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SJC-13438. Commonwealth V Mark Davidson.
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Okay, attorney Rangaviz.
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Good morning. May it please the court,
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David Rangaviz for the Commonwealth.
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This case is an Attorney General enforcement action
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alleging a violation of anti-discrimination
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and consumer protection laws
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by a landlord who withdrew an offer
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to renew a lease because some of his tenants,
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tenants who are present in the courtroom today,
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told him they were expecting a child.
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So the case comes..
Mr Rangaviz,
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Did, did you get notice of the transfer
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to the housing court?
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I got notice of the transfer to the housing court
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the day the case was transferred to housing court.
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Was there an objection filed?
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Were you heard on it?
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Well, I filed a motion in the housing court
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to transfer the case back.
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Right, but in the Superior Court,
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did you have a chance to..
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There was no opportunity to file an objection.
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The case was closed
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and the case was opened in the housing court
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and I filed a motion
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to transfer back to the housing court and when that was..
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But, so the Essex Superior Court never informed you?
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Correct, because I think it's something
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that happens at the clerk's office level.
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It's not a motion to transfer.
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It was filed as a notice to transfer.
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So the case, it happens,
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not automatically in the sense that it actually happens
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without human intervention.
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But I think someone in the clerk's office just did it.
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They did it, they closed the case the same day
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the notice was filed.
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Okay. That's my question.
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So the case went back automatically.
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So the case is here on an interlocutory posture,
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obviously on Sua Sponte transfer,
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raising a core jurisdictional issue
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and a couple of issues that follow from that.
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So, first to jurisdiction,
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Attorney General enforcement actions
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under general laws Chapter 151B, section five
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have exclusive jurisdiction in the Superior Court.
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And there's a few indications
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of legislative intent to that effect.
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The first is the language of general laws.
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Chapter 151B, section five which states
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that the Attorney General shall commence and maintain
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a civil action on behalf of the complainant
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in the Superior Court.
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And I would submit that commence and maintain
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mean exactly what they say.
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The case has to be commenced in the Superior Court,
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and it has to be maintained there.
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Maintained is pretty specific.
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Maintained is pretty specific.
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An odd wording.
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It is sort of unusual wording
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and I think makes it sort of unusually clear
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that this is a case that has to be in the Superior Court.
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I think it's even more clear,
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my second indication of legislative intent
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is contrasting section five with section nine.
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Section nine is the statute that allows
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the private individual who's affected
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by the discriminatory act
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to file their own civil cause of action.
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And that says that they can file
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in the Superior Court
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or if the case involves residential housing,
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they can file in the housing court.
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And then the third indication of legislative intent
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is the legislative history that I laid out in my brief,
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that this statute was written
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after the housing court was created
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and the legislature specifically wrote section nine
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to allow a private case to go to the housing court,
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but section five to allow
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Attorney General enforcement actions
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to only go to Superior Court.
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And there's a whole sort of line of cases
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that have read the jurisdiction of the housing court,
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actually fairly narrowly.
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And to tap you into that line of cases,
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I would cite the court to Murphy versus Miller.
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It's Justice Milkey's opinion from the appeals court,
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75 Mass Appeals Court 210 which is a 2009 case
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that cites all of the other cases that have done this.
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But the court has sort of again and again,
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made clear that the housing court
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is a court of limited jurisdiction
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and even though 185C, section three
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is seemingly broad it's read narrowly again and again
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by both this court and by the appeals court.
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If the court has no questions
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about sort of that core jurisdictional issue
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the second and third issues that follow from it.
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So the second issue in the case is basically
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what is a lower court to do in this sort of situation.
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And this court has repeatedly said that courts
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that are facing a difficult jurisdictional question
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should report the case to the Chief Justice
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of the trial court for the Chief Justice
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under 211B, section three to assign the case
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to a different trial court department.
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This court said that
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in St. Joseph's Polish National Catholic Church case
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that is cited in my brief,
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and there's a couple of other cases
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where the court said it as well.
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The LeBlanc vs. Sherman Williams 406 Mass 888
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and the Ryan versus Kehoe case 408 Mass 636.
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And then the transferring court, as I laid out in my brief,
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should at least review these sorts of notices
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to see if there's an obvious jurisdictional defect,
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like if going forward,
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if an Attorney General enforcement action under 151 B
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you would hope the transferring court
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would not make that transfer to the housing court.
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I'm sure they're not transferring employment
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discrimination cases to the housing court.
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So there is some review that's happening.
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So I would submit that if there's an
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obvious jurisdictional defect you would hope
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the transferring court would review that
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and try to fix that as well.
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And the third issue in the case
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is just sort of clarifying trial court rule 12.
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The housing court judge, when I was before him
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on my motion to transfer the case back to Superior Court,
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Justice Gaziano said that the thing that I should do
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is file a letter to the Chief Justice
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under trial court rule 12.
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But trial court rule 12,
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its opening words are if two or more actions are pending.
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The point is to consolidate multiple cases
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that are related to one another.
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And there's only ever been one case pending.
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It's been in, it's ping ponged through multiple courts
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but it's always ever only been one case that's active.
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And so this court can make clear, I think,
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for lower court judges that Rule 12
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is really reserved for that sort of situation
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where multiple related cases are pending
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in different court departments
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and they can be joined together.
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Your brief lays out the legislative history
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in the statutory interpretation.
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Well, the only question I had was
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do we really have to get into the federal equivalency
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because there is no federal housing court.
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There's a trial court.
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Yes, there's..
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I don't know if it's apples and oranges.
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Yeah, it is a little bit apples and oranges.
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There is only one federal court of general jurisdiction.
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And our position is that..
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But I don't know if we need to reach it
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to decide this issue.
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I definitely don't think you need to reach it.
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I, to be perfectly honest, if the single justice
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that reported the case hadn't noted this issue
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I probably wouldn't have reached it either.
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So I don't think the court needs to discuss that issue
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in its decision.
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I think the, the language of the statute
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is certainly clear enough without getting into this
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compare and contrast with federal law.
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Can I ask a sort of an odd question?
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So you can bring an individual case in housing court.
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What do, and I'm just trying to understand.
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if we had an individual case here and we had an A.G. case,
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it would have to be in the Superior Court, I take it.
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The consolidation would have to be
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in the Superior Court, right?
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I think it would have to yeah.
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Because of commence and maintain,
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because of the fact that there's only jurisdiction
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in the housing court under section five,
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or in the Superior court under section five.
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You mean it would have, I'm sorry..
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No, no, just..
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Would have to be, couldn't they they operate parallel?
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Oh yes, they could operate parallel if someone filed on..
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In the case that
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you wanted consolidation for some reason.
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If someone sent a letter to the chief justice
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of the trial court under trial court rule 12
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wanted them consolidated
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that consolidation would have to be in Superior Court.
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But of course related cases don't have to be consolidated.
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I was just gonna ask,
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the housing court judge didn't think they had the power
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to transfer it back, right?
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Correct.
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Do you think they did?
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Well I think the..
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I know you think
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it shouldn't have been transferred to begin with.
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No, I think the thing to do,
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that this court has sort of said repeatedly
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is that the chief justice of the trial court
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unambiguously has that power
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to transfer cases between court departments.
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So the thing, a judge in a court
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of limited jurisdiction should do in that situation
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is just report the case
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to the Chief Justice of the trial court
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for that interdepartmental transfer to happen.
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He declined to seek the assistance of the CGM.
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Because his view was that I had to follow
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trial court rule 12
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which for the reasons I've laid out,
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two or more cases are pending.
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This was only one case.
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I didn't think I could do that
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and that's why I went to the single Justice
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and yada yada yada, now here we are.
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(laughter)
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The Chief Administrative Justice's power
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is that a statutory power or is that a rule?
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It's a statutory power under, I believe,
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it's general laws chapter 211B, section nine.
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Can I just ask, so did you,
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when the housing judge said,
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"No, no, you have to follow Rule 12.",
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did you respond to that
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or did you just bring it to the single Justice?
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Well, in real time, you mean?
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Well, I mean no, I'm assuming there were written
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back and forth.
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So at that moment I had never heard of
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trial court Rule 12.
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Like okay.
So I said okay.
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And then I went and read trial court Rule 12
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and realized that I couldn't do that.
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And at that point he had issued his written order
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telling me to proceed through trial court Rule 12.
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So at that point I filed the interlocutory petition
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to the single Justice of the appeals court.
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My view was that was the only way I could get the case back.
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Can I ask you a quick question about 12?
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And I haven't read it
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and you might know it a little bit better getting prepared.
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Could a litigant write a letter
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to the Chief Justice and say,
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"Hey, this case is in the wrong department
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and can you transfer it?"
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or is it only the judge that can make that request?
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Well, trial court rule 12 is a letter by a litigant.
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So if there are two or more actions pending
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and you want to consolidate them,
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which is not the situation here,
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then a litigant can do that.
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That's what a litigant is supposed to do
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by writing that letter to the Chief Justice.
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But the thing that this court has said repeatedly
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in situations like this where there's a single case
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with doubtful jurisdiction,
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That's what I mean, could a litigant have,
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could you have done that and say,
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"Hey, we're in the housing court, we can't be.
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We should be in superior."
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This court's never instructed litigants to do that
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'cause this is all common law
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where this has come up.
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Certainly this court,
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if this court wanted to say that in this case,
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that would be relatively novel.
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Because in all the cases that I've read,
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it's always been judges in courts
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of limited jurisdiction should report these sorts of cases.
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I don't think Chief Justice Locke
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would appreciate us inviting litigants to ask him.
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I think that's probably unlikely.
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So I think the more common practice
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is either Sua Sponte or I think more commonly
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a litigant alerts the judge
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to the serious jurisdictional defect
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and then the judge reports the case to the Chief Justice
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if the judge agrees
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that there is a serious jurisdictional problem there.
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Is there any reason the housing court judge
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couldn't have just transferred it back?
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My position as I laid out in my brief
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is I believe it's within the inherent authority
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of a judge to transfer a case back to the proper court
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in which there's jurisdiction.
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And you're not aware of any impediment to that?
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I'm not aware of any impediment to that.
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I think the housing court judge,
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sort of in his defense,
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was looking for a statutory equivalent to 185C, section 20
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which allows transfers to the housing court.
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And I think he was sort of looking for something
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that says a housing court judge
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can transfer a case to the Superior Court
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and there's no impediment
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but there's also no statutory authorization.
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Which is why I think the source of the authority
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is just the inherent judicial authority of a judge
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to move a case over which he has no jurisdiction
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that was improperly transferred to his court.