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SJC-12418

                  G.G.   vs.   L.R. & another. 1,2


                         January 16, 2018.


   Supreme Judicial Court, Superintendence of inferior courts.


     The petitioner, G.G., obtained a civil harassment
prevention order in the Superior Court, pursuant to G. L.
c. 258E, against L.R. The order, and subsequent modifications
of it, contained various directives addressed to L.R., as well
as to L.R.'s employer, P.F. L.R.'s appeal presently is pending
in the Appeals Court; both the Superior Court judge and a single
justice of the Appeals Court denied L.R.'s motion to stay
enforcement of the order pending appeal.

     While L.R.'s appeal has been pending, a series of events
ensued in the Superior Court and the Appeals Court. Notably, a
second single justice of the Appeals Court modified a provision
of an order entered during the pendency of L.R.'s appeal, denied
L.R.'s motion to stay contempt proceedings, and denied G.G.'s
motion for sanctions. In addition, after the Superior Court
judge allowed G.G.'s "motion to add" P.F. as a party to the
proceedings and entered other orders, P.F. appealed. That
appeal also is pending in the Appeals Court. On July 27, 2017,
a third single justice of the Appeals Court allowed P.F.'s
motion to stay enforcement of certain orders pending appeal and

     1
       Because the Appeals Court has used the parties' initials
in related proceedings, we do so as well.
     2
       P.F. The Appeals Court also was named as a party in
G.G.'s petition in the county court. We treat it as a nominal
party. Cf. S.J.C. Rule 2:22, 422 Mass. 1302 (1996).
                                                                  2


L.R.'s motion to stay enforcement of a portion of an order. The
third single justice denied G.G.'s motions for reconsideration
of both orders, but treated them as notices of appeal, and
indicated that "the appeal shall proceed in the normal course."
Insofar as the record before us indicates, G.G. has not pursued
those appeals. 3

     Instead, G.G. filed a petition in the county court,
pursuant to G. L. c. 211, § 3, primarily requesting that the
court vacate the Appeals Court single justice's July, 2017,
orders. In addition, the petition sought an order disqualifying
a particular attorney from representing L.R. or G.G., a
declaration that a certain constitutional provision is
unconstitutional as applied in the underlying proceedings, and
other relief. 4 A single justice of this court denied the
petition without a hearing. G.G.'s appeal from that particular
ruling is what is now before us on a memorandum and appendix
filed pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301
(2001). Rule 2:21 applies where a single justice has denied
relief pursuant to G. L. c. 211, § 3, from a challenged
interlocutory ruling of the trial court. Because relief
properly may be denied under the statute where adequate
alternative remedies exist, the rule requires the aggrieved
party to "set forth the reasons why review of the trial court
decision cannot adequately be obtained on appeal from any final
adverse judgment in the trial court or by other available
means." S.J.C. Rule 2:21 (2). "At this juncture, our focus is
not on the merits of any ruling . . . , but on the availability
of other remedies." Luke v. Commonwealth, 460 Mass. 1002, 1002
(2011).

     3
       The Appeals Court's docket indicates the records have been
assembled in both cases. See Mass. R. A. P. 9, as amended, 417
Mass. 1601 (1994). It is unclear whether G.G. has taken the
additional steps pursuant to Mass. R. A. P. 10, as amended, 430
Mass. 1605 (1999), to perfect the appeals.
     4
       The petition also requested an order directing the
Attorney General to initiate a criminal investigation. Although
G.G. has not pressed the claim here, it is plain he was not
entitled to relief. The Attorney General has wide discretion in
determining whether to prosecute, see Commonwealth v. Taylor,
428 Mass. 623, 629 (1999), and relief in the nature of mandamus
is "not available to compel the performance of discretionary
acts." See Boxford v. Massachusetts Highway Dep't, 458 Mass.
596, 605-606 (2010).
                                                                   3



     To the extent the petition sought relief from the orders of
the third single justice of the Appeals Court, the rule does not
apply because those orders are not interlocutory rulings of the
trial court. See Blonde v. Antonelli, 463 Mass. 1002, 1002
(2012). It is nonetheless evident on the record before us that
the petitioner has or had an adequate alternative remedy,
namely, an appeal from the Appeals Court single justice's orders
to a panel of that court. See Gifford v. Gifford, 451 Mass.
1012, 1013 (2008). If necessary, he could have requested that
the Appeals Court expedite such an appeal. Single justices of
this court are not obligated to exercise the extraordinary power
of general superintendence where a petitioner does not attempt
to pursue such adequate alternative remedies. Blonde, supra at
1002.

     To the extent the petition seeks relief from any
interlocutory ruling of the trial court, such as the denial of
the petitioner's request to disqualify defense counsel, the
petitioner failed to demonstrate why review of that ruling
cannot adequately be obtained through the ordinary appellate
process. See Farahini v. Hingham Mut. Fire Ins. Co., 445 Mass.
1024, 1024 (2006) (claim that counsel should be disqualified may
be raised on appeal from final judgment). Similarly, while the
petition sought certain declaratory relief, the constitutional
claims raised "could have been addressed during the ordinary
trial and appellate process in the underlying case," Longval
v. Superior Court Dep't of the Trial Court, 437 Mass. 1018,
1018-1019 (2002), or on appeal from the third Appeals Court
single justice's orders. Declaratory relief may not be used as
a substitute for an appeal. Id.

     We affirm that portion of the judgment that denies the
petition for relief pursuant to G. L. c. 211, § 3; with respect
to the request for declaratory relief, we remand to the county
court for entry of a judgment declaring that, because of the
available appellate remedy, the petitioner's action does not
state a controversy for purposes of G. L. c. 231A, and that an
action for declaratory relief therefore cannot be maintained.

                                   So ordered.

     The case was submitted on the papers filed, accompanied by
a memorandum of law.

     G.G., pro se.
