COMMONWEALTH v. CURTIN, 386 Mass. 587 (1982)

436 N.E.2d 1200

Supreme Judicial Court of Massachusetts. Plymouth.March 4, 1982.
June 23, 1982.

Present: HENNESSEY, C.J., ABRAMS, NOLAN, O’CONNOR, JJ.

Practice, Criminal, Insurance of process, Traffic violation. Motor Vehicle, Citation for violation of motor vehicle law. Statute, Contribution. Words, “Normal appellate review.”

With respect at a case involving a minor traffic violation in which there was a hearing before a clerk-magistrate in a district Court followed by a hearing de novo before a judge, the words “normal appellate review,” as appearing in G.L.c. 90, § 20F, sixth par., prescribe a de novo trial in the jury session of a District Court as the next procedural step. [589-592]

TRAFFIC CITATIONS issued on February 27, 1981.

The cases were heard in the Second Plymouth division of the district Court Department by Tamkin, J.

After review was sought in the Appeals Court, the Supreme Judicial Court ordered direct appellate review on its own initiative.

Mark A. Bachelor, pro se.

Patricia A. Curtin, pro se.

Robert s. Sinsheimer, Assistant district Attorney, for the Commonwealth.

Francis X. Bellotti, Attorney General, Stephen R. Delinsky, Barbara A.H. Smith Paula J. DeGiacomo, Assistant Attorneys General, for the Commonwealth, amicus curiae, submitted a brief.

ABRAMS, J.

We are asked to determine the meaning of the words “normal appellate review” in cases involving

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minor traffic violation where, as here, there were hearings before a clerk-magistrate of a District Court, and a de novo hearing before a judge. G.L.c. 90, § 20F, sixth par.,[2]
inserted by St. 1978, c. 478, § 41. We left this question open i Commonwealth v. Germano, 379 Mass. 268, 276 n. 11 (1979). for the reason stated in this opinion, we conclude that “normal appellate review” refers to a de novo trial in the “jury-of-six session.” See G.L.c. 278, § 18; G.L.c. 218, §§ 26A, 27A Commonwealth v. Germano, supra at 271.

Patricia A. Curtin was issued a traffic citation for failing top stop sign, in violation of G.L.c. 89, § 9. Mark A. Bachelor was issued a traffic citation for spending, in violation of G.L.c. 90, § 17. Both defendants appeared before a clerk-magistrate of a District Court pursuant to Administrative Regulation 4-78 of the District Court Department of the Trial court (AR 4-78).[3] After a hearing before the magistrate, they were found “reasonable” and fined. Both defendants appealed to a judge of the District Court, who heard the matters do novo. The judge upheld the magistrate’s findings and dispositions. Both defendants appellate[4]

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Their cases were entered in the Appeals Court. We transferred the cases to this court on our own motion. We now remand the cases to the District Court.

We turn to G.L.c. 90, § 20F, to ascertain its meaning. The statute, in certain aspects, lacks precision and verbal consistency. The ambiguity concerning the type of hearing contemplated by G.L.c. 90, § 20F, may be “explained as the type of `gap’ we have previously found to be virtually inevitable in any piece of legislation as complex as the court reorganization plan.” Commonwealth v. Germano, 379 Mass. 268, 273 (1979). See Mailhot v. Travelers Ins. Co., 375 Mass. 342, 345
(1978). “As practice develops, and the difficulties are revealed, the courts [must] . . . interweave the statute with decisions answering the difficulties and composing, as far as feasible and reasonable, an harmonious structure faithful to the basic designs and purposes of the Legislate.” Id. See Massachusetts Comm’n Against discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976).

The express language of G.L.c. 90, § 20F, provides only two procedures by which an alleged offender may secure a noncriminal disposition of the charges against him. A alleged offender may either “appear before a magistrate of the appropriate district court and confess the offense charged . . . or may mail to such magistrate . . . the maximum statutory fine provided therein.” the statute does not provide for a hearing if an offender elects a noncriminal disposition,[5] and we believe that no hearing was contemplated by the Legislature unless the offender elects a criminal proceeding.[6] See Commonwealth v. Germano, supra
at 270.

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If an alleged offender desires not to avail himself of the noncriminal procedure established by § 20F, “the clerk shall as soon as may be notify the officer concerned, who shall forthwith make a complaint and follows the procedure established for criminal cases.” We believe that “the procedure established for criminal cases” refers to a preliminary hearing before a clerk-magistrate in which the alleged offender is to “be given an opportunity to be heard personally or by counsel in opposition to the issuance of any process based on such complaint.” G.L.c. 218, § 35A. See Commonwealth v. Wade, 372 Mass. 91, 94 (1977). this is consistent with G.L.c. 90C, § 1, which requires traffic citations to “have printed thereon a statement that the person cited therein shall, if he so requests in writing to the appropriate court within four days of the alleged violation, be granted a hearing on said violation before any process shall issue, as provided in section thirty-five A of chapter two hundred and eighteen.”

As we read G.L.c. 90, § 20F, after a person receives a traffic citation,[7] that person may elect to contest the issuance of the citation at a preliminary hearing before a clerk-magistrate of a District Court. If the alleged offender so elects, the alleged offender must request the preliminary hearing within four days of receipt of the citation. See G.L.c. 90C, § 1 Commonwealth v. Wade, 372 Mass. 91, 93 n. 3 (1977). At the preliminary hearing the clerk-magistrate determines whether process hall issue. See G.L.c. 218, § 35A. Either party may appeal the action of the clerk-magistrate to a judge of a District Court.[8] See note 2, supra. If the judge decides that process hall issue, then there is a de novo hearing on the merits of the complaint before

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another judge. If the alleged offender is convicted, “normal appellate review” is to a de novo trial in a “jury-of-six session,” “the procedure applicable to misdemeanor prosecutions is general.” Commonwealth v. Germano, supra at 270, 275. See G.L.c. 278, § 18; G.L.c. 218, § 26A.

The Commonwealth suggests that “normal appellate review” as contemplated by G.L.c. 90, § 20F, and AR 4-78, is in the nature of certiorari in the Superior Court or in the Supreme Judicial Court, solely to correct errors of law. See G.L.c. 249, § 4. However, “[i]n an action in the nature of certiorari . . . [the court] will correct only `substantial errors of law apparent on the record adversely affecting material rights.'” Commissioner of Revenue v. Lawrence, 379 Mass. 205, 208 (1979), quotin Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 90 (1975). since the only contested issued in most traffic cases are issues of fact, the appellate remedies suggested by the Commonwealth would be illusory. We will not attribute to the Legislature an intent at give citizens a meaningless appeal.[9]

Unless the alleged offender elects a noncriminal disposition, traffic violations follows the procedure for misdemeanors generally. The words of the stature do not support a conclusion that the Legislature intended to make radical changes in traffic violations cases. The stature indicates that the major change which the legislature set out to achieve was the availability of a noncriminal disposition for minor infractions. That result is clearly stated. The statute does

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not clearly make any a other change in the criminal process concerning minor motor vehicle violations. “it is not to be lightly supposed that radical changes in the law were intended where not pliantly expressed.’ Commonwealth v. Germano, supra
at 273, quoting Ferullo’s Case, 331 Mass. 635, 637 (1954).

The cases are remanded for proceedings in the Hingham district Court.

So ordered.

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