Kevin McCrea, et al )
Thomas Menino, Mayor & )
Michael Flaherty, President )
COMPLAINT FOR ORDER REQUIRING THE CITY OF
1. This is an action for an order requiring the City of
Meanwhile, the City of
Based on this shortage of officers, Plaintiffs ask the Court to issue an appropriate order requiring the City of
JURISDICTION AND VENUE
2. This action is brought under G.L. c. 43 sec. 4.20,
and City of
3. Venue is appropriate pursuant to G.L. c. 223, §1and 9.
4. a) Plaintiff Kevin McCrea is a resident of the City of
b) Plaintiff Michael Barrett is a resident of the City of
c) Plaintiff Mary Carre is a resident of the City of
d) Plaintiff Louis Carre is a resident of the City of
e) Plaintiff Barry Mullen is a resident of the City of
f) Plaintiff Timothy Hall is a resident of the City of
g) Plaintiff Dr. Clara Lora is a resident of the City of
h) Plaintiff Richard Orario is a resident of the City of
i) Plaintiff Michael J. Cote is a resident of the City of
k) Plaintiff Candice Gartley is a resident of the City of
l) Plaintiff Rose Arruda is a resident of the City of
m) Carlos French is a resident of the City of
M.G.L. c. 39. Defendant Tom Menino is the Mayor of Boston. Boston City Council is a governmental body within the City of
5. The Preamble of the Massachusetts Constitution reads :
“The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.”
6. Until 1966, the so called “Dillon’s Rules” were in effect in
which limited Municipal Powers. Massachusetts
7. In 1966, a Home Rule Amendment to the Massachusetts Constitution was passed which granted broad home rule powers to Cities and Towns.
The Legislature has conferred upon cities and towns the power or duty to:
- Acquire any land, easement, or right on the territory within its boundaries for any public purpose. (40:14) The acquisition may be made by the means of an outright purchase, by an eminent domain taking, by gift, or by tax title. (60:64-69)
- Sue or be sued. A municipality may be a party to litigation and appear either as a plaintiff or a defendant in
courts and in the courts of any other state. (40:2) Massachusetts
- Contract for goods, materials, or services in the exercise of their corporate powers.
- Appropriate or set aside funds for any particular purpose. As a general rule, no municipal department may incur a liability in excess of an appropriation. (44:31) It follows that a city or town department may not ordinarily enter into a contract without first obtaining a sufficient appropriation.
- Assess and collect taxes on real and personal property situated within their respective boundaries. They may collect a motor vehicle excise, assessed to owners for the privilege of registration, as well as certain license and user fees.
- Impose a local option excise tax upon the transient rental of rooms in hotels, motels, and lodging houses. (64G: 3A; see also IGR 85-209, pp. 1-15 through 1-16.) They may impose a similar local option excise upon jet aircraft fuel (64J; see also IGR 85-210, pages 1-17 through 1-18.)
- Incur debt by borrowing for specified purposes within specified debt limits and time periods. Such debt, once authorized, may be issued using notes (generally short-term) or bonds (long-term). (44:4, 6A, 7, 8)
- Adequately provide for the education of school-age children. Municipalities must ensure a sufficient number of schools to teach all children who legally wish to attend. In those municipalities that have at least 500 families, a high school will generally have to be staffed, maintained, and equipped.
- Exercise police powers for the preservation of the public peace, order, health, morality, and welfare. (See McQuillan, Municipal Corporations, §24.01, pp. 417-419. 3rd ed., 1980.) Police powers may be exercised utilizing a variety of methods, including the enactment of regulations, ordinances and bylaws and the issuance of licenses and permits.
The exercise of municipal police powers includes the following:
- Preventing and abating public nuisances.
- Protecting the public and ensuring its safety.
- Safeguarding the public order.
- Protecting the public health through the development and regulation of water supplies, proper sanitation, and waste disposal.
- Regulating certain businesses, occupations, and trades through such activities as limiting business hours, governing the availability of intoxicating beverages, overseeing sign-boards and outdoor advertising, inspecting weights and measures, and safeguarding the wholesomeness and purity of food.
- Controlling the construction of buildings and housing, including their repair, removal, alteration, use, and location upon lots (e.g., with regard to setback or building lines), ensuring compliance with the local building code, zoning bylaws and ordinances.
- Organizing protection against fire through the establishment of a fire department or district, under the administrative authority of a fire chief.
- Supervising street use. As a general rule, cities and towns may lay out, relocate, repair, or alter public ways within their boundaries. They may also establish, repair, or reconstruct sidewalks in public ways.
8. Article LXXXIX, Section 6 of the Massachusetts Constitution grants Cities and Towns the Power to “exercise any power or function which the general court has power to confer upon it.”
9. The City of
is experiencing a significant increase in crime. As reported in The Boston Globe of July 26, 2006 the number of killings in 2005 was at a 10 year high, and in 2006 the homicide rate is ahead of 2005. Also, for instance, Plaintiffs such as Kevin McCrea have been the victim of unsolved crimes in 2006. (see attachment 3) Boston
10. At the same time,
does not have the minimum number of police officers mandated by law. Police officers are a necessary ingredient for combating crime and keeping residents safe. Boston
11. On January 31, 1979 an Ordinance 11-1.6 was passed by the City Council. In accordance with Section 17D of the Boston City Charter the Ordinance went into effect on the 16th day following. This Ordinance reads as follows:
11-1.6 Minimum Number of Police Officers on the Boston Police Department.
On or before July 1, 1979, the size of the Boston Police Department shall be increased by the employment of a sufficient number of patrolmen so as to bring the force to strength of not less than two thousand three hundred (2,300) Police Officers. On or before July 1, 1980, the size of the Boston Police Department shall be increased by the employment of a sufficient number of patrolmen so as to bring the force to strength of not less than two thousand five hundred (2,500). Thereafter, additional officers shall be hired from time to time as needed so as to insure that the number of Police Officers on the force shall, at no time, be less than two thousand five hundred (2,500).
(Ord. 1979 c. 2)
12. Every year the Mayor of Boston proposes a City budget to the City Council.
13. The City Council holds hearings on the budget, and votes to approve the Budget for the upcoming fiscal year.
14. On or around May 17, 2006 Christopher Fox, who is the Boston Police Department’s Chief of Technology and Administration, testified at a City Council budget hearing that the City of Boston Police Department had 1,962 sworn police officers on the force. Of those, 337 were “missing in service”, that is, out injured, serving in the military, or otherwise unable to perform. (See attachment 1)
15. On June 12, 2006 a letter was written to the Mayor of Boston and the members of the City Council signed by some of the plaintiffs reminding them of the requirements of Chapter 11, Section 1.6 and requested that they address the increasing violence in the City. The letter indicated judicial redress would be a possible remedy if no response or action was taken. (See attachment 2)
16. On or around June 14, 2006 Lisa Signori the Chief Financial Officer of the City of Boston spoke to the Boston Herald and said that the Mayor and the City budget would include appropriation for 140 cadets in the Police Academy.
17. On June 28, 2006 the City Council voted to approve a budget for Fiscal Year 2007.
18. The budget as approved only provides for at most 140 more candidates to attend the
19. The budget as approved has no funds allocated for hiring experienced officers from outside the City of
20. Massachusetts General Laws, Chapter 43, section 4 states that “Ordinances, resolutions, orders or other regulations of a city or of any authorized body or official thereof, existing at the time when such city adopts a plan of government set forth in this chapter, shall continue in full force and effect until repealed, modified or superseded.”
21. The plaintiffs incorporate by reference paragraphs 1 through 20 of this Complaint.
22. Despite being reminded of the requirements of City Ordinance 11-1.6, the Mayor of Boston and the City Council have not provided the required number of Police Officers to the citizens of
23. The City of
and safeguarding the public order.
WHEREFORE, the plaintiffs respectfully request that the Court:
a. Adjudge and declare that the City of
b. Issue an order requiring the City of
c. Order that the City of
d. Order that the City of
e. Order that the City of
f. Award such other relief as the Court finds just and proper.
Kevin McCrea, Pro Se
Dated: August 22, 2006