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SJC-11611

FREIDRICH LU vs. CITY OF BOSTON & others.1

July 17, 2014.

Supreme Judicial Court, Superintendence of inferior courts. 

Declaratory Relief. Practice, Civil, Pendency of prior 

action.

The plaintiff, Freidrich Lu, filed a complaint in the 

county court pursuant to G. L. c. 231A, § 1, essentially seeking 

a judgment declaring that the Trustees of the Boston Public 

Library (trustees) are not a subsidiary corporation, division or 

unit of the city of Boston (city), that the trustees and the 

city "are two separate, independent legal entities," and that 

members of the city of Boston Law Department (law department) 

may not provide legal representation to the trustees or library 

employees. A single justice of this court denied Lu's motion 

for summary judgment, dismissed the complaint, and denied 

postjudgment relief. Lu appeals. We affirm.

Background. This declaratory judgment action has its 

genesis in a civil rights action that Lu commenced in the United 

States District Court for the District of Massachusetts against 

the defendant trustees and a library employee, defendant George 

1 Thomas M. Menino, individually and in his capacity as the 

city's mayor; William F. Sinnott, individually and in his 

capacity as the city's corporation counsel; Caroline Driscoll, 

individually and in her capacity as the city's assistant 

corporation counsel; Trustees of the Boston Public Library; and 

George Hulme, individually and in his capacity as security 

director of the library. The Boston Public Health Commission; 

Local 1526, American Federation of State, County, and Municipal 

Employees; Boston Public Library Professional Staff Association; 

and the Department of Labor Relations also were named as 

defendants, but did not appear.

 
Hulme. In general, Lu alleged that, in violation of his civil 

rights, he was denied entrance to the Boston Public Library. A 

judge of that court denied Lu's motion seeking disqualification 

of the law department as counsel for the trustees and Hulme, and 

concluded that "[t]he [t]rustees constitute a municipal entity 

that oversees the Library as a department of the [c]ity of 

Boston," and that the law department may represent the trustees 

and Hulme. Lu then commenced this action in the county court, 

seeking a contrary determination.

Discussion. The complaint in this case essentially deals 

with the same controversy that exists between the parties in the 

Federal litigation. As such, it does not present a proper 

occasion for declaratory relief. Jacoby v. Babcock Artificial 

Kidney Ctr., Inc., 364 Mass. 561, 562 (1974). The single 

justice correctly concluded that:

"For all practical purposes, the only 'actual 

controversy' the plaintiff claims is his challenge to the 

[Federal] judge's denial of his motion to disqualify 

counsel, which he seeks to undermine by obtaining a 

contrary legal determination from this court regarding the 

relationship between the [t]rustees and the [c]ity of 

Boston. This is not an appropriate ground to bring a 

declaratory judgment claim. If the plaintiff wishes to 

appeal [the Federal District Court judge's] denial of his 

motion to disqualify counsel, he must do so within the 

Federal appellate process; he may not, in essence, appeal 

that decision through a declaratory judgment action in this 

court. In short, an appeal from an interlocutory order in 

a Federal court is not an appropriate 'controversy' that 

may be resolved by a declaratory judgment in this court."

Not only is an action seeking declaratory relief not a 

substitute for an appeal, Jacoby v. Babcock Artificial Kidney 

Ctr., Inc., supra at 564, but where other proceedings are 

pending, there "is an ordinary presumption against such relief." 

Norcisa v. Selectmen of Provincetown, 368 Mass. 161, 172 (1975), 

quoting Jacoby v. Babcock Artificial Kidney Ctr., Inc., supra at 

563. In short, "[t]he declaratory relief procedure was not 

intended to permit the same claim to be adjudicated in multiple 

suits." Id. See G. L. c. 231A, § 3 (declaratory relief 

appropriately denied when declaratory judgment "would not 

terminate the uncertainty or controversy giving rise to the 

proceedings or for other sufficient reasons"). A declaratory 

judgment action cannot be used as a "short cut appeal 

circumventing" procedures regulating the review of an 
interlocutory order denying a motion to disqualify counsel. 

Jacoby v. Babcock Artificial Kidney Ctr., Inc., supra at 565 

n.2.2

The single justice properly declined to exercise 

jurisdiction under G. L. c. 231A to make declaration as to a 

matter involved in a prior pending matter in the Federal court.3

Judgment affirmed.

Friedrich Lu, pro se.

David Waterfall, Assistant Corporation Counsel, for the

defendants.

2 The situation would be different if the Federal court 

judge had not decided the State law issue on the motion for 

disqualification, and had left it to be decided by the State 

courts. Libertarian Ass'n of Mass. v. Secretary of the 

Commonwealth, 462 Mass. 538 (2012); England v. Louisiana State 

Bd. of Med. Examiners, 375 U.S. 411 (1964). However, the 

Federal judge decided the State law issue in this case, which he 

undoubtedly had the authority to do. Carnegie-Mellon Univ. v. 

Cohill, 484 U.S. 343, 349 (1988) ("[F]ederal courts [have power] 

to decide [S]tate-law claims in cases that also present 

[F]ederal questions").

3 We decline to address issues or arguments raised on appeal 

that were not presented to the single justice.