As expected, the City of Boston filed a motion to dismiss our suit asking the court to make the City enforce its ordinance that the police department have 2500 officers. The reasons they gave in their argument are as follows: plaintiffs have no standing, the ordinance isn't valid, and that adding officers to the police force would constitute a reorganization of the police department and only the mayor can do that.
Of course we disagree. We think it reasonable that 12 citizens of Boston have standing in the City of Boston. We think the ordinance is valid since you can see it on the city's website of ordinances and the city clerk said in the Globe that it is valid. Finally we certainly don't buy the argument that giving the chief of police more money to hire officers reorganizes his department. By that logic, giving him one more police officer reorganizes his department and that happens all the time without the Mayor getting involved.
Our response is as follows in legalese:
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
Civil Action No. 06-3549-A
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KEVIN MCCREA, ET. AL, )
Plaintiffs )
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v. )
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CITY OF BOSTON, ET. AL. )
Defendants )
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Introduction
The Defendants have moved to dismiss this matter pursuant to M.R.C.P. 12(b)(1) and 12(b)(6) claiming that the Plaintiffs have no standing to enforce an ordinance enacted by the City of Boston [CBC § 11-1.6] and because the ordinance was never “affirmatively approved” by the mayor, Defendants claim it was never validly enacted.
Facts
The Plaintiffs do not dispute the Defendants’ recitation of the facts as set forth in the Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss (hereinafter “Defendants’ Memorandum”) so far as they go. What the Defendants fail to admit and the only fact that the Plaintiffs claim is in dispute is alleged in ¶ 9. of Plaintiffs’ Complaint: “The City of Boston is experiencing a significant increase in crime.” At this stage of the litigation, the Court must accept the Plaintiffs’ allegation of this fact as true.
Argument
The Defendants claim that this Court should dismiss the Plaintiffs’ Complaint because (1) the Court lacks subject matter jurisdiction; (2) the Plaintiffs have failed to state a claim for which relief may be granted; (3) the Plaintiffs lack standing to bring their lawsuit; (4) the Plaintiffs brought their complaint too late, and (5) the City Ordinance which Plaintiffs seek to have the Court enforce is invalid. Plaintiffs argue that all of the Defendants’ arguments are all legally incorrect and amount to nothing more than a smoke screen to hide the Defendants’ contempt for Part 1, Article X of the Massachusetts Constitution: “Each individual of society has a right to be protected by it in the employment of his life, liberty and property, according to standing laws.” (emphasis added).
1. The Superior Court has subject matter jurisdiction
Plaintiffs claim that this matter is one seeking a Writ of Mandamus for which this Court has original jurisdiction under Mass. G.L. c. 249, §5. While the original Complaint does not cite this particular statute, the nature of the action, i.e. compelling public officials to perform acts they are required to perform, is a classic case of Plaintiffs seeking redress by what was formerly known as the Writ of Mandamus. Indeed if one examines the case cited by the Defendants, Kaplan v. Bowker, 333 Mass. 455 (1956), but instead of reading only to page 459, simply turn to page 60 where the Supreme Judicial Court distinguishes cases where only a party injured can bring proceedings to determine the validity of a statute and goes on as follows:
This is the principle that where a public officer owes a specific duty to the public to perform some act or service not due the government as such or to administer some law for the public benefit which he is refusing or failing to perform or administer any member of the public may compel by mandamus the performance of the duty required by law.
Kaplan v. Bowker, 333 Mass. at 460.
Thereafter the Court cites Brewster v. Sherman, 195 Mass. 222 along with a long litany of other Supreme Judicial Court cases in support of this proposition. However, Brewster v. Sherman, id., is particularly relevant to the case at bar. There the dispute involved a hotly contested ballot question in the Town of Plymouth where the registrars of voters counted a contested ballot and a voter and taxpayer brought suit to challenge the decision of those registrars of voters. The Supreme Judicial Court adopted the general doctrine as stated in a treatise High, Ex. Leg. Rem. (3d ed.) § 431 as follows:
When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.
Brewster v. Sherman, 195 Mass. at 224.
In the present case the Plaintiffs are citizens and taxpayers of the City of Boston. There is an ordinance that they seek to have enforced. The Defendants have flatly refused to enforce the ordinance, therefore Plaintiffs have the right to secure for the public benefit the Court’s issuance of a Court Order in the nature of a Writ of Mandamus. This Court has jurisdiction.
Within Defendants’ Memorandum, the Defendants use as part of their defense of the Motion to Dismiss one Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D. In Baxter, one of the primary disputes was the validity, or lack thereof, of a city ordinance that was passed by the City Council of Boston without the support of the Mayor. It was brought in the Superior Court of Massachusetts as No. 91-2041D. The Superior Court of Massachusetts demonstrated having jurisdiction over the subject matter when it decided that the city ordinance relevant to Baxter was invalidly enacted. Similarly, the central item of this case is whether or not CBC § 11-1.6 was properly enacted into law sixteen days after it was passed by the City Council on January 31, 1979 pursuant to St. 1951, c. 376, § 17D. Since the Superior Court of Massachusetts has demonstrated jurisdiction over the subject matter of the validity of a city ordinance, Defendants’ motion to dismiss should be denied.
2. The Plaintiffs have stated a claim for which relief may be granted
The Defendants have set up a series of straw men which they then legally lambaste because the Plaintiffs do not meet the standards applicable to such straw figures. Defendants first claim that the Plaintiffs do not have standing for a Declaratory Judgment pursuant to Mass. G.L. c. 231A. Plaintiffs are not seeking a Declaratory Judgment and nowhere in Plaintiffs’ pleadings do they suggest as much. While indeed there must be an independent basis for jurisdiction in order to obtain a Declaratory Judgment, that independent basis has been set forth above in Part 1. of the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (hereinafter “Plaintiffs’ Memorandum”).
The next straw man is the Defendants’ claim that the Plaintiffs do not meet the requirements of the Ten-Taxpayer Statute, Mass. G.L.c. 40, § 53. However, once again the Plaintiffs are not seeking relief under the Ten-Taxpayer Statute. At no point in the Plaintiffs’ pleadings is there any attempt to invoke a statute which is designed to prevent the City from raising or spending money in the “unlawful exercise or abuse of such corporate power.” G.L. c. 40, § 53. In fact this suit is quite the opposite. Plaintiffs claim that there is an ordinance which sets the minimum level of police protection which the City must maintain. Plaintiffs simply want the Defendants to do what the ordinance requires. The Plaintiffs have stated a claim. They should not be denied their legal right to seek this important public benefit. As such, Defendants’ motion to dismiss should be denied.
3. The Plaintiffs have standing to bring this lawsuit
For the reasons set forth above in paragraph 1 of the Plaintiffs’ Memorandum, the Plaintiffs are absolutely entitled to bring this lawsuit. They are all residents of the City of Boston. Nothing more is required. However, in addition to being residents, the Plaintiffs also claim that they have suffered harm due to the Defendants’ steadfast refusal to comply with the City’s Ordinance. Attached hereto are affidavits of some of the Plaintiffs which demonstrate in graphic, non-legalistic jargon what they have seen, what they have heard and what they have felt, due to the Defendants’ actions. The Court should have no doubt that these Plaintiffs have standing to petition the Defendants into a Court of Law and demand that the Defendants meet the requirements of the City’s Ordinance. If the Plaintiffs are successful in this lawsuit, an order in lieu of a Writ of Mandamus is warranted and the beneficiaries will be all citizens, including the Plaintiffs, who are residents of the City of Boston. As such, Defendants’ motion to dismiss should be denied.
4. The Plaintiffs brought their complaint too late
The Defendants assert that “the Plaintiffs brought their suit too late.” This statement demonstrates that the Defendants believe that the relationship between the City of Boston and the Police Department of the City of Boston is comparable to the relationship between the City of Boston and a general contractor doing work similar to road repair, with a definable beginning, middle and end. The Defendants use Dealty v. Selectmen of Watertown to demonstrate this point. See 279 Mass. 22,27 (1932). The first day of Fiscal Year 2007 was Thursday, July 1, 2007, but the budget for Fiscal Year 2007 was not approved by the Boston City Council until Wednesday afternoon, June 28, 2006 and signed by the Mayor on June 30, 2006. If the proposition of the Defendants is to be believed, then the window of opportunity to bring any complaint pursuant to G.L. c. 40, § 53 (or any other G.L. that requires the complaint be filed prior to any expenditure) would have been less than the 8 hours on Friday, June 30, 2006, assuming of course, that the Police Department was in operation on July 1, 2006 and therefore drawing funds from the newly passed budget. This places an impossible burden on any plaintiff for any claim against the City of Boston. As such, Defendants’ motion to dismiss should be denied.
5. The City’s Ordinance is a valid Ordinance
Notwithstanding the Defendants’ protestations to the contrary, the Plaintiffs’ assert that CBC §11-1.6 is a valid ordinance in the City of Boston. The Defendants have an obligation to comply with it, which they have repeatedly failed to do. The City of Boston garners their power for rule from the citizens and they must rule in accordance with the laws of the Commonwealth and the City of Boston.
Defendants admit that the Ordinance, what is now CBC §11-1.6 was approved by the City Council and presented to the Mayor of the City of Boston. They further admit that the Mayor neither approved or signed it; nor did the Mayor disapprove it and return it to the City Council with his objections. Under these circumstances, as required by Acts, 1951 – Chapter 376, “Every … ordinance … required by this section to be presented to the mayor which, within fifteen days after such presentation, is neither signed by him nor filed with his written objections as hereinbefore provided , shall be in force on and after the sixteenth day following such presentation.”
The Defendants contend that CBC §11-1.6 amounted to a “reorganization of the Boston Police Department” and therefore subject to Acts, 1953, c. 473, Section 1. The Defendants are mistaken on this point, because CBC § 11-1.6 fails to meet any of the seven (7) conditions under which the City Council may act “with the approval of the Mayor”. Six (6) of the seven (7) conditions of Section 5 of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) are easily dismissed. They state the follows:
(a) to create a new department or agency; Plaintiffs assert that CBC § 11-1.6 does not create a new Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (a).
(b) to abolish, in whole or in part, any department or agency; Plaintiffs assert that CBC § 11-1.6 does not abolish, in whole or in part, the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (b).
(d) to confer or impose on any department or agency any power or duty of the city not appertaining at the time of the making of the bylaw or ordinance of any department or agency; Plaintiffs assert that CBC § 11-1.6 does not confer or impose on the Police Department any power or duty simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (d).
(e) to transfer any or all of the powers, duties and appropriations of any division of any department or agency to another division of the same department or agency: Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of the Police Department to another division of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (e).
(f) to transfer any or all of the powers, duties and appropriations of any department or division thereof or any agency or division thereof either to another department or division thereof or to another agency or division thereof; Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of any division or agency not including the Police Department to the Police Department, nor does it transfer any or all of the powers, duties and appropriates of the Police Department away to another division or agency outside of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (f).
(g) to increase, reduce, establish or abolish the salary of any department or department head. Plaintiffs assert that CBC § 11-1.6 does not increase, reduce, establish or abolish the salary of any department within the Police Department nor any department head within the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (g).
Subsection 5(c) of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) states the only remaining condition under which the City Council must require the approval of the Mayor:
(c) to reorganize, in whole or in part, any department or department head or any agency or agency head;
The Defendants are mistaken when they state that CBC § 11-1.6 reorganizes, in whole or in part, the Police Force of the Police Department, because the Defendants assume that the word “reorganize” can be taken to mean any action which in any way, shape or form has any impact on “any department or department head or any agency or agency head”. If the word “reorganize” is taken in this extremely broad definition, it can easily be interpreted to mean that the City Council is powerless to pass any City Ordinance that will have any impact, no matter how slight or tangential, on any department or agency within the City of Boston without the approval of the Mayor.
Unfortunately, the Boston City Charter is silent on a definition for the word “reorganize” and “reorganization”, so we need to look elsewhere. The American Heritage Dictionary (Second Edition) provides two definitions of the word “reorganization”:
1. reorganization - the act of imposing a new organization; organizing differently (often involving extensive and drastic changes)
2. reorganization - an extensive alteration of the structure of a corporation or government
Simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not impose a new organization, as it does not specify the manner in which the police officers will be assigned within the Police Force of the Police Department, to which Stations or Task Forces or any other department within the Police Department. Neither does it organize differently the billets or posting of the police officers. The Police Commissioner retains the power and authority of the assignment of each and every police officer within the Police Department. Further, simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not reflect either extensive or drastic changes, nor does it represent an extensive alteration of the structure of the Police Force within the Police Department or the Police Department itself.
As stated previously, the Boston City Charter is silent on a definition for the word “reorganize”, however, the Boston City Charter does not exist in a vacuum. Its power derives from the Massachusetts General Laws, the Massachusetts General Court and the Constitution of the Commonwealth of Massachusetts. It is highly unlikely that the framers of the Constitution of the Commonwealth of Massachusetts and the Massachusetts General Laws would use an arbitrary word in this way without providing a definition or relying on the universal nature of the word which it employs throughout the Massachusetts General Laws. Within the Massachusetts General Laws, there are thirty (30) chapters which use the words “Reorganize” or “Reorganization”. A complete list of those chapters appears as attachment 2. These thirty (30) chapters fall into several sections relating to Government, Taxes, Corporations, Property and Wills. Most assume that the definition of “Reorganization” is simple enough that a definition is not provided. The word often appears in connection with financial reorganization due to bankruptcy of a corporation, where it is often used in conjunction with the creation of corporations, abolishment of corporations, mergers of corporations into a single entity, bankruptcy, changing the purpose/mission of a corporation, and conversion of corporations from one type to another. For example, a mutual banking institution that is a savings bank may reorganize so as to become a mutual holding company. See M.G.L. c. 167h, § 2.
One Chapter, M.G.L. c. 63, § 22D - Taxation of Corporations, does provide a reference to the Federal Internal Revenue Code, Section 368 which is instructive as to the scope of the “Reorganization.
M.G.L. c. 63, § 22D: For purposes of this section, a “qualifying domestic life insurance company” is a company which, after December thirty-first, nineteen hundred and fifty-eight and before December thirty-first, nineteen hundred and seventy-six, was a party to a reorganization, as defined in section 368 of the Federal Internal Revenue Code and in effect for the taxable year of the reorganization, with another domestic insurance company which was not a life insurance company, as defined by subsection (a) of section 801 of the Federal Internal Revenue Code in effect for the taxable year of the reorganization.
A complete copy text of the Federal Internal Revenue Code, Section 368 is provided as attachment 3. The following conditions would indicate that an insurance corporation in the Commonwealth of Massachusetts is a party to a reorganization; (A) a statutory merger or consolidation; (B) the acquisition by one corporation […] [of ] control of such other corporation […]; (C) the acquisition by one corporation […] of substantially all of the properties of another corporation […]; (D) a transfer by a corporation of all or a part of its assets […]; (E) a recapitalization; (F) a mere change in identity, form, or place of organization of one corporation, however effected; or (G) a transfer by a corporation of all or part of its assets to another corporation in a title 11 or similar case […].
Sections (A), (B), (C) and (D) of the Federal Internal Revenue Code, Section 368 are consistent with various portions of Section 5 of Chapter 452 of the Acts of 1948, previous discussed. Neither section (E) or (G) are relevant to this point as CBC § 11-1.6 does not address either the capitalization or the financial bankruptcy of the Police Department. Finally, CBC § 11-1.6 does not change the identity, form or place of the Police Department simply by increasing and then setting a minimum staffing level.
Finally, attachment (4) shows the organization chart of the Police Department, taken from the Fiscal Year 2007 Budget. Plaintiffs assert that, if CBC § 11-1.6 were applied as written, there is no single line or rectangle on this organization chart that would be added, remove or moved, thus dismissing any notion of “reorganization”.
Based on the Plaintiffs’ review of the Federal and Commonwealth definitions and uses of the words “reorganize” and “reorganization”, Plaintiffs assert that the use of the word means the collective actions of creating, abolishing, and merging of departments, changing the purpose and/or mission of the department or agency, changes which in the corporate world would require the filing of a new or amended Articles of Incorporation and would require a significant overhaul of the organization structure of a department or agency and its associated budgets. It is not, as the Defendants would have us believe, any action which has any impact, no matter how slight, on a department or agency. As such, Defendants’ motion to dismiss should be denied.
Plaintiffs’ assert that the ordinance does not interfere with the Police Commissioner’s authority to “appoint, establish and organize the police of [Boston]” or restrict the Police Commissioner’s “cognizance and control of the government, administration, disposition and discipline of the department….” as stated within Defendants’ Memorandum. See St. 1906, c. 291, §§ 10, 11 as amended by St. 1962, c 322, §§ 10, 11; City Council of Boston, 58 Mass. App. Ct. at 545. The ordinance simply gives the Police Commissioner a minimum amount of manpower to protect the citizens of the City of Boston. The Plaintiffs contend that there are not enough police officers for the Police Commissioner to organize and control and that the net effect of the City’s refusal to abide by CBC § 11-1.6 has nothing to do with the deployment or use of that manpower.
When the Defendants claim that CBC § 11-1.6 “interferes with the management of a city department in the same way that an ordinance interfered with the management of the corporation counsel’s office in City Council of Boston v. Mayor of Boston, 58 Mass. App. Ct. 542 (2003), the Defendants are mistaken. This is another case of apples and oranges. In that case, the City Council of Boston did not simply create an ordinance which would have increase the staff of the Corporation Council’s Office, any of which could have been made available to the City Council as needed. The City Council of Boston attempted to create a position of legal council to the City Council. The position of legal council to the City Council could be viewed as a department (and department head) unto itself (with an associated transfer of power), in violation of Section 5(a) and 5(f) of the Boston City Charter, or it could be viewed as the creation of a new division within the Corporation Council’s Office (with an associated transfer of power), in violation of Section 5(e). Either way, while we agree with the Defendants that the creation of the position of legal council to the City Council would require the “approval of the Mayor” under Section 5 of the Boston City Charter, CBC § 11-1.6 does not either create a new department or a new division and it does not transfer power. As such, it does not speak to the current case.
According to Defendants, “The Massachusetts Appeals Court has determined in City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) that these types of ordinances can only be adopted with the joint approval of the Mayor and the City Council, and thus the fifteen day approval process pursuant to St. 1951, c.376, § 17D does not apply to these. See City Council of Boston, 24 Mass. App. Ct. at 669. Although we agree with the Defendants that “these types of ordinances” comply with Section 5 of the Boston City Charter, we do not agree that CBC § 11-1.6 is one of “these types of ordinances”. Once again, this is a case of apples and oranges. The City Council of Boston had passed ordinances attempting to abolish the Inspectional Services Department in violation of Section 5(b) of the Boston City Charter, and establish a new Building Department (in violation of Section 5(a) of the Boston City Charter) as well as establishing a Commission of Women in the Mayor’s office (in violation of Section 5(a) of the Boston City Charter). CBC § 11-1.6 does not create nor does it abolish any department within the Police Department, and so City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) has no relevance in this case. City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987).
Additionally, the Defendants provide another example of one of “these types of ordinances” when it cites Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D. Once again, this is a case of apples and oranges. The City Council passed an ordinance giving the City Council and the Mayor control over the closure of hospitals controlled by the City Department of Health and Hospitals. If each hospital within the system controlled by the City Department of Health and Hospitals were to be viewed as either a department or a division of the City Department of Health and Hospitals, then the director of each hospital can be further viewed as department head. It becomes obvious that the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D violates Section 5(b) of the Boston City Charter because it had the potential to abolish a hospital, violates Section 5(e) of the Boston City Charter because it had the potential to transfer power, duties and appropriations of the abolished hospital to whichever hospital took control of the patients and potentially violates Section 5(g) of the Boston City Charter if the director of the abolished hospital were not transferred to an equal or greater role within the City of Boston. CBC § 11-1.6 does not abolish, in whole or in part, any department within the Police Department, nor does it transfer power, duties or appropriations, nor does it affect the salary of any department head within the Police Department. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D has no relevance in this case. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D.
In all of those cases, the Court found that there was either establishment of a new position (i.e. legal counsel to the City Council) or substantial interference with a City agency (i.e. Inspectional Services Department or Department of Health and Hospitals). In the current case there is no such interference with the internal operation of the Police Department. Plaintiffs intend to call as witnesses, experts and high ranking police officers who will testify that the Police Department is woefully undermanned and that the additional police officers will not amount to the virtual “headache” to the Police Commissioner as the Defendants contend.
The Defendants’ argument that they alone can determine the validity of CBC § 11-1.6 simply puts the shoe on the wrong foot. It is up to the City to prove that the Ordinance is invalid, not on the Plaintiffs to show that it is valid. Plaintiffs suggest that Defendants should file, as part of the current civil action, a counter-claim under G.L. c. 231 A seeking a declaratory judgment that CBC § 11-1.6 is invalid, just as the City Council did in the above-cited cases. As such, Defendants’ motion to dismiss should be denied.
Conclusion
For these reasons the Defendants’ Motion to Dismiss should be denied.
Respectfully submitted,
_______________________ ____________________
Kevin McCrea, Pro-Se Dr. Clara Lora
218 West Springfield Street 218 West Springfield Street
Boston, MA 02118 Boston, MA 02118
(617) 267-2453
