Published July 27, 2020

By MARK SARDELLA

WAKEFIELD — The town can now go ahead and begin the process of renovating and expanding the police side of the Public Safety Building after Middlesex Superior Court judge Jackie Cowin shot down Robert Mitchell’s last-ditch effort to stop the project following a hearing late Friday morning.

Less than an hour after the 25-minute hearing, held virtually via Zoom teleconferencing, Judge Cowin issued her one-page decision denying Mitchell’s motion for a Preliminary Injunction. She also dismissed his underlying complaint against the town.

Mitchell, a resident of Spaulding Street, filed the initial court complaint on June 30. Citing the COVID-19 pandemic, he was seeking to have the Town Charter requirements relaxed for the collection of signatures in order to put the rehab and expansion of the Public Safety Building to a town-wide election. The project had been approved overwhelmingly at the June 20 Town Meeting.

Mitchell wanted the number of required signatures reduced by 50 percent and the deadline extended for collecting signatures. He was also seeking to have electronic signatures accepted due to the difficulty in collecting “wet” signatures in person due to COVID-19.

Mitchell subsequently filed a motion for a preliminary injunction on July 2 in an effort to expedite court action on his complaint. On the town’s behalf, Town Counsel Thomas Mullen filed his opposition brief on July 10.

Judge Cowin based her decision to deny the preliminary injunction on several factors. The first was Mitchell’s dim prospect of success with the underlying complaint.

“The Court finds that he does not have a likelihood of success on the merits of his claim that the Town Charter’s requirements for forcing a referendum must be relaxed due to the pandemic,” Judge Cowin wrote.

Mitchell’s cited two Massachusetts court cases from earlier this year where relief from signature requirements was granted due to the pandemic. He claimed that those cases established a precedent supporting his request for similar relief.

But Judge Cowin was not persuaded.

“The principles of Goldstein and Dennis (the two cases) do not apply here,” Judge Cowin wrote, “as there is no constitutional right, under the First Amendment or otherwise, to hold a referendum to overturn a Town Meeting vote. Any such right to a referendum derives from the Town Charter, which requires submission of 478 registered voters within 12 days of Town Meeting in order to exercise the right. Where no constitutional right is at issue, the court does not have the authority, at least under the circumstances presented, to relax those requirements.”

In the Goldstein case, a court had ruled in favor of a candidate who argued that signature requirements to get on an election ballot should be relaxed during the pandemic. The court agreed, citing a constitutional right to run for office.

In the Dennis case, the plaintiff had sought relief during the pandemic from the signature requirements to get a referendum question on the state ballot. The court ruled that there was a right under the Massachusetts Constitution to place a question on the state ballot.

No such constitutional rights were in play here, Judge Cowin ruled.

The judge also observed that within the time allotted by the Charter, Mitchell had managed to gather only 83 signatures and an additional 40 in the three weeks since. For Mitchell to succeed, she noted, the court would have to virtually eliminate the Charter requirements.

The judge also pointed out that “the easing of the pandemic crisis further reduces any basis for interfering with the Charter’s requirements.”

Mitchell’s case also failed another crucial legal test, Judge Cowin wrote, in that he could not prove that he would suffer significant harm if his requests were denied. The town, on the other hand, faced the likelihood of financial harm if his requests were to be granted.

“The balancing of harms also favors denial of injunctive relief,” the judge wrote, “as the town and its taxpayers will likely suffer irreparable harm – in the form of higher interest rates in the bond market and increased construction prices as the economy improves – if the project is delayed while litigation plays out.”

Finally, Judge Cowin ruled that the denial of Mitchell’s motion for injunctive relief “moots his underlying complaint,” and since any pending litigation “may force the town to delay the project and experience the economic harm described above, the Court grants the town’s request to dismiss the underlying action.”

The Saturday, June 20 Annual Town Meeting voted 196-17 to approve the $9.6 million expansion and renovation of the police side of the Public Safety Building. It was the second time in three years that Town Meeting had approved funds for the project.

The latest vote was even more lopsided than the one at the 2018 Annual Town Meeting, when residents approved a similar $8 million plan by a vote of 168-41. Subsequent to that vote, a group of citizens, including Mitchell, collected enough signatures to send the question to a town-wide ballot. The measure was defeated by 76 votes in a June 26, 2018 Special Election.

In 2018, only 200 registered voters were needed to force a townwide ballot. Under current Town Charter rules, a petition to send an affirmative Town Meeting vote to a townwide ballot must be signed by 2.5 percent of the town’s registered voters (about 478) and must be filed within 12 days of the Town Meeting vote.

During last Friday’s hearing, the town was represented by Town Counsel Thomas Mullen. Mitchell represented himself.

At several points, Judge Cowin pressed Mitchell to explain why he believed that his constitutional rights were violated by the town’s refusal to relax the Charter requirements or accept electronic signatures.

Mitchell argued that the Charter was defective in that it did not contain any emergency relief provisions. He further maintained that the strict enforcement of the Charter provisions during the pandemic amounted to a denial of his First Amendment right to petition the government.

But Mullen countered that there is no legal requirement for a town charter to offer any mechanism to reverse a Town Meeting vote. In fact, Mullen said, most towns don’t have such a provision.

Mitchell retains his right under the Constitution to petition the government in any number of ways, Mullen continued, but that does not include the right to petition for the reversal of a Town Meeting decision.

On the other hand, Mullen argued, with the Town’s Charter created through a Commonwealth of Massachusetts home rule petition, the town enjoys a right under the Massachusetts Constitution to enforce its Charter.

“Constitutional rights are on my client’s side,” Mullen asserted.

In the end, the judge agreed.