Town of Brookline v. Goldstein

• Citation: 447 N.E.2d 641,388 Mass. 443
• Parties: TOWN OF BROOKLINE v. Melvin GOLDSTEIN et al. 1
• Decision Date: 14 March 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 641

447 N.E.2d 641

388 Mass. 443

TOWN OF BROOKLINE v. Melvin GOLDSTEIN et al. ¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Nov. 4, 1982.

Decided March 14, 1983.

Jamie Ann Sabino, Wellesley, for defendants.

David Lee Turner, Boston (Cathleen Cavell, Brookline, with him), for plaintiff.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The plaintiff, the town of Brookline, commenced this action against the defendants seeking preliminary and permanent injunctive relief. The town claimed that Melvin Goldstein had (1) instituted improper and frivolous legal proceedings against the town, its officers, employees, boards, commissions, and elected officials; and (2) harassed a substantial number of town employees and officials by calling them repeatedly during working hours at the town's offices and at their homes during the early morning and evening, as well as weekends.

After a hearing, a judge of the Superior Court issued a preliminary injunction restraining Goldstein from commencing any legal proceedings against the town without obtaining that court's approval, and from communicating with the town or its officials and employees, except for one telephone call per business day to the office of the board of selectmen and by letters sent through the United States mail addressed to the board's office. ² Pursuant to G.L. c. 231, § 118, par. 2, Goldstein appealed from this interlocutory order, arguing that (1) the judge abused his discretion in granting the injunction, and (2) the injunction is overbroad and vague. We transferred the appeal here on our own motion. We vacate the order below and remand the case for entry of a new order in conformity with this opinion.

The facts are as follows. The defendant is a resident of the town of Brookline, who evidently has become dissatisfied with the course of town government. As a consequence, he has filed, either individually or as president of Mared Realty Corporation, numerous proceedings against the town, its officers, employees, boards, commissions, and elected officials. These proceedings comprised four civil cases brought in the Superior Court in Norfolk County, two civil cases and three criminal complaints brought in the Brookline Division of the District Court department. The status of these cases at the time the complaint was filed was as follows: (1) Three of the cases filed in the Superior Court had been dismissed, ³ and one case was pending; (2) one case in the Brookline District Court had been tried, resulting in a judgment against Goldstein, and one case was pending; and (3) all three criminal complaints had been dismissed. Goldstein filed an affidavit in this case stating that these suits had been brought in good faith without any intent to harass the town or any of its officials.

Goldstein has also pressed his grievances directly. Affidavits filed by the town indicate that Goldstein has called town officials repeatedly at their homes, places of business, and at town offices. Many of these calls were made early in the morning and late in the evening. Sample logs of telephone calls made by Goldstein to homes of the chairman of the board of selectmen, Robert M. Stein, and the chief of police are set out in the margin. ⁴ Stein's affidavit also alleges that Goldstein called and harassed him, his business associates, and superiors at his place of employment. The town also filed an affidavit alleging that Goldstein has interfered with the work of the town's police department through constant and repeated telephone calls and personal visits. The affidavits filed by the town also allege that Goldstein has used abusive language during these calls and visits, and that the matters he wished to discuss were frivolous. Goldstein's affidavit in answer to these allegations is that he resorted to calling town officials at their homes only after they refused to discuss with him certain unspecified municipal matters. The only allegation that he denies specifically is that his visits and calls have interfered with police business. He also alleged that his actions were in good faith, that his legal claims were meritorious, and that he had no intent to harass the town or any of its officials.

1. Our task here is simply to pass on the propriety of an injunction pending a full hearing on the merits of the underlying dispute. The record before us consists of the pleadings and affidavits filed by the parties. We may also take judicial notice of the court papers filed in the prior actions brought by Goldstein against the town. Poland v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 342 Mass. 75, 77 n. 2, 172 N.E.2d 107 (1961). Nantucket Conservation Found., Inc. v. Russell Management, Inc., 2 Mass.App. 868, 868-869, 316 N.E.2d 625 (1974). Flynn v. Brassard, 1 Mass.App. 678, 681-682, 306 N.E.2d 446 (1974). ⁵ We have no transcript of what transpired at the hearing below and therefore assume that it focused on the allegations contained in the town's complaint and the affidavits. In these circumstances we may reach our own conclusions, although we give deference to the exercise of discretion by the judge below. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, ---, ---, Mass.Adv.Sh. (1980) 1189, 1195-1196, 405 N.E.2d 106.

To determine whether a preliminary injunction should issue, a judge must evaluate (1) the plaintiff's claim that he will suffer irreparable harm if the injunction is denied; (2) the injury the defendant will suffer if the injunction is granted; and (3) the likelihood of success on the merits. Commonwealth v. County of Suffolk, 383 Mass. 286, ---, Mass.Adv.Sh. (1981) 835, 837, 418 N.E.2d 1234. Packaging Indus. Group, Inc. v. Cheney, supra 380 Mass. at ---, at 1197, 405 N.E.2d 106. In an appropriate case, the risk of harm to the public interest also may be considered. See Bettigole v. Assessors of Springfield, 343 Mass. 223, 234, 237, 178 N.E.2d 10 (1961). Where the balance of these risks cuts in favor of the moving party, a preliminary injunction may issue. Commonwealth v. County of Suffolk, supra. Packaging Indus. Group, Inc. v. Cheney, supra.

We turn to the town's claims of harm and consider those rights which may be lost irreparably if immediate relief is not granted. The town argues that there exists a substantial risk that it will be subject to groundless suits, absent an injunction, and that it has no adequate remedy at law. We have said that the ability to defend against groundless suits "is not an adequate remedy, for the plaintiff is entitled to complete and immediate freedom from vexation by the defendant." Steinberg v. McKay, 295 Mass. 139, 143-144, 3 N.E.2d 23 (1936). The town, however, has another remedy.

Under G.L. c. 231, § 6F, inserted by St.1976, c. 233, § 1, the town may seek, in any civil action after judgment, its "reasonable counsel fees and other costs and expenses incurred in defending against such claims" which "were wholly insubstantial, frivolous and not advanced in good faith." This statute is intended to ameliorate the consequences of the "American rule," which denies a prevailing party the recovery of legal fees incurred in his litigation. Commissioner of Ins. v. Massachusetts Accident Co., 318 Mass. 238, 241, 61 N.E.2d 137 (1945). Together with G.L. c. 231, § 6G, G.L. c. 231, § 6F, provides the town with a means of recovering its damages and of discouraging the maintenance of further insubstantial and frivolous actions by the same party. We note that the cases decided under § 6F have treated the statute's purposes sympathetically in order that its policies may be effectuated. See Pollack v. Kelly, 372 Mass. 469, 477, 362 N.E.2d 525 (1977); Miaskiewicz v. LeTourneau, 12 Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 1172, 421 N.E.2d 1236; Katz v. Savitsky, 10 Mass.App. 792, 413 N.E.2d 354 (1980). We conclude that the town has not demonstrated on this record that this remedy under G.L. c. 231, § 6F, would be inadequate if Goldstein persists in bringing actions which are "insubstantial, frivolous and not advanced in good faith." ⁶

Several other considerations suggest the wisdom of this approach. Access to the courts should not be restricted unnecessarily. See United Transp. Union v. Michigan Bar, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971) (collective activity undertaken to obtain meaningful access to the courts is a fundamental right). Moreover, the procedure described in the preliminary injunction for determining whether Goldstein may file an action is, in some degree, cumbersome. ⁷ It is also not clear against what standard Goldstein's future pleadings would be measured. Compare Rudnicki v. Department of Mass. Attorney Gen., 362 F.2d 337, 338 (1st Cir.1966) (party obliged to demonstrate meritorious case), with Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.1980) (pleadings must be sufficiently plain and definite to satisfy Fed.R.Civ.P. 8 and to warrant a response). Since Goldstein is not seeking merely to reopen closed cases, each complaint will have to be evaluated on its own merits. The interest of judicial economy and free access to the courts is served better by requiring the town to seek relief first under G.L. c. 231, § 6F. ⁸

The town next argues that the threat of continued harassment of town officials and employees at their homes and places of employment by telephone calls and personal visits constituted a basis for injunctive relief as to this kind of activity. We agree. The allegations concerning Goldstein's behavior, which he does not specifically deny, suggest that he has acted beyond all reasonable bounds. Town officials have a legitimate expectation of privacy and freedom from harassment. Cf. Galella v. Onassis, 487 F.2d 986, 995 (2d Cir.1973). This type of conduct intrudes in an intolerable manner on the private lives of town officials. It also threatens the very right Goldstein asks us to uphold. If such...