In re: Justices of the Superior Ct. Dep't of MA

• Decision Date: 06 June 2000
• Docket Number: No. 00-1168,00-1168
• Citation: 218 F.3d 11
• Parties: (1st Cir. 2000) IN RE: JUSTICES OF THE SUPERIOR COURT DEPARTMENT OF THE MASSACHUSETTS TRIAL COURT, Petitioner. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

218 F.3d 11 (1st Cir. 2000)

IN RE: JUSTICES OF THE SUPERIOR COURT DEPARTMENT OF THE MASSACHUSETTS TRIAL COURT, Petitioner.

No. 00-1168

United States Court of Appeals For the First Circuit

Heard June 6, 2000

Decided July 3, 2000

[Copyrighted Material Omitted] Cathryn A. Neaves, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and Catherine E. Sullivan, Assistant Attorney General, were on brief, for petitioner.

Max D. Stern, with whom Jonathan Shapiro, Patricia Garin, Stern, Shapiro, Weissberg & Garin, Michael Angelini, Bowditch & Dewey, LLP, Sara Rapport, Perkins, Smith & Cohen, LLP, Joseph Monahan and Monahan & Padellaro were on brief, for respondent.

Before: Torruella, Chief Judge, Stahl and Lipez, Circuit Judges.

TORRUELLA, Chief Judge.

The Commonwealth of Massachusetts, in name of the Justices of the Superior Court of the Massachusetts Trial Court, asks us to exercise our mandamus authority under the All Writs Act, 28 U.S.C. § 1651, to order the district court to decide or otherwise dispose of a pretrial petition for habeas corpus relief which the Commonwealth claims is interfering with state criminal proceedings. Although this power is used exceedingly sparingly, we determine that this case poses an issue of such importance, and one so elemental to the proper role of the federal judiciary in our constitutional scheme, as to warrant the issuance of an advisory mandamus granting the requested relief.

I. Factual Background

James N. Ellis, Jr., Nicholas Ellis, James N. Ellis, Sr., and Leonora Ellis¹ are four former employees of the Worcester, Massachusetts law firm of Ellis & Ellis. In 1997, they were indicted by a Massachusetts grand jury on numerous counts of insurance fraud and related charges following a lengthy investigation by the Insurance Fraud Bureau of Massachusetts ("IFB"). The presentation to the grand jury, and the ongoing criminal prosecutions, were and are being handled by assistant attorneys general in the Insurance Fraud Division of the Massachusetts Attorney General's Office.

In November of 1997, defendant James N. Ellis, Jr., filed a motion to dismiss the indictments or to disqualify prosecuting counsel; the motion was subsequently joined by the other three defendants. Defendants argued that the assistant attorney generals prosecuting their state criminal cases were impermissibly biased, due to the unusual statutory scheme by which the IFB and the Insurance Fraud Division are funded.

As expressly authorized by statute, see Mass. Gen. Laws ch. 427, § 13 (1996), the IFB is a quasi-governmental entity created by two voluntary associations of Massachusetts insurance carriers, the Automobile Insurance Bureau and the Workers' Compensation Rating and Inspection Bureau, for the prevention and investigation of fraudulent insurance transactions. The governing board of the IFB consists of fifteen members, five from each rating bureau and five specified public officials. The costs of administering the IFB are borne equally by the two rating bureaus.

In addition to bearing the costs of administering the IFB, the two rating bureaus are also subject to annual assessments, which are used to partially fund the investigatory and prosecutorial actions of the Insurance Fraud Division of the Attorney General's Office. By statute, the Attorney General is required to dedicate the funds so received to matters referred to him by the IFB, and he must further designate a total of at least thirteen assistant attorneys general to work full-time on matters referred by the IFB.²

Following a nonevidentiary hearing, the judge presiding over the state trial proceedings denied the motion to dismiss the indictments or disqualify counsel. Construing all facts in the light most favorable to defendants, the court found that the statutory scheme did not violate defendants' constitutional or statutory rights to a disinterested prosecutor. Upon defendants' request, the trial judge reported his decision to the Massachusetts Appeals Court, and the Supreme Judicial Court granted defendants' application for direct appellate review.

On April 14, 1999, the Supreme Judicial Court affirmed the denial of the motion to dismiss or disqualify, as well as the denial of defendants' request for an evidentiary hearing. SeeCommonwealth v. Ellis, 708 N.E.2d 644 (Mass. 1999). After reviewing the statutory scheme for infirmity on its face or as applied to defendants in particular, the court concluded that defendants were not deprived of any constitutional right, although a majority expressed concern that the closeness of the IFB and the Insurance Fraud Division might be "difficult to justify on policy grounds." Id. at 654.

On May 4, 1999, defendants filed a joint pretrial habeas corpus petition in the United States District Court for the District of Massachusetts. In the petition, defendants claim that their "custody" on personal recognizance is in violation of the Due Process Clause of the Fourteenth Amendment because their prosecutors are impermissibly "interested" in their cases due to the relationship between the IFB and the Insurance Fraud Division and because they were denied a constitutionally sufficient opportunity to establish such unlawful influence. The petition specifically requested discovery and an evidentiary hearing, claiming that they had been denied the ability to develop the facts in the state court. An initial hearing was held by the district court on October 27, 1999, at which the Commonwealth argued that the defendants' claim was not an appropriate subject for pretrial habeas relief.

On December 8, 1999, approximately one month before the first state court trial date, the district court issued an order (1) requiring the Commonwealth to respond to defendants' discovery requests by December 15, 1999 and (2) preliminarily setting an evidentiary hearing date for December 22, 1999, but not addressing the underlying issue of whether the court would accept jurisdiction over the habeas petition. On December 17, 1999, the court issued a second order, in which it asserted jurisdiction over the petition and rescheduled the evidentiary hearing for December 30, 1999.

On December 16, 1999, the Commonwealth filed a petition for extraordinary relief with this Court, seeking relief from the district court's order scheduling an evidentiary hearing. This Court ordered defendants to respond, and they did so on December 20, 1999, on which date they also moved the district court to postpone the hearing. The district court vacated the December evidentiary hearing, thus mooting the Commonwealth's petition, which was subsequently withdrawn.

The district court then set a January 31, 2000 deadline for in camera production of privileged documents requested in discovery by defendants, and rescheduled the evidentiary hearing for April 3, 2000. While preserving its objection to the imposition of discovery in the habeas proceedings, the Commonwealth complied with the January 31, 2000 deadline for in camera production.

Defendants then, without seeking leave of court, noticed the depositions of four board members of the IFB for January 18-19, 2000 and January 24-25, 2000. The first trial of James N. Ellis, Jr. was scheduled to begin (and did begin) on January 14, 2000. The district court denied motions filed by the Commonwealth and by the IFB to quash the depositions, as well as the Commonwealth's motion for reconsideration.

The Commonwealth filed this second petition for extraordinary relief on February 7, 2000, claiming that the pretrial habeas proceedings in federal court are interfering with the criminal proceedings before the Massachusetts trial court. Since the petition was filed, the first trial of James N. Ellis, Jr. resulted in a hung jury and a mistrial after ten weeks; no retrial has yet been scheduled. Nicholas Ellis was scheduled to begin trial on two indictments on June 15, and James Ellis, Jr. will undergo a second trial on two separate indictments beginning on July 17. Further trials involving defendants have not yet been scheduled. It appears that the federal court evidentiary hearing scheduled for April 2000 was not held, due to the pendency of this petition for extraordinary relief.

II. Law and Application

1. Standard for Advisory Mandamus

The Commonwealth's petition seeks a writ of prohibition³ under the All Writs Act, 28 U.S.C. § 1651, prohibiting the district court from asserting jurisdiction over defendants' pretrial habeas petition. As the parties have correctly noted, mandamus relief is a "drastic remedy," to be used sparingly and only in unusual circumstances. In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir. 1988). Mindful of the extraordinary nature of mandamus relief, we have limited its availability to "those rare cases in which the issuance (or nonissuance) of an order presents a question anent the limits of judicial power, poses some special risk of irreparable harm to the appellant, and is palpably erroneous." United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994). However, in certain rare cases, we will exercise our mandamus power even when this exacting standard is not met. See, e.g., id. We refer to such exercise of authority under the All Writs Act as advisory mandamus. See id.⁴

Advisory mandamus has its roots in the Supreme Court's reference to mandamus review of "basic, undecided question[s]." Schlagenhauf v. Holer, 379 U.S 104, 110 (1964); see Horn, 29 F.3d at 769; see also 16 Wright et al., supra, § 3934. It is appropriately invoked when the action or inaction of the district court presents an issue of great importance and novelty, and one the resolution of which will likely aid other jurists, parties, and lawyers. See Horn, 29 F.3d at 769-70 (citing In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982), and In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989)).

In United States v. Horn, 29 F.3d 754, 770 (1st...