Van Liew v. Delaney

COMMONWEALTH OF MASSACHUSETTSMIDDLESEX, ss MIDDLESEX SUPERIOR COURT CIVIL ACTION No. 11-1388

Roland Van Liew,Sui Van Liew, Raymond Van Liew, Nancy D'arcy, James Taggart, Alan Atwood, Phyllis Atwood, Peter Atwood, Rachel Goyette, Robert Goyette, Richard P. McClure, and On behalf of all registered voters of Chelmsford, Massachusetts*

PLAINTIFFS

V.

ELIZABETH DELANEY, Town Clerk for the Town of Chelmsford, Massachusetts, GEORGE DIXON, JR.; individually and as Selectman for the Town of Chelmsford, JON KURLAND; individually and as Selectman for the Town of Chelmsford, and PAUL COHEN; individually and as Town Manager for the Town of Chelmsford,

DEFENDANTS

PLAINTIFFS’ SECOND AMENDEDCOMPLAINT FOR DECLARATORY JUDGMENT and

PRELIMINARY INJUNCTIVE RELIEF

JURISDICTION

This Court has original jurisdiction pursuant to

M.G.L. c. 231A (declaratory judgment).

PARTIES

1. 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.

FACTS

12. 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

http://www.ecode360.com/?custId=CH1747&guid=9208715&j=23

http://www.ecode360.com/?custId=CH1747&guid=9208714&j=13

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 shallcontain 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

also claimed that the 14 day window for gathering

signatures commenced upon the delivery of the

affidavits to the town clerk’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 petition

blanks issued by the defendant consistent with M.G.L. c.

53, Sections 22A and 47 which the defendant, Elizabeth

Delaney, eventually permitted following the plaintiffs’

filing of a emergency motion for further injunctive

relief.

COUNT IDENIAL 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 the truthfulness of the letter…

So what could happen if Van Liew gets the signatures to hold a recall vote? Well we would need to hold a special election that would cost the town from $15,000 to $20,000. Should he be successful at the polls, none of the recalled Selectmen could run for office for a year. Who would run? This past election we had no competition in the elections for BOS and School Committee. When is the last time that happened? There would be a time lag of three to four months to arrange a special election (another $15,000 to $20,000 of taxpayer money) during which Chelmsford has no BOS. Jim Lane would be the sole Selectman and as good as he will be, he alone does not constitute a quorum. That means a church or other charity that wants to hold a special event and seeks a one-day alcohol license would not be able to get it because there would not be a quorum. It would be the same with anyone who wants to have a wedding at a church or municipal building that does not have a liquor license, no quorum, no vote, no license. We could not authorize the Town Manager to enter into contracts for work necessary for the welfare of the town because there would be no quorum. Effectively many aspects of town management would be on hold for months…

I, for one, will do everything within my power to stop this hostile takeover of our town by a man who, in my opinion, wants to use his wealth to dictate who gets hired or fired and effectively run Chelmsford government from the solitude of his home. Think of our town and what you envision will be best for ALL of Chelmsford, not what would be best for one privileged individual with sufficient financial resources that he can hire outsiders to try to influence the good citizens of Chelmsford. I ask you to join in this effort to protect our way of life and our system of governance. This recall is wrong, it is improper and it is destructive to the town we all love.”

The defendant signs his letter to the editor as

“Jon H. Kurland, selectman”


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.


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 town

manager) 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).

Jon

27. 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 IIDENIAL 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 IIIVIOLATION OF M.G.L. c. 56, Section 36

(PAUL COHEN, GEORGE DIXON and JON KURLAND)



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).




their direction and control were participating in an

organized, anti-recall effort during working hours.

(see Exhibits E and F attached hereto).




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).



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 IVVIOLATION 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 IVDECLARATORY JUDGMENT

AND REQUEST FOR INJUNCTIVE RELIEF



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.


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.


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;


defendants violate plaintiffs’ rights to equal

access to the ballot under Article IX of the

Massachusetts Constitution;


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 effect

8. Order the defendants to immediately cease and

desist with said wrongful and unlawful conduct;

and

9. award the plaintiff attorney’s fees and costs of

this action pursuant to all applicable statutes;

and

10. grant such other and further declaratory and/or

injunctive relief as the court deems just;

Dated: April 29, 2011

Respectfully submitted,

Richard P. McClure, EsquirePlaintiff

Pro Se

Richard P. McClure, Esquire8 Westford StreetChelmsford, MA 01824BB0# 564713(508) 572-2418

CERTIFICATE OF SERVICE

I, Richard P. McClure, do hereby certify that I caused a copy of the foregoing pleading to be served upon all parties by delivering a copy of same, via electronic and U.S. mail, to their attorneys of record and Martha Coakley, Massachusetts Attorney General, on this 29TH

day of April, 2011.

Richard P. McClure

Van Liew v. Delaney

News & Politics

Transcript of Van Liew v. Delaney