Case Last Refreshed: 6 months ago
Post, Tracey A., filed a(n) Actions Involving The State/Municipality case represented by Chamberlain, Esq., Mary B, against Bounce, Town Clerk, Dennis, Ma, Theresa T, Galvin, As Secretary Of The Commionwealth, William F., Michelle Tassinari, Director And Legal Counsel For Secretary Of The Commonwealth, Tassinari, Director And Leagal Counsel For, Michelle, Theresa T. Bounce, Town Clerk, (total of 6) See All represented by Braun, Esq., Devan C, Hornstine, Esq., Adam, Sterman, Esq., Anne Lisa, in the jurisdiction of Barnstable County, MA, . Barnstable County, MA Superior Courts with Mark C. Gildea presiding.
Case Number |
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Filing DateOctober 18, 2022 |
CategoryActions Involving The State/Municipality |
Last RefreshedOctober 06, 2023 |
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Filing LocationBarnstable County, MA |
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Original civil complaint filed. With jury claim
Date: October 18, 2022
Civil action cover sheet filed.
Date: October 18, 2022
Notice to the Appeals Court of Interlocutory Appeal Applies To: Post, Tracey A. (Plaintiff)
Date: October 27, 2022
APPEARANCE FILED BY Devan C Braun, Esq., for Theresa T. Bounce, Town Clerk
Date: October 20, 2022
Notice of voluntary dismissal (41a.l.i)
Date: November 18, 2022
| Date | Type | Description | |
|---|---|---|---|
| November 18, 2022 | Docket Event | Notice of voluntary dismissal (41a.l.i) | |
| November 02, 2022 | Docket Event | Notice of docket entry received from Appeals Court ORDER (RE#1) The plaintiff's petition for interlocutory relief under G.L. c. 231, s. 118, first par., is accordingly denied. So ordered. (Massing, J.) | |
| October 27, 2022 | Docket Event | Endorsement on Motion to Interplead, and/or Joinder of persons motion needed for just adjudication to be jointed (#10.0): DENIED for failure to comply with Superior Court Rule 9A. Merely entitling a motion as an emergency is insufficient, without more, to qualify as an emergency. The Court has reviewed the motion and nothing stated within raises to the to the need of an emergency so as to bypass the requisites of Rule 9A. | |
| October 27, 2022 | Docket Event | Notice to the Appeals Court of Interlocutory Appeal Applies To: Post, Tracey A. (Plaintiff) | |
| October 27, 2022 | Docket Event | Notice of docket entry received from Appeals Court With respect to the petition pursuant to G.L. c. 231, s. 118 Re # 1; Any response to the petition is due on or before 4:00pm on October 31, 2022 Applies To: Post, Tracey A. (Plaintiff) | |
| October 27, 2022 | Docket Event | Service Returned for Defendant William F. Galvin, as Secretary of The Commonwealth: Service through person in charge / agent; Caroline Cooper, on 10/28/2022 | |
| October 27, 2022 | Docket Event | Service Returned for Defendant Michelle Tassinari, Director and Legal Counsel for Secretary of the Commonwealth: Service made in hand; on 10/19/2022 with Order of Notice | |
| October 27, 2022 | Docket Event | Notice of docket entry received from Appeals Court Petition pursuant to G.L.c. 231, s.118 filed for Tracy A. Post by Attorney Mary Chamberlain Applies To: Post, Tracey A. (Plaintiff) | |
| October 24, 2022 | Docket Event | Other Interested Party Abraham Kasparian, Jr.'s EMERGENCY Motion to Interplead, and/or Joinder of persons motion needed for just adjudication to be jointed | |
| October 21, 2022 | Docket Event |
MEMORANDUM & ORDER: BACKGROUND Plaintiff, Tracy A. Post, a candidate in the November 8, 2022 election for representative to the General Court for the First Barnstable District, filed this action for mandamus and declaratory relief against the William F. Galvin, Secretary of the Commonwealth (the "Secretary"), the Secretary's Director and Legal Counsel in the Elections Division, Michelle Tassinari ("Ms. Tassinari"), and the Dennis Town Clerk, Theresa T. Bunce (the "Town Clerk"), because of the incorrect designation of another candidate for representative as being a "candidate for re-election."3 Ms. Post seeks a preliminary injunction against the Secretary and Town Clerk4 ordering that: 1 In his capacity as Secretary of the Commonwealth of Massachusetts. 2 Michelle Tassinari, in her capacity as the Director and Legal Counsel in the Elections Division of the Office of the Secretary of the Commonwealth of Massachusetts, and Theresa T. Bunce, as she is Dennis Town Clerk. 3 A motion to intervene was filed by the Democratic Party that was opposed by Ms. Post and on which the defendants took no position. After hearing, the motion was allowed. See Paper No. 8. 4 The complaint's prayer for relief does not seek relief against Ms. Tassinari. The court agrees that Ms. Tassinari is not a proper defendant in an action seeking equitable relief of this kind and dismisses any claim against her. 2 1. These defendants be restrained from sending out corrected ballots with a Notice to Voters a. in its current form; and b. in any form that includes the word "minor"; and c. in any form that includes the sentence: "If you do not return this corrected ballot your original ballot will count." 2. These defendants not count votes in the race for Representative on any ballots with the incorrect designation; and 3. These defendants not count any other ballot that was sent out with the Notice to Voters in its current form. 4. These defendants send out a third ballot with a corrected Notice to Voters. Ms. Post argues that as the original ballots contained inaccurate information regarding an opponent in the Representative race, she faces an unfair situation that rises to the level of irreparable harm. Ms. Post further argues that the defendants undermined the significance of the error through the notice sent to voters that states that if the second ballot is not returned, the first ballot5 will count. The Secretary and Town Clerk oppose any mandamus relief entering against them absent any statutory mandate that they have violated. ANALYSIS Standard In order to secure a preliminary injunction, a moving party "must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction." Tri-Nel 5 Containing the incorrect designation. 3 Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001) (citation omitted). A court will also consider the public interest in the injunctive relief sought by the plaintiff in certain cases. See Town of Brookline v. Goldstein, 388 Mass. 443, 447 (1983). As the moving party, Ms. Post has the burden of showing that she has a likelihood of succeeding on the merits of her claims and that she will suffer irreparable injury in the absence of injunctive relief. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Mandamus Ms. Post argues entitlement to relief in the nature of mandamus because the original ballots violated Massachusetts election law, specifically G. L. c. 54, § 41, because of the incorrect designation. Ms. Post further argues that the incorrect designation will likely influence voters relying upon the SJC's holding in Rizzo v. Board of Election Commissioners, 403 Mass. 20, 22-23 (1988). It is well settled that "[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." Linardon v. Secretary of Housing and Economic Development, 490 Mass. 1005 (2022) citing Boston Med. Ctr. Corp. v. Secretary of the Executive Office of Health & Human Servs., 463 Mass. 447, 469-470 (2012). "Mandamus is not an appropriate remedy to obtain a review of the decision of public officers who have acted and to command them to act in a new and different manner." Id. Here, the Secretary acted on the error. The fact that Ms. Post disagrees with the Secretary's determination does not entitle her to mandamus relief. Id. Massachusetts G. L. c. 54, § 41 does provide to the name of a candidate for a state or city office who is an elected incumbent thereof, there shall be added in the same space the words "Candidate for Reelection." The SJC's holding in Rizzo highlights the importance of the 4 designation as "Candidate for Reelection," but that importance alone does not warrant mandamus relief here. Rizzo involved a printer error that resulted in the ballots being out of compliance with a clear mandate of G. L. c. 54, § 41. By contrast, the record before me does not show any act which the Secretary or the Town Clerk failed to execute which they have a legal duty to perform. Lutheran Ser. of New England, Inc. v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986). Rather, as stated above, the Secretary and the Town Clerk acted on the error, even if it was not in the manner Ms. Post has sought. Ms. Post suggests that this court has a unique opportunity to act before a complete injustice occurs in an election, rather than after. The facts of this case do not warrant mandamus relief and I do not find that Ms. Post has shown a likelihood of success of succeeding on the merits of her claim. The relief requested by Ms. Post, which could result in voters being disenfranchised by not counting their vote, also would appear to prevent the required determination "that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). ORDER For the foregoing reasons, it is hereby ORDERED that the Plaintiff's Request for Injunctive Relief be DENIED. (See image for text). Clerk's Notice emailed Mary B Chamberlain, Esq., mchamberlain@chamberlainlawgroup.com; Anne Lisa Sterman, Esq., anne.sterman@mass.gov; Adam Hornstine, Esq., adam.hornstine@mass.gov; Devan C Braun, Esq., dbraun@k-plaw.com; Gerald A McDonough, Esq., gerry@gmcdonoughlaw.com Judge: Gildea, Hon. Mark
Judge: Gildea, Mark |
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