412 Mass. 770 | Mass. | 1992
This case is here on a “report” by a judge of the Superior Court. Mass. R. Civ. P. 64, 365 Mass. 831 (1974). On April 17, 1991, Globe Newspaper Company (Globe) and one of its editors brought an action against the Massachusetts Bay Transportation Authority Retirement Board (board) and its executive director seeking a declaratory judg
Before the parties conducted any discovery, the judge denied the request for a preliminary injunction, and, sua sponte, reported the matter to the Appeals Court without any findings of fact, staying further proceedings, including discovery. Thereafter, the Globe filed a petition for interlocutory review with a single justice of the Appeals Court, who upheld the lower court’s ruling. The Globe then moved to dismiss the report on the ground it was moot, since the Globe had not sought further review of its motion for preliminary injunction. A single justice of the Appeals Court denied the motion and the defendants were designated to proceed as appellants. We transferred the case here on our own motion, and we discharge the report.
The memorandum and order of the judge reporting the case reads in full as follows: “After extensive, helpful briefing, and thorough, equally helpful argument by counsel, it appears to the Court, on the present record, that although the Retirement Board’s function is closely connected with the MBTA’s business, it is neither the MBTA’s alter ego, nor an appendage of the MBTA within the meaning of G.L. c. 4, § 7 (clause twenty-sixth). Were I free to exercise my discretion, I would regard the Board as, standing alone, engaged in a public function (administering the pension fund of a wholly public enterprise) and thus subject to the type of scrutiny which Plaintiff seeks to exercise. I am, however, constrained by the statute and the record as it now stands to conclude that Plaintiff’s chances of success on the merits are not high
We therefore are presented with the question whether, on the basis of the pleadings and argument, the judge was correct in concluding that the plaintiffs’ chances of success on the merits were not high enough to warrant the grant of the preliminary injunction.
“A Superior Court judge may report a case to the Appeals Court if he or she makes an interlocutory finding or order which he or she believes ‘so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court . . . .’ G. L. c. 231, § 111 (1984 ed.). Mass. R. Civ. P. 64.” Heck v. Commonwealth, 397 Mass. 336, 338 (1986). See Cusic v. Commonwealth, ante 291, 293 (1992).
“Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.” John Gilbert Jr. Co. v. CM. Fauci Co., 309 Mass. 271, 213 (1941). Authors of a well-known text have, in explaining the concept, asked the question: “Does the matter so touch ‘the merits of the controversy’ that it requires appellate determination before the trial can proceed further?” J.W. Smith & H.B. Zobel, Rules Practice § 64.3, at 51 (1981). The basic issue central to any report made under rule 64 is the correctness of the judge’s finding or order. Federici v. Mansfield Credit Union, 399 Mass. 592, 593 n.2 (1987). McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979). Where a
Although some circumstance might exist that would warrant this court deciding, on report, the propriety of a judge’s decision regarding preliminary injunctive relief, they do not .exist here. In order for an appellate court properly to decide such a question it must be fairly apparent that the appellate decision, if not completely dispositive of the matter, at least disposes of a central issue material to the ultimate decision. Seldom, if ever, can appellate decisions of such a nature be made in the absence of stipulations or findings regarding material facts. It is not enough that the judge perceive the matter reported as so affecting the merits of the controversy that the matter ought to be determined by the Appeals Court. The report must be accompanied by a record that gives an appellate court a basis to exercise its independent judgment of the validity of the judge’s determination of that central issue. The record before us contains no such basis and the plaintiffs argue that no fair decision can be made at least until discovery is complete.
The report is discharged and the case remanded to the Superior Court for further proceedings.
So ordered.