Justice Riders Committee
Law suit filed July 3rdĀ to stopĀ illegal ticketing of bikes in Boston!
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THE DECISION IS IN AND STILL NO TICKETS ISSUED 
PRESS RELEASE

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FOR IMMEDIATE RELEASE


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT



PAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2]

 
10-P-1289

 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.

The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.

In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.

Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).

On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).

Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').

In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]

Judgment affirmed.

By the Court (Cohen, Smith, & Wolohojian, JJ.),


Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT




 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.

The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.

In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.

Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).

On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).

Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').

In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]

Judgment affirmed.

By the Court (Cohen, Smith, & Wolohojian, JJ.),


Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT



Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT












-----Original Message-----
From: Paul <claimscote@aol.com>
To: Lehigh@globe.com
Sent: Mon, Aug 8, 2011 3:41 pm
Subject: Re: Hi Guys, Scot Lehigh at the Globe, 617 367-4038, trying to reach Paul Cote. Do you have a



Scott - great speaking with you - thanks for calling.
 
Again, I think the City officials 'mislead' you regarding the two citations issued under the EPA Ordinance (vs. State Statutes).  You might want to request 'hard copies' of the citations (then let me know who they were issued to - if under the Ordinance cuz we'll start the lawsuit again to get it tossed.  Fact is (or seems to be) NO citations issued in the past two years, and the City's attorney said at the May 2011 Appeals Court no citations had been issued and he wasn't 'aware' they intended to . . . I have an audio disc (32 minutes) of the Hearing if you'd like to listen yourself.
 
Below is a copy of our Release and the Court's decision issued last week.  Call me if needed.  .. .
 
 
 FOR IMMEDIATE RELEASE
 
DATE: August 5, 2011
CONTACTS: Paul W. Cote 978-504-9715
Bill Gannon (617) 378-1562


 
Massachusetts Motorcyclists’ Celebrate Appeals Court
Decision over City of Boston EPA Stamp Ordinance
 
(Boston, MA - August 5, 2011) The Massachusetts Chapter of Bikers of Lesser Tolerance (B.O.L.T.) celebrated after receiving notice that the Massachusetts Appeals Court, while upholding a lower Court’s decision dismissing a lawsuit seeking to strike down Boston’s Ordinance requiring a visible EPA stamp on motorcycle exhaust systems, but also are keeping the door open for another lawsuit to challenge the validity of the Ordinance if the City of Boston issues a citation for this so-called violation.
 
"Because the City hasn’t issued a single $300 citation after enacting this conflicting Ordinance," said Plaintiff Paul W. Cote, "Boston riders and motorcycling visitors have won another battle in this ongoing war."
 
In June of 2009, the Boston City Council enacted an Ordinance allowing enforcement officer to issue the $300 fines on motorcycles whose "EPA imprint" of compliance were not readily visible. Within a week, Cote of Amesbury and four other motorcyclists filed a Complaint at the Suffolk Superior Court seeking to declare the City’s Ordinance invalid and conflicting with existing State Statutes regarding motorcycle exhaust sound levels and testing procedures. The Court dismissed the Complaint as no riders had been "harmed" because no citations have been issued under this ordinance.
 
"We won this battle," said Bill Gannon of Quincy, another one of the Plaintiffs. "They [the City of Boston] refused to give us a ticket so the real issue could be decided.  Thus the war is still on if Boston dares to challenge us.  We will be back in Court if they issue a ticket to any motorcyclist under this ordinance. At this point we are holding their repugnant Ordinance hostage as Boston fears issuing any violations as long as they are aware that B.O.L.T. is conspicuously vigilant of Boston’s conduct with respect to this Ordinance"
 
Massachusetts B.O.L.T. is an elite collective of motorcycling activists opposing discrimination against motorcyclists. Known, primarily, for opposition to government-mandated motorcycle helmet laws, B.O.L.T. will lawfully fight discrimination on all fronts, including legislative buildings, courtrooms, and the streets. Membership is limited to proven motorcycling activists chosen as a result of their exemplary actions. More information on Massachusetts B.O.L.T. activities can be viewed on
www.JusticeRider.com web site.

(Boston, MA - August 5, 2011) The Massachusetts Chapter of Bikers of Lesser Tolerance (B.O.L.T.) celebrated after receiving notice that the Massachusetts Appeals Court, while upholding a lower Court’s decision dismissing a lawsuit seeking to strike down Boston’s Ordinance requiring a visible EPA stamp on motorcycle exhaust systems, but also are keeping the door open for another lawsuit to challenge the validity of the Ordinance if the City of Boston issues a citation for this so-called violation.
 
"Because the City hasn’t issued a single $300 citation after enacting this conflicting Ordinance," said Plaintiff Paul W. Cote, "Boston riders and motorcycling visitors have won another battle in this ongoing war."
 
In June of 2009, the Boston City Council enacted an Ordinance allowing enforcement officer to issue the $300 fines on motorcycles whose "EPA imprint" of compliance were not readily visible. Within a week, Cote of Amesbury and four other motorcyclists filed a Complaint at the Suffolk Superior Court seeking to declare the City’s Ordinance invalid and conflicting with existing State Statutes regarding motorcycle exhaust sound levels and testing procedures. The Court dismissed the Complaint as no riders had been "harmed" because no citations have been issued under this ordinance.
 
"We won this battle," said Bill Gannon of Quincy, another one of the Plaintiffs. "They [the City of Boston] refused to give us a ticket so the real issue could be decided.  Thus the war is still on if Boston dares to challenge us.  We will be back in Court if they issue a ticket to any motorcyclist under this ordinance. At this point we are holding their repugnant Ordinance hostage as Boston fears issuing any violations as long as they are aware that B.O.L.T. is conspicuously vigilant of Boston’s conduct with respect to this Ordinance"
 
Massachusetts B.O.L.T. is an elite collective of motorcycling activists opposing discrimination against motorcyclists. Known, primarily, for opposition to government-mandated motorcycle helmet laws, B.O.L.T. will lawfully fight discrimination on all fronts, including legislative buildings, courtrooms, and the streets. Membership is limited to proven motorcycling activists chosen as a result of their exemplary actions. More information on Massachusetts B.O.L.T. activities can be viewed on www.JusticeRider.com web site.


###
  
  


 
 
 
 


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT



PAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2]

 
10-P-1289

 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.

The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.

In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.

Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).

On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).

Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').

In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]

Judgment affirmed.

By the Court (Cohen, Smith, & Wolohojian, JJ.),


Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT




 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.

The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.

In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.

Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).

On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).

Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').

In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]

Judgment affirmed.

By the Court (Cohen, Smith, & Wolohojian, JJ.),


Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT



Entered: August 2, 2011.


 
FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.
 




 
FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.
 





 
      FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.
 





 
      FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).
 





 
      FN5. We express no opinion as to the merits of their claims.
 


END OF DOCUMENT

www.JusticeRider.com<http://www.justicerider.com/> web site.

FOR IMMEDIATE RELEASENOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.COMMONWEALTH OF MASSACHUSETTS APPEALS COURTPAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2] 10-P-1289 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]Judgment affirmed.By the Court (Cohen, Smith, & Wolohojian, JJ.),Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT  MEMORANDUM AND ORDER PURSUANT TO RULE 1:28The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]Judgment affirmed.By the Court (Cohen, Smith, & Wolohojian, JJ.),Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT -----Original Message-----From: Paul <claimscote@aol.com>To: Lehigh@globe.comSent: Mon, Aug 8, 2011 3:41 pmSubject: Re: Hi Guys, Scot Lehigh at the Globe, 617 367-4038, trying to reach Paul Cote. Do you have a Scott - great speaking with you - thanks for calling. Again, I think the City officials 'mislead' you regarding the two citations issued under the EPA Ordinance (vs. State Statutes).  You might want to request 'hard copies' of the citations (then let me know who they were issued to - if under the Ordinance cuz we'll start the lawsuit again to get it tossed.  Fact is (or seems to be) NO citations issued in the past two years, and the City's attorney said at the May 2011 Appeals Court no citations had been issued and he wasn't 'aware' they intended to . . . I have an audio disc (32 minutes) of the Hearing if you'd like to listen yourself. Below is a copy of our Release and the Court's decision issued last week.  Call me if needed.  .. .    FOR IMMEDIATE RELEASE DATE: August 5, 2011CONTACTS: Paul W. Cote 978-504-9715Bill Gannon (617) 378-1562 Massachusetts Motorcyclists’ Celebrate Appeals Court Decision over City of Boston EPA Stamp Ordinance (Boston, MA - August 5, 2011) The Massachusetts Chapter of Bikers of Lesser Tolerance (B.O.L.T.) celebrated after receiving notice that the Massachusetts Appeals Court, while upholding a lower Court’s decision dismissing a lawsuit seeking to strike down Boston’s Ordinance requiring a visible EPA stamp on motorcycle exhaust systems, but also are keeping the door open for another lawsuit to challenge the validity of the Ordinance if the City of Boston issues a citation for this so-called violation. "Because the City hasn’t issued a single $300 citation after enacting this conflicting Ordinance," said Plaintiff Paul W. Cote, "Boston riders and motorcycling visitors have won another battle in this ongoing war."  In June of 2009, the Boston City Council enacted an Ordinance allowing enforcement officer to issue the $300 fines on motorcycles whose "EPA imprint" of compliance were not readily visible. Within a week, Cote of Amesbury and four other motorcyclists filed a Complaint at the Suffolk Superior Court seeking to declare the City’s Ordinance invalid and conflicting with existing State Statutes regarding motorcycle exhaust sound levels and testing procedures. The Court dismissed the Complaint as no riders had been "harmed" because no citations have been issued under this ordinance. "We won this battle," said Bill Gannon of Quincy, another one of the Plaintiffs. "They [the City of Boston] refused to give us a ticket so the real issue could be decided.  Thus the war is still on if Boston dares to challenge us.  We will be back in Court if they issue a ticket to any motorcyclist under this ordinance. At this point we are holding their repugnant Ordinance hostage as Boston fears issuing any violations as long as they are aware that B.O.L.T. is conspicuously vigilant of Boston’s conduct with respect to this Ordinance" Massachusetts B.O.L.T. is an elite collective of motorcycling activists opposing discrimination against motorcyclists. Known, primarily, for opposition to government-mandated motorcycle helmet laws, B.O.L.T. will lawfully fight discrimination on all fronts, including legislative buildings, courtrooms, and the streets. Membership is limited to proven motorcycling activists chosen as a result of their exemplary actions. More information on Massachusetts B.O.L.T. activities can be viewed on  web site.(Boston, MA - August 5, 2011) The Massachusetts Chapter of Bikers of Lesser Tolerance (B.O.L.T.) celebrated after receiving notice that the Massachusetts Appeals Court, while upholding a lower Court’s decision dismissing a lawsuit seeking to strike down Boston’s Ordinance requiring a visible EPA stamp on motorcycle exhaust systems, but also are keeping the door open for another lawsuit to challenge the validity of the Ordinance if the City of Boston issues a citation for this so-called violation. "Because the City hasn’t issued a single $300 citation after enacting this conflicting Ordinance," said Plaintiff Paul W. Cote, "Boston riders and motorcycling visitors have won another battle in this ongoing war."  In June of 2009, the Boston City Council enacted an Ordinance allowing enforcement officer to issue the $300 fines on motorcycles whose "EPA imprint" of compliance were not readily visible. Within a week, Cote of Amesbury and four other motorcyclists filed a Complaint at the Suffolk Superior Court seeking to declare the City’s Ordinance invalid and conflicting with existing State Statutes regarding motorcycle exhaust sound levels and testing procedures. The Court dismissed the Complaint as no riders had been "harmed" because no citations have been issued under this ordinance. "We won this battle," said Bill Gannon of Quincy, another one of the Plaintiffs. "They [the City of Boston] refused to give us a ticket so the real issue could be decided.  Thus the war is still on if Boston dares to challenge us.  We will be back in Court if they issue a ticket to any motorcyclist under this ordinance. At this point we are holding their repugnant Ordinance hostage as Boston fears issuing any violations as long as they are aware that B.O.L.T. is conspicuously vigilant of Boston’s conduct with respect to this Ordinance" Massachusetts B.O.L.T. is an elite collective of motorcycling activists opposing discrimination against motorcyclists. Known, primarily, for opposition to government-mandated motorcycle helmet laws, B.O.L.T. will lawfully fight discrimination on all fronts, including legislative buildings, courtrooms, and the streets. Membership is limited to proven motorcycling activists chosen as a result of their exemplary actions. More information on Massachusetts B.O.L.T. activities can be viewed on  web site.###        NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.COMMONWEALTH OF MASSACHUSETTS APPEALS COURTPAUL W. COTE & others. [FN1] vs. CITY OF BOSTON & others. [FN2] 10-P-1289 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]Judgment affirmed.By the Court (Cohen, Smith, & Wolohojian, JJ.),Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT  MEMORANDUM AND ORDER PURSUANT TO RULE 1:28The plaintiffs appeal from the dismissal without prejudice of their complaint seeking a declaratory judgment that a 2009 noise ordinance adopted by the city of Boston (city) exceeds the city's authority, conflicts with State law, and misapplies Federal regulations. [FN3] Under penalty of a $300 fine, the ordinance prohibits any person from parking, using, or operating a motorcycle, within the city, if the motorcycle was manufactured subsequent to December 31, 1982, and does not bear a Federal Environmental Protection Agency (EPA) exhaust system label as required by 40 Code Fed. Regs. § 205.169 (2010). See City of Boston Charter Ordinance (2009) c. 4.The city moved to dismiss the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). After hearing, a Superior Court judge dismissed the case without prejudice on a ground not argued by the parties, namely that the plaintiffs lacked standing to bring the claim. We affirm.In their complaint, the plaintiffs allege that they own and operate motorcycles, that they are Massachusetts residents, that they live outside the city, and that they 'regularly travel into Boston for business and pleasure, on their insured, inspected and registered motorcycles, in compliance with State [s]tatutes and regulations.' They do not allege that they are not in compliance with the ordinance; [FN4] nor do they allege that they have been fined under the ordinance or threatened with its enforcement.Declaratory judgment actions 'are concerned with the resolution of real, not hypothetical, controversies.' Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942). 'Speculative injuries are insufficient to confer standing.' Statewide Towing Assn., Inc. v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). In order to have standing, the plaintiffs must be 'in danger of suffering legal harm.' Tax Equity Alliance for Mass. v. Commisisoner of Rev., 423 Mass. 708, 715 (1996), quoting from Doe v. The Governor, 381 Mass, 702, 704 (1980). See Burlington v. Bedford, 417 Mass. 161, 164 (1994) ('Only persons who have themselves suffered, or who are in danger of suffering' have standing).On the facts alleged, the judge correctly determined that the plaintiffs lacked standing because they had suffered no injury, and any future injury remained speculative. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991) (Commonwealth had not threatened to enforce statute against plaintiff); Massachusetts-American Water Co. v. Grafton Water Dist. (No. 2), 36 Mass. App. Ct. 947, 948 (1994) (statute had yet to be applied).Furthermore, the judge did not abuse his discretion in deciding the motion to dismiss on lack of standing, even though this issue had not been argued by the parties. When there is a fatal defect as to the justiciability of a claim, a judge may act on his or her own initiative in dismissing the case. See Ginther v. Commissioner of Ins., 427 Mass. at 322 (standing is treated as an issue of subject matter jurisdiction). See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (court must 'take note of lack of jurisdiction whenever it appears, whether by suggestion of a party or otherwise').In any event, given the deficient allegations of the complaint, argument would not have affected the outcome of the case. Moreover, because the case was dismissed without prejudice, the plaintiffs remain free to file a new complaint if and when they are in a position to establish their standing. [FN5]Judgment affirmed.By the Court (Cohen, Smith, & Wolohojian, JJ.),Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT Entered: August 2, 2011. FN1. William E. Gannon, II; Michael D. Longtin; Vincent A. Silvia; and Lawrence Cahill.  FN2. The mayor of the city of Boston; the Boston city council; the Boston police department; and the police commissioner of Boston.         FN3. The complaint also sought injunctive relief. Earlier, the plaintiffs' motion for a preliminary injunction was denied on the ground that they had failed to show irreparable harm.         FN4. We decline the plaintiffs' suggestion that we take into account an 'offer of proof' made to this court in their brief, i.e., a representation that they each own motorcycles with after market exhaust pipes that comply with applicable State laws and regulations concerning noise levels, but that violate the city's ordinance, because they do not have the required EPA label. 'An appealing party may not by his brief attempt to place before an appellate court facts which are not stated or incorporated in the record on appeal.' Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976).         FN5. We express no opinion as to the merits of their claims. END OF DOCUMENT <> web site.
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