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SJC-11611

            FREIDRICH LU   vs.   CITY OF BOSTON & others. 1

                           July 17, 2014.

Supreme Judicial Court, Superintendence of inferior courts.
     Declaratory Relief. Practice, Civil, Pendency of prior
     action.

     The plaintiff, Freidrich Lu, filed a complaint in the
county court pursuant to G. L. c. 231A, § 1, essentially seeking
a judgment declaring that the Trustees of the Boston Public
Library (trustees) are not a subsidiary corporation, division or
unit of the city of Boston (city), that the trustees and the
city "are two separate, independent legal entities," and that
members of the city of Boston Law Department (law department)
may not provide legal representation to the trustees or library
employees. A single justice of this court denied Lu's motion
for summary judgment, dismissed the complaint, and denied
postjudgment relief. Lu appeals. We affirm.

     Background. This declaratory judgment action has its
genesis in a civil rights action that Lu commenced in the United
States District Court for the District of Massachusetts against
the defendant trustees and a library employee, defendant George

     1
       Thomas M. Menino, individually and in his capacity as the
city's mayor; William F. Sinnott, individually and in his
capacity as the city's corporation counsel; Caroline Driscoll,
individually and in her capacity as the city's assistant
corporation counsel; Trustees of the Boston Public Library; and
George Hulme, individually and in his capacity as security
director of the library. The Boston Public Health Commission;
Local 1526, American Federation of State, County, and Municipal
Employees; Boston Public Library Professional Staff Association;
and the Department of Labor Relations also were named as
defendants, but did not appear.
Hulme. In general, Lu alleged that, in violation of his civil
rights, he was denied entrance to the Boston Public Library. A
judge of that court denied Lu's motion seeking disqualification
of the law department as counsel for the trustees and Hulme, and
concluded that "[t]he [t]rustees constitute a municipal entity
that oversees the Library as a department of the [c]ity of
Boston," and that the law department may represent the trustees
and Hulme. Lu then commenced this action in the county court,
seeking a contrary determination.

     Discussion. The complaint in this case essentially deals
with the same controversy that exists between the parties in the
Federal litigation. As such, it does not present a proper
occasion for declaratory relief. Jacoby v. Babcock Artificial
Kidney Ctr., Inc., 364 Mass. 561, 562 (1974). The single
justice correctly concluded that:

          "For all practical purposes, the only 'actual
     controversy' the plaintiff claims is his challenge to the
     [Federal] judge's denial of his motion to disqualify
     counsel, which he seeks to undermine by obtaining a
     contrary legal determination from this court regarding the
     relationship between the [t]rustees and the [c]ity of
     Boston. This is not an appropriate ground to bring a
     declaratory judgment claim. If the plaintiff wishes to
     appeal [the Federal District Court judge's] denial of his
     motion to disqualify counsel, he must do so within the
     Federal appellate process; he may not, in essence, appeal
     that decision through a declaratory judgment action in this
     court. In short, an appeal from an interlocutory order in
     a Federal court is not an appropriate 'controversy' that
     may be resolved by a declaratory judgment in this court."

Not only is an action seeking declaratory relief not a
substitute for an appeal, Jacoby v. Babcock Artificial Kidney
Ctr., Inc., supra at 564, but where other proceedings are
pending, there "is an ordinary presumption against such relief."
Norcisa v. Selectmen of Provincetown, 368 Mass. 161, 172 (1975),
quoting Jacoby v. Babcock Artificial Kidney Ctr., Inc., supra at
563. In short, "[t]he declaratory relief procedure was not
intended to permit the same claim to be adjudicated in multiple
suits." Id. See G. L. c. 231A, § 3 (declaratory relief
appropriately denied when declaratory judgment "would not
terminate the uncertainty or controversy giving rise to the
proceedings or for other sufficient reasons"). A declaratory
judgment action cannot be used as a "short cut appeal
circumventing" procedures regulating the review of an
interlocutory order denying a motion to disqualify counsel.
Jacoby v. Babcock Artificial Kidney Ctr., Inc., supra at 565
n.2. 2

     The single justice properly declined to exercise
jurisdiction under G. L. c. 231A to make declaration as to a
matter involved in a prior pending matter in the Federal court. 3

                                        Judgment affirmed.

     Friedrich Lu, pro se.
     David Waterfall, Assistant Corporation Counsel, for the
defendants.




     2
       The situation would be different if the Federal court
judge had not decided the State law issue on the motion for
disqualification, and had left it to be decided by the State
courts. Libertarian Ass'n of Mass. v. Secretary of the
Commonwealth, 462 Mass. 538 (2012); England v. Louisiana State
Bd. of Med. Examiners, 375 U.S. 411 (1964). However, the
Federal judge decided the State law issue in this case, which he
undoubtedly had the authority to do. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 349 (1988) ("[F]ederal courts [have power]
to decide [S]tate-law claims in cases that also present
[F]ederal questions").
     3
       We decline to address issues or arguments raised on appeal
that were not presented to the single justice.
