COMMONWEALTH vs. CARMELO C. GERMANO.

COMMONWEALTH vs. CARMELO C. GERMANO.

379 Mass. 268

September 11, 1979 - November 23, 1979

Middlesex County

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, LIACOS, & ABRAMS, JJ.

A defendant found guilty in a District Court of a motor vehicle offense under G. L. c. 90, Section 20F, inserted by St. 1978, c. 478, Section 41, which carries with it no penalty of imprisonment or fine in excess of $100 for a first offense, is entitled to a de novo trial by a jury of six, and a person charged with such an offense is entitled to trial by a jury of six at any stage of the proceedings under G. L. c. 218, Section 26A, inserted by St. 1978, c. 478, Section 188, or G. L. c. 218, Section 27A(c), as appearing in St. 1978, c. 478, Section 189; the right is also specifically guaranteed by G. L. c. 278, Section 18, as appearing in St. 1978, c. 478, Section 302. [270-276]

COMPLAINTS received and sworn to in the First Eastern Middlesex Division of the District Court Department on February 17, 1979.

After an appeal to the jury session of the Third Eastern Middlesex Division of the District Court Department, questions of law were reported to the Appeals Court by Sherman, J. The Supreme Judicial Court granted a request for direct review.

Peter W. Agnes, Jr., Assistant District Attorney, for the Commonwealth.

Daniel E. Callahan for the defendant.

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ABRAMS, J. At issue is whether a section of the legislation entitled, "An Act providing for the orderly administration of justice in the commonwealth," popularly known as the Court Reorganization Act, St. 1978, c. 478, eliminates the right to trial by jury for certain minor motor vehicle violations.

The defendant, Carmelo Germano, is charged with failing to keep to the right (G. L. c. 89, Section 1), failing to stop on entering a through way (G. L. c. 89, Section 9), and refusing to stop for a police officer (G. L. c. 90, Section 25). Germano signed written waivers of his right to counsel and his right to an initial jury trial. After trial without a jury before a District Court judge, Germano was convicted on all three offenses, receiving fine sentences of $10, $20, and $25, respectively.

Germano seeks to appeal these convictions to a trial de novo in a jury of six session. The Commonwealth has moved to dismiss his appeal, arguing that G. L. c. 90, Section 20F (inserted by St. 1978, c. 478, Section 41), prohibits jury trials of all motor vehicle violations (other than parking violations) punishable neither by imprisonment nor, in the case of a first offense, by a fine greater than $100. The trial judge in the jury of six session reported [Note 1] the issues raised by the Commonwealth's motion to dismiss. We granted the Commonwealth's application for direct appellate review. We hold that G. L. c. 90, Section 20F, [Note 2] does not eliminate Germano's right to a de novo trial by jury.

The report raises three questions regarding the correct procedures to be afforded those charged with minor motor vehicle violations under G. L. c. 90, Section 20F:

"1. Is the defendant entitled to a de novo trial by a jury of six after a finding of guilty of a motor vehicle offense

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which carries with it no penalty of imprisonment or fine in excess of $100 for a first offense?

"2. What type of proceeding is referred to by the language contained in G. L. c. 90, s. 20F, paragraph 6, which provides: `The decisions of the judge shall then be final, subject to NORMAL APPELLATE REVIEW'?

"3. Is a person charged with a motor vehicle offense which carries with it no penalty of imprisonment or fine in excess of $100 for a first offense entitled to trial by a jury at any stage of the proceedings under G. L. c. 218, s. 26A, or G. L. c. 218, s. 27A(c)?" (Emphasis furnished in report.)

We answer the first, and therefore the third, of these questions affirmatively, and find that decision of the present case does not require an answer to question 2.

Germano did not avail himself of the option provided by Section 20F of paying the maximum fines provided for his alleged violations, and thus securing a noncriminal disposition of the charges against him. Instead, Germano has chosen to contest the validity of the charges against him by submitting to criminal prosecution. Section 20F provides that in order to institute the criminal prosecution of a contested case, the officer who issued the original citation [Note 3] must "make a complaint" and "follow the procedure established for criminal cases." If "the procedure established for criminal cases" refers to the procedure generally applicable to misdemeanor prosecutions in the District Courts, Germano is entitled to a de novo trial by jury. G. L. c. 278, Section 18. G. L. c. 218, Section 26A.

However, the Commonwealth contends that "the procedure established for criminal cases" refers to a unique procedure "established" by Section 20F itself. Section 20F makes no explicit reference to such a procedure. The Commonwealth observes, however, that the sixth paragraph [Note 4] of the section

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provides an appeal procedure from the "finding and disposition" of a magistrate. Such a magistrate, the Commonwealth argues, must be viewed as the initial trier of fact in all contested proceedings brought under Section 20F. The Commonwealth adds that this appeal procedure leads to a de novo hearing before a judge of a District Court. The statute's failure to provide for trial by jury before this judge and its specific reference to "decisions of the judge" are said to exclude implicitly the possibility of trial by jury at this stage of the proceedings. Finally, the fact that the judge's decisions "shall . . . be final" subject only to "normal appellate review," is seen as limiting appeals to questions of law, and as therefore precluding an appeal from such decisions to the jury of six session.

We do not think that the Commonwealth's reading of Section 20F can survive the Legislature's plainly expressed desire to preserve the right of those in Germano's position to obtain a trial by jury. It is the teaching of our cases that Section 20F must be read in the context of the Court Reorganization Act taken "as a whole . . . to the end that, as far as possible, the [entire legislative program] will constitute a consistent and harmonious whole." Haines v. Town Manager of Mansfield, 320 Mass. 140 , 142 (1946). And the Court Reorganization Act, in addition to creating Section 20F, contains two separate sections specifically guaranteeing a right to trial by jury to criminal defendants in the District Courts. St. 1978, c. 478, Sections 302 & 188.

The first of these sections provides in part: "Notwithstanding any other provision of law, a defendant after a finding of guilty, jury-waived, in a district court . . . may appeal therefrom and shall thereafter be entitled to a trial de novo in a jury of six session . . . ." G. L. c. 278, Section 18 (as appearing in St. 1978, c. 478, Section 302). The Commonwealth argues that this language applies only to cases in which the

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initial hearing is held before a "justice"; [Note 5] Section 20F, the Commonwealth maintains, implicitly requires that an initial hearing be held before a magistrate. Such a distinction, however, even if accurately drawn, is insufficiently explicit to overcome our well-established rule that "[e]xceptions to a general law, whether statutory or constitutional, should be strictly construed." Commonwealth v. Yee, 361 Mass. 533 , 537 (1972). See Baker Transp., Inc. v. State Tax Comm'n, 371 Mass. 872 , 877 (1977). We believe that, had the Legislature been engaged in drawing such a fine line as that suggested by the Commonwealth, it would have been explicit in denying the right to a trial by jury.

Section 188 of the Court Reorganization Act reinforces this conclusion. General Laws c. 218, Section 26A (inserted by St. 1978, c. 478, Section 188) provides, in part, that trial of criminal offenses in the District Courts "shall be by a jury of six, unless the defendant files a written waiver and consent to be tried by the court without a jury," in which case the defendant retains a right to appeal his conviction to a trial de novo in the jury of six session.

The Commonwealth marshals a highly technical argument to demonstrate that the Legislature intended to place Section 20F proceedings outside the reach of G. L. c. 218, Section 26A. The Commonwealth begins by observing that G. L. c. 218, Section 26A, provides that both first instance and de novo jury trials must be held in "those jury sessions designated by [G. L. c. 218, Section 27A] for the hearing of such appeals." Section 27A, the Commonwealth adds, does not provide for jury trials in every division of the District Courts. [Note 6] This

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situation, the Commonwealth continues, contrasts to that created by Section 20F, which provides for the trial of all cases brought thereunder within the District Court division having jurisdiction of the judicial district in which the violation occurred. G. L. c. 90, Section 20F, first par. The resulting possibility that a defendant prosecuted under Section 20F might find himself in a nonjury trial division implies, the Commonwealth concludes, a legislative intent that the broad mandate in favor of trial by jury contained in G. L. c. 218, Section 26A, not apply at all to cases within the scope of Section 20F.

Rather than representing an elaborate "loophole," however, this difference between the two sections of the Court Reorganization Act can be more satisfactorily 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. See Mailhot v. Travelers Ins. Co., 375 Mass. 342 , 345 (1978). And it is, in any event, sufficient to note once again that the Commonwealth's argument cannot overcome the strong presumption against implied exceptions to statutes of such general applicability as G. L. c. 218, Section 26A.

In construing a statute we are also guided by the principle that "[i]t is not to be lightly supposed that radical changes in the law were intended where not plainly expressed." Ferullo's Case, 331 Mass. 635 , 637 (1954). In the context of criminal law it is difficult to imagine a more radical change than elimination of the right to trial by jury. Prior to the enactment of Section 20F, violations now within its scope were processed in a manner indistinguishable from that followed in the case of other misdemeanor offenses within the final jurisdiction of the District Courts. See generally G. L. c. 90C, Section 1 (as amended through St. 1975, c. 418), and G. L. c. 90C, Section 2 (as amended through St. 1968, c. 725).

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The right to a trial by jury [Note 7] was specifically guaranteed by the then existing version of G. L. c. 278, Section 18 (as amended through St. 1974, c. 167).

Prior law, however, provided no procedure for securing a noncriminal disposition of those minor motor vehicle offenses now within the scope of Section 20F. The absence of such a procedure contrasted sharply with its availability in the case of parking violations. See G. L. c. 90, Section 20A (as amended through St. 1962, c. 786, Sections 1-5) and G. L. c. 90, Section 20C (as amended through St. 1977, c. 612).

Since 1934, G. L. c. 90, Section 20A, has allowed those charged with parking violations to pursue one of two options: (1) confess the offense charged and pay a specified fine, thus securing a noncriminal disposition, or (2) contest the charges in a criminal proceeding. St. 1934, c. 368, Section 1. For fortyfive years the procedure to be followed under this second option, which is to say the procedure to be followed in all contested cases, has been described in the statute as "the procedure established for criminal cases." G. L. c. 90, Section 20A, third par., inserted by St. 1934, c. 368, Section 1, and most recently amended by St. 1978, c. 478, Section 39. Similar language appears in G. L. c. 90, Section 20C, sixth par., inserted by St. 1962, c. 786, Section 6, and most recently amended by St. 1978, c. 478, Section 40. [Note 8]

Viewed in this light, the critical phrase "procedure established for criminal cases" as used in Section 20F, must be given the long-standing meaning ascribed to this precise language as it appears in a virtually identical context in the parking violation statutes. "[I]f possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law." Hadley v. Amherst, 372 Mass. 46 , 51 (1977).

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We have indicated that the procedure to be followed in criminal prosecutions of parking violations is "the usual criminal procedure." Commonwealth v. Marder, 346 Mass. 408 , 410 (1963), appeal dismissed, 377 U.S. 407 (1964). And the Commonwealth concedes that, as used in G. L. c. 90, Sections 20A and 20C, the "procedure established for criminal cases" refers to the procedure applicable to misdemeanor prosecutions in general, and thus guarantees the right to trial by jury.

Moreover, it appears that the Legislature relied heavily on Section 20A in drafting the new Section 20F. The first two and one-half sentences [Note 9] of the fifth paragraph of Section 20F offer a virtually word-for-word transcription of language in the third paragraph of Section 20A (as it existed at the time of the enactment of Section 20F) specifying the procedure for prosecuting parking violations. G. L. c. 90, Section 20A (as amended by St. 1962, c. 786, Sections 1-5). "The Legislature is presumed to use a term in the sense in which it has been used before in the same context." Commonwealth v. Mercy Hosp., 364 Mass. 515 , 520 (1974). And, "[w]here the Legislature uses the same words in several sections which concern the same subject matter [here, minor motor vehicle violations], the words `must be presumed to

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have been used with the same meaning in each section.' " Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184 , 188-189 (1969), quoting from Liddell v. Standard Accident Ins. Co., 283 Mass. 340 , 346 (1933).

We believe that the Legislature, by the enactment of Section 20F, sought to provide "a sensible, simple, administrative method of making necessary traffic rules effective, without clogging the courts, causing undue public inconvenience and resentment, or depriving any citizen of full opportunity at his option for a judicial determination of facts." Commonwealth v. Marder, 346 Mass. 408 , 411 (1963), appeal dismissed, 377 U.S. 407 (1964).

The legislative history of Section 20F also strongly suggests that Section 20F was enacted in an effort to treat minor motor vehicle infractions in a manner similar to parking violations. The two and one-half sentences in the fifth paragraph of Section 20F apparently borrowed from Section 20A displaced language that in prior drafts of Section 20F would have explicitly provided for a unique, nonjury trial procedure. [Note 10]

Thus, we conclude that the Legislature intended to conform the procedure for prosecuting violations under Section 20F to that already in effect for the prosecution of parking violations. Consequently, we hold that Germano is entitled to appeal to a de novo trial by a jury of six. The case is remanded to the jury of six session for further proceedings consistent with this opinion. [Note 11]

So ordered.

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APPENDIX.

General Laws c. 90, Section 20F, inserted by St. 1978, c. 478, Section 41, reads as follows:

"Notwithstanding any provisions of the General Laws to the contrary, any police officer who takes cognizance of a violation of chapters eighty-five to ninety D, inclusive, involving the operation of a motor vehicle, other than a violation involving the parking of motor vehicles, where the maximum statutory penalty does not exceed one hundred dollars for the first offense and which does not provide for a penalty of imprisonment, shall forthwith give to the offender a citation, known throughout the commonwealth as a uniform traffic citation. Such citation shall contain the statement provided for under the definition of `citation' in section one of chapter ninety C, and shall notify the offender that he may waive his right to trial and pay the maximum statutory penalty by appearing before a magistrate of the district court having jurisdiction of the judicial district in which the violation occurred at any time during office hours not later than ten days after the date of said violation. The administrative justice for the district court department, or the administrative justice for the Boston municipal court department as the case may be, shall prepare, sign, and distribute a citation to be used by all law enforcement officers, including the state police, officers of the registry and the metropolitan district commission police, which shall include a space in which the officer shall insert the name of the district court having jurisdiction of the judicial district in which the violation occurred. Each citation, which shall be printed in quadruplicate, shall contain a space for the name and address of the offender, the number of his license to operate motor vehicles, the registration number of the vehicle involved, the time and place of the violation, the specific offense charged, the maximum statutory penalty for such offense, and the time and place for appearance in the event a trial is necessary or desired. Such citation shall be signed by the officer and by the offender to acknowledge that the citation has been received.

"At or before the completion of each tour of duty, the officer shall give to his commanding officer those copies of each citation issued during such tour of duty. Said commanding officer shall retain one copy for department use and shall at a time not later than the beginning of the next court day cause to have delivered two such copies to the magistrate of the court before whom the offender has been notified to appear. The magistrate of each district court shall maintain a separate docket for all such citations and shall periodically forward copies of such citations to the registry. No other form of notice, except as provided in this section, shall be given to the offender.

"Any person receiving a citation pursuant to this section may appear before a magistrate of the appropriate district court and confess the offense

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charged, either personally or through an agent duly authorized in writing, or may mail to such magistrate, with the citation, the maximum statutory fine provided therein. Such payment shall be made only by postal note, money order, or check. The payment to the magistrate of such penalty shall operate as a final disposition of the case.

"If the citation is so returned by the offender, such an appearance shall not be deemed a criminal proceeding for the purposes of this chapter. The offender shall not be required to report to any probation officer and no record of the case shall be entered in any probation records.

"Should any person notified to appear hereunder fail to appear and to pay the fine hereinbefore provided, or having appeared desire not to avail himself of the benefits of the procedure established by this section, the clerk shall as soon as may be notify the officer concerned, who shall forth-with make a complaint and follow the procedure established for criminal cases. If any person fails to appear in accordance with the summons issued upon such complaint, the clerk shall, in the case of a first or second offence but for no subsequent offence, send such person, by registered mail, return receipt requested, a notice that the complaint is pending and that, if the person fails to appear within twenty-one days from the sending of such notice, a warrant for his arrest will be issued and the registrar of motor vehicles notified to suspend his right or license to operate motor vehicles. If any person fails to appear within twenty-one days from the sending of such notice or in accordance with the summons issued upon such complaint, as the case may be, the court may issue a warrant for his arrest and the registrar shall be notified that he may suspend the right or license of such person to operate a motor vehicle after due hearing pursuant to section twenty-two, because of his failure to so appear. The magistrate of the court shall, if the citation is properly returned at a later time, notify the registrar forthwith of such fact.

"Either party may appeal the finding and disposition of the magistrate to a justice of the court in which the case was heard, who shall then hear the case de novo. The decisions of the judge shall then be final, subject to normal appellate review.

"The magistrates of the respective district courts shall distribute such citations to the commanding officers of police departments upon request and may request a receipt therefor. Magistrates shall exercise their authority hereunder subject to the limitations of section sixty-two C of chapter two hundred and twenty-one.

"The term district court as used in this section shall include the Boston municipal court department."

FOOTNOTES

[Note 1] More specifically, the report was filed pursuant to G. L. c. 278, Section 30A, repealed by St. 1979, c. 344, Section 48, as extended to jury of six session trials by G. L. c. 218, Section 27A (d). See Commonwealth v. Henry's Drywall Co., 362 Mass. 552 , 555 n.4 (1972). Authorization for interlocutory reports from de novo trials in the District Court is now contained in Mass. R. Crim. P. 34, 378 Mass. 905 (effective July 1, 1979).

[Note 2] The text of G. L. c. 90, Section 20F, appears as an appendix to this opinion.

[Note 3] As defined by G. L. c. 90C, Section 1, a citation is only a notice of violation and does not by itself institute a criminal proceeding.

[Note 4] The sixth paragraph reads as follows: "Either party may appeal the finding and disposition of the magistrate to a justice of the court in which the case was heard, who shall then hear the case de novo. The decisions of the judge shall then be final, subject to normal appellate review."

[Note 5] The first sentence of G. L. c. 278, Section 18, reads, "Whoever is found guilty of a crime before a justice in a district court, or in the municipal court of the city of Boston, having filed the written waiver of trial by jury in the first instance provided by section twenty-six A of chapter two hundred and eighteen, may appeal the finding of guilty or the sentence imposed thereon to a jury-of-six session in accordance with section twenty-seven A of chapter two hundred and eighteen, and at the time of such finding of guilty or sentencing shall be notified of his right to take such appeal."

[Note 6] Pursuant to G. L. c. 218, Section 27A (b), the Administrative Justice of the District Court Department must designate at least one District Court division in each county, subject to certain requirements, for the hearing of jury trials. Every division is authorized to hold jury of six sessions, G. L. c. 218, Section 27A (a), but not all divisions have been so designated.

[Note 7] The defendant could choose between trial by a jury of twelve in the Superior Court and trial by a jury of six in the District Courts. G. L. c. 278, Section 18 (as amended through St. 1974, c. 167).

[Note 8] The only amendments to Sections 20A & 20C contained in St. 1978, c. 478, conformed the language of the sections to the renamed District Court Department and Boston Municipal Court Department.

[Note 9] The following language, with the exception of the emphasized phrase, was taken directly from Section 20A: "Should any person notified to appear hereunder fail to appear and to pay the fine hereinbefore provided, or having appeared desire not to avail himself of the benefits of the procedure established by this section, the clerk shall as soon as may be notify the officer concerned, who shall forthwith make a complaint and follow the procedure established for criminal cases. If any person fails to appear in accordance with the summons issued upon such complaint, the clerk shall, in the case of a first or second offence but for no subsequent offence, send such person, by registered mail, return receipt requested, a notice that the complaint is pending and that, if the person fails to appear within twenty-one days from the sending of such notice, a warrant for his arrest will be issued and the registrar of motor vehicles notified to suspend his right or license to operate motor vehicles. If any person fails to appear within twenty-one days from the sending of such notice or in accordance with the summons issued upon such complaint, as the case may be . . ." (emphasis added). The emphasized language replaced conditional language ("and, if a fine is provided hereunder, to pay the same") in Section 20A.

[Note 10] 1977 House Doc. No. 6804, Section 35. 1977 House Doc. No. 6906, Section 35. 1978 Senate Doc. No. 1322, Section 35. 1978 Senate Doc. No. 1538, Section 41.

[Note 11] The second question reported to us is not presented by this case. Germano was not tried before a magistrate, but rather before a judge of the District Court. The "normal appellate review" called for in the sixth paragraph of Section 20F applies only to appeals of cases in which there has been an initial "finding and disposition" by a magistrate. We intimate no view on the proper construction or the constitutionality of the sixth paragraph.