381 Mass. 717 | Mass. | 1980
In this action commenced in the county court by the town of Burlington and the town’s selectmen, as plaintiffs, against the district attorney for the Northern district, as defendant,
The complaint pictured a situation as follows. Burlington police officers, without training as lawyers, had long acted as prosecutors of various criminal cases in the Fourth District Court of Eastern Middlesex, the venue for offenses committed in the town. On February 5, 1979, the presiding judge of that court, writing to the chief of the Burlington police department, noted an increase of criminal cases from Burlington and suggested that there was too much work to be handled by the one police prosecutor then assigned — resulting, he indicated, in an excessive number of dismissals of complaints. He recommended that two full-time police prosecutors be used, and also that the police department improve its preparation of the cases to be tried by the prosecutors.
In light of these criticisms, the plaintiff selectmen decided to abandon the practice of using police prosecutors, and asked town counsel to assume responsibility for these cases. Town counsel agreed, and a town meeting on June 6, 1979, voted to make an accommodating change of the town bylaws
On the same day the defendant district attorney made it known that he would “supersede” town counsel — which, in view of the termination of police prosecution, meant that he proposed to have one or more assistant district attorneys prosecute in District Court. The complaint charged that
On even casual inspection, the general scheme of criminal prosecution which emerges in this Commonwealth from statute, decision, and common understanding is antithetical to the plaintiffs’ case. District attorneys within their respective districts “shall appear for the commonwealth in the superior court
Of course a district attorney may appear through an assistant district attorney under his direction, and the Attorney General through an assistant attorney general. And it has long been assumed, and reflected in actual practice, that a district attorney, to the extent that his appearance in criminal cases in District Court is discretionary with him, may elect to leave such prosecutions to local police officers designated by the particular police command of the municipality. See K.R. Smith, Criminal Practice and Procedure § 850 (1970).
There is a suggestion in the complaint that, where the arrangement just described has existed over a long period of time, the district attorney is disabled from reclaiming that
So the plaintiffs are reduced to the argument that the defendant’s action in the particular circumstances was arbitrary and therefore, according to the plaintiffs, to be undone by the court, with town counsel confirmed as prosecutor. What the argument leaves in the shade is that the district attorney, in deciding to act himself or by assistants as prosecutor, was taking executive action — action comparable to that in his choosing to nol-pros a criminal case.*
For purposes of the present case we need not say that the district attorney’s choice would be impervious to attack under any and all imaginable conditions. We are clear, however, that it is so here, accepting the averments of the complaint free of their merely adjectival embellishments. It is alleged that the defendant was actuated by a mistaken understanding of certain propositions of law,
Judgment affirmed.
An assistant clerk of the Fourth District Court of Eastern Middlesex was originally joined as a defendant, but judgment was entered as to him by the single justice, and he is not a party to the appeal.
The by-law requiring that town counsel and each member of a firm delegated to advise the town should have five years’ experience in practice, was amended to authorize the selectmen to allow representation by an attorney with less experience if he was directly supervised by town counsel who was fully qualified.
Jurisdiction was invoked under G. L. c. 231A, § 1 (declaratory actions), c. 249, §§ 4, 5 (actions in the nature of certiorari and mandamus), and c. 211, § 3 (superintendency power of Supreme Judicial Court). In view of the substantive outcome, we need not dwell on the “jurisdictional” basis of the action.
No doubt the “except” clause was intended to reflect the fact that in the past the district attorney had chosen to prosecute some cases — probably the more serious ones — in lieu of the police prosecutor, but the precise meaning of “for cause previously established” is obscure.
We do not pause to give the exact titles of the Superior and District Courts after the court “unification” of 1978.
General Laws c. 12, § 27, reads: “District attorneys within their respective districts shall appear for the commonwealth in the superior court in all cases, criminal or civil, in which the commonwealth is a party or interested, and in the hearing, in the supreme judicial court, of all questions of law arising in the cases of which they respectively have charge, shall aid the attorney general in the duties required of him, and perform such of his duties as are not required of him personally; but the attorney general, when present, shall have the control of such cases. They may interchange official duties.”
The comprehensive powers of the Attorney General are related in the Kozlowsky case to G. L. c. 12, § 27 (see note 7, supra), and c. 12, § 10 (dealing primarily with unlawful combinations), as well as to the common law; they are not constricted by G. L. c. 12, § 6 (advice to district attorneys, and so forth).
Some account of the history of the office of Attorney General appears in the Kozlowsky case and in Secretary of Administration & Fin. v. Attorney Gen., 367 Mass. 154 (1975).
There is no claim of a power in the district attorney to choose a police officer in a police department and designate him as police prosecutor.
Article 89 of the Amendments to the Constitution of the Commonwealth, § 1, declares: “It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters . . .
We put to one side here G. L. c. 278, § 15 — the special power of town counsel in District Court prosecutions under municipal by-laws to “enter a nolle prosequi or do anything relative to such prosecution which may be done by the district attorney.”
To be distinguished is judicial check on the Attorney General’s disapproval of a municipal by-law to the extent that the statute was interpreted to provide for such oversight as in Concord v. Attorney Gen., 336 Mass. 17 (1957), construing G. L. c. 40, § 32.
Such as that Mass. R. Grim. P. 2 (b) (12) or (13), 378 Mass. 846 (effective July 1, 1979), outlaws use of town counsel as prosecutor.
It may be observed here that the plaintiffs had the possible recourse of memorializing the Attorney General to supersede the defendant. Cf. also