Commonwealth of Massachusetts
County of Suffolk
The Superior Court

CIVIL DOCKET#: SUCV2005-01798-B

Re: McCrea et al v Flaherty et al

To: David Waterfall, Esquire
     Boston (City of) Law Dept
     CITY HALL
     Room 615
     Boston MA 02201
________________________
_NOTICE OF DOCKET ENTRY_

You are hereby notified that on 09/09/2011 the following
entry was made on the above referenced docket:

JUDGMENT It is Ordered and Adjudged All parties agree to
entry of a Final Judgment in this case against the defts

The defts admit the facts described in the complaint

Based on the evidence presented at trial the court finds
that the Boston City Council has taken significant action
to be in substantial compliance with the requirements of
the Open Meeting Law since June 11, 2009

As a result this Court finds that no injunctive relief
whether permanent or temporary is necessary

The Court Orders that the defts shall pay costs to the
plffs in the following amounts $115.00 to Shirley Kressel
$380.00 to Kevin McCrea and $348.50 to Kathleen Devine
entered on docket pursuant to Mass R Civ P 58(a)
http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp58.html
and notice sent to parties pursuant to Mas R Civ P 77(d)
http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp77.html

Dated at Boston Massachusetts this 9th day of September,
2011

Michael Joseph Donovan
Clerk of Courts
http://www.mass.gov/courts/courtsandjudges/courts/superiorcourt/index.html

By: Richard Muscato, Assistant Clerk

Telephone 617 788-8141

Disabled individuals who need handicap accommodations
should contact the Administrative Office of the Superior
Court at 617 788-8130

cvdgeneric_2.wpd 3995418 judgm phillips


NOTIFY
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.

SUPERIOR COURT
CIVIL ACTION
No. 2005-01798

KEVIN MCCREA & others^1
vs.
MICHAEL FLAHERTY & another^2

^1 Shirley Kressel and Kathleen Devine
^2 Boston City Council

_FINAL ORDER AND ENTRY OF JUDGMENT_

In May, 2005, the plaintiffs, Kevin McCrea, Shirley
Kressel, and Kathleen Devine filed this action for alleged
violations of the Open Meeting Law, G. L. c. 39, ss 23A-C
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter39
by the defendants, the Boston City Council and its
President, Michael Flaherty (collectively referred to as
"the Council").^3
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter30A

The plaintiffs challenged the legality of certain meetings
held in 2003, 2004, and 2005 and alleged that the repeated
violations constituted a "systematic" failure to comply
with the requirement of the Open Meeting Law.

In addition to declaratory relief invalidating votes taken
at the challenged meetings, the plaintiffs requested an
injunction ordering the Council to comply with the Open
Meeting Law at future meetings.



On March 27, 2006, this Court (Holtz, J.) denied a motion
for summary judgment filed by the Council and instead
granted summary for the plaintiffs.

Judge Holtz declared that the Council had violated the Open
Meeting Law on certain dates, imposed a fine of $1,000 per
violation, and ordered the Council to comply with the Open
Meeting Law in the future.

The Council appealed.

On June 6, 2006, the Appeals Court upheld the denial of the
Council's motion for summary judgment and the grant of
summary judgment to the plaintiffs as to the January 20,
2005 violation of the Open Meeting Law and the failure of
the December 15, 2004 meeting to "cure" any earlier
violations.

The Appeals Court also upheld the denial of the Council's
motion for summary judgment as to the alleged violations of
January 13, 2005, February 17, 2005, and March 24, 2005.

The Appeals Court vacated the decision in all other
respects and remanded to this Court.



In November, 2008, the parties filed cross-motions for
summary judgment setting forth their issue as one of
remedy; specifically, what level of oversight, if any, the
Superior Court ought to impose to ensure continued future
compliance with the Open Meeting Law.

The Council accepted the judgment as to past violations and
fines imposed and argued that a permanent injunction was
not necessary because, following the Appeals Court
decision, the Council prepared a new set of guidelines to
ensure full compliance with the various requirements of the
Open Meeting Law and insisted they would comply in the
future.

In response, the plaintiffs pointed to the Council's long
history of non-compliance, post-Appeals Court decision
violations, and a report commissioned by the Council
("Walkowski Report") that explored the method and means by
which legislation might be passed exempting municipal
council bodies from the Open Meeting Law.

The plaintiffs argued that a permanent injunction was
necessary because the evidence had shown that the Council
continued to be resistant to complying with the Open
Meeting Law.



On June 11, 2009, Judge Holtz issued her decision
acknowledging the "valid concerns raised by the
plaintiffs...recently heightened by a filing of a complaint
for contempt" which she balanced against (a) the Council's
acceptance of the judgment against them, including the
payment of fines for certain violations, and (b) the
Council's representations that it has and will continue to
comply with the requirements of the Open Meeting Law.

2

Further, she pointed out that although the creation of
guidelines provides some evidence of the Council's interest
in ensuring compliance with the Open Meeting Law, the
guidelines "appear to have been drafted simultaneously with
exploring Home Rule legislation which can only be seen as
an ill-considered effort to cloak the business of municipal
government in secrecy."

The Court also considered the high cost of this litigation
to the taxpayers and the plaintiffs' concern that they
should not have to start from the beginning each time the
Council violates the Order in the future.

The court recommended the presence of an independent
attorney at Council meetings and indicated that it would
consider entertaining the Council's motion for summary
judgment, including vacating its earlier order regarding
fines, if the Council conducted meetings in a manner
consistent with the Open Meeting Law "with advice from
outside counsel where appropriate."

In the end, Judge Holtz issued a temporary order "in the
hope that the defendants will establish a satisfactory
track record of compliance."

The temporary order stated that the matter would be held
under advisement for six months at which time the parties
would appear for a status conference and the Court would
determine what additional orders should enter.



Both parties filed requests for clarification.

On September 10, 2009, Judge Holtz endorsed the motions in
relevant part: "the Court will not require that the
attys. be present at every single meeting - to the
contrary, this Court will permit the defendants to proceed
as described in their motion.

It is not helpful to a _resolution_ of these valid concerns
for any of the parties to submit incentive-laden pleadings.

The Court's efforts are focused on present and future
compliance with the Open Meeting Laws.

If the Court is assured that such compliance is the norm,
this will help inform the Court as to what remedy is
necessary or appropriate and/or whether any sanction is
necessary re: contempt." (emphasis in original).

3

On April 19, 2011, the parties appeared before me for a
status conference.

All parties requested the Court to enter a final judgment
against the defendants on all counts.

The parties could not agree on the content of this final
judgment.

An evidentiary hearing was held on June 20-21, 2011
regarding what remedy, if any, is appropriate to end this
litigation in light of the June 11, 2009 order.

The plaintiffs request various forms of permanent
injunctive relief, alleging that the Council continues to
violate the requirements of the Open Meeting Law.

The Council contends that they have substantially complied
with the requirements of the Open Meeting Law since the
June 11, 2009 order and, thus, injunctive relief and/or
fines are unnecessary.



After reviewing all the testimony and documents produced
during the June hearing, I decline to issue injunctive
relief for the following reasons:

First, I find that during the two years since Judge Holtz'
decision, there has been a positive change in the Council's
attitude toward and attention to the requirements of the
Open Meeting Law, as evidenced by the numerous changes the
Council has made to ensure compliance with the Open Meeting
Law, including changes that were not court-ordered.

For example, since 2009 an assistant corporation counsel
has attended all meetings to watch over the Council and
answer all questions.

Furthermore, minutes have been taken for all working
sessions, executive sessions, and hearings.

In addition, training on the Open Meeting Law is now done
by experts and is open to all Council members and their
staff.

Since 2009, the Council has also adjusted their rules to
ensure compliance with the Open Meeting Law.^3
___________________
^3 The Court also notes that the Open Meeting Law was
amended in July, 2010 to designate the Attorney General's
Office as the enforcing agency of the law.

See Chapter 28 of the Acts of 2009, sections 17-20,
http://www.malegislature.gov/Laws/SessionLaws/Acts/2009/Chapter28
repealing the existing state Open Meeting Law,
G. L. c. 30!, ss 11A, 11A-1/2, county Open Meeting Law,
G. L. c. 34, s9F, 9G, and municipal Open Meeting Law,
G. L. c. 39, ss 23A, 23B, and 23C, and replacing them with
a single Open Meeting Law covering all public bodies,
G. L. c. 30A, ss 18-25.
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter30A

4

I also note that the membership of the Council is vastly
different than the membership of the Council between
2003-2005.

There has been tremendous turnover so that most of the
members of the Council today had nothing to do with the
actions challenged by the plaintiffs between 2003-2005.

Additionally, I credit the testimony of the three city
councilors who testified about the change in attitude at
the Council toward the Open Meeting Law and the harm that
would be suffered by continued court monitoring.

For example, Councilor Maureen Feeney testified that the
Council made specific changes in response to Judge Holtz'
decision and that in her opinion the Council embraces the
Open Meeting Law and wants to be compliant.

Councilor Michael Ross testified that the Council is
committed to the Open Meeting Law and that in his opinion
the Council has done well acting on Judge Holtz'
recommendations and with outside oversight.

Councilor Steven Murphy testified that the Council is
firmly committed to the Open Meeting Law and that a court
order would do much harm, particularly considering the
steps the Council has taken to be compliant with the Open
Meeting Law.

Finally, I find no compelling reason to continue this
litigation.

The Council has shown that it has changed its attitude
toward the Open Meeting Law and has taken and continues to
take steps to ensure its compliance with the Open Meeting
Law.


All parties agree to the entry of a Final Judgment in this
case against the defendants who admit the facts described
in the complaint.

Each party has submitted a proposed form of Final Judgment
for this Court to consider.

For the reasons discussed above, it is hereby _ORDERED_
that no injunctive relief, whether permanent or temporary,
is necessary.

All past unpaid fines are waived.

A Final Judgment shall enter as follows:

All parties agree to entry of a Final Judgment in this case
against the defendants.

5

The defendants admit the facts described in the complaint.

Based on the evidence presented at trial, the court finds
that the Boston City Council has taken significant action
to be in substantial compliance with the requirements of
the Open Meeting Law since June 11, 2009.

As a result, this Court finds that no injunctive relief,
whether permanent or temporary, is necessary.

The Court orders that the defendants shall pay costs to the
plaintiffs in the following amounts: $115.00 to Shirley
Kressel, $380 to kevin McCrea, and $348.50 to Kathleen
Devine.

/s/John C. Cratsley
Justice of the Superior Court

Date: September 8, 2011

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