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Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14451
Experience:  15 years exp all aspects of general law
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At the end of the title caption for Article 7 of the Barnstable

Customer Question

At the end of the title caption for Article 7 of the Barnstable County Home Rule Charter, the term "Recall" is utilized. However, there does not appear to be any further explanation regarding the word after that. What specifically does it mean and/or refer to? Does it set forth the procedure for a "recall election mechanism" which entails a process similar to that of a Citizens Initiative Petition? On the other hand, does it actually refer to a recall of a proposed county ordinance, or an ordinance which has already been enacted by the Assembly of Delegates?

REFERENCE:

Barnstable County (Cape Cod), Massachusetts

Barnstable County Home Rule Charter
http://www.barnstablecounty.org/assembly-of-delegates/home-rule-charter
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

The language of the Articles refers only to the proposal ("initiative") or the repeal ("referrendum") of an "ordinance." There appears to be nothing in any of the charter language that suggests the process could be used to "recall" an elected official.

The fact that the Article 7 Title uses the term, "Recall," suggests that at the time of drafting there was some thought to having an express recall procedure, but nothing was ever enacted -- since there is no procedure specified in the Charter.

Also, it is well established in the common law that a Title does not have any legal effect, absent express language to the contrary. So, despite the presence of the term "recall" in the title, it is legally meaningless -- based on the actual language of the Charter.

Probably not what you wanted to read -- but, at least, now you know for sure.

Please let me know if I can further assist you.

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Expert:  socrateaser replied 1 year ago.
I see that you have rated my service as poor. I have carefully reviewed your question and my answer, and it appears to be on point and thoroughly dispositve to your question.

Please let me know what additional information that I can provide which will cause you to improve your rating of my services, so that I may receive compensation for my answer.

Thanks in advance for your understanding and cooperation.
Customer: replied 1 year ago.
Relist: Answer quality.
Expert:  LawHelpNow replied 1 year ago.
Hello,
I would be glad to try and help, but I want to meet your expectations, if possible.
(1) What is it about the prior answer that you found objectionable?
(2) Other than the accurate information already provided, what is your legal question?
Thanks!
Customer: replied 1 year ago.

...are you an "expert" in Massachusetts governmental, county and/or municipal law? The previous answer was not adequate because the respondent was not expert in any of those areas and should not have responded since that was the case, based upon the profile information provided. Additionally, based upon this an answer, it would mean that our County Home Rule Charter has been a defective legal instrument for over 20 years and either nobody noticed it or did nothing about...either way would appear very highly unlikely.

Expert:  LawHelpNow replied 1 year ago.
Hi,
Thanks for writing back -- good to hear from you.
I have opted out (without charge).
Your question is open for the other Legal Experts to review.
I wish you the very best with your case.
Take care and have a good weekend,
Ben
Expert:  Legalease replied 1 year ago.

Hello there

-

I am a practicing attorney in Massachusetts for 15 years. I graduated in the #1 spot in my law school class and worked for a Top 10 national law firm for 10 years and was a partner in a #1 regional law firm for 2 years before starting my own small practice. I have worked with state and local government law here in Massachusetts on many occasions. I have reviewed the Barnstable home ordinance that you refer to and note the word "Recall" in the title of section 7, yet there is nothing in the body of Section 7 that refers to a recall process. First, my colleague is correct -- when there is a stray reference in a title of a statute, law, code, or ordinance and nothing to explain that reference, legally that reference has no weght. These are rules of statutory construction that we all learn in law school and that are applied by the courts when the courts review a statute to determine if the statute is constitutional or if someone sues another person based upon a statute and the statue is not very clear so the court must interpret the statute. A reference within a title like this can mean any number of things -- (a) there could have been several drafts or several hundred drafts of this ordinance before the lawmakers actually put together what they believed was the final version that they put on the ballot for the voters to consider. In that drafting process, the body of Section 7 might very well have contained a recall procedure that was eventually written out of the final version but the reference in the Section 7 title was never removed, or (b) there appears to have been several amendments after the original version was enacted in 1988 and what is online is the latest version -- so the body of Section 7 may have been altered at any point during the amendment process and the word "recall" was left in the title because it was overlooked. While you think that these things would not happen they are actually quite common in the drafting of statutes and ordinances and revisions to the same. You can research this by going to the Barnstable county seat and asking if they have saved any of the legislative history behind this particular home rule ordinance -- many cities and towns and counties save their records of meetings and debates when they are drafting and considering such ordinances and if any of these materials have been saved you may be able to see the earlier versions of this ordinance before it was presented to voters to see if there is additional language at the Section 7 to explain the "Recall" in the title and to explain what, in fact, a recall process should be under these circumstances. If you find such a document, and then sue the county in order to have a court give an interpretation of this ordinance, you can thing present as evidence to the court what the additional language at Section 7 was supposed to be and what the "legislative intent" was in drafting and considering this ordinance and you might be able to convince a court that the language setting out the actual recall procedure was accidentally left out of the final ordinance and should have been included and the court might order the language to be reinstated and a new county vote taken on the ordinance as it should have been written. This is extremely rare, however -- and no matter what you find a court will most likely find that you are correct that it makes no sense that the word "recall" is in the title of Section 7 but because any additional language that was supposed to be in that section was most likely left out for a reason by the parties that considered the writing and drafting of this ordinance in the first place. Finally, just because there is a stray reference like that in a section title does not mean that the entire ordinance is defective -- the rules of statutory construction used by courts to review statutes would simply set that bit aside and enforce the rest of the statute or ordinance to the extent it makes sense to do so -- and after reviewing Section 7 of the ordinance myself, the stray reference to "recall" in the title does not seem to affect the rest of that Section at all or the rest of the ordinance as a whole. It seems to be just a reference left there to a recall section that was most likely removed in the original drafting process.

-

The county legislature probably realizes that this is a stray reference and cannot tell you anything other than what I have told you (which does make the people who originally drafted this ordinance look a bit sloppy and the only way they can fix it is to rewrite it and then put the matter to the voters -- which is cumbersome when they would just be seeking to fix a sray reference) - so they are simply not telling you anything because there is nothing to tell you. My bet is that if they have retained the history of this ordinance and they will let you see those materials, that you may find something in those early documents before it was enacted.

-

Please let me know if you have any further questions.

-

MARY

Expert:  Legalease replied 1 year ago.

Hello there

-

I noticed that you reviewed the answer and have not yet pressed a rating for this below. I answered because your issue with the earlier experts is that they were not in Massachusetts and I am located here and practice here. I am paid nothing unless you press the 3rd, 4th or 5th smile face below so I would appreciate it if you would do so -- I understand that you may be disappointed by the answer and think that there should be more to it than that (the word "recall" being a stray, leftover reference) -- but that really is all there is to it and I have seen this happen with a number of statutes at local, state and federal levels over the years ( I worked for the Dept of Defense in law school and I spent an entire summer researching the statutes that set up another government agency -- and the legislative intent behind certain specific words in the statute -- I was in the Library of Congress for weeks straight reviewing Congressional debates and all of the drafts that were put into affect BEFORE the statute creating the agency was adopted as law and my report disappointed my superiors because I simply found nothing to explain a few things in the final statute).

-

Do you have any additional questions for me? While it really is an entirely different and separate question than what you asked, is there something that you were trying to accomplish looking for recall language in this Home Rule Ordinance that perhaps I can assist you with?

-

MARY

Customer: replied 1 year ago.

I am going to give you an "excellent" rating, but need to wait until tomorrow as I am waiting for any final feedback from Barnstable County officials. Action is being taken on this matter now because of what you have told me and I then in turn pushed the county level politicians...by sort of embarrassing them that they look lazy and sloppy by leaving the county charter in such a disorganized condition. It appears that the charter will now probably be amended to have the word recall removed from the Article 7 title caption. Thanks.

Expert:  Legalease replied 1 year ago.

Hello

-

Thank you very much -- I know it seems very strange that this happened but it happens more than you know. They are only human after all and it is most likely a stray reference they wanted to ignore rather than have to amend it to either delete it or add in a recall section.

-

MARY

Legalease, Lawyer
Category: Legal
Satisfied Customers: 14451
Experience: 15 years exp all aspects of general law
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