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SJC-12062

    IN THE MATTER OF AN APPLICATION FOR A CRIMINAL COMPLAINT.


                            May 25, 2017.


Supreme Judicial Court, Superintendence of inferior
     courts. Practice, Criminal, Complaint, Standing.    Police
     Officer.


     The petitioner appeals from a judgment of the county court
denying her petition for relief under G. L. c. 211, § 3. We
affirm the judgment.

     The petitioner, who was a Boston police officer, filed an
application for a criminal complaint in the West Roxbury
Division of the Boston Municipal Court (BMC), alleging that the
respondent, her supervisor, committed an assault and battery
against her. The respondent was the commander of the police
station falling within that court's jurisdiction. After a
hearing, a clerk-magistrate denied the application for lack of
probable cause. G. L. c. 218, § 35A. The petitioner moved for
reconsideration and change of venue. The application was
transferred to the Charlestown Division of the BMC for rehearing
by a clerk-magistrate, although it appears that the application
was not docketed until almost one year later. The petitioner
requested that the matter be transferred out of Suffolk County
to Bristol County. That request was denied. The respondent
also requested a new hearing and change of venue on the ground
that he had a business relationship with all the divisions of
the BMC. As a result, the application was transferred to the
Dedham Division of the District Court Department, nearly three
years after the application was transferred to the Charlestown
Division of the BMC. 1 A clerk-magistrate of that court denied

     1
         The nearly three-year delay in the Charlestown Division of
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the application, finding no probable cause. The petitioner then
filed her G. L. c. 211, § 3, petition, seeking both a rehearing
on her application and a broader ruling requiring that
applications for criminal complaints made against police
officers be automatically transferred to a judge outside the
police officer's jurisdiction, rather than being heard by a
clerk-magistrate in the first instance. The single justice
denied relief without a hearing.

     We review the single justice's denial of relief only to
determine whether there was an abuse of discretion or an error
of law. Marides v. Rossi, 446 Mass. 1007, 1007 (2006),
citing Restucci v. Appeals Court, 442 Mass. 1031, 1032 (2004).
The petitioner has not demonstrated any error or abuse of
discretion as to either of her claims.

     First, the single justice properly denied the petitioner's
request for a rehearing of her application for a criminal
complaint. It is well established that "a private citizen lacks
a judicially cognizable interest in the prosecution or
nonprosecution of another." Ellis, petitioner, 460 Mass. 1020,
1020-1021 (2011), quoting Hagen v. Commonwealth, 437 Mass. 374,
380 (2002). For this reason, "we have consistently declined to
review, under the authority given to us by G. L. c. 211, § 3,
refusals to issue complaints." Bradford v. Knights, 427 Mass.
748, 752 (1998), citing Tarabolski v. Williams, 419 Mass. 1001,
1002 (1994). See Victory Distribs., Inc. v. Ayer Div. of the
Dist. Court Dep't, 435 Mass. 136, 141 (2001) ("A private party's
rights with respect to the criminal complaint process are
limited to the filing of an application and court action on that
application"). Where a clerk-magistrate denies a private
party's application for a criminal complaint, the applicant's
recourse is to request rehearing by a judge in the same court.
See Bradford, supra at 752-753 (judges of BMC have inherent
authority to rehear denial of application for criminal
complaint). See also Commonwealth v. DiBennadetto, 436 Mass.
310, 313 (2002) ("by implication," judges of District Court have


the Boston Municipal Court Department is unacceptable. There is
no excuse for this period of delay in any case scheduled for a
clerk-magistrate's hearing. See G. L. c. 218, § 35A. The delay
in this case is particularly troubling. The parties and the
community are not just entitled to a fair and just adjudication
of this matter. The perception of justice must also be
scrupulously protected. Here, it was not. As a result, no
matter how just the result in this case may be, to the
petitioner and perhaps others, justice is tainted by the delay.
                                                                   3


same authority). Here, the petitioner filed her application,
and the BMC, and then the District Court, acted on it. She has
no standing to obtain extraordinary relief in this matter. 2

     Second, the single justice did not abuse her discretion by
denying the petitioner's request for an absolute rule requiring
any complaint against a police officer to be heard by a judge
outside the officer's jurisdiction. The petitioner has not
demonstrated that the existing criminal complaint procedure
raises an issue of systemic concern requiring the exercise of
general superintendence powers. Cf. Bridgeman v. District Att'y
for the Suffolk Dist., 471 Mass. 465, 474-475 (2015), S.C., 476
Mass. 298 (2017) (misconduct of widespread magnitude at drug
laboratory required exercise of superintendent powers for
protection of defendants convicted of drug offenses). The
petitioner argues that, because police officers frequently
appear before clerk-magistrates to apply for search warrants,
arrest warrants, and criminal complaints, and otherwise interact
frequently with clerk-magistrates, there is a close working
relationship between them. This relationship, she argues,
necessarily gives rise to a conflict of interest when the clerk-
magistrate must decide whether to issue a criminal complaint
against a police officer. The petitioner has not substantiated
her claim of systemic bias in favor of police officers.
Moreover, existing procedural safeguards, including rehearing by
a judge, are adequate to ensure fair consideration where the
accused is a police officer. 3 In these circumstances, the
petitioner was not entitled to extraordinary relief.


     2
       It does not appear that the petitioner requested rehearing
by a judge in the Dedham Division of the District Court
Department before filing her G. L. c. 211, § 3, petition. The
respondent suggests that she could still do so. Nothing we say
today is intended to deprive her of the opportunity to request
rehearing by a District Court judge.
     3
       The District Court has written standards urging clerk-
magistrates to give "strong consideration . . . to asking the
Regional Administrative Justice either to transfer the matter to
another division or to assign a magistrate from another
division" where an application is filed against a police officer
employed in the same jurisdiction. Standard 3:02 of the
District Court Standards of Judicial Practice: The Complaint
Procedure (2008). To our knowledge, the BMC does not have
analogous standards. The public might be better served if the
BMC would formalize its practice in written standards.
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                              Judgment affirmed.

Brooks A. Ames for the petitioner.
Douglas I. Louison for the respondent.
