Municipal Law News

Appeals Court: POLICE CHIEF OF TAUNTON vs. PAUL N. CARAS, et al

Keywords Firearms. License. Practice, Civil, Judicial review of license to carry firearms, Action in nature of certiorari.
APPEALS COURT REVERSES LOWER COURT’S OVERTURNING CHIEF’S DETERMINATION OF UNSUITABILITY IN GUN CASE
The Appeals Court , in Chief of Police of Taunton v Carras issued today, overturned a District Court’s reversing of a Police Chief’s determination of unsuitability, which was upheld by the Superior Court, and upheld the Chief’s determination.  Of note, the Appeals Court held that the lower courts erroneously substitute their judgment for that of the Chief’s in determining unsuitability.   Click here for the full text of the Court’s decision.
Congrats to MMLA member and Taunton Assistant City Solicitor Daniel de Abreu on his victory in this important case.

Save the Dates!

Save the dates!  MMLA is having 2 great programs over the next 2 months-

1.  Wednesday, April 24, 4:30 p.m. to 8:00 p.m., The Aegean in Framingham
Alcoholic Beverages Licensing Update
2.  Wednesday, May 15, 3:00 p.m. to 8:00 p.m., the Publick House, Sturbridge
9th Annual MMLA Construction Law Program, chaired by Christopher Petrini, Esq.
NOTE CHANGE IN DAY OF WEEK TO WEDNESDAY FOR BOTH THESE PROGRAMS

Appeals Court: JAMES CUTICCHIA et al. v. TOWN OF ANDOVER et al.

KeywordsMunicipal Corporations, Group insurance. Insurance, Group, Premiums. Public Employment, Retirement benefits. Retirement. Statute, Construction. Practice, Civil, Summary judgment.

[Excerpt] “In 2016, the town of Andover increased the percentage share that retired town employees had to pay for their health insurance.  Three retired town employees brought this action alleging that G. L. c. 32B, § 22 (e), prohibited the town from implementing such increases prior to July 1, 2018.[3]  On cross motions for summary judgment, a Superior Court judge ruled that the language of § 22 (e) unambiguously supported the town’s position that the increases were lawful.  For the reasons that follow, we vacate the judgment.” Click here for the full text of the Appeals Court’s Decision.

Municipal Attorney Positions Posted

The Town of Barnstable has posted an RFP for the position of Town Attorney, to fills the shoes of MMLA member Ruth Weil.who is retiring.  Visit “Career Opportunities” for details.

Also, the Town of Falmouth and the City of Lawrence are both currently soliciting applications for municipal law positions.  Falmouth will be filling the position of Associate Town Counsel, a position long held by held by MMLA member Pat Harris; and the City of Lawrence is looking to fill 1st and 2nd Assistant City Attorney positions.  For details, visit “Career Opportunities” on this website.

Land Court: VALLEY GREEN GROW, INC. v. TOWN OF CHARLTON

Action taken by the Town of Charlton’s annual town meeting in May of 2018 in the form of a general bylaw of the town purported to bar the conversion of a farm property to an indoor marijuana growing and processing facility.  In the Land Court’s decision, this was an improper attempt to exercise the town’s zoning powers through a general bylaw, the adoption procedures for which fall short of the requirements for zoning bylaws. In granting the plaintiff’s motion for summary judgment, Judge Foster held that the bylaw is “invalid and of no force and effect.”   Click here for the full text of the Land Court decision.

PASSING OF GEORGE DECAS, ESQ., FORMER MIDDLEBORO TOWN

PASSING OF GEORGE DECAS, ESQ., FORMER MIDDLEBORO TOWN

February 22, 2019 – It is with sadness that I report on the passing of our colleague George Decas, Esq.  George was a longtime member of the MMLA (formerly the City Solicitors and Town Counsel Association) and served as president of the CSTC.  He was the long time Town Counsel of Middleboro, a position now held by his colleague and law partner MMLA member Daniel Murray, Esq.

Please see his interesting obituary below.  It is believed that between George, Dan and former Middleboro Town Counsel Hon. (Ret.) Alan Hale, the Town Counsel of Middleboro has had an office in the same historic building for some 80 years.

Read more

Appeals Court: JANICE SMYTH v. CONSERVATION COMMISSION of FALMOUTH

KeywordsEminent Domain, Jury trial, What constitutes taking. Constitutional Law, Eminent domain, Taking of property, Trial by jury. Practice, Civil, Eminent domain proceeding, Jury trial, Judgment notwithstanding verdict

[Excerpt] – “A land owner brought this action in the Superior Court, claiming that local land use regulation effected a taking of her property, requiring just compensation under the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights.  This appeal presents a question of first impression in Massachusetts:  whether the land owner is entitled to have her regulatory taking claim decided by a jury.  We conclude that the jury right does not attach to such a claim, and that the judge erred in denying the defendants’ motion to submit only the question of damages to a jury.  We further conclude that the evidence presented at the trial did not, as matter of law, support a claim of regulatory taking.  We accordingly reverse the judgment in the plaintiff’s favor and direct that judgment enter for the defendants.”         Click here for the full text of the Appeals Court’s decision.

1ST Circuit Court of Appeals – MARK GILBERT v. CITY OF CHICOPEE et al

In this case (Case No. 17-2206, February 8,2019) the Plaintiff, a Captain in the Chicopee Police Department, brought suit against the City of Chicopee et al under 42 U.S.C. 1983, alleging retaliation for exercising his right of free speech protected by the First Amendment. He claimed that his speech was in his capacity as citizen, not in any official capacity.  His case dismissed by the District Court (Justice Ponsor).  The District Court’s decision was here affirmed by the Circuit Court “with costs to appellees”.

In its decision, the First Circuit stated that “[t]his is not a case where Plaintiff wrote a letter or spoke out at a public meeting. Exactly what Plaintiff said, and when, is left very vague.”  The Court went on to say: “Our de novo review of Gilbert’s First Amendment claim is handcuffed by the lack of specificity regarding exactly what speech underlies his claim. Gilbert’s complaint muddlingly sketches a litany of occasions spanning years during which he griped to superiors and investigators, orally and in writing, about the professional behavior of his colleagues or public officials. …However, whether we view Gilbert’s complaint as encompassing one or multiple events of speaking out, the result is the same.”  The Court concluded that Gilbert failed to state a First Amendment claim.

“Because Gilbert’s claim founders at the first prong of the Garcetti v. Ceballos, 547 U.S. 410 (2006)] inquiry — that is, whether Gilbert ‘spoke as a citizen on a matter of public concern’ — we decline to reach the second and third prongs. …”

Click here to read the full text of the Court’s decision, which concludes with some flair:  “We affirm, over and out.”