4 April 2015
Initially, you must diagnose what the problem is. Is this a case of some legitimate impropriety
with the filing and the clerk’s office has the right or obligation to reject it or is it a clerk’s office overstepping its authority? To investigate this, you will need to be able
to articulate exactly why the clerk is refusing the documents/papers. You will need to pay close attention to why
the clerk is rejecting the documents. Preferably
write down the exact reasons and take down citations or request the clerk’s
office put the reasons in some informal writing, which it will not likely do. Once you have the exact reasons, you can
research its validity or seek legal advice.
The general rule is that, absent a law, order, or rule, the
clerk’s office must accept and file documents filed with it. Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court,
§ 7.11, 4th ed. Is there a law, order,
or rule that supports the clerk’s office’s refusal? Is the clerk’s office citing a law or rule to
you? If so, it may be proper for it to
reject the filing.
For example, if you
are filing a suit with the clerk’s office, one requirement is that a completed statement
of damages form must accompany it. Mass.
Gen. Laws c.218, § 19A(a). Another is,
absent indigence, that the filing fee is paid. Mass. Gen. Laws c.262, § 2. If you are trying to file a complaint without
these items, the clerk’s office is not supposed to accept the filing. The point is, there are some valid reasons
and incidences where a clerk’s office should reject a filing.
However, there are also incidences where a clerk’s office is
overstepping its boundaries and must accept the documents/papers for filing. In the author’s opinion and observation, the
issue usually is that the clerk’s office is inappropriately evaluating the
filing itself and interjecting its own legal opinion into the mix. See e.g.
Gorod v. Tabachnick, 428 Mass. 1001 (1998); Davis v. Tavachnick,
425 Mass. 1010 (1997); Morales v. Commonwealth, 424 Mass. 1010 (1997). And sometimes, the clerk is simply not
performing his duties and meeting its professional responsibilities. See
generally, In the Matter of Clerk-Magistrate Robert E. Powers, 465 Mass.
63 (2013) (finding sufficient cause existed for the removal of the clerk magistrate
of Barnstable District Court).
If this happens, the first course of action is to file a
motion with the clerk’s office to ask the court to order the clerk’s office to
accept the document/paper for filing. Costello
v. Board of Appeals of Lexington, 450 Mass. 1004 (2007); Davis v.
Tavachnick, 425 Mass. 1010 (1997); Morales v. Commonwealth, 424
Mass. 1010 (1997). If you need to take
this route, you must be astute and show emotional intelligence. This is because you are working through and
filing the motion with the very office that you are opposing. Also, you can assume that the clerk’s office will
be presenting its case to the judge without your presence and has a great deal
of credibility with the judge. Finally,
keep in mind, the judge is human and may be reluctant to order people he relies
and works with daily to take an action they do not want to do. This whole effort will be a delicate one of
which you may want to seek counsel to navigate.
Keep in mind, that although there may not be a practical
way of implementing this, a judge may permit and accept papers to be filed with
the court (judge) as opposed to the clerk’s office. Mass. R. Civ. P. 5(e). So if there is some way, like in the court
room and on the record, and not one that will land you in jail or otherwise be
inappropriate, to approach the judge directly and seek to have the papers filed
with the court, it is possible if the judge agrees.
In the event that the clerk’s office does not accept the
motion to ask the court to order the clerk’s office to accept the
documents/papers, because it acts as the gatekeeper and is the office you must
file documents with, then the next avenue is a writ of mandamas. Burnham
v. Clerk of the First District Court of Essex, 352 Mass. 466, 467 (1967). This is an action to compel a governmental
official to perform his duty. For this,
it is highly advised to hire legal counsel because this is a separate legal
action in and of itself.
Overall, if you do find yourself in a situation where a
clerk is refusing your filings, it is a tough position to be in. In the event that you are involved in a dispute
with a clerk’s office or have other concerns with how you are being treated in the
court system, feel free to give this office a call.
