Municipal Law News

Appeals Court: TOWN OF PLYMOUTH v. ROBERT J. POWER

KeywordsFirearms. Constitutional Law, Right to bear arms. Practice, Civil, Judicial review of license to carry firearms, Action in nature of certiorari, Judgment on the pleadings. District Court, Jurisdiction

[Excerpt] – Until paragraph (1 1/2) was added to G. L. c. 140, § 129B, effective January 1, 2015, a licensing authority could only approve an application for a firearm identification (FID) card or deny it on the basis that an applicant was a “prohibited person” under the statute.[2]  Paragraph (1 1/2), which is at issue in this case, addresses the possibility that a licensing authority might conclude that someone who is not a prohibited person is “unsuitable” to possess an FID card.  In that event, paragraph (1 1/2) does not empower the licensing authority to deny the FID card.  Rather, it provides that “the licensing authority may file a petition” “in the [D]istrict [C]ourt of jurisdiction” “to request that an applicant be denied the issuance or renewal of [an FID] card.”  The statute reserves to the District Court the decision whether the licensing authority has met its burden of proving by a preponderance of the evidence that the applicant is unsuitable.  G. L. c. 140, § 129B (1 1/2).

Click here for the full text of the Appeals Court’s decision.

Appeals Court: NEW BEDFORD HOUSING AUTHORITY v. K.R. et al

KeywordsSummary Process. Housing Authority. Municipal Corporations, Housing authority. Landlord and Tenant, Eviction. Violence Against Women Act. Practice, Civil, Summary process

The Appeals Court today issued a decision, New Bedford Housing Authority v.  K.R. et al, overturning a Housing Court’s approval of an eviction by a Housing Authority.  The Appeals Court based its decision on, among other factors, that it found the Housing Authority had given inaccurate information to the tenant about the  Violence Against Women Act (VAWA) and failed to live up to its obligations under that law, which provides, other other things, certain protections for tenants from evictions.  Click here for the full text of the Appeals Court’s decision.

Appeals Court: CITY OF NEW BEDFORD v. NEW BEDFORD POLICE UNION

KeywordsArbitration, Authority of arbitrator, Collective bargaining, Police. Labor, Arbitration, Collective bargaining, Police. Police, Collective bargaining, Authority of police chief, Assignment of duties. Public Employment, Collective bargaining

In the case of City of New Bedford v New Bedford Police Union, the Appeals Court affirmed today a Superior Court decision which vacated an arbitration award in favor of the union “which found the city of New Bedford (city) in breach of a provision of a collective bargaining agreement (agreement) with the New Bedford Police Union (union) ‘when it assigned officers to perform background investigations during their normal work hours in addition to their typical duties.'”  The Appeals Court held that “[C]ontrolling precedent compels the conclusion that the agreement provision, and thus the arbitration award, infringe on the nondelegable exclusive assignment authority of the city’s chief of police.” – It is not too often that an arbitrator’s award gets overturned.  This case is also significant as it affirms nondelegable exclusive managerial authority, even if there are conflicting provisions in the contract.  Congrats to the City of New Bedford and their attorney John C. Foskett, Esq.  for this win for local government.

Click here for the full text of the Appeals Court’s decision.

Coronavirus – Materials, Links, Resources

 MATERIALS, LINKS, OTHER RESOURCES-
MUNICIPAL LEGAL ISSUES RELATING TO THE COVID-19 VIRUS
(last updated 5/26/20)

From what you have shared with us on MMLA’s ListServ we have been able to identify and publicize information important to public sector attorneys and their municipal clients during this COVID-19 pandemic.  MMLA thanks all who have contributed to this effort.  Listed below are the contributions (through 5/26/20) from MMLA members and those joining us on our weekly open conference calls relating to COVID-19. We hope this has been a useful resource to all.  

Read more

2020 Public Construction Seminar & Annual Business Meeting

On Thursday, June 11, 2020 starting at 2:30 p.m., MMLA, through our organization’s Zoom account, will host our first virtual annual business meeting, followed from 3pm to 5pm by the 10th Annual Public Construction & Infrastructure Update, presented by Petrini & Associates, P.C.  This year’s program is very timely, examining the impacts of COVID-19 on public construction projects and providing helpful guidance and tips to municipal counsel and officials as our clients continue to deal with the many impacts of the pandemic.

Additional details will be announced as we get closer to the date; but for an overview of the seminar, click here:

SCOTUS – ATALNTIC RICHFIELD CO. v. CHRISTIAN (April 20, 2020)

“In a recent decision with far-reaching implications for owners of contaminated property, the U.S. Supreme Court ruled that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, often referred to as the federal Superfund law) does not preclude claims under state laws for further cleanup of contaminated sites.

The takeaway point is that Superfund does not prevent state court lawsuits over the same real estate that is a designated public or private federal Superfund site. EPA is not the only game in town, and the game is played not just in the federal courts.

In a split decision (7-2) dated April 20, 2020, the Supreme Court decided that CERCLA does not preclude claims in state courts seeking additional cleanup of Superfund sites beyond what the federal Environmental Protection Agency (EPA) has required, and/or damages or other relief under common-law torts like nuisance, trespass, and strict liability.

It is nuanced about Superfund not precluding state court jurisdiction over state law claims for more cleanup or larger damages than EPA has ordered or agreed, but there is a catch (extra cleanup of the same property within the Superfund site needs EPA prior approval) and the Court did not deal yet with whether Superfund preempts the Montana statute allowing such claims. Non-preclusion principles are not same as non-preemption precepts.” – (Quoted from an article written by Luke Leger (McGregor & Assocites).  For the full text of the article and a link the Supreme Court’s decision, click here.)

SCOTUS: COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE FUND ET AL

[Excerpt from Memo of Amanda Kellar, Deputy General Counsel, International Municipal Lawyers Association (IMLA)]

Under the Clean Water Act (the “Act”), a special permit is required if any pollutants are added from a “point source” to “navigable waters.”  33 U.S.C. § 1362(12).  The issue in this case was whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, groundwater.  In a compromise 6-3 opinion authored by Justice Breyer, the Supreme Court concluded that the Act requires a permit when “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” (emphasis added).

Click here to read Amanda’s full case summary, including a link to the full text of the Supreme Court’s decision. Also, read an excellent article authored by our own Olympia Bowker, of McGregor & Associates. Click here for the full text of Olympia’s article on the Clean Water Act and the Maui v. Hawaii SCOTUS decision.

Appeals Court: TOWN OF DRACUT v. DRACUT FIREFIGHTERS UNION

KeywordsArbitration, Collective bargaining, Authority of arbitrator, Fire fighters, Judicial review. Contract, Collective bargaining contract, Arbitration. Labor, Arbitration, Collective bargaining, Fire fighters. Municipal Corporations, Collective bargaining, Fire department. Public Employment, Collective bargaining. Fire Fighter

(Excerpt) –  “The Dracut Firefighter’s Union, IAFF Local 2586 (union), appeals from a judgment entered in the Superior Court vacating an arbitration award in favor of the town of Dracut (town).  The award arose from a grievance filed after the chief of the Dracut Fire Department (fire department) implemented a new policy preventing on-duty firefighters assigned to the east and west fire stations from attending union meetings at the central fire station.  The arbitrator found that the chief’s decision to impose a ban on travel by on-duty firefighters to union meetings at the central fire station from the east and west stations violated the parties’ collective bargaining agreement (CBA).  The Superior Court judge vacated the arbitration award on the ground that it exceeded the arbitrator’s authority by infringing on the nondelegable authority of the chief.  See G. L. c. 48, § 42; G. L. c. 150C, § 11 (a) (3).  We reverse.”

Click here for the text of the Appeals Court decision