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