King v. Shank

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17-P-809 Appeals Court
17-P-1096

CINDY KING vs. JOSEPH Z. SHANK & others1
(and a companion case2).

Nos. 17-P-809 & 17-P-1096.

Suffolk. November 1, 2017. - March 2, 2018.

Present: Milkey, Blake, & Singh, JJ.

Municipal Corporations, Removal of public officer, Selectmen.
Elections, Recall. Practice, Civil, Preliminary
injunction. Appeals Court, Appeal from order of single
justice. Injunction.

Civil action commenced in the Superior Court Department on
March 24, 2017.

1
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. All ten
defendants are residents of Townsend. King also named the town
clerk of Townsend and members of the board of registrars as
party defendants; however, they have not appealed or otherwise
participated in the appeal.
2
Gordon N. Clark vs. 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. Like King, Clark also named the town
clerk of Townsend and members of the board of registrars as
party defendants; however, they have not appealed or otherwise
participated in the appeal.
 2

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 Green, J.

Civil action commenced in the Superior Court Department on
June 9, 2017.

A motion for a preliminary injunction was heard by Gary V.
Inge, J.

Ira H. Zaleznik (Benjamin W. O'Grady also present) for the
defendants.
John M. Dombrowski for Cindy King.

SINGH, J. 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
 3

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 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 (2012). See E.H.

Perkins Constr., Inc. v. Lincoln, 78 Mass. App. Ct. 208, 209

(2010). In making this assessment, we look to "the same factors

properly considered by the judge in the first instance."3

Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616

(1980).

A party moving for a preliminary injunction must show "(1)

a likelihood of success on the merits; (2) that irreparable harm

3
The single justice's order is reviewed on appeal in the
same manner as if it were an identical order by the trial judge
considering the matter in the first instance. See Aspinall v.
Philip Morris Cos., 442 Mass. 381, 389 (2004), citing Jet-Line
Servs. Inc. v. Board of Selectmen of Stoughton, 25 Mass App. Ct.
645, 646 (1988) (trial judge's denial of injunction irrelevant
to review of single justice's allowance of injunction).
 4

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 (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 (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.

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

(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
 5

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 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

". . . 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."
 6

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 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
 7

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;
 8

"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.

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

Ibid.

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 cite legally

valid grounds for doing so. On this basis, the single justice

concluded that King had established a likelihood of success on

the merits. The Superior Court judge in Clark's case adopted

the single justice's reasoning and ruled in Clark's favor. For

the reasons set forth below, we respectfully disagree. In our

view, the inquiry into whether the affidavits set forth proper

grounds for recall exceeded the scope of permissible judicial

review of a local recall petition. Before turning to the

language of the particular recall act at issue here, we briefly

review general principles established by existing case law.

Although now more than one-half a century old, the leading

case on recall elections remains Donahue v. Selectmen of Saugus,
 9

343 Mass. 93, 95 (1961). In Donahue, voters sought to recall

several selectmen on the ground of their votes in favor of

issuing a particular liquor license. The selectmen argued that,

in light of the consequence that a recalled official may become

ineligible for a time for appointment to any town office, the

"grounds" for recall, though undefined, should be construed as

"substantial grounds" involving "some wrong or serious

impropriety." Ibid. The Supreme Judicial Court rejected this

argument, reasoning that "[t]he function of the affidavit

[containing a statement of the grounds for recall] is not to

restrict the meaning of the unqualified word 'grounds' but is to

start in motion the recall procedure" (footnote omitted). Id.

at 95-96. "That the courts should conduct hearings and go

beyond the statement [of grounds] is not contemplated by [the

Saugus recall act]. This is clear from the direct wording of

that section as well as from the stringent requirements of [that

act] that there be a prompt recall election." Id. at 95.

Although the particular import of Donahue and subsequent

cases must be viewed in light of the specific language of the

recall acts at issue there, these cases also stand for larger

principles. We view the case law as adopting a largely

procedural approach to judicial review of recall petitions and

elections. Under this reading, the role of courts in policing

recall elections generally is limited to ensuring the integrity
 10

of the process. See Galvin v. Town Clerk of Winchester, 369

Mass. 175, 176 (1975) (recall petition held defective as it was

not supported by "affidavit" as required in Winchester recall

act). The cases counsel against courts being drawn into

evaluating the stated grounds for recall, something that would

run the risk of the courts usurping the public debate on local

issues to be decided at the ballot box. See Donahue v.

Selectmen of Saugus, 343 Mass. at 95-96 (recall act did not

contemplate courts going behind statement of grounds,

particularly given that implication of recall was simply that

"the voters prefer not to have the recalled official continue to

act"). As a recall election is "a device to make elected

officers responsive to the opinions of the voters on particular

issues," id. at 96, this purpose is undermined by judicial

scrutiny into the substance of the voters' stated grounds for

recall.

Our decision in Mieczkowski v. Board of Registrars of

Hadley, 53 Mass. App. Ct. 62, 64-65 (2001), typifies this

procedural approach. The Hadley recall act provided that an

elected official "may be recalled . . . for reason of lack of

fitness, incompetence, neglect of duties, corruption,

malfeasance, misfeasance, or violation of oath." Id. at 62-63.

The affidavit in support of recall simply restated these grounds

without any specific factual allegation. We rejected the
 11

argument that the affidavit needed to be more specific: "[W]e

do not think the purpose of the affidavit is to give notice to

the one who is the object of the recall of every specific

factual basis therefor or to afford that person an opportunity

to respond. . . ." Id. at 64. "To the extent that the

Legislature required an affidavit of grounds, that requirement

is more for the benefit of providing notice of the general

reasons for the recall to the voters, not to the elected

official." Ibid. As "[t]he requisite statement of grounds was

adopted by the requisite number of voters who approved the

recall by signing the petitions," we determined that the

procedural aspects of the recall process had been met to enable

the recall election to go forward. Id. at 65.

Turning to the act here, it similarly requires a petitioner

to submit an affidavit setting forth the grounds for recall in

order to start in motion the recall process. St. 1995, c. 27,

§ 2. Four grounds (lack of fitness, corruption, neglect of

duties, and misfeasance) are listed, followed by a statement

that "the exercise of discretion in voting on matters before the

officer" shall not constitute grounds for recall. Ibid.

Neither King nor Clark claims that the stated grounds for recall

involve their conduct in voting. Rather, they argue that this

language precludes complaints arising out of their discretionary

acts from serving as a basis for recall. We reject this
 12

interpretation because it reads out of the act the words "in

voting on matters before the officer," and expands a single

narrow exception into an all-encompassing one. See Chin v.

Merriot, 470 Mass. 527, 537 (2015) (basic tenet of statutory

construction is that statute is not to be interpreted to render

words within it superfluous). See also District Attorney for

the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629,

633 (1985) (where there is express exception, other exceptions

shall not be implied).

Although the petitions here set forth two of the listed

grounds as the basis for recall –- misfeasance and neglect of

duties -- King and Clark nevertheless contend that they could

not be recalled on these grounds unless their alleged conduct

fell within the language of the explanations set forth following

each of those terms in the act. Specifically, they claim that

they could not be recalled for "neglect of duties" unless the

voters alleged "repeated absences from meetings without just

cause," and that they could not be recalled for "misfeasance"

unless the voters alleged "performance of official acts in an

unlawful manner, or a willful violation of the open meeting

law." See St. 1995, c. 27, § 2. In other words, King and Clark

argue that the grounds for recall should be limited to the

highly specific acts included in the explanations following each
 13

ground, even though the act includes no express language of such

limitation.

Although the explanatory language following each ground,

when read on its own, provides some support for the

interpretation proffered by King and Clark, we view such

language, at best, as ambiguous. Given that Donahue and its

progeny caution against reading judicially enforceable

substantive standards into the recall process unless that intent

is clearly stated, we decline to adopt King's and Clark's

interpretation.4 In our view, the explanatory language instead

should be read as providing nonexhaustive examples of the type

of conduct that may be encompassed in each ground, rather than

4
The single justice reasoned that it was appropriate for
courts to review the sufficiency of grounds for recall by
analogizing to ballot initiative cases where courts are called
upon to review the propriety of proposed legislation being
placed on a ballot for public vote. See, e.g., Abdow v.
Attorney Gen., 468 Mass. 478 (2014) (reviewing whether
initiative petition to prohibit certain forms of gambling
involved proper subject to be placed on ballot for consideration
by voters at Statewide election). In our view, the analogy is
inapt. Unlike grounds for recall under the act, matters that
are appropriate subjects for Statewide ballot initiatives are
expressly limited by art. 48 of the amendments to the
Massachusetts Constitution. See art. 48 (list of matters
excluded from ballot initiative petitions including religion,
free speech, right to trial by jury). The only express
limitation in the act is that "the exercise of discretion in
voting" may not be grounds for recall (a provision that is not
implicated here). Additionally, an improper ballot initiative
has the potential to impair the rights of individuals. See
Carney v. Attorney Gen., 451 Mass. 803, 819-820 (2008). A
recall election, by contrast, impacts the elected official, who
is beholden to the electorate in any event.
 14

as definitions which limit each ground.5 Thus, we do not view

the explanatory language here as intended to restrict or limit

the grounds set forth in the act.

King and Clark nevertheless suggest that, even if the

explanatory language is merely illustrative, it provides

guidance as to the type of conduct or magnitude of transgression

that is required to provide a valid ground for recall. They

argue that the conduct alleged to constitute neglect of duties

and misfeasance in the recall petitions are "not remotely close"

to the examples specified in the act. We reject as unworkable

any interpretation that would require courts to do a comparative

analysis of various types of misconduct or to assess the

relative egregiousness of alleged misconduct.6

An interpretation that would allow an elected official to

challenge the sufficiency of the grounds for recall would mire

the process in litigation delay and undermine the purpose of the

act, which clearly contemplates a "'prompt recall election'

5
By providing an illustrative role, the explanatory
language is not rendered superfluous. See generally Wolfe v.
Gormally, 440 Mass. 699, 704 (2004) (statute to be construed to
give effect to all of its provisions).
6
As illustration, King was alleged to have neglected her
duties by, among other things, failing to obtain background
checks for town employees. Because the explanatory language
following the term "neglect of duties" mentions repeated
absences from meetings, a court would have to determine whether
the neglect of duties involved in repeated absences from
meetings is equivalent to the neglect of duties involved in
failing to obtain background checks for town employees.
Certainly, reasonable minds could differ as to this issue.
 15

. . . and not a prolonged period while the official under siege

mounts a defense." Mieczkowski v. Board of Registrars of

Hadley, 53 Mass. App. Ct. at 64-65, quoting from Donahue v.

Selectmen of Saugus, 343 Mass. at 95. See Wolfe v. Gormally,

440 Mass. 699, 704 (2004) ("seemingly conflicting language" in

statute must be interpreted "to make it an effectual piece of

legislation in harmony with common sense and sound reason"

[quotation omitted]). See also Peterborough Oil Co., LLC v.

Department of Envtl. Protection, 474 Mass. 443, 448 (2016) (if

statutory language is sufficiently ambiguous to give rise to

multiple rational interpretations, court gives effect to

interpretation that furthers purpose of statute).

Aside from challenging the validity of the grounds for

recall, King and Clark made no allegation of any procedural

deficiency. In our view, they did not establish a likelihood of

success on the merits of their claims that the recall petitions

were invalid.

b. Balance of harms.7 The typical balance of harms

analysis involves a consideration of the harm occasioned by each

party with and without an injunction. See Packaging Indus.

7
Although the failure to establish a likelihood of success
on merits is sufficient to deny a preliminary injunction, see
Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass.
at 227, we proceed to analyze the balance of harms in order to
address the important issue of where the public interest lies in
this context.
 16

Group, Inc. v. Cheney, 380 Mass. at 617. In a case such as

this, involving the interpretation of a statute that affects the

public, the overriding consideration is where the public

interest lies. See Commonwealth v. Mass. CRINC, 392 Mass. at

89. That determination in turn flows from the merits analysis.

Were we to conclude that King and Clark had demonstrated that

the recall election rested on invalid grounds, then it might

follow that the public interest would not be served by holding a

recall election which later may have to be nullified.

Having determined that King and Clark are not likely to

prevail on the merits of their claims, however, we view the

balance of harms quite differently. The harm to the public

interest if a preliminary injunction issues enjoining the recall

election is that the voters will be deprived of the ability to

make their elected officials accountable by recall, as the

course of litigation could likely extend to the expiration of

the official's term in office. The public would, of course,

have the ability to vote in the next regularly scheduled

election. However, that remedy would undermine and possibly

nullify the purpose of the act.

As the Supreme Judicial Court observed over a century ago:

"'The object of elections is to ascertain the popular
will and not to thwart it. The object of election
laws is to secure the rights of duly qualified voters,
and not to defeat them.' This must be borne in mind
in the construction of such statutes, and the
 17

presumption is that they are enacted to prevent fraud
and to secure freedom of choice, and not by technical
obstructions, to make the right of voting insecure."

Blackmer v. Hildreth, 181 Mass. 29, 31 (1902), quoting from

People v. Wood, 148 N.Y. 142, 147 (1895).

For their part, King and Clark argue that the absence of a

preliminary injunction subjects them to the negative impact on

their reputations in the community caused by the stigma of a

recall election and the need to campaign for a special election

with typically lower voter turnout, and a related greater

likelihood of losing the election. The identified harms

potentially suffered by King and Clark are those that are

attendant to any public official who is subject to recall.8 In

mitigation of these burdens, the act incorporates a number of

provisions to protect an elected official from undue harassment

by a minority of voters. First, the act provides the elected

official with a four-month period of immunity from recall to

allow the official to become established in the position. St.

1995, c. 27, § 1. Second, it requires ten percent of the

voters, with 125 from each precinct, to approve the recall

8
An elected official has no personal "right" to retain his
or her position. Rather, an elected official serves at the will
of the people and stands in contrast to other officials who may
be appointed or hired. See Mieczkowski v. Board of Registrars
of Hadley, 53 Mass. App. Ct. at 65 n.4 (distinguishing cause and
reason to remove appointed official from recall procedure by
voters).
 18

petition in order to ensure that there is broad public support

for a recall election. Id. at § 2. Third, it allows the

officials subject to recall to stand as candidates to succeed

themselves. Id. at § 4. And finally, any vote in favor of

recall is not effective unless twenty-five percent of the

electorate participates in the recall election.9 Id. at § 6.

Thus, any harm to the elected officials caused by the recall

election is by no means inevitable. Even after a recall

election, the officials may retain their positions if there is

low voter turnout, or if they succeed themselves after recall,

or if the vote is against recall. Particularly in light of our

conclusion that King and Clark do not have a likelihood of

success on the merits of their claims, we conclude that the

balance of harms does not weigh in their favor. We also

conclude that the public interest lies strongly in favor of

allowing the recall election to proceed so that the will of the

people may be ascertained.

Conclusion. In King, 17-P-809, the order of the single

justice granting the preliminary injunction is reversed, and the

injunction is dissolved. In Clark, 17-P-1096, the order of the

9
To put these requirements into perspective, it is worth
noting that less than twenty-five percent of town voters
participated in the general election in which Clark came to
office.
 19

Superior Court judge granting the preliminary injunction is

reversed, and the injunction is dissolved.10

So ordered.

10
At oral argument, the parties asked this court to address
the issue of whether the recall election could go forward as to
Clark. At that time, he was within six months of the end of his
term, and the act provides that officials who have "more than
six months remaining in the term of such office on the date of
filing of the affidavit (accompanying the recall petition), may
be recalled from office" St. 1995, c. 27, § 1. As the issue
was not briefed, we decline to address it and instead leave that
issue to be pursued in the trial court.