COMMONWEALTH vs. CLERK OF THE BOSTON DIVISION OF THE JUVENILE COURT DEPARTMENT [Note 1]

ABRAMS, J. Pursuant to G. L. c. 211, s. 3, the Commonwealth appeals from a single justice's denial of its request for an order requiring the first assistant clerk-magistrate (magistrate) of the Boston Juvenile Court to either grant or deny its request for criminal process to issue against a juvenile under G. L. c. 218, s. 35A. The magistrate had declined to grant or deny the request but had held the application "open" in contemplation of dismissal. The magistrate also had ordered the juvenile to comply with certain conditions during the time period that the application was kept pending. On appeal the Commonwealth asserts that the magistrate effed in failing either to grant or deny its application for criminal complaints. The Commonwealth argues that the magistrate lacks authority to simply hold its application open conditionally. We agree. We vacate the judgment of the single justice denying the Commonwealth's request for relief [Note 2].

We set forth the facts. On April 17, 1998, Greg Margolin, his son, and two other young men were walking to a temple in the Brighton section of Boston for services. They were dressed in formal attire for services, including yarmulkes (skull caps). An automobile with four white males slowly drove by Margolin

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and the young men. The driver shouted obscenities at Margolin and his companions. The men in the car also made obscene gestures toward Margolin and his companions. Another male in the automobile tossed a lit cigarette at two of the young men. The automobile drove on, abruptly turned around, and again approached Margolin and the young men. The driver pulled the automobile into the lane next to the sidewalk and again shouted obscenities. When Margolin looked toward the automobile, the driver shouted, "What are you looking at?" When Margolin did not respond, the driver exclaimed, "I'm talking to you!" The automobile then drove away.

Margolin and the young men immediately walked to a nearby Boston police station and reported this incident. Margolin recited the registration number of the automobile. A police investigation followed. That investigation included an interview with the juvenile. The juvenile admitted that he and his companions "said something" to Margolin and the young men. Thereafter, Detective John Maloof of the Boston police department sought, on behalf of the victims, four counts of "violation of civil rights," G. L. c. 265, s. 37 (a misdemeanor). At the show cause hearing conducted by the magistrate of the Boston Juvenile Court (BJC), the juvenile admitted he was the driver of the automobile.

At the conclusion of the hearing, the magistrate informed the parties that he would neither grant nor deny the application for issuance of process against the juvenile. Instead, he indicated that the application would remain "open" until December 31, 1999. The magistrate informed the juvenile that any further incidents would result in the issuance of process. In the interim, the magistrate ordered the juvenile to (i) write letters of apology to Margolin and each of the young men, to be conveyed through Detective Maloof, (ii) stay away from Margolin and the young men, (iii) successfully complete a diversity awareness program, and (iv) furnish the names of the other passengers in the vehicle at the time of the incident. The magistrate also "ordered" the police department to provide him with status reports on the juvenile's compliance with these conditions [Note 3].

After learning of the magistrate's decision, Margolin told

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Detective Maloof that he wished to appeal, but the magistrate replied that, because the application remained "open," there was no avenue of appeal available. Subsequently, Detective Maloof and Sergeant Detective Robert Albano, accompanied by an assistant district attorney, appeared before the magistrate, seeking reconsideration of his earlier decision, and a "final determination." They requested the magistrate either to grant or deny the request for the issuance of process. If the magistrate did not do so, the. assistant district attorney said that his office would seek leave to appeal. The magistrate affirmed his previous decision, but agreed to consult with his supervisor, the magistrate of the BJC on the matter. After doing so, the supervising magistrate reportedly spoke with a judge in the Suffolk County Juvenile Court, who agreed that a new hearing could be arranged.

No hearing was held, however, and no further action was taken by the magistrate with respect to the application. The district attorney's office filed a petition with a single justice seeking relief pursuant to G. L. c. 211, s. 3. The single justice denied the petition. The Commonwealth appeals. We vacate the denial.

1. Relief pursuant to G. L. c. 211, s. 3. The juvenile asserts that the Commonwealth improperly invoked G. L. c. 211, s. 3. We do not agree. The Commonwealth did not have an adequate appellate remedy and relief pursuant to G. L. c. 211, s. 3, was appropriate.

The Commonwealth acknowledges that a magistrate has the power, pursuant to G. L. c. 218, s. 35A [Note 4], to grant or deny the issuance of process with respect to criminal complaints, including those sought against this juvenile. The Commonwealth asserts

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the magistrate lacked authority to keep its application for criminal process "open."

Our power of "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided" is "extraordinary" and will only be exercised in "the most exceptional circumstances" (emphasis added). McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995), quoting Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990). Further, a party seeking review under G. L. c. 211, s. 3, must demonstrate both a substantial claim that a violation of the party's substantive rights occurred below, and that this error cannot be corrected through the ordinary appellate process. Planned Parenthood League of Mass., Inc. v. Operation Rescue, supra, quoting Dunbrack v. Commonwealth, 398 Mass. 502, 504 (1986).

The juvenile accepts the contention that G. L. c. 218, s.s. 35 and 35A, do not provide a right of appeal to an unsuccessful applicant. Relying on our decision in Bradford v. Knights, 427 Mass. 748, 751 (1998), the juvenile argues that the Commonwealth has failed to show that any error it has been subjected to cannot be remedied under the ordinary appellate review process. We do not agree. There is no support for the juvenile's argument that the Commonwealth has a "right" under standard 3:21 of the District Court Standards of Judicial Practice: The Complaint Procedures (1975) (District Court complaint standards) to petition a judge of the BJC for a review of the magistrate's decision to hold this matter open. Standard 3:21 does not apply to the BJC [Note 5]. We have, however, said that the judges of the BJC have inherent authority to rehear denials

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of applications for criminal complaints by magistrates of that court. Bradford v. Knights, supra at 748. Here, the Commonwealth sought a reconsideration of the magistrate's decision to defer action on its application. After reconsideration by the magistrate, which still did not result in either the granting or denial of its application, the Commonwealth had no express appellate remedy. Therefore, relief pursuant to G. L. c. 211, s. 3, was properly sought [Note 6].

The juvenile asserts that any disposition of a complaint by a magistrate was a "decision" that could then be appealed under Bradford. But there is nothing in Bradford that would equate a denial of a criminal complaint by a clerk with holding such a complaint "open." The magistrate himself told the adult victim and the police that his ruling was not appealable. We reject the juvenile's argument that the magistrates of the BJC may exercise potentially unbridled discretion by holding complaints "open," without any avenue of appeal for the Commonwealth [Note 7].

We add that the Commonwealth may well be the only party that has standing to challenge the magistrate's actions in the case before us. "[T]he rightful to pursue criminal prosecution '[is] not private but [is] in fact lodged in the Commonwealth as it may proceed to enforce its laws.' " Bradford v. Knights, supra at 751, quoting Whitley v. Commonwealth, 369 Mass. 961, 962 (1975). In the absence of any other appellate remedy, we conclude that the complaint for relief pursuant to G. L. c. 211, s. 3, is properly before us [Note 8].

2. Inherent judicial powers. We turn now to the juvenile's

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argument that the magistrate possesses inherent judicial powers that allow for dispositions such as the one being challenged here. "The Juvenile Courts, like all the courts of the Commonwealth, except the Supreme Judicial Court, are creatures of the Legislature and derive their powers, other than those powers that are inherent in all courts . . . from the Legislature" (citations omitted). School Comm. of Worcester v. Worcester Div. of the Juvenile Court Dep't, 410 Mass. 831, 834 (1991). While we have recognized implied powers as "inherent" in courts when the power in question is needed to allow the court to function, such power should arise by "necessary implication from constitutional or statutory provisions" (emphasis added). Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 664 (1978). When we noted that judicial authority was not limited to adjudication, but extended to certain ancillary functions such as rule-making and judicial administration, none of the examples we provided suggested that the principle is analogous to the broad authority now claimed by the magistrate. See id., discussing O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 510 (1972).

The magistrate's inherent power is not sufficient to justify the action taken here. "[O]ur decisions uniformly uphold a prosecutor's wide discretion in deciding whether to prosecute a particular defendant," and that such prosecutorial discretion is "exclusive to the executive branch." Commonwealth v. Taylor, 428 Mass. 623, 629 (1999). See Commonwealth v. Gordon, 410 Mass. 498, 500 (1991). Further, "[a] court is not a prosecuting officer . . . . Its office is judicial - to hear and determine between the Commonwealth and the defendant." Gordon, supra, quoting Commonwealth v. Hart, 149 Mass. 7, 8 (1889). "The district attorney is the people's elected advocate for a broad spectrum of societal interests - from ensuring that criminals are punished for wrongdoing, to allocating limited resources to maximize public protection." Id. at 500 [Note 9]. Judges

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and magistrates may not silence the voice of the people's elected prosecutors by simply delaying action on the prosecutor's application for process.

3. Continuance. Both the juvenile and the Commonwealth characterize the magistrate's disposition in this matter as a continuance, rather than an entry of a final judgment. While it is well settled that the granting of continuances for criminal defendants is within the discretion of a trial judge, such discretion is 'nevertheless explicitly bounded by law. See Commonwealth v. Taylor, supra at 626-628. In the Taylor case, supra at 629, we said that a judge may not dismiss a case before trial over-a district attorney's objection without following the carefully structured standards of procedure established by this court in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971) [Note 10]. Brandano had two functions. It provided the Commonwealth with an appeal prior to the promulgation of Mass. R. Crim. P. 13, 378 Mass. 871 (1979), and the Brandano procedures were "aimed at avoiding any art. 30 [of the Massachusetts Declaration of Rights] tensions between the powers of the judiciary and the powers of the executive branch." Commonwealth v. Norrell, 423 Mass. 725, 729 (1996). We carefully cabined the discretion of trial judges to avoid interbranch conflicts. The limited authority granted judges in Brandano does not apply to magistrates.

4. Statute. The juvenile argues that the term "may" in the statute, see note 4, supra, represents a grant of almost unlimited discretion, conceding only that the magistrate exceeded his authority in giving direction to officers of the Boston police department as part of the disposition. See note 3, supra. The Commonwealth, by contrast, interpreted the term "may" as allowing "informally crafted dispositions," but of the type

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prescribed by the District Court complaint standards [Note 11]. The commentary accompanying standard 3:00 notes that "[t]he General Laws make it clear by their brevity that the complaint procedure exists mainly to facilitate the determination of probable cause. See G. L. c. 276, s. 22." There is no merit to the broad interpretation advanced by the juvenile. The statute in no way supports the unbridled discretion of the magistrate. If process does not issue after the hearing because the magistrate concludes that no probable cause has been shown, that determination should be appealable by the Commonwealth.

The juvenile also rests his broad interpretation of the magistrate's authority on our decision in Commonwealth v. Norrell, supra at 729-730: "The pretrial stage is the appropriate time for negotiation and agreement on any disposition that

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avoids trial." The Norrell case, however, does not support the juvenile's argument; it stands for the proposition that a District Court judge lacks the authority to continue a criminal case without a finding over the Commonwealth's objection after a bench trial. Id. at 726-730. Ironically, the authority for imposing a continuance without a finding after a bench trial in Norrell was found to derive from the Standards of Judicial Practice, Sentencing and Other Dispositions of the District Court Department of the Trial Court (Sept. 1984), and we observed in Norrell that the standard is "not intended to create a new form of criminal disposition that can be utilized beyond the boundaries of existing rules and statutes" (emphasis added). Id. at 729. Courts cannot create standards for authorizing certain dispositions that exceed the bounds of existing rules and statutes.

We acknowledge that clerks and magistrates often use the hearing that G. L. c. 218, s. 35A, requires "as an occasion to effect an informal settlement of grievances, and if that happens regularly it is reason enough for the procedure." Bradford, supra at 751, citing Snyder, Crime and Community Mediation The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis. L. Rev. 737, 746-747. But a desirable outcome is not a reason to say that the procedure may be unconstrained by existing statutes, cases, and rules, and not subject to review.

The Commonwealth correctly observes that whether informal settlement is a positive good depends not on the number of criminal cases "screened out [Note 12]" of the system, but on the manner in which those cases are resolved. The juvenile expresses the concern that, if magistrates are no longer permitted informally to resolve cases, the result will be an enormous increase in the number of annual prosecutions [Note 13].

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We are confident that the valuable, albeit informal, screening function performed by magistrates will continue to be welcomed and encouraged by the Commonwealth, to the extent that it does not directly interfere with prosecutorial discretion.

In sum, we conclude that a magistrate does not have the authority to hold a complaint "open" over the objection of the Commonwealth or complainant. The decision of the single justice denying the Commonwealth's G. L. c. 211, s. 3, petition is therefore vacated. The matter is remanded to the Supreme Judicial Court for the county of Suffolk for entry of an appropriate form of judgment in favor of the Commonwealth and for remand to the Boston Juvenile Court for action consistent with this opinion.

So ordered.