Unknown v. Unknown
Supreme Judicial Court of Massachusetts
472 Mass. 1017
Rescript Opinions.
Mоreover, on review of the materials that were before the single justice and that have been submitted to the full court, we agree that a stay was not warranted. “An appellant seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant‘s success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absenсe of harm to the public interest from granting the stay.” J.W. Smith & H.B. Zobel, Rules Practice § 62.3, at 409 (2d ed. 2007). The wife cannot meet the first of these four tests, as she has not demonstratеd a likelihood of success on the merits of her appeal from the underlying divorce judgment. While she challenges the exclusion of certain out-of-cоurt statements bearing on the alleged abuse, she has not shown, for purposes of obtaining a stay, that the judge likely erred or abused her discretion in ruling that the statеments were hearsay not subject to any exception and that there was adequate admissible evidence before her to evaluate the abuse allegations.3 Accordingly, the single justice neither erred nor abused his discretion by denying a stay pending appeal.
The judgment of this court‘s single justice denying a stay is affirmed. The interim order issued by this court on September 12, 2015, is vacated.
So ordered.
The case was submitted on briefs.
Miriam G. Altman & Valerie E. Cooney for the wife.
Peter J. Jamieson for the husband.
BODHISATTVA SKANDHA vs. CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY
Supreme Judicial Court of Massachusetts
September 29, 2015
472 Mass. 1017
Supreme Judicial Court, Superintendence of inferior courts. Mandamus. Practice, Civil, Action in nаture 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 рursuant to
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, agаinst the Committee for Public Counsel Services (CPCS) and several associated attorneys. The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ duе 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 apрeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to
Skandha subsequently timely filed a notice of appeal from the dismissаl 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 аppeal stalled in the Superior Court, Skandha filed his petitions in the county court for relief in the nature of mandamus and pursuant to
Discussion. Skandha hаs 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. 1301 (2001). Technically speaking, that rulе does not apply here because the trial court rulings at issue — i.e., the refusal to accept and process his motions to compel assembly of the record — were not interlocutory rulings. Regardless, as explained below, this is not a situation where extraordinary relief from this court is required.
When his motions to сompel assembly of the record were rejected, Skandha had available a variety of other practical and legal steps he could have pursued before seeking the intervention of this court. A good roadmap can be found in the Appeals Court‘s opinion in Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 12-13 (1994), a case that we have cited with approval many times. In Zatsky, the Appeals Court said:
“If an appellant experiences delay in assembly of the record, a pragmatic first step is to report the problem to the clerk of the Appeals Court, the court with which the appeal would lodge in the first instance. Often a clerk to clerk . . . communication may produce the desired expedition. The next steps . . . would be a request for intervention by the chief judge of the trial court concerned, invocation of the superintendency powers of the Supreme Judicial Court, аnd mandamus. A party may also bring a motion before a single justice of the Appeals Court either to compel a clerk . . . to assemble a record рromptly or to waive assembly of the record as a prerequisite to entering the appeal.”
Of these steps, seeking the intervention of this court should be the last resort. We routinely have upheld the denial of extraordinary relief by single justices of this court in similar circumstances when the litigant has not first pursued availаble alternatives. Examples include Santiago v. Commonwealth, 442 Mass. 1045 (2004); Gaumond v. Commonwealth, 442 Mass. 1015 (2004); and Keane v. Commonwealth, 439 Mass. 1002 (2003). See Matthews v. D‘Arcy, 425 Mass. 1021, 1022 (1997). There is no indication in this record that Skandha took any of these other steps before seeking extraordinary reliеf from this court. The single justice was therefore well within his discretion in denying the petitions.
We also are mindful that Skandha has filed numerous cases in the Superior Court for Suffоlk County and that, as a result, that court issued an order, in October, 2011, that any new case received by that clerk‘s office shall be reviewed by the regional administrаtive justice prior to acceptance for filing. There is no indication on the trial court docket or otherwise in the record before us that this ordеr applies to the rejected motions in this case. If this was in fact the clerk‘s basis for rejecting Skandha‘s motions, which we think would be questionable, it would behoovе the clerk, and aid the appellate courts, if this were so indicated.
Judgment affirmed.
The case was submitted on the papers filed, accompanied by a memоrandum of law.
Bodhisattva Skandha, pro se.