-: SJC-13669.
William P. O'Donnell versus John J. Cronin et al.
-: Okay. Attorney Siegel.
-: Chief Justice, Bud Associates, Justices,
may it please the court,
Joshua Siegel for the Appellants.
Superior Court committed error
in awarding the Register of Deed
summary judgment on his claim
that as an authorized official or department head,
the Registry of the Registry of Deeds,
he was permitted to make transfers between budget subclasses
without even having to justify or articulate
the basis for his opinion
that public necessity and convenience required the transfer.
The county budget process is set forth
by the statute in exacting way
that involves the Democratic County Budget Advisory Board.
It presumes good faith.
-: I get all that. Can...
How do you wrestle with the words, "in his opinion"?
Very odd language to include in a statute.
Doesn't say, you know,
if he provides a reasonable basis or whatever,
it just says "in his opinion".
-: So the opinion has to A, exist,
and B, there's implicit...
-: We know it exists, because he did it.
He says, "in my opinion, it's a public", what is it?
"public convenience," or...
Mr. Siegel: "Public necessity and convenience",
your Honor.
-: So he mouths, he says, "it's my opinion,
it's a public," don't you lose?
(Mr. Siegel chuckles)
-: Implicit in all laws, your Honor,
is that government has to act rationally.
-: Yeah, but a lot of laws,
most laws use the word reason, reasonable basis.
This is just an odd expression
in a subcategory of expenses.
-: It is an odd,
I concede that it's an odd expression, your Honor.
Certainly though,
the opinion and saying an opinion exists
and actually holding an opinion
are different
as an initial matter.
So saying I'm of this opinion.
Justice Kafker: Fine distinction,
I'd like you to help me out on that one.
-: Sure. And I think,
and that the response here by the county
was "Explain this opinion a little bit.
Tell me why you have this opinion."
And the response was to file a lawsuit.
It wasn't to say, "Oh, you know,
I don't need the computer technology,
computer hardware for this, that the other reason."
There's an exacting budget process that existed here.
There's a presumption of good faith in the statute
that county official county officials
will act with good faith.
And when there is a question about that,
the implicit rationality
that is there in all statutes
and a set in the brief about equal protection, we have
that agencies have to be rational,
the legislature has to be rational.
Justice Dewar: But where does it say
that he has to respond to your clients?
-: The statute does not explicitly say
that he has to respond to the client
that's implicit here.
And it's implicit in the way...
-: From, what is it implicit
that your clients have any authority to review?
That was your word in your reply brief
to review the discretionary act of the register.
-: It's implicit in the way
that the county officials process and handle the budget
and the overall statutory scheme there.
Because the...
-: Well, isn't it actually explicit in the statute
that your clients do have a say for certain transfers?
It's very clear, right?
-: There are certain transfers
that require a vote by the county board. Yes.
But there has always been a practice
of approval by the county.
And if you look at any of the transfer forms
that were submitted that are in the record,
there's a line that says "Approved by."
Justice Gaziano: Getting along is great until you don't.
-: Of course. That's why we're here.
-: So let let me ask you,
you talk about umbrella discretion.
It seems to me that there's, you know,
this petition to the SJC enforcement mechanism, right?
By taxpayers.
Mr. Siegel: By the taxpayers or the Attorney General,
-: Right. If there's something askew,
and then the extreme or supreme rather,
check on discretion is the ballot box, right?
-: Well, that's only in this particular case,
that's not in the case
of most authorized officials under the statute.
Most authorized officials under the statute are employees.
And that's why this is a...
-: But yeah, that's why you have in my opinion,
an uphill battle given the words of the statute.
You call them magic words, but they are pretty darn magic.
-: The implication of that, your Honor,
is that any town official,
authorized official, department head,
the head of facilities, the head of maintenance,
you know, the Register of Deeds can make these transfers.
And the only way to stop it
is by having a taxpayer or the Attorney General
file a lawsuit,
whatever happens...
-: Or to vote the person out.
So if the voters say,
"This person is raiding the IT fund to fund litigation,
we don't like that."
They vote 'em out.
-: The only person that,
they can't vote out most of these authorized officials,
most of these are not elected positions.
So the head of HR, or maintenance,
is a hired position and...
-: [Justice Wendlandt] At will?
-: I think it depends on the position,
but I believe most are not union positions.
It's not in the record.
I don't know candidly, your Honor,
but that's my understanding.
And so the county directors have that check
against most, if not everyone else who discovers.
And so to say that the ballot box
is what the legislature intended as the check on this
is not accurate, your honor.
-: It doesn't seem like the legislature intended
some degree of flexibility in moving money
from one subgroup to another subgroup.
That, at that level there needed to be this flexibility
without going through the rigmaroles required
to transfer funds between bigger groups.
-: Yes, your Honor, there was that,
and I think the better example for that
is if you look at the record,
there's only one transfer in the record
that does not come from the Registry of Deeds.
And that's a transfer between snow removal and electricity.
It's on page 394 of the record appendix.
And it was a transfer
where the authorized official sends an email
saying, in May of the fiscal year,
which I think was May of 2023,
fiscal year ends at the end of June,
saying, "Can you move money from snow removal to electricity
to pay the attached bill?"
There's the justification already in that email.
It's May, so there's not gonna be more snow removal
before the end of the fiscal year.
And this electrical bill that's being attached
needs to be paid.
Implicitly there's not the budget money to cover that.
So yes, there is room for some flexibility,
reasonable flexibility,
and simply saying,
"What is it if it's not obvious from the exchange?"
And the only exchange that we have in the record
that's not from the Registry made it very obvious,
is A, shows that that's how the process worked.
The forms all say,
and the practice has been in the town,
there's no evidence of the contrary in the record
that the transfers had to be approved
by someone from the county.
And that's why it says, "Authorized by"
and "Date" on the bottom of the transfer forms.
And that was in all the samples
and the ones submitted by the Registry and elsewhere.
And there is an administrative process for approving these
to get an administrative process completed.
-: Whatever the practice is
and the process that's been built up over the years,
we have to go back to the statute. Correct?
That's our legal standard.
-: The statute as understood,
in the context of all statutes are understood
that parties, that government officials
have to act rationally.
-: And also that they're gonna work out minor differences
and not involve the courts.
And this kind of intramural fighting
is something that maybe the legislature said,
"You should be able to work this out at this level
and you shouldn't be in court fighting this crap over."
-: I mean, as the defendants,
in representing the defendants
in all the litigation at hand,
our preference would be
not to be at the courts as well, your Honor.
-: Right. But, and I get why this looks a little different
than the normal transferring between sub budgets,
'cause he's suing you,
he's suing your clients with this money.
And I get this may be different,
but unfortunately it meets the exact statutory requirement
of intramural fighting
that we're not supposed to be getting involved with.
-: Your honor to take this out of the courts entirely
and leave it to the voters?
-: Well, no, the legislature said,
"Basically, mature government officials
should be able to work this out among themselves,"
because it's usually minor budgetary transfers.
Now I get it, this fight is escalated
where this money is actually being used to sue your clients.
And I can see why that's upsetting.
But I don't see a way around the statutory language.
-: It is not only that it's being used to sue our clients,
it's also that the request have been made
for additional funds for that purpose,
and by the elected officials in charge.
-: Could you have gone to the Attorney General's office
and asked them to enforce this section 35?
-: The statute is, to my knowledge,
not been interpreted, this section 30...
-: 35.
-: 35, yes.
That says the Attorney General can do this.
I think it is so only after the fact.
So if we made the transfer
and then went to the Attorney General and said,
"Hey, please sue us, the county,
to stop this transfer that was already made."
Conceivably that could, I don't know, your Honor.
-: [Justice Wolohojian] Maybe you're not supposed
to engage in self-help.
-: Your Honor, this is...
I think it's important to remember the context
that which this came.
The request was made through the appropriate channels.
The vote was denied,
or at least in the amount requested,
60,000 additional dollars requested 20,000 got there.
And immediately the authorized official
said, "Well then I'm gonna transfer this money."
And the county director said,
"You requested $180,000," I believe it was,
"for computer technology.
We are four months into the fiscal year.
How are you gonna deal with this?
What's your plan?"
And instead of responding and saying,
"Here's why I think we need this,
here's why it's in the public necessity and convenience,"
the response was to file a lawsuit.
If there had been a response that said,
"Oh, turns out my computer,
I had a hardware analysis done.
I looked at the computers, they're great,
and here's why I need the money for these other reasons."
And both sides, where it's coming from,
where it's going was explained...
-: I'm not sure how useful it is
to engage in this hypothetical.
I mean something specific ask a specific happened,
which is that $60,000 for legal fees was requested
and then only 20,000 was authorized.
So there was an effort to reach out on this,
and then the person got, the register got
a third of what was requested. Correct?
Mr. Siegel: Yes.
-: So I'm not sure how useful it is to hypothesize
that if the register had just asked nicely,
the register would've gotten the money.
-: I think it's a different case
if the rationale is provided, and then...
-: But does it need...
I don't understand why the person would need to explain
why the funds were no longer needed in category A,
in this case, computer hardware,
because it seems to me the whole scheme is designed
to say you have a greater than anticipated need
in category B,
therefore, you have discretion to transfer funds
from category A to Category B.
I don't see anything to indicate you need to show
that you don't any longer need the funds in category A.
It may be that you need the funds in both categories,
but that the person making the request
is trying to
satisfy an unanticipated need.
-: Public necessity and convenience requiring the transfer
requires both aspects.
There's nothing that says only where the transfer is going.
It is both aspects of the transfer.
Managing a budget of course requires taking from
and transfer and this taking from and going to,
and the public necessity and convenience language
says transfers within appropriation between budget classes,
between subclasses
may be made whenever in the authorized official's opinion,
public necessity and convenience so requires.
It's the transfer between,
so it is both from and to,
and if both of those lines matter,
there has to be a reason for it,
there has to be a rational reason for it.
County officials are required to act rationally.
The implication that this can happen without any check
not only involves this underlying lawsuit,
but also opens the county up
to being sued under section 35
by the taxpayer or the Attorney General.
-: I have a question about your argument on the relief,
the piece of the relief,
which is you say, you can't satisfy
essentially the part of the order
that requires what I would say specific performance.
It doesn't seem to me all that appealing
to think that there's just no relief.
Assuming that the question of liability
was correctly determined, right?
So what would have been the appropriate form of relief,
an actual judgment which you could then pay out
of a subsequent fiscal year?
-: No, your Honor, I think a declaration
that this category of transfer
is required, so to speak,
is the relief.
And in fact, what happened was
after the motion practice
and the single justice practice involving the question
of whether the transfer had to be made,
the transfer for fiscal year '24 that was requested,
was authorized after the court was allowed.
-: Okay, so does that moot your argument
about the issue of whether the relief could be satisfied?
-: This specific transfer in FY23
could no longer be satisfied legally.
That's why the case is not moot overall
because this is a matter capable of repetition.
The clarity the court provides will...
-: Okay, on the question of liability,
but do I understand you correctly to be saying
that there's no issue with the money anymore?
-: We contend that FY23 has been closed,
FY24 has been closed,
we're now in FY25, so we can't.
-: But have you transferred the money to him?
-: So there was a transfer
among budget allocation lines in FY24.
I don't believe that money was actually spent in FY24.
If there's a request in FY25,
whether in these budget classes or other budget classes,
and I don't have the FY25 budget at hand or in my head,
then based on the court's guidance,
those transfers will be made
or justifications will be required.
Justice Dewar: Well hold on the order that you're under,
as I understand it, because your stay was vacated.
Mr. Siegel: Yes.
-: Is that the declaration of the Superior Court
was that any actions on the part of the defendants
to interfere with transfers
with an appropriation between classes
and between subclasses,
are arbitrary and capricious and contrary to law.
So if you,
unless and until this court issues a decision,
you will not be interfering with transfers,
Mr. Siegel: Correct. -: in those.
Okay, thank you.
-: Okay. Thank you. -: Thank you.
-: [Justice Wolohojian] Okay, Attorney O'Donnell.
-: Chief Justices, Associate Justice, Good morning.
May it please the court.
My name is Bill O'Donnell.
I'm here in my capacity as Register of Deeds.
I was forced to litigate this case, pro se,
due to the actions of the county defendants.
I urge this honorable court to rule the same way
as Judge Cahillane did in the Superior Court,
where he gave a comprehensive
and detailed decision and order
as it relates to two summary judgment rulings made.
One that was filed by myself as Register
and the other filed by the county defendants.
The Supreme Judicial Court should rule
as did the Norfolk Superior Court
based on Massachusetts state law
as well as the court record and the facts in that record.
There is no genuine issue of material fact in this matter.
As a matter of fact, chapter 35, section 32,
it has unambiguous and very clear language.
The plaintiff appellee has met its burden.
The Registry transfers was singled out
and on unlawfully blocked
by the defendant county director John J. Cronin.
Remember there were four transfers.
One of them is the only one that involved legal monies,
but all four were blocked.
The defendant, County Director Cronin...
-: Do we have the original?
I'm taking a step backwards for a second.
There's original lawsuit
between you and the other part of the county.
Do we have what that lawsuit's about?
Is that for hiring for IT security?
-: There are two aspects
and I would urge the court, since this was taken sua sponte,
Judge Cloutier, on June 28th,
ruled in favor of the Registry
on at least five of the counts,
what the accounts were.
And remember we did have an attorney, we had...
-: Is it in the record that we can determine
what that original lawsuit was about?
Because you were asking for funds to pay for that lawsuit.
Do we know what that lawsuit's about?
-: It's in the docket.
The docket was part of the record appendix
that was put together.
But I would also urge since that record appendix,
if you could look at the decision came down on June 28th
and it outlines,
it's not just the register's right to appoint
which Judge Cloutier ruled favorably,
but also it involved a misappropriation of...
-: To appoint an IT security person.
I'm just trying to understand
if there's a relationship between...
-: Yes.
For years the Registry had a Chief Information Officer
Information Technology,
which served the county as well as the Registry
'cause they couldn't afford it.
Then there was a,
I don't agree with this decision,
but they eliminated the onsite direct report IT person
at the Registry.
But before they made that decision,
the Register had submitted, someone had retired,
there was an approved and funded budget
and had approved the,
I submitted the IT.
Judge Cloutier ruled
that an approved and funded position,
that appointment should have been respected.
But more importantly, and again...
-: Yeah I'm just, mine's a sort of
a basic understanding of background,
but he's arguing that transferring money
out of computers when you need computers
is sort of on its face problematic.
But if the lawsuit itself
was about computer safety and technology,
there may be more complexity to that.
-: There is more complexity.
And it's kind of disingenuous to say that
when the county director who's blocking all this
told us because there was a vote
to eliminate the Registry IT department,
now it's all under the county,
that we weren't gonna be able
to access that money in the fiscal year.
But more importantly, the other aspects of,
and this is where I get
into the unclean hands of the defendants,
the other parts of that lawsuit
dealt with using Deeds excise money
that statutorily belongs to the Registry
and paying $2.5 million of county obligation.
Then while the litigation was pending,
there was $4.3 million
that had accumulated under a statute from prior Registers
deny that they just took,
and Judge Cloutier ruled
that violated Chapter 64D, Section 12 A, Section 11,
and as well as 12 B.
They're supposed to give a county mandate to the Registry.
So it's not just about the IT,
to me, they didn't want this case prosecuted in court
and we had Attorney Kesten Brody,
that firm had filed a complaint, an amended complaint
that was allowed by the Superior Court
on September 9th, 2022.
And then lo and behold,
after that's allowed,
all these transfers start getting blocked.
And I would argue it's retaliatory actions
because they were trying to chill
the Registry's right to have counsel.
And eventually I had to do this pro se,
but eventually Attorney Kesten
and I'm not gonna hold an attorney to a law
when he's not getting paid.
He was getting paid through the,
as you say, playing nice in the sandbox here,
and the bills were getting paid, then they weren't.
And again, to me,
the whole case really is about a clear statute.
We had the county director
and their employers have no way to prove
that they are the authorized official of the Registry.
They might not like my opinion
and they might not like being sued.
But again, they're also arguing
that this decision should be overturned
because it's meritless.
If it's so meritless, why did Judge Cloutier on June 28th
and also she denied the reconsideration in August.
I would urge people to read that decision
because it involves millions of dollars.
And again, I think that's what motivated
a lot of these decisions
to prevent us from having counsel.
As a matter of fact,
and it's in the record appendix,
one of the county defendant's officials
made a statement or words to the effect.
It was part of Mike,
and Attorney Kesten put it as part of his record,
and it's part of my affidavit,
it's in the record appendix,
where the county officials said,
relative to legal fees, if we don't fund it,
possibly the case will get dismissed.
So this case, I had to file this
because, you know, we wanted access to justice,
and again, I think Chapter 35, Section 32,
it's really the rules of the road.
After an approved budget,
we went through a process.
I think the appellants say in their brief,
how vigorous the budget process is.
Once the budget gets approved,
it gets voted on by the county commissioners,
it gets voted on by the county advisory board,
which is like our town meeting or, or city council.
Then the legislature, I think,
very clearly and unambiguously,
Judge Cahillane twice in his decision said,
"This is an unambiguous statute.
We're allowed if we have an opinion
to move monies within code."
And I think, you know, government should be run efficiently,
government should be run soundly.
And I think this statute really is a reflection
of the legislature coming up with the rules of the road
relative to, you know, someone who's a department head.
And you know, again, we just want to be treated
like the other department heads.
You know,
in the past, things were routinely posted.
I think what changed was the lawsuit.
But please remember three of the other,
you know, requests were done.
And I think it was all done
after that September 9th motion
that got allowed by the court.
It was done as a pretext to, again,
you know, deny us access to justice. And I...
-: Excuse me, counsel, could I ask,
you've referred a couple of times
to the fact that only a chunk of it is for legal fees
and then there's the other chunks
for miscellaneous contractual services
and miscellaneous professional and technical services.
Is it anywhere, I know that you're asserting
that those don't have to do, standing before us today,
that those don't have to do with the lawsuit.
But is it at all in the record what those are for?
-: Yes, for instance, there was a small amount made
who my first assistant, first female Register appointed.
She makes a request
because, you know, I delegated to her to do it, $3,000,
part of which was 1500 from mileage that I don't take.
Justice Dewar: Well hold on.
Is that in the record though?
-: Yes, in in all those requests of the record.
And you gotta understand,
she had a toxic work environment complaint
against the county director.
So on that one,
I think it was two reasons going on the lawsuit.
And also to send a message to my first assistant
that you don't make toxic work environment complaints
against County Director John Cronin.
But each of the requests are in the record.
They were attached to the complaint.
-: So I saw the requests for authorization,
but what I didn't see
was what the money was supposed to be for.
-: I apologize.
We did address some of that in the brief.
For instance, that first one I mentioned.
Again using money, it was mentioned earlier
that we are not using and moving it to other accounts,
that we do, the other contractual services.
It was used for data storage.
It's used for something as simple
as water for the employees, or papers and pens.
-: But is that, I read that in your brief,
and I noticed that you didn't have a citation to the record.
So I'm just wondering,
did that make it into the record in the court below
what that money was gonna be used for, if transferred?
-: Well, again, I know one thing that made it into the record
because they're trying to say we didn't justify it
and we did justify all the transfers,
I believe on the record.
But I would say also, here's a letter I would refer
to record appendix 241, 242, 243.
This was a July 7th, 2022 letter
that was sent to the commissioners
and to County Director Cronin.
I in this letter did substantiate
or justify my opinion
to those that think it's required.
I believe that the Boelter case just says,
there's an opinion that's needed.
But in that letter we did say, for instance,
reading from it, "Relative to legal fees,
it represents a humble appeal for the removal
of any and all financial barriers
limiting the Registry of Deeds from seeking judicial redress
and resolution of conflicts
stemming from diverse interpretations of statutes
affecting the Registry of Deeds,
finding an authority.
It is all too obvious that the Registry of Deeds
attempts to seek judicial review and recourse
can be all too easily thwarted
based not on the soundness of legal facts and arguments,
but rather on the disparity of funds and failure of means
to elevate those legal facts and arguments
so that they may be heard by and decided upon by the court."
So we did make efforts.
That went in July to the county commissioners.
And again, the argument that we didn't substantiate
or they kind of act like they didn't know
why I needed legal monies.
For the very same reason,
they have independent legal counsel,
the Registry should have independent legal counsel.
-: Can I ask you a question
about the relief that was ordered?
Do you agree with what I believe
counsel for the other side stated,
which is that all the transfers you've requested
have now been satisfied?
-: When I say satisfied,
what happened to the last one?
And I know it went up to you as the single justice,
we had relief from Justice Sachs
who said he believed that we had a substantial,
that the Register had a substantially
better chance of presiding
because the stay wasn't granted
by the trial court judge, Judge Cahillane.
It was granted by another judge,
even though Judge Cahillane was in the building.
That's another story for another day.
But when Judge Sachs, he made that decision,
that was in May,
then they appealed it,
and it got to the single Justice, to you,
with the sitting in Suffolk County.
By the time that filtered down,
the fiscal year had ended June 30th.
So when they said, I didn't...
it's not that we don't want the money,
we couldn't use it
because once June 30th comes, the fiscal year is over.
And after you made your decision on June 3rd, 2024,
they still went back to the appeals court
trying to delay your decision.
And Judge Han said, "Stop filing recursive motions."
So even though we fought to get access to the money,
we never got it in 2023,
because the fiscal year ended
and in fiscal '24, the fiscal year ended.
So again, this year, you know, we need help.
The case is still going on.
-: So this last sentence in the order that says,
"To the extent that the transfers
in this decision remain outstanding,
the defendants are ordered to implement them."
Is that still at issue in this appeal?
-: Anything with this county director is an issue.
There's just, you know, there's just no cooperation.
So, we will wait and see.
We haven't made, I haven't made a transfer.
-: I'm not looking for an argument here.
I'm looking for fact.
Are there any remaining transfers,
outstanding transfer requests?
-: We are early in the fiscal year. We are debating that.
It was hard to make, hard to make that request,
when, not one week after my primary win on September 3rd,
they voted the county budget.
They came, invited me over and cut my budget by 70,000.
So it's a little early in the fiscal year
for me to see.
If I have to, I will.
We need help. I mean, you know...
-: I guess I'm not clear.
The judge said, "To the extent
that the transfers in this decision remain outstanding,"
and then orders the defendants to implement them.
I take it, you're telling me there are no,
none of the transfers identified in the judge's decision
remain outstanding.
Mr. O'Donell: Because the fiscal year ended.
-: Because the fiscal year ended.
-: But this year, I would try to use that same language,
but it's hard to do when they keep,
you know, retaliating and cutting your budget.
And again, I would just urge the court,
I think it's common sense
that the legislature intended that, you know,
you can't call a budget vote every week or every day
that they gave authorized officials discretion.
And the county seems to accept
the authorized officials who were unelected.
But not that that means I'm any better than anyone else.
But it would be nice as an elected official
running the second busiest Registry of Deeds
in Massachusetts
that I could focus on that out of 21,
and that they'd be respected.
So I think Judge Cahillane
argued the decision better than I,
on page 10 of his decision,
when he in essence writes,
you know, again, I'm summarizing,
"The register is in the best position
to make these Registry decisions
on behalf of the public that elected him."
So I believe the statutory language
and common sense should prevail
and that this honorable court,
hopefully, rules based on the very unambiguous statute
that's before you.