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Eric PORTER v. A JUSTICE OF the DISTRICT COURT DEPARTMENT.
The petitioner, Eric Porter, acting pro se, filed a petition in the nature of quo warranto in the county court, pursuant to G. L. c. 249, § 6. The petition sought to contest the constitutionality of the respondent's authority to serve as a justice in the District Court after the age of seventy under G. L. c. 32, § 65G (recall statute). The respondent filed a motion to dismiss, arguing, inter alia, that Porter lacked standing to bring the petition. A single justice of this court allowed the motion and dismissed Porter's petition with prejudice. This appeal followed.
It is “settled in this Commonwealth ․ that an information in the nature of a quo warranto cannot be brought by private persons in their own names, except in cases authorized by statute.” Haupt v. Rogers, 170 Mass. 71, 72, 48 N.E. 1080 (1898). The statute upon which Porter purports to rely, G. L. c. 249, § 6, permits certain parties to commence a civil action in the nature of quo warranto against “a private corporation or ․ persons claiming to be a private corporation.” The respondent is neither. Nor does Porter have standing to bring an action under G. L. c. 249, § 9, which concerns an information in the nature of quo warranto filed by the Attorney General.1 See Commonwealth v. Loretta, 386 Mass. 794, 797, 438 N.E.2d 56 (1982), citing G. L. c. 249, § 9 (“The Attorney General is the proper party to test the constitutionality of the recall statute in an information in the nature of quo warranto”). See also Attorney Gen. v. Methuen, 236 Mass. 564, 580-581, 129 N.E. 662 (1921) (concluding that relator could not file information in nature of quo warranto on behalf of Attorney General). The single justice thus correctly allowed the respondent's motion to dismiss the petition.2
Judgment affirmed.
FOOTNOTES
1. After this case was entered in the full court, Porter filed a motion to “remove/disallow” the Attorney General from representing the respondent, arguing that she should not be permitted to represent the respondent “regarding his personal matters.” To the contrary, Porter seeks to challenge the respondent's authority to act as a judicial officer, which implicates the Attorney General's statutory duty to represent officers of the courts “in all suits and other civil proceedings ․ in which the official acts and doings of said ․ officers ․ are called in question.” G. L. c. 12, § 3. See Lally v. Dorchester Div. of the Dist. Court Dep't, 26 Mass. App. Ct. 724, 727-728, 531 N.E.2d 1275 (1988). Nor has Porter identified an actual conflict of interest between the Attorney General and the respondent in this case. Rather, he takes issue with a statutory scheme that would permit only the Attorney General to bring this type of action. But see Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 75, 371 N.E.2d 728 (1977) (explaining underlying rationale for designating Attorney General as appropriate party to bring quo warranto actions against public officials). Accordingly, the motion is denied.
2. Porter's motions to file an amended brief, an untimely reply brief, and an untimely record appendix are hereby allowed, as is the respondent's motion to file a record appendix. Porter's motion for reconsideration of an earlier motion in which he sought to “void the decision of the single justice” is hereby denied, as is his request for a hearing and for injunctive relief.Porter has also filed a “motion to strike unrelated docket entries and caption clarification.” The Commonwealth has not filed any opposition to the motion. Insofar as Porter seeks an order, pursuant to Mass. R. A. P. 8 (e) (2), as appearing in 481 Mass. 1611 (2019), correcting the record to reflect that the petitioner and the respondent are the only parties to the instant action, the motion is allowed. Accordingly, we order the county court to correct the single justice docket to strike any reference to a named defendant in this matter. See Commonwealth v. Hernandez, 481 Mass. 582, 584 n.5, 118 N.E.3d 107 (2019). The motion is otherwise denied.
RESCRIPT
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Docket No: SJC-13553
Decided: August 22, 2024
Court: Supreme Judicial Court of Massachusetts.
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