Preview:

COMMONWEALTH vs. Scott D. DRURY
COMMONWEALTH vs. Scott D. DRURY.
No. 10-P-498.
March 3, 2011. - July 26, 2011.
Appeals Court, Jurisdiction. District Court, Appellate Division, Jurisdiction. Practice, Civil, Appeal, Choice of forum,
Notice of appeal.
COMPLAINT received and sworn to in the Winchendon Division of the District Court Department on July 2, 2008.
The case was heard by Patrick A. Fox, J., and a motion to assemble the record, filed on August 18, 2009, was also
heard by him.
An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the case was transferred by her to the Appeals Court.
Scott D. Drury, pro se.
Stephen J. Carley, Assistant District Attorney, for the Commonwealth.
Present: Kafker, Vuono, & Rubin, JJ.
KAFKER, J.
The primary issue presented is the appropriate appellate forum to review a District Court case that was converted from
a criminal complaint to a civil infraction pursuant to G.L. c. 277, § 70C. This appeal is before us after the entry of an
order by a single justice of the Supreme Judicial Court for Suffolk County on the defendant's petition, essentially
brought pursuant to G.L. c. 211, § 3, in which he sought relief from the denial of his motion to assemble the record for
appeal in District Court. The single justice directed that the order denying that motion be vacated and that the record be
assembled. The single justice identified two issues to be decided by this court: "(1) whether a party may appeal to the
Appeals Court from a judgment in a case that has been converted under G.L. c. 277, § 70C; and (2) if so, whether [the
defendant] filed his notice of appeal late."
We conclude that an appeal from a case that has been converted under G.L. c. 277, § 70C, must be taken first to the
Appellate Division of the District Court, not directly to the Appeals Court, and that the appeal in the instant case to the
Appellate Division was timely and should have been addressed on its merits.
Procedural facts. The relevant procedural facts underlying the appeal are as follows. The defendant was charged in the
Winchendon Division of the District Court Department in two criminal complaints. One complaint alleged that he set a
fire in the open air in violation of G.L. c. 48, § 13; the second complaint alleged (in eleven counts) that he stored
eleven unregistered motor vehicles on his property in violation of art. XI of the municipal by-laws of the town of
Templeton. On the Commonwealth's motion, both complaints were converted to civil infractions pursuant to G.L. c.
277, § 70C.
On January 13, 2009, after a trial, the judge found the defendant responsible on each complaint (and on all counts). The
defendant was assessed twenty dollars for each instance of keeping an unregistered motor vehicle on private property.
On the infraction of unauthorized setting of an open fire, the judge ordered the defendant to pay for the costs of
suppression of the fire, setting the date of March 10, 2009, for a hearing to determine those costs. The defendant, who
has represented himself throughout the proceedings, filed a notice of appeal in the District Court on January 20, 2009.
[FN1] Six days later, on January 26, 2009, the defendant filed an appeal from each complaint in the Appellate
Division. [FN2] The next day the District Court judge issued findings in a written memorandum of decision dated
file:///C|/Users/Peter/Desktop/opinions/2011-07-26-commonwealth-vs-scott-d-drury.html[6/21/2013 10:41:46 AM]




January 27, 2009.
On February 10, 2009, the Appellate Division of the District Court Department (Appellate Division) entered the
defendant's appeal and on March 4, 2009, dismissed it "for lack of subject matter jurisdiction." On March 13, 2009, the
defendant appealed from the dismissal, filing a notice of appeal in the Winchendon District Court that contained the
docket numbers corresponding to the two original complaints.
On April 28, 2009, a hearing was held to determine the amount of the costs incurred in connection with the fire
suppression. In accordance with G.L. c. 48, § 13, the judge imposed a civil assessment of $2,429.08. On May 5, the
defendant filed a notice of appeal from the April 28, 2009, rulings. Between April 28, 2009, and August 19, 2009, the
defendant unsuccessfully sought various kinds of relief in the trial court including, on August 18, 2009, filing a motion
to assemble the record, which the trial judge denied, reasoning that "an appeal from a decision regarding a civil
infraction adjudicated under [G.L. c. 277,] § 70C, is not permitted or authorized by law ..., [and the defendant's] notice
of appeal was not [timely] filed." The defendant filed a notice of appeal from that order on August 26, 2009, and
petitioned for relief to a single justice of the Supreme Judicial Court on September 24, 2009. We address the two
questions identified by the single justice.
Discussion. 1. Appeal from a judgment in a case that has been converted pursuant to G.L. c. 277, § 70C. General Laws
c. 277, § 70C, as appearing in St.2005, c. 54, § 3, provides: "Upon oral motion by the commonwealth or the defendant
... or upon the court's own motion at any time, the court may, unless the commonwealth objects, ... treat a violation of a
municipal ordinance, or by-law or a misdemeanor offense as a civil infraction." The appellate process for cases
converted to civil infractions is not set out in c. 277, § 70C. We therefore turn next to the statutes delineating the
jurisdiction of the Appeals Court and the Appellate Division to determine which court, if either, has appellate
jurisdiction over such a converted case. [FN3]
The jurisdiction of the Appeals Court is statutorily defined by G.L. c. 211A, § 10, which provides for appellate review
of determinations made in the District Court for the criminal session and decisions from the Appellate Division of the
District Court. Here, although the two complaints originated in the criminal session, when the judge converted the
offenses pursuant to c. 277, § 70C, to civil infractions, the proceedings were no longer criminal, but became civil. On
its face, c. 211A does not therefore confer jurisdiction on the Appeals Court for cases converted under c. 277, § 70C.
[FN4]
The jurisdiction of the Appellate Division is also statutorily defined. See generally G.L. c. 231, §§ 108-110. The
pertinent portion of G.L. c. 231, § 108, as appearing in St.2004, c. 252, § 15, states that "[t]here shall be an appellate
division of each district court for the rehearing of matters of law arising in [1] civil cases, [2] in claims of
compensation of victims of violent crimes, and [3] in civil motor vehicle infractions." The issue then is whether the
civil infractions for open air burning and the storage of unregistered motor vehicles in violation of municipal by-laws
fit within the statutory definition.
The statute defining the Appellate Division's jurisdiction does not refer to all civil cases but rather to "matters of law"
arising in civil cases. [FN5] The District/Municipal Courts Rules for Appellate Division Appeal expressly reference
tort, contract, and statutory actions seeking money damages. See Rule 1(c) of the Dist./Mun. Cts. Rules for Appellate
Division Appeal (1994). A general grant of equity jurisdiction is not provided to the Appellate Division. [FN6] See c.
277, § 70C (referring to "matters of law"); Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983). See also
Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 12.2 at 357 (4th ed.2009).
Consequently, appeals of zoning decisions made pursuant to G.L. c. 40A, § 17, and abuse prevention orders have been
excluded. The Supreme Judicial Court has concluded that, "in the absence of some other statutory direction," these
equitable matters would fall within the jurisdiction of the Appeals Court. Department of Rev. v. Jarvenpaa, 404 Mass.
177, 181 (1989). The court reasoned that it would be appropriate to direct appeals from zoning and abuse prevention
cases to the court that "normally has jurisdiction to hear appeals of equity cases. That court is the Appeals Court and
not the Appellate Division...." Walker v. Board of Appeals of Harwich, supra at 49. The Supreme Judicial Court also
relied on the "practical" value of uniformity of review of equity cases that can initially be brought in a number of
different trial courts. Zullo v. Goguen, 423 Mass. 679, 682 (1996).
file:///C|/Users/Peter/Desktop/opinions/2011-07-26-commonwealth-vs-scott-d-drury.html[6/21/2013 10:41:46 AM]




With these distinctions in mind, we conclude that the statutes conferring appellate jurisdiction on the Appeals Court
and the Appellate Division, although not without ambiguity, direct review of judgments arising under c. 277, § 70C, to
the Appellate Division. We reach this conclusion for the following reasons. The cases are then civil, not criminal. They
involve money damages, not equitable relief. [FN7] Additionally, the civil infractions here are not dissimilar from the
civil motor vehicle infractions expressly directed to the Appellate Division. [FN8] Furthermore, this type of converted
case is peculiar to the District Court. We are not addressing civil actions involving equitable considerations that might
have been originally brought in courts other than the District Court, and in which there are "practical considerations for
having all appeals go the same court." Compare Department of Rev. v. Jarvenpaa, 404 Mass. at 181; Zullo v. Goguen,
423 Mass. at 682.
In sum, we conclude that the Appellate Division, and not the Appeals Court, has jurisdiction over appeals of cases
after conversion pursuant to G.L. c. 277, § 70C. [FN9]
2. Timeliness of notice of appeal. Having concluded that the defendant has a right of appeal to the Appellate Division,
we turn to the question whether the notice of appeal was timely filed. The notice of appeal to the Appellate Division
must be filed within ten days after the date of the entry of judgment. Rule 4(a) of Dist./Mun. Cts. Rules for Appellate
Division Appeal (1994). [FN10] Here, the judgment was entered on January 13, 2009, and the defendant's first notice
of appeal was filed on January 20, 2009, seven days later. This notice was supplemented with two additional notices on
January 26, 2009, and also a notice of appeal filed on May 5, 2009, after the trial judge imposed the assessment for the
costs of fire suppression.
When the Appellate Division dismissed the appeal on March 4, 2009, the defendant filed another notice of appeal on
March 13, 2009, that contained the correct docket numbers and was filed in the appropriate court. This notice was filed
in the appropriate court within the thirty-day time period set forth in G.L. c. 231, § 109, for appeals from a decision of
the Appellate Division. It gave sufficient notice that the defendant was appealing from the Appellate Division order of
dismissal.
Although the record here is, as the single justice stated, "extensive and difficult to sort out," reflecting the busy docket
of the District Court and some confusion resulting from pro se litigation, our review of the record leads to the
conclusion that the defendant here adequately preserved his appellate rights through the numerous notices of appeal
that he filed at every stage of the proceedings.
Conclusion. We hold that the Appellate Division is the appropriate forum to consider this appeal in the first instance.
Therefore, we vacate the order dismissing the appeal and remand the case to the Appellate Division for consideration
of the merits of the defendant's appeal.
So ordered.
FN1. This notice of appeal does not appear in either District Court docket, but is date-stamped, referenced, and
included in both parties' appendices.
FN2. The appeals were written on identical forms entitled "Civil Motor Vehicle Infraction Appellate Division," and on
the forms the defendant set forth his claim of error and his request for appellate review. Where the phrase "motor
vehicle" appeared in the forms' title and preprinted contents, it was crossed out by hand. The defendant's notice of
appeal filed six days earlier was attached to both forms as "Attachment 1".
FN3. General Laws, c. 249, § 4, provides for certiorari review in the Supreme Judicial Court or Superior Court for
"proceedings [which] are not otherwise reviewable by motion or by appeal." Ibid., as appearing in St.1973, c. 1114, §
289. As we conclude that the Appellate Division has jurisdiction to hear the defendant's appeal, a certiorari action is
not available.
FN4. We note nonetheless that the Appeals Court has also been found to have jurisdiction over certain equity matters
in District Court. This is discussed further, infra.
file:///C|/Users/Peter/Desktop/opinions/2011-07-26-commonwealth-vs-scott-d-drury.html[6/21/2013 10:41:46 AM]




FN5. In contrast, G.L. c. 218, § 19, as appearing in St.2004, c. 252, § 5, provides the District Court with "original
jurisdiction of civil actions for money damages."
FN6. The Appellate Division's jurisdiction does, however, include final equitable orders issued in tort and contract
cases. Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 12.1 at 355 (4th ed.2009).
FN7. The municipal by-laws at issue are not zoning by-laws.
FN8. The infractions here relate to the storage of unused motor vehicles, not the type of motor vehicle infractions that
appear covered by the express reference to civil motor vehicle infractions in G.L. c. 231, § 108.
FN9. We note that there has been some uncertainty at the Appellate Division whether it has jurisdiction over c. 277, §
70C, cases. Compare Gardner Police Dept. v. Drury, 77 Mass.App.Ct. 1113 (2010), in which it was noted that the
Appellate Division determined that it had no jurisdiction, with the Appellate Division's decision in Commonwealth v.
Franck, 1998 Mass.App. Div. 125 (1998), a case in which the Appellate Division decided an appeal from a proceeding
in which two criminal offenses had been converted to civil infractions pursuant to G.L. c. 277, § 70C. In Franck, the
Appellate Division discussed the merits of the appeal, including ruling on the constitutionality of G.L. c. 277, § 70C,
with respect to a vagueness claim.
We also recognize previous determinations of this court have not conclusively resolved the jurisdiction issue. See, e.g.,
Gardner Police Dept. v. Drury, supra; Commonwealth vs. Rothman, no. 09-P-356 (order dismissing appeal).
FN10. The rule also requires the payment of a fee. No issue is raised on appeal relating to whether this payment was
made.
file:///C|/Users/Peter/Desktop/opinions/2011-07-26-commonwealth-vs-scott-d-drury.html[6/21/2013 10:41:46 AM]

Download 2011-07-26-commonwealth-vs-scott-d-drury.pdf

Massachusetts Law