King v. Town Clerk of Townsend , 480 Mass. 7 ( 2018 )

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SJC-12509
CINDY KING vs. TOWN CLERK OF TOWNSEND & others.1
Suffolk. April 6, 2018. - June 22, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
Municipal Corporations, Removal of public officer, Selectmen.
Elections, Recall. Practice, Civil, Preliminary
injunction. Injunction.
Civil action commenced in the Superior Court Department on
March 24, 2017.
A motion for a preliminary injunction was heard by John T.
Lu, J.
A proceeding for interlocutory review was heard in the
Appeals Court by Mark V. Green, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
John M. Dombrowski for the plaintiff.
Ira H. Zaleznik (Benjamin W. O'Grady & John E. Page also
present) for Joseph Z. Shank & others.
1 Board of registrars of Townsend, Joseph Z. Shank, Elaine
R. Shank, Leanne Jackson, Erica L. Art, Kelly Michele Kelly,
Michael P. Kelly, Lisa Lewand, Stacy C. Sheldon, Stephen J.
Sheldon, and Jennifer Ann McLaughlin.
2
Lauren F. Goldberg, for town clerk of Townsend & another,
was present but did not argue.
BUDD, J. Ten registered voters (petitioners)2 residing in
the town of Townsend (town) petitioned the town to hold a recall
election to remove the plaintiff, Cindy King, a member of the
town's board of selectmen (board),3 from office pursuant to St.
1995, c. 27, the town's recall act (act). On April 9, 2018, we
issued an order affirming the order of a single justice of the
Appeals Court preliminarily enjoining the town from holding a
recall election to remove the plaintiff from office, and we
indicated then that an opinion would follow. This opinion
states the reasons for that order. Because the act provides for
a recall vote to take place only on grounds not alleged here,
the recall election sought in this instance may not proceed.
Background. In 2017, the petitioners submitted to the town
clerk a petition that sought to recall the plaintiff. See St.
2 The petitioners included those who initiated the recall
petition and certain town officials who acted upon it. When we
refer to the petitioners, we mean the former group.
3 Initially a number of the petitioners sought to recall
board member Gordon Clark as well, and he filed a separate
lawsuit that eventually was consolidated with the plaintiff's
appeal before the Appeals Court. See King v. Shank, 92 Mass.
App. Ct. 837 (2018). However, by the time this matter came
before us, Clark had fewer than six months remaining in his
term, and therefore, pursuant to the act, he is not subject to
recall. See St. 1995, c. 27, § 1.
3
1995, c. 27, § 2.4 The affidavit that accompanied the petition
cited misfeasance and neglect of duty as grounds for the recall,
alleging that, in the plaintiff's role as a member of the board,
she
"neglected her duty to adequately represent the people of
[the town] by refusing to argue in the affirmative for the
public to be allowed a time for public communication at
[board] meetings when no other board before this has
refused to hear public comments or concerns and
" . . . impeded our Police Chief's ability to do the job he
was hired to do by using her position of authority and by
imposing her views on day-to-day management of the Police
Department and
" . . . neglected to support prior agreements made by the
town with our Police Lieutenant and
" . . . neglected to speak for obtaining an official and
full background check on an applicant for a senior position
with the [town] prior to signing the employment contract .
. . ."
In response, the plaintiff commenced an action in Superior
Court to enjoin the recall election, and on the same day, she
filed a motion for a preliminary injunction. She contended that
the allegations made against her were legally insufficient to
initiate a recall under the act. A Superior Court judge denied
her motion for a preliminary injunction, and the plaintiff
appealed to a single justice of the Appeals Court, who ordered
4Municipalities are authorized to exercise certain legal
powers pursuant to the Home Rule Amendment. See art. 89, § 1,
of the Amendments to the Massachusetts Constitution. Under the
Home Rule Amendment, a city or town may petition the Legislature
to pass a recall statute specific to it alone. See art. 89, §
8, of the Amendments.
4
that a preliminary injunction issue. After a single justice of
the Supreme Judicial Court denied the petitioners' subsequent
petition for relief, the Appeals Court reversed the order of the
single justice of the Appeals Court and dissolved the
injunction. See King v. Shank, 92 Mass. App. Ct. 837, 847
(2018). We granted the plaintiff's application for further
appellate review, and as mentioned, we issued an order affirming
the order of the single justice of the Appeals Court.
Discussion. We review a grant or denial of a preliminary
injunction for error of law or abuse of discretion. Eaton v.
Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 574 (2012). Here,
where there is a question of statutory interpretation, we review
the matter de novo. Commonwealth v. Escobar, 479 Mass. 225, 227
(2018).
1. Interpreting the act. Section 1 of the act provides:
"Any person who holds an elected office in the town . . .
and who has held that office for four months and has more
than six months remaining in the term of such office on the
date of filing of the affidavit, referred to in [§ 2], may
be recalled from office solely upon the grounds set forth
in said [§ 2] by the registered voters of said town."
St. 1995, c. 27, § 1.
Pursuant to the act, a recall election may be initiated by
way of a petition signed by a certain number of registered
voters, accompanied by an affidavit identifying the officer whom
5
the voters seek to recall and "a statement of the grounds upon
which the petition is based as set forth herein:
"Lack of fitness, insobriety while performing official
functions, involuntary commitment to a mental health
facility, being placed under guardianship or
conservatorship by a probate court;
"Corruption, conviction of a felony involving moral
turpitude, conviction of bribery, or extortion;
"Neglect of duties, repeated absences from meetings without
just cause, which shall include but not be limited to
illness or regular vacation periods; and
"Misfeasance, performance of official acts in an unlawful
manner, or a willful violation of the open meeting law."
St. 1995, c. 27, § 2.
The parties contest the significance of the short
description following each of the four categories in § 2. The
plaintiff argues that the words following each category are
definitions of the grounds listed, excluding conduct not
explicitly specified; the petitioners contend that the
descriptions are nonexhaustive examples of the type of conduct
that could lead to a recall election. For the reasons that
follow, we agree with the plaintiff.
First, § 1 of the act states that one may be recalled
"solely upon the grounds set forth in said [§ 2]" (emphasis
added). If the descriptions after each of the four categories
of prohibited behavior were intended to be only examples, the
grounds would be nearly boundless, because one could easily
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allege conduct that could fit within the scope of one of the
four listed categories. This interpretation would render the
term "solely" meaningless. See Commonwealth v. Disler, 451
Mass. 216, 227 (2008) (court should read statutes so that no
word is meaningless).
Second, we note that although § 2 of the act employs the
phrase, "which shall include but not be limited to," indicating
nonexhaustive examples, the phrase does not modify any of the
four categories of qualifying conduct. The phrase is found in
the "Neglect of duties" category: "Neglect of duties, repeated
absences from meetings without just cause, which shall include
but not be limited to illness or regular vacation periods"
(emphasis added). The phrase modifies the words "just cause";
it does not modify "Neglect of duties," nor does it modify
"repeated absences." In effect, the phrase expands not the
types of conduct that might be considered neglect of duties but
instead exceptions to such conduct.
The drafters of the act clearly knew how to indicate a
nonexhaustive list. As they did not do so in any of the four
categories of qualifying conduct, we must assume that the
failure to do so was purposeful. See Commonwealth v. Gagnon,
439 Mass. 826, 833 (2003) ("[W]here the legislature has
carefully employed a term in one place and excluded it in
another, it should not be implied where excluded" [citation
7
omitted]). Thus, we conclude that the four categories are
intentionally narrowly circumscribed.
Third, if we interpreted the descriptions to be
nonexhaustive examples rather than defining the scope of the
categories, they would serve as a source of confusion rather
than clarity. For instance, if "conviction of a felony
involving moral turpitude, conviction of bribery, or extortion"
were a mere illustration of the category "corruption" rather
than a definition, it would be unclear whether a procedural
posture short of conviction would also qualify as corruption,
including allegations, an arrest, or a verdict in a civil case
in connection with such activity. In contrast, as a definition,
the act makes clear that only a "conviction of a felony
involving moral turpitude, [or a] conviction of bribery, or
extortion" could subject an elected official to a recall vote
(emphasis added). We decline to adopt an interpretation that
renders the act ambiguous. See Albernaz v. United States, 450
U.S. 333, 342 (1981), quoting Bifulco v. United States, 447 U.S.
381, 387 (1980) ("we may not manufacture ambiguity").
The petitioners claim that construing the descriptions of
each ground as definitions, rather than as nonexhaustive
examples, is nonsensical because the plain meaning of each of
the terms is clearly broader than that which is presented in the
act. This argument fails. Providing definitions of the terms
8
used in a statute is a way to narrow or expand the reach of that
statute. Statutes often provide specific definitions of their
terms. See, e.g., G. L. c. 25, § 3 (defining regulated industry
company); G. L. c. 89, § 4C (defining heavy commercial
vehicles); G. L. c. 111, § 71 (defining responsibility and
suitability for license to operate nursing home).
The Legislature has empowered each municipality to
determine whether to have a recall statute and, if so, how wide-
ranging or narrow it should be. Commonwealth v. Lammi, 386
Mass. 299, 300 (1982), and authorities cited. Here, the
description of each ground gives notice to the citizens of the
town, and to its elected officials alike, of the conduct for
which a recall election might be initiated. Whether it is wiser
to have a broad or a narrow recall statute is not a question for
this court.5 See id.
As we conclude that the act allows for a recall election
only under one or more of four enumerated circumstances, each of
which is specifically defined, we turn to the petitioners'
recall petition to determine whether it alleges facts that allow
for a recall election in this instance.
5 The petitioners also take the position that if the
descriptive words following each of the grounds were
definitions, then the terms themselves would be superfluous.
This argument also fails, as it would make any definition
redundant in relation to the term it defines.
9
2. The recall petition. The affidavit that accompanies
the petition in this case alleges that the plaintiff failed to
represent adequately the people of the town by (1) failing to
support public communication at board meetings, (2) impeding the
police chief's work by imposing her views on day-to-day
management of the police department, (3) failing to support
prior agreements made between the town and a police lieutenant,
and (4) failing to advocate for a background check on an
applicant to a town position. Although the petitioners claim
that the plaintiff's actions or omissions amount to misfeasance
and neglect of duty, the affidavit does not allege "performance
of official acts in an unlawful manner, or a willful violation
of the open meeting law," the definition of misfeasance under
the act; nor does it allege "repeated absences from meetings
without just cause," the act's definition of neglect of duty.6
See St. 1995, c. 27, § 2.
Relying on Donahue v. Selectmen of Saugus, 343 Mass. 93, 95
(1961), and Mieczkowski v. Board of Registrars of Hadley, 53
Mass. App. Ct. 62, 65 (2001), the petitioners contend that the
purpose of the affidavit is simply to commence the recall
procedure, and to give notice to the voters of the general
reasons for the petition; it is not meant to provide an
6 The allegations also fail to qualify as grounds for
corruption or lack of fitness as defined by the act. See St.
1995, c. 27, § 2.
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opportunity to litigate the merits of the recall. They further
argue that it is for the citizens of the town, not the courts,
to determine whether the stated grounds are sufficient.
Although this argument may have merit in some circumstances, it
cannot succeed here, where the board drafted the act to restrict
the grounds for recall to those it enumerated. Applied here,
the petitioners' argument would mean ignoring the limitations of
the act.
In Donahue, 343 Mass. at 94, we reviewed the Saugus recall
act, which simply required "grounds," i.e., any reason at all,
to initiate a recall. See St. 1947, c. 17, § 43. There we held
that the recall effort was proper because the Saugus act did not
restrict the meaning of "grounds" to require "serious
impropriety."7 Donahue, supra at 95. In Mieczkowski, the
Appeals Court interpreted Hadley's recall act, which allowed for
a recall election based upon "lack of fitness, incompetence,
neglect of duties, corruption, malfeasance, misfeasance, or
violation of oath." Mieczkowski, 53 Mass. App. Ct. at 62-63,
quoting St. 1987, c. 384, § 1. There were no definitions or
other descriptors to accompany the grounds. The Appeals Court
7 The petitioners filed an affidavit seeking a recall based
on the official having "[v]ot[ed] to award an all-alcoholic
beverage goods license detrimental to the best interests of the
town and its citizens and in direct opposition to the expressed
desires of the people living in the area where said license was
granted." Donahue v. Saugus, 343 Mass. 93, 95 (1961).
11
concluded that the affidavit, which tracked the statute but did
not set forth any supporting factual assertions, satisfied the
Hadley act.8 Id. at 63, 65.
Both the Saugus and Hadley recall statutes are broader than
the act, which, as discussed supra, allows for a recall election
only under one or more of four enumerated circumstances, each of
which are specifically defined. Although we agree that a prompt
process is important in recall elections, see Donahue, 343 Mass.
at 95, we cannot abandon our responsibility to interpret and
apply the statute before us.
As the allegations in the affidavit supporting the petition
for recall do not fall within the act's enumerated grounds, the
recall election may not proceed.
Conclusion. For the foregoing reasons, on April 9, 2018,
we affirmed the order of the single justice of the Appeals Court
preliminarily enjoining the town from holding a recall election
to remove the plaintiff from office.
8 The petitioners' affidavit stated only that the
petitioners sought a recall simply "for reason of lack of
fitness, incompetence, neglect of duties, or misfeasance."
Mieczkowski v. Board of Registrars of Hadley, 53 Mass. App. Ct.
62, 63 (2001).