SENATE DOCKET, NO. 1868        FILED ON: 1/20/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1042

The Commonwealth of Massachusetts

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PRESENTED BY:

Paul W. Mark

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to appeals from the clerk-magistrates.

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PETITION OF:

SENATE DOCKET, NO. 1868        FILED ON: 1/20/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1042

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE DOCKET, NO. 4486 OF 2021-2022.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to appeals from the clerk-magistrates.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Article V of Part 1 of the constitution of the commonwealth states that magistrates of the commonwealth are the substitutes and the agents of the people of the commonwealth and are at all times accountable to them.

The Supreme Judicial Court has consistently held that if a clerk-magistrate denies a private party’s application for a criminal complaint, the private party has no constitutional or statutory right to challenge that decision.

The purpose of this act is to provide a private party complainant with a statutory right to challenge a clerk-magistrate’s denial of an application for the issuance of a criminal complaint.

SECTION 2. The second paragraph of section 35 of chapter 218 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the first sentence the following sentence:-

"Upon the denial of such application, if by a private party, the clerk shall enter the specific reason for the denial of the application."

SECTION 3. Chapter 218 of the General Laws, as so appearing, is hereby further amended by inserting after section 35A the following section:

"Section 35B. If a complaint is received by a district court, or by a justice, associate justice or special justice thereof, or by a clerk, assistant clerk, temporary clerk or temporary assistant clerk thereof under this chapter, from a private party, and the issuance of such complaint is denied, such private party shall be provided notice of such denial and be given the opportunity to be heard by the court regarding the denial.  The justice or magistrate who denied the application shall be disqualified from presiding over any such hearing.  The court, upon hearing and consideration of the evidence provided by the private party may grant the application for the issuance of a complaint."