RALPH I. LEVINE & another VS. CHIEF JUSTICE OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT & others

RALPH I. LEVINE & another [Note 1] VS. CHIEF JUSTICE OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT & others [Note 2]

434 Mass. 1014

July 13, 2001

Present:

The plaintiffs contend that Massachusetts gun control laws, G. L. c. 140, s.s. 121-131P, violate the Federal and State Constitutions in various respects. By way of a petition to a single justice of this court, they sought relief under G. L. c. 211, s. 3, a declaratory judgment under G. L. c. 231A, s. 1, and relief under the doctrine of public right. The single justice denied all claims for relief. We review the single justice's denial of relief under G. L. c. 211, s. 3, for abuse of discretion or other error of law (Semedo v. Commonwealth, 429 Mass. 1006 , 1007 [1999]); his denial of declaratory relief under G. L. c. 231A, s. 1, for abuse of discretion (Bates v. Superior Court, 432 Mass. 1021 , 1022 & n.3 [2000]); and his denial of relief under the public right doctrine (Tax Equity Alliance for Mass. v. Commissioner of Revenue, 423 Mass. 708 , 714 [1996] [under public right doctrine, relief sought is in nature of mandamus]) for abuse of discretion (see Forte v. Commonwealth, 429 Mass. 1019 , 1020 [1999] [single justice's denial of writ of mandamus reviewed for abuse of discretion]), or other error of law (see Brewster v. Sherman, 195 Mass. 222 [1907]). We conclude that the single justice did not err in denying the plaintiffs relief.

The plaintiffs each applied for and obtained a firearms identification card that permitted them to possess and carry certain rifles and shotguns. G. L. c. 140, s.s. 129B and 129C. A license to carry, however, is necessary to possess and carry other types of firearms. G. L. c. 140, s. 131. Levine obtained such a license, but a police chief subsequently revoked that license. Fuld also obtained a license to carry, but it was later suspended, and a police chief denied his reapplication.

Each petitioner initially sought judicial review of the police chief's decision in a District Court action. G. L. c. 140, s. 131 (t). Neither petitioner, however, exhausted the appellate process available to him. At the time the petition was filed in the county court, Levine alleged that his District Court case was still pending; Fuld contended that the District Court affirmed the police chief's decision, but admitted that he failed to seek any further review.

If the plaintiffs were aggrieved by the decisions of their respective police chiefs, they had the right to judicial review in the District Court, G. L. c. 140, s. 129B (5) or 131 (f), with further review in an action in the nature of certiorari under G. L. c. 249, s. 4. See Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42 , 46 (1993). See also Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999). Because their petition to the single justice raised no issue that could not have been raised in a District Court, reviewed in an action in the nature of certiorari, and addressed in the customary appellate process, the single justice neither abused his discretion nor committed other error of law in denying them the extraordinary relief that they

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sought under G. L. c. 211, s. 3. See Solimine v. Davidian, 422 Mass. 1002 (1996) (G. L. c. 211, s. 3, relief not permitted where petitioner failed to pursue available ordinary appellate process). The same is true with respect to their claims for declaratory relief. See Bates v. Superior Court, supra at 1022 ("plaintiff could not, in lieu of pursuing his available appellate remedy, obtain a declaration under G. L. c. 231 A:'); Hathaway v. Commissioner of Ins., 379 Mass. 551 , 553 (1980) (declaratory relief ordinarily inappropriate where party has ignored statutory right of direct review) [Note 3]. Finally, review under the doctrine of public right is not available unless there is no other method of enforcement. See LG.G. v. Department of Social Servs., 429 Mass. 1008 (1999); Kaplan v. Bowker, 333 Mass. 455 , 460,(1956). See also Alliance, AFSCMF/SEIU, AFLCIO V. Commonwealth, 427 Mass. 546 , 550 (1998).

The judgment of the single justice, denying all relief sought by the plaintiffs, is affirmed.

So ordered.

Albert G. Tierney & Robert J. Forrest for plaintiffs.

Edward J. DeAngelo, Assistant Attorney General (Adam Simms, Assistant Attorney General, with him), for Chief Justice of the District Court Department of the Trial Court & others.

James W. Simpson, for the chief of police of Easton, was present but did not argue.

FOOTNOTES

[Note 1] Charles L. Fuld.

[Note 2] The Chief Justice of the Boston Municipal Court Department of the Trial Court, the chief of police of Sharon, the chief of police of Easton, the Attorney General, the executive director of the criminal history systems board, the superintendent of the Department of State Police, and the Secretary of Public Safety.

[Note 3] Levine's claim for declaratory relief is also precluded under the principles articulated in Jacoby v. Babcock Artificial Kidney Or, Inc., 364 Mass. 561 , 563 (1974) (presumption against declarations of rights when other proceedings are in progress). Levine made no showing of exceptional circumstances justifying departure from the established rule that "procedures for declaratory relief cannot be used as substitutes for appeal." Id. at 564.