King v. Shank

• Decision Date: 02 March 2018
• Docket Number: Nos. 17–P–809 & 17–P–1096,s. 17–P–809 & 17–P–1096
• Citation: 96 N.E.3d 181,92 Mass.App.Ct. 837
• Parties: Cindy KING v. Joseph Z. SHANK & others(and a companion case).
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 837
96 N.E.3d 181

Cindy KING
v.
Joseph Z. SHANK & others¹ (and a companion case² ).

Nos. 17–P–809 & 17–P–1096

Appeals Court of Massachusetts, Suffolk..

Argued November 1, 2017
Decided March 2, 2018

Ira H. Zaleznik, Boston, (Benjamin W. O'Grady also present) for the defendants.

John M. Dombrowski for Cindy King.

Present: Milkey, Blake, & Singh, JJ.

SINGH, J.

92 Mass.App.Ct. 838

In February, 2017, the defendants, ten residents of the town of Townsend (town), petitioned to remove Cindy King and Gordon Clark from their positions as members of the town board of selectmen (board) by way of recall petitions. The town board of registrars found the petitions to be in order, and the board scheduled a recall election for June, 2017. King filed a complaint in Superior Court seeking a declaratory judgment that the recall petition was invalid and a preliminary injunction enjoining the recall election. After a judge of the Superior Court denied the motion for a preliminary injunction, King filed a petition for interlocutory relief pursuant to G. L. c. 231, § 118, first par. A single justice of this court issued the preliminary injunction enjoining the recall election as to King. Clark then filed a parallel action in the Superior Court, citing the single justice's order in the King litigation. A different Superior Court judge allowed Clark's motion and issued a preliminary injunction enjoining the recall election as to Clark.

The defendants appeal the preliminary injunctions issued by the single justice in King's case and the Superior Court judge in Clark's case. Both appeals are brought

96 N.E.3d 184

pursuant to G. L. c. 231, § 118, second par. The town's recall election remains stayed pending this appeal. We reverse.

1. Standard of review. "We review the grant or denial of a preliminary injunction for abuse of discretion." Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 574, 969 N.E.2d 1118 (2012). See E.H. Perkins Constr., Inc. v. Lincoln, 78 Mass. App. Ct. 208, 209, 936 N.E.2d 890 (2010). In making this assessment, we look to "the same factors properly

92 Mass.App.Ct. 839

considered by the judge in the first instance."³ Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615–616, 405 N.E.2d 106 (1980).

A party moving for a preliminary injunction must show "(1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the [moving party's] likelihood of success on the merits, the risk of irreparable harm to the [moving party] outweighs the potential harm to the [nonmoving party] in granting the injunction." Tri–Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219, 741 N.E.2d 37 (2001). Where, as here, the motion seeks to enjoin governmental action, the judge must find that "the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Commonwealth v. Mass. CRINC, 392 Mass. 79, 89, 466 N.E.2d 792 (1984). See Tri–Nel Mgt., Inc. v. Board of Health of Barnstable, supra. If a preliminary injunction was issued solely on the basis of documentary evidence, "we may draw our own conclusions from the record." Packaging Indus. Group, Inc. v. Cheney, supra at 616, 405 N.E.2d 106.

As to each order here, we review whether the judge applied the proper legal standards and whether there was reasonable support in the record for his evaluation of factual questions; "conclusions of law are subject to broad review and will be reversed if incorrect." Fordyce v. Hanover, 457 Mass. 248, 256, 929 N.E.2d 929 (2010), quoting from Packaging Indus. Group, Inc. v. Cheney, supra.

2. Background. King and Clark were both elected to the board in 2015 and continue to serve. At the time Clark filed his complaint, he was serving in the capacity of chairman of the board. In February, 2017, the defendants initiated petitions to recall King and Clark "on the grounds of misfeasance and neglect of duty" in their roles as members of the board. In the required affidavits accompanying the petitions, the defendants alleged that both King and Clark

"neglected [their] dut[ies] to adequately represent the people of Townsend by refusing to argue in the affirmative for the public to be allowed a time for public communication at

92 Mass.App.Ct. 840

Board of Selectmen 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 [their] position[s] of authority and by imposing [their] views on day-to-day management of the Police Department and

96 N.E.3d 185

"... 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 of Townsend prior to signing the employment contract."

The affidavit supporting the petition to recall Clark additionally alleged that he

"participated in searches and discussions to hire a new Police Chief, his wife's supervisor, which caused a perception on the part of members of the community that he was not unbiased and

"... acted outside of his Board's authority and as a lone member, by initiating discussions for a separation agreement with Townsend's former Police Chief."

After obtaining the necessary signatures from registered voters, the defendants filed the recall petitions with the town clerk. After the town's board of registrars certified that the petitions were in order and that a recall election could therefore be scheduled, King and Clark both moved to enjoin the election, claiming that the grounds alleged in the recall petitions were invalid. Neither claimed any other deficiency in the recall process.

3. Recall act. Recall of the town's government officials is governed by c. 27 of the Acts of 1995, "An Act Providing for Recall Elections in the Town of Townsend" (act), which provides that an elected official who has been in office for at least four months, and who still has at least six months remaining in his or her term, may be subject to recall. St. 1995, c. 27, § 1. Section 2 of the act sets forth the process for recall, which includes a petitioner filing an affidavit with the town clerk, setting forth the name of the official to be recalled along with a statement of the grounds for recall. The petition must be supported by the signatures

92 Mass.App.Ct. 841

of at least ten percent of registered voters (including 125 from each precinct) and returned to the town clerk within twenty-one days.

Within twenty-five hours of receipt of the petition, the town clerk must submit the petition to the "registrars of voters" who have seven days within which to certify the sufficiency of the signatures. Ibid. Once the registrars certify that a sufficient number of registered voters have signed the petition, the town clerk must notify the board. Id. at §§ 2, 3. Within forty-eight hours, the board must notify the official whose recall is sought, giving him or her five days within which to resign. Id. at § 3. If no resignation is forthcoming, the board must schedule a recall election within sixty to ninety days. Ibid.

In the recall election, the ballot asks the voters whether they are "for the recall" of the named official or "against the recall" of the official. Id. at § 6. The ballot also sets forth candidates to succeed the official. Ibid. The official whose recall is sought may stand as a candidate to succeed him or herself. Ibid. If the majority vote is in favor of recall, the official will be deemed recalled, provided that twenty-five percent of registered voters participate in the election. Ibid.

With respect to the grounds for recall, the act provides that the affidavit in support of the recall petition must include "a statement of the grounds upon which the petition is based." Id. at § 2. Immediately thereafter, the following language appears:

"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;

96 N.E.3d 186

"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.

"In no case shall the exercise of discretion in voting on matters before the officer constitute grounds for recall."

Ibid.

92 Mass.App.Ct. 842

3. Discussion. a. Likelihood of success on merits. The single justice agreed with King that the affidavit that accompanied the petition to recall her failed to...