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SJC-12509

         CINDY KING    vs.    TOWN CLERK OF TOWNSEND & others.1



            Suffolk.         April 6, 2018. - June 22, 2018.

    Present:   Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.


Municipal Corporations, Removal of public officer, Selectmen.
     Elections, Recall. Practice, Civil, Preliminary
     injunction. Injunction.



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

     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 Mark V. Green, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     John M. Dombrowski for the plaintiff.
     Ira H. Zaleznik (Benjamin W. O'Grady & John E. Page also
present) for Joseph Z. Shank & others.


     1 Board of registrars of Townsend, 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.
                                                                    2


     Lauren F. Goldberg, for town clerk of Townsend & another,
was present but did not argue.


     BUDD, J.   Ten registered voters (petitioners)2 residing in

the town of Townsend (town) petitioned the town to hold a recall

election to remove the plaintiff, Cindy King, a member of the

town's board of selectmen (board),3 from office pursuant to St.

1995, c. 27, the town's recall act (act).   On April 9, 2018, we

issued an order affirming the order of a single justice of the

Appeals Court preliminarily enjoining the town from holding a

recall election to remove the plaintiff from office, and we

indicated then that an opinion would follow.   This opinion

states the reasons for that order.   Because the act provides for

a recall vote to take place only on grounds not alleged here,

the recall election sought in this instance may not proceed.

     Background.   In 2017, the petitioners submitted to the town

clerk a petition that sought to recall the plaintiff.   See St.




     2 The petitioners included those who initiated the recall
petition and certain town officials who acted upon it. When we
refer to the petitioners, we mean the former group.

     3 Initially a number of the petitioners sought to recall
board member Gordon Clark as well, and he filed a separate
lawsuit that eventually was consolidated with the plaintiff's
appeal before the Appeals Court. See King v. Shank, 92 Mass.
App. Ct. 837 (2018). However, by the time this matter came
before us, Clark had fewer than six months remaining in his
term, and therefore, pursuant to the act, he is not subject to
recall. See St. 1995, c. 27, § 1.
                                                                    3


1995, c. 27, § 2.4   The affidavit that accompanied the petition

cited misfeasance and neglect of duty as grounds for the recall,

alleging that, in the plaintiff's role as a member of the board,

she

      "neglected her duty to adequately represent the people of
      [the town] by refusing to argue in the affirmative for the
      public to be allowed a time for public communication at
      [board] 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 her position of authority and by
      imposing her 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] prior to signing the employment contract .
      . . ."

      In response, the plaintiff commenced an action in Superior

Court to enjoin the recall election, and on the same day, she

filed a motion for a preliminary injunction.   She contended that

the allegations made against her were legally insufficient to

initiate a recall under the act.   A Superior Court judge denied

her motion for a preliminary injunction, and the plaintiff

appealed to a single justice of the Appeals Court, who ordered

      4Municipalities are authorized to exercise certain legal
powers pursuant to the Home Rule Amendment. See art. 89, § 1,
of the Amendments to the Massachusetts Constitution. Under the
Home Rule Amendment, a city or town may petition the Legislature
to pass a recall statute specific to it alone. See art. 89, §
8, of the Amendments.
                                                                    4


that a preliminary injunction issue.    After a single justice of

the Supreme Judicial Court denied the petitioners' subsequent

petition for relief, the Appeals Court reversed the order of the

single justice of the Appeals Court and dissolved the

injunction.   See King v. Shank, 92 Mass. App. Ct. 837, 847

(2018).   We granted the plaintiff's application for further

appellate review, and as mentioned, we issued an order affirming

the order of the single justice of the Appeals Court.

    Discussion.    We review a grant or denial of a preliminary

injunction for error of law or abuse of discretion.     Eaton v.

Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 574 (2012).     Here,

where there is a question of statutory interpretation, we review

the matter de novo.   Commonwealth v. Escobar, 479 Mass. 225, 227

(2018).

    1.    Interpreting the act.   Section 1 of the act provides:

    "Any person who holds an elected office in the town . . .
    and who has held that office for four months and has more
    than six months remaining in the term of such office on the
    date of filing of the affidavit, referred to in [§ 2], may
    be recalled from office solely upon the grounds set forth
    in said [§ 2] by the registered voters of said town."

St. 1995, c. 27, § 1.

    Pursuant to the act, a recall election may be initiated by

way of a petition signed by a certain number of registered

voters, accompanied by an affidavit identifying the officer whom
                                                                     5


the voters seek to recall and "a statement of the grounds upon

which the petition is based as set forth herein:

    "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;

    "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."

St. 1995, c. 27, § 2.

    The parties contest the significance of the short

description following each of the four categories in § 2.      The

plaintiff argues that the words following each category are

definitions of the grounds listed, excluding conduct not

explicitly specified; the petitioners contend that the

descriptions are nonexhaustive examples of the type of conduct

that could lead to a recall election.   For the reasons that

follow, we agree with the plaintiff.

    First, § 1 of the act states that one may be recalled

"solely upon the grounds set forth in said [§ 2]" (emphasis

added).   If the descriptions after each of the four categories

of prohibited behavior were intended to be only examples, the

grounds would be nearly boundless, because one could easily
                                                                    6


allege conduct that could fit within the scope of one of the

four listed categories.    This interpretation would render the

term "solely" meaningless.    See Commonwealth v. Disler, 451

Mass. 216, 227 (2008) (court should read statutes so that no

word is meaningless).

    Second, we note that although § 2 of the act employs the

phrase, "which shall include but not be limited to," indicating

nonexhaustive examples, the phrase does not modify any of the

four categories of qualifying conduct.     The phrase is found in

the "Neglect of duties" category:    "Neglect of duties, repeated

absences from meetings without just cause, which shall include

but not be limited to illness or regular vacation periods"

(emphasis added).     The phrase modifies the words "just cause";

it does not modify "Neglect of duties," nor does it modify

"repeated absences."    In effect, the phrase expands not the

types of conduct that might be considered neglect of duties but

instead exceptions to such conduct.

    The drafters of the act clearly knew how to indicate a

nonexhaustive list.     As they did not do so in any of the four

categories of qualifying conduct, we must assume that the

failure to do so was purposeful.    See Commonwealth v. Gagnon,

439 Mass. 826, 833 (2003) ("[W]here the legislature has

carefully employed a term in one place and excluded it in

another, it should not be implied where excluded" [citation
                                                                   7


omitted]).   Thus, we conclude that the four categories are

intentionally narrowly circumscribed.

       Third, if we interpreted the descriptions to be

nonexhaustive examples rather than defining the scope of the

categories, they would serve as a source of confusion rather

than clarity.   For instance, if "conviction of a felony

involving moral turpitude, conviction of bribery, or extortion"

were a mere illustration of the category "corruption" rather

than a definition, it would be unclear whether a procedural

posture short of conviction would also qualify as corruption,

including allegations, an arrest, or a verdict in a civil case

in connection with such activity.    In contrast, as a definition,

the act makes clear that only a "conviction of a felony

involving moral turpitude, [or a] conviction of bribery, or

extortion" could subject an elected official to a recall vote

(emphasis added).    We decline to adopt an interpretation that

renders the act ambiguous.    See Albernaz v. United States, 450

U.S. 333, 342 (1981), quoting Bifulco v. United States, 447 U.S.

381, 387 (1980) ("we may not manufacture ambiguity").

       The petitioners claim that construing the descriptions of

each ground as definitions, rather than as nonexhaustive

examples, is nonsensical because the plain meaning of each of

the terms is clearly broader than that which is presented in the

act.   This argument fails.   Providing definitions of the terms
                                                                    8


used in a statute is a way to narrow or expand the reach of that

statute.   Statutes often provide specific definitions of their

terms.   See, e.g., G. L. c. 25, § 3 (defining regulated industry

company); G. L. c. 89, § 4C (defining heavy commercial

vehicles); G. L. c. 111, § 71 (defining responsibility and

suitability for license to operate nursing home).

     The Legislature has empowered each municipality to

determine whether to have a recall statute and, if so, how wide-

ranging or narrow it should be.   Commonwealth v. Lammi, 386

Mass. 299, 300 (1982), and authorities cited.    Here, the

description of each ground gives notice to the citizens of the

town, and to its elected officials alike, of the conduct for

which a recall election might be initiated.     Whether it is wiser

to have a broad or a narrow recall statute is not a question for

this court.5   See id.

     As we conclude that the act allows for a recall election

only under one or more of four enumerated circumstances, each of

which is specifically defined, we turn to the petitioners'

recall petition to determine whether it alleges facts that allow

for a recall election in this instance.




     5 The petitioners also take the position that if the
descriptive words following each of the grounds were
definitions, then the terms themselves would be superfluous.
This argument also fails, as it would make any definition
redundant in relation to the term it defines.
                                                                   9


     2.   The recall petition.   The affidavit that accompanies

the petition in this case alleges that the plaintiff failed to

represent adequately the people of the town by (1) failing to

support public communication at board meetings, (2) impeding the

police chief's work by imposing her views on day-to-day

management of the police department, (3) failing to support

prior agreements made between the town and a police lieutenant,

and (4) failing to advocate for a background check on an

applicant to a town position.    Although the petitioners claim

that the plaintiff's actions or omissions amount to misfeasance

and neglect of duty, the affidavit does not allege "performance

of official acts in an unlawful manner, or a willful violation

of the open meeting law," the definition of misfeasance under

the act; nor does it allege "repeated absences from meetings

without just cause," the act's definition of neglect of duty.6

See St. 1995, c. 27, § 2.

     Relying on Donahue v. Selectmen of Saugus, 343 Mass. 93, 95

(1961), and Mieczkowski v. Board of Registrars of Hadley, 53

Mass. App. Ct. 62, 65 (2001), the petitioners contend that the

purpose of the affidavit is simply to commence the recall

procedure, and to give notice to the voters of the general

reasons for the petition; it is not meant to provide an

     6 The allegations also fail to qualify as grounds for
corruption or lack of fitness as defined by the act. See St.
1995, c. 27, § 2.
                                                                     10


opportunity to litigate the merits of the recall.     They further

argue that it is for the citizens of the town, not the courts,

to determine whether the stated grounds are sufficient.

Although this argument may have merit in some circumstances, it

cannot succeed here, where the board drafted the act to restrict

the grounds for recall to those it enumerated.    Applied here,

the petitioners' argument would mean ignoring the limitations of

the act.

     In Donahue, 343 Mass. at 94, we reviewed the Saugus recall

act, which simply required "grounds," i.e., any reason at all,

to initiate a recall.    See St. 1947, c. 17, § 43.   There we held

that the recall effort was proper because the Saugus act did not

restrict the meaning of "grounds" to require "serious

impropriety."7   Donahue, supra at 95.   In Mieczkowski, the

Appeals Court interpreted Hadley's recall act, which allowed for

a recall election based upon "lack of fitness, incompetence,

neglect of duties, corruption, malfeasance, misfeasance, or

violation of oath."     Mieczkowski, 53 Mass. App. Ct. at 62-63,

quoting St. 1987, c. 384, § 1.    There were no definitions or

other descriptors to accompany the grounds.    The Appeals Court


     7 The petitioners filed an affidavit seeking a recall based
on the official having "[v]ot[ed] to award an all-alcoholic
beverage goods license detrimental to the best interests of the
town and its citizens and in direct opposition to the expressed
desires of the people living in the area where said license was
granted." Donahue v. Saugus, 343 Mass. 93, 95 (1961).
                                                                  11


concluded that the affidavit, which tracked the statute but did

not set forth any supporting factual assertions, satisfied the

Hadley act.8   Id. at 63, 65.

     Both the Saugus and Hadley recall statutes are broader than

the act, which, as discussed supra, allows for a recall election

only under one or more of four enumerated circumstances, each of

which are specifically defined.    Although we agree that a prompt

process is important in recall elections, see Donahue, 343 Mass.

at 95, we cannot abandon our responsibility to interpret and

apply the statute before us.

     As the allegations in the affidavit supporting the petition

for recall do not fall within the act's enumerated grounds, the

recall election may not proceed.

     Conclusion.   For the foregoing reasons, on April 9, 2018,

we affirmed the order of the single justice of the Appeals Court

preliminarily enjoining the town from holding a recall election

to remove the plaintiff from office.




     8 The petitioners' affidavit stated only that the
petitioners sought a recall simply "for reason of lack of
fitness, incompetence, neglect of duties, or misfeasance."
Mieczkowski v. Board of Registrars of Hadley, 53 Mass. App. Ct.
62, 63 (2001).
