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SJC-12509

CINDY KING vs. TOWN CLERK OF TOWNSEND & others.1

Suffolk. April 6, 2018. - June 22, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.

Municipal Corporations, Removal of public officer, Selectmen.

Elections, Recall. Practice, Civil, Preliminary 

injunction. Injunction.

Civil action commenced in the Superior Court Department on 

March 24, 2017.

A motion for a preliminary injunction was heard by John T. 

Lu, J.

A proceeding for interlocutory review was heard in the 

Appeals Court by Mark V. Green, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

John M. Dombrowski for the plaintiff.

Ira H. Zaleznik (Benjamin W. O'Grady & John E. Page also 

present) for Joseph Z. Shank & others.

 

1 Board of registrars of Townsend, Joseph Z. Shank, Elaine 

R. Shank, Leanne Jackson, Erica L. Art, Kelly Michele Kelly, 

Michael P. Kelly, Lisa Lewand, Stacy C. Sheldon, Stephen J. 

Sheldon, and Jennifer Ann McLaughlin.
2

Lauren F. Goldberg, for town clerk of Townsend & another,

was present but did not argue.

BUDD, J. Ten registered voters (petitioners)2 residing in 

the town of Townsend (town) petitioned the town to hold a recall 

election to remove the plaintiff, Cindy King, a member of the 

town's board of selectmen (board),3 from office pursuant to St. 

1995, c. 27, the town's recall act (act). On April 9, 2018, we 

issued an order affirming the order of a single justice of the 

Appeals Court preliminarily enjoining the town from holding a 

recall election to remove the plaintiff from office, and we 

indicated then that an opinion would follow. This opinion 

states the reasons for that order. Because the act provides for 

a recall vote to take place only on grounds not alleged here, 

the recall election sought in this instance may not proceed.

Background. In 2017, the petitioners submitted to the town

clerk a petition that sought to recall the plaintiff. See St. 

 

2 The petitioners included those who initiated the recall 

petition and certain town officials who acted upon it. When we 

refer to the petitioners, we mean the former group.

3 Initially a number of the petitioners sought to recall 

board member Gordon Clark as well, and he filed a separate 

lawsuit that eventually was consolidated with the plaintiff's

appeal before the Appeals Court. See King v. Shank, 92 Mass. 

App. Ct. 837 (2018). However, by the time this matter came 

before us, Clark had fewer than six months remaining in his 

term, and therefore, pursuant to the act, he is not subject to 

recall. See St. 1995, c. 27, § 1.
3

1995, c. 27, § 2.4 The affidavit that accompanied the petition 

cited misfeasance and neglect of duty as grounds for the recall, 

alleging that, in the plaintiff's role as a member of the board, 

she

"neglected her duty to adequately represent the people of 

[the town] by refusing to argue in the affirmative for the 

public to be allowed a time for public communication at 

[board] meetings when no other board before this has 

refused to hear public comments or concerns and

" . . . impeded our Police Chief's ability to do the job he

was hired to do by using her position of authority and by 

imposing her views on day-to-day management of the Police 

Department and

" . . . neglected to support prior agreements made by the 

town with our Police Lieutenant and

" . . . neglected to speak for obtaining an official and 

full background check on an applicant for a senior position 

with the [town] prior to signing the employment contract . 

. . ."

In response, the plaintiff commenced an action in Superior 

Court to enjoin the recall election, and on the same day, she 

filed a motion for a preliminary injunction. She contended that 

the allegations made against her were legally insufficient to 

initiate a recall under the act. A Superior Court judge denied 

her motion for a preliminary injunction, and the plaintiff 

appealed to a single justice of the Appeals Court, who ordered 

 

4 Municipalities are authorized to exercise certain legal 

powers pursuant to the Home Rule Amendment. See art. 89, § 1,

of the Amendments to the Massachusetts Constitution. Under the 

Home Rule Amendment, a city or town may petition the Legislature 

to pass a recall statute specific to it alone. See art. 89, §

8, of the Amendments.
4

that a preliminary injunction issue. After a single justice of 

the Supreme Judicial Court denied the petitioners' subsequent

petition for relief, the Appeals Court reversed the order of the 

single justice of the Appeals Court and dissolved the 

injunction. See King v. Shank, 92 Mass. App. Ct. 837, 847 

(2018). We granted the plaintiff's application for further 

appellate review, and as mentioned, we issued an order affirming 

the order of the single justice of the Appeals Court. 

Discussion. We review a grant or denial of a preliminary 

injunction for error of law or abuse of discretion. Eaton v. 

Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 574 (2012). Here, 

where there is a question of statutory interpretation, we review 

the matter de novo. Commonwealth v. Escobar, 479 Mass. 225, 227

(2018).

1. Interpreting the act. Section 1 of the act provides:

"Any person who holds an elected office in the town . . .

and who has held that office for four months and has more 

than six months remaining in the term of such office on the 

date of filing of the affidavit, referred to in [§ 2], may 

be recalled from office solely upon the grounds set forth 

in said [§ 2] by the registered voters of said town."

St. 1995, c. 27, § 1.

Pursuant to the act, a recall election may be initiated by 

way of a petition signed by a certain number of registered 

voters, accompanied by an affidavit identifying the officer whom 
5

the voters seek to recall and "a statement of the grounds upon 

which the petition is based as set forth herein:

"Lack of fitness, insobriety while performing official 

functions, involuntary commitment to a mental health 

facility, being placed under guardianship or 

conservatorship by a probate court;

"Corruption, conviction of a felony involving moral 

turpitude, conviction of bribery, or extortion;

"Neglect of duties, repeated absences from meetings without 

just cause, which shall include but not be limited to 

illness or regular vacation periods; and

"Misfeasance, performance of official acts in an unlawful 

manner, or a willful violation of the open meeting law."

St. 1995, c. 27, § 2.

The parties contest the significance of the short 

description following each of the four categories in § 2. The 

plaintiff argues that the words following each category are 

definitions of the grounds listed, excluding conduct not 

explicitly specified; the petitioners contend that the

descriptions are nonexhaustive examples of the type of conduct 

that could lead to a recall election. For the reasons that 

follow, we agree with the plaintiff.

First, § 1 of the act states that one may be recalled 

"solely upon the grounds set forth in said [§ 2]" (emphasis 

added). If the descriptions after each of the four categories 

of prohibited behavior were intended to be only examples, the 

grounds would be nearly boundless, because one could easily 
6

allege conduct that could fit within the scope of one of the 

four listed categories. This interpretation would render the 

term "solely" meaningless. See Commonwealth v. Disler, 451 

Mass. 216, 227 (2008) (court should read statutes so that no 

word is meaningless).

Second, we note that although § 2 of the act employs the 

phrase, "which shall include but not be limited to," indicating 

nonexhaustive examples, the phrase does not modify any of the 

four categories of qualifying conduct. The phrase is found in 

the "Neglect of duties" category: "Neglect of duties, repeated 

absences from meetings without just cause, which shall include 

but not be limited to illness or regular vacation periods" 

(emphasis added). The phrase modifies the words "just cause";

it does not modify "Neglect of duties," nor does it modify 

"repeated absences." In effect, the phrase expands not the 

types of conduct that might be considered neglect of duties but 

instead exceptions to such conduct.

The drafters of the act clearly knew how to indicate a 

nonexhaustive list. As they did not do so in any of the four 

categories of qualifying conduct, we must assume that the 

failure to do so was purposeful. See Commonwealth v. Gagnon, 

439 Mass. 826, 833 (2003) ("[W]here the legislature has 

carefully employed a term in one place and excluded it in 

another, it should not be implied where excluded" [citation 
7

omitted]). Thus, we conclude that the four categories are 

intentionally narrowly circumscribed.

Third, if we interpreted the descriptions to be 

nonexhaustive examples rather than defining the scope of the 

categories, they would serve as a source of confusion rather 

than clarity. For instance, if "conviction of a felony 

involving moral turpitude, conviction of bribery, or extortion"

were a mere illustration of the category "corruption" rather 

than a definition, it would be unclear whether a procedural 

posture short of conviction would also qualify as corruption, 

including allegations, an arrest, or a verdict in a civil case 

in connection with such activity. In contrast, as a definition,

the act makes clear that only a "conviction of a felony 

involving moral turpitude, [or a] conviction of bribery, or 

extortion" could subject an elected official to a recall vote

(emphasis added). We decline to adopt an interpretation that 

renders the act ambiguous. See Albernaz v. United States, 450 

U.S. 333, 342 (1981), quoting Bifulco v. United States, 447 U.S. 

381, 387 (1980) ("we may not manufacture ambiguity").

The petitioners claim that construing the descriptions of 

each ground as definitions, rather than as nonexhaustive 

examples, is nonsensical because the plain meaning of each of 

the terms is clearly broader than that which is presented in the 

act. This argument fails. Providing definitions of the terms 
8

used in a statute is a way to narrow or expand the reach of that 

statute. Statutes often provide specific definitions of their 

terms. See, e.g., G. L. c. 25, § 3 (defining regulated industry

company); G. L. c. 89, § 4C (defining heavy commercial 

vehicles); G. L. c. 111, § 71 (defining responsibility and 

suitability for license to operate nursing home).

The Legislature has empowered each municipality to 

determine whether to have a recall statute and, if so, how wideranging or narrow it should be. Commonwealth v. Lammi, 386 

Mass. 299, 300 (1982), and authorities cited. Here, the 

description of each ground gives notice to the citizens of the 

town, and to its elected officials alike, of the conduct for 

which a recall election might be initiated. Whether it is wiser

to have a broad or a narrow recall statute is not a question for 

this court.5 See id.

As we conclude that the act allows for a recall election 

only under one or more of four enumerated circumstances, each of

which is specifically defined, we turn to the petitioners' 

recall petition to determine whether it alleges facts that allow 

for a recall election in this instance.

 

5 The petitioners also take the position that if the 

descriptive words following each of the grounds were 

definitions, then the terms themselves would be superfluous. 

This argument also fails, as it would make any definition 

redundant in relation to the term it defines.
9

2. The recall petition. The affidavit that accompanies

the petition in this case alleges that the plaintiff failed to

represent adequately the people of the town by (1) failing to

support public communication at board meetings, (2) impeding the 

police chief's work by imposing her views on day-to-day 

management of the police department, (3) failing to support 

prior agreements made between the town and a police lieutenant,

and (4) failing to advocate for a background check on an 

applicant to a town position. Although the petitioners claim 

that the plaintiff's actions or omissions amount to misfeasance 

and neglect of duty, the affidavit does not allege "performance 

of official acts in an unlawful manner, or a willful violation 

of the open meeting law," the definition of misfeasance under 

the act; nor does it allege "repeated absences from meetings 

without just cause," the act's definition of neglect of duty.6 

See St. 1995, c. 27, § 2.

Relying on Donahue v. Selectmen of Saugus, 343 Mass. 93, 95 

(1961), and Mieczkowski v. Board of Registrars of Hadley, 53 

Mass. App. Ct. 62, 65 (2001), the petitioners contend that the 

purpose of the affidavit is simply to commence the recall 

procedure, and to give notice to the voters of the general 

reasons for the petition; it is not meant to provide an 

 

6 The allegations also fail to qualify as grounds for

corruption or lack of fitness as defined by the act. See St. 

1995, c. 27, § 2.
10

opportunity to litigate the merits of the recall. They further 

argue that it is for the citizens of the town, not the courts,

to determine whether the stated grounds are sufficient. 

Although this argument may have merit in some circumstances, it 

cannot succeed here, where the board drafted the act to restrict 

the grounds for recall to those it enumerated. Applied here, 

the petitioners' argument would mean ignoring the limitations of 

the act.

In Donahue, 343 Mass. at 94, we reviewed the Saugus recall 

act, which simply required "grounds," i.e., any reason at all, 

to initiate a recall. See St. 1947, c. 17, § 43. There we held 

that the recall effort was proper because the Saugus act did not 

restrict the meaning of "grounds" to require "serious 

impropriety."7 Donahue, supra at 95. In Mieczkowski, the 

Appeals Court interpreted Hadley's recall act, which allowed for 

a recall election based upon "lack of fitness, incompetence, 

neglect of duties, corruption, malfeasance, misfeasance, or 

violation of oath." Mieczkowski, 53 Mass. App. Ct. at 62-63, 

quoting St. 1987, c. 384, § 1. There were no definitions or 

other descriptors to accompany the grounds. The Appeals Court 

 

7 The petitioners filed an affidavit seeking a recall based 

on the official having "[v]ot[ed] to award an all-alcoholic 

beverage goods license detrimental to the best interests of the 

town and its citizens and in direct opposition to the expressed 

desires of the people living in the area where said license was 

granted." Donahue v. Saugus, 343 Mass. 93, 95 (1961).
11

concluded that the affidavit, which tracked the statute but did 

not set forth any supporting factual assertions, satisfied the 

Hadley act.8 Id. at 63, 65.

Both the Saugus and Hadley recall statutes are broader than 

the act, which, as discussed supra, allows for a recall election 

only under one or more of four enumerated circumstances, each of 

which are specifically defined. Although we agree that a prompt 

process is important in recall elections, see Donahue, 343 Mass. 

at 95, we cannot abandon our responsibility to interpret and 

apply the statute before us.

As the allegations in the affidavit supporting the petition 

for recall do not fall within the act's enumerated grounds, the 

recall election may not proceed.

Conclusion. For the foregoing reasons, on April 9, 2018, 

we affirmed the order of the single justice of the Appeals Court 

preliminarily enjoining the town from holding a recall election 

to remove the plaintiff from office.

 

8 The petitioners' affidavit stated only that the 

petitioners sought a recall simply "for reason of lack of 

fitness, incompetence, neglect of duties, or misfeasance." 

Mieczkowski v. Board of Registrars of Hadley, 53 Mass. App. Ct. 

62, 63 (2001).