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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPREME JUDICIAL COURT


FOR SUFFOLK COUNTY
No. SJ-2020-0535

CHIUBA EUGENE OBELE

vs.

SELECT BOARD OF BROOKLINE. 1

MEMORANDUM OF DECISION AND JUDGMENT

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

responsible for appropriating funds and enacting bylaws. See G. L. c. 4, § 7, eighteenth B; G. L.

c. 40, §§ 5, 21. The board, as part of the town's executive branch, is responsible for "supervising

[t]own affairs and overseeing town government." G. L. c. 4, § 5, fifth B. Under Brookline's

bylaws, the board has authority to prosecute suits and employ counsel on the town's behalf. See

Town of Brookline General Bylaws, §§ 3.1.2, 3.1.3.

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.

According to the complaint, the amendment provides:


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"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

affected." Alliance AFSCME/SEIU, AFL-CIO v. Commonwealth, 427 Mass. 546 (1998),

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

benefits"); Loring v. Inhabitants of Town of Westwood, 238 Mass. 9, 10 (1921) ("[t]he

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.

2. Alternative remedies. Although Obele's complaint effectively seeks to "prevent

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.

/s/ Kimberly S. Budd


Kimberly S. Budd
Associate Justice
Dated: October 21, 2020

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