Commonwealth v. Drury

950 N.E.2d 899, 79 Mass. App. Ct. 843, 2011 Mass. App. LEXIS 1044
CourtMassachusetts Appeals Court
DecidedJuly 26, 2011
DocketNo. 10-P-498
StatusPublished

This text of 950 N.E.2d 899 (Commonwealth v. Drury) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Drury, 950 N.E.2d 899, 79 Mass. App. Ct. 843, 2011 Mass. App. LEXIS 1044 (Mass. Ct. App. 2011).

Opinion

Kafker, J.

The primary issue presented is the appropriate appellate forum to review a District Court case that was converted from a criminal complaint to a civil infraction pursuant to G. L. c. 277, § 70C. This appeal is before us after the entry of an order by a single justice of the Supreme Judicial Court for [844]*844Suffolk County on the defendant’s petition, essentially brought pursuant to G. L. c. 211, § 3, in which he sought relief from the denial of his motion to assemble the record for appeal in District Court. The single justice directed that the order denying that motion be vacated and that the record be assembled. The single justice identified two issues to be decided by this court: “(1) whether a party may appeal to the Appeals Court from a judgment in a case that has been converted under G. L. c. 277, § 70C; and (2) if so, whether [the defendant] filed his notice of appeal late.”

We conclude that an appeal from a case that has been converted under G. L. c. 277, § 70C, must be taken first to the Appellate Division of the District Court, not directly to the Appeals Court, and that the appeal in the instant case to the Appellate Division was timely and should have been addressed on its merits.

Procedural facts. The relevant procedural facts underlying the appeal are as follows. The defendant was charged in the Winchendon Division of the District Court Department in two criminal complaints. One complaint alleged that he set a fire in the open air in violation of G. L. c. 48, § 13; the second complaint alleged (in eleven counts) that he stored eleven unregistered motor vehicles on his property in violation of art. XI of the municipal by-laws of the town of Templeton. On the Commonwealth’s motion, both complaints were converted to civil infractions pursuant to G. L. c. 277, § 70C.

On January 13,2009, after a trial, the judge found the defendant responsible on each complaint (and on all counts). The defendant was assessed twenty dollars for each instance of keeping an unregistered motor vehicle on private property. On the infraction of unauthorized setting of an open fire, the judge ordered the defendant to pay for the costs of suppression of the fire, setting the date of March 10, 2009, for a hearing to determine those costs. The defendant, who has represented himself throughout the proceedings, filed a notice of appeal in the District Court on January 20, 2009.1 Six days later, on January 26, 2009, the defendant filed an appeal from each complaint in the Appellate [845]*845Division.2 The next day the District Court judge issued findings in a written memorandum of decision dated January 27, 2009.

On February 10, 2009, the Appellate Division of the District Court Department (Appellate Division) entered the defendant’s appeal and on March 4, 2009, dismissed it “for lack of subject matter jurisdiction.” On March 13, 2009, the defendant appealed from the dismissal, filing a notice of appeal in the Winchendon District Court that contained the docket numbers corresponding to the two original complaints.

On April 28, 2009, a hearing was held to determine the amount of the costs incurred in connection with the fire suppression. In accordance with G. L. c. 48, § 13, the judge imposed a civil assessment of $2,429.08. On May 5, the defendant filed a notice of appeal from the April 28, 2009, rulings. Between April 28, 2009, and August 19, 2009, the defendant unsuccessfully sought various kinds of relief in the trial court including, on August 18, 2009, filing a motion to assemble the record, which the trial judge denied, reasoning that “an appeal from a decision regarding a civil infraction adjudicated under [G. L. c. 277,] § 70C, is not permitted or authorized by law . . . , [and the defendant’s] notice of appeal was not [timely] filed.” The defendant filed a notice of appeal from that order on August 26, 2009, and petitioned for relief to a single justice of the Supreme Judicial Court on September 24, 2009. We address the two questions identified by the single justice.

Discussion. 1. Appeal from a judgment in a case that has been converted pursuant to G. L. c. 277, § 70C. General Laws c. 277, § 70C, as appearing in St. 2005, c. 54, § 3, provides: “Upon oral motion by the commonwealth or the defendant. . . or upon the court’s own motion at any time, the court may, unless the commonwealth objects, . . . treat a violation of a municipal ordinance, or by-law or a misdemeanor offense as a civil infraction.” The appellate process for cases converted to civil infractions is not set out in c. 277, § 70C. We therefore [846]*846turn next to the statutes delineating the jurisdiction of the Appeals Court and the Appellate Division to determine which court, if either, has appellate jurisdiction over such a converted case.3

The jurisdiction of the Appeals Court is statutorily defined by G. L. c. 211 A, § 10, which provides for appellate review of determinations made in the District Court for the criminal session and decisions from the Appellate Division of the District Court. Here, although the two complaints originated in the criminal session, when the judge converted the offenses pursuant to c. 277, § 70C, to civil infractions, the proceedings were no longer criminal, but became civil. On its face, c. 211A does not therefore confer jurisdiction on the Appeals Court for cases converted under c. 277, § 70C.4

The jurisdiction of the Appellate Division is also statutorily defined. See generally G. L. c. 231, §§ 108-110. The pertinent portion of G. L. c. 231, § 108, as appearing in St. 2004, c. 252, § 15, states that “[tjhere shall be an appellate division of each district court for the rehearing of matters of law arising in [1] civil cases, [2] in claims of compensation of victims of violent crimes, and [3] in civil motor vehicle infractions.” The issue then is whether the civil infractions for open air burning and the storage of unregistered motor vehicles in violation of municipal by-laws fit within the statutory definition.

The statute defining the Appellate Division’s jurisdiction does not refer to all civil cases but rather to “matters of law” arising in civil cases.5 The District/Municipal Courts Rules for Appellate Division Appeal expressly reference tort, contract, and statutory actions seeking money damages. See Rule 1(c) of the Dist./Mun. Cts. Rules for Appellate Division Appeal (1994). A general grant of equity jurisdiction is not provided to the [847]*847Appellate Division.6 See c. 277, § 70C (referring to “matters of law”); Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983). See also Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 12.2 at 357 (4th ed. 2009). Consequently, appeals of zoning decisions made pursuant to G. L. c. 40A, § 17, and abuse prevention orders have been excluded. The Supreme Judicial Court has concluded that, “in the absence of some other statutory direction,” these equitable matters would fall within the jurisdiction of the Appeals Court. Department of Rev. v. Jarvenpaa, 404 Mass. 177, 181 (1989). The court reasoned that it would be appropriate to direct appeals from zoning and abuse prevention cases to the court that “normally has jurisdiction to hear appeals of equity cases. That court is the Appeals Court and not the Appellate Division . . . .” Walker v. Board of Appeals of Har-wich, supra at 49.

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Related

Department of Revenue v. Jarvenpaa
534 N.E.2d 286 (Massachusetts Supreme Judicial Court, 1989)
Walker v. Board of Appeals of Harwich
445 N.E.2d 141 (Massachusetts Supreme Judicial Court, 1983)
Zullo v. Goguen
672 N.E.2d 502 (Massachusetts Supreme Judicial Court, 1996)
Commonwealth v. Franck
1998 Mass. App. Div. 125 (Mass. Dist. Ct., App. Div., 1998)

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Bluebook (online)
950 N.E.2d 899, 79 Mass. App. Ct. 843, 2011 Mass. App. LEXIS 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-drury-massappct-2011.