TRURO — A civil lawsuit against several town officials regarding the appointment of registrars, the removal of names from the voter rolls, and the postponement of a special town meeting was rejected by Orleans District Court Judge Robert A. Welsh III, according to court records. The suit, filed on Nov. 2 by Truro voters Peter Herridge and Stefanie O’Neill, sought a declaratory judgment, an injunction, and $49,000 in attorney’s fees and damages.
The defendants in the suit are Town Manager Darrin Tangeman, Moderator Paul Wisotzky, Town Clerk Elisabeth Verde, and select board chair Kristen Reed, as well as the board of registrars and select board as entities.
Herridge and O’Neill were represented by Michael Lawrence Oliverio, an intellectual property and patent lawyer and a senior partner at the Boston firm Polsinelli PC.
Oliverio himself was one of the people recently struck from the Truro voter rolls after he failed to appear at a hearing before the board of registrars. Oliverio had registered to vote in town on Aug. 30 with a Southborough mailing address.
Herridge and O’Neill asked the court to declare that the select board’s temporary appointment of two Republican registrars was illegal, and that the registrars’ subsequent decisions were illegitimate. The board of registrars, Oliverio said, was an “illegitimate kangaroo court.”
The suit stated that “the aim of these actions is to avoid defeat of Warrant Articles related to the development and appropriations of $35M for a public works facility and adoption of recommendations for a housing project at an indeterminate scale and unknown cost to taxpayers. The defendants simply are unwilling to lose the articles and have undertaken oppressive and draconian tactics to win.”
It also stated that “Defendants’ acts have caused and are continuing to cause an interference with Plaintiffs’ right to vote that is substantial, unreasonable and illegal.”
But the defendants were never served. The suit was filed as an ex parte emergency motion, meaning that the plaintiffs wanted the judge to rule without the defendants being notified. When asked about the suit last week, at least one town official was not aware it had been filed.
“Courts are loath to grant any form of ex parte relief unless there is some dire emergency because it flies in the face of due process,” said Mike Fee, an attorney who lives in Truro.
The Hearing
The plaintiffs were seeking a 10-day temporary restraining order to stop the voter challenge hearings, due to begin four days later, until there was a properly constituted board of registrars.
The plaintiffs filed the case on Nov. 2, and Judge Welsh heard it the same day. He denied all the plaintiffs’ motions, including for the appointment of a special process server.
During the proceedings, attorney Oliverio claimed to be representing two challenged voters. While O’Neill’s registration was among the 67 challenged — but ultimately upheld by the registrars — Herridge’s was not. Oliverio also stated that town officials had made the initial decision to postpone town meeting on the spur of the moment based on how they expected people to vote.
The Oct. 21 town meeting was, Oliverio told the judge, “supposed to be a vote on whether or not to approve a $34-million construction project. At that meeting, what happened was a supermajority of people from the town of Truro, voters, showed up at the meeting to the surprise of the board of selectmen. When they saw that all these people showed up, and that they were going to vote against the approval question, they unilaterally right there live on the spot terminated the meeting.”
In fact, the town had announced on Oct. 19 in a press release that the meeting would be continued because of voter registration challenges and the resulting threat to the meeting’s integrity.
Oliverio also told the judge that “at that same meeting, at the same time, they unilaterally decided to have a board of selectmen meeting to appoint two new registrars.”
In fact, the select board had made two temporary appointments more than a week before, on Oct. 13.
Oliverio also claimed that the town had “hired a man who sits on the board of the construction company that’s supposed to be awarded the project, to file a complaint against 67 voters in Truro to challenge them.”
In an email to the Independent, Raphael Richter, who filed 66 voter challenges, said he does not serve on the board of any construction companies. He suspected that Oliverio may have been thinking of his board position on the Community Development Partnership (CDP), a nonprofit that works on affordable housing development.
“The CDP has no involvement with DPW,” Richter wrote. He also said that the town didn’t hire him: “No one hired or induced me in any way to file the voter challenges. I did so of my own volition and at my own expense.”
Judge Welsh suggested that the suit had likely been filed in the wrong court. He said that district courts typically do not hear cases concerning voting or elections. “I’m curious as to why this wasn’t filed in the Superior Court,” he said.
“The Superior Court never grants restraining orders in my experience,” Oliverio said. “They have jurisdiction, but they just don’t hear you.”
Under state law, district courts have jurisdiction over inquests, evictions, mental health matters, and domestic disputes, with a maximum recovery of damages of $50,000.
Superior Court handles “civil actions over $50,000, matters where parties are seeking equitable relief, and actions including labor disputes where parties are seeking injunctive relief.”
“It’s the easiest decision for a court to deny a request for relief if it doesn’t have the power to grant what is being asked,” said Fee. “A judge without jurisdiction doesn’t even have to get to the facts.”
In an email to the Independent, Oliverio wrote, “It is a plain and simple fact that the majority on the Truro Select Board doesn’t represent the will of the vast majority of Truro residents, is at best unethical and at worst unlawful in its proven efforts to suppress, intimidate and disinform voters.”
Oliverio did not respond to specific questions about his statements to the judge. Instead, he threatened to add the Provincetown Independent as a co-defendant in the lawsuit. “Be advised that you are individually liable in addition to the publisher,” he wrote to a reporter.
Contentious Appointments
On Tuesday, Dec. 12, Heather Harper and Julie Cataldo were reappointed as temporary registrars for 28 days.
On Oct. 13, eight days before the scheduled special town meeting, the select board convened to make those temporary appointments — the action at the crux of the O’Neill et al. lawsuit.
That day’s proceedings became contentious. Per MGL ch.51 §15, registrars are generally appointed “from a list to be submitted to them by the town committee of the political party from the members of which the position is to be filled,” with at least three nominees per vacancy. Timothy Hickey, chair of the Truro Republican Town Committee, submitted two names rather than six. But he had not been notified 45 days prior to the appointment to submit them, as is the expectation.
According to Town Manager Tangeman, the board of registrars was in limbo after the May departure of former Town Clerk Kaci Fullerton, a Republican. As the town went about hiring a new clerk — who would have an ex officio membership on the board — it was unclear whether a new appointment would be necessary, because a new Republican clerk might have simply filled Fullerton’s vacancy. When Elisabeth Verde, a Democrat, was hired, the board needed to be reshuffled. Then, registrar Michael Kaelberer, who was unenrolled, resigned, and there were two spots to fill.
“We needed to get them appointed so that we’d be prepared for both a town meeting and an election,” Tangeman said, adding that “historically, the local Republican committee has never provided names.” There hasn’t been a Republican committee in the past decade or so, he said.
Just weeks after the board of registrars was reconstituted, the four members were responsible for hearing and ruling on dozens of voter registration challenges.
Throughout the registrars’ appointment process, Tangeman said, officials worked closely with town counsel from KP Law.
Temporary appointments to the board of registrars are allowed in the event of a resignation and vacancy. Per MGL ch.51 §20, the select board can “appoint in writing some person to fill such vacancy temporarily, who is of the same political party as the member whose position he is appointed to fill. Such temporary registrar shall perform the duties and be subject to the requirements and penalties provided by law for a registrar of voters.”
For now, the status of the Herridge and O’Neill lawsuit remains open. According to a clerk at Orleans District Court, that will change only when a plaintiff calls for it to be dismissed.
In the meantime, Oliverio did not say whether he plans to refile the suit in Superior Court.
“We don’t respond to questions about pending litigation,” he wrote.
