COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss MIDDLESEX SUPERIOR COURT CIVIL ACTION No. 11-1388Roland Van Liew,Sui Van Liew,Raymond Van Liew,Nancy Darcy,James Taggart,Alan Atwood,Phyllis Atwood,Peter Atwood,Rachel Goyette,Robert Goyette,Richard P. McClure, andOn behalf of all registered voters of Chelmsford,Massachusetts* PLAINTIFFSV.ELIZABETH DELANEY, Town Clerk for theTown of Chelmsford, Massachusetts,GEORGE DIXON, JR.; individually and asSelectman for the Town of Chelmsford,JON KURLAND; individually and as Selectmanfor the Town of Chelmsford, andPAUL COHEN; individually and as Town Managerfor the Town of Chelmsford, DEFENDANTS PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT and PRELIMINARY INJUNCTIVE RELIEF JURISDICTION This Court has original jurisdiction pursuant to M.G.L. c. 231A (declaratory judgment).
PARTIES1. The plaintiffs, Roland Van Liew, Sui T. Van Liew and Raymond Van Liew are registered voters residing at 6 Hemlock Drive, Chelmsford, Middlesex County, Massachusetts. Roland Van Liew is, for the purposes of this action, the “lead petitioner.2. The plaintiffs, Alan Atwood, Phylis Atwood and Peter Atwood are registered voters residing at 11 Lancaster Avenue, Chelmsford, Middlesex County, Massachusetts.3. The plaintiffs, Rachel Goyette and Robert Goyette, are registered voters residing at 9 Carter Drive, Chelmsford, Middlesex County, Massachusetts.4. The plaintiffs, Rachel Goyette and Robert Goyette, are registered voters residing at 9 Carter Drive, Chelmsford, Middlesex County, Massachusetts.5. The plaintiff, Nancy D’Arcy, is a registered voter residing at 5 Hemlock Drive, Chelmsford, Middlesex County, Massachusetts.
6. The plaintiff, James Taggart, is a registered voter residing at 231 Old Westford Road, Chelmsford, Middlesex County, Massachusetts. 7. The plaintiff, Richard P. McClure, is a registered voter residing at 8 Westford Street, Chelmsford, Middlesex County, Massachusetts.8. The defendant, Elizabeth Delaney, is the Town Clerk for the Town of Chelmsford, Massachusetts with an office at 50 Billerica Road, Chelmsford, Middlesex County, Massachusetts.9. The defendant, Paul Cohen, is an individual residing in Harvard, Massachusetts and is the Town Manager for the Town of Chelmsford.10.The defendant, George Dixon, Jr., is an individual residing in Chelmsford, Massachusetts and is a duly elected member of the Town of Chelmsford Board of Selectmen.11.The defendant, Jon Kurland, is an individual residing in Chelmsford, Massachusetts and is a duly elected member of the Town of Chelmsford Board of Selectmen.
FACTS12. The First Amendment to the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people . . . to petition the Government for a redress of grievances.” There is no question that “the solicitation of signatures for a petition involves protected speech.” Meyer v. Grant, 486 U.S. 414, 422 n.5 (1988). Indeed, this kind of speech “is at the core of our electoral process and of the First Amendment freedoms -- an area of public policy where protection of robust discussion is at its zenith.” Id. at 425.13. Massachusetts General Laws Chapter 56, Section 36 states: “No person in the service of the commonwealth or of any county, city or town shall use his official authority or influence to coerce the political action of any person or body, or to interfere with any election.”14. Massachusetts campaign finance law prohibits the use of public resources for political purposes such as public employees engaging in campaign activity
during working hours or using their office facilities for such a purpose. See Anderson v. City of Boston, 376 Mass. 178 (1978).15. On April 19, 2011, the plaintiff, Roland Van Liew, pursuant to the Town of Chelmsford Charter, Section 3-12, caused to be delivered to the defendant, Betty Delaney; Town Clerk for the Town of Chelmsford, “Recall Affidavits” signed by himself and 338 other registered voters of the Town of Chelmsford seeking the “recall” of 4 elected Selectmen.16.Said Affidavits petitioned for the Recall, pursuant to section 3-12 of the Chelmsford Town Charter, of Patricia Wojtas, Jon Kurland, George Dixon and Matthew Hanson alleging, inter alia, that said Selectmen have “…refused to act in the best interests of the town and its residents…”17. Section 3-12 of the Town of Chelmsford Charter states, in pertinent part: Section 3-12 Recall of Elected Officers. (a) Application. Any holder of an elected office in the town, except town meeting members, with more than six months remaining in the term of office for which the officer was elected, may be recalled therefrom by the voters of the town in the manner provided in this section. No recall petition shall be
filed against an officer within three months after taking office. (b) Recall Petition. A recall petition may be initiated by the filing of an affidavit containing the name of the officer sought to be recalled and a statement of the grounds for recall, provided that, the affidavit is signed by at least twenty-five voters from each of the precincts into which the town is divided for the purpose of electing town meeting members. The town clerk shall thereupon deliver to said voters making the affidavit copies of petition blanks demanding such recall, copies of which printed forms the town clerk shall keep available. Such blanks shall be issued by the town clerk, with signature and official seal attached thereto. They shall be dated, shall be addressed to the selectmen and shall contain the names of all the persons to whom they are issued, the number of blanks so issued, the name of the person whose recall is sought, the office from which removal is sought, the grounds of recall as stated in the affidavit, and shall demand the election of a successor in the said office. A copy of the petition shall be entered in a record book to be kept in the office of the town clerk. Said recall petition shall be returned and filed with the town clerk within fourteen days after the filing of the affidavit, and shall have been signed by at least ten per cent of the registered voters of the town as of the date of the most recent town election (emphasis added).18. At the time of delivery of said affidavits to the defendant, Elizabeth Delaney; Town Clerk, failed to deliver to said plaintiffs “copies of petition blanks demanding such recall” alleging that the plaintiffs’ signatures had to be verified as being from the town’s registered voter list and that the “petition blanks” had
to be typed and printed; however, said defendant alsoclaimed that the 14 day window for gathering signaturescommenced upon the delivery of the affidavits to the townclerk’s office. 19.Following Hearing, this Court (J. Kaplan) allowed plaintiffs’ emergency motion for injunctive relief and Ordered the defendant to accept plaintiffs’ petitions for filing up until the close of business on Friday, May 6, 2011 and further Ordered that “[T]he petitions have been deemed delivered to the plaintiffs or their representatives on Friday, April 22, 2011.” 20. On or about Monday, April 25, 2011, the plaintiff, Roland Van Liew, requested additional blank petitions from the defendant and was refused. See affidavit of Roland Van Liew attached to motion for emergency injunctive relief. 21. On or about Monday, April 25, 2011, the defendant testified at open town meeting that all petition blanks, including recall petitions, must originate from her office. 22.On Tuesday, April 25, 2011, the plaintiff, Richard P. McClure, requested, through defendant’s counsel and town manager, that the defendant allow the
plaintiffs to reproduce “exact copies” of the petitionblanks issued by the defendant consistent with M.G.L. c.53, Sections 22A and 47 which the defendant, ElizabethDelaney, eventually permitted following the plaintiffs’filing of a emergency motion for further injunctiverelief. COUNT I DENIAL OF EQUAL ACCESS TO THE BALLOT IN VIOLATION OF ARTICLE 9 of the Declaration of Rights of the Constitution of the Commonwealth (JON KURLAND; individually and as Town Selectman)23. On or about April 21, 2011, the defendant, Jon Kurland, a town of Chelmsford Selectman who is subject to the recall effort, wrote a letter to the editor of the Chelmsford Independent (see Exhibit A attached hereto) which titled it “Kurland: Recall wrong, damaging to town” stating, inter alia: “I am very concerned about the future of Chelmsford should this recall proceed. Not only will it cost the town anywhere upwards of $20,000 but it will discourage otherwise capable and dedicated individuals from serving… If he was seeking the recall of someone who committed a crime or otherwise acted improperly, I would be the first to sign his petition. However, this recall is not proper. These people have done nothing illegal or even wrong. I strongly urge every resident to stand tall to oppose this witchhunt. Please do not sign any recall petition and tell all your friends, neighbor and relatives this recall is just wrong. If you receive a mailing requesting you to sign
the recall petition, please question thetruthfulness of the letter…So what could happen if Van Liew gets thesignatures to hold a recall vote? Well wewould need to hold a special election thatwould cost the town from $15,000 to $20,000.Should he be successful at the polls, noneof the recalled Selectmen could run foroffice for a year. Who would run? This pastelection we had no competition in theelections for BOS and School Committee. Whenis the last time that happened? There wouldbe a time lag of three to four months toarrange a special election (another $15,000to $20,000 of taxpayer money) during whichChelmsford has no BOS. Jim Lane would be thesole Selectman and as good as he will be, healone does not constitute a quorum. Thatmeans a church or other charity that wantsto hold a special event and seeks a one-dayalcohol license would not be able to get itbecause there would not be a quorum. Itwould be the same with anyone who wants tohave a wedding at a church or municipalbuilding that does not have a liquorlicense, no quorum, no vote, no license. Wecould not authorize the Town Manager toenter into contracts for work necessary forthe welfare of the town because there wouldbe no quorum. Effectively many aspects oftown management would be on hold for months… I, for one, will do everything within mypower to stop this hostile takeover of ourtown by a man who, in my opinion, wants touse his wealth to dictate who gets hired orfired and effectively run Chelmsfordgovernment from the solitude of his home.Think of our town and what you envision willbe best for ALL of Chelmsford, not whatwould be best for one privileged individualwith sufficient financial resources that hecan hire outsiders to try to influence thegood citizens of Chelmsford. I ask you tojoin in this effort to protect our way oflife and our system of governance. Thisrecall is wrong, it is improper and it isdestructive to the town we all love.”
The defendant signs his letter to the editor as “Jon H. Kurland, selectman”24. On or about April 27, 2011, the defendant, Jon Kurland, was referenced and quoted in a newspaper article in the Chelmsford Independent(see Exhibit B attached hereto). Said article stated, inter alia: Selectman Jon Kurland is raising the question of whether local businesses should tolerate recall petition canvassers on their premises. Kurland claimed because the petitioners are being paid, they are not showing residents what they’re signing, misleading them about what the recall would do, or distracting them with an emotional issue. People have come to him asking how to combat the recall, Kurland said, and he has suggested they contact store managers and discuss the petitioners’ presence. “There are times when it’s appropriate for businesses to look at what people are doing,” Kurland said. Petitioners are exercising their right to free speech by approaching people outside these stores, he said, but so is a person holding a graphic anti-abortion or pro-death-penalty poster – or a person holding a sign to boycott the store. Managers might take issue with this behavior, Kurland said, and they should view the recall effort in the same light. “These are outsiders trying to destroy our town,” Kurland said. “A recall effort would cripple us.” Kurland’s approach to the petitioners has drawn another kind of criticism. Although he said he used the word “boycott” purely in the context of persuasive rhetoric, he has also reminded people they have the right to stop shopping at a store to express disapproval of petitioners.
25. In a follow-up letter/commentary to said April 27, 2011 article in the Chelmsford Independent (see Exhibit C attached hereto), the defenedant, Jon Kurland, attempted to temper the suggestion that he was spear-heading any attempt to stymie the recall effort by encouraging Chelmsford residents to boycott local businesses who permitted recall advocates to collect signatures at their places of business. The defendant, Jon Kurland, wrote, inter alia: There is no serious or well funded effort to oppose the recall (emphasis added). Many people in town believe that this effort is tearing this town apart. There is anger on both sides. I can assure you that I have never recommended that anyone boycott our local businessmen (emphasis added). I can assure all the citizens of Chelmsford that I do not take the responsibilities conferred upon me, when elected last year, lightly. I have always tried to exercise the authority given me with the utmost discretion. If I have disappointed any of the citizens of Chelmsford in any manner, I apologize and promise to work harder and do better. I never encouraged anyone to boycott any stores (emphasis added). If the canvassers merely said We are trying to recall 4 members of the Board of Selectmen, I would have had no issue with them standing anywhere they want.26. On or about April 26, 2011, the defendant, Jon Kurland, had, in fact, authored an email (see Exhibit D attached hereto) to dozens of town residents (many
of which were elected town officials; one, in particular,worked in, and received emails at, the office of the townmanager) in which he specifically stated: Hi Everyone - It appears as though the local supermarkets are willing to allow the canvassers to sign recall petitions. Could you please take the time to call the three store managers to express deep disapproval of allowing outsiders to destroy our town. If they tell you that these people have the right to be there, that is rubbish. This is private property and the owner can remove them if he or she sees fit. If they persist in asserting the canvassers right to be there asking them if it is also the right of people in town to stand nearby with posters to boycott their stores. It is the same free speech argument. You can also threaten not to shop at the store again and express the opinion that many of your friends agree with you. Perhaps if they get enough calls, they will remove these people from the premises. Thanks again. If we can stop the signatures from getting collected this threat to our town government will be over (for now). Jon27. During the same time period, the defendant, Jon Kurland, authored several emails to residents and received emails from residents (many of which were the same elected town officials) which clearly demonstrated that Mr. Kurland was utilizing his position as Selectman to spearhead an organized effort to stop recall petition signature gatherers from obtaining their objective (see multiple email chains at Exhibit E).
28.The defendant and fellow-Selectman subject to recall, George Dixon, Jr., was also a recipient of said emails. COUNT II DENIAL OF EQUAL ACCESS TO THE BALLOT IN VIOLATION OF ARTICLE 9 of the Declaration of Rights of the Constitution of the Commonwealth (PAUL COHEN; individually and as Town Manager)29. Plaintiffs reallege and reaffirm the allegations set forth in paragraphs 1-28, supra, as if specifically set forth herein.30. At all times material hereto, the defendant, Elizabeth Delaney; Town Clerk, falls under the direction and control of the defendant, Paul Cohen; Town Manager.31.At all times material hereto, the defendant, Paul Cohen; Town Manager, wrongfully and unlawfully advised the defendant, Elizabeth Delaney, to deny the plaintiffs the full benefits of Chelmsford Charter Section 3-12.32. At all times material hereto, the actions of the defendant, Paul Cohen; Town Manager, in wrongfully and unlawfully instructing the defendant, Elizabeth Delaney, to deny plaintiffs the full benefits of
Chelmsford Charter Section 3-12, constitutes a denial to the plaintiffs of equal access to the ballot in violation of Article IX of the Massachusetts Constitution. COUNT III VIOLATION OF M.G.L. c. 56, Section 36 (PAUL COHEN, GEORGE DIXON and JON KURLAND)33. Plaintiffs reallege and reaffirm the allegations set forth in paragraphs 1-32, supra, as if specifically set forth herein.34. At all times material hereto, the defendant, Paul Cohen; Town Manager, is considered the Chief Executive Officer of the Town of Chelmsford Municipal Government; his position falls under the direction and control of the Town of Chelmsford Board of Selectmen.35. Four of the five members of the Town of Chelmsford Board of Selectmen, including the defendants, Jon Kurland and George Dixon, Jr., are currently the subjects of said recall effort.36. The aforestated emails sent by the defendant/select-man, Jon Kurland, were also sent to the defendant, George Dixon, Jr., and the Executive Assistant of the
defendant/town manager, Paul Cohen, at the town manager’s office during business hours (see Exhibit F attached hereto).37.The defendant/town manager, Paul Cohen, is vicariously liable for the actions of his employees.38.The defendant, George Dixon, Jr., is ethically bound to report violations of law and other ethical violations known to him to have been committed by employees and/or other public officials in the Town of Chelmsford.39. At all times material hereto, the defendants, Paul Cohen and George Dixon, Jr., knew, or with reasonable inspection should have known, that individuals under their direction and control were utilizing town assets to participate in an organized, anti-recall effort. (see Exhibits E and F attached hereto).40. At all times material hereto, the defendants, Paul Cohen and George Dixon, Jr., knew, or with reasonable inspection should have known, that individuals under their direction and control were participating in an organized, anti-recall effort during working hours. (see Exhibits E and F attached hereto).
41. At all times material hereto, the defendants, Paul Cohen and George Dixon, Jr., knew, or with reasonable inspection should have known, that individuals under their direction and control were giving specific, unlawful advice on how to thwart signature-gatherers’ efforts to an organized, anti-recall group. (see Exhibits E and F attached hereto).42. At all times material hereto, the defendants, Paul Cohen and George Dixon, Jr., knew, or with reasonable inspection should have known, that the defendant, Jon Kurland, was spear-heading an organized, anti-recall effort and utilizing town assets and town employees to give specific, unlawful advice on how to thwart signature-gatherers’ efforts accomplish same. (see Exhibitd E and F attached hereto).43. The aforestated actions, non-actinons and statements of the defendants, Elizabeth Delaney, Jon Kurland, George Dixon, Jr. and Paul Cohen, to thwart the recall election efforts, explicitly and impliedly, served as “coercive authority” and were applied under “color of municipal law.” COUNT IV VIOLATION OF THE PLAINTIFFS’ FIRST AMENDMENT RIGHTS (PAUL COHEN, GEORGE DIXON and JON KURLAND)
44. Plaintiffs reallege and reaffirm the allegations set forth in paragraphs 1-43, supra, as if specifically set forth herein.45. The solicitation of signatures for a petition involves protected speech pursuant to the First Amendment of both the United States Constitution and the Massachusetts Constitution.46. The aforestated actions of the defendants, Jon Kurland, George Dixon, Jr. and Paul Cohen, are wrongful and unlawful and violate the plaintiffs’ First Amendment Rights. COUNT IV DECLARATORY JUDGMENT AND REQUEST FOR INJUNCTIVE RELIEF47. Plaintiffs reallege and reaffirm the allegations set forth in paragraphs 1-46, supra, as if specifically set forth herein.48. The aforestated actions of the defendants, Elizabeth Delaney, Jon Kurland, George Dixon, Jr. and Paul Cohen, have caused the plaintiffs irreparable harm.
49. The aforestated actions of the defendants, Elizabeth Delaney, Jon Kurland, George Dixon, Jr. and Paul Cohen, violate ARTICLE 9 of the Declaration of Rights of the Constitution of the Commonwealth.50. The aforestated actions of the defendants, Jon Kurland, George Dixon, Jr. and Paul Cohen, violate M.G.L. c. 56, Section 36.51. The aforestated actions of the defendants, Elizabeth Delaney and Paul Cohen, violate the Chelmsford Charter Section 3-12. 52. The aforestated actions of the defendants has resulted in manifest injustice to the plaintiffs and has an adverse impact on the real interests of the general public from which there is no other reasonably adequate or effective remedy. 53. As a direct and proximate consequence of the defendants’ aforestated wrongful and unlawful acts, the plaintiffs have suffered and will continue to suffer, irreparably, a violation of their constitutional and statutory right to petition for, and vote in, a recall election.
WHEREFORE, the plaintiffs, Richard P. McClure, Roland Van Liew et al, pray this Honorable Court:1. adjudicate the rights of the parties;2. find that the aforestated actions by the defendants violate plaintiffs’ First Amendment Rights under the United States Constitution and the Massachusetts Constitution;3. find that the aforestated actions by the defendants violate plaintiffs’ rights to equal access to the ballot under Article IX of the Massachusetts Constitution;4. find that the aforestated actions by the defendants violate M.G.L. c. 56, Sections 36, 43 and 60;5. enter a finding that, as a result of the defendants’ wrongful and unlawful actions, the recall election signature gathering process has been irreparably tainted and the plaintiffs’ rights to petition irreparably harmed;
6. Order that, as a result of said irreparable harm, the recall election petitions signed to date be deemed sufficient and certified and further Order that said recall election be scheduled post-haste pursuant to this Court’s equitable powers; or, in the alternative,7. Order, pursuant to this Court’s equitable powers, that the 14 day window for gathering signatures on said recall petitions be reset to day one due to the defendants’ wrongful and unlawful actions and any signatures gathered to date on said recall petitions remain in full force and effect8. Order the defendants to immediately cease and desist with said wrongful and unlawful conduct; and9. award the plaintiff attorney’s fees and costs of this action pursuant to all applicable statutes; and10. grant such other and further declaratory and/or injunctive relief as the court deems just; Dated: April 29, 2011
Respectfully submitted,Richard P. McClure, EsquirePlaintiffPro SeRichard P. McClure, Esquire8 Westford StreetChelmsford, MA 01824BB0# 564713(508) 572-2418 CERTIFICATE OF SERVICEI, Richard P. McClure, do hereby certify that I causeda copy of the foregoing pleading to be served upon allparties by delivering a copy of same, via electronicand U.S. mail, to their attorneys of record and MarthaCoakley, Massachusetts Attorney General, on this 29THday of April, 2011.Richard P. McClure