Opinion
15–P–1157
05-26-2017
COMMONWEALTH v. Nancy A. RUIZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court judge reported ten questions to this court pursuant to Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004). For the reasons set forth below, we discharge the report.
Background. For allegedly shoplifting various items from a Macy's store in Natick in concert with another person, the defendant was charged with larceny over $250 and conspiracy. Prior to her arrest, the defendant had been detained by store security personnel. During her time with these personnel, she agreed to pay Macy's $608.50 in damages. At a hearing held on June 23, 2015, a District Court judge took a particular interest in the conduct of Macy's personnel in securing such payments from alleged shoplifters prior to their arrest. In fact, the judge expressed his intent to use the defendant's criminal case as a "vehicle" for pressing the legality of Macy's conduct. He requested that the defendant supply an affidavit regarding her treatment, and he told her counsel that if she did so, "[a]t the end of the day I will promise I will dismiss." After the defendant supplied that affidavit, the judge purported to report to this court a lengthy series of questions related to Macy's practices. That report is all that is currently before us. The underlying criminal case has been stayed in the interim.
See G. L. c. 231, § 85R 1/2, inserted by St. 1986, c. 335, § 2 (authorizing stores to recover civil damages "in tort" from those who shoplift merchandise from them).
That hearing is not reflected on the docket, and its precise nature is unclear. Although the judge states in the report that an assistant district attorney was present at the hearing, the transcript of the hearing does not reflect that.
The record reflects that the judge long has been interested in this issue and that, in 2006, he purported to issue a civil injunction ordering Macy's to stop such practices in a shoplifting case involving a different defendant. The record also reflects that the judge had intended to try to reissue such an injunction against Macy's in the separate criminal case against the defendant's companion.
The judge characterized his statements to the defendant in a different manner in his report. Specifically, he wrote: "This Judge promised [the defendant's] counsel in open court and before the assistant district attorney that this judge would make an earnest effort to favorably dispose of the criminal charges based upon the history of the prosecutor occasionally dismissing cases against similarly situated defendants, (with costs), based upon the $500 previously paid civil payment and the admission of MACY'S that its security officer made substantial errors."
The questions are as follows:
"1. May MACY'S detain [the defendant] beyond the normal shoplifting protocol and extend the custody period to extract a civil settlement?
"2. May a non-lawyer negotiate a legal, binding, civil settlement or is such conduct reserved for the legal profession?
"2A. May a non-lawyer act on behalf of a corporation?
"3. May any civil settlements be deemed per se ‘coercive’ when the settlement occurs when one is in custody of security staff?
"4. Does a promise by a MACY'S security officer not to have [the defendant] arrested [constitute] a binding promise?
"5. If the Appeals Court finds the conduct of MACY'S security to be violative of due process, equity, the Massachusetts constitution, statutory or regulatory law, if such is sufficiently egregious, would same permit dismissal of the criminal case over the objection of the commonwealth?
"6. May MACY'S settle civil claims with persons in custody whose native language is other than English?
"7. May a district court judge enjoin MACY'S from certain future conduct?
"8. By its prior acquiescence to this Court's prior injunctive orders, has MACY'S waived any claim of lack of jurisdiction by this Court (see [certain referenced attachments] )?
"* This Court is of the belief that M.G.L. Ch. 231 sec 85R1/2 does nothing more than permit a retail store to utilize Small Claims Court procedure to seek an additional $500 above any actual losses it sustains as a result of the acts of a shoplifter. MACY'S is of the opinion that this is some magic statute that condones and immunizes its in-store collection of fines. Which one of us is right?"
Discussion. "If, prior to trial ... a question of law arises which the trial judge determines is so important or doubtful as to require a decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein." Mass.R.Crim.P. 34. This authority is not unbounded. Implicit in the prerequisite that the questions reported "require" appellate resolution and the limitation that the judge may report a case only "so far as necessary to present" such questions, is the idea that the relevant questions need to be answered in the proceeding in which the report is made. "Reported questions are appropriate for appellate court review only where ... ‘it appears that they present questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.’ " Commonwealth v. Gopaul, 86 Mass. App. Ct. 685, 686–687 (2014), quoting from Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557 (1972). That basic nexus is missing here. Instead, the judge—by his own acknowledgement—was seeking to press the legality of the actions of Macy's, a private entity who is not a party to the criminal proceedings before him.
To be sure, question five, and possibly question four, do touch on whether the actions of Macy's could be imputed to the Commonwealth in a manner that might invalidate the Commonwealth's prosecution. However, the report of those questions independently runs afoul of a separate tenet, namely that when questions of law are bound up with unresolved issues of fact, appellate courts will not address those questions in the abstract. See, e.g., Commonwealth v. Ficksman, 340 Mass. 744, 747 (1960) (reports discharged based on inadequate factual record). The judge's report inappropriately seeks appellate resolution of potentially important legal issues regarding Macy's practices based on a combination of a single affidavit, hypothetical questions, and an idiosyncratic "record" of documents that the judge cobbled together from other criminal proceedings (in none of which Macy's was a party).
Even the Supreme Judicial Court, which has authority to issue advisory opinions in certain circumstances, will decline to use such powers "without adequate factual background." Opinion of the Justices, 345 Mass. 780, 784 (1963).
Because the report is wholly inappropriate, we discharge it in its entirety.
Nothing in this memorandum and order should be interpreted as precluding the defendant from seeking to raise the conduct of Macy's personnel in an appropriate motion in the criminal proceedings, or through civil litigation. We express no view on the merits of the underlying substantive issues.
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Report discharged.