Brookline Grapples With Legal Issues Regarding a Proposed Resolution Supporting Israel
Select Board Denies Citizens' Petition for a Special Town Meeting, Raising Questions Under State Law
With various citizen-lawyers weighing in with conflicting views, it remains unclear whether Brookline’s Select Board violated state law in declining to schedule a Special Town Meeting after receiving a petition calling for one signed by more than 200 registered voters.
The petition called for a Special Town Meeting to vote on a resolution that concluded with:
NOW THEREFORE, BE IT RESOLVED: THAT BROOKLINE TOWN MEETING SUPPORTS THE EFFORTS OF THE UNITED STATES GOVERNMENT TO CONTINUE TO STAND WITH THE PEOPLE OF ISRAEL, TO SUPPORT ALL THE VICTIMS OF THE RECENT HAMAS TERRORIST ATTACK AGAINST THE STATE OF ISRAEL, AND TO WORK TOWARD THE SAFE RETURN OF THOSE WHO ARE BEING HELD HOSTAGE, OR ACT ON ANYTHING RELATIVE THERETO.
The state law in question regarding citizen petitions calling for Special Town Meetings is MGL Part I Title VII Chapter 39 Section 10 which reads, in part:
The selectmen shall call a special town meeting upon request in writing, of two hundred registered voters or of twenty per cent of the total number of registered voters of the town, whichever number is the lesser; such meeting to be held not later than forty-five days after the receipt of such request, and shall insert in the warrant therefor all subjects the insertion of which shall be requested by said petition.
While the phrase “shall call” appears to imply that the Select Board must call a relevant special town meeting after receiving a valid petition to do so, the issue is muddied by Section 12 of the same law, which reads:
If the selectmen unreasonably refuse to call a town meeting, a justice of the peace, upon written application of one hundred registered voters or of ten per cent of the total number of registered voters of the town, may call a meeting by a warrant under his hand…
Some local citizen-lawyers have argued that the Section 12 language implies that the Select Board can refuse to honor a valid petition for a special town meeting if such denial is “reasonable.”
However, it appears that no one from among Town staff, the Select Board, or a variety of citizens has pointed to any judicial decision that deals with the scenario in which a Select Board declines to honor a valid citizen petition for a Special Town Meeting, meaning that citizen lawyers, as well as Town staff and Select Board members, can only speculate on how a court would rule based on general legal principles and extrapolation from court decisions in which the fact patterns do not closely resemble those of the present circumstances.
Select Board Discussed Various Reasons for Declining to Schedule the Special Town Meeting
The Select Board’s discussion of the Special Town Meeting petition appeared to reflect multiple concerns, including but not limited to: (a) possible violence at the proposed Special Town Meeting; (b) the possibility of “competing resolutions” potentially targeting Israel with words such as “genocide,” “apartheid”, “colonial occupation”, and “collective punishment”; and possible, apparent regret or “change of heart” among petitioners and signatories.
State law does not appear to specify a mechanism for petitioners or signatories “taking back” or “undoing” a petition for a Special Town Meeting once submitted to the Select Board.
Select Board members appeared to acknowledge that they were acting collectively against the advice of Town Counsel and the Town Administrator, with the sole vote in support of scheduling the Special Town Meeting coming from Select Board Member John VanScoyoc, who cited his oath to uphold the law and fulfill his duties faithfully.
Select Board Members Paul Warren, Miriam Aschkenasy, and Mike Sandman voted against scheduling the Special Town Meeting, while Select Board Member and Chair Bernard Greene abstained.
Full Text of the Proposed Resolution
The full text of the proposed resolution, for which the Select Board declined to schedule a Special Town Meeting, is:
ARTICLE 1
RESOLUTION CALLING ON BROOKLINE TOWN MEETING TO STAND WITH ISRAEL.
WHEREAS, ON OCTOBER 7, 2023, THE TERRORIST ORGANIZATION KNOWN AS HAMAS LAUNCHED A BRUTAL, BARBARIC ASSAULT AND ATTACK ON THE STATE OF ISRAEL AND BROUGHT IMMENSE SUFFERING TO THE INNOCENT CIVILIANS OF ISRAEL AND THE REGION; AND
WHEREAS, THE ISRAELI PEOPLE HAVE AN INALIENABLE RIGHT TO DEFEND THEMSELVES AGAINST ACTS OF TERRORISM; AND
WHEREAS, THE TOWN OF BROOKLINE MOURNS THE THOUSANDS OF INNOCENT VICTIMS OF HAMAS’S TERRORIST ATTACK AGAINST ISRAEL, INCLUDING WOMEN, CHILDREN AND THE ELDERLY, AND IS CONCERNED FOR THE INNOCENT CIVILIANS WHO HAVE BEEN KIDNAPPED AND ARE BEING HELD HOSTAGE; AND
WHEREAS, BROOKLINE TOWN MEETING HAS, IN PREVIOUS RESOLUTIONS, DEMONSTRATED AN UNWAVERING COMMITMENT TO SUPPORTING INNOCENT VICTIMS OF VIOLENCE; AND
WHEREAS, THE TOWN OF BROOKLINE STRONGLY CONDEMNS THESE HEINOUS TERRORIST ACTIONS BY HAMAS IN ISRAEL; AND
WHEREAS, THE TOWN OF BROOKLINE REJECTS ANTISEMITIC PROPAGANDA CLAIMING THAT ISRAEL IS A TERRORIST OR APARTHEID STATE, AND/OR THAT THE ATTACKS BY HAMAS TERRORISTS ARE SOMEHOW JUSTIFIED BECAUSE OF PAST ACTIONS BY ISRAEL; AND
WHEREAS, THE TOWN OF BROOKLINE STANDS IN SOLIDARITY WITH THE JEWISH COMMUNITY IN ISRAEL, IN THE TOWN OF BROOKLINE AND AROUND THE WORLD;
NOW THEREFORE, BE IT RESOLVED: THAT BROOKLINE TOWN MEETING SUPPORTS THE EFFORTS OF THE UNITED STATES GOVERNMENT TO CONTINUE TO STAND WITH THE PEOPLE OF ISRAEL, TO SUPPORT ALL THE VICTIMS OF THE RECENT HAMAS TERRORIST ATTACK AGAINST THE STATE OF ISRAEL, AND TO WORK TOWARD THE SAFE RETURN OF THOSE WHO ARE BEING HELD HOSTAGE, OR ACT ON ANYTHING RELATIVE THERETO.
Citizen-Attorney Town Meeting Member Expresses Concerns Over Legality of Select Board’s Vote
Town Meeting Member Richard Benka, formerly a partner at the Foley, Hoag law firm, wrote on the Town Meeting Members Association list-serv:
Fellow TMMs,
Introduction. I understand the Select Board’s desire to avoid a potentially divisive discussion in connection with the voter-petitioned Special Town Meeting. This email deals simply with the legality of the Board’s decision not to call the Town Meeting. Regardless of how we may feel about the filing of the petitioned resolution, we should recognize that the Select Board’s decision did in fact violate State law.
The Select Board still has almost two months to reconsider its decision and to come into compliance with the law by calling the petitioned Special Town Meeting, given Brookline’s window of 90 days after the petition was filed.
Discussion. Arguments (see below) on the TMMA list serve, seeking to defend the Select Board’s decision, instead effectively make the point that the Select Board violated the law in refusing to call a Special Town Meeting – as Town Counsel advised the Board prior to the Board’s action.
It is argued in the email below that:
G.L. c. 39, sec. 12, states that “… a justice of the peace … ‘may’ call a meeting …” … [T]he language stating that a justice of the peace “may” call a meeting, rather than stating that the JP “shall” call a meeting suggests that that official [i.e., the justice of the peace] has discretion.
and in another email that:
[T]he statute permits recourse to a justice of the peace (usually an assistant clerk magistrate in the local court), who may call a meeting, which must mean that the JP has discretion not to call a meeting.
The fatal flaw in these arguments is that the Select Board acted under a statute, G.L. c. 39, sec. 10 (“Section 10”), that does not use the term “may” that could give the Select Board discretion. To the contrary, the governing language of Section 10 states in relevant part: “The selectmen shall call a special town meeting upon a request in writing, of two hundred registered voters … and shall insert in the warrant therefor all subjects the insertion of which shall be requested by said petition.” The use of the term “shall” rather than “may” negates the argument that the Select Board “has discretion” to silence debate by dismissing properly petitioned articles.
The case cited by [Town Meeting Member and Citizen-Attorney] Dave Gacioch also misses the mark: in that case [Commonwealth v. Rainey] there was a legislative preamble and legislative history establishing that the legislature did not intend the State’s wiretap statute to criminalize police body camera taping of a voluntary victim statement that was openly being recorded in writing, and the court found accordingly. In the present matter, to the contrary, the unqualified statutory term “shall” imposes a mandatory, non-discretionary, obligation.
The Secretary of State’s Citizen’s Guide to Town Meetings (July 7, 2000), at 26, is explicit. When 200 registered voters request a special Town Meeting, the Board “must then call” the meeting and the meeting “must be held.”
So too the Massachusetts General Court, Legislative Research and Drafting Manual (5th ed. 2010), at 28: “A duty, mandate, obligation, requirement or condition precedent is expressed by ‘shall.’”
The use of “unreasonably” in G.L. c.39, sec. 12, a different statutory section dealing with disposition of a complaint made to a justice of the peace, does not change the mandatory “shall call” requirement imposed on the Select Board by Section 10. When might a justice of the peace decide “reasonableness”? Many Massachusetts towns, for example, prescribe the date of their annual town meetings in their bylaws. G.L. c. 39, sec. 9, uses “may” language in giving select boards discretion to delay annual town meetings. A select board could fail to call an annual meeting prescribed for the first Saturday in April under a town bylaw, instead calling the meeting for May or June. There could be a resulting argument before a justice of the peace under G.L. c.39, sec. 12 about whether the select board, in failing to call the town meeting for the prescribed April date, acted “reasonably” (e.g., the meeting location had been flooded) or “unreasonably” (e.g., “gaming” by delaying the meeting until after town elections). But the non-discretionary “shall call” language of Section 10, which controls here, makes the Select Board’s flat refusal to call a meeting petitioned by 200 registered voters per se unlawful, particularly where the decision was admittedly based on the content of the petition. And the same issue would arise if and when only 10 registered voters sought to include an article in an Annual (Spring) Town Meeting.
Conclusion. I recognize that some petitioners now have second thoughts; I sympathize with the Select Board’s desire to avoid a potentially divisive Town Meeting; I know that many of us would prefer that these issues not arise at a Town Meeting. But violation of the law puts the Town on the wrong path, with the Select Board now claiming a role as arbiter of the content of articles that it will allow Town Meeting to consider.
Best,
Dick Benka, TMM 14
Implications of Precedent Are Unclear
With the Select Board having denied the citizen-petition calling for a Special Town Meeting to debate and vote on a resolution expressing support for victims of the Hamas terror attacks of October 7, it is unclear how this decision might affect Select Board deliberation on any future citizen-petitions calling for a Special Town Meeting on other topics.
It is possible that any party affected by the Select Board’s recent vote could raise legal issues under the First Amendment and/or Equal Protection Clause of the United States Constitution, as well as possibly under other federal or Massachusetts laws, particularly those dealing with civil rights and discrimination.
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