Memorandum Of Law Supporting Plaintiffs Request For Preliminary Injunction

COMMONWEALTH OF MASSACHUSETTS 1 THE TRIAL COURT Suffolk, ss.

Superior Court Dept. Suffolk Division

FATHERS AND FAMILIES, INC., Et al., Plaintiffs, vs. Hon. ROBERT A. MULLIGAN, In His Official Capacity, et al. Defendants.

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CIVIL ACTION No.

09-1069-E

MEMORANDUM OF LAW SUPPORTING PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUNCTION Plaintiffs seek a preliminary injunction against the Defendants, to enjoin them from further implementation of new child support guidelines (“New Guidelines”) which are now being applied to all cases in which child support is being decided in any department of the Trial Court of Massachusetts since January 1, 2009. In the absence of a preliminary injunction, Plaintiffs will be irreparably harmed by the imposition of substantially larger and fundamentally unfair child support orders, and by a number of violations of their legal rights, as enumerated in the Complaint, this memorandum, and in the affidavits attached hereto. By this preliminary injunction, Plaintiffs seek only to preserve the status quo ante, pending full review of the merits of the matter by this Honorable Court. They do not ask the Court to change or vacate any existing child support order which is in place under the pre-2009 child support guidelines or the New Guidelines, nor to stop new child support orders from being issued under the pre-2009 guidelines. I.

General Factual Considerations 1

In October of 2006, Defendant Justice Robert A. Mulligan, Massachusetts Chief Justice for Administration and Management (“Justice Mulligan” or “CJAM”) appointed a Child Support Guidelines Task Force (“Task Force”) to conduct a review of the Massachusetts Child Support guidelines. (Report of the Child Support Guidelines Task Force, attached as Exhibit 1 to Holstein Affidavit, Page 3, hereafter, “Task Force Report”) The Task Force did not comply with the requirements of 45 CFR 302.56 (h), which is applicable to all states who take federal funds for child support enforcement, which includes the Commonwealth of Massachusetts. It provides that: As part of the review of a State's guidelines required under paragraph (e) of this section, a State must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from, the guidelines. The analysis of the data must be used in the State's review of the guidelines to ensure that deviations from the guidelines are limited. The Task Force considered a number of methods of determining the cost of raising children, rejecting them all as inaccurate. See Holstein, Ex. 1, Task Force Report, pp. 20-25. No attempt was made to gather actual data from families in Massachusetts or elsewhere concerning the cost of raising children, or variations in components of those costs, such as for housing costs, division of parenting time, effect of public benefits, and other significant factors. The Task Force also prepared a set of New Guidelines, attached as Exhibit 3 to the Holstein Affidavit. Defendant Justice Mulligan has unilaterally “issued” the New Guidelines, in lieu of and usurping the role of the State Legislature and the Governor. The New Guidelines create a rebuttable presumption that they must be applied to any new child support orders issued by any department of The Trial Court in Massachusetts after January 1, 2009. See Holstein Ex. 3, p. 2. The Plaintiffs will pay much more under the New Guidelines. See affidavits of Plaintiffs attached. The New Guidelines contain numerous discriminatory aspects, such as allowing a portion of child support to be paid as tax deductable alimony by formerly married Payors, a benefit not available to never-married Payors. In many cases, they cause new children of remarried or re2

partnered parents to have less financial support than children subject to the guidelines. They do not adjust for the extra housing needs of poorer non-custodial parents, or the larger proportion of their income paid in taxes. In many cases, they impose support requirements much greater than the costs of raising children, thus providing an unlawful windfall to the Recipient at the expense of the Payor. They impose obligations on divorced parents that do not exist for similarly situated married parents.

II.

Standing of Plaintiff Fathers And Families, Inc. Plaintiff Fathers And Families, Inc. (“Fathers And Families”) has standing to represent its

members in this case. Fathers and Families consists of thousands of members, men and women, with varying custody, family, and economic circumstances. Holstein Aff., ¶ 3. It and its members have been heavily involved in child support public policy issues. Holstein Aff., ¶ 4- 6. An association has standing to bring suit on behalf of its membership where: (1) its members themselves would have standing to sue; (2) it seeks to protect interests that are germane to its own purpose; (3) neither the claim nor the requested relief require the participation of its members in the suit. See Hunt v. Washington Apple State Advertising Commission, 432 U.S. 333, 343 (1977). Regarding the first prong of the Hunt case, the individual members of Fathers and Families have standing to sue, as many of them have been and others will be individually affected by the New Guidelines as likely defendants in new complaints for modification, brought by Recipients of child support to obtain yet larger amounts of child support. (Holstein Aff. ¶ 13). On the second prong of Hunt, Fathers and Families has a long history of seeking to protect its members from excessive child support awards, by participation in the public policy debate involving child support issues, and assisting its members to understand the application of the law. (Holstein Aff. ¶ 4-6). Finally, on the third Hunt prong, the issues in this case can be fully adjudicated by the Fathers and Families organization, with or without the participation of individual member plaintiffs. Thus, Fathers and Families is a proper plaintiff with standing to bring a complaint in this case. 3

III.

Application of the New Guidelines to Plaintiffs The New Guidelines will be applicable to any new child support determinations for the

Plaintiffs after January 1, 2009. (Holstein Aff., Ex. 3, pg. 2.) The New Guidelines now apply to any support determinations under Mass. G.L. c. 208 §28, regarding child support pursuant to divorce, G.L. c. 209C §9, regarding child support pursuant to a case of paternity, G.L. c. 209A §3, regarding support in domestic abuse restraining order cases, G.L. c. 209 §32F, regarding actions for separate support of married persons, G.L. c. 210 §2, related to voluntary terminations of parental rights, G.L. c. 119 §§24 and 26, relating to support in care and protection of minor children cases, and G.L. c. 201 §40, regarding child support under guardianships. A child support Recipient may now file a complaint for modification of child support without a “substantial change of circumstances”, as long as an order has been in place for three years, including the three years prior to January 1, 2009. Prior to the New Guidelines, a complaint for modification of child support required a substantial change of circumstances. See G.L. c. 208 §28; New Guidelines, Section III (A). A Recipient may still file a complaint for modification of child support at any time if it would result in a higher child support order as long as a substantial change of circumstances has occurred, without waiting three years. The Probate and Family Courts issue the majority of child support determinations, in divorce, paternity, modification of divorce and paternity judgments, separate support, guardianship, and restraining order cases. The District Court Department makes child support determinations pursuant to its jurisdiction granted under G.L. Ch. 209A, the Massachusetts domestic abuse restraining order statute. The other departments of The Trial Court also have jurisdiction under that statute, and may make child support determinations as well. The Juvenile Court may make support determinations under the care and protection (G.L. c. 119 §26) and guardianship statutes (G.L. c. 201), as well as termination of parental rights under G.L. c. 210 §3. 4

The individual Plaintiffs herein are defendants in complaints for modification of child support, or likely will be under the New Guidelines. Their new support orders will be based on the predominantly higher New Guidelines amounts. Please see affidavits of individual Plaintiffs attached to this memorandum. The Plaintiffs will also be improperly subjected to the violations of their due process rights, deprivation of equal protection of the law, and loss of the right to have had the state legislature pass a bill into law and be approved by the Governor.

IV.

Legal Argument

A. Standard of Review for Injunction The well known standard for obtaining injunctive relief in Massachusetts is set forth in Package Industries Group, Inc. v. Cheney, 380 Mass. 609 (1980), and its progeny. A party seeking an injunction must demonstrate: (1) substantial likelihood of success on the merits of the case; (2) irreparable harm if the injunction is not granted; (3) that the injury to the moving party outweighs any harm which granting injunctive relief would inflict on the defendant; and (4) the effect on the public interest by the granting of the injunction. In Siemens Bldg. Techs, Inc. v. Div. of Capital Asset Management, 439 Mass. 759 (2003), the SJC has summarized the process as follows: [T]he judge initially evaluates in combination the moving party’s claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. B. Likelihood of Success on the Merits - Substantive Law 1. The Legislature Is The Only Branch Which Could Enact Child Support

Guidelines Under Article XXX of the Massachusetts Declaration of Rights. Article XXX of the Massachusetts Declaration of Rights states in pertinent part:

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“The Judicial [Department] shall never exercise the legislative and executive power, or either of them: to the end that it may be a government of laws and not of men.” When Justice Mulligan promulgated the New Guidelines, he went far over the line and encroached on the powers of the legislative and executive branches of the government, in violation of Article XXX. When a single person appoints an unelected committee of insiders to prepare what amounts to legislation, and then that person unilaterally imposes it as positive law, that is precisely the type of government action that Article XXX was intended to prevent. While federal law, in 42 U.S.C. §667, allows child support guidelines to be established by “law or by judicial or administrative action”, the Massachusetts Constitution is unambiguous that only the Legislature has the power to pass such a law in this state. “The General Court may not delegate the general power to make laws.” Opinion of the Justices, 393 Mass. 1209, 1219 (1984). Nor may it “abandon any of the powers entrusted to it by the Constitution or transfer those powers to any other person or group of persons.” Opinion of the Justices, 328 Mass. 674, 675 (1952). Enactment of the New Guidelines falls squarely under the ambit of the legislative branch, in that these guidelines assess large, involuntary financial payments against a large swath of citizens, under penalty of incarceration for non-compliance. In other words, they assess a “tax”, which is addressed more fully below. Additionally, rather than merely applying legislatively determined mathematical formulas, the application of which could permissibly be delegated to a rule-making entity, the New Guidelines enact a comprehensive framework of rules which create policies that govern much of the social, familial, and financial well being of tens of thousands of families around Massachusetts. No case interpreting Article XXX of the Declaration of Rights has ever allowed the Judiciary to transgress the Legislative power in this fashion, i.e. to impose a large tax on a substantial class of citizens, and to determine social and family policies. Neither is there any

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authority under the regulation-making authority of G.L. c. 30A, where Section 1 specifically excludes the judiciary from agencies which may promulgate regulations. In reviewing a claim of improper delegation of legislative power, the Massachusetts court considers three factors: (1) Did the Legislature delegate the making of fundamental policy decisions, rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction for implementation, either in the form of statutory standards or, if the local authority is to develop the standards, sufficient guidance to enable it to do so; and (3) does the act provide safeguards such that abuses of discretion can be controlled? Construction Indus. of Mass. v. Commissioner of Labor & Indus., 406 Mass. 162, 171, (1989), quoting Chelmsford Trailer Park Inc. v. Chelmsford, 393 Mass. 186, 190 (1984). Justice Mulligan’s promulgation of the New Guidelines does not satisfy the above requirements, and his actions in this regard go far beyond his constitutionally and statutorily permitted duties. Promulgation of child support guidelines in the form or regulations fall well within the type of issue which must be enacted through the normal legislative process, as they involve fundamental social policy and value judgments, as well as imposing the equivalent of taxes, which are the essence of the province of the State Legislature, and thus cannot be delegated. The Legislature has made no delegation of fundamental policy such as would enable the CJAM to determine child support. What powers it did, and could constitutionally confer, are set forth in several sections of M.G.L. c. 211B, most particularly Section 9. All of the duties set forth in those sections are purely ministerial, involving administration of the trial court. No policy or rule-making is authorized. The Supreme Judicial Court has repeatedly delineated the general limits of judicial rulemaking to “customary judicial activities or to the operation of the courts.” Opinion of the Justices to the Senate, 372 Mass. 883, 893 (1977). The CJAM may roam into the province of the Executive

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and Judicial departments only to the extent “necessary to the court’s ability to perform its core judicial functions.” Gray v. Commissioner of Revenue, 422 Mass. 666, 672 (1996). All delegation is not inherently improper, as long as it merely involves fleshing out the details of a policy adopted by the legislature. See, e.g. Di Loreto v. Fireman's Fund Ins. Co., 383 Mass. 243, 246 (1981). However, the sweeping kind of power assumed by the CJAM in this instance, cannot be inferred from the oblique reference in our statutes that constitutes the entire extent of legislative guidance on the subject of establishment of child support guidelines, namely that the courts, “shall apply the child support guidelines promulgated by the chief justice for administration and management.”

See G.L. c. 208 §28 and parallel statutes.

Under no reading could that thin reference in Section 28 to applying guidelines promulgated by the chief justice constitute a “fundamental policy” adopted by the legislature on how to construct child support guidelines. The statute does not set forth how to establish the amounts of child support, how to determine the persons against whom those amounts should be assessed, and the myriad other fundamental social policy decisions which were made by Justice Mulligan within the New Guidelines, enumerated below. Nor does that assumptive reference override the proscription in Article XXX against encroaching on legislative power. An analogous situation occurred where the Massachusetts Insurance Commissioner had issued regulations which were not authorized by statute. See Telles v. Commissioner of Insurance, 410 Mass. 560 (1991). In that case, it was the executive branch that had usurped the legislative function, but the principle is nevertheless applicable here. In Telles, the court stated that, whatever the merits of the regulations, the doctrine of separation of powers required a proper delegation of authority before promulgating rules of general application, and that the Legislature had not given the Commissioner the power to do so. The court bluntly stated that “it is the legislative, not the executive, branch which is given the power to make laws.” Id. At 565. Some of the “fundamental policy decisions” inherent within the New Guidelines are: 8

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Whether child support should be to provide primarily for the economic needs of the child, or for the custodial parent’s household as a whole;

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Whether child support payments should be based on the actual costs of raising children, or on the gross incomes of the parties, or on some other standard;

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Whether child support should provide the same level of economic support to all children, or whether children of a second relationship should be treated differently than children of a first relationship;

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Whether indigent Payors should pay significant amounts of child support as a matter of principle, even if the child is economically comfortable in the home of the custodial parent;

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Whether incarcerated Payors should be ordered to pay child support, thus leading to substantial arrearages for most inmates at the time of release;

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Whether child support orders should be high enough to effectively include alimony for which never-married custodial parents are not otherwise eligible under statute;

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Whether child support payments should be pro-rated according to the division of parenting time, to promote shared parenting, or whether doing so might increase custody litigation;

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Whether Payors should be liable for college expenses, or whether that policy improperly imposes a burden on non-custodial parents that is not placed on married parents;

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Whether child support orders should include the income from second jobs and overtime pay in the definition of income for purposes of the Guidelines, or should promote increased parenting by the Payor by releasing him from the obligation to work excessive hours. All of the foregoing policy issues, and many more, should properly have been debated

and determined by the Legislature, with public input and accountability, rather than being made into law by Justice Mulligan, by way of the New Guidelines. By way of analogy, the Legislature enacted the statute which is codified at G.L. c. 93A in 1967, which sets out a civil cause of action for unfair and deceptive trade practices, and which 9

has since been expanded by the Legislature by numerous amendments. The statute also provides that the Attorney General can promulgate regulations to enforce it, which he has done. See 940 CMR 3.00ff. However, the Legislature itself clearly set forth the parameters of the law, the public policy behind the law, and the explicit authorization to the Attorney General to provide details of its enforcement. All of these characteristics are absent in the promulgation of the child support guidelines. The role of the CJAM was addressed at some length in the case of Brach v. Chief Justice of Dist. Court Dept., 386 Mass. 528 (1982). The Court summarized the limits of judicial power, after an explication of the powers in Chapter 211B, as follows: “All the inherent powers of this court . . . have involved the internal functioning of the judiciary.” Brach at 535. It made the point even clearer by saying, “the prohibition of Art. 30 cannot be evaded by agreement between one branch of government and another.” Thus, the Legislature’s tacit delegation of the enactment of child support guidelines to the CJAM cannot be justified under Article XXX. Delegation by the Legislature, or usurpation of the Legislative Power by Justice Mulligan, went too far in other matters as well. At a minimum, the Legislature should have gathered data about the costs of raising a child in Massachusetts, as required by 45 CFR 302.56. Federal regulation requires child support to be based on child-raising costs, rather than any number of other possible bases, such as the income of the parties or maintenance of a particular standard of living. In an “Interagency Service Agreement” between the Mass. Dept. of Revenue and the Trial Court, setting out procedures to collaborate on child support collection procedures, the Trial Court explicitly agreed to abide by Section 302.56 in its formulation of the Guidelines. Article XXIII of the Declaration of Rights fixes the power to tax only in the Legislature. Amendment Art. 44 speaks of “full power and authority” being vested in the Legislature to levy taxes on income. The structure and effect of the New Guidelines constitute a taxation scheme, regardless of the label placed on it. Simply put, the Judiciary cannot exercise the power to tax. 10

The child support authorities may assert that such assessments are not a tax. However, Black defines it broadly: “In a general sense, any contribution imposed by government upon individuals, for the use and service of the state….”, no matter what its name. The Supreme Judicial Court has long regarded “debts” created by law as taxes: “Whatever the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge." [citations omitted] Taxes are debts, within these definitions.” Appleton v. Hopkins, 71 Mass. 530 (1855). Most child support payments under the New Guidelines are remitted directly to the Commonwealth, as a tax. In Title IV-A TANF cases, the revenues received from child support Payors go into the general fund, and amounts paid to Recipients are not related to the amount taxed, but are calculated by a different formula than the child support guidelines. The amounts collected could be more, less, or the same as the amounts tendered to the Recipient. Any law establishing child support guidelines should contain specified numerical parameters and desired social outcomes on which such guidelines must be constructed, as per the bulleted points above. Any such law would have also addressed the deprivation of due process and equal protection errors with which the New Guidelines are riddled. Public accountability in the preparation of child support legislation is important, because a Payor’s failure to fulfill an obligation under the child support guidelines can result in arrest and imprisonment by the court. Any law, the disobedience of which can result in what amounts to criminal penalties, is inherently undelegable. Opinion of the Justices, 239 Mass. 606 (1921). On the third prong of the Separation of Powers test, there are no safeguards built into the Legislature’s “hands-off” approach, to stop the unbridled increases in child support which appear in the New Guidelines, which increases were not based on child-raising cost data, as well as the many other inequities and constitutional deprivations within them, as set forth in the Complaint. Delegation is only legitimate when judicial review and public accountability are 11

provided. Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409, 420-424 (1973). The CJAM simply promulgated the New Guidelines without any role whatsoever by the Legislature. In sum, Justice Mulligan’s enactment of the New Guidelines violated Article XXX of the Massachusetts Declaration of Rights, and should be struck down as unconstitutional.

2. Due Process of Law The violation of the due process rights of the Plaintiffs revolves around two deprivations: 1) The failure of Justice Mulligan to comply with the requirements of federal law and regulations concerning state child support guidelines; and 2) The failure of Justice Mulligan to submit the proposed guidelines to the State Legislature for a debate and vote, and approval of the Governor. Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of Article XII of the Massachusetts Declaration of Rights. Child support guidelines inherently deprive persons of property by their very operation. Failure of a Payor to remit amounts ordered under the guidelines, without excuse, often results in arrest and incarceration. Thus, fundamental rights are implicated in this matter. In order to prevail on a claim for deprivation of procedural due process, “the claimant must either avail himself of the remedies guaranteed by state law or prove that the available remedies are inadequate." Lamoureux v. Haight, 648 F. Supp. 1169, 1175 (D. Mass. 1986), quoting Hudson v. Palmer, 468 U.S. 517, 533, 539 (1984). (O'Connor, J. concurring). A properly promulgated regulation has the force of law and must be accorded all the deference due to a statute. Mass. Fed'n of Teachers v. Bd. of Educ., 436 Mass. 763, 771 (2002). When Justice Mulligan established the New Guidelines, without basing them on the costs of raising a child, as required by the aforementioned federal regulation, he acted arbitrarily and capriciously, which deprived the plaintiffs of due process. See Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999). In the Sierra Club case, the Court determined that the National Forest Service acted arbitrarily and 12

capriciously and violated applicable law when it approved timber sales from a Georgia national forest, without first gathering data about the impact of the timber sales on the residents. The New Guidelines are capricious and arbitrary, since they are not based on actual data regarding the cost of raising a child in the Commonwealth, nor on any economic model intended to estimate those costs. They are also inequitable, in that they fail to account for numerous variations in circumstances of parties subject to child support orders, such as large differences in the cost of housing around the Commonwealth, differences in taxation, receipt of public in-kind benefits, and differences in the situations of divorced and never married persons paying child support. There is a rebuttable presumption that the New Guidelines must be applied to any new child support orders issued by any department of The Trial Court in Massachusetts after January 1, 2009. Ex. 3, p. 2; Also see 42 U.S.C. §667. In order to vary from applying them to a particular case, a court must make findings about the amount of an order that would result from application of the guidelines, then explain why it would be unjust, enumerate the specific facts which justify the variation, and relate the deviation to the best interests of the child. Exhibit 3, P. 7. However, since Justice Mulligan did not use actual cost data to determine the New Guidelines, judges are left in the dark about how to make deviations. For example, if a judge wished to deviate from the guidelines because the housing cost of a party was lower or higher, the judge would have no objective basis for calculating the deviation, since the component percentage of the New Guidelines which constitutes the cost of housing is unknown, and no average is specified to which a comparison could be made. Thus, any deviation is arbitrary. The District of Columbia Court of Appeals discerned the harm from having no clearly codified standards, or knowledge of the assumptions upon which guideline calculations are based. Without that information, a judge cannot make a decision on when the guidelines should not be presumptively applied, and when and how to make fair deviations from them. The court criticized D.C.’s guidelines because of this failing: 13

Since the Guideline is presumptively fair, any party opposing its application would have a higher burden of proof than it might have without the Guideline. Although mandated by federal regulations, the numeric formulae make it difficult to ascertain what assumptions are being made. Amiici NCCR argues that it is impossible to tell the basis on which the Guideline is presumptively applied. The Guideline Report offers no economic basis for the Child Support Guideline Committee’s determinations. Consequently, the party trying to argue against application of the Guideline faces a monumental obstacle in attempting to demonstrate a case is “exceptional” without knowing what ‘unexceptional” is. Fitzgerald v. Fitzgerald, 566 A.2d 719, 731 (D.C. Ct. of Appeals 1989) Twenty-five other states establish their child support guidelines through enactment by their state legislatures. See e.g. Cal. Family Code §4055, Ohio Rev. Code 3119.1 et seq.; Code of Virginia § 20-108.2; Texas Family Code Sec. 154.121; Illinois 750 ILCS 5/505; New Jersey St. Title 2A, Chap. 34-23; New York Dom. Rel. Laws – Art. 13 §§ 236, 240, 243; Florida St. 61.30. Others use a combination of executive, judicial, and administrative action. Only a minority of states delegate the matter to a judicial committee, without legislative action, as Massachusetts has done. The statutes of many states include the federal requirement to obtain data on the cost of raising a child, which is designed to avoid the Fitzgerald problem, and the one now facing our Massachusetts Probate and Family Courts. For Example, the California Family Code states: (b) The review shall include economic data on the cost of raising children and analysis of case data, gathered through sampling or other methods, on the actual application of the guideline after the guideline's operative date. The review shall also include an analysis of guidelines and studies from other states, and other research and studies available to or undertaken by the Judicial Council. California Family Code 4054(b). When child support guidelines are being established, due process consists of gathering and utilizing actual data showing the costs of raising a child, and having the Legislature debate and enact the child support guidelines as the people’s representatives, thus allowing public input and accountability. See Section 1 above. Additionally, the executive branch, in the person of the Governor, must be allowed to approve or veto the bill, as another check on government power.

3. Equal Protection Under the Law

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The Plaintiffs are and will be treated unequally by several provisions of the New Guidelines, both on their face and as applied, on the basis of marital status, gender, and Payor class. The “indispensable element of a valid equal protection claim is that individuals who are similarly situated have been treated differently.” Machado v. Leahy, 17 Mass.Law.Rep. 263 (Sup. Ct. 2004). The standard of review under the cognate provisions of the Massachusetts Declaration of Rights is the same as under the Fourteenth Amendment to the Federal Constitution. Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 235 (1983). Unless a statute burdens a suspect group or fundamental interest, it will be upheld as long as it is rationally related to the furtherance of a legitimate state interest. See Vance v. Bradley, 440 U.S. 93, 97 (1979); Opinion of the Justices, 373 Mass. 883, 886 (1977). In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' See Murphy v. Department of Correction, 429 Mass. 736, 741 (1999), quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970). The disparities in the New Guidelines go well beyond reasonable distinctions, and substantially disadvantage large numbers similarly situated persons. In 1988, the U.S. Supreme Court adopted an intermediate standard of review for application to classifications based on illegitimacy of children. Clark v. Jeter, 486 U.S. 456 (1988). That means that a suspect government action will be reviewed to assure that it has a substantial relationship to an important government interest. See Craig v. Boren, 429 U.S. 190 (1976). Massachusetts law applies that standard. See Secretary of Comm. v. City Clerk of Lowell, 373 Mass. 178, 186 (1977). Regarding sex-based classifications, the Supreme Court has said that, in order to be valid, a sex-based classification also requires an intermediate level of scrutiny, but recent case law has

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elevated it to a seemingly higher level of "exceedingly persuasive justification." United States v. Virginia, 518 U.S. 515 (1996); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Any classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Reed v. Reed, 404 U.S. 71, 76 (1971), citing Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). The important government interest which the New Guidelines claim to be addressing is the support of children. However, this ostensible interest is subverted in many ways by provisions of the New Guidelines which explicitly deprive support from some children of the same Payor parent, and by invidious discrimination against Payors in the process. They provide for treating similarly situated children unequally, and they do not even pretend to require equity, which undercuts the rationale for the “important government interest” of supporting children. For example, there is no mechanism to ensure that a child of the same parent in a second family, married or unmarried, is not disadvantaged compared to a child in the first family for whom the parent is paying child support. There is no “floor” or downward stop mechanism in the New Guidelines to protect the younger child’s need for support against the sometimes ravaging child support orders which drain the parent, and leave that parent unable to provide for a second child. Similarly, a child of a divorced first family gains a huge financial advantage over a child of the same parent in a second family. That first child is entitled to support until age 23, if he or she attends college, unlike the half-sibling living with the Payor parent, who is only entitled to support until age 18. The first child may benefit from a court order requiring the Payor to pay for the first child’s college education, but no court order for college expenses can be issued for the benefit of the second child.

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Inequities abound in the New Guidelines, which treat the class of Payors and their children, differently than Recipients and their children. For example, the New Guidelines contain no requirement for the custodial parent to provide health insurance, but only that the Payor must do so. Never-married parents are treated differently under the New Guidelines because of the inclusion of alimony in increased child support calculations, as explained in the Complaint. Poorer Payors are prejudiced in relation to wealthier Recipients, in that their orders are arbitrarily doubled or tripled. Even if the Payor parent is the primary financial support for a child, there is no means to assure that he obtains the tax related child exemption, which can amount a difference of thousands of dollars. Public benefits are not counted as income to the Recipient, even though they contribute to the support of the Recipient and the children. These categorizations enforced against Payors by the New Guidelines do not show a substantial relationship to the expressed important government interest of supporting children, since they are not based on the cost of supporting children. Rather, they are arbitrary and capricious, and not reasonable and consistent. They do not state or even imply a rational basis for treating nevermarried parents, divorced parents, and married parents differently in a number of ways, the children of first and second families differently, men and women who are subject to child support orders differently (due to the lopsided 95%-5% skewing of orders from men to women), or the refusal to count the value of public benefits to Recipients, primarily women. Thus, the New Guidelines are not neutral on their face, or as applied. Admittedly, a facially neutral law does not violate the equal protection clause merely because it has a disproportionate impact; the disproportionate impact must be traced to a purpose to discriminate. Washington v. Davis, 426 U.S. 229 (1976). However, the New Guidelines explicitly discriminate, in their child support calculations, and as set forth in the admissions of its drafters in the Majority Report. There appears to be no other viable conclusion other than the Task Force intended to discriminate against Payors, second families, never-married, and divorced or re-married parents, in favor of Recipients. 17

Parents with identical after-tax incomes are treated differently if their gross incomes are different. Parents whose incomes are equivalent when public benefits are included are treated differently than parents whose income is exactly the same, but derived from earnings. Divorced parents can denominate some of their child support obligation as alimony, which allows the Payor to take a deduction from the gross taxable income for all alimony paid. 26 U.S.C. §71. Child support, however, is not deductible to the Payor. 26 U.S.C. §262. Child support orders of divorced parents can be deemed alimony by the Probate and Family Court, but not to never-married parents under M.G.L. c. 209C, the paternity statute. Massachusetts state law does not require a parent to provide support for a child after the age of 18, or earlier if the child is legally emancipated. See M.G.L. c. 231 §85P and M.G.L. c. 4 §7 ¶48. However, divorced and never married parents can be required to do so by court order, and are required by the New Guidelines to pay a full amount of child support until a child reaches the age of 23 if the child is in college, even if the child does not live with the custodial parent/Recipient. No married parent is required to provide this measure of financial support to a child. As noted above, a court can also order divorced and never-married parents to supply college costs to a child until graduation, which is not a legal obligation of married parents. Thus, divorced and never-married parents are treated in a significantly different manner than married ones. These discrepancies defeat one of the major declared purposes of the New Guidelines, which are to provide consistency and predictability. However, such differentiation in class treatment will promote the need for substantial deviation, for which there has been no adequate statistical provision, since the New Guidelines are not based on child raising costs. Finally, the New Guidelines discriminate against men, in that about 95% of Payors of child support are men, while Recipients are primarily women. Recipients can, under their status as custodial parents, avail themselves of numerous public benefits not available to Payors, but not count them as income for the purpose of calculating child support under the New Guidelines. 18

Thus, the New Guidelines must be enjoined as depriving the Plaintiffs of equal protection of the law. C. Irreparable Harm The Plaintiffs will be irreparably harmed by the implementation of the New Guidelines after January 1, 2009, because their child support obligations may be improperly increased by up to 200% over the orders which are currently in place, without a basis in data showing such an increase in the cost of raising a child, and no means in the law to recoup any over-payments. Please see the affidavits of the Plaintiffs attached. When each lawfully ordered child support payment is due to the Recipient or the Commonwealth, it becomes an irrevocable judgment and lien against the Payor, by operation of federal and state law. See G.L. c. 119A §6(b)(1). The statute does not allow any retroactive rebate of any over-paid support. Thus, a person aggrieved by paying excessive support under the New Guidelines suffers new irreparable harm every time a child support payment is made or due, with no mechanism for recoupment of those overpayments, even if the Legislature later lowers the support obligation. Failure to pay any child support amounts which are ordered under the New Guidelines, even though far in excess of the cost of raising a child, can nonetheless result in that Payor’s arrest and incarceration for contempt. Failure to properly provide for children in a new or second family, while being impoverished by large payments required under the New Guidelines, can result in action for neglect by the Massachusetts Dept. of Children and Families. Higher child support payments, higher tax payments, higher health insurance payments, and higher day care payments required under the New Guidelines cause harmful family tension, and can affect the quality of life or ability to have the necessary funds to take care of the supported children during the Payor’s parenting time. Those constitute irreparable harm, which redounds to the children. 19

D. Balance of Harms While the Plaintiffs will be irreparably harmed by the imposition of substantially higher child support obligations, neither the Defendants nor any Recipients will suffer detriment, in that the pre-2009 guidelines, in place since 2001 with only minor changes until the current review, would stay in place with no further change, pending review. The status quo ante would be restored and no support order would be reduced by granting the requested preliminary injunction, pending full review by the Court. Any child support orders issued in the interim can be issued at the Pre-January 2009 levels.

E. Public Policy Considerations The public interest is greatly and negatively affected when a large class of citizen Payors suffer financial detriment and the deprivation of their constitutional rights. As set forth above, many children in second families will be deprived, even though their support should be just as important as those children provided for by the support specified in the New Guidelines. All persons in the Commonwealth are deprived of the right to have the Legislature and Governor consider and resolve fundamental public policy and enact the equivalent of taxation by unilateral imposition of the New Guidelines by Justice Mulligan.

F. Conclusion In light of the foregoing, Plaintiffs request that this Honorable Court issue the requested preliminary injunction, enjoining the imposition of the New Guidelines on the Plaintiffs and all persons similarly situated, pursuant to the terms in the accompanying Proposed Preliminary Injunction. Respectfully Submitted, 20

The Plaintiffs, By their Counsel, Dated: March 16, 2009

____________________________ Gregory A. Hession J.D. 172 Thompson Street Springfield, MA 01109 413.746.3333 BBO No. 564457

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