Wolf weighs in on Kosilek appeal

Listen to this article

U.S. District Court Chief Judge Mark L. Wolf today issued a series of orders in the controversial lawsuit involving inmate Michelle Kosilek and the Massachusetts Department of Correction.

Kosilek, formerly known as Robert Kosilek, was found guilty in 1990 of murdering his wife, Cheryl McCaul.

The judge held last month that Kosilek suffers from a gender identity disorder and ruled that the DOC must take all actions reasonably necessary to provide the inmate with sex reassignment surgery as promptly as possible

In response, the DOC moved for a stay pending appeal.

Wolf ruled in a six-page decision (Lawyers Weekly No. 02-500-02) that the DOC should be given the opportunity to state its position on the court’s authority to modify the order while the appeal is pending.

Kosilek opposed the motion to stay in two limited respects, Wolf wrote.

“First, while Kosilek recognizes that it may be appropriate to stay the requirement that the surgery be performed until defendant’s appeal has been decided, he asserts that the court should not modify the requirement that the defendant take all steps reasonably necessary to perform the surgery promptly if the appeal is denied,” the judge said. “Second, Kosilek argues that any stay should be conditioned on a requirement that the defendant not seek any extensions that would delay a decision on appeal.”

Wolf said it appeared that if a stay pending appeal was justified, he had the authority to grant it by modifying the injunction he had issued requiring the DOC to take all actions reasonably necessary to promptly provide Kosilek with the surgery.

Those actions include arranging for a doctor to perform the procedure, the judge said.

“It also appears that the court could order defendant to provide periodic reports on the progress of its efforts,” he wrote. “Such conditions may be necessary and appropriate to strike an equitable balance between preserving the availability of relief from the injunction to which the defendant will be entitled if he prevails on appeal and minimizing the serious harm Kosilek will continue to suffer during the pendency of the appeal and the time it will take to arrange his sex reassignment surgery if the appeal is denied.”

Click here to read the full text opinion.