Opinion
CA 00-0657C
June 7, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS/MOTION FOR JUDGMENT ON THE PLEADINGS ON FIRST AMENDED COMPLAINT
A. INTRODUCTION
The plaintiff seeks a declaratory judgment and an order requiring the Auburn Board of Selectmen to submit to the voters of the town at large two referendum questions on appropriations for a new high school if the Board determines that plaintiff's referendum petitions were signed by the required number of registered voters in each precinct. The defendants (the Town, the Board of Selectmen, and the Executive Secretary) contend that the content of the referendum petitions did not comply with the requirements of the Auburn Town Charter. The petitions were legally sufficient in their content to accomplish their intended purpose under the Charter and the law of the Commonwealth. On the undisputed facts that are material, the plaintiff is entitled as a matter of law to a judgment in his favor on Counts One through Four of the First Amended Complaint. The defendants are entitled to a dismissal of the remaining counts.
Counts One through Four of the First Amended Complaint seek a declaratory judgment and an order in the nature of a writ of mandamus concerning the issue of whether the content of the plaintiff's two referendum petitions complied with the Town Charter requirements. See G.L.c. 231A, § 2; c. 249, § 5. The defendants' motion seeks a judgment on the pleadings on Counts One through Four. They contend that these counts are appropriate for a decision as a matter of law either for against the defendants. The defendants do not dispute the facts stated in the First Amended Complaint that are material to the question of law raised by Counts One through Four. See M.R.Civ.P. 12 (c) and 56. The defendants have requested a prompt ruling on their motion because delay would jeopardize state and Federal funding opportunities for the school construction projects. The undisputed facts that are material to Counts One through Four are summarized below based on the material allegations in the First Amended Complaint.
B. UNDISPUTED MATERIAL FACTS ON COUNTS ONE THROUGH FOUR
The Town of Auburn has a representative town meeting. In early March, 2000, the Board of Selectmen sent a warrant to town meeting members for the March 16, 2000, Town Meeting. Articles 3 in the warrant presented the question of whether the Town Meeting would vote to appropriate an unspecified sum of money for the acquisition, by purchase, eminent domain or otherwise, of a certain parcel of land for the construction of a new high school. Article 4 in the warrant presented the question of whether the Town Meeting would vote to appropriate an unspecified sum for constructing, equipping and furnishing a new high school and for constructing an addition to and remodeling, reconstructing and making extraordinary repairs to the middle school, and whether the appropriation should be raised by borrowing or otherwise. Article 4 also presented the question of whether the Town Meeting should rescind the votes of the Town passed under certain specified articles on October 1, 1998, May 13, 1999, and July 8, 1999.
The Auburn Town Charter, § 5.04, provides a procedure for the submission to the voters of the town at large any question involved in a vote of a town meeting if a petition to submit such a question to the voters is signed by not less than three percent of the registered voters in each precinct. A petition for submitting a town meeting question to the voters at large must be filed within seven days, exclusive of Sundays and holidays, from the dissolution of the town meeting. Id.
In early March, 2000, before the March 16 Town Meeting, the plaintiff began a petition drive to have the voters overturn what the plaintiff expected would be an affirmative vote of the March 16 Town Meeting authorizing appropriations for the high school and middle school projects set forth in Articles 3 and 4 of the warrant.
The Town Meeting on March 16, 2000, approved appropriations on Articles 3 and 4. On Article 3, the Town Meeting approved a motion that $2,343,755 be appropriated to acquire specified parcels by eminent domain for the purpose of constructing a new high school. On Article 4, the Town Meeting approved a motion that $32,000,000 be appropriated for constructing, equipping and furnishing a new high school, and that $13,500,000 be appropriated for constructing an addition to and remodeling, reconstructing and making extraordinary repairs to the middle school. The motion that was approved on Article 4 also authorized The Treasurer with the approval of the Board of Selectmen to borrow $45,500,000 to meet these appropriations. On the same Article 4 motion, the Town meeting rescinded votes of the Town passed on specified articles on October 1, 1998, May 13, 1999, and July 8, 1999.
After the dissolution of the Town Meeting, the plaintiff filed his petitions with the Board of Selectmen within the seven day period prescribed by the Town Charter, § 5.04. On March 27, 2000, the Board of Selectmen voted unanimously to deny the plaintiff's petitions to submit to the voters at large the votes on Articles 3 and 4 of the March 16, 2000, Town Meeting. The plaintiff then filed this action.
C. THE REFERENDUM PETITIONS COMPLIED WITH THE TOWN CHARTER
The defendants contend that the referendum petitions were invalid under the Town Charter, § 5.04, because the petitions did not identify the challenged Town Meeting vote in substantially the same language and form in which the question was finally submitted to the Town Meeting. The second paragraph of Section 5.04 of the Charter states: "Any question submitted shall be stated upon the ballot substantially in the same language and form in which it was finally presented to the representative town meeting by the moderator as recorded in the records of the meeting." This paragraph requires that the ballot question submitted to the voters at large be in substantially the same language and form as the question that was finally presented to the Town Meeting at the time of the Town Meeting vote.
By itself, the second paragraph of Section 5.04 does not address what form a referendum petition must take. Nevertheless, Section 5.04 could not be fairly interpreted or applied without requiring that the referendum petition clearly identify the particular town meeting vote that is being challenged. This is implicit in a fair reading of Section 5.04 as a whole. Petitioners are entitled to know what they are petitioning for, just as voters are entitled to know what they are voting on. See Troland v. Malden, 332 Mass. 351, 356 (1955).
A referendum petition is a solemn matter. If the Board of Selectmen is presented with a petition that does not clearly identify the town meeting vote being challenged, the Board has a duty to reject the petition. Requiring less would invite confusion about the intent of the petitioning voters. The rights of the voters are diminished by either undue looseness or undue rigidity in applying the requirements for referendum petitions. See Morway v. Webster, 29 Mass. App. Ct. 604, 608-12 (1990); Camacho v. Board of Selectmen of Stoughton, 27 Mass. App. Ct. 178, 180-82 n. 5 (1989); Marino v. Town Council of Southbridge, 7 Mass. App. Ct. 461 (1979); cf. Capezzuto v. State Ballot Law Commission, 407 Mass. 949, 955-57 (1990).
The petitions in this case are sufficiently clear and specific under the Town Charter and the applicable case law. Petition Number One petitions the Board of Selectmen to submit to the voters at large "in the final language and amount in which Town Meeting approved it per Article 3 of the Special Town Meeting beginning on March 16, 2000, the vote of the Representative Town Meeting to appropriate a sum of money for the acquisition by purchase, eminent domain or otherwise of land for the purpose of constructing a new high school." This plainly identifies the challenged vote, even though the petition does not state the amount of the appropriation that was voted. The "Petition Body" tracks the language of Article 3 of the warrant. Petition Number One also states: "In signing this petition, we acknowledge that the language of the final motion voted on, or the amount appropriated, may not be identical to the warrant article. Further, we authorize filing of this petition with our signatures even if the motion approved by Town Meeting mentions something not in the warrant article."
While the petition is broad, its borders are distinct. Petition Number One unmistakably challenges any vote to appropriate money under Article 3 "for the acquisition by purchase, eminent domain or otherwise of land for the purpose of constructing a new high school." The intent of the signers is plain on the face of the petition. A referendum petition such as this one that identifies with reasonable clarity a particular town meeting vote in favor of an appropriation is a lawful means under the charter for seeking submission of that vote to the voters at large. See Camacho, supra, 27 Mass. App. Ct. at 181.
Petition Number Two uses similar language to identify with sufficient clarity the Town Meeting vote being challenged. Petition Number Two requests the Board of Selectmen to submit to the voters at large, "in the final language and amount which Town Meeting approved it per Article 4 of the Special Town Meeting beginning on March 16, 2000, the vote of the Town Meeting to appropriate a sum of money for constructing, equipping, and furnishing a new high school." This petition plainly seeks to submit to the voters at large the Town Meeting vote to appropriate any sum of money under Article 4 "for constructing, equipping, and furnishing a new high school."
Petition Number Two presents a more difficult issue because Article 4 of the Town Meeting warrant calls for appropriations for both a new high school and the existing middle school. Petition Number Two uses the following language to address possible Article 4 appropriations for both a new high school and another building:
[W]e authorize filing of this petition with our signatures even if the motion approved by Town Meeting mentions something not in the warrant article, or if the vote to appropriate funds for a new high school is combined with a vote to appropriate funds for renovating other buildings. If Article 4 is combined for action with other articles, we authorize filing this petition to subject that action or vote to a referendum vote by the public at large. We request that any vote or votes relative to constructing a new high school be subject to a referendum.
If separate votes are taken to appropriate funds for middle school renovation . . . we do not request that those votes be subject to a referendum.
Addressing the contingencies of a single vote and separate votes for the two schools made Petition Number Two more complicated, but it did not make it invalid. The petition plainly states the signers' intent to have submitted to the voters at large any vote under Article 4 that appropriates any money "for constructing, equipping, and furnishing a new high school." The petition expressly requests this action even if "the vote to appropriate funds for a new high school is combined with a vote to appropriate funds for renovating other buildings." Petition Number Two is neither misleading nor confusing. Compare Troland v. Malden, 332 Mass. 351, 356 (1955); Scalley v. Woburn, 358 Mass. 815, 816 (1971). The Town Meeting vote being challenged is clearly identified in the petition, and the Board of Selectmen must submit that vote to the voters at large if the petition is signed by the required number of voters in each precinct.
The court has also carefully considered the issue of whether the petitions are invalid because they may have been signed before the Town Meeting voted the specific appropriations and before the dissolution of the Town Meeting. In this case the two petitions plainly identified the particular appropriation votes that were being challenged, even though the amount of each appropriation was not stated on the petition. These petitions left no room for confusion about what Town Meeting vote was to be submitted to the voters. These were not either-or petitions. The petitions only challenged votes to appropriate money under the specified articles for specified purposes. If the Town Meeting voted to not make the appropriations, the petitions would be rendered moot. See Opinion of the Justices, 370 Mass. 879, 884 (1976), discussing charters that permit referendum petitions on town meeting votes that defeat the action proposed in the warrant. Considering the clarity with which the petitions in this case identified the challenged votes, the petitions are not invalid under the Town Charter even if necessary signatures were obtained before the votes were taken and before the Town Meeting was dissolved.
D. OTHER COUNTS
Counts Five through Eight are dismissed because the declaratory and injunctive relief that will be granted on Counts One through Four is sufficient to require the defendants to comply with the court's interpretation of the referendum petition procedures in the Auburn Town Charter regarding the plaintiff's two petitions. The plaintiff is not entitled to any additional relief under Counts Five through Eight.
Counts Five and Six seek to assert claims of ten taxable inhabitants of the Town under the authority of G.L.c. 40, § 53. These counts must be dismissed for the additional reason that the First Amended Complaint is brought by only one taxpayer plaintiff rather than ten. The class action procedures under M.R.Civ.P. 23 cannot be used to circumvent the statutory requirement of G.L.c. 40, § 53, that there be at least ten taxpayer plaintiffs bringing the action in their own names.
Counts Five and Six include a claim that the town meeting warrant was posted at a closed Dunkin Donuts store in violation of the Town By-Laws. By agreement of the parties and the court, this claim was treated as a summary judgment issue. The affidavit of John David Briggs establishes without dispute that he posted the warrant at another active business establishment when he discovered that the Dunkin Donuts was closed for renovations. The defendants are entitled to summary judgment dismissing this portion of Counts Five and Six.
With respect to Counts Nine through Twelve, considering the entire First Amended Complaint, the fact allegations are insufficient as a matter of law to support a claim for a violation of G.L.c. 93, § 102, a violation of G.L.c. 265, § 37, discriminatory copying fees, or a violation of the plaintiff's rights under the laws or constitution of the Commonwealth other than as addressed in the court's rulings and in the relief granted on Counts One through Four. For this reason Counts Nine through Twelve are dismissed.
E. ORDER
A judgment will enter in accordance with the following terms:
(1) A declaratory judgment on Counts One and Two of the First Amended Complaint declaring that: (a) the plaintiff's Petition Number One and Petition Number Two regarding the votes on Articles 3 and 4 of the Town Meeting of March 16, 2000, are lawfully sufficient in their content under the Auburn Town Charter, § 5.04, to identify the Town Meeting votes that the petitions seek to have submitted to the voters at large; and (b) the plaintiff is entitled to have the Board of Selectmen promptly determine under the Auburn Town Charter, § 5.04, if the said petitions have been signed by the necessary number of registered voters in each precinct so as to require submission of the questions to the voters at large.
(2) Under Counts Three and Four of the First Amended Complaint, the Auburn Board of Selectmen is ordered: (a) to promptly determine under the Auburn Town Charter, § 5.04, if the plaintiff's Petition Number One and Petition Number Two regarding the votes on Articles 3 and 4 of the Town Meeting of March 16, 2000, have been signed by the necessary number of registered voters in each precinct; and (b) if either or both petitions has been signed by the necessary number of voters in each precinct, the Board of Selectmen is further ordered to submit the question or questions to the voters at large in accordance with the Auburn Town Charter, § 5.04.
(3) Counts Five through Twelve of the First Amended Complaint are dismissed.