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) and notice sent to parties pursuant to Mas R Civ P 77(d)

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

Michael Joseph Donovan
Clerk of Courts

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
46

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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 by the defendants, the Boston City
Council and its President, Michael Flaherty (collectively referred to
as "the Council").

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, 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.

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 defendents 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

6

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