Municipal Law News

SJC: RAHIMAH RAHIM v. DISTRICT ATTORNEY FOR SUFFOLK DISTRICT

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KeywordsPublic Records. District Attorney. Statute, Construction. Words, “Receive”

As the year ends tonight, the SJC on December 31, 2020 issued an important public records case, Rahim v. District Attorney for the Suffolk District.  The issue was over whether documents the DA received from the FBI as part of an investigation of a shooting were subject to the public records law or exempt as they were not “made or received” and/or exempt under the investigatory exemption.  Among other points, the SJC ruled that some of the records in dispute were exempt under the investigatory exemption, and others needed further analysis bty the trial court.  The SJC also ruled that “received” does not mean thus now owned.  Relatedly, the SJC acknowledged, as many municipal attorneys have argued, “[t]here remains understandable confusion concerning the burden of proof that a record custodian bears when claiming an exemption from the public records law.”  Herr is an excerpt from the Court’s decision:

[Excerpt] – “During the course of investigating a fatal shooting by Federal and State law enforcement officials, the office of the district attorney for the Suffolk district (district attorney) requested and received assorted materials related to the incident from the Federal Bureau of Investigation (FBI).  We now decide whether these materials qualify as public records under G. L. c. 66, § 10 (a), of the Massachusetts public records law (public records law) and, if so, whether they are exempt from disclosure under either G. L. c. 4, § 7, Twenty-sixth (a) (exemption [a]), or G. L. c. 4, § 7, Twenty-sixth (f) (exemption [f]). . . . We now hold that the FBI materials qualify as “public records” under the public records law; that the materials do not qualify for exemption (a); and that some of the materials qualify for exemption (f), but the rest must be remanded to determine whether exemption (f) applies.”

SJC: MASSACHUSETTS COALITION FOR THE HOMELESS v. CITY OF FALL RIVER

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Keywords:  Constitutional Law, Freedom of speech and press. Statute, Severability. Practice, Civil, Declaratory proceeding

[Excerpt] – “Under G. L. c. 85, § 17A, sometimes referred to as the “panhandling” statute, a person who signals to a motor vehicle on a public way, causes the vehicle to stop, or accosts an occupant of the vehicle “for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise” is generally subject to criminal prosecution and a fine.  The statute permits the same conduct when undertaken for other purposes, however, such as selling newspapers, and it specifically exempts activity that would otherwise fall within the statute’s sweep if conducted by a nonprofit organization with a permit from the local chief of police.  We conclude that G. L. c. 85, § 17A, is unconstitutional on its face under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, because the statute is a content-based regulation of protected speech in a public forum that cannot withstand strict scrutiny.

Appeals Court: DIANNE LAWLESS v. CHERYL ESTRELLA

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KeywordsLibel and Slander. Municipal Corporations, Officers and employees. Privileged Communication. Practice, Civil, Summary judgment

[Excerpt] –

“The plaintiff, Diane Lawless, a former municipal employee, appeals from the entry of summary judgment in favor of a former subordinate, the defendant, Cheryl Estrella, on the plaintiff’s claim of defamation.  We conclude that an opinion based on disclosed, nondefamatory facts is not defamatory and that many of the allegedly defamatory statements constitute such opinions.  Further concluding that an employee has a conditional privilege to provide information concerning another employee upon the request of a supervisor and that the plaintiff failed to raise a genuine issue of material fact that would allow a jury to find that this privilege was abused regarding the other statements, we affirm.”

SJC: DAWN DESROSIERS v. GOVERNOR

KeywordsGovernor. Civil Defense. Public Health. Constitutional Law, Governor, Separation of powers, Right to assemble. Due Process of Law. Statute, Construction. Words, “Other natural causes

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The SJC upheld the Governor’s authority under public health statutes to issue state of emergency and orders.  Assistant Attorney General Margaret Hurley stated:  “A huge congratulations to my colleagues in the Attorney General’s Office who worked very hard on this case (and many other similar cases)!”     [Excerpt] – “We conclude that the CDA provides authority for the Governor’s March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders; the emergency orders do not violate art. 30 of the Massachusetts Declaration of Rights; and the emergency orders do not violate the plaintiffs’ Federal or State constitutional rights to procedural and substantive due process or free assembly.”

Governor Baker’s COVID-19 Reopening Update

Today Governor Baker and Lt. Governor Polito announced an update to the state’s reopening process as well as several updates to sector-specific guidance in order to combat the rising cases of COVID-19 across the Commonwealth. The measures outlined below with go into effect at 12:01 a.m. on Sunday, December 13.

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Appeals Court: FLAVIA MORETALARA v. BOSTON HOUSING AUTHORITY

FLAVIA MORETALARA v. BOSTON HOUSING AUTHORITY

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Excerpt from the Appeals Court decision:

The plaintiff, Flavia Moretalara, is an elderly tenant who suffers from various disabilities.  Her son often visited her at her apartment to help take care of her.  Unbeknownst to the plaintiff, her son also hid heroin and a high-capacity firearm magazine there.  When he was arrested and the contraband discovered, the Boston Housing Authority (BHA) terminated the plaintiff’s Section 8 housing benefits.  She, in turn, sought to reverse that decision in court, claiming that her disabilities prevented her from detecting and preventing her son’s misconduct on the premises.  She also provided evidence that, going forward, her son had agreed not to return to her apartment, and that she had secured a new personal care attendant who would help her monitor her apartment.  Based on a record developed over a series of administrative hearings, a Housing Court judge ruled in the plaintiff’s favor and enjoined the BHA from terminating her Section 8 benefits.  On the BHA’s appeal, we affirm.[1]

Appeals Court: CROSSING OVER, INC. v. CITY OF FITCHBURG

KeywordsAutomatic Sprinkler Appeals Board. Lodging House. Zoning, Lodging house. Fair Housing Act. Anti-Discrimination Law, Housing

[Excerpt] – The plaintiffs, Theodore Bronson and Crossing Over, Inc. (collectively, Crossing Over), and the intervener, the Massachusetts Alliance for Sober Housing, Inc., appeal from a partial judgment on the pleadings entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), dismissing Crossing Over’s claims for injunctive relief and damages against the defendants, the city of Fitchburg (city), the city’s fire prevention bureau (fire department), and the Automatic Sprinkler Appeals Board (board), in which Crossing Over sought to bar the enforcement of an order of the city fire chief requiring installation of sprinklers in the plaintiffs’ sober home.[3]  In the two counts before us, Crossing Over, the operator of a sober home, contends that the fire department’s enforcement of the sprinkler law, G. L. c. 148, § 26H, against its sober home[4] violates G. L. c. 40A, § 3, because § 3 prohibits the enforcement of laws and regulations that impose restrictions on facilities serving the disabled that are not imposed on family units of similar size.

We conclude that the sprinkler law is a State law that is unaffected by the prohibitions against local enforcement contained in G. L. c. 40A, § 3.  We therefore affirm the judgment entered on the first two counts of the complaint, but remand for consideration of the plaintiffs’ disability discrimination claims under State and Federal law.

Click here for the full decision of the Appeals Court.