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vs.
Chiuba Eugene Obele has filed a complaint seeking an order in the nature of mandamus,
pursuant to G. L. c. 249, § 5, requiring the Select Board of Brookline (board) to comply with a
certain local budget amendment approved on June 25, 2020, by the Brookline town meeting. He
also seeks a related temporary restraining order and preliminary injunctive relief. In essence,
Obele claims that the budget amendment bars the board from using the town's fiscal year 2021
funds to appeal from an adverse Superior Court judgment (appeal), and that any expenditure by
the board of the town's fiscal year 2021 municipal funds to prosecute the appeal would be
unlawful. Obele is not a party to the appeal, nor does he allege any relationship with the parties
to it. According to the complaint, Obele is a resident of Boston, although the complaint alleges
that Obele "spends the vast majority of his time living in Brookline with his current girlfriend."
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The petition names five individual members of the Select Board of Brookline in their official
capacities.
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The board has moved to dismiss Obele's complaint for two reasons: lack of subject
matter jurisdiction, pursuant to Mass. R. Civ. P. 12 (b)(1), on the ground that Obele lacks
standing to pursue the complaint; and failure to state a claim, pursuant to Mass. R. Civ. P. 12
(b)(6). The board also seeks dismissal of the application for a temporary restraining order and
preliminary injunctive relief. After consideration, the motion is allowed. The application for a
temporary restraining order and preliminary injunctive relief is denied. It is further ordered that
the complaint be, and the same hereby is, dismissed without a hearing.
Background. The town of Brookline operates under a representative town meeting form
of government. The town meeting is Brookline's legislative body, and the town meeting is
c. 40, §§ 5, 21. The board, as part of the town's executive branch, is responsible for "supervising
bylaws, the board has authority to prosecute suits and employ counsel on the town's behalf. See
On September 17, 2019, the board voted to appeal a judgment of the Superior Court,
which affirmed a decision of the Civil Service Commission ordering reinstatement of a Black
Brookline firefighter. That appeal is presently pending before the full court. See Town of
Brookline v. Gerald Alston & another, SJC No. 12974 (Alston appeal). At Brookline's annual
town meeting on June 25, 2020, the town's fiscal year 2021 budget was approved. The budget
included appropriations for both in-house and outside counsel. By a roll-call vote, town meeting
also approved an amendment to the budget, purporting to prohibit the expenditure of the town's
fiscal 2021 funds on the Alston appeal, other than to terminate the litigation and settle the case.
"No Town funds or funds whose expenditure is controlled by the Town shall be
expended after July 1, 2020, for the purposes of compensating Town employees,
engaging outside counsel, or any other purpose associated with appealing the MA
Superior Court decision of August 2, 2019 in the case of Town of Brookline v. Gerald
Alston and the Civil Service Commission, except that such funds may be employed for
the sole purpose of terminating litigation and settling the case."
On July 14, 2020, however, a majority of the board voted to pursue the Alston appeal using
fiscal year 2020 funds and, if necessary, fiscal year 2021 funds.
Discussion. "A complaint in the nature of mandamus is 'a call to a government official to
perform a clear cut duty,' and the remedy is limited to requiring action on the part of the
government official." Simmons v. Clerk-Magistrate of the Boston Div. of the Housing Court
Dep't, 448 Mass. 57, 59-60 (2006), quoting Doe v. District Attorney for the Plymouth Dist., 29
Mass. App. Ct. 671, 675 (1991). It is established that "[r]elief in the nature of mandamus is
extraordinary, and [that it] is granted in the discretion of the court where no other relief is
available." Murray v. Commonwealth, 447 Mass. 1010 (2006), citing Forte v. Commonwealth,
429 Mass. 1019, 1020 (1999), and cases cited. In addition, parties seeking a court's assistance,
must have standing; in general, they must establish "that a personal interest [is] directly
quoting Brookline v. The Governor, 407 Mass. 377, 388 (1990) (Liacos, C.J., concurring). By
requiring a plaintiff to establish a "concrete and particularized harm," the courts refrain from
"intrud[ing] into the business of a coequal branch in the course of a controversy that is to any
degree remote or abstract." Id. The complaint in this case must be dismissed both because
Obele lacks standing to bring it, and because he failed to demonstrate the absence of remedies
alternative to mandamus.
1. Standing. In this case, Obele does not purport to seek a remedy for violation of
his own, private interests -- as stated, he is not a resident of Brookline, claims no relationship
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with the parties to the appeal, and is not a party to it. In short, regardless of how the board does
or does not spend Brookline's municipal funds, Obele does not allege to "be directly affected as
to some personal interest." Brookline v. The Governor, 407 Mass. at 388 (Liacos, C.J.,
concurring) (describing "principle that strangers have no standing in the courts" as "part of the
very fabric of our law"). He claims, instead, to have standing under the "'public right doctrine,'
which allows a citizen to bring an action for relief in the nature of mandamus 'to procure the
enforcement of a public duty." Tax Equity Alliance for Massachusetts v. Commissioner of Rev.,
423 Mass. 708, 714 (1996), quoting Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 315
(1951).
"Under the public right doctrine, any member of the public may seek relief in the nature
of mandamus to compel the performance of a duty required by law. In such cases, the
plaintiff acts under the public right to have a particular duty performed that the law
requires to be performed. Where the public right doctrine applies, the people are
considered the real party in interest, and the individual plaintiff need not show that he has
any legal interest in the result."
Id. Lest the exception swallow the rule, the public right doctrine is invoked sparingly, and only
where a plaintiff establishes that "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. . . ." Kaplan v. Bowker, 333
Mass. 455, 460 (1956). Establishing standing under that doctrine requires a plaintiff to
demonstrate a "clear and unequivocal duty," not within the discretionary responsibilities of the
governmental actor. Perella v. Massachusetts Turnpike Auth., 55 Mass. App. Ct. 537, 541
(2002).
Those circumstances are not present here, and so the complaint must be dismissed. See
Alliance, AFSCME/SEIU, AFL-CIO, 427 Mass. at 550-551. I recognize that "in some
circumstances even a private citizen, without special interest in the subject matter independent of
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the rights of the public, has a standing by reason of his citizenship to maintain a petition for a
writ of mandamus to enforce a public duty of interest to citizens generally." Police Comm'r of
Boston v. Boston, 279 Mass. 577, 585 (1932). Here, however, Obele does not allege that he is
"one of the citizens who are to be served" by the public officer against whom mandamus is
sought. Weld v. Gas & Elec. Light Comm'rs., 197 Mass. 556, 559 (1908). Nor does he
articulate any specific, legitimate "concern[] in having [the alleged public duty] performed,"
Parrotta v. Henderson, 315 Mass. 416, 418 (1944), apart from compliance with the law generally.
See Police Comm'r of Boston, supra ("[t]he enforcement of any law, though it affects only
private rights, is in a broad sense matter of public interest, but some more direct interest of
citizens generally must be shown to entitle a citizen without private interest to a writ of
mandamus").
Put another way, although the complaint seeks to prevent an alleged "illegal expenditure
of public money," id., it is "public money" of a municipality in which Obele does not claim to be
a resident or taxpayer. While public officials "are obligated to obey the law, . . . that obligation,
without more, is not a sufficient ground for action by persons who are not injured." Kaplan v.
Bowker, 333 Mass. 455, 460-461 (1956). See also Alliance, AFSCME/SEIU, AFL-CIO v.
Commonwealth, 427 Mass. 546, 550 (1998) ("[a]lthough we have often considered the validity
of exercises of the Governor's line item veto power, we have never done so at the insistence of
plaintiffs who claim no other standing than as citizens seeking to enforce a public duty").
Moreover, standing under the public right doctrine has "always been limited to the
enforcement of clear and unequivocal duties, such as election officials' duty to count ballots
correctly, Brewster v. Sherman, 195 Mass. 222, 225 (1907); the Secretary of the
Commonwealth's duty to omit from the ballot an initiative question where the petition failed to
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describe the proposed law accurately, Brooks v. Secretary of the Commonwealth, 257 Mass. 91,
93-94 (1926); and the Boston building commissioner's duty to deny a permit where the proposed
building would plainly violate a statute, Bancroft v. Building Comm'r of Boston, 257 Mass. 82,
84-85 (1926)." Perella v. Massachusetts Turnpike Auth., 555 Mass. App. Ct. 537 (2002). In my
view, no such "clear and unequivocal duty" has been established here. Obele's claim is that the
town's legislative branch -- the town meeting --, by a budgetary amendment, effectively modified
the town's bylaws with respect to the manner in which the board could exercise its executive
discretion in the conduct of litigation. See Section 3.1.3 of the Brookline General By-Laws. He
has not, however, established that the board had a clear and unequivocal duty to comply with that
amendment. See, e.g., Anderson v. Board of Selectmen of Wrentham, 406 Mass. 508 (1990)
(board not bound by town meeting vote concerning town's rate of contribution for insurance
deliberations of a town meeting are confined to the articles in the warrant, and a by-law, which
within the township has the force of law cannot be overridden, at the behest of a majority of the
voters present, in the absence of an article in the warrant under which such action can be taken")
Id.
the illegal expenditure of public money" by the board, Finlay v. Boston, 196 Mass. 267, 270
(1907), it is well settled that mandamus relief is available to prevent a failure of justice only in
the absence of alternative remedies. See Lutheran Serv. Ass'n of New England, Inc. v.
Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986). There is nothing to suggest, in this
case, that an action in the nature of mandamus is only effective means of restraining action by
the board, if such restraint is warranted. Obele did not demonstrate, for example, that a "ten
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taxpayer action" pursuant to G. L. c. 40, § 53, would be inadequate or unavailable to address the
board's expenditure of funds. See Amory v. Assessors of Boston, 306 Mass. 354, 358 (1940).
Under that statute, ten taxable inhabitants of a town may petition to restrain an unlawful
expenditure of money on the part of town "or any of its officers or agents." Finlay, 196 Mass. at
270. Where a taxpayer action will suffice, mandamus will not lie. "[I]t was the intention of the
Legislature, in acting [Rev. Laws, c. 25, § 100, now codified as G. L. c. 40, § 53], to make the
remedy given by that act to [ten] taxable inhabitants for cases covered thereby, exclusive of other
remedies." Id. See Woods v. Newton, 349 Mass. 373, 379 (1965) ("mandamus will not lie
where there is available another and effective remedy"), quoting Madden v. Secretary of the
Commonwealth, 337 Mass. 758, 761 (1958). It is no answer that Obele is neither a taxable
inhabitant of Brookline, nor one of a cohort of ten of more such inhabitants. See Tax Equity
Alliance of Mass. v. Commissioner of Revenue, 423 Mass. at 716. "[T]he individual plaintiff['s]
difficulty in immediately identifying a plaintiff with proper standing does not foreclose the
existence of any taxpayer who might be able to show harm under a proper set of facts. Further,
an unfounded assumption that, if the individual plaintiff[] lack[s] standing, no one will have
standing to sue, is not a reason to find standing where none exits." Id.
Conclusion. The board's motion to dismiss is allowed. The application for a temporary
restraining order and preliminary injunctive relief is denied. It is further ordered that the
complaint be, and the same hereby is, dismissed without a hearing.