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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
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
Lawyers Committee for Civil Rights and Economic Justice v. Court Administrator of the Trial Court, et al. (Lawyers Weekly No. 10-176-17)
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-12379 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE vs. court administrator of the Trial Court & others.[1] November 6, 2017. Moot Question. Practice, Civil, Moot case. Trial Court. Public Records. The Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) appeals from a judgment of the county court dismissing as moot its petition seeking declaratory and injunctive relief requiring the respondents, who are the court administrator, office of court management, and executive office of the Trial Court, to produce certain records pursuant to the public records law. G. L. c. 66, § 10. We directed the parties to file memoranda addressing whether the single justice erred or abused his discretion in dismissing the case as moot. After reviewing the parties’ submissions, we affirm the judgment. The facts are not in dispute. The Lawyers’ Committee requested that the respondents produce documents concerning the demographics of the security department of the Trial Court, by race and gender, and the department’s hiring and promotion practices. The Lawyers’ Committee cited the public records law, G. L. c. 66, § 10, as the basis of its request. In response, the respondents stated that “[a]s part of the [j]udicial branch of government, the Massachusetts Trial Court . . . is not subject to the [p]ublic [r]ecords [l]aw.[[2]] . . . Despite that exemption, we are considering your request and will respond appropriately in due course.” The Lawyers’ Committee petitioned the supervisor of records for a determination that the requested records were public records under G. L. c. 66. The supervisor of records responded that “[r]ecords in the custody of the [c]ourt are records of the judiciary and are outside the jurisdiction of the public records law.” Some months later, having received no documents in response to its request, the Lawyers’ Committee filed its petition. Thereafter, the court administrator wrote to the Lawyers’ Committee, stating that the Trial Court intended to collect responsive documents and produce them.[3] The respondents did in fact voluntarily produce documents that were responsive to the Lawyers’ Committee’s request. The respondents represent, as they did before the single justice, that they have produced all responsive documents in their possession, custody, or control that are not confidential or privileged. The Lawyers’ Committee does not dispute this or claim that any documents are being wrongfully withheld. There is nothing further that a court can order […]
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
Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)
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 16-P-1158 Appeals Court ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2] No. 16-P-1158. Essex. March 8, 2017. – July 12, 2017. Present: Grainger, Blake, & Neyman, JJ.[3] Public Employment, Retirement, Forfeiture of pension. Police, Retirement. Pension. Constitutional Law, Public employment, Excessive fines clause. County, Retirement board. Practice, Civil, Action in nature of certiorari. District Court, Appeal to Superior Court. Civil action commenced in the Superior Court Department on July 14, 2015. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow. GRAINGER, J. The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow. The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4). We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4). We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background. We summarize the procedural history and the underlying relevant facts which are undisputed. In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department. At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service. Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point. After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan. He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car. The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs. Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt. He began screaming […]
Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)
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-12121 DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1] vs. ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. November 9, 2016. – May 24, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Committee for Public Counsel Services. District Court, Drug court session. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016. The case was reported by Duffly, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant. HINES, J. This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3. The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court). The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.” The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant. We recognize that the success of drug court outcomes depends in large part […]
Howell v. Brockton Division of the District Court Department (Lawyers Weekly No. 10-068-17)
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-12217 CURTIS HOWELL vs. BROCKTON DIVISION OF THE DISTRICT COURT DEPARTMENT. Supreme Judicial Court, Superintendence of inferior courts. May 3, 2017. Curtis Howell appeals from a judgment of the county court in which the single justice declined to grant his petition for relief under G. L. c. 211, § 3. His petition and other papers, which are disorganized and difficult to decipher, apparently relate to proceedings to evaluate his competency to stand trial on criminal charges in the District Court. We affirm. The case is before us on Howell’s memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court 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.” Howell has not carried his burden under the rule. In his memorandum, rather than demonstrating that the District Court judge has made a ruling that cannot be remedied in the ordinary appellate process or by other means, he presses an unsubstantiated claim that he has been subjected to unlawful surveillance since childhood by means of an implanted device. In particular, he does not offer any reason why G. L. c. 123, § 17, which permits any person found incompetent to stand trial to petition the court at any time for a competency hearing, does not afford adequate review of a determination of incompetency. Moreover, we have thoroughly reviewed the papers submitted to the single justice and find no basis to disturb her determination that Howell is not entitled to relief.[1] Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Curtis Howell, pro se. [1] There is some suggestion that Howell may have been represented by counsel in the District Court. He proceeded pro se in the county court. “Absent extraordinary circumstances, a party represented by counsel in pending criminal proceedings is not entitled to challenge interlocutory rulings pro se.” Azubuko v. Commonwealth, 464 Mass. 1014, 1014 (2013), citing Commonwealth v Molino, 411 Mass. 149, 152 (1991). Full-text Opinions
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] […]
Oggiani v. Chief Justice of the Trial Court, et al. (Lawyers Weekly No. 10-007-17)
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-12120 JOAN E. OGGIANI vs. CHIEF JUSTICE OF THE TRIAL COURT & others.[1] January 6, 2017. Supreme Judicial Court, Superintendence of inferior courts, Removal of register of probate. Joan E. Oggiani appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3, from a decision of the register of the Berkshire Division of the Probate and Family Court Department of the Trial Court, with the approval of the Chief Justice of the Probate and Family Court, removing her designation as deputy assistant register pursuant to G. L. c. 217, § 29D.[2] We affirm the judgment. Oggiani, who has been an employee of the Berkshire Division of the Probate and Family Court since 1980, was designated as the deputy assistant register when that position was created in 1993. As deputy assistant register, she had certain responsibilities in addition to those of her primary position as a judicial secretary, and she received additional compensation as required by the statute. In 2015, the register requested the approval of the Chief Justice of the Probate and Family Court to remove Oggiani’s designation, stating that her performance as deputy assistant register did not meet his expectations.[3] Oggiani objected and disagreed with the register’s characterization of her performance, but the Chief Justice of the Probate and Family Court approved the register’s request. Oggiani then asked the Chief Justice of the Trial Court and the Court Administrator to review the decision.[4] They responded that the decision was final. The single justice did not abuse his discretion or commit an error of law by denying Oggiani’s petition for relief in these circumstances.[5] Under the plain language of G. L. c. 217, § 29D, a register has the authority to designate and remove a deputy assistant register. These appear to be discretionary decisions for the register to make, subject only to the approval of the Chief Justice of the Probate and Family Court.[6] The statute does not state that a register must establish good cause — or indeed, any reason at all — for removal. This is not a case where the employee alleges that her designation was removed on an improper basis such as race or gender discrimination under G. L. c. 151B, in violation of any public policy, or without good faith. She only disagrees with […]
L.B., et al. v. Chief Justice of the Probate and Family Court Department, et al. (Lawyers Weekly No. 10-060-16)
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-11892 L.B. & another[1] vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.[2] Suffolk. October 5, 2015. – May 4, 2016. Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Probate Court, Guardian. Due Process of Law, Assistance of counsel. Constitutional Law, Assistance of counsel. Practice, Civil, Assistance of counsel. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 2015. The case was reported by Botsford, J. Laura Williams Gal (Christina L. Paradiso with her) for L.B. & another. Norah E. Kane for the minor children of L.B. Jo Ann Shotwell Kaplan, Assistant Attorney General, for Chief Justice of the Probate and Family Court Department. Deborah W. Kirchwey for the minor child of C.L. Jamie Ann Sabino, Susan R. Elsen, Mary K. Ryan, & Melanie V. Woodward, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief. Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Susan M. Finnegan, Sandra J. Badin, & Geoffrey A. Friedman, for S.D., amicus curiae, submitted a brief. Richard M. Page, Jr., for Boston Bar Association, amicus curiae, joined in a brief. SPINA, J. In Guardianship of V.V., 470 Mass. 590 (2015), we held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, § 5-206, and who cannot afford counsel has a right to have counsel appointed and to be so informed. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a right to counsel for certain of those types of petitions. We also offer some guidance to the Probate and Family Court, where these private guardianships occur, for the development of rules and policies to implement this right to counsel. Procedural history. The plaintiffs, L.B. and C.L., are the mothers of minor children for whom guardians were appointed, in 2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206. They commenced this action in the county court in 2015, challenging a written policy of the Chief Justice of the Probate and […]