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SJC-11559

      IN THE MATTER OF THE PETITION OF DEWOE W. SMALLWOOD.


                       December 19, 2014.


Supreme Judicial Court, Superintendence of inferior courts.
     Commission on Judicial Conduct. Judge.


     Dewoe W. Smallwood appeals from a judgment of a single
justice of this court dismissing his petition under G. L.
c. 211, § 3. The case arises from a longtime dispute between
Smallwood and his former girlfriend concerning ownership of
certain real property. In 1997, Smallwood's former girlfriend
commenced a civil action against him in the Superior Court,
apparently culminating in the sale of the property. A final
judgment appears to have entered in that case in 2011.
Smallwood then commenced this action in the county court in
2013, seeking extraordinary relief pursuant to G. L. c. 211,
§ 3. He recounted several rulings that the Superior Court
judges had made against him in the underlying action. He also
stated that, in the course of those proceedings, he had filed
complaints with the Commission on Judicial Conduct (commission)
against certain judges who had made those adverse rulings, but
that the commission declined to proceed against the judges named
therein. We affirm the judgment of the single justice denying
extraordinary relief in these circumstances.

     1. As to the commission's decisions not to proceed on
Smallwood's complaints, the single justice succinctly and
correctly ruled that, just as there is no private right of
action to obtain discipline of an attorney, see Matter of a
Request for an Investigation of an Attorney, 449 Mass. 1013,
1014 (2007), or of a court clerk, see Gorbatova v. First Ass't
Clerk of the Supreme Judicial Court for the County of Suffolk,
463 Mass. 1019, 1020 (2012), there is no private right of action
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to obtain discipline of a judge. The reasoning in those cases
applies with equal force here: although an individual may file
a complaint with the commission and may be a witness in
commission proceedings, he or she is not a party in the
commission proceeding, and nothing in the commission's rules or
elsewhere in our law authorizes an appeal (or other judicial
review) by a private individual from any decision of the
commission. Cf. Matter of a Request for an Investigation of an
Attorney, supra, quoting Binns v. Board of Bar Overseers, 369
Mass. 975, 976 (1976); Gorbatova v. First Ass't Clerk of the
Supreme Judicial Court for the County of Suffolk, supra.

     2. As to Smallwood's request for review of the entire
record of the Superior Court proceedings, the single justice was
well within his discretion in declining to exercise the court's
superintendence power. "Relief pursuant to G. L. c. 211, § 3,
is extraordinary. . . . A petitioner seeking relief under the
statute 'must "demonstrate both a substantial claim of violation
of [his] substantive rights and error that cannot be remedied
under the ordinary review process."' McGuinness v.
Commonwealth, 420 Mass. 495, 497 (1995), quoting Planned
Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass.
701, 706 (1990)." Black v. Commonwealth, 459 Mass. 1003, 1003
(2011). Our superintendence power is not "a substitute for the
normal appellate process or . . . an additional layer of
appellate review after the normal process has run its course,"
Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001 (2005),
nor should it be used to revive appellate remedies that the
petitioner has failed to pursue. See Foley v. Lowell Div. of
the Dist. Court Dep't, 398 Mass. 800, 802 (1986) ("Where a
petitioner can raise his claim in the normal course of trial and
appeal, relief will be denied"). Here, all of Smallwood's
claims of error in the Superior Court proceedings could have
been raised in the ordinary appellate process.1 The single
justice therefore did not err or abuse his discretion in
dismissing his petition under c. 211, § 3.

                                   Judgment affirmed.

    1
       The Superior Court docket indicates that Smallwood has
filed notices of appeal at various times. It is unclear whether
he took the necessary additional steps pursuant to Mass. R. A.
P. 9, as amended, 417 Mass. 1601 (1994), and Mass. R. A. P. 10,
as amended, 430 Mass. 1605 (1999), to perfect the appeal. The
Superior Court docket further indicates that there was a motion
to dismiss Smallwood's appeal for lack of prosecution and that
the motion was allowed.
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Njoroge Kamau for Dewoe W. Smallwood.
