Simmons v. Clerk-Magistrate of Boston Div.

• Decision Date: 19 December 2006
• Citation: 858 N.E.2d 727,448 Mass. 57
• Parties: Cheryl SIMMONS & another<SMALL><SUP>1</SUP></SMALL> v. CLERK-MAGISTRATE OF The BOSTON DIVISION OF The HOUSING COURT DEPARTMENT & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

858 N.E.2d 727

448 Mass. 57

Cheryl SIMMONS & another¹ v. CLERK-MAGISTRATE OF The BOSTON DIVISION OF The HOUSING COURT DEPARTMENT & others.²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 7, 2006.

Decided December 19, 2006.

James M. McCreight for the plaintiffs.

Jay S. Koplove (Wilbur E. Commodore with him) for the Boston Housing Authority.

Peter Sacks, Assistant Attorney General, for Clerk-Magistrate of the Boston Division of the Housing Court Department.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

The plaintiffs, tenants in public housing owned and operated by the Boston Housing Authority (BHA), filed a complaint seeking relief in the nature of mandamus, pursuant to G.L. c. 249, § 5, in the Supreme Judicial Court for Suffolk County, challenging the practice of the Housing Court Department of assessing entry fees and surcharges in civil actions filed by the BHA, and the practice of the BHA of passing along such fees and surcharges as costs to public housing residents who are defendants in actions brought by the BHA. A single justice reserved and reported the matter, without decision, to the full court. For the reasons that follow, we conclude that the BHA is not a political subdivision of the Commonwealth, and, therefore, must pay entry fees and surcharges when filing actions in the Housing Court Department.

1. Background. We first summarize the facts, taken from the pleadings and the parties' joint statement of agreed facts submitted to the single justice. The BHA administers over 10,000 units of public housing in Boston. Each year, the BHA files in the Boston Division of the Housing Court Department hundreds of summary process and other civil actions against its residential tenants; a substantial number of these actions involve nonpayment of rent. When the BHA is the prevailing party, it seeks to recover from its tenants, pursuant to its standard public housing lease³ and applicable law, the costs that the BHA has incurred in pursuing its claims.

In accordance with G.L. c. 185C, § 19, clerks of the Housing Court Department charge "a fee of $120 for the entry of an action ... which shall be paid by the party entering or filing the same." General Laws c. 262, § 4C, further provides that "[a]ny party entering a complaint, petition or other civil action in any court of the commonwealth, except small claims cases, in which an initial filing fee is payable ... shall pay to the clerk of said court a surcharge of $15 in addition to the fee otherwise required by this chapter." Finally, pursuant to G.L. c. 262, § 4B, the Housing Court Department charges a fee of five dollars for each blank summons.⁴

For twenty-five years, the clerk-magistrate of the Boston Division of the Housing Court Department did not charge the BHA entry fees and surcharges for civil actions filed by the BHA against its public housing tenants. However, in a letter dated June 23, 2003, the Chief Justice of the Housing Court Department informed the administrator of the BHA that, effective July 1, 2003, the clerk's office would no longer accept the filing of any case from the BHA without the payment of fees in accordance with G.L. c. 185C, § 19. He pointed out that all the other divisions of the Housing Court Department charged their local housing authorities the same fees that were assessed to other landlords. In response, the general counsel for the BHA informed the Chief Justice that the BHA was a "political subdivision" of the Commonwealth within the meaning of G.L. c. 185C, § 19, and, therefore, was exempt from paying entry fees and surcharges. The Chief Justice disagreed and, as of July 1, 2003, the clerk-magistrate began to charge the BHA a minimum of $140 for each civil action filed in the Housing Court Department. The BHA has paid these entry fees and surcharges, but it has endorsed each check as having been paid under protest and without the waiver of any rights.

The BHA sent a written notice to its public housing tenants informing them that the Boston Division of the Housing Court Department had started to require the payment of entry fees in eviction and other housing-related cases. The letter stated that if the BHA prevailed in such actions, then the residents would be liable for reimbursing the BHA for its costs. In October, 2005, the BHA filed nonpayment summary process actions against the plaintiffs in the Boston Division of the Housing Court Department. With respect to each plaintiff, the BHA has entered into a "stipulation of dismissal with reservation as to costs," pending the resolution of the present action.

2. Mandamus. A complaint in the nature of mandamus is "a call to a government official to perform a clear cut duty," and the remedy is limited to requiring action on the part of the government official. Doe v. District Attorney for the Plymouth Dist., 29 Mass.App.Ct. 671, 675, 564 N.E.2d 588 (1991). See Lutheran Serv. Ass'n of New England, Inc. v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344, 491 N.E.2d 255 (1986) (mandamus action "is appropriate to compel a public official to perform an act which the official has a legal duty to perform"). It is well established that "relief in the nature of mandamus is an extraordinary remedy which will be granted only when there exists no other adequate and effective remedy." L.G.G. v. Department of Social Servs., 429 Mass. 1008, 1008, 709 N.E.2d 1108 (1999). See Callahan v. Superior Court, 410 Mass. 1001, 570 N.E.2d 1003 (1991); Lutheran Serv. Ass'n of New England, Inc. v. Metropolitan Dist. Comm'n, supra. Here, the plaintiffs are not entitled to relief in the nature of mandamus because they have an adequate and effective remedy, namely an appeal from the assessment of entry fees and surcharges by the Housing Court Department and, subsequently, by the BHA.

Although the plaintiffs have sought relief under G.L. c. 249, § 5, our consideration of the substance of their complaint dictates, more appropriately, that we review the Housing Court Department's practice of assessing entry fees and surcharges in civil actions filed by the BHA pursuant to our authority under G.L. c. 211, § 3. Cf. Commonwealth v. Hayes, 372 Mass. 505, 507, 362 N.E.2d 905 (1977), quoting Lataille v. District Court of E. Hampden, 366 Mass. 525, 527, 320 N.E.2d 877 n. 2 (1974) (addressing the "substantive legal arguments underlying the petition [which] are the same whether the writ [is] considered one in certiorari, mandamus or invocation of supervisory powers"). As provided in G.L. c. 211, § 3, "[t]he supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided...." While this court's supervisory powers under G.L. c. 211, § 3, "are by nature extraordinary, in an appropriate case this court could and should act at whatever stage in the proceedings it becomes necessary to protect substantive rights. That an appeal may lie from a final judgment does not prevent the court from taking such action as it may deem necessary." Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817 (1967). See Carr v. Howard, 426 Mass. 514, 517, 689 N.E.2d 1304 n. 3 (1998); Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 111, 676 N.E.2d 436 (1997).

General Laws c. 211, § 3, further provides that "the justices of the supreme judicial court shall also have general superintendence of the administration of all courts of inferior jurisdiction ... and ... may issue such writs, summonses[,] ... orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration." Where, as here, a systemic issue affecting the proper administration of the judiciary has been presented, resolution of the issue by this court is appropriate and "should not await some fortuitous opportunity of report or ordinary appeal." A Juvenile v. Commonwealth (No. 1), 380 Mass. 552, 556, 405 N.E.2d 143 (1980) (resolving question of proper transfer practice between Boston Juvenile Court and Superior Court). See County Comm'rs of Bristol v. Judges of Probate of Bristol County, 338 Mass. 738, 741-742, 157 N.E.2d 245 (1959) (reviewing on its own motion controversy between two courts as to right to occupy particular court room). In the past, we have exercised our general superintendence powers to resolve, inter alia, "important issues with implications for the effective administration of justice" and "matter[s] of public interest that may cause further uncertainty within the courts." First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep't, 438 Mass. 387, 391, 780 N.E.2d 908 (2003) (resolving internal dispute between members of judicial department). See Bradford v. Knights, 427 Mass. 748, 750-751, 695 N.E.2d 1068 (1998) (determining that judges of Boston Municipal Court Department have inherent authority to rehear denials of applications for criminal complaints by clerks of that court).

The BHA files hundreds of summary process and other civil actions each year in the Boston Division of the Housing Court Department against its public housing tenants. Notwithstanding the fact that all the other divisions of the Housing Court Department require the payment of entry fees and surcharges from their local housing authorities,⁵ the BHA has claimed that it should continue to be exempt, as a political subdivision of the Commonwealth, from such payments, which represent a significant expense for the BHA. The Housing Court Department's practice of assessing entry fees and surcharges in civil actions filed by the BHA is an important issue with implications for the effective administration of justice, is an issue that needs...