Opinion
No. 16–P–442.
11-25-2016
Richard CAPALUCCI v. Anthony D. PHILLIPO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The case comes before us on appeal by the Commissioner of Probation, who challenges the entry of an order by a judge of the District Court purporting to "seal" the case. For substantially the reasons set forth in the Commissioner's brief, we agree that the judge was without authority to enter the order, and accordingly vacate it.
The Commissioner is not a party to the action, and no entry appears on the trial court docket designating the Commissioner as an intervener. Nonetheless, the District Court judge entertained a motion by the Commissioner which sought reconsideration of the order to seal. We consider the judge's consideration of the motion for reconsideration implicitly to have recognized the Commissioner as a party entitled to intervene as of right, under Mass.R.Civ.P. 24(a)(2), 365 Mass. 769 (1974), as a person with "an interest relating to the ... transaction which is the subject of the action ... so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest." In the present circumstances, as the person to whom the subject order is directed, and who would have the obligation to execute the order, the Commissioner's interest is plain.
As the Commissioner observes, though several statutes authorize the sealing of certain specified types of court records, no statute authorizes the sealing of the record of an abuse prevention order issued pursuant to G.L. c. 209A. As the Commissioner also observes, the sole recognized remedy (other than appeal) for an abuse prevention order wrongfully obtained is an order for expungement, available in the narrow circumstance of an order procured by means of a fraud on the court. See Commissioner of Probation v. Adams, 65 Mass.App.Ct. 725, 737 (2006). Contrast Commonwealth v. Vickey, 381 Mass. 762, 765 (1980) (sealing not available absent statutory authorization). See generally Commonwealth v. Balboni, 419 Mass. 42, 44–45 & n. 6 (1994) (discussing difference between expungement and sealing). The District Court judge accordingly was without authority to enter the order to seal the records of the present case.
See, e.g., G.L. c. 94C, § 34 ; G.L. c. 127, § 152 ; G.L. c. 258D, § 7 ; and G.L. c. 276, §§ 100A, 100B, 100C.
Order sealing case records vacated.