Clerk-magistrates who are qualified by education or training should be primarily responsible for the adjudication of small claims matters, including payment hearings and motions. Judges may hear these matters when deemed necessary by the court and the defendant elects to waive the right to appeal for a subsequent trial by a judge or before a jury.
Commentary
Small claims matters should primarily be heard in the first instance by clerk-magistrates and assistant clerk-magistrates. Judges however, may adjudicate cases when needed in any particular court but only in cases where the defendant (including a defendant in counterclaim or in any third party claim) elects to proceed with an initial trial by a judge and thereby agrees to waive any right to appeal for a subsequent trial by a judge or before a jury. Uniform Small Claims Rule 7(d); Trust Insurance Company v. Bruce at Park Chiropractic Clinic, 403 Mass. 607 (1/20/00). The court should have the defendant sign a written waiver of appeal rights before the case is assigned to a judge. Clerk-magistrates and assistant clerk-magistrates have the authority to try and to decide cases, to preside at payment hearings, and to decide motions. Uniform Small Claims Rule 7(d), as recently amended; Trust Ins. Co., supra, at 608, n.2, and 610. Hearings on contempt should be referred to a judge whenever there is the possibility of incarceration. Uniform Small Claims Rule 9(b). (Note: On October 25, 2000, the Appeals Court decided Boat Maintenance & Repair Co. v. Lawton, ____ Mass. App. Ct. ______, in which that court determined that a clerk-magistrate had no authority to hear and decide a contested motion in a small claims action. However, in so deciding, the Appeals did not acknowledge the Supreme Judicial Court's earlier decision in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, supra.).
When there is no clerk-magistrate or assistant clerk-magistrate qualified to adjudicate small claims for a particular Trial Court division, either a judge sitting in that division, if the defendant has waived appellate rights, or a clerk-magistrate or assistant clerk-magistrate from another division should be assigned to hear small claims in that division.
Because it is important that small claims actions be decided according to substantive law, clerk-magistrates and assistant clerk-magistrates should attend an educational program addressing both procedural and substantive law. See G.L. c. 218, s. 21; Canon 7 of the Code of Professional Responsibility for Clerks of the Courts. This program will be developed and provided by the Judicial Institute of the Trial Court and approved by the Chief Justice for Administration and Management. The education and training requirements are not meant to limit the inherent powers of the Chief Justice for Administration and Management, departmental chief justices, first justices, or clerk-magistrates to assign any clerk-magistrate or assistant clerk-magistrate to adjudicate small claims matters even though qualified by education or training.