COMMONWEALTH OF MASSACHUSETTS

Middlesex, ss Superior Court Department Docket No. _______________

Daniel L. Fahey, James W. Bueche, Plaintiffs vs Newton Election Commission, David A. Olson, Clerk of the City of Newton and Jonathan Yeo Defendants COMPLAINT

FACTS COMMON TO ALL COUNTS 1. The plaintiff, Daniel L. Fahey, of 86 Washington Park, Newtonville, MA 02460 is a registered voter in the Ward 2 voting district of the City of Newton, Middlesex County, Massachusetts. 2. The plaintiff, James W. Bueche, of 235 Islington Road, Auburndale, MA 02466, is a registered voter in the Ward 4 voting district of the City of Newton, Middlesex County, Massachusetts. 3. The defendant, Newton Election Commission, with an office at an office at Newton City Hall, 1000 Commonwealth Avenue, Newton, MA 02459, organized pursuant to MGL ch. 55B, is composed of four members, duly appointed, who are: Kenneth R. Hartford, Chair, of 30 Clarendon Street, Newton, MA 02460 Fay G. Cohen of 15 Cottonwood Road, Newton, MA 02459 John P. McDermott of 7 Washburn Street, Newton, MA 02458 Richard A. Lipof of 105 Baldpate Hill Road, Newton, MA 02459, and the City Solicitor, Donnalyn B. Khan, Newton City Hall, Newton, MA 02459 4. The Newton Election Commission is duly authorized under law to make decisions with respect to objections to the filing and certification of nomination papers for candidates for the Newton School Committee.

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5. The defendant, David A. Olson, is the Clerk of the City of Newton, with a principal office at 1000 Commonwealth Avenue, Newton, MA 02459. Under MGL c.55B, 7 the City Clerk is responsible to cause ballots to be printed for primaries and elections. 6. The defendant Jonathan Yeo is a resident of the City of Newton, MA, formerly of 152 Grove Street, Ward 4 and now of 275 Lowell Avenue, Ward 2, Newton, MA. 7. With respect to candidates for public office, the Newton Charter was amended by petition of the Newton Board of Aldermen to the General Court that was approved as Chapter 368, Acts of 2002, to require that every candidate for the Newton School Committee and the Board of Aldermen continuously be a voter and be a resident of the Ward from which he is elected from the date that the election commission makes blank nomination forms available until and including the first day of the term for which he is elected. (Article 4.1(b) & 2.1(b) respectively of Newton Charter). Exhibit 1 Article 4.1(b) Newton Charter. 8. During the process of approval by the Newton Board of Aldermen the then City Solicitor, Daniel Funk, in an appearance before the Program and Services Committee of the Board of Aldermen, on January 9, 2002, in response to a question to define residency, opined that it where the person is registered to vote. See Exhibit 2, page 2, paragraph 4. This statement was published in the Committee Minutes and distributed to members of the Board of Aldermen. 9. Prior to the 2002 amendment the only eligibility requirement for school committee members and members of the Board of Aldermen was that they be a voter and be elected from the various Wards. 10. The 2002 amendment to the Newton Charter was introduced and approved after a voter and resident of Ward 5 filed nomination papers and was certified to run as a candidate for Alderman from Ward 8. 11. On or about July 25, 2011 the defendant, Jonathan Yeo filed nomination papers with the office of the Newton Election Commission for the position of Ward 2 School Committeeman, claiming, in a sworn affidavit, to be a resident of 275 Lowell Avenue, Newton, MA . . . as of the date that the election commission makes available blank forms for the nomination of candidates for office. 12. The Newton Election Commission determined that in this case the date that the election commission makes available blank forms for the nomination of candidates for office was March 7, 2011. 13. On August 11, 2011, the plaintiffs timely filed an Objection to said nomination papers, a copy of which is attached and marked Exhibit 3, under the provisions of MGL chapter 55B, section 7, claiming that Jonathan Yeo was not a resident of Ward 2 on the date required by the Newton City Charter, Article 4, namely, March 7, 2011.

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14. On August 15, 2011, pursuant to the provision of MGL ch. 55B, section 7, the Newton Election Commission, being joined by Donnalyn B. Kahn, Esq., City Solicitor, held a hearing on the plaintiffs Objection. Said hearing was held at Newton City Hall, Room 222, at 2:00 p.m. 15. The basis of the plaintiffs Objection was that the Newton City Charter provides, in Article 4, Section 4.1, the following subsection: (b) EligibilityOnly voters shall be eligible to hold the office of school committeeman. A candidate for the office of school committeeman shall be a resident of the ward from which he seeks election as of the date that the election commission makes available blank forms for the nomination of candidates for office. In order to hold the office of school committeeman, a candidate shall have continuously been a resident of the ward from which he is elected from the date that the election commission made such blank forms available until and including the first day of the term for which he is elected. A member of the School Committee shall, notwithstanding his removal from one ward of the City to another, continue to serve and to perform his official duties during his term of office. The removal from residency within the City shall create a vacancy in such office. 16. The parties stipulated, prior to the taking of evidence, that the defendant, Jonathan Yeo, was not physically present at 275 Lowell Avenue, in Ward 2, Newton, on March 7, 2011. 17. Janet J. Sterman of 120 Church Street, Newton, MA testified at the Election Commission hearing that she had a conversation with Jonathan Yeo on the evening of March 7, 2011, in which he informed her that he was not moving to 275 Lowell Avenue until June of 2011. Exhibit 4, Objection of Janet J. Sterman. 18. Alexander Reid, a tenant at 277 Lowell Avenue through April 30, 2011, testified at the Election Commission hearing that he was not aware of any person living at 277 Lowell Avenue, the apartment above his, during the period relevant to this case. 19. The records of the Newton Election Commission were submitted and accepted into evidence showing that Jonathan Yeo did not register to vote in Ward 2, Newton, MA, until April 11, 2011. A copy of his voter registration is attached and marked Exhibit 5. 20. After the completion of the hearing, without any discussion or deliberations, the Election Commission called for a vote on the question, moved by Richard A. Lipof, as of March 7, 2011, did Jonathan Yeo reside at 275-277 Lowell Avenue, two members and the City Solicitor vote in favor and two members in opposition. No other votes were taken and the hearing was announced Closed. 21. On August 23, 2011, the plaintiffs gave notice of Appeal to the defendants and requested an assembly of the record.

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JURISDICTION 22. The Superior Court Department of the Trail Court has jurisdiction to hear this matter under the following Massachusetts General laws:

Chapter 231A, Section 1 provides The . . . superior court . . . may . . . make binding 23. declarations of right, duty, status and other legal relations . . .. Section 2 provides . . . the procedure under section one may be used to secure determination of right[s] . . . under . . . a charter, statute, municipal ordinance . . ..

24. Chapter 56, Section 59 provides . . . the superior court department of the trial court shall have jurisdiction of civil actions to enforce the provisions of chapters fifty to fifty-six, inclusive, and may award relief formerly available in equity or by mandamus. . . .

25. Chapter 30A, Section 14 provides for judicial review where no statutory form of judicial review or appeal is provided. Further, the Court may set aside or modify the decision, if it determines that the substantial rights of any party may have been prejudiced because the agency decision is . . . (c) based upon an error of law; or . . . (e) unsupported by substantial evidence; . . . (f) unwarranted by the facts . . .; or Arbitrary or capricious . . . .

COUNT I DECLARATORY JUDGMENT UNDER MGL CHAPTER 231A 26. The plaintiffs incorporate paragraphs 1 through 25 in this Count I as if the same were fully set forth herein. 27. The plaintiffs further say that the family of Jonathan Yeo, including his wife and children, did not move into 275 Lowell Avenue until June of 2011. The plaintiffs further say that the family of Jonathan Yeo, his wife and child did not register to vote at 275 Lowell Avenue until April 11, 2011. 28. The vote by a majority of the Election Commission members, including the member sitting as City Solicitor, has significantly violated the intent and the language of the Newton Charter.

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PLAINTIFFS DEMAND FOR RELIEF UNDER COUNT I Wherefore the plaintiffs demand the Court determine the rights of the parties under Article 4 of the Newton Charter. a. Determine the words Only voters shall be eligible . . . , as used in said Article 4.1 (b) are intended to and do limit candidates to those who are registered voters in the district from which they are a candidate as of the date that the election commission makes available blank forms for the nomination of candidates for office. b. Determine the words A candidate for the office of school committeeman shall be a resident of the Ward from which he seeks election as of the date that the election commission makes available blank forms for the nomination of candidates for office. as used in Newton Charter Article 4.1(b) are intended to and do require a candidate to be physically present in the Ward from which he seeks election on the date that the election commission makes available blank forms for the nomination of candidates for office; that he dwell there in a specific place and that such specific place be the center of his domestic, social and civic life. c. Determine the phrase, a candidate shall have continuously been a resident of the ward, as used in Newton Charter Article 4.1(b) is intended to and does require a candidate to either be physically present or have a specific place in which he dwells that is the center of his domestic, social and civic life, in the Ward from which he is a candidate. d. Determine that Jonathan Yeo, a candidate for Newton School Committee, Ward 2, in the 2011 election, did not meet the requirements of Article 4.1(b) of the Newton Charter. e. Make such other determination as the Court deems fair and just.

COUNT II RELIEF UNDER MGL CHAPTER 56, SECTION 59 29. The plaintiffs incorporate paragraphs 1 through 25 in this Count II as if the same were fully set forth herein. 30. The plaintiffs further say they are aggrieved by the decision of the Newton Election Commission in the matter of the nomination papers of Jonathan Yeo. 31. A majority of the Election Commission members, including the member sitting as City Solicitor, was unduly influenced by testimony from Jonathan Yeo supporters who made campaign type claims that he was wanted back on the school committee and that he intended to stand for election for the Ward 2 School Committee seat. 32. A majority of the Election Commission members, including the member sitting as City Solicitor, failed to properly interpret and enforce the special provisions of the Newton
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Municipal Charter, Article 4.1.(b) concerning a candidates voter status and the requirement that he be a resident of Ward 2 as of a specific date, namely, March 7, 2011. 33. A majority of the Election Commission members, including the member sitting as City Solicitor, failed to take a vote to determine if the Election Commission would accept the nomination papers submitted by Jonathan Yeo for Newton School Committee, Ward 2, for the 2011 election. 34. A majority of the Election Commission members, including the member sitting as City Solicitor, voted without holding any open and public discussion of the evidence or the merits of the case of either party. 35. The vote by a majority of the Election Commission members, including the member sitting as City Solicitor, has significantly altered the intent and the language of the Newton Charter. 36. To allow the 2011 election to go forward with Jonathan Yeo as a candidate for School Committee, Ward 2, will cause irreparable harm to the citizens of the City of Newton by the failure to properly interpret and enforce Article 4.1(b) of the Newton Charter

PLAINTIFFS DEMAND FOR RELIEF UNDER COUNT II. Wherefore the plaintiffs demand: a. the Court reverse the decision of the Newton Election Commission in this matter and order Jonathan Yeos name be stricken from the ballot for the office of school Committee, Ward 2, in the 2011 elections. b. Issue an Order prohibiting the Newton Election Commission from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for Ward 2 School Committeeman. c. Issue an Order prohibiting the Newton City Clerk from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for Ward 2 School Committeeman. d. e. Award the plaintiffs costs plus reasonable attorney fees Make such other determination as the Court deems fair and just.

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COUNT III JUDICIAL REVIEW & RELIEF UNDER CHAPTER 30A, SECTION 14 37. The plaintiffs incorporate paragraphs 1 through 25 inclusive, in this Count III as if the same were fully set forth herein. 38. The plaintiffs further say they are aggrieved by the decision of the Newton Election Commission because said decision is against the weight of the evidence. 39. The plaintiffs further say they are aggrieved by the decision of the Newton Election Commission because said decision is against the law of the Commonwealth of Massachusetts. 40. The plaintiffs further say they are aggrieved by the decision of the Newton Election Commission because said decision is against the provisions of the Newton Municipal Charter. PLAINTIFFS DEMAND FOR RELIEF UNDER COUNT III. Wherefore the plaintiffs demand: a. the Court reverse the decision of the Newton Election Commission in this matter and order Jonathan Yeos name be stricken from the ballot for the office of School Committeeman, Ward 2, in the 2011 elections.

b. c.

Award the plaintiffs costs plus reasonable attorney fees. Make such other determination as the Court deems fair and just.

COUNT IV EQUITABLE RELIEF UNDER CHAPTER 56, SECTION 59 41. The plaintiffs incorporate paragraphs 1 through 25, inclusive, in this Count IV as if the same were fully set forth herein. 42. The plaintiffs say that there is a reasonable likelihood that they will recover judgment, including an Order the Jonathan Yeos name be removed from the ballot for Newton School Committee in the 2011 election. 43. The plaintiffs say that the failure of the Court to issue a temporary order prohibiting Jonathan Yeos name be on the ballot for election to School Committee, Ward 2, in Newton, MA, will cause irreparable harm in that: a. It will deprive the voters of the City of Newton of a fair election for the post

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b. c.

of Ward 2 School Committee. It will cause the City of Newton to expend substantial additional sums to reprint the ballot. It may cause the City of Newton to expend substantial additional sums to hold a separate election.

44. In support of their request for relief the plaintiffs rely on the Affidavit of James W. Bueche, a copy of which is attached hereto and marked Exhibit 5. 45. In support of their request for relief the plaintiffs rely on the Affidavit of Janet J. Sterman, a copy of which is attached hereto and marked Exhibit 6. PLAINTIFFS DEMAND FOR RELIEF UNDER COUNT IV. a. Issue a Temporary Order prohibiting the Newton Election Commission from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for School Committeeman, Ward 2. b. Issue a Temporary Order prohibiting the Newton City Clerk from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for School Committeeman, Ward 2. . Issue a Permanent Order prohibiting the Newton Election Commission from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for School Committeeman, Ward 2. Issue a Permanent Order prohibiting the Newton City Clerk from printing or issuing ballots for the general election held in November 2011 containing the name Jonathan Yeo as a candidate for School Committeeman, Ward 2. e. Make such other determination as the Court deems fair and just.

Respectfully submitted, By their Attorney,

___________________________________ Peter F. Harrington, BBO #222960 HARRINGTON & HARRINGTON 505 Waltham Street, West Newton, MA 02465 617-558-7722 tel 617-527-4763 fax pfh@harringtonaaty@hhmasslaw.com DATED: September 1 2011

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