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SJC-11811

   BODHISATTVA SKANDHA vs. CLERK OF THE SUPERIOR COURT FOR
               CIVIL BUSINESS IN SUFFOLK COUNTY.



                           September 29, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Mandamus. Practice, Civil, Action in nature of mandamus,
     Assembly of record. Clerk of Court.


     The   petitioner,   Bodhisattva Skandha, appeals from a
judgment   of a single   justice of this court denying his petitions
pursuant   to G. L. c.   211, § 3, and for relief in the nature of
mandamus   pursuant to   G. L. c. 249, § 5. We affirm.

     Background. The petitions stem from Skandha's effort to
appeal from the dismissal of a complaint in the Superior Court
that he and two other plaintiffs filed, in August, 2010, against
the Committee for Public Counsel Services (CPCS) and several
associated attorneys. The plaintiffs claimed that CPCS and the
attorneys had violated the plaintiffs' due process rights by,
among other things, failing to screen their new trial motions to
determine whether they had any claims that would entitle them to
relief from their respective convictions. A judge in the
Superior Court dismissed the complaint, in May, 2013, and it
appears that Skandha timely filed a notice of appeal.1 The
appeal was dismissed, however, in January, 2014, apparently on



    1
       Although it is not entirely clear from the trial court
docket, we presume, for purposes of the matter currently before
us, that final judgment has entered dismissing Skandha's
complaint as to each of the defendants.
                                                                   2


the basis that Skandha had failed to take the necessary steps to
perfect it.2

     Skandha subsequently timely filed a notice of appeal from
the dismissal of his appeal, as he was entitled to do (in which
he again indicated that there were no transcripts in the matter,
see note 2, supra). He also filed, in March, 2014, a "motion
for the court to order the clerk to provide the pleadings for
the plaintiffs' appeal," and, in June, 2014, a motion in the
Superior Court asking the court "to order the clerk to assemble
the record." Both of these motions were stamped "rejected" on
June 26, 2014, and never docketed. After his efforts to appeal
stalled in the Superior Court, Skandha filed his petitions in
the county court for relief in the nature of mandamus and
pursuant to G. L. c. 211, § 3, asking the single justice to
direct the clerk of the Superior Court to assemble the record
for purposes of his appeal. The petitions were denied without a
hearing.

     Discussion. Skandha has now filed what appears to have
been intended as a memorandum and appendix pursuant to S.J.C.
Rule 2:21, as amended, 434 Mass. 1301 (2001). Technically
speaking, that rule does not apply here because the trial court
rulings at issue -- i.e., the refusal to accept and process his
motions to compel assembly of the record -- were not
interlocutory rulings. Regardless, as explained below, this is
not a situation where extraordinary relief from this court is
required.

     When his motions to compel assembly of the record were
rejected, Skandha had available a variety of other practical and
legal steps he could have pursued before seeking the
intervention of this court. A good roadmap can be found in the
Appeals Court's opinion in Zatsky v. Zatsky, 36 Mass. App. Ct.
7, 12-13 (1994), a case that we have cited with approval many
times. In Zatsky, the Appeals Court said:

         "If an appellant experiences delay in assembly of the
    record, a pragmatic first step is to report the problem to
    the clerk of the Appeals Court, the court with which the

    2
       As best we can discern from the record before us, the
Superior Court dismissed the appeal because, as one of the
defendants argued, Skandha failed to "file a designation of
portions of the trial transcript to be ordered." As Skandha
notes, however, his notice of appeal specifically stated that
"there are no transcripts in this case."
                                                                   3


    appeal would lodge in the first instance. Often a clerk to
    clerk . . . communication may produce the desired
    expedition. The next steps . . . would be a request for
    intervention by the chief judge of the trial court
    concerned, invocation of the superintendency powers of the
    Supreme Judicial Court, and mandamus. A party may also
    bring a motion before a single justice of the Appeals Court
    either to compel a clerk . . . to assemble a record
    promptly or to waive assembly of the record as a
    prerequisite to entering the appeal."

     Of these steps, seeking the intervention of this court
should be the last resort. We routinely have upheld the denial
of extraordinary relief by single justices of this court in
similar circumstances when the litigant has not first pursued
available alternatives. Examples include Santiago v.
Commonwealth, 442 Mass. 1045 (2004); Gaumond v. Commonwealth,
442 Mass. 1015 (2004); and Keane v. Commonwealth, 439 Mass. 1002
(2003). See Matthews v. D'Arcy, 425 Mass. 1021, 1022 (1997).
There is no indication in this record that Skandha took any of
these other steps before seeking extraordinary relief from this
court. The single justice was therefore well within his
discretion in denying the petitions.

     That said, we can see no reason why the clerk in this case
could have refused to accept Skandha's motions. Skandha had the
right to appeal from the dismissal of his original appeal and
the right to seek assembly of a record for that purpose. See
Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673
(2008). It was not for the clerk to refuse to accept his
motions directed toward that end; the clerk's role in these
circumstances was to accept his motions and to submit them to a
judge for action. "Clerks . . . are ministerial officers of the
court when it comes to receiving and filing papers." Gorod v.
Tabachnick, 428 Mass. 1001, 1001 (1998). "If a dispute arises
as to whether the record must be assembled in a given case, the
litigant who seeks to appeal may move for an order compelling
the assembly, and the matter must then be resolved by a
judge. . . . That is a legal determination for a judge to make,
subject to appellate review." Id. at 1001-1002. We trust that
if the motion is refiled now, it will be docketed and promptly
acted on.

     We also are mindful that Skandha has filed numerous cases
in the Superior Court for Suffolk County and that, as a result,
that court issued an order, in October, 2011, that any new case
received by that clerk's office shall be reviewed by the
                                                                   4


regional administrative justice prior to acceptance for filing.
There is no indication on the trial court docket or otherwise in
the record before us that this order applies to the rejected
motions in this case. If this was in fact the clerk's basis for
rejecting Skandha's motions, which we think would be
questionable, it would behoove the clerk, and aid the appellate
courts, if this were so indicated.

                                   Judgment affirmed.

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

    Bodhisattva Skandha, pro se.
