PRESS RELEASE
CLICK HERE FOR PRESS RELEASE FROM B.O.L.T.
FOR IMMEDIATE RELEASE
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
PAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2]
10-P-1289
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.
The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.
In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.
Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).
On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).
Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').
In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]
Judgment affirmed.
By the Court (Cohen, Smith, & Wolohojian, JJ.),
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.
The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.
In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.
Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).
On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).
Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').
In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]
Judgment affirmed.
By the Court (Cohen, Smith, & Wolohojian, JJ.),
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
PAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2]
10-P-1289
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.
The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.
In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.
Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).
On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).
Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').
In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]
Judgment affirmed.
By the Court (Cohen, Smith, & Wolohojian, JJ.),
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.
The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.
In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.
Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).
On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).
Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').
In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]
Judgment affirmed.
By the Court (Cohen, Smith, & Wolohojian, JJ.),
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
Entered: August 2, 2011.
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
FN5. We express no opinion as to the merits of their claims.
END OF DOCUMENT
