicial remedies, the receiver's powers should be no more intrusive than reasonably necessary to address the problem. Lopez v. Medford Community Ctr., Inc., 384 Mass. 163, 170, 424 N.E.2d 229 (1981). We are particularly careful in applying this standard where public officials are the object of the remedy. Perez v. Boston Hous. Auth., supra at 729-730.
The receiver was authorized to direct the ordinary affairs of the department with respect to relationships with JRC, its patients, and its families. n38 The judge did not give the receiver plenary powers over the department, rather the receiver's powers were confined to matters related to JRC. n39 The judge deemed these powers necessary to provide relief for JRC and [*467] restore legality to this relationship. n40 HN34Once a judge has taken the extraordinary step of appointing a receiver, that judge surely must give the receiver sufficient power to meet the requirements of [***71] the situation. Spence v. Reeder, 382 Mass. 398, 414, 416 N.E.2d 914 (1981). The receiver must have enough power to enforce the judge's decrees, make them completely effective, and thus restore legality. Id. See Perez v. Boston Hous. Auth., supra at 734-735. See also Commonwealth v. Hudson, 315 Mass. 335, 346, 52 N.E.2d 566 (1943). To the extent that the receiver's powers are tailored to fit this objective, the judge did not exceed her authority.
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n38
Contrary to the commissioner's argument, we read nothing in the powers authorized which would enable the receiver to operate outside the law. The receiver is subject to the same statutes and regulations as the department. See Spence v. Reeder, 382 Mass. 398, 417-418, 416 N.E.2d 914 (1981).
n39 The preamble to the receiver's powers provides: "The court, pursuant to its equity jurisdiction shall appoint a receiver for [the department], who shall have the full authority to administer, manage and operate [the department] in all of its relationships with JRC, its [patients], and their families, and who shall control all the funds and revenues of [the department] as they relate to JRC, its [patients] and their families and also will assume his authority and take office as soon as possible. Such receiver shall have and exercise all powers presently held by [the department] as well as any additional powers as may be necessary and appropriate." (Emphasis added.) [***72]
n40 The receiver was authorized to conduct a de novo review of any outstanding regulatory decisions, including JRC's certification.
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We agree with the commissioner, however, that not all of the receiver's powers are confined to restoring the department's relationship with JRC. Certain enumerated powers bestowed on the receiver reach beyond the problems between JRC and the department. First, the judge gave the receiver the authority to "approve and execute all contracts that [the department] enters into" (emphasis added). Second, the judge gave the receiver the power to exercise considerable authority over the department's staff, including the power to "hire, promote, transfer, discipline, suspend, or discharge all employees of [the department]." These provisions are overly broad because they gave the receiver authority over discretionary functions unrelated to JRC. See Matter of McKnight, supra at 792. Therefore, these provisions are struck. [**152] These considerations, however, do not affect our conclusion that the judge did not otherwise exceed her authority.
4. Attorney's fees. The [***73] judge ordered the department to pay $ 1,098,086.59 in attorney's fees. We conclude that the judge erred because she was without statutory authority to order the payment of attorney's fees in these circumstances. n41
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n41 JRC has requested attorney's fees for this appeal. See Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979), and G. L. c. 211, § 10. We do not consider this appeal frivolous as JRC argues, nor does JRC point to any statutory authority permitting the imposition of attorney's fees. See Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 415 n.10, 597 N.E.2d 430 (1992); Yorke Mgt. v. Castro, 406 Mass. 17, 19-20, 546 N.E.2d 342 (1989). Thus, JRC's request for attorney's fees for this appeal is also denied.
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"HN35Costs against the Commonwealth, its officers, and agencies [*468] shall be imposed only to the extent permitted by law." Mass. R. Civ. P. 54 (d), 365 Mass. 820 (1974). Consequently, express statutory authority is required to levy costs on the Commonwealth. See Ware v. Commonwealth, 409 Mass. 89, 90, 564 N.E.2d 998 [***74] (1991); M.C. v. Commissioner of Correction, 399 Mass. 909, 912, 507 N.E.2d 253 (1987); Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722, 369 N.E.2d 1018 (1977). This requirement arises out of the general rule of law that the Commonwealth "cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed . . . [by] statute." Id., quoting General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d 101 (1953).
As a general rule in Massachusetts, HN36a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract of stipulation provides for costs, or rules concerning damages permits recovery. Waldman v. American Honda Motor Co., 413 Mass. 320, 322, 597 N.E.2d 404 (1992); Broadhurst v. Director of the Div. of Employment Sec., supra at 721-722. Attorney's fees are included in costs, but successful litigants can recover attorney's fees only in a very restricted class of cases. Fuss v. Fuss (No.1), 372 Mass. 64, 70, 368 N.E.2d 271 (1977).
In civil contempt actions, attorney's fees may be awarded as an element of the cost of [***75] enforcing the order of the court. Manchester v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 215-216, 409 N.E.2d 176 (1980). However, this rule does not negate rule 54 (d), that an award of costs against the Commonwealth requires specific affirmative authority. See M.C. v. Commissioner of Correction, supra; Broadhurst v. Director of Div. of Employment Sec., supra at 722, 725 n.8; Mass. R. Civ. P. 54 (d).
HN37Specific authority to impose costs against the Commonwealth is found in G. L. c. 261, § 14, which provides: "In civil actions and in proceedings which are instituted by, or in the name of, the commonwealth, and not at the relation, in behalf, or for the use, of a private person, the commonwealth shall be liable for costs as is an individual." However, this statute does not extend liability for costs to actions [*469] naming the Commonwealth as a defendant. n42 Broadhurst v. Director of the Div. of Employment Sec., supra at 724.
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n42 In Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 414-415, 597 N.E.2d 430 (1992), we upheld an award of attorney's fees against the Commonwealth in a contempt action. The Commonwealth brought the original action, and thus the award of attorney's fees was authorized by G. L. c. 261, § 14. See Matter of a Grand Jury Subpoena, 411 Mass. 489, 502 n.14, 583 N.E.2d 241 (1992).
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General Laws c. 12, § 11I, does provide for an award of attorney's fees to the prevailing party in an action brought under G. L. c. 12, § 11H. The 1986 preliminary injunction action raised claims under G. L. c. 12, § 11H. n43 [**153] Some courts have held that, in the context of the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988 (1994), postjudgment monitoring of consent decrees is compensable. See Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986); Garrity v. Sununu, 752 F.2d 727, 738-739 (1st Cir. 1984). See also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986). However, we decline to impose postjudgment costs on the Commonwealth without express authority. See Chapman v. University of Mass. Medical Ctr., 423 Mass. 584, 586-587, 670 N.E.2d 166 (1996) (no postjudgment interest against Commonwealth without express authority); Onofrio v. Department of Mental Health, 411 Mass. 657, 659, 584 N.E.2d 619 (1992) (postjudgment interest not recoverable against Commonwealth).
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n43 A plaintiff need not litigate the action through final judgment to achieve prevailing party status. Interim success in securing interlocutory relief qualifies the plaintiff as a prevailing party. See Handy v. Penal Insts. Comm'r of Boston, 412 Mass. 759, 765, 592 N.E.2d 1303 (1992) (attorney's fee proper where lawsuit important factor in achieving improvements in prisoners' living conditions); Draper v. Town Clerk of Greenfield, 384 Mass. 444, 453, 425 N.E.2d 333 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947, 102 S. Ct. 2016, 72 L. Ed. 2d 471 (1982) (attorney's fee proper where case ends in negotiated settlement).
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"HN39The rules of construction governing statutory waiver of sovereign immunity are stringent." Ware v. Commonwealth, supra at 91, quoting Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42, 423 N.E.2d 782 (1981). "Consent to a suit must be expressed by the terms of a statute, or appear by necessary implication from them." Id. There is no provision for postjudgment costs in G. L. c. 12, § 111. The fact that the Legislature specifically authorized attorney's fees in cases brought under G. L. c. 12, § 11H, does not lead to the conclusion that attorney's fees may be awarded against the Commonwealth for postjudgment work. See Ware v. Commonwealth, supra at 91. The [*470] plaintiffs' counsel have performed in an exemplary manner and deserve to be fully compensated for their efforts. Nevertheless, in the absence of express statutory authority which declares otherwise, we are unable to affirm the award of attorney's fees against the Commonwealth. See 409 Mass. at 92-93. [***78]
The case is remanded to the Probate Court for further proceedings consistent with this opinion.
So ordered.
2. Evidentiary errors. The department argues that, not only are the findings of fact clearly erroneous, certain evidentiary errors warrant reversal. We disagree.
a. Failure to extend discovery. The department argues that the judge erred in denying a motion to extend discovery, which would have given it the opportunity to depose JRC's accountant on matters germane to JRC's financial condition. n30 We disagree. "The conduct and scope of discovery is within the sound discretion of the judge." Solimene v. B. Grauel & [*462] Co., KG, 399 Mass. 790, 799, 507 N.E.2d 662 (1987). The department must show that the denial constituted an abuse of discretion which resulted in prejudicial error. Symmons v. O'Keeffe, 419 Mass. 288, 302, 644 N.E.2d 631 (1995), and cases cited. No such showing has been made. The department had notice that JRC's accountant was going to testify about its financial condition and had the opportunity to question him on cross-examination. n31 [***60] The judge was not required to extend discovery. See Wilson v. Honeywell, Inc., 409 Mass. 803, 809, 569 N.E.2d 1011 (1991) (judge properly admitted testimony of witness introduced on the first day of trial where no prejudice resulted from late disclosure). See also Bishop v. Klein, 380 Mass. 285, 288, 402 N.E.2d 1365 (1980). Thus, we conclude there was no abuse of discretion.
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n30 Pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974), the department requested JRC to produce "the person with the most knowledge with regard to the factual basis for the allegations contained in the Third Amended Complaint." In response, JRC produced the executive director of JRC, who testified about matters germane to the complaint, but claimed to have no particularized knowledge relevant to JRC's financial condition. Discovery ended before the department could depose anyone who had particularized knowledge; the judge denied the department's motion to extend discovery beyond May 18, 1995.
The department failed to state with particularity in its original request under rule 30 (b) (6), its desire to depose someone with particularized knowledge concerning JRC's financial condition. See Mitsui & Co. (U.S.A.) v. Puerto Rico Water Resources Auth., 93 F.R.D. 62, 66 (D.P.R. 1981). Given the broad net cast by the department's request for "the person with the most knowledge with regard to the factual basis for the allegations contained in the Third Amended Complaint," JRC's executive director was the logical official to attend the deposition. [***61]
n31 JRC listed its accountant as an expert witness in its pretrial memorandum. In addition, an offer of proof as to the accountant's qualification as an expert witness was made in writing on the first day of trial.
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b. Admission of evidence. Next, the department argues that the judge erred by not allowing it to introduce otherwise inadmissible evidence under the curative admissibility doctrine. We disagree. "HN26The curative admissibility doctrine allows a party harmed by incompetent evidence to rebut that evidence only if the original evidence created significant prejudice." Commonwealth v. Ruffen, 399 Mass. 811, 813-814, 507 N.E.2d 684 (1987) (failure to permit defendant to cross-examine police officer about defendant's statements prejudicial). The department failed to show that the evidence [**149] presented by JRC, even if it were inadmissible, created significant prejudice.
During the hearing, JRC offered testimony relevant to the harm caused to two patients when the specialized food program was canceled. The judge denied the department's motion for an order requiring the guardians of those two patients [***62] to consent to an examination so that it could rebut JRC's testimony. n32 The department claims that this was prejudicial because the testimony regarding the harm to these two patients was the basis for the finding of harm. We conclude that there was no significant prejudice because the judge made numerous findings of harm on independent grounds.
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n32 The judge denied the motion on the ground that, "This is a treatment decision which belongs in the substitute judgment process; it does not belong here."
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Second, JRC offered testimony that the department [*463] regulated other providers differently. The department argues that the judge erred by not allowing it to introduce evidence regarding its regulation of other providers on relevance grounds. The curative admissibility doctrine, however, does not apply because JRC's evidence was not inadmissible. Commonwealth v. Ruffen, supra.
We conclude there was no abuse of discretion on evidentiary issues.
Having concluded that the judge was warranted in finding the department [***63] to be in contempt of the settlement agreement, we must now consider whether the judge ordered the appropriate remedies.
3. Receivership. The judge appointed a receiver to administer, manage, and operate the department in all of its relationships with JRC. The department contends that the judge erred because the facts do not justify a receivership. A narrower and more plausible contention is that the judge exceeded her authority in fashioning the receiver's powers. We shall consider each argument in turn.
a. Facts justify a receiver. The Probate Court is a court of limited jurisdiction, which pursuant to G. L. c. 215, § 6, has general equity jurisdiction. Young v. Department of Pub. Welfare, 416 Mass. 629, 633, 624 N.E.2d 110 (1993). HN27A court with equity jurisdiction has broad and flexible powers to fashion remedies. Matter of McKnight, 406 Mass. 787, 791, 550 N.E.2d 856 (1990). Public officials who fail to abide by legal standards are not immune to these remedies. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971) (remedies to eliminate school segregation); Perez v. Boston Hous. Auth., 379 Mass. 703, 400 N.E.2d 1231 (1980) (receiver appointed to run public housing authority); [***64] Blaney v. Commissioner of Correction, 374 Mass. 337, 372 N.E.2d 770 (1978) (specific guidelines on treatment of prisoners). A court with equity jurisdiction has the discretion to appoint a receiver to take over the main functions of public officials. Perez v. Boston Hous. Auth., supra at 735-737. See Lopez v. Medford Community Ctr., Inc., 384 Mass. 163, 169, 424 N.E.2d 229 (1981); Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir. 1976), cert. denied, 429 U.S. 1042, 50 L. Ed. 2d 755, 97 S. Ct. 743 (1977). n33
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n33 HN28The power to appoint a receiver is not limited to constitutional violations. Perez v. Boston Hous. Auth., 379 Mass. 703, 733 n.27, 400 N.E.2d 1231 (1980).
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"[HN29A] receivership must be thoroughly justified on the facts, [*464] is always to be considered a remedy of 'last resort,' and therefore is not often applied in practice." Perez v. Boston Hous. Auth., supra at 733-737. The test is one of reasonableness in the circumstances. Id. at 735-736. Morgan v. McDonough, supra 540 F.2d at 533. In Perez, a combination of circumstances justified a [***65] receivership: "repeated or continuous failure of the officials to comply with a previously issued decree; a reasonable forecast that the mere continued insistence by the court that these officials perform the decree would lead only to 'confrontation and delay'; [and] a lack of any leadership that could be expected to turn the situation around within a reasonable time." Perez v. Boston Hous. Auth., supra at 736. See Morgan v. McDonough, supra at 533. HN30The judge may also consider bad faith and wasting of resources. See Perez v. Boston Hous. Auth., [**150] supra at 724-725, 737; New England Theatres, Inc. v. Olympia Theatres, Inc., 287 Mass. 485, 492, 192 N.E. 93 (1934), cert. denied sub nom. E.M. Loew's, Inc. v. New England Theatres, 294 U.S. 713, 79 L. Ed. 1247, 55 S. Ct. 509 (1935). In general, the more indurated the problems and less likely that intermediate steps will work, the greater the justification for a receivership. Perez v. Boston Hous. Auth., supra at 734.
We conclude that a receivership was justified in the circumstances of this case. The findings that the department repeatedly violated the settlement agreement, interfered with court-authorized treatment orders, n34 bypassed [***66] the court-appointed monitor, n35 and knowingly misled the judge, n36 warranted a conclusion that the department was unwilling to comply with a judicial decree. The department's refusal to acknowledge any wrongdoing in the contempt action indicated that less stringent remedies would only invite further [*465] confrontation and delay. Finally, the numerous findings that the commissioner, the general counsel, and senior staff acted in bad faith demonstrated a leadership which was unwilling to comply with the agreement.
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n34 In the January 20, 1995, letter, the commissioner ordered JRC to discontinue court-authorized aversive therapy for six patients.
n35 The commissioner did not apprise the judge or the court monitor of the serious allegations made in the August 6, 1993, letter. He considered contacting the court monitor prior to writing the letter, but elected not to do so. The department argues that this finding is clearly erroneous because the department had no obligation to bring these matters to the attention of the judge. This argument does not attack the factual finding itself but is directed to the significance of the finding. [***67]
n36 On September 22, 1993, the department filed a report to the judge regarding the status of JRC. This report failed to contain two certification team reports dated December 21, 1991, and July 15, 1993, which recommended that the department certify JRC.
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JRC devoted an enormous amount of time, effort, and money to fight off the department's indirect attacks on aversive therapies through needless and excessive regulatory demands. Furthermore, the judiciary spent a considerable amount of its limited resources trying to put an end to the war. Innocent patients, meanwhile, have been caught in the cross fire. n37 The department's intransigent conduct has wasted the resources of JRC, and the courts; it has also hurt the patients.
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n37 JRC staff was forced to take time away from its patients in order to meet department's excessive regulatory demands. As a result, JRC cut back on positive programming, individualized care, and precision teaching programs.
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We recognize that direct judicial intervention into the operation of a State agency is not to be undertaken lightly, but in this case it was necessary because there was no reasonable alternative. See Perez v. Boston Hous. Auth., supra at 736. See also Morgan v. McDonough, supra at 533. Thus, the judge did not abuse her discretion.
b. Scope of the receiver's powers. We consider now whether the judge exceeded her authority in fashioning the receiver's powers. The department contends that the receiver's powers: (1) offend the principles of separation of powers expressed in art. 30, and (2) are overly broad.
We begin by pointing out that HN31appointing a receiver is not a per se violation of the separation principle. Perez v. Boston Hous. Auth., supra at 739. When necessary, the role of the judicial branch in civil cases is to provide remedies for violations of the law, including violations committed by the executive branch. Id. Therefore, appointing a receiver to restore legality to a State agency which has failed, over a long period of time, to comply with the settlement agreement and abused its regulatory authority by acting in bad faith, does not derogate [***69] the separation principle. "To the contrary, when the executive persists in indifference to, or neglect or disobedience of court orders, necessitating a receivership, it is the executive that could more properly be charged with contemning the separation principle." 379 Mass. at 739-740.
[*466] The department correctly points out that HN32the judiciary lacks the authority [**151] to order a State agency to do anything that it is not required to do as a matter of law. See Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 629-630, 477 N.E.2d 361 (1985). See also Charrier v. Charrier, 416 Mass. 105, 110, 616 N.E.2d 1085 (1993). Along the same lines, we give great deference to a State agency's exercise of its discretionary functions. Matter of McKnight, 406 Mass. 787, 792, 550 N.E.2d 856 (1990). This deference, however, does not extend to unreasonable conduct or where an agency is found to be acting contrary to its legal duty. See Perez v. Boston Hous. Auth., supra at 739-740; Blaney v. Commissioner of Correction, supra at 342. Thus, to the extent that the receiver's powers are narrowly tailored to remedy the department's violations and restore legality to the situation, they do not violate the separation of powers [***70] principle.
Next, we consider the department's argument that the receiver's powers are overly broad. "HN33The law leaves to the sound discretion of the trial judge the issuance and scope of equitable relief." Commonwealth v. Adams, 416 Mass. 558, 566, 624 N.E.2d 102 (1993). As with all judicial remedies, the receiver's powers should be no more intrusive than reasonably necessary to address the problem. Lopez v. Medford Community Ctr., Inc., 384 Mass. 163, 170, 424 N.E.2d 229 (1981). We are particularly careful in applying this standard where public officials are the object of the remedy. Perez v. Boston Hous. Auth., supra at 729-730.
The receiver was authorized to direct the ordinary affairs of the department with respect to relationships with JRC, its patients, and its families. n38 The judge did not give the receiver plenary powers over the department, rather the receiver's powers were confined to matters related to JRC. n39 The judge deemed these powers necessary to provide relief for JRC and [*467] restore legality to this relationship. n40 HN34Once a judge has taken the extraordinary step of appointing a receiver, that judge surely must give the receiver sufficient power to meet the requirements of [***71] the situation. Spence v. Reeder, 382 Mass. 398, 414, 416 N.E.2d 914 (1981). The receiver must have enough power to enforce the judge's decrees, make them completely effective, and thus restore legality. Id. See Perez v. Boston Hous. Auth., supra at 734-735. See also Commonwealth v. Hudson, 315 Mass. 335, 346, 52 N.E.2d 566 (1943). To the extent that the receiver's powers are tailored to fit this objective, the judge did not exceed her authority.
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n38
Contrary to the commissioner's argument, we read nothing in the powers authorized which would enable the receiver to operate outside the law. The receiver is subject to the same statutes and regulations as the department. See Spence v. Reeder, 382 Mass. 398, 417-418, 416 N.E.2d 914 (1981).
n39 The preamble to the receiver's powers provides: "The court, pursuant to its equity jurisdiction shall appoint a receiver for [the department], who shall have the full authority to administer, manage and operate [the department] in all of its relationships with JRC, its [patients], and their families, and who shall control all the funds and revenues of [the department] as they relate to JRC, its [patients] and their families and also will assume his authority and take office as soon as possible. Such receiver shall have and exercise all powers presently held by [the department] as well as any additional powers as may be necessary and appropriate." (Emphasis added.) [***72]
n40 The receiver was authorized to conduct a de novo review of any outstanding regulatory decisions, including JRC's certification.
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We agree with the commissioner, however, that not all of the receiver's powers are confined to restoring the department's relationship with JRC. Certain enumerated powers bestowed on the receiver reach beyond the problems between JRC and the department. First, the judge gave the receiver the authority to "approve and execute all contracts that [the department] enters into" (emphasis added). Second, the judge gave the receiver the power to exercise considerable authority over the department's staff, including the power to "hire, promote, transfer, discipline, suspend, or discharge all employees of [the department]." These provisions are overly broad because they gave the receiver authority over discretionary functions unrelated to JRC. See Matter of McKnight, supra at 792. Therefore, these provisions are struck. [**152] These considerations, however, do not affect our conclusion that the judge did not otherwise exceed her authority.
4. Attorney's fees. The [***73] judge ordered the department to pay $ 1,098,086.59 in attorney's fees. We conclude that the judge erred because she was without statutory authority to order the payment of attorney's fees in these circumstances. n41
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n41 JRC has requested attorney's fees for this appeal. See Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979), and G. L. c. 211, § 10. We do not consider this appeal frivolous as JRC argues, nor does JRC point to any statutory authority permitting the imposition of attorney's fees. See Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 415 n.10, 597 N.E.2d 430 (1992); Yorke Mgt. v. Castro, 406 Mass. 17, 19-20, 546 N.E.2d 342 (1989). Thus, JRC's request for attorney's fees for this appeal is also denied.
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"HN35Costs against the Commonwealth, its officers, and agencies [*468] shall be imposed only to the extent permitted by law." Mass. R. Civ. P. 54 (d), 365 Mass. 820 (1974). Consequently, express statutory authority is required to levy costs on the Commonwealth. See Ware v. Commonwealth, 409 Mass. 89, 90, 564 N.E.2d 998 [***74] (1991); M.C. v. Commissioner of Correction, 399 Mass. 909, 912, 507 N.E.2d 253 (1987); Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722, 369 N.E.2d 1018 (1977). This requirement arises out of the general rule of law that the Commonwealth "cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed . . . [by] statute." Id., quoting General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d 101 (1953).
As a general rule in Massachusetts, HN36a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract of stipulation provides for costs, or rules concerning damages permits recovery. Waldman v. American Honda Motor Co., 413 Mass. 320, 322, 597 N.E.2d 404 (1992); Broadhurst v. Director of the Div. of Employment Sec., supra at 721-722. Attorney's fees are included in costs, but successful litigants can recover attorney's fees only in a very restricted class of cases. Fuss v. Fuss (No.1), 372 Mass. 64, 70, 368 N.E.2d 271 (1977).
In civil contempt actions, attorney's fees may be awarded as an element of the cost of [***75] enforcing the order of the court. Manchester v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 215-216, 409 N.E.2d 176 (1980). However, this rule does not negate rule 54 (d), that an award of costs against the Commonwealth requires specific affirmative authority. See M.C. v. Commissioner of Correction, supra; Broadhurst v. Director of Div. of Employment Sec., supra at 722, 725 n.8; Mass. R. Civ. P. 54 (d).
HN37Specific authority to impose costs against the Commonwealth is found in G. L. c. 261, § 14, which provides: "In civil actions and in proceedings which are instituted by, or in the name of, the commonwealth, and not at the relation, in behalf, or for the use, of a private person, the commonwealth shall be liable for costs as is an individual." However, this statute does not extend liability for costs to actions [*469] naming the Commonwealth as a defendant. n42 Broadhurst v. Director of the Div. of Employment Sec., supra at 724.
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n42 In Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 414-415, 597 N.E.2d 430 (1992), we upheld an award of attorney's fees against the Commonwealth in a contempt action. The Commonwealth brought the original action, and thus the award of attorney's fees was authorized by G. L. c. 261, § 14. See Matter of a Grand Jury Subpoena, 411 Mass. 489, 502 n.14, 583 N.E.2d 241 (1992).
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General Laws c. 12, § 11I, does provide for an award of attorney's fees to the prevailing party in an action brought under G. L. c. 12, § 11H. The 1986 preliminary injunction action raised claims under G. L. c. 12, § 11H. n43 [**153] Some courts have held that, in the context of the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988 (1994), postjudgment monitoring of consent decrees is compensable. See Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986); Garrity v. Sununu, 752 F.2d 727, 738-739 (1st Cir. 1984). See also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986). However, we decline to impose postjudgment costs on the Commonwealth without express authority. See Chapman v. University of Mass. Medical Ctr., 423 Mass. 584, 586-587, 670 N.E.2d 166 (1996) (no postjudgment interest against Commonwealth without express authority); Onofrio v. Department of Mental Health, 411 Mass. 657, 659, 584 N.E.2d 619 (1992) (postjudgment interest not recoverable against Commonwealth).
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n43 A plaintiff need not litigate the action through final judgment to achieve prevailing party status. Interim success in securing interlocutory relief qualifies the plaintiff as a prevailing party. See Handy v. Penal Insts. Comm'r of Boston, 412 Mass. 759, 765, 592 N.E.2d 1303 (1992) (attorney's fee proper where lawsuit important factor in achieving improvements in prisoners' living conditions); Draper v. Town Clerk of Greenfield, 384 Mass. 444, 453, 425 N.E.2d 333 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947, 102 S. Ct. 2016, 72 L. Ed. 2d 471 (1982) (attorney's fee proper where case ends in negotiated settlement).
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"HN39The rules of construction governing statutory waiver of sovereign immunity are stringent." Ware v. Commonwealth, supra at 91, quoting Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42, 423 N.E.2d 782 (1981). "Consent to a suit must be expressed by the terms of a statute, or appear by necessary implication from them." Id. There is no provision for postjudgment costs in G. L. c. 12, § 111. The fact that the Legislature specifically authorized attorney's fees in cases brought under G. L. c. 12, § 11H, does not lead to the conclusion that attorney's fees may be awarded against the Commonwealth for postjudgment work. See Ware v. Commonwealth, supra at 91. The [*470] plaintiffs' counsel have performed in an exemplary manner and deserve to be fully compensated for their efforts. Nevertheless, in the absence of express statutory authority which declares otherwise, we are unable to affirm the award of attorney's fees against the Commonwealth. See 409 Mass. at 92-93. [***78]
The case is remanded to the Probate Court for further proceedings consistent with this opinion.
So ordered.