November 1, 2017.
action commenced in the Superior Court Department on March
24, 2017. A motion for a preliminary injunction was heard by
John T. Lu, J.
proceeding for interlocutory review was heard in the Appeals
Court by Green, J.
action commenced in the Superior Court Department on
June 9, 2017.
motion for a preliminary injunction was heard by Gary V.
Zaleznik (Benjamin W. O'Grady also present) for the
M. Dombrowski for Cindy King.
Present: Milkey, Blake, & Singh, JJ.
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
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
Standard of review.
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."Packaging Indus. Group,
Inc. v. Cheney, 380 Mass. 609, 615-616 (1980) .
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.
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,
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 ...