Judge dismisses City Councillor’s case against Mayor

This article appeared on April 17, 2015 in the Gardner News. 

Citing a lack of standing, a judge on Thursday dismissed City Councillor Scott Graves’s complaint that Mayor Mark Hawke overstepped his authority during the writing of Gardner’s emergency service zone plan.

“A claim of injury based on an official’s disobedience or flawed execution of a law alone is simply a generalized grievance about the conduct of government and does not confer standing,” wrote Superior Court Justice Dennis Curran in his finding dismissing all claims.

For months, Mr. Graves and City Solicitor John Flick have squared off over the city’s service zone plan, which was approved last fall by the Department of Public Health and is a requirement of Massachusetts General Laws Chapter 111C. Years overdue in submitting it to the state, Mr. Hawke acted as the local jurisdiction during the writing of the plan, without City Council approval.

Despite correspondence from the DPH to the contrary and Mr. Flick’s insistence, Mr. Graves said the City Council and only the City Council could authorize a local jurisdiction to legally write the plan.

The question of whether the mayor acted legally was answered by the court, as Judge Curran upheld Mr. Flick’s motion to dismiss the case due to lack of standing.

“This is the fastest I’ve ever seen the courts move on a motion to dismiss,” said Mr. Flick, who appeared before the judge alongside Mr. Graves  last week. “I would love to argue Chapter 111C … but it has to be brought the right way, and the judge clearly said this wasn’t the right way.”

In his decision, Judge Curran wrote that the outcome may have been different if the case was brought on behalf of the entire City Council. He also cautioned that the courts should have a limited hand in matters such as this one.

“Courts should exercise restraint in becoming involved in disputes between other branches of government,” he wrote. “Court should not resolve disputes in cases where a political remedy is available.”

Mr. Graves said he has no plans to appeal the decision.

“It’s an excellent decision, although I don’t like the result,” he said. “The judge based the decision on two things Mr. Flick never brought up, which I find interesting.”

As for next steps, Mr. Graves said the judge’s decision gives the council the option of still voting to appoint a local jurisdiction. A decision, he said, City Council President James Walsh will have the first chance to mull over.

“I wouldn’t want to step on his toes,” while reserving the right to broach the subject again, he said.

While Mr. Walsh did not offer comment Thursday, Mr. Flick said he is ready to move on to other matters.


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