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King v. Shank

Appeals Court of Massachusetts, Suffolk

March 2, 2018

CINDY KING
v.
JOSEPH Z. SHANK & others [1] and a companion case

          Heard: November 1, 2017.

         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 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.

          Present: Milkey, Blake, & Singh, JJ.

          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 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, 7 8 Mass.App.Ct. 2 08, 2 09 (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 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 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 ...

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