DocketNumber: No. 06-P-857
Citation Numbers: 68 Mass. App. Ct. 791
Judges: Katzmann
Filed Date: 4/27/2007
Status: Precedential
Modified Date: 6/25/2022
The plaintiff, Statewide Towing Association, Inc. (Statewide), filed a complaint against the city of Lowell (city) and certain towing companies, seeking a declaratory judgment, pursuant to G. L. c. 231 A, § 1, and injunctive relief, pursuant to G. L. c. 214, § 1. Count I alleges that the towing contracts executed between the city and the defendant towing
On appeal, Statewide asserts (1) that the judge erred in sua sponte dismissing count I as to the towing company defendants; and (2) that the judge erred in dismissing count II as to all defendants. As we conclude that Statewide lacks standing to pursue relief for counts I and II, we affirm the judgment.
Background. The city contracts with towing companies to provide involuntary towing services when needed by the Lowell Police Department in the course of its official duties.
Various towing contractors responded, indicating specific dollar amounts they were willing to pay to the city per vehicle in consideration for a contract.
Regulations established by the Department of Telecommunications and Energy limit the maximum base rate of an involuntary tow to ninety dollars. All of the six towing contractors charge the maximum base rate. The consideration paid to the city, as set out in paragraph 18, comes out of this ninety-dollar rate.
The complaint alleges that Statewide is a Massachusetts nonprofit corporation. It further alleges that it is a membership association of Massachusetts businesses engaged in towing disabled and wrecked vehicles. Its membership includes unspecified towing companies with principal places of business in Lowell. The complaint also alleges that “[t]he contracts issued pursuant to the RFI raise important issues of statewide concern and the economic interests of [Statewide] members have been, or likely will be, adversely [a]ffected. The association has standing to bring this action because its members have standing to bring this suit, the issues are germane to the association’s purpose, and the claim is one for declaratory judgment.”
Discussion. 1. Count I. In count I, Statewide alleges that the payment of sums of money from the towing contractors to the city violates the statute regulating motor carriers of property, and constitute a prohibited kickback or referral fee, in violation of G. L. c 159B, §§ 6A and 19.
“We treat standing as an issue of subject matter jurisdiction,” Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). We must take note of the absence of standing, whenever it appears. Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981). See Mass.R.Civ.P. 12(h)(3), 365 Mass. 757 (1974). Where a nonprofit organization asserts associational standing on behalf of its members, it must establish that its members would independently have standing to pursue the claim. Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 638 n.4 (1993). Thus, Statewide must demonstrate that the “challenged action” has caused its independent members injury. Slama v. Attorney Gen., 384 Mass. 620, 624 (1981).
In the present case, Statewide has merely alleged that its constituents include unspecified towing companies based in Lowell. The allegations in the complaint, however, do not establish the identity of Statewide’s members or whether Statewide’s members actually participated in the bidding process,
We also note that a prayer for declaratory relief does not vitiate the requirements of standing. See Doe v. The Governor, 381 Mass. 702, 704 (1980); Enos v. Secretary of Envtl. Affairs, 432 Mass. at 135 (“G. L. c. 231A does not provide an independent statutory basis for standing”). Similarly, as Statewide is not seeking to compel the city to perform a duty required by law (but rather seeking to invalidate a contractual provision to which it is not a party), it does not have separate standing under the public rights doctrine. Perella v. Massachusetts Turnpike Authy., 55 Mass. App. Ct. 537, 539-540 (2002). Lastly, where the Legislature has intended to confer private attorney general rights, it has done so expressly. Local 1445, United Food & Commercial Wkrs. Union v. Police Chief of Natick, 29 Mass. App. Ct. 554, 558 (1990). These rights are not present in G. L. c. 159B, § 6A or § 19.
2. Count II. Statewide alleges that paragraph 18 amounts to an unlawful tax on vehicle owners whose vehicles are involuntarily towed. Before we can reach the merits of count n, we must analyze whether Statewide has standing to pursue this claim under G. L. c. 40, § 53. As we conclude that Statewide
Pursuant to G. L. c. 40, § 53, as appearing in St. 1969, c. 507, “[i]f a town ... or any of its officers or agents are about to raise . . . money[
Judgment affirmed.
The judge dismissed count I as to the towing company defendants in the section of the order denying Statewide’s application for a preliminary injunction, explaining that because the city is not a person within the meaning of G. L. c. 159B, the statute does not regulate the contracts entered into between the city and the defendant towing companies.
Involuntary towing is sometimes needed in relation to a motor vehicle accident, the recovery of a stolen or abandoned vehicle, or the arrest of the driver of a vehicle.
Paragraph 18 of the RFI states: “Please state in consideration of this contract what dollar amount, if any, you and/or your firm would provide to the City of Lowell per tow .... The City specifically reserves the right to negotiate the amount to be provided to the City, per tow, with each contractor as a condition to awarding a contract to any towing entity.”
The consideration is paid in addition to a $10 administrative fee. Contractors pay the administrative fee for each tow rendered to cover the costs of dispatching, record-keeping, and other expenses incurred by the city in administering
The contracts were awarded as follows: (Zone 1) Paul Demers, doing business as Paul Demers Towing & Service, $1.10 per vehicle; (Zone 2) Gulbicki’s Towing and Service, Inc., $1.07 per vehicle; (Zone 3) Stuart’s Automotive, Inc., $1.50 per vehicle; (Zone 4) Geoffrey’s Gulf Station, Inc., $1.10 per vehicle; (Zone 5) Kazanjian’s Garage, Inc., $1.07 per vehicle; and (Zone 6) Jon Kazanjian Automotive Repair Shop, Inc., $22 per vehicle.
During oral argument, the parties agreed that the contracts at issue in this proceeding expired on December 31, 2006, but that the provision at issue (paragraph 18) is also included in the new contracts now in effect.
General Laws c. 159B, § 6A, inserted by St. 1955, c. 353, § 2, provides, in relevant part, that “no [common] carrier [by motor vehicle] shall refund or
General Laws c. 159B, § 19, as amended by St. 1949, c. 187, provides, in relevant part, that “no person, whether carrier, shipper, cosignee, or broker, or any officer, employee, agent, or representative thereof, shall . . . knowingly offer, grant or give, . . . any rebate, concession or discrimination in violation of any provision of this chapter . . . .”
The phrase “to raise money” as applied to a municipality commonly means to raise by taxation. Pratt v. Boston, 396 Mass. 37, 44 (1985).
“ ‘[Ijnhabitants’ are natural persons, and do not include corporations. . . . An ‘inhabitant’ of the city must have his domicile or residence there. . . . The ‘taxable inhabitant’ must also be adversely affected by the action complained of.” Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. at 622.
At oral argument, counsel for Statewide acknowledged this jurisdictional defect. Furthermore, our docket and the Superior Court docket do not indicate that Statewide made any attempt to amend the complaint to comport with the jurisdictional requirements of G. L. c. 40, § 53. Compare Litton Bus. Sys., Inc., 383 Mass. at 622-624.