Posts tagged "Superior"

Myrick v. Superior Court Department (Lawyers Weekly No. 10-066-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12190   KYL V. MYRICK  vs.  SUPERIOR COURT DEPARTMENT.[1]     April 18, 2018.     Mandamus.  Practice, Civil, Action in nature of mandamus.  Supreme Judicial Court, Superintendence of inferior courts.     Kyl V. Myrick appeals from a judgment of a single justice of this court denying his petition for relief in the nature of mandamus.  Myrick’s petition sought the reversal of a Superior Court judgment dismissing a civil complaint that he had filed in that court.  That complaint concerned the denial of his applications for criminal complaints in the Boston Municipal Court Department.  In his petition to the single justice, Myrick also challenged the Superior Court judge’s declining to recuse himself from the matter.  The single justice correctly denied both the petition and Myrick’s subsequent request for reconsideration.   “It would be hard to find any principle more fully established in our practice than the principle that neither mandamus nor certiorari is to be used as a substitute for ordinary appellate procedure or used at any time when there is another adequate remedy.”  Rines v. Justices of the Superior Court, 330 Mass. 368, 371 (1953).  See, e.g., Ardon v. Committee for Pub. Counsel Servs., 464 Mass. 1001 (2012).  There was, as the single justice recognized, a plainly adequate alternative remedy for Myrick to pursue after his complaint in the Superior Court was dismissed, namely, an appeal to the Appeals Court from the judgment of the Superior Court dismissing the complaint.  See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).  As for Myrick’s claim that the Superior Court judge should have recused himself, that claim also could have been raised on appeal to the Appeals Court.  See Bloise v. Bloise, 437 Mass. 1010, 1010 (2002), citing Doten v. Plymouth Div. of the Probate & Family Court Dep’t, 395 Mass. 1001, 1001 (1985).  See also Ewing v. Commonwealth, 451 Mass. 1005, 1006 (2008).   Judgment affirmed.     Kyl V. Myrick, pro se. Eric A. Haskell, Assistant Attorney General, for the defendant.        [1] The real party in interest, the defendant named in the complaint filed in the Superior Court Department, was not made a party to these proceedings.   Full-text Opinions

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Posted by Massachusetts Legal Resources - April 18, 2018 at 4:16 pm

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Miranda v. A Justice of the Superior Court Department of the Trial Court (Lawyers Weekly No. 10-047-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12308   CHRISTIAN MIRANDA  vs.  A JUSTICE OF THE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT.       March 27, 2018.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Action in nature of certiorari.  Practice, Criminal, Postconviction relief, Discovery.     Christian Miranda appeals from a judgment of the county court denying his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4.  Miranda, who has been convicted in the Superior Court of certain drug-related offenses, filed a motion to intervene in a separate criminal case also pending in the Superior Court at that time, apparently seeking to participate in postconviction discovery that was proceeding in that case.  After a hearing, the motion was denied.  Miranda’s petition sought relief from that denial.  As there is no basis in the Rules of Criminal Procedure or other law for a defendant to intervene in another defendant’s unrelated criminal case, Miranda cannot show that relief in the nature of certiorari is necessary “to correct [a] substantial error of law apparent on the record.”  State Bd. of Retirement v. Woodward, 446 Mass. 698, 703 (2006).  See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n.14 (2004) (intervention is “a concept foreign to criminal procedure”).  Moreover, Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), provides the mechanism for Miranda to seek postconviction discovery in his own case.  The single justice neither erred nor abused his discretion by denying relief.   Judgment affirmed.     Greg T. Schubert for the plaintiff. Thomas E. Bocian, Assistant Attorney General, for the defendant. Full-text Opinions

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Posted by Massachusetts Legal Resources - March 27, 2018 at 2:45 pm

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Martin v. Superior Court Department of the Trial Court (Lawyers Weekly No. 10-137-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12288     JAMES MARTIN  vs.  SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT.     August 18, 2017.     Supreme Judicial Court, Superintendence of inferior courts.  Attorney at Law, Disqualification.  District Attorney.     The petitioner, James Martin, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.   Martin, an attorney with a practice in the Springfield area, has been indicted by a Hampden County grand jury on charges of rape, in violation of G. L. c. 265, § 22 (b), and indecent assault and battery, in violation of G. L. c. 265, § 13H.  He filed a motion to disqualify the Hampden County district attorney’s office from prosecuting the case on the basis that it would constitute a conflict of interest because he has worked closely with that office in resolving cases for a number of years.  After a judge in the Superior Court denied the motion, Martin filed his G. L. c. 211, § 3, petition in the county court.  A single justice denied the petition without a hearing.   The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  S.J.C. Rule 2:21 (2).  Martin has not made, and cannot make, such a showing.  Although Martin argues that allowing the Hampden County district attorney’s office to prosecute the case will violate his constitutional rights to a fair and impartial trial, and that it will be “too late” if the disqualification issue is not addressed prior to his trial, the ruling on the disqualification issue is the very type of ruling that is routinely reviewed on appeal from a conviction.  See Luke v. Commonwealth, 460 Mass. 1002, 1002-1003 (2011), citing Commonwealth v. Colon, 408 Mass. 419, 429-432 (1990).  There is no reason why that is not also so here.  The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.   Judgment affirmed.     The case was submitted on the papers filed, accompanied by a memorandum of law. Alan J. Black for the petitioner. Full-text Opinions

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Posted by Massachusetts Legal Resources - August 18, 2017 at 8:06 pm

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Bishay, et al. v. Clerk of the Superior Court on Norfolk County (Lawyers Weekly No. 10-018-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12153   BAHIG BISHAY & others[1]  vs.  CLERK OF THE SUPERIOR COURT IN NORFOLK COUNTY.     January 23, 2017.     Mandamus.  Clerk of Court.  Judgment, Implementing settlement agreement.  Practice, Civil, Action in nature of mandamus, Entry of judgment.     Bahig Bishay commenced an action in the Superior Court, bringing various claims against National Investigations, Inc., and its principals, Glenn Gillis and Garry Gillis (collectively, National); Harvard 45 Associates, LLC, and its principals, Harold Brown and Enrique Darer (collectively, Harvard); and Allied Finance Adjusters Conference, Inc. (Allied), arising from Bishay’s eviction from his home.  More particularly, Bishay sought damages on various theories for the removal and storage of his personal property in the course of the eviction.  Allied’s motion to dismiss the claims against it was allowed, as was Harvard’s motion for summary judgment as to both the claims against it and a counterclaim it asserted against Bishay.  Bishay and National thereafter reported that they settled their dispute, and they moved for entry of final judgment.  Harvard and Allied opposed the motion, and a judge in the Superior Court denied it.  Bishay again moved for entry of final judgment.  Harvard and Allied opposed that motion, and a different judge denied it.  Bishay and National (collectively, petitioners) jointly filed a petition in the county court seeking relief in the nature of mandamus pursuant to G. L. c. 211, § 3, and G. L. c. 249, § 4, specifically requesting that the clerk of the Superior Court be ordered to enter final judgment as the petitioners proposed.  Harvard moved to intervene and filed an opposition, joined by Allied, in which it argued that the proposed judgment was collusive and fictitious, adverse to the interests of Harvard and Allied, and contrary to the prior ruling on summary judgment.[2]  A single justice of this court denied relief without a hearing.  The petitioners appeal.   The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires the petitioners to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”[3]  The petitioners have not done so.  They argue that requiring them to proceed to a jury trial would be wasteful in these circumstances, as they have in fact resolved their dispute.[4]  […]

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Posted by Massachusetts Legal Resources - January 23, 2017 at 10:07 pm

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Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County (Lawyers Weekly No. 10-168-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11811   BODHISATTVA SKANDHA  vs.  CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY. September 29, 2015. Supreme Judicial Court, Superintendence of inferior courts.  Mandamus.  Practice, Civil, Action in nature of mandamus, Assembly of record.  Clerk of Court.   The petitioner, Bodhisattva Skandha, appeals from a judgment of a single justice of this court denying his petitions pursuant to G. L. c. 211, § 3, and for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  We affirm.   Background.  The petitions stem from Skandha’s effort to appeal from the dismissal of a complaint in the Superior Court that he and two other plaintiffs filed, in August, 2010, against the Committee for Public Counsel Services (CPCS) and several associated attorneys.  The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ due process rights by, among other things, failing to screen their new trial motions to determine whether they had any claims that would entitle them to relief from their respective convictions.  A judge in the Superior Court dismissed the complaint, in May, 2013, and it appears that Skandha timely filed a notice of appeal.[1]  The appeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to take the necessary steps to perfect it.[2]   Skandha subsequently timely filed a notice of appeal from the dismissal of his appeal, as he was entitled to do (in which he again indicated that there were no transcripts in the matter, see note 2, supra).  He also filed, in March, 2014, a “motion for the court to order the clerk to provide the pleadings for the plaintiffs’ appeal,” and, in June, 2014, a motion in the Superior Court asking the court “to order the clerk to assemble the record.”  Both of these motions were stamped “rejected” on June 26, 2014, and never docketed.  After his efforts to appeal stalled in the Superior Court, Skandha filed his petitions in the county court for relief in the nature of mandamus and pursuant to G. L. c. 211, § 3, asking the single justice to direct the clerk of the Superior Court to assemble the record for purposes of his appeal.  The petitions were denied without a hearing.   Discussion.  Skandha has now filed what appears to have been intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. […]

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Posted by Massachusetts Legal Resources - September 29, 2015 at 7:35 pm

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City of Boston v. Boston Police Superior Officers Federation (Lawyers Weekly No. 10-155-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       SJC‑11238   CITY OF BOSTON  vs.  BOSTON POLICE SUPERIOR OFFICERS FEDERATION.     Suffolk.     April 2, 2013.  ‑  August 9, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Boston.  Police, Assignment of duties, Collective bargaining.  Public Employment, Police, Transfer, Collective bargaining.  Municipal Corporations, Police, Collective bargaining.  Labor, Police, Collective bargaining.  Civil Service, Police, Collective bargaining.  Arbitration, Collective bargaining, Confirmation of award, Authority of arbitrator.  Contract, Collective bargaining contract.       Civil action commenced in the Superior Court Department on August 18, 2009.   The case was heard by Bonnie H. MacLeod, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David M. Connelly (Robert J. Boyle, Jr., with him) for the plaintiff. Alfred Gordon for the defendant.     DUFFLY, J.  After the city of Boston (city) transferred a Boston police sergeant who served as a union representative, the Boston Police Superior Officers Federation (union) sought to enforce a provision of its collective bargaining agreement with the city, prohibiting the involuntary transfer of certain union representatives between stations or assignments.  Following binding arbitration mandated under the collective bargaining agreement, an arbitrator found that the city had violated the collective bargaining agreement and awarded the officer damages and reinstatement to his original position.  The city filed a motion in the Superior Court, pursuant to G. L. c. 150C, § 11, to vacate the award.  A Superior Court judge denied the city’s motion and allowed the union’s cross motion to confirm the award.  The city appealed, and we transferred the case to this Court on our own motion. The city argues, and we agree, that assignment and transfer of officers within the Boston police department (department) are nondelegable statutory powers of the Boston police commissioner (commissioner), see St. 1906, c. 291, § 10, as appearing in St. 1962, c. 322, § 1, and, accordingly, that the grievance arbitrator exceeded his authority in reversing the officer’s transfer.   Background and prior proceedings.  In 1989, the city and the union underwent interest arbitration[1] as part of a collective bargaining process.  The city had proposed a provision that would have prohibited the involuntary transfer of union representatives, but the parties were unable to reach agreement on how many officers would be covered by that provision.  The proposal followed several years of […]

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Posted by Massachusetts Legal Resources - August 9, 2013 at 4:01 pm

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McCants v. Clerk of Suffolk Superior Court for Criminal Business (Lawyers Weekly No. 10-082-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11263   OWEN McCANTS  vs.  CLERK OF SUFFOLK SUPERIOR COURT FOR CRIMINAL BUSINESS. May 14, 2013. Supreme Judicial Court, Superintendence of inferior courts.  Moot Question.  Practice, Civil, Moot case.         Owen McCants appeals from a judgment of a single justice of this court dismissing as moot his petition for a writ of mandamus and for a declaratory judgment.  We affirm.   A Superior Court jury convicted McCants of several crimes, and the Appeals Court affirmed the convictions.  See Commonwealth v. McCants, 65 Mass. App. Ct. 1121 (2006).  McCants thereafter filed a motion for a new trial, which was denied.  He then filed a notice of appeal, the record was assembled, and the appeal was entered in the Appeals Court, where it remains pending.  Then, in April, 2012, he filed a petition in the county court, asserting that the trial court clerk’s office had failed to docket several pleadings that he had filed in that court in connection with the motion for a new trial.  In response, the respondent submitted a letter to the county court indicating that the clerk’s office had updated the docket to include the pleadings in question and that the entire record, including those pleadings, had been assembled and forwarded to the Appeals Court.  On the basis that McCants had received the relief that he was seeking — the docketing of his pleadings in the trial court — the single justice dismissed the petition as moot.     In his appeal from the dismissal of his petition McCants argues that the matter is not moot because the respondent failed to file a timely response to his petition and that she therefore “waived” her right to respond.  Regardless whether the respondent’s letter was timely, it was within the court’s discretion to accept it for filing on the date that it was received.  As indicated in the letter and reflected in the trial court docket, the pleadings that McCants sought to have docketed had by that time been docketed, apparently in response to McCants’s petition in the county court.  Nowhere in the record or in McCants’s appeal to this court does McCants dispute that the pleadings in question have been docketed and included in the record assembled for his appeal from the denial of his motion for a new trial.   To the extent that McCants […]

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Posted by Massachusetts Legal Resources - May 15, 2013 at 1:24 am

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