Memo of Law Order 1-96 Parking Ticket

Memo of Law Order 1-96 Parking Ticket

In order to get a Judicial Review of an Administrative Hearing, such an appeal of a parking ticket, the Plaintiff has to  write a Memorandum of Law. This memo explains how the Defendants violated 

the State's statutes on administrative hearings.

Below is a generic Memorandum of Lae taken from a case I am working for a client.

The points of law for the Memorandum are:

 1.  Defendants did not comply with the requirements and procedures for Standing Order 1-96 and they are in default.

2. Plaintiff complied with City policy as it was explained in the MassLive article.

3. The Defendant Hearing Officer was abusive of her power, biased, arbitray, and lacked any substantive evidence in her decision.

These violations of the M.G.L. c 30A s 14 are specifically mentioned in the Statutr ot ptocedure. It is easier to make a case for the Plaintiff  using black letter or case law.

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MEMO OF LAW

                       

Pursuant to Massachusetts Superior Court Standing Order 1-96 and M.G.L. chapter 30A, Sec. 14, the Plaintiff respectfully requests that this Court grant a Judgment in his favor. Davis asserts that all of the allegations against the Defendants below are violations of M.G.L. Chapter 30A as a matter of law.

                                                FACTUAL BACKGROUND

1.    On March 21, 2018 the Plaintiff’s vehicle was ticketed by the Defendant City of Worcester’s Department of Public Works employee for an alleged violation of a winter parking ban. (Certified Administrative Record)

2.    The Plaintiff appealed the ticket citing the Defendant City of Worcester published policy of not ticketing vehicles until it begins to snow and the plows come onto the streets. (Certified Administrative record)

3.    Defendant Elvira Guardiola, Parking Administrator, denied the Plaintiff’s Appeal first by letter dated April 13, 2018 and then by formal Hearing on April 26, 2018. (Certified Administrative Record)

4.    On May 10, 2018 the Plaintiff filed this instant Complaint with Worcester Superior Court requesting a Judicial Review of the Administrative Hearing.

The Plaintiff incorporates by reference his Statement of Undisputed Facts filed in conjunction herewith. The allegations against the Defendants should be adjudicated as a matter of law based on the undisputed material facts.

                                      ARGUMENTS

A.   The Defendants Failed to Comply with Standing Order 1-96. 

The Defendants failure to provide the Court and Plaintiff with a transcript (undisputed fact 5) is probative. It has prevented the Plaintiff from presenting a stronger case based on the actual comments of the Parking Administrator at the Formal Appeal Hearing on April 26, 2018.

This lack of compliance to Standing Order 1-96 by defaulting on the transcript could be sufficient for a default ruling in the Plaintiff favor.

B.    The Plaintiff Was Not in Violation of Defendant Snow Policy

The Defendant City of Worcester Assistant Commission of Public Works, Matt Labovites, was interviewed by the public publication “MassLive”.  (Plaintiff Undisputed Fact No. 6)

 In the article, published in February 2016, Mr. Labovites was reported as saying that the Defendant City of Worcester does not ticket vehicles during a winter snow ban until it starts to snow or when the plows come out onto the roads. (Plaintiff’s Undisputed Fact No. 7)

In the article Mr. Laborites also reportedly said that there is one essential rule for when residents should move their vehicles. That rule is “When the plows go out so do the town trucks” (Plaintiff Undisputed Fact No. 7)

In effect the article became a public legal notice regarding the Defendant City of Worcester policy about the winter parking ban. It advised residents of the essential rule of moving vehicles when the plows come out.[1]

Plaintiff parked his car in accordance with the legal notice of Defendant City of Worcester’s snow ban policy as found in the legal notice article in MassLive. It did not snow on March 21, 2018.  (Plaintiff Undisputed Fact No. 11).   

No plows came out onto the streets on that date.  (Plaintiff’s Undisputed Fact No. 9).

C.    There is No Substantive Evidence in the Letter Denying the Plaintiff’s Appeal or Presented by Defendant Guardiola during the Formal Hearing.

The letter written by Defendant Guardiola references a change in the policy of the Co Defendant City of Worcester. She said that the policy of when the ticketing and towing vehicles would not commence until it starts to snow or when the plows come out was changed by the Department of Public Works to an immediate commencement of a winter ban. (Plaintiff’s Undisputed Fact No. 12)

During the Formal Hearing the Defendant Guardiola could not provide a source for her assertion of a changed policy.[2]

The Defendant Guardiola did not provide a single shred of any kind of evidence to support her assertion. She then said that it was not the Department of Public Works that changed the policy but the Worcester Police Department. (Plaintiff’s Undisputed Fact No. 13)

D.   The Defendant Guardiola’s Decision to Deny the Plaintiff Appeal was Arbitrary

    The Defendant Guardiola in her letter dated April 13, 2018, denying the Plaintiff his Appeal stated she based her decision partially on the assertion that the Plaintiff had not made a “compelling rationale”. (Plaintiff’s UNDISPUTED FACT No. 15).

 When the asked at the Formal Hearing what were the elements of a compelling rationale, the Defendant Guardiola did not answer. [3] [4]

E.    The Decision by Defendant Guardiola is Capricious.

The erratic and capacious nature of the decision made by Defendant Guardiola is seen in the two qualitatively different basis given for her decision. The basis first given was that the Department of Public Works changed its policy and therefore the Plaintiff parking was a violation of the new policy. (Undisputed Fact No. 12)   The basis given later by the Defendant Guardiola for her decision was that the Plaintiff is responsible to automatically comply with the ordinance regardless of the City of Worcester policy. (Undisputed Fact No. 16).

On April 13, 2018 the Defendant Guardiola decided that the new City

policy was the basis of her decision. On April 26, 2018 after Mr. Labovites point out there was no new City policy, Defendant Guardiola changed the basis of her denial of the Plaintiff’ Appeal was the Ordinance and not the policy.

Adding to this erratic logic and inconsistency is the statement by the attorney for the Defendants that there is no written policy regarding ticketing and towing vehicles during a winter parking ban.  (Undisputed Fact No. 10)

F.    The Defendant Guardiola Was Unlawfully Biased Against the Plaintiff and His Representative.

The Defendant Guardiola wrote in several places in the Administrative Record including an email to Mr. Labovites that the Plaintiff’s representative is ‘argumentative” and “passive-aggressive.” (Undisputed Fact No. 14)

Guardiola treated the Plaintiff in a disparate manner when she gave him her decision to deny his appeal before the Hearing was over. Guardiola told the Plaintiff that she has a policy of making a determination regarding a ticket the day after the Hearing, however for him she informed him of her decision to deny his appeal before he had gotten out of his seat.[5]

G.   The Decision by Defendant Guardiola to Deny the Plaintiff Appeal is an Abuse of Discretion.

The Defendant Guardiola chose to base her decision to deny the Plaintiff Appeal on creating of new policy for the City of Worcester. This new policy is the automatic compliance to the Ordinance. (Undisputed Fact No. 16)

The Defendant Guardiola is not authorized to create new policy for the City of Worcester. (Undisputed Fact No. 17)

In summary there is overwhelming evidence that the Defendants City of Worcester MA and Elvira Guardiola violated M.G.L. C. 30A s 14.

                                      CONCLUSION

For the reasons set forth above this Court grant the Plaintiff his motions for Judgment in his favor for the violations of M.G.L. c. 30A s 14 by the Defendants City of Worcester and Elvira Guardiola.

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[1] A public legal notice has been defined by “Businessdictionary.com” as “Public posting or advertising in newspapers to announce a legal action or intent.

[2] There are no transcripts to verify this lack of source material by the Defendant Guardiola.

[3] There are not transcripts to verify this lack of response by the Defendant Guardiola.

[4] Arbitrary is defined by “YourDictionary.Com” as

 “Determined or founded on individual discretion, especially when based on one's opinion, judgment, or prejudice, rather than on fixed rules, procedures, or law.”

[5] Although Plaintiff’s advocate witnessed this disparate treatment, the lack of a transcript allows the behavior by the Defendant to be disputed.

FAILURE OF MANAGEMENT

City Manager Augustus             

Failure of Management

Introduction

On March 21, 2018 a resident of the City of Worcester was ticketed for violating the Winter parking ban. It never snowed on March 21, 2018 and the plows never came out.

In February 2016 the Assistant Commissioner of the Worcester Public Works stated in a local newspaper that the City of Worcester policy regarding the Winter Parking Ban was that no cars would be ticketed until it started to snow and the plows came onto the streets.

The  resident of Worcester appealed his ticket and brought the newspaper article to the Hearing before the Parking Administrator as his substantive evidence. The Parking Administrator told the Appellant resident that the City had changed its policy of not ticketing until it started to snow subsequent to the publication of the newspaper article.  The Parking Administrator dismissed the Appeal.

The resident then filed in Worcester Superior Court a request for judicial review of the Administrative Hearing of his ticket. This review is governed by Standing Order 1-96 which allows for discovery.

As a part of the discovery the City of Worcester and the Parking Administrator argued against providing any additional evidence. Their argument came in the form of an Opposition Memo to the Plaintiff’s Motion to present additional evidence to the Court.

City Has No Policy

Curiously the Defendants’ Opposition Memo stated that the City had NO written policy regarding the ticketing of vehicles during a Winter Parking Ban. See photo. The inference of not having a written policy is that the 2016 newspaper article has increased weight as substantive evidence. The Assistant Commissioner does not deny the newspaper article and the City has written that there is no document to contradict the newspaper article.

Since a Parking Administrator does not make policy, there was no City policy upon which to base her decision to dismiss the Appeal. The Parking Administrator, based on the newspaper article, could have allowed the Appeal. Instead it seems that she exceeded the authority of her Department by making new policy which is also not written anywhere for anyone to see.

Failure of Management

The confusion regarding Policy is clearly the blame City Manager Augustus as both the Parking Administrator and the Assistant Commission of Public Works report to him. The excesses of the Parking Administrator is due partially to failure of management by the City Manager.

 It is ironic that the city Manager good high marks and evaluation from the City Council recently.