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SJC-12780

                 SUSAN BOSS   vs.   TOWN OF LEVERETT.



       Franklin.       December 9, 2019. - April 23, 2020.

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


Public Employment, Retirement benefits. Municipal Corporations,
     Insurance, Allocation of insurance premiums, Town meeting,
     Warrant for town meeting. Statute, Construction.



     Civil action commenced in the Superior Court Department on
October 28, 2016.

     The case was heard by Mark D. Mason, J., on motions for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Rosemary Crowley (Erin J. Meehan also present) for the
defendant.
     Ryan P. Dunn for the plaintiff.


    CYPHER, J.     A retired town employee, Susan Boss, filed a

complaint to obtain a declaration that the town of Leverett

(town) was obligated to pay fifty percent of the full premium

cost for health insurance for retired town employees and their
                                                                      2


dependent spouses.    This is an appeal by the town from the grant

of summary judgment in Boss's favor by a judge in the Superior

Court.    The town also appeals from the corresponding denial of

the town's cross motion for summary judgment.     We transferred

this case sua sponte from the Appeals Court.     There are two

issues presented here:     first, whether the town's adoption of

G. L. c. 32B, § 9A, obligated it to contribute toward the

premiums associated with retirees' dependents; and second, if

G. L. c. 32B, § 9A, is interpreted to include these premiums,

whether it effectively was adopted at the town meeting on April

24, 2004.

    We hold that by adopting G. L. c. 32B, § 9A, the town was

required to cover fifty percent of the premiums for both

retirees and the retirees' dependents.     We further hold that the

town successfully adopted G. L. c. 32B, § 9A, at the town

meeting held on April 24, 2004.     For the reasons that follow, we

affirm.

    Background.      1.   Legislative proceedings of the local town

meeting in 2004.     The town is a municipal corporation located in

Franklin County that, pursuant to G. L. c. 32B, provides access

to group health insurance coverage for current and retired

employees of the Leverett public schools.

    On April 24, 2004, the town convened its annual town

meeting, during which the town's citizens voted on proposed
                                                                     3


bylaws and amendments.1    In accordance with G. L. c. 39, § 10, a

warrant was posted before the town meeting to inform the town's

citizens of the matters on which to be voted.2   Two of the

articles contained in the warrant, articles 2 and 4, concerned

retirement benefits.    Article 2 of the warrant proposed (1) the

adoption of specific language regarding retiree health insurance

premiums and (2) a budget appropriation for specified insurance

premiums.    It aimed "to raise and appropriate the sum of $23,500

to pay one-half the premium costs payable for life and medical

insurances in [fiscal year] 2005 for retired [town] employees."3


     1 The process for proposing a bylaw or subsequent amendment
is detailed in chapter 11 of the town's code. Code of Leverett,
sections 11-1 to 11-9 (Apr. 2011). See Code of Leverett,
sections 1-2, 9-6. Under section 11-5 of the code, any ten
voters of the town may, through a written petition to the select
board, include an article in the warrant of a scheduled annual
town meeting. Under section 11-6, articles must be submitted to
the select board thirty days prior to the town meeting.

     2 The requirements for a warrant are subject to G. L. c. 39,
§ 10. Notice must be given at least seven days before the
annual town meeting, and the warrant must state the time and
place of the meeting and the subjects on which to be acted.

     3   The language adopted under article 2 was as follows:

     "The town will pay [fifty percent] of the cost of an
     individual health plan offered by the town for a retiree as
     long as the retiree notifies the town of his/her choice to
     enroll in a Leverett health insurance plan within [sixty]
     days of retirement from the town or a qualifying event; the
     individual was enrolled in a Leverett health insurance
     program at the time of retirement; the retiree is older
     than the eligible retirement age; and the retiree has a
     minimum of ten (10) years of credible service with the
     [town] in a beneficial position. Employees eligible for
                                                                     4


Article 4 was a ballot question that used the language mandated

by G. L. c. 32B, § 9A:    "Shall the town pay one-half the premium

costs payable by a retired employee for group life insurance and

for group general or blanket hospital, surgical, medical, dental

and other health insurance?"4

     At the town meeting, article 2 was moved for a vote as

written.    The motion for the vote was then seconded and carried

unanimously.   Because article 2's passage was contingent upon

the affirmative vote of the ballot question presented in article

4, the polls were opened for voting on article 4.    Attendees

cast their ballot for article 4, which passed with 184 ballots

in favor and twenty-one opposed.    Therefore, both articles 2 and

4 passed.




     Medicare shall be required to obtain such coverage and
     comply with [G. L. c. 32B, § 18].

     "A retiree, who has not reached Medicare-eligible age, can
     apply [fifty percent] of the individual premium of his/her
     chosen health plan to the family or employee-plus one
     premium of the same health plan until the retiree reaches
     Medicare-eligible age."

     4 General Laws c. 32B, § 9A, provides in part: "A town
shall provide for the payment by vote of the town at a town
meeting or if a majority of the votes cast in answer to the
following question which shall be printed on the official ballot
to be used at an election in said town is in the
affirmative: -- 'Shall the town pay one-half the premium costs
payable by a retired employee for group life insurance and for
group general or blanket hospital, surgical, medical, dental and
other health insurance?'"
                                                                     5


     2.     Boss's employment history and health insurance

coverage.    Boss worked as a teacher for Leverett public schools

from 1990 until her retirement in 2015.     During her employment,

she subscribed to health insurance coverage through a group

plan.    The "1+1" or "Employee Plus One" family group plan was

offered to all Leverett public school employees pursuant to

G. L. c. 32B.    Before her retirement, the "1+1" plan covered

Boss and her dependent spouse.

     Nearing her retirement, Boss was informed that after

retirement she would be able to continue with her family plan

but that the town would not pay fifty percent of her husband's

premium coverage.     Boss consulted with the Leverett Education

Association (association) about this issue.5    The association

stressed to the town that the payments should be made for both

the retiree and his or her dependents.

     Boss opted to continue participating in the group health

insurance plan offered by the town.     However, since her

retirement, the town has paid fifty percent of Boss's premium

contribution based only on the premium cost for individual

coverage.    Because the town has covered only fifty percent of

her contribution, Boss has been responsible for covering the




     5 The Leverett Education Association is the sole agent for
the purposes of collective bargaining on behalf of the teachers
in Leverett public schools.
                                                                       6


balance for the "1+1" plan premium in order to continue coverage

for her spouse.       In November 2017, Boss became Medicare

eligible, and began to receive Medicare coverage, pursuant to

article 2 guidelines,6 with the town contributing one-half of the

premium cost of that coverage.       Since that time, Boss has

continued to pay the full premium for her husband's individual

plan.

       3.    Provisions of G. L. c. 32B previously adopted by the

town.      The town previously adopted G. L. c. 32B, §§ 7A, 9D, and

10, in 1968.      Code of Leverett, Appendix, chapter A232,

section A (Apr. 2011).       According to G. L. c. 32B, § 10, once

the local option or one of its sections is accepted, it cannot

be rescinded or revoked.      Municipal employees will be covered

automatically unless they give written notice "indicating that

[they are] not to be insured for such coverages."       G. L. c. 32B,

§ 4.       In addition, § 7A clarifies that once the local option is

adopted, the municipal employee shall cover "fifty per cent of a

premium for the insurance of the employee and his dependents and

the government unit shall contribute the remaining fifty per

cent of such premium."       G. L. c. 32B, § 7A (a).   This includes

additional premiums for an employee's dependent child who is




       Under article 2, adopted by the town, "[e]mployees
       6

eligible for Medicare shall be required to obtain such
coverage."
                                                                       7


nineteen years or older and is mentally or physically incapable

of earning his or her own living.     Id.   Further, G. L. c. 32B,

§ 9D, provides for the town's contribution of one-half of the

premiums payable by the surviving spouse of an employee or

retiree.

    Discussion.     1.   Standard of review.   "We review a grant of

summary judgment de novo to determine whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to judgment as a matter of law."      Galenski v. Erving,

471 Mass. 305, 307 (2015).    See Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002).    In addition, "[b]ecause this

case involves questions of statutory interpretation, our review

is de novo."   Sheehan v. Weaver, 467 Mass. 734, 737 (2014).

    2.     Interpretation of G. L. c. 32B, § 9A.   We first address

whether the adoption of G. L. c. 32B, § 9A, requires that

municipal employers pay fifty percent of the premiums for both

retired employees and their dependents.     The town argues that

the plain language of the statute does not include the word

"dependents," and that therefore § 9A does not require it to

contribute to the premium costs for a retired employee's

dependents.    The town distinguishes § 9A from other sections in

c. 32B that do expressly include the word "dependents."      See
                                                                      8


G. L. c. 32B, §§ 7, 7A, 9E.7   Boss emphasizes that a town's § 9A

contributions encompass fifty percent of the total premium costs

of the retiree's insurance plan, not just an individual's

premium costs.   For the reasons that follow, we hold that the

adoption of § 9A requires municipal employers to pay fifty

percent of the health insurance premiums for both retired

employees and their dependents.

     In Sullivan v. Brookline, 435 Mass. 353, 360 (2001), we

emphasized that "[a] fundamental tenet of statutory

interpretation is that statutory language should be given effect

consistent with its plain meaning."   If the language is clear

and unambiguous, it must be interpreted as written.   See

Telesetsky v. Wight, 395 Mass. 868, 872 (1985).   We look at the

statute in its entirety when determining how a single section

should be construed.   See Chin v. Merriot, 470 Mass. 527, 532

(2015); Commonwealth v. Keefner, 461 Mass. 507, 511 (2012).      In

addition, when ambiguities are present, the principles of

statutory construction require that we consider legislative


     7 The town, in its memorandum in opposition to Boss's
summary judgment motion, contends that "because [§] 9A makes no
reference to payment of premiums on behalf of a retiree's spouse
but [§] 9E explicitly does [make such a reference], the
statutory maxim 'expressio[] unius est exclusio[] alterius,'
meaning 'the expression of one thing in a statute is an implied
exclusion of other things not included in the statute' applies.
Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580,
588 (2016), quoting Bank of Am., N.A. v. Rosa, 466 Mass. 613,
619 (2013)."
                                                                   9


intent when interpreting a statute.    See Telesetsky, supra;

Commonwealth v. Galvin, 388 Mass. 326, 328 (1983).    See also

Chin, supra.

     a.   Plain meaning.   We begin by examining the language of

the statute.   General Laws c. 32B, § 9A, states in relevant

part:    "[A town] may provide that it will pay one-half of the

amount of the premium to be paid by a retired employee under the

first sentence of [§] 9."8   The plain meaning of § 9A requires

that once the town has adopted the section, it "pay one-half of

the amount of the premium to be paid by a retired employee"

(emphases added).    The phrase is clear:   the town must

contribute fifty percent to that which the retired employee is

required to pay.    The section does not address what type of

insurance plan it will cover; rather, it focuses on payment.9




     8 The first sentence of G. L. c. 32B, § 9, states in
relevant part:

     "The policy or policies of insurance shall provide that
     upon retirement of an employee, . . . the retired employee
     shall make payment of the full premium cost, subject to the
     provisions of [§ 9A] or [9E], whichever may be applicable,
     of the average group premium as determined by the
     appropriate public authority for such insurance; and the
     group general or blanket insurance . . . shall be continued
     and the retired employee shall pay the full premium cost,
     subject to the provisions of [§ 9A] or [9E] whichever may
     be applicable of the average group premium as determined by
     the appropriate public authority . . . ."

     9 The town offers coverage for its employees through a
select number of insurance plans. All plans can be continued
                                                                   10


Boss's premium payments are calculated based on her group family

plan -- a plan she opted into prior to her retirement.    The fact

that this plan includes her husband is irrelevant to the amount

the town must contribute toward Boss's premium.    The town must

cover fifty percent of the premium that Boss is to pay, not

fifty percent of the cost to cover her individually.    It also is

clear in § 9A that the word "premium" refers to the total

premium an insured individual pays toward his or her selected

plan -- regardless of whether the plan is for individual or

family coverage -- and therefore, the town is required to pay

fifty percent of that total premium.

     The town interprets the exclusion of the word "dependents"

from § 9A as intentional silence and a deliberate omission by

the Legislature.   Based on our previous interpretations of

similar sections under chapter 32B, we disagree.   In Galenski,

471 Mass. at 310-311, we invalidated the town of Erving's

retirement policy that it had adopted to limit § 9E10

contributions solely to retirees who worked for the town for a




upon retirement and will be subject to § 9A, so long as they are
within the group offered by the town.

     10Municipalities that choose to adopt § 9E agree to pay
over fifty percent of a retiree's premium payments for his or
her health insurance.
                                                                     11


minimum of ten years.11    Before her retirement, the plaintiff had

worked in the town of Erving for six years.12    Id. at 305.

Because she did not meet the ten-year requirement, the

retirement policy adopted by the town of Erving prevented her

from receiving her seventy-nine percent premium coverage

pursuant to § 9E.    Id. at 305-306, 307 n.4.   The court in

Galenski held that the plain language of § 9E did not impose

restrictions on which retirees could receive contributions, but

rather the plain language of § 9E required municipal coverage of

"employees retired from the service of the town."      Id. at 309,

quoting G. L. c. 32B, § 9E.    Therefore, so long as Galenski met

the c. 32B definition of a municipal employee, she was entitled

to coverage pursuant to § 9E.13    Galenski, supra at 310.     The


     11In 2001, the town of Erving adopted G. L. c. 32B, § 9E.
The town's retirement policy was adopted in February 2006.
Galenski v. Erving, 471 Mass. 305, 306-307 (2015).

     12The plaintiff in Galenski had been a public school
teacher for more than thirty years in Massachusetts. She spent
her last six years of service as a public school principal in
the town of Erving. She missed the ten-year teaching minimum,
imposed by the town of Erving's retirement policy, by four
years. Galenski, 471 Mass. at 307.

     13   General Laws c. 32B defines an employee as

     "any person in the service of a governmental unit or whose
     services are divided between [two] or more governmental
     units or between a governmental unit and the commonwealth,
     and who receives compensation for any such service, whether
     such person is employed, appointed or elected by popular
     vote, and any employee of a free public library maintained
     in a city or town to the support of which that city or town
                                                                   12


court determined that a tenure-based requirement was not

explicitly stated in the statute.     Id. at 310-311.   By

concluding that the policy limiting § 9E payments to employees

who had worked for the town of Erving for ten years was

inconsistent with § 9E and with the Legislature's purpose in

enacting G. L. c. 32B, the court struck down the town of

Erving's attempt to limit the statute after choosing to adopt

it.   Id. at 311.    See G. L. c. 32B, § 9E.

      In the present case, the town's interpretation of the § 9A

language of "premium costs payable by a retired employee" as

distinguishing between individual and family coverage is at odds

with the core of the holding in Galenski that a town may not

limit its obligations in conflict with the language in c. 32B

after adopting it.    In Galenski, the municipal policy was

preempted by State law;14 the court concluded that a town could



      annually contributes not less than one-half of the cost;
      provided, however, that the duties of such person require
      not less than [twenty] hours, regularly, in the service of
      the governmental unit during the regular work week of
      permanent or temporary employment."

G. L. c. 32B, § 2.

       Under Massachusetts's Home Rule Amendment, municipal
      14

action is presumed valid unless preempted by State law. Connors
v. Boston, 430 Mass. 31, 35 (1999). See art. 89, § 6, of the
Amendments to the Massachusetts Constitution. This court, on
multiple occasions, has reiterated that a municipality may not
enact a policy that is inconsistent with State law. See Cioch
v. Treasurer of Ludlow, 449 Mass. 690, 699 (2007) (citing to
multiple cases in which local laws were invalidated as
                                                                  13


not read coverage limitations into the statute where not

explicitly stated.   Galenski, 471 Mass. at 312.   Similarly, here

we cannot read a payment limitation into the statute when it is

not explicitly mentioned in § 9A or in other sections of

c. 32B.15

     Further, the court has held that when two or more statutes

relate to the same subject matter, they should be construed

together "so as to constitute a harmonious whole consistent with

the legislative purpose."    Yeretsky v. Attleboro, 424 Mass. 315,

319 (1997), quoting Board of Educ. v. Assessor of Worcester, 368

Mass. 511, 513-514 (1975).   The same principles of statutory

interpretation apply here, where two or more sections within a

statute relate to the same subject matter.

     The plain text of § 1 identifies c. 32B's purpose as that

of providing health insurance16 for "certain persons in the



inconsistent with State law). The court in Galenski concluded
that the policy at issue was in direct conflict with §§ 9 and
9E. Galenski, 471 Mass. at 312 n.9.

     15 Boss raised in her brief an argument that article 2 of
the warrant places an additional impermissible limitation on
§ 9A. The town did not respond. Specifically, Boss argues that
article 2 creates an impermissible ten-year minimum work
requirement, similar to the one this court held was invalid in
Galenski. Actions limiting the provisions within a statute are
preempted by State law. Cioch, 449 Mass. at 698-699. The
article 2 limitations are inconsistent with the language in
G. L. c. 32B, § 9A, and precluded by our holding in Galenski,
471 Mass. at 310-311. See G. L. c. 32B, § 9E.
     16 Chapter 32B encompasses hospital, surgical, medical, and

dental insurance, as well as other health insurance coverage.
                                                                     14


service of . . . towns and districts and their dependents"

(emphasis added).     G. L. c. 32B, § 1.   This language indicates

an over-all intent to provide coverage for municipal employees

and their dependents.    Section 9 merely extends these

protections to retired employees and accounts for payment; it

does not change the purpose of the chapter.     Section 9 states

that "upon retirement of an employee . . . the group general or

blanket insurance . . . shall be continued and the retired

employee shall pay the full premium cost, subject to the

provisions of [§ 9A] or [9E]" (emphasis added).     G. L. c. 32B,

§ 9.   The phrase "shall be continued" indicates that there is no

change in an insured's plan coverage.      Therefore, a municipal

employee's insurance plan continues after the insured retires;

it is not altered or modified.

       In addition, § 9 offers a town three payment options.    A

town can choose to have retirees pay their full premium

coverage, to pay one-half of a retiree's premium coverage, or to

pay more than one-half of a retiree's premium coverage.      See

G. L. c. 32B, §§ 9, 9A, 9E.    However, once a town has adopted

its payment plan, it "will pay" -- as §§ 9A and 9E both state --

the insured's chosen plan's premium cost.     G. L. c. 32B, §§ 9A,

9E.    The town, by adopting § 9A, chose to cover fifty percent of

retirees' premiums.
                                                                   15


    b.   Legislative history.    The legislative history of c. 32B

also supports our conclusion that under § 9A the town is

obligated to cover one-half of Boss's premium costs.      We

interpret a statute

    "according to the intent of the Legislature ascertained
    from all its words construed by the ordinary and approved
    usage of the language, considered in connection with the
    cause of its enactment, the mischief or imperfection to be
    remedied and the main object to be accomplished, to the end
    that the purpose of its framers may be effectuated."

Galenski, 471 Mass. at 309, quoting Worcester v. College Hill

Props., LLC, 465 Mass. 134, 139 (2013).     To resolve whether

there is an ambiguity regarding the use of the word "dependents"

in §§ 9 and 9E, but not in § 9A, requires appropriate

consideration of the relevant history and intent of the

Legislature.   See Yeretsky, 424 Mass. at 319.

    General Laws c. 32B derives from a session law passed in

1956.   St. 1956, c. 730, § 1.   From 1956 through 1965, § 9 of

the statute stated that "the employee shall pay the entire

average group premium . . . for the hospital, surgical and

medical benefits for such employee or for such employee and his

dependents."   Id.    In 1959, § 9A was added to give towns the

option of covering fifty percent of retired municipal employees'

premium payments.     St. 1959, c. 595.   The first paragraph of § 9

was amended in 1966, and the phrase "for such employee and his

dependents" was removed from the opening sentence of the
                                                                    16


statute.17   St. 1965, c. 841, § 5.   However, when § 9A had been

added to c. 32B in 1959, the language in § 9 still included

"dependent," and §§ 9 and 9A remained in effect for six years

before the 1965 amendments.   See St. 1956, c. 730, § 1;

St. 1965, c. 841, § 5.   There is little doubt that, in those six

years, any town that adopted § 9A would cover one-half of a

retiree's premiums, including those of his or her dependents.

     Legislative history also shows that on May 18, 1959, the

Senate committee on bills in the third reading introduced 1959

Senate Doc. No. 635, which detailed a new draft of § 9A.18    The

Senate considered for a title, "An Act providing that certain

governmental units having contributory group general or blanket

insurance for persons in the service thereof and their

dependents contribute one half the premium for said insurance

for persons retired from service."    Although the title of an act

does not control the language in the act, it provides some

guidance regarding the intent of the Legislature at the time.




     17The lower court judge found that this likely occurred
because the language "for such employee and his dependents" was
redundant. Further, the 1965 amendment removed both the words
"employee" and "dependent." This does not signify a purposeful
omission. Clearly, the Legislature did not intend to stop
coverage for employees, it being the very purpose of the
statute.

     18The substance of the draft is similar to the version that
is in effect today. Compare 1959 Senate Doc. No. 635 to G. L.
c. 32B, § 9A, as amended through St. 2003, c. 46, § 13.
                                                                    17


Hemman v. Harvard Community Health Plan, Inc., 18 Mass. App. Ct.

70, 73 (1984), superseded on another ground by St. 1989, c. 653,

§ 37.   See United States v. Palmer, 3 Wheat. 610, 631 (1818).

In drafting the sections of c. 32B, the Legislature intended to

provide access to insurance for dependents, and as reflected in

§ 9A, this access included partial payments of premiums.

     c.   Conclusion.   After considering the plain language of

the statute and the legislative history, we conclude that the

total premium costs would include those of a retiree and his or

her dependents if they were previously covered under the plan

while the retiree was employed.   Section 9A requires the town to

contribute fifty percent of the total premium for whatever

continued coverage the retiree has adopted.    If the retiree has

continued with a family group plan, town contributions would

cover the premium for the retiree and his or her dependents.

     3.   The validity of the town meeting vote on April 24,

2004.   We next address the accompanying issue whether the town

successfully adopted G. L. c. 32B, § 9A, when it took a vote on

articles 2 and 4 presented at the town meeting on April 24,

2004.   The town argues that the warrant for the April 24 town

meeting was defective and misleading and that therefore the town

never validly adopted § 9A.   Boss contends that not only did the

town validly adopt § 9A, but the town also is barred from

raising this issue on appeal because it was not raised in the
                                                                    18


court below.   We hold that the town did not sufficiently raise

the issue below and is therefore barred from raising it on

appeal.    We further hold that even if the issue were not waived,

the town successfully adopted G. L. c. 32B, § 9A, at the town

meeting.

    a.     The town is barred from raising the issue.   This court,

on numerous occasions, has held that issues not raised below

cannot be argued for the first time on appeal.    See e.g., Carey

v. New England Organ Bank, 446 Mass. 270, 285 (2006); M.H.

Gordon & Son, Inc. v. Alcoholic Beverages Control Comm'n, 386

Mass. 64, 67 (1982); Henchey v. Cox, 348 Mass. 742, 747 (1965).

"The reason for this fundamental rule of appellate practice is

well established:    it is important that an appellate court have

before it an adequate record and findings concerning a claim to

permit it to resolve that claim properly."    R.W. Granger & Sons,

Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).

    The inquiry into whether an issue has been raised is fact

specific.   See M.H. Gordon & Son, Inc., 386 Mass. at 67 (looking

at record to determine whether issue had been raised for first

time on appeal).    See also R.W. Granger & Sons, 435 Mass. at 74

(finding issue was raised for first time on appeal where party

did not introduce any evidence on issue or raise it during any

argument at bench trial or in any of its posttrial motions).

While the town does not dispute that a vote was taken on April
                                                                     19


24, 2004, it argues that the vote was invalid due to the

fundamentally misleading nature of the warrant articles.      Boss

argues that the issue was not raised below and is therefore

waived.   The town offers two examples as evidence that the

argument was raised sufficiently:     its cross motion for summary

judgment and the ruling by the motion judge.    The only mention

that the cross motion for summary judgment and the lower court

judge made regarding this issue was in relation to the town's

statutory interpretation argument.19    Further, the motion judge

never mentioned the warrant requirement statute, and his

statement, standing alone, would not be enough.    See M.H. Gordon

& Son, Inc., supra (considering judge's statement as factor in

deeming issue raised below, but noting that this statement

absent other evidence would not be enough).

     The town's limited references to the warrant issue were

never addressed in the context of the warrant actually being

void, but rather in furtherance of the town's statutory

interpretation of § 9A.   We therefore determine that the town's

argument is insufficient and hold that the issue was not

properly raised in the lower court.




     19References to article 4 potentially containing misleading
language were only offered as part of the town's statutory
interpretation argument. They were offered to explain how
voters could only interpret § 9A in one way -- as not including
payment coverage for dependents.
                                                                   20


    b.   The town validly adopted G. L. c. 32B, § 9A, during the

town meeting on April 24, 2004.   Because G. L. c. 32B is a local

option statute, and a similar situation may arise at a future

town meeting, we next address whether, even if the issue of the

town's adoption of G. L. c. 32B, § 9A, were not waived, the town

successfully adopted it at the April 24, 2004, town meeting.

Under G. L. c. 39, § 10, "[t]he warrant for all town meetings

shall state the time and place of holding the meeting and the

subjects to be acted upon thereat."    This court previously has

stated that "[t]his means only that the subjects to be acted

upon must be sufficiently stated in the warrant to apprise

voters of the nature of the matters with which the meeting is

authorized to deal."    Burlington v. Dunn, 318 Mass. 216, 219,

cert. denied, 326 U.S. 739 (1945).    Only in limited

circumstances can a town invalidate a vote.    A town may find a

vote invalid if the language in the warrant is misleading, if

the language included or excluded in the warrant substantially

alters the article's meaning, or if the warrant fails to

sufficiently state the nature of the matter.   See id. at 218-

219; Coffin v. Lawrence, 143 Mass. 110, 112 (1886); Coonamessett

Inn v. Chief of Falmouth Fire Dep't, 16 Mass. App. Ct. 632, 634-

635 (1983).   However, once a section is validly adopted through

a town meeting vote, c. 32B does not permit the section to be

rescinded or revoked.   G. L. c. 32B, § 10.
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    The town rests its argument on the allegedly misleading

language of article 2.   It contends that because the adoption of

article 2 was contingent upon the passage of the article 4

ballot question, the voters were misled into thinking that the

meaning of both articles was connected.    Article 2 states in

relevant part, "[t]he town will pay [fifty percent] of the cost

of an individual health plan offered" (emphasis added).     The

town argues that this language misled voters into thinking that

the article 4 ballot question adopting § 9A only included

coverage for individual health plans.     Such a discrepancy, they

argue, is sufficient to invalidate the warrant.    Nevertheless,

the town provides no evidence that the voters were confused by

the language in the warrant when they voted on April 24, 2004.

Cf. Wolf v. Mansfield, 67 Mass. App. Ct. 56, 58-59 (2006) ("The

plaintiffs cite no authority for the proposition that confusion

over a town meeting vote empowers a judge to order that a new

vote be conducted . . . [and] the record fails to support the

plaintiffs' claim that voters were confused.    On the face of the

town meeting transcript, the residents understood [what] they

were being asked to vote on").   In fact, the minutes from the

town meeting demonstrate that the voters decisively adopted

article 4, which had the exact language required under G. L.

c. 32B, § 9A -- language we have held already, supra, includes

coverage of family plans.   The warrant included all of the
                                                                    22


required elements:    it specified the time, date, and location of

the town meeting, and it provided a copy of the language of all

relevant articles.    G. L. c. 39, § 10.   See Coffin, 143 Mass. at

112 ("Warrants are held sufficient if they indicate with

substantial certainty the nature of the business to be acted

on").   Absent evidence to the contrary, there is no reason for

us to conclude that the town voters did not clearly understand

the language in the warrant when they adopted it.    See

Burlington, 318 Mass. at 219 ("[G. L. c. 39, § 10,] does not

require that the warrant contain an accurate forecast of the

precise action which the meeting will take upon [announced]

subjects").   Therefore, we hold that the town successfully

adopted G. L. c. 32B, § 9A, at the town meeting on April 24,

2004.

    Conclusion.      By adopting G. L. c. 32B, § 9A, the town was

required to cover fifty percent of the premiums for both

retirees and the retirees' dependents.     Furthermore, the town

successfully adopted G. L. c. 32B, § 9A, at the town meeting

held on April 24, 2004.    We affirm the order granting summary

judgment for Boss and denying the town's cross motion for

summary judgment.

                                      So ordered.
