FEDERAL & STATE PROCEDURES require child abduction cases to be handled expeditiously and given priority to the Docket. Hague cases (including appeals) are to be handled in six weeks - An appeal was filed to vitiate the Foreign Judgment with the Texas 5th Circuit Court of Appeals NINE MONTHS AGO with evidence corroborated by the U.S. Department of State confirming (1) conspiracy to abduct Alessia, (2) the foreign judgment was procured by fraud, (3) Bart was denied Consitutional Right of Due Process to have his case heard.
II. THE UK WAS WITHOUT JURISDICTION to render a judgment entitled to any recognition in the courts of Texas [or the United States]. Newly discovered evidence corroborated by U.S. authorities now confirms: (1) the Foreign Judgment was procured by fraud; (2) the foreign country did [not] have jurisdiction over Alessia; (3) the foreign judgment was in violation of the Hague Treaty's purpose and objectives; and (4) the American father was denied adequate Due Process and Natural Justice to: (a) present his case pursuant to Art 30 of the Hague Convention followed by (b) TWO foreign orders which refused Bart an opportunity to adduce CRITICAL evidence to confirm the procurement of fraud in [both] the lower court and the UK Court of Appeals.
III. PURSUANT TO LAWS OF SEVERAL INTERNATIONAL TREATIES Alessia should be returned to her 'Home-State' jurisdiction 'forthwith.' England did [not] have jurisdiction to make a determination over Alessia.
CIV PRACT & REM CODE § 35.003 (c). In effect, a motion to contest recognition of a foreign judgment operates like any post-judgment motion to directly attack a final judgment in the United States in post-judgment proceedings. Thus Ms Bradshaw of Koons Fuller made the following argument on Bart's behalf: "
A Movant on a timely filed motion for new trial is entitled to an evidentiary hearing. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979)." "Movant (Bart Hermer) was not accorded such a hearing despite his request." See fresh evidence filed in the Texas Court.
VII. THE UK ORDER WAS "UNCONSTIUTIONAL"
When the foreign judge gave an extraterritorial effect to Texas Law, or alternatively [no] effect regarding Alessia’s Home-State jurisdiction, it was acting less than sovereign; and by not ordering Alessia’s return to her proper jurisdiction as defined under both the UCCJEA TFC §152.102(7); and under Federal Statute, 28 USCS § 1738A (b)(4); the foreign court acted in a way that not only defeated the objectives and purposes of the Convention… it was potentially ‘unconstitutional’ to Alessia and her father and therefore non-recognizable by the United States.
VIII. Finally, newly discovered evidence collaborates Bart's defense that conclusions throughout the whole of the foreign judgment were ‘demonstrably’ contrary to the weight of the evidence.
XI. VIOLATION OF HAGUE CONVENTION ARTICLE 30 “Any application submitted to the Central Authorities, or directly to the judicial [or administrative] authorities of a Contracting State in accordance with the terms of this Convention, 'together with documents and any other information appended thereto or provided by a Central Authority, [shall] be admissible in the courts or administrative authorities of the Contracting States” [emphasis added].
* CRITICAL evidence was not allowed during the lower court OR in Bart's request for 'permission' to appeal, despite efforts made by U.S. & U.K Central Authorities ( See Hague Convention; Article 30).
XII. PROTEST LETTERS of concern were written and submitted by the U.S. Department of State (the U.S. Central Authority) as well as by the Lord Chancellor’s Department (the UK Central Authority) and by the Chairman of the Global Missing Children’s Fund, confirming: "CRITICAL evidence to establish Alessia’s abduction was attached to the father’s Application pursuant to Article 30 of the Hague Convention and therefore should have been admitted.” The Department of State 're-attached' the critical evidence and re-submitted it (again) to the UK Central Authority, but to no avail.
The Global Missing Children Fund (GMCF) wrote directly to the President of England's Family Division, affirming their organization: "has first-hand knowledge there is in fact CRITICAL evidence the UK would be suppressing which is relevant to his case of supporting that the "habitual residence" status of the child is and always has been the U.S."
ENGLAND'S LEGISLATION holds the same language in their country; SPECIFICALLY declaring that FOREIGN judgments: "[shall] be set aside if the registering court is (iv) satisfied that the judgment was obtained by fraud; or (v) that the enforcement of the judgment would be contrary to public policy in the country of the registering court."
* Scroll down to the section beginning with: "Cases in which registered foreign judgments [shall] be set aside" pursuant to UK Legislation known as UK Foreign Judgments (Reciprocal Enforcement) Act 1933.
"THE SECRET SHAME OF ENGLAND'S FAMILY COURTS"
"The public policy of this State is to: (1) assure children have frequent and continuing contact with both parents, shown to have the ability to act in the best interest of the child;... (3) encourage parents to share in the rights & duties of raising their child after parents have separated or dissolved their marriage"
Alessia’s Father did not have the benefit of a [fair] adversarial proceeding as he was unable at various stages of the proceedings to adduce arguments & evidence considered relevant to the case within terms of Articles 30, 23, and 8(g)(f) of the Convention, and/or Article 9 of the United Nation's Convention on the Right's of a Child (UNCRC). Alessia’s Father did not have an opportunity to effectively challenge arguments and evidence (erroneously) adduced by the opposing party with 'reliable & available' evidence that was submitted to the Central Authorities of BOTH the United States & United Kingdom pursuant to Article 30 of the Hague Convention. All of Bart's arguments which should have been viewed objectively and relevant to the resolution of Alessia’s case were not duly heard and/or were not examined by the UK trial Court OR the UK Court of Appeals, OR the United States' courts. Therefore any 'alleged' factual reasons the UK court relied upon (now proven false by various U.S. Authorities) were made arbitrarily and counterfactually. Thus the foreign decision was [NOT] arrived at fairly or impartially and must be vitiated.
a party may challenge jurisdiction by demonstrating (1) service of process was inadequate under rules of the sister state or (2) "the sister state's exercise of jurisdiction offends due process of law." Markham v. Diversified Land & Exploration Co., 973 S.W.2d 437, 439 (Tex.App.--Austin 1998, pet. denied).
II. CRITICAL EVIDENCE FROM TWO TEXAS SENATORS a member of the House of Representatives, Texas Police, and nearly twenty (20) Affidavits and statements from various U.S. & UK retailers, rabbis and mutual friends were individually submitted to the U.S. Central Authority to irrefutably illustrate the British mother committed fraud and deception to remove Alessia. Senator Florence Shapiro and TX House of Representative Jerry Madden wrote directly to the British High Court, asserting that the British mother (herself) "had just reasserted Alessia's home to be in Texas FIVE DAYS before leaving on vacation."
(a) TX Civil Practice & Remedies Code § 36.005; (a):Paras 2, 3: "A foreign judgment is [not] conclusive if the Foreign court did [not] have jurisdiction over the person or the subject matter.
"A judgment rendered by [any] court lacking subject-matter jurisdiction is [void] not just voidable."
(c) Fraud, deception, & misrepresentation can NOT change habitual residence. Newly discovered evidence 'confirms' Simmone's conspiracy, fraud & deception to secure the wrongful removal of Alessia from the United States and that her "her act of removal was ‘surreptitious’ and the immediate intentions of the mother and the arrangements for removal ‘were concealed from the father and designed to present him with a fait accompli." [taken verbatim from prior a UK Hague Case that should have applied to Alessia's case].
IV. UK POSITION ON FRAUD IS THE SAME AS THE U.S.
The United States guarantees a party the right to a 'public' trial and the right to appeal all the way to the Supreme Court. However, England does not ensure opportunity to perfect adjudication. Family courts in the UK are: (1) forbidden public trials and (2) if a party feels a UK judgment was obtained in error, they must first ‘ask permission’ to appeal. England not only operates closed, 'secret' proceedings in family cases, "but parents are stopped by court orders from reporting anything that happens inside them." (See the BBC Special Report below). Alessia's father was given such a gag order.
VI. In the UK, if 'permission' to appeal is denied, a party has no further right to appeal to the UK Supreme Court; (even as in Alessia's case) to confirm the judgement in the lower court had been procured by fraud.
VII. Alessia’s father immediately filed for “permission” to approach the Court “with reliable & relevant evidence that would plainly illustrate the Court was 'misled' and that the foreign decision was obtained on fraud.” Not only was Bart's 'PERMISSION' to appeal refused… he was denied permission to submit (or adduce) any evidence to prove the judgment had been procured by fraud. The result was a horrible perversion of justice that would be considered just as repugnant to the Laws of the United States as they would in the UK.
The U.S. Chamber Institute for Legal Reform published a document on October 2011 on "Abusive Foreign Judgments" which demonstrates why comity—when properly understood—will require U.S. courts to deny recognition and enforcement to ANY foreign judgment that violates the U.S. Constitution and/or "other deeply rooted domestic principles."
"SECRET SHAME OF ENGLAND'S FAMILY COURTS"
* How did this go so 'BadlyWrong?
* Please Contact These People ASAP!


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2. Be we then willingly ignorant of that which the Lord would not have us know: and let us 16inquire what this title, “of the eighth,” means. The day of judgment may indeed, even without any rash computation of years, be understood by the eighth, for that immediately after the end of this world, life eternal being attained, the souls of the righteous will not then be subject unto times: and, since all times have their revolution in a repetition of those seven days, that peradventure is called the eighth day, which will not have this variety. There is another reason, which may be here not unreasonably accepted, why the judgment should be called the eighth, because it will take place after two generations, one relating to the body, the other to the soul. For from Adam unto Moses the human race lived of the body, that is, according to the flesh: which is called the outward and the old man,164164 Rom. vi. 6; Eph. iv. 22. and to which the Old Testament was given, that it might prefigure the spiritual things to come by operations, albeit religious, yet carnal. Through this entire season, when men lived according to the body, “death reigned,” as the Apostle saith, “even over those that had not sinned.” Now it reigned “after the similitude of Adam’s transgression,”165165 Rom. v. 14. as the same Apostle saith; for it must be taken of the period up to Moses, up to which time the works of the law, that is, those sacraments of carnal observance, held even those bound, for the sake of a certain mystery, who were subject to the One God. But from the coming of the Lord, from whom there was a transition from the circumcision of the flesh to the circumcision of the heart, the call was made, that man should live according to the soul, that is, according to the inner man, who is also called the “new man”166166 Col. iii. 10. by reason of the new birth and the renewing of spiritual conversation. Now it is plain that the number four has relation to the body, from the four well known elements of which it consists, and the four qualities of dry, humid, warm, cold. Hence too it is administered by four seasons, spring, summer, autumn, winter. All this is very well known. For of the number four relating to the body we have treated elsewhere somewhat subtilly, but obscurely: which must be avoided in this discourse, which we would have accommodated to the unlearned. But that the number three has relation to the mind may be understood from this, that we are commanded to love God after a threefold manner,167167 [On the tripartite nature of man, see Tertull. A.N.F. vol. iii. pp. 463, 474.—C.] with the whole heart, with the whole soul, with the whole mind:168168 Deut. vi. 5; Matt. xxii. 37. of each of which severally we must treat, not in the Psalms, but in the Gospels: for the present, for proof of the relation of the number three to the mind, I think what has been said enough. Those numbers then of the body which have relation to the old man and the Old Testament, being past and gone, the numbers too of the soul, which have relation to the new man and the New Testament, being past and gone, a septenary so to say being passed; because everything is done in time, four having been distributed to the body, three to the mind; the eighth will come, the day of judgment: which assigning to deserts their due, will transfer at once the saint, not to temporal works, but to eternal life; but will condemn the ungodly to eternal punishment.
3. In fear of which condemnation the Church prays in this Psalm, and says, “Reprove me not, O Lord, in Thine anger” (ver. 1). The Apostle too mentions the anger of the judgment; “Thou treasurest up unto thyself,” he says, “anger against the day of the anger of the just judgment of God.”169169 Rom. ii. 5. In which he would not be reproved, whosoever longs to be healed in this life. “Nor in Thy rage chasten me.” “Chasten,” seems rather too mild a word; for it availeth toward amendment. For for him who is reproved, that is, accused, it is to be feared lest his end be condemnation. But since “rage” seems to be more than “anger,” it may be a difficulty, why that which is milder, namely, chastening, is joined to that which is more severe, namely, rage. But I suppose that one and the same thing is signified by the two words. For in the Greek θυμὸς, which is in the first verse, means the same as ὀργὴ, which is in the second verse.170170 [Compare Trench on Synonyms of the New Testament, p. 178, ed. New York, 1854.—C.] But when the Latins themselves too wished to use two distinct words, they looked out for what was akin to “anger,” and “rage”171171 Furor. was used. Hence copies vary. For in some “anger” is found first, and then “rage:” in others, for “rage,” “indignation” or “choler” is used. But whatever the reading, it is an emotion of the soul urging to the infliction of punishment. Yet this emotion must not be attributed to God, as if to a soul, of whom it is said, “but Thou, O Lord of power, judgest with tranquillity.”172172 Wisd. xii. 18. Now that which is tranquil, is not disturbed. Disturbance then does not attach to God as judge: but what is done by His ministers, in that it is done by His laws, is called His anger. In which anger, the soul, which now prays, would not only not be reproved, but not even chastened, that is, amended or instructed. For in the Greek it is, παιδεύσῃς, that is, instruct. Now in the day of judgment all are “reproved” that hold not the foundation, which is Christ. But they are amended, that is, purged, who “upon this foundation build wood, hay, stubble. For they shall suffer loss, but shall be saved, as by fire.”173173 1 Cor. iii. 11, 12, 13, 15. 17What then does he pray, who would not be either reproved or amended in the anger of the Lord? what else but that he may be healed? For where sound health is, neither death is to be dreaded, nor the physician’s hand with caustics or the knife.
4. He proceeds accordingly to say, “Pity me, O Lord, for I am weak: heal me, O Lord, for my bones are troubled” (ver. 2), that is, the support of my soul, or strength: for this is the meaning of “bones.” The soul therefore says, that her strength is troubled, when she speaks of bones. For it is not to be supposed, that the soul has bones, such as we see in the body. Wherefore, what follows tends to explain it, “and my soul is troubled exceedingly” (ver. 3), lest because he mentioned bones, they should be understood as of the body. “And Thou, O Lord, how long?” Who does not see represented here a soul struggling with her diseases; but long kept back by the physician, that she may be convinced what evils she has plunged herself into through sin? For what is easily healed, is not much avoided: but from the difficulty of the healing, there will be the more careful keeping of recovered health. God then, to whom it is said, “And Thou, O Lord, how long?” must not be deemed as if cruel: but as a kind convincer of the soul, what evil she hath procured for herself. For this soul does not yet pray so perfectly, as that it can be said to her, “Whilst thou art yet speaking I will say, Behold, here I am.”174174 Isa. lxv. 24. That she may at the same time also come to know, if they who do turn meet with so great difficulty, how great punishment is prepared for the ungodly, who will not turn to God: as it is written in another place, “If the righteous scarcely be saved, where shall the sinner and ungodly appear?”175175 1 Pet. iv. 18.
5. “Turn, O Lord, and deliver my soul” (ver. 4). Turning herself she prays that God too would turn to her: as it is said, “Turn ye unto Me, and I will turn unto you, saith the Lord.”176176 Zech. i. 3. Or is it to be understood according to that way of speaking, “Turn, O Lord,” that is make me turn, since the soul in this her turning feels difficulty and toil? For our perfected turning findeth God ready, as says the Prophet, “We shall find Him ready as the dawn.”177177 Hos. vi. 3, LXX. Since it was not His absence who is everywhere present, but our turning away that made us lose Him; “He was in this world,” it is said, “and the world was made by Him, and the world knew Him not.”178178 John i. 10. If, then, He was in this world, and the world knew Him not, our impurity doth not endure the sight of Him. But whilst we are turning ourselves, that is, by changing our old life are fashioning our spirit; we feel it hard and toilsome to be wrested back from the darkness of earthly lusts, to the serene and quiet and tranquillity of the divine light. And in such difficulty we say, “Turn, O Lord,” that is, help us, that that turning may be perfected in us, which findeth Thee ready, and offering Thyself for the fruition of them that love Thee. And hence after he said, “Turn, O Lord,” he added, “and deliver my soul:” cleaving as it were to the entanglements of this world, and suffering, in the very act of turning, from the thorns, as it were, of rending and tearing desires. “Make me whole,” he says, “for Thy pity’s sake.” He knows that it is not of his own merits that he is healed: for to him sinning, and transgressing a given command, was just condemnation due. Heal me therefore, he says, not for my merit’s sake, but for Thy pity’s sake.
6. “For in death there is no one that is mindful of Thee” (ver. 5). He knows too that now is the time for turning unto God: for when this life shall have passed away, there remaineth but a retribution of our deserts.179179 [St. Augustin, whatever he may have imagined of the fire that is to purify at the last day (1 Cor. iii. 13–15), knew nothing of an intermediate purgatory. Compare A.N.F. vol. viii. pp. 239, 390, for apocryphal opinions and a misleading note. Consult (same series) vol. iii. p. 428, and v. p. 222, notes 1 and 7, with p. 223, note 1.—C.] “But in hell who shall confess to Thee?”180180 Luke xvi. That rich man, of whom the Lord speaks, who saw Lazarus in rest, but bewailed himself in torments, confessed in hell, yea so as to wish even to have his brethren warned, that they might keep themselves from sin, because of the punishment which is not believed to be in hell. Although therefore to no purpose, yet he confessed that those torments had deservedly lighted upon him; since he even wished his brethren to be instructed, lest they should fall into the same. What then is, “But in hell who will confess to Thee?” Is hell to be understood as that place, whither the ungodly will be cast down after the judgment, when by reason of that deeper darkness they will no more see any light of God, to whom they may confess aught? For as yet that rich man by raising his eyes, although a vast gulf lay between, could still see Lazarus established in rest: by comparing himself with whom, he was driven to a confession of his own deserts. It may be understood also, as if the Psalmist calls sin, that is committed in contempt of God’s law, death: so as that we should give the name of death to the sting of death, because it procures death. “For the sting of death is sin.”181181 1 Cor. xv. 56. In which death this is to be unmindful of God, to despise His law and commandments: so that by hell the Psalmist would mean that blindness of soul which overtakes and enwraps the sinner, that is, the dying. “As they did not think good,” the Apostle says, 18“to retain God in” their “knowledge, God gave them over to a reprobate mind.”182182 Rom. i. 28. From this death, and this hell, the soul earnestly prays that she may be kept safe, whilst she strives to turn to God, and feels her difficulties.
7. Wherefore he goes on to say, “I have laboured in my groaning.” And as if this availed but little, he adds, “I will wash each night my couch” (ver. 6). That is here called a couch, where the sick and weak soul rests, that is, in bodily gratification and in every worldly pleasure. Which pleasure, whoso endeavours to withdraw himself from it, washes with tears. For he sees that he already condemns carnal lusts; and yet his weakness is held by the pleasure, and willingly lies down therein, from whence none but the soul that is made whole can rise. As for what he says, “each night,” he would perhaps have it taken thus: that he who, ready in spirit, perceives some light of truth, and yet, through weakness of the flesh, rests sometime in the pleasure of this world, is compelled to suffer as it were days and nights in an alternation of feeling: as when he says, “With the mind I serve the law of God,” he feels as it were day; again when he says, “but with the flesh the law of sin,”183183 Rom. vii. 25. he declines into night: until all night passeth away, and that one day comes, of which it is said, “In the morning I will stand by Thee, and will see.”184184 Ps. v. 3. For then he will stand, but now he lies down, when he is on his couch; which he will wash each night, that with so great abundance of tears he may obtain the most assured remedy from the mercy of God. “I will drench my bed with tears.” It is a repetition.185185 [St. Augustin was the inventor of what is now called “The Silent Comforter,” for the invalid. This Psalm, with the six other Penitential Psalms, he caused to be set up before his dying eyes. See Vita S. Aug. auctore Possidio, ed. Migne, vol. i. p. 63.—C.] For when he says, “with tears,” he shows with what meaning he said above, “I will wash.” For we take “bed” here to be the same as “couch” above. Although, “I will drench,” is something more than, “I will wash:” since anything may be washed superficially, but drenching penetrates to the more inward parts; which here signifies weeping to the very bottom of the heart. Now the variety of tenses which he uses; the past, when he said, “I have laboured in my groaning;” and the future, when he said, “I will wash each night my couch;” the future again, “I will drench my bed with tears;” this shows what every man ought to say to himself, when he labours in groaning to no purpose. As if he should say, It hath not profited when I have done this, therefore I will do the other.
8. “Mine eye is disordered by anger” (ver. 7): is it by his own, or God’s anger, in which he maketh petition that he might not be reproved, or chastened? But if anger in that place intimate the day of judgment, how can it be understood now? Is it a beginning of it, that men here suffer pains and torments, and above all the loss of the understanding of the truth; as I have already quoted that which is said, “God gave them over to a reprobate mind”?186186 Rom. i. 28. For such is the blindness of the mind. Whosoever is given over thereunto, is shut out from the interior light of God: but not wholly as yet, whilst he is in this life. For there is “outer darkness,”187187 Matt. xxv. 30. which is understood to belong rather to the day of judgment; that he should rather be wholly without God, whosoever whilst there is time refuses correction. Now to be wholly without God, what else is it, but to be in extreme blindness? If indeed God “dwell in inaccessible light,”188188 1 Tim. vi. 16. whereinto they enter, to whom it is said, “Enter thou into the joy of thy Lord.”189189 Matt. xxv. 21, 23. It is then the beginning of this anger, which in this life every sinner suffers. In fear therefore of the day of judgment, he is in trial and grief; lest he be brought to that, the disastrous commencement of which he experiences now. And therefore he did not say, mine eye is extinguished, but, “mine eye is disordered by anger.” But if he mean that his eye is disordered by his own anger, there is no wonder either in this. For hence perhaps it is said, “Let not the sun go down upon your wrath;”190190 Eph. iv. 26. because the mind, which, from her own disorder, is not permitted to see God, supposes that the inner sun, that is, the wisdom of God, suffers as it were a setting in her.
9. “I have grown old in all mine enemies.” He had only spoken of anger (if it were yet of his own anger that he spoke): but thinking on his other vices, he found that he was entrenched by them all. Which vices, as they belong to the old life and the old man, which we must put off, that we may put on the new man,191191 Col. iii. 9, 10. it is well said, “I have grown old.” But “in all mine enemies,” he means, either amidst these vices, or amidst men who will not be converted to God. For these, even if they know them not, even if they bear with them, even if they use the same tables and houses and cities, with no strife arising between them, and in frequent converse together with seeming concord: notwithstanding, by the contrariety of their aims, they are enemies to those who turn unto God. For seeing that the one love and desire this world, the others wish to be freed from this world, who sees not that the first are enemies to the last? For if they can, they draw the others into punishment with them. And it is a great grace, to be conversant daily with their words, and not to depart from the way of God’s commandments. For often the mind which is striving to go on to God-ward, 19being rudely handled in the very road, is alarmed; and generally fulfils not its good intent, lest it should offend those with whom it lives, who love and follow after other perishable and transient goods. From such every one that is whole is separated, not in space, but in soul. For the body is contained in space, but the soul’s space is her affection.
10. Wherefore after the labour, and groaning, and very frequent showers of tears, since that cannot be ineffectual, which is asked so earnestly of Him, who is the Fountain of all mercies, and it is most truly said, “the Lord is nigh unto them that are of a broken heart:”192192 Ps. xxxiv. 18. after difficulties so great, the pious soul, by which we may also understand the Church, intimating that she has been heard, see what she adds: “Depart from me, all ye that work iniquity; for the Lord hath heard the voice of my weeping” (ver. 8). It is either spoken prophetically, since they will depart, that is, the ungodly will be separated from the righteous, when the day of judgment arrives, or, for this time present. For although both are equally found in the same assemblies, yet on the open floor the wheat is already separated from the chaff, though it be hid among the chaff. They can therefore be associated together, but cannot be carried away by the wind together.
12. “Let all mine enemies be ashamed and vexed” (ver. 10). He said above, “depart from me all ye:” which can take place, as it has been explained, even in this life: but as to what he says, “let them be ashamed and vexed,” I do not see how it can happen, save on that day when the rewards of the righteous and the punishments of the sinners shall be made manifest. For at present so far are the ungodly from being ashamed, that they do not cease to insult us. And for the most part their mockings are of such avail, that they make the weak to be ashamed of the name of Christ. Hence it is said, “Whosoever shall be ashamed of Me before men, of him will I be ashamed before My Father.”194194 Matt. x. 33; Luke ix. 26. But now whosoever would fulfil those sublime commands, to disperse, to give to the poor, that his righteousness may endure for ever;195195 Ps. cxii. 9. and selling all his earthly goods, and spending them on the needy, would follow Christ, saying, “We brought nothing into this world, and truly we can carry nothing out; having food and raiment, let us be therewith content;”196196 1 Tim. vi. 7, 8. incurs the profane raillery of those men, and by those who will not be made whole, is called mad; and often to avoid being so called by desperate men, he fears to do, and puts off that, which the most faithful and powerful of all physicians hath ordered. It is not then at present that these can be ashamed, by whom we have to wish that we be not made ashamed, and so be either called back from our proposed journey, or hindered, or delayed. But the time will come when they shall be ashamed, saying as it is written, “These are they whom we had sometimes in derision, and a parable of reproach: we fools counted their life madness, and their end to be without honour: how are they numbered among the children of God, and their lot is among the saints? Therefore have we erred from the way of truth, and the light of righteousness hath not shined into us, nor the sun risen upon us: we have been filled with the way of wickedness and destruction, and have walked through rugged deserts, but the way of the Lord we have not known. What hath pride profited us, or what hath the vaunting of riches brought us? All those things are passed away like a shadow.”197197 Wisd. v. 3–9.
13. But as to what he says, “Let them be turned and confounded,” who would not judge it to be a most righteous punishment, that they should have a turning unto confusion, who would not have one unto salvation? After this he added, “exceeding quickly.” For when the day of judgment shall have begun to be no longer looked for, when they shall have said, “Peace, then shall sudden destruction come upon them.”198198 1 Thess. v. 3. Now whensoever it come, that comes very quickly, of whose coming we give up all expectation; and nothing makes the length of this life be felt but the hope of living. For nothing seems more quick, than all that has already passed in it. When then the day of judgment shall come, then will sinners feel how that all the life which passeth away is not long. Nor will that any way possibly seem to them to have come tardily, which shall have come without their desiring, or rather without their believing. Although it can too be taken in this place thus, that inasmuch as God has heard, so to say, her groans, and her long and frequent tears, she may be understood to be freed from her sins, and to have tamed every disordered impulse of carnal affection: 20as she saith, “Depart from me, all ye that work iniquity, for the Lord hath heard the voice of my weeping:” and when she has had this happy issue, it is no marvel if she be already so perfect as to pray for her enemies. The words then, “Let all mine enemies be ashamed, and vexed,” may have this meaning; that they should repent of their sins, which cannot be effected without confusion and vexation. There is then nothing to hinder us from taking what follows too in this sense, “let them be turned and ashamed,” that is, let them be turned to God, and be ashamed that they sometime gloried in the former darkness of their sins; as the Apostle says, “For what glory had ye sometime in those things of which ye are now ashamed?”199199 Rom. vi. 21. But as to what he added, “exceeding quickly,” it must be referred either to the warm affection of her wish, or to the power of Christ; who converteth to the faith of the Gospel in such quick time the nations, which in their idols’ cause did persecute the Church.
160 1 Thess. v. 2.
164 Rom. vi. 6; Eph. iv. 22.
168 Deut. vi. 5; Matt. xxii. 37.
173 1 Cor. iii. 11, 12, 13, 15.
175 1 Pet. iv. 18.
177 Hos. vi. 3, LXX.
181 1 Cor. xv. 56.
188 1 Tim. vi. 16.
189 Matt. xxv. 21, 23.
191 Col. iii. 9, 10.
194 Matt. x. 33; Luke ix. 26.
196 1 Tim. vi. 7, 8.
198 1 Thess. v. 3.

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Ye cannot serve God and mammon.
What happens when an irresistible force meets an immovable object? The philosopher will tell us that there is no answer, that it is a paradox. He has the luxury of throwing up his hands. But the irresistible force of Free Exercise has been meeting the immovable object of antiestablishment for 200 years in American courtrooms. And American jurists have had to rough fit an answer. It is no mean feat to weigh two such lofty ideals. We might be more than charitable in accepting and forgiving error made in good faith, were it not thought the importance of the ideals demanded a more rigorous standard.
This past June, the United States Supreme Court handed down its latest landmark decision operating in these interstices of the First Amendment’s Religion Clauses. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that Free Exercise requires the state to provide financial benefits to religious entities on equal terms, notwithstanding the state’s interest in antiestablishment. More than being merely wrongly decided, Trinity Lutheran has the potential to work an unacknowledged revolution in the Court’s Religion Clauses jurisprudence. On the one hand, the holding takes the Free Exercise Clause into broad and uncharted new waters that are well beyond the facts and reasoning of seminal precedent. And on the other, the holding threatens long-standing Establishment Clause practice and precedent with a new legal standard under the Free Exercise Clause with which to challenge prevailing government antiestablishment conduct.
In reaching this destabilizing conclusion, the Court commits two primary errors. First, in arriving at its ultimate holding, the Court miscategorizes the case and misapplies Free Exercise precedent. And the judicial whole cloth it invents to distinguish the case is jurisprudentially wanting. Second, to get to the Free Exercise Clause issue in the first place, the Court entirely elides an important threshold Establishment Clause analysis. Thus Trinity Lutheran is wrongly decided and conceptually infirm, and should be limited and reversed in the future.
In an effort to reduce the number of used rubber tires that end up in landfills and dump sites, the State of Missouri, through the State’s Department of Natural Resources (Department), introduced the Scrap Tire Program. The Program offers reimbursement grants to nonprofit organizations that purchase playground surfaces made from recycled tires. The Department awards grants on a competitive basis to those applicants that score highest on a selection of criteria including population poverty level and the applicant’s plan to promote recycling. In 2012, the Trinity Lutheran Church Child Learning Center applied to participate in the Scrap Tire Program to attain funds to replace a large portion of the surface beneath a playground that is part of the Center’s facilities. Despite ranking fifth among forty-four applicants, the Department rejected the Learning Center’s application. Because the Learning Center was operated by the Trinity Lutheran Church, it was deemed categorically ineligible to receive such a grant pursuant to Article I, Section 7 of the Missouri Constitution, which purported to deny such financial assistance directly to a church.
In response to this categorical denial, Trinity Lutheran filed suit against the Department, alleging the failure to approve its application based on its religious affiliation violated the First Amendment’s Free Exercise Clause. Trinity Lutheran asked for a declaratory judgment and injunctive relief that would prevent the Department from discriminating against the Church in future grant applications on the basis of its religious affiliation. Finding the present case “nearly indistinguishable” from Locke v. Davey, the District Court held that Free Exercise “does not prohibit withholding an affirmative benefit on account of religion[,]” and thus did not require the State to make funds like those provided by the Scrap Tire Program available to a religious institution like the Trinity Lutheran Church. Echoing Locke’s principle that there is “play in the joints” between the First Amendment’s Religion Clauses, the Eighth Circuit affirmed. It recognized that while Missouri could award a grant to Trinity Lutheran without infringing on the Establishment Clause, Free Exercise did not compel Missouri to ignore the antiestablishment principle reflected in its constitution.
In reaching his conclusion, Chief Justice Roberts had one further job in front of him: distinguishing the Locke decision that had formed the basis of the lower courts’ decisions and that the Department had argued controlled the outcome of the case. Locke had upheld, against a Free Exercise challenge, a provision of the Washington Constitution similar to the Missouri provision at issue in the instant case that had been applied to prohibit a state scholarship recipient from applying the scholarship funds to pursue a devotional theology degree. In so doing, Locke had established a “play in the joints” principle. There were some state actions that were not prohibited by the Establishment Clause, but neither were they required by the Free Exercise Clause. Applying Locke, the Department argued, and the District Court and Eighth Circuit held, that Missouri could allow churches to participate in the Scrap Tire Program, but was not required to. To distinguish Locke, Roberts derived a status–use distinction between Locke and the case before him. According to the Chief Justice, “[the respondent in Locke] was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.” In contrast, “[h]ere there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” But Locke is not so readily distinguishable as the Chief Justice asserts.
The fundamental problem with Chief Justice Roberts’s analysis is that in reaching his result, he conflates two fundamentally different types of Free Exercise challenges: those actively inhibiting self-determined religious devotion and those merely denying an affirmative benefit. Given the historical purposes of the Clause, it is no surprise that most Free Exercise cases arise in the context of the government imposing an active burden on the individual’s actual practice of his faith. Perhaps the most paradigmatic example of such a case is Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. In a transparent attempt to discourage, if not outright prohibit, the practices of the Santeria Church, the city of Hialeah, Florida enacted certain laws, under the guise of public welfare ordinances, that severely restricted animal slaughter. But a component aspect of the practice of Santeria is the ritual sacrifice of animals as part of religious rights and observances. Importantly, and revelatory of the inherently discriminatory purpose of such laws, exemptions were given to the ritualistic slaughter of animals in other religious practices, such as the Kosher butchery of observant Jews. Although such laws were purported to be facially neutral, the Court saw through this pretext and struck down the laws as an attempt to disfavor one particular religious practice that was distasteful to the local residents. Such intentionally gerrymandered laws, designed to burden one discrete and disfavored minority religious practice, go precisely to the core of what the Free Exercise Clause is intended to prohibit.
Although lacking the clear animus present in Lukumi, in a similar case the Supreme Court applied the “ministerial exception” doctrine to employment decisions regarding teachers at parochial schools. Recognizing that teachers serve a similar function to ordained and denominated ministers in the course of parochial instruction, the court exempted such teachers from the requirements of equal opportunity in employment laws of general application. To impose such secular constraints on such decisions would be to deny religious practitioners the prerogative to decide for and amongst themselves who would serve as the spiritual leaders and educators in their faith, a core component of self-deterministic religious adherence. Cases like these represent the essential core of the principal of religious liberty; the freedom to direct the substantive practice of your faith as you see fit, without interference from the governing majority.
A second strand of subtly different but principally identical cases concerns the denial of what we might call universal societal benefits based on religious practices. Decided under the Establishment Clause, Everson v. Board of Education announced the principle that “cutting off” religious groups “from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks” is antithetical to the protections guaranteed by the First Amendment. Nominally, such services could be deemed affirmative state benefits as opposed to active inhibitions on practice. But their universality and essentiality to functioning in civil society should more than suffice in demonstrating that their denial, based on an individual’s religious practice, speaks, once again, to the essential substance of Free Exercise protections. The individual in such cases is being asked to forsake the precepts of his faith to participate fully and equally in society in ways he is otherwise entitled. Thus, although nominally benefits, such denials are better conceived of legally and conceptually as burdens on religious practice.
More than a few cases have been decided under essentially this rubric. Most importantly, the case relied on primarily by the majority in Trinity Lutheran, McDaniel, is one such case. Recall that McDaniel “struck down under the Free Exercise Clause a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention.” At first blush it might be possible to conceive, as with the provision of police and firefighters or the availability of unemployment benefits, that the ability to hold public office is an affirmative benefit provided by the state. But a moment’s reflection ought to make apparent that in a democratic republic, in which the people are sovereign, and governed of, by, and for themselves, such a proposition cannot withstand the most basic scrutiny. To hold that civic participation in the mechanisms of government should be considered under the law to be but a privilege accorded by the state and not the inalienable right of a free citizen in civil society turns the entire premise of the American Experiment on its head. It is too great a refutation of ordered liberty to be maintained. Therefore, Chief Justice Roberts is incorrect to conceive of McDaniel as a case dealing with the denial of an affirmative benefit from the government based on religious practice and observance. In truth, McDaniel is thus best conceived of as one imposing an active burden on the functional practice of one’s religious faith.
The second category of Free Exercise cases that Chief Justice Roberts fails to distinguish is, as previously identified, those that instead merely deny some form of benefit that the government has chosen of its own prerogative and on its own accord to selectively provide. The Scrap Tire Program grants at issue in Trinity Lutheran are beyond a doubt of this second variety of cases. Accepting the premise that denying civic participation to ministers is not merely withholding a benefit but burdening religious faith by imposing a penalty on its pursuit, McDaniel is easily distinguishable from Trinity Lutheran. In contrast, Locke v. Davey, the case that Chief Justice Roberts was forced to distinguish in reaching his holding, arises in the almost identical context of the denial of a monetary grant based on the State’s antiestablishment interest.
Similar to the facts in Trinity Lutheran, Locke involved the provision of a selective public benefit to a limited number of recipients. High-achieving students could be awarded funds to pursue post-secondary education as part of the Promise Scholarship Program. Among other eligibility requirements, however, a student could “not pursue a degree in theology . . . while receiving the scholarship,” though was free to study at accredited religiously affiliated universities. The statute did not expressly define what a degree in theology meant. But it was acknowledged by the parties and by the Court that the statute simply purported to codify the State’s constitutional prohibition on providing public money to support or further religious instruction.
Respondent Davey was initially awarded such a scholarship and was interested in pursuing a course of study that included a degree in “pastoral ministries,” a concededly theological degree. Upon learning that to receive the scholarship funds he had to certify that he was not pursuing any such degree, he refused, so forfeited any scholarship funds, and filed suit alleging several constitutional violations, including of his right to free exercise of religion. The District Court initially rejected Davey’s claims and granted the State’s motion for summary judgment. But the Court of Appeals for the Ninth Circuit reversed, concluding that “the State had singled out religion for unfavorable treatment,” relying heavily on the approach taken by the Court in Lukumi. In this way, the Ninth Circuit in Locke reached much the same conclusion as the Supreme Court did in Trinity Lutheran. Yet, in Locke, seven members of the Supreme Court found this reasoning unpersuasive.
Moreover, Davey had asked the Court to conclude much as the Court in Trinity Lutheran ultimately did, that a law “is presumptively unconstitutional because it is not facially neutral with respect to religion.” Yet as goes entirely unmentioned by the Trinity Lutheran majority, the Locke majority expressly refused to do so. Instead, the Court in Locke “reject[ed] [t]his claim of presumptive unconstitutionality, . . . to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning.” The laws at issue in Lukumi sought to suppress the Santeria faith itself. Regarding the law at issue in Locke, which merely denied monetary funds just as were denied in Trinity Lutheran, “the State’s disfavor of religion (if it can be called that) [was] of a far milder kind.” It imposed “neither criminal nor civil sanctions on any type of religious service or rite.” And in its very next breath the Court drew a clear distinction between the denial of financial benefits nearly identical to those in Trinity Lutheran and “deny[ing] to ministers the right to participate in the political affairs of the community,” precisely the case relied on so heavily by the majority for its outcome, McDaniel. As went entirely unrecognized or unremarked upon by the Trinity Lutheran Court, the holding in Locke is as much of an express disavowal of precisely the argument put forward by Chief Justice Roberts in Trinity Lutheran as could be imagined.
Worse yet for the Trinity Lutheran majority, it makes extreme light of a state’s compelling antiestablishment interest that is treated as next to sacred in a very similar context in Locke. Discussing the “procuring [of] taxpayer funds to support church leaders” the Locke majority could “think of few areas in which a State’s antiestablishment interests come more into play.” The funds in Trinity Lutheran were not merely to go to “support church leaders,” they were to go to support the very church itself, in the form of improved church facilities. In light of “the historic and substantial state interest at issue” concerning antiestablishment in the American system of government, the Court found nothing “that suggests animus toward religion” and refused to “conclude that the denial of funding . . . alone is inherently constitutionally suspect.” Because the State’s antiestablishment interest was “substantial” and the burden imposed by the denial of the scholarship funds was “relatively minor,” the respondent’s claim “must fail.” Tellingly, the majority in Trinity Lutheran, by contrast, declined to engage in any such analysis. Because if the majority did, it would have been forced to conclude that Missouri’s antiestablishment interest was similarly substantial, the church’s burden in having to pay for its own playground surface was similarly minimal, and thus the church’s claim must similarly fail.
And as noted earlier, Chief Justice Roberts was only able to distinguish Locke by deriving a status–use distinction. The respondent in Locke was denied the benefit of the State of Washington’s scholarship funds because he proposed to use the money to fund a devotional degree. Here in contrast, according to the Chief Justice, the Trinity Lutheran Church was denied the State of Missouri’s money because of what it is, namely a church. But not only is this status–use distinction invented out of whole cloth, it is conceptually wanting. As reasonable as this distinction appears superficially, a deeper analysis reveals the distinction to be more than somewhat facile. To begin with, the respondent in Locke was not truly denied the scholarship because he was certain to use the funds to pursue a ministerial degree, but instead because he refused to certify to the State that he would not. In essence, he was denied the scholarship because he was unwilling to foreclose the possibility that he would use the funds in such a way. The distinction may seem minor, but it begins to chip away at the logic of Locke’s being decided based purely on conduct, as opposed to status. The respondent in Locke was a religious student with an interest in pursuing a devotional degree in accordance with his faith. Described in this way, the denial of the scholarship can begin to look more like one based on status than use.
Even in concurring with the Chief Justice’s opinion and ultimate holding, Justice Gorsuch was able to recognize this conceptual infirmity. Justice Gorsuch admitted that he “harbor[ed] doubts about the stability of such a line.” He rhetorically wondered whether it was “a religious group that built the playground[, o]r did a group build the playground so it might be used to advance a religious mission?” The newest member of the Court considered “reliance on the status-use distinction [insufficient] to distinguish Locke v. Davey” because “[o]ften enough the same facts can be described both ways” depending on perspective and “[t]he distinction blurs . . . when stared at too long.” As just described, the situations in both Locke and Trinity Lutheran can be described in both use and status terms, depending on the perspective one chooses to take in approaching and defining the issue. As hit on by Justice Gorsuch, the fundamental problem with the Chief Justice’s logic is that these fine distinctions begin to blur at the margins. And in which category an issue is placed becomes greatly a matter of interpretation and idiosyncratic application. Such shifting tides are hardly the judicial bedrock upon which successful jurisprudence is based.
In Agostini v. Felton, the Court announced that government aid that has the “‘effect’ of advancing . . . religion” violates the Establishment Clause. For instance, the federal program at issue in Tilton v. Richardson provided grants to colleges and universities for facilities construction. But it contained a prohibition on using those grants to construct facilities “used for sectarian instruction or as a place for religious worship. . . .” To enforce this provision, the government was permitted to recover the value of the grant if within twenty years the grantee reneged and used a building so constructed for such impermissible purposes. This time limitation was held unconstitutional because “the original federal grant w[ould] in part have the effect of advancing religion” as it permitted the grantee to “convert [the facility] into a chapel or otherwise use [it] to promote religious interests” after the twenty years had elapsed. Instead, in Trinity Lutheran, the Court expressly condones using public money to promote and improve the facilities of a church as such.
It is true that a separate line of cases permits government funding to sectarian institutions where that funding is to be used for purely secular purposes. Presumably to this end, the Scrap Tire Program at issue in Trinity Lutheran required an applicant to certify that it would put the program’s funds only to a secular use. But Trinity Lutheran had “not offered any such assurances to this Court.” Instead, Trinity Lutheran states proudly that its Learning Center functions as “a ministry of the church and incorporates daily religion and developmentally appropriate activities into . . . [its] program” and that “[t]hrough the Learning Center, the Church teaches a Christian world view to children of members of the Church, as well as children of non-member residents.” And in fact as part of its very application to the Department to participate in the Scrap Tire Program, Trinity Lutheran specified that the Learning Center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.” It is by no means beyond reason that “developmentally appropriate” religious education encouraging the “spiritual” growth of elementary school students could very well take place on a playground. Nor is it unreasonable to think that the religiously oriented community the Church seeks to manifest finds expression and reinforcement between and amongst children, their teachers, and their parents, on the playground. Given the pervasive religious mission of the Learning Center, there is no certainty that the use of the new playground could be limited to secular purposes any more than the use of any of its other facilities. The invasive nature of ensuring religiously oriented institutions like the Learning Center do not put public funds to parochial uses evokes exactly the sort of excessive entanglements disavowed by the Court in announcing its famous “Lemon Test” in Lemon v. Kurtzman. The majority should have acknowledged this danger and at the very least engaged in an Establishment Clause analysis before simply proceeding to the Free Exercise issue simply on the say-so of the parties.
The Court’s opinion in Trinity Lutheran is thus wrong on two fronts. First, it glosses over the significant Establishment Clause considerations lurking under the surface. The Founders of our country knew of the dangers of state-sanctioned and state-established churches. They wrote into the Bill of Rights a provision designed exactly to curtail such practices. The Founders were directly motivated by exactly what was at issue in Trinity Lutheran: the provision of public funds directly from public coffers to support churches as institutions. Two hundred years’ jurisprudence has drawn contours and distinctions around an otherwise absolute prohibition. But the Court neglected to do even its due diligence in addressing these concerns and explaining why in its view requiring the State of Missouri to provide funds to improve facilities on church grounds was not improper under the Establishment Clause. Even if the Court were ultimately to have concluded the requirement was not thereby improper, it owed the American people an explanation, if for no other reason than to settle further the doctrines to be applied in future cases.
Second, Chief Justice Roberts’s opinion misapprehends the nature of Locke v. Davey and its holding. Locke was not concerned with the kind of facile distinctions between status and use that the majority derived to argue its way out of binding, on-point precedent. Instead, Locke spoke to the far broader issue of balancing the inherent tension that exists between prohibiting the establishment of religion by the state on the one hand, and guaranteeing religion’s free exercise by the individual on the other. This balance does not resolve itself through such hairsplitting distinctions represented by Trinity Lutheran, as recognized by Justice Gorsuch. Instead, as Locke properly stands for, when the government denies direct financial backing to a religious institution out of its interest in antiestablishment, it does not thereby evince the kind of hostility towards religion that is the hallmark of free exercise ideals. To paraphrase Justice Scalia’s concurrence in Pleasant Grove City v. Summum, the state ought not fear that escaping the establishment frying pan by upholding core antiestablishment principles through denying religion direct aid propels it into the free exercise fire. The conclusion of the Court in Trinity Lutheran was therefore incorrect and ought to be revised and reversed in the future.

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COMMONWEALTH vs. MARK P. SCARDAMAGLIA.
INDICTMENTS found and returned in the Superior Court Department on January 14, 1988.
A pretrial motion to suppress evidence was heard by Herbert F. Travers, Jr., J., and the cases were heard by George C. Keady, Jr., J.
WILKINS, J. We consider again the circumstances, if any, in which a criminal defendant may challenge the use against him of evidence obtained in or as a result of a search and seizure that allegedly violated another's rights under art. 14 of the Massachusetts Declaration of Rights. The concept has been called target standing.
After a jury-waived trial, the defendant was found guilty of trafficking in cocaine, of unlawfully possessing cocaine with intent to distribute it, and of unlawful possession of a controlled substance, all based on evidence that the police seized at his home on September 4, 1987, during a search pursuant to a warrant. The defendant's sentence was stayed pending appeal. We transferred the defendant's appeal to this court. He raises only one issue, the denial of a motion to suppress.
The defendant challenges the lawfulness of the search on the ground that the police obtained probable cause justifying the issuance of the search warrant by violating the constitutional rights of one Scott Burnham. The defendant seeks to rely on that violation, asserting that he was a target of the allegedly unlawful stop of Burnham who indicated that he had just purchased the cocaine found on him from the defendant at the defendant's home.
The motion judge had before him the affidavit of Detective Albert Bourget of the Holden police department that had been presented in support of the issuance of the warrant to search the defendant's home. He also had Burnham's affidavit describing the circumstances of Bourget's stop of Burnham's motor vehicle which resulted in Burnham turning over one-quarter ounce of cocaine to Bourget.
Bourget's affidavit also presented information provided by a confidential informant, and, on its face, provided probable cause to search the defendant's home. The informant's information alone may not have provided probable cause to search the defendant's home, and, as we shall discuss later, it may not have demonstrated probable cause to stop Burnham.
Burnham had just purchased one-quarter ounce of cocaine for $200. "I further advised him that he was going to be stripped [sic] searched and his car was going to be searched and if he had any cocaine I would give him the chance to give it to me." Burnham turned over what Bourget said he knew was approximately one-quarter ounce of cocaine. Burnham implicitly acknowledged that "his friend Mark on Pinecroft" was the defendant.
Burnham's affidavit does not contradict the Bourget affidavit. He says that Bourget gave him Miranda warnings before his arrest and threatened him with a strip search in the bushes, if he did not turn over "certain alleged contraband that he said I was holding."
The defendant contends that (1) he was entitled, as a target of Bourget's efforts, to challenge the allegedly unconstitutional stop of Burnham; (2) the judge was obliged to disregard that portion of Bourget's affidavit setting forth information that he had obtained from Burnham; and (3) because the warrant to search his home was not issued on probable cause (once Burnham's information was removed), all the evidence seized pursuant to the warrant should have been suppressed.
purposes of the exclusionary rule would adequately be served by suppression of evidence at the trial of the person whose rights were actually violated, and by the prospect of civil damages for violation of that person's constitutional or State law privacy or property rights (id. at 134). The Court concluded that any marginal increase in the deterrent effect of an exclusionary rule did not justify the loss to society of valid, incriminating evidence against one whose Fourth Amendment rights had not been violated. Id. at 137-138.
We have left open the question whether target standing has vitality under art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Manning, 406 Mass. 425 , 429 (1990). In the Manning case, we said that "[i]n the normal course, we regard the dismissal of charges against the person whose rights were primarily violated to be a sufficient deterrent to improper police conduct. The United States Supreme Court agrees with this reasoning. See Rakas v. Illinois, [439 U.S. 128], 137 ; Alderman v. United States, 394 U.S. 165, 174-175 (1969)." In Manning, there was no demonstration of intentional police wrongdoing and no showing that, when the police violated the rights of another, they did so with the sole or even principal goal of obtaining incriminating evidence against one or more of the defendants. Id. at 429-430. The Manning case involved challenged police conduct that produced no tangible evidence against the defendants but only information that was used to justify the issuance of a search warrant. Id. at 426. Without accepting target standing under art. 14, we left open, on remand, the possibility that the judge might permit the defendants to renew their motions to suppress. Id. at 430.
Our reluctance to grant a wide scope to target standing, and perhaps thereby to deny the trier of fact highly relevant evidence of guilt, comes from our conclusions that (1) the administrative costs to the criminal justice system of handling such claims would be substantial and (2) the need to create a deterrent effect on police misconduct by the recognition of target standing is not great except perhaps in the case of distinctly egregious police conduct.
The motion to suppress evidence seized at the defendant's home was properly denied.
[Note 1] Louisiana has construed its uniquely phrased constitutional provision to grant universal standing. See State v. Owen, 453 So. 2d 1202, 1205 (La. 1984); State v. Boyd, 359 So. 2d 931, 949 (La. 1978). California adopted universal standing in 1955 (People v. Martin, 45 Cal. 2d 755, 761 ), but a 1982 constitutional amendment had the effect of abrogating "the `vicarious exclusionary rule' under which a defendant had standing to object to the introduction of evidence seized in violation of the rights of a third person." In re Lance W., 37 Cal. 3d 873, 879 (1985).
The violation of the rights of another person under the Fifth Amendment to the United States Constitution presents a different issue. "Due process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture. The issue is whether the government's investigation methods resulted in a fundamentally unfair trial." United States v. Chiavola, 744 F.2d 1271, 1273 & 1274 (7th Cir. 1984), and cases cited. A distinction may fairly be made between (1) the use of information received and physical evidence obtained as a result of questioning a person who was not warned of his rights and (2) the use of evidence received pursuant to an unconstitutional search and seizure. See People v. Varnum, 66 Cal. 2d 808, 812-813 (1967) ("[T]here is nothing unlawful in questioning an unwarned suspect so long as the police refrain from physically and psychologically coercive tactics condemned by due process and do not use against the suspect any evidence obtained. Accordingly, in the absence of such coercive tactics, there is no basis for excluding physical or other nonhearsay evidence acquired as a result of questioning a suspect in disregard of his Fifth and Sixth Amendment rights when such evidence is offered at the trial of another person" [footnote omitted]), appeal dismissed, cert. denied, 390 U.S. 529 (1968).
[Note 2] Bourget's informant was shown to be reliable on the basis of information in the affidavit in support of his application for a search warrant. The basis of the informant's knowledge was arguably adequate and was reinforced in certain respects by Bourget's observations. Bourget stopped Burnham who was "driving a two tone tan Mercury," at approximately 5:45 P.M. on September 4, 1987. The informant had told Bourget that Burnham purchased one-quarter ounce of cocaine from the defendant at the defendant's home for $200 "within the past 1/2 hour (approx. 5:30 P.M.)" and that Burnham had just left the defendant's home in a light colored two-tone Ford. An inference that the informant saw the sale of cocaine or heard of it in an admission made by one of the participants in the sale may have been reasonably warranted.

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