Benevolent & Protective Order of Elks, Lodge No. 65 v. City Council of Lawrence

• Decision Date: 13 December 1988
• Citation: 403 Mass. 563,531 N.E.2d 1254
• Parties: BENEVOLENT & PROTECTIVE ORDER OF ELKS, LODGE NO. 65, et al. 1 v. CITY COUNCIL OF LAWRENCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1254

531 N.E.2d 1254

403 Mass. 563

BENEVOLENT & PROTECTIVE ORDER OF ELKS, LODGE NO. 65, et al.¹ v. CITY COUNCIL OF LAWRENCE.

Supreme Judicial Court of Massachusetts Essex.

Argued Sept. 15, 1988.

Decided Dec. 13, 1988.

Philip M. Cronin (Roger D. Matthews, Boston, with him), for Benevolent & Protective Order of Elks, Lodge No. 65.

Carol Hajjar McGravey, City Sol., for the City Council of Lawrence.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The plaintiffs, owners of land slated to be taken under an urban renewal plan, and ten registered voters, claim that the defendant, the city council of Lawrence (city council), violated the open meeting law. G.L. c. 39, §§ 23A-23C (1986 ed.). The plaintiffs allege that a violation occurred when the president of the city council (president) spoke with other members of the city council, individually and privately, some by telephone and some in person, before the city council's public meetings on January 20 and February 17, 1987. A judge of the Superior Court granted the city council's motion to dismiss, ² and the plaintiffs have appealed. We transferred the appeal here on our own motion and now affirm the judgment.

This case arises out of the city council's actions in approving an urban renewal plan known as the Riverfront Urban Renewal Project (project). Before bringing this complaint, a number of the plaintiffs had commenced actions against the planning board of Lawrence, the Lawrence Redevelopment Authority (LRA), and the city council seeking to enjoin the taking of land by eminent domain for the project, and seeking to invalidate certain votes of the LRA with respect to the project. ³ During the course of discovery in those actions, one of the plaintiffs, through its counsel, took the deposition of the president on April 22, 1987. He testified that, before the city council's meetings on January 20 and February 17, 1987, he had spoken with other city council members individually and privately over the telephone and in person. During these conversations, he discussed the project and asked each member how he or she intended to vote on issues related to the project. At public meetings the city council approved the project on January 20, 1987, and approved the underlying financial plan on February 17, 1987. The city council's compliance with the open meeting law at these two meetings is undisputed.

On May 12, 1987, the plaintiffs filed a complaint alleging that the private conversations with individual city council members violated the open meeting law. The plaintiffs sought an order invalidating actions the city council took at the January 20 and February 17 meetings, ⁴ an order requiring that any records of the private conversations be made public, ⁵ and an order compelling the city council to comply with the provisions of the open meeting law at all future meetings. The city council moved to dismiss the complaint for failure to state a claim because the complaint did not allege facts which showed there was an illegal "meeting" of a "quorum" of a "governmental body" as those terms are defined in G.L. c. 39, § 23A. The city council also argued that, because the meetings on January 20 and February 17 were public meetings which fully complied with the open meeting law, the judge could not invalidate actions taken at those meetings, and further argued that, because the plaintiffs filed their complaint more than twenty-one days after the actions they sought to invalidate, their complaint was barred by § 23B. The Superior Court judge allowed the city council's motion to dismiss on the ground that the complaint was untimely.

Section 23B provides a strict statute of limitations for complaints seeking to invalidate actions taken at meetings which violate its provisions. The statute allows a court to "invalidate any action taken at any meeting at which any provision of [§ 23B] has been violated, provided that such complaint is filed within twenty-one days of the date when such action is made public." Id. The plaintiffs' complaint sought to invalidate the city council's votes at the January 20, 1987, and February 17, 1987, meetings. These votes at public meetings clearly became public immediately. The plaintiffs did not file their complaint until May 12, 1987, more than twenty-one days after the votes became public. The statute of limitations of § 23B therefore bars the plaintiffs from seeking an order invalidating the city council's votes. ⁶ The judge did not err in dismissing that portion of the plaintiffs' complaint seeking this order.

The plaintiffs also were not entitled to a plenary order compelling the city council to comply with the provisions of the open meeting law at future meetings....