By MARK SARDELLA
WAKEFIELD — Case dismissed.
That’s essentially what Judge Robert Ullmann said in his decision on the complaint filed by Robert Mitchell of Spaulding Street claiming that his rights were violated at the Nov. 17 Town Meeting when Town Moderator William H. Carroll refused to allow Mitchell’s motion to adjourn.
In its opposition to Mitchell, the town asked only that the court deny his application for a preliminary injunction against the town. But Judge Ullmann went further. He not only denied the request for a preliminary injunction, he dismissed Mitchell’s case entirely.
Mitchell sought two rulings from the court: That town officials acted in bad faith in refusing to allow his motion to adjourn Town Meeting; and that those actions by the town nullified the Nov. 17 vote to indefinitely postpone Article 12. He further asked the court to order Town Meeting to be reconvened for a substantive vote on Article 12.
Judge Ullmann heard oral arguments at a court hearing on Friday, Dec. 19 and took written arguments from both Mitchell and the town under advisement. Mitchell presented his own complaint at the hearing. Town Counsel Thomas Mullen represented the town.
Mitchell alleged in his written complaint that town officials, specifically Carroll, violated his civil rights and those of everyone at Town Meeting by refusing to allow a substantive vote on his motion to adjourn.
During a discussion of Article 12 at the Nov. 17 Town Meeting, Mitchell attempted to move to adjourn until Dec. 1 so that Article 12 could be acted upon following the required Planning Board hearing on the zoning article.
Article 12 was a citizens’ petition filed by Mitchell and others to amend the Zoning Bylaw to limit to 30 feet the height of any building in the Assisted Living Overlay District. Mitchell has been a vocal opponent of a proposal by Shelter Development to construct a four story, 130-unit Brightview Senior Living Facility on Crescent Street.
Because Article 12 was a zoning article, a substantive vote could not legally occur at Town Meeting until after the Planning Board held a public hearing and issued a recommendation for or against the article. At their meeting on Oct. 28, Planning Board members said that due to the late filing of the petition there was not enough time to meet legal posting and notice requirements and hold a public hearing before the Nov. 17 Town Meeting. They scheduled the hearing for Nov. 25.
At that hearing on Nov. 25, the Planning Board recommended against favorable action on Article 12. But by that time, Town Meeting had already voted “indefinite postponement” of Article 12, which means it cannot be considered again for two years.
Mitchell filed his complaint against the town in Middlesex Superior Court on Dec. 2, asking the court to nullify that vote and order a revote on Article 12.
Ullmann cites case law to support his denial of Mitchell’s request for a preliminary injunction.
“It has long been Massachusetts law that actions of a town moderator are beyond judicial review, except in instances of dishonesty or bad faith,” Ullmann wrote in his decision. He cited “undisputed evidence” that Carroll “in good faith did his best to comply with Robert’s Rules of Order and it further appears that he did comply.”
Ullmann also maintained that voiding the Town Meeting vote on Article 12 would cause greater harm to the town than any harm that would come to Mitchell from letting that vote stand.
“Voiding a Town Meeting vote would be extraordinary judicial action that would not only impose a significant burden on the town but also could potentially undermine the town meeting process,” Ullmann wrote.
In his decision, Ullmann admits that Robert’s Rules of Order can be technical and at times frustrating.
“However, in general terms, the interference in town democracy that would result from voiding town meeting votes far outweighs any interference with town democracy that may sometimes result from a technical application of those rules,” Ullmann concluded in dismissing Mitchell’s entire complaint.
Reached for comment yesterday, Mitchell insisted that his case “was never about my feeling of dishonesty or bad faith by town officials. That issue was not a significant part of my presentation.” He said that he was disappointed that the judge ruled only on the issue of “bad faith” and not on the merits of the case.
“It’s frustrating that the official acts of a Town Moderator have immunity unless a plaintiff can prove dishonesty or bad faith,” Mitchell said. He added that he believed that one reason that the court is reluctant to get involved with municipal affairs is because the court “doesn’t want to deal with a thousand Bob Mitchells.”
Mullen told the Item yesterday that he was “very happy and gratified” with court’s decision. He pointed to the fact that the judge agreed that there was undisputed evidence that Carroll exercised good faith in his application of Robert’s Rules of Order at the Nov. 17 Town Meeting and that Carroll did in fact act in accordance with those rules.
Mullen said that he was especially struck by the fact that the judge not only denied Mitchell’s application for a preliminary injunction as the town had requested but of his own volition went on to dismiss the entire case.
“I’ve never seen that happen,” Mullen said.