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SJC-12488

             JAIDEEP S. CHAWLA   vs.   APPEALS COURT.


                         April 11, 2019.


Practice, Civil, Action in nature of mandamus. Supreme Judicial
     Court, Superintendence of inferior courts.


     Jaideep S. Chawla appeals from a judgment of a single
justice of this court denying his complaint for relief in the
nature of mandamus or, in the alternative, for relief pursuant
to G. L. c. 211, § 3. We affirm.

     Background. Pursuant to the False Claims Act, Chawla
commenced a qui tam action in the Superior Court against two
individuals being prosecuted by the Federal government for
narcotics offenses.1 In general, Chawla sought recovery of taxes
due under the controlled substances tax, G. L. c. 64K, on the
illegal narcotics allegedly possessed by certain individuals as
part of their criminal enterprise. After investigation, the
Attorney General elected not to intervene in the qui tam action,
see G. L. c. 12, § 5C (3), and moved to dismiss it. See G. L.
c. 12, § 5D (2). Chawla appealed from the allowance of the
motion, and a panel of the Appeals Court affirmed the judgment
dismissing the case. See Chawla v. Gonzalez, 90 Mass. App. Ct.
1102 (2016). Chawla next filed a petition for rehearing in the
Appeals Court. See Mass. R. A. P. 27 (a), as appearing in 396
Mass. 1218 (1986). One of the original panel members was no

    1  The False Claims Act "encourages individuals with direct
and independent knowledge of information that an entity is
defrauding the Commonwealth to come forward by awarding to such
individuals a percentage of the Commonwealth's recovery from the
defrauding entity." Scannell v. Attorney Gen., 70 Mass. App.
Ct. 46, 48 (2007).
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longer a member of that court, and another associate justice
(replacement judge) of the Appeals Court was called in to take
part in the decision. See Mass. R. A. P. 24 (a), 365 Mass. 872
(1974). The petition for rehearing was denied. Chawla's
subsequent motion for recusal of the replacement judge was
denied.2 Chawla did not file an application for further
appellate review.3

     Chawla thereafter filed a complaint in the county court,
which he amended twice. The second amended complaint seeks
relief in the nature of mandamus, pursuant to G. L. c. 249, § 5,
to compel the replacement judge to demonstrate the basis for his
decision not to recuse himself from participation in the
proceeding, to order the judge's recusal, and to compel the
Appeals Court both to vacate the denial of his petition for
rehearing and to reconsider it. In addition, pursuant to G. L.
c. 211, § 3, Chawla seeks appointment of a special prosecutor to
investigate the Attorney General and an order vacating the
Superior Court's judgment in the qui tam action. The single
justice correctly denied relief.

     Discussion. "It would be hard to find any principle more
fully established in our practice than the principle that
neither mandamus nor certiorari is to be used as a substitute
for ordinary appellate procedure or used at any time when there
is another adequate remedy." Myrick v. Superior Court Dep't,
479 Mass. 1012, 1012 (2018), quoting Rines v. Justices of the
Superior Court, 330 Mass. 368, 371 (1953). Chawla could have
sought review of the replacement judge's decision not to recuse
himself, and the alleged effect of that decision on the panel's
ultimate ruling on the petition for rehearing, by filing an

     2 Chawla seeks the recusal of the replacement judge on the
ground that, years before becoming an associate justice of the
Appeals Court, he was employed as an assistant district attorney
and his responsibilities included prosecution of alleged
narcotics dealers and gang members. Although the employment was
completed years before and in a different county from the one in
which the events underlying the qui tam action occurred, Chawla
nonetheless asserted that the associate justice "has or should
have" knowledge of material facts underlying Chawla's qui tam
claim, including with respect to enforcement of the controlled
substances tax, G. L. c. 64K, § 9. Nothing about these bare
assertions required the replacement judge to recuse himself.

     3 Chawla sought and obtained from this court an extension of
time in which to file an application, but never filed one.
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application for further appellate review. See Abdullah v.
Secretary of Pub. Safety, 447 Mass. 1009, 1009 (2006) (relief
properly denied under G. L. c. 211, § 3, where petitioner could
have, but did not, seek leave to obtain further appellate
review). See also Ewing v. Commonwealth, 451 Mass. 1005, 1006
(2008).

     Moreover, a judge's decision whether to recuse him- or
herself from a particular proceeding is generally, as it was
here, within the judge's discretion.4 A complaint in the nature
of mandamus is limited to requiring a public official to perform
a "clear cut duty," as opposed to requiring the exercise of
discretion in a particular way. Ardon v. Committee for Pub.
Counsel Servs., 464 Mass. 1001, 1001 (2012), cert. denied, 571
U.S. 872 (2013), quoting Simmons v. Clerk-Magistrate of the
Boston Div. of the Hous. Court Dep't, 448 Mass. 57, 59-60
(2006). "[M]andamus will not issue to direct a judicial officer
to make a particular decision or to review, or reverse, a
decision made by a judicial officer on an issue properly before
him or her." Myrick v. Appeals Court, 481 Mass. 1029, 1030
(2019), quoting Montefusco v. Commonwealth, 452 Mass. 1015, 1015
(2008). In this case, the single justice properly declined
mandamus relief to compel the recusal of the replacement judge,
to require the Appeals Court to recall its rescript, to vacate
the denial of Chawla's petition for rehearing, or to compel
reconsideration of the petition. None of these things is a type
of action that could be compelled by a complaint for mandamus.

     With respect to Chawla's request pursuant to G. L. c. 211,
§ 3, that the single justice appoint a special prosecutor to
investigate the Attorney General, or to order the Superior Court
to vacate its judgment, the single justice determined that
"[t]his is not a matter for the exercise of the court's
extraordinary power under [G. L. c. 211, § 3]." We agree. The
court's power of general superintendence is reserved for
extraordinary circumstances, where the petitioner has
demonstrated both a substantial violation of a substantive right
and the absence of an adequate alternative remedy. See Pandey

    4  Chawla cites no authority for his claim that an associate
justice of the Appeals Court is required to state his or her
reasons for denying a recusal motion. Cf. S.J.C. Rule 1:22 (b),
458 Mass. 1301 (2010) (justice of Supreme Judicial Court is
encouraged but not required to "provide a brief statement of his
or her reasons for denying" recusal motion). Mandamus will not
lie to impose such a requirement.
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v. Roulston, 419 Mass. 1010, 1011 (1995). Chawla made no
showing of any substantive right to an investigation of the
Attorney General in these circumstances. See generally Carroll,
petitioner, 453 Mass. 1006 (2009). With respect to the Superior
Court's judgment, he also failed to demonstrate the absence or
inadequacy of remedies alternative to G. L. c. 211, § 3.
Specifically, he could have filed an appropriate postjudgment
motion in the Superior Court, see Mass. R. Civ. P. 60, 365 Mass.
828 (1974), and appealed from any adverse ruling.

     The single justice neither erred nor abused his discretion
in denying the complaint.5

                                   Judgment affirmed.


     Jaideep S. Chawla, pro se.
     Jeffrey T. Walker, Assistant Attorney General (Amy Crafts,
Assistant Attorney General, also present) for the defendant.




     5 We decline to consider matters that were not raised before
the single justice, or that are inadequately presented on
appeal. See Dowd v. Dedham, 440 Mass. 1007, 1007-1008 (2003).
