Opposing an Administrative Judicial Expansion of the Classes of Persons Protected from Handicap Discrimination Under Mass. G.L. c. 151B

The issue in this case was whether an able-bodied individual has standing under Mass. G.L. c. 151B, § 4(16) to sue on her own behalf for discrimination that she alleges took place because of her association with a handicapped person. 

The plaintiffs—a husband and wife—both asserted discrimination claims under the statute against their common employer, but it was undisputed that only the husband qualified as disabled (and that only temporarily). His wife’s discrimination claim rested on her assertion that she was terminated from her employment because of her husband’s disability.  Her claim was dismissed by the Superior Court and that decision was on appeal before the Massachusetts Appeals Court. The wife’s argument for standing was supported by decisions of the Massachusetts Commission Against Discrimination (“MCAD”) that purported to recognize so-called associational standing in this factual context. 

In its amicus brief in support of the employer, NELF argued that the MCAD’s decisions were clearly erroneous and that Appeals Court should not make the MCAD’s errant view of the statute part of the decisional law of the Commonwealth. As NELF demonstrated, the express language of G.L. c. 151B, § 4(16) and other sections of c. 151B permit only a handicapped person to have standing to bring a claim for handicap discrimination, unlike the corresponding federal law, which expressly recognizes the type of associational standing claimed in this case.   

NELF argued that because the decisions of the MCAD on this issue are contrary to the plain language of statute, they are entitled to no deference from the court.  NELF observed that, while it may be desirable for non-statutory reasons to recognize this form of associational standing, the Massachusetts Legislature has not seen fit to allow for it in the controlling statutes.  As a result, NELF contended, whether or not the class of persons protected under c. 151B should be expanded to include those associated with a disabled individual is a decision that must be left solely for the Legislature to make, not the MCAD or the courts.  

Although the Appeals Court’s decision upheld the trial court’s dismissal of the plaintiff’s claim, the result that NELF ultimately supported, the Appeals Court did not address the legal question of the class of permissible plaintiffs, finding instead that, as a matter of law, the facts of the case failed to show that the company had acted toward Brelin-Penney in a discriminatory manner.  The issue brief by NELF therefore remains unresolved.

Arguing That Exactions of Personal Property and Money Should Be Treated Just Like Exactions of Real Property for Fifth Amendment Purposes

At issue in this case was whether the U.S. Supreme Court should grant certiorari to decide whether the Takings Clause of the Fifth Amendment to the United States Constitution, as interpreted by the Court in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), should apply to land-use permit conditions that exact, not real property (the context of Nollan and Dolan), but rather money and personal property from the property owner. The two-part Nollan-Dolan inquiry (“essential nexus” and “rough proportionality”) scrutinizes a land-use permit exaction to determine whether it is commensurate with the proposed development’s likely public impact.  If so, the exaction is a legitimate exercise of the police power.  However, if the exaction is unrelated to, or disproportionate with, the project’s likely public impact, it is a compensable taking.


In this case, the Petitioner, West Linn Corporate Park L.L.C. (“WLCP”), spent over $824,000 and dedicated personal property to complete many off-site public improvement projects required by respondent, the city of West Linn, Oregon (“the City”) as conditions to build its corporate office park.  These projects included expanding the city’s waterline and improving traffic intersections.  WLCP sought compensation from West Linn under Nollan-Dolan, arguing primarily that its offsite public improvement duties far exceeded its development’s likely public impact. The federal Court of Appeals for the Ninth Circuit summarily concluded that Nollan-Dolan applied only to real-property exactions and therefore dismissed WLCP’s federal takings claim.


In its brief, NELF argued that the Nollan-Dolan standard of review should apply to any permit condition that exacts any kind of private property.  The standard should not be limited to  exactions of real property, contrary to the Ninth Circuit’s holding below.  NELF argued that the Nollan-Dolan standard embodies the core principle of distributive fairness in the allocation of social costs that animates the Court’s takings jurisprudence.  Under this principle, no one property owner should be singled out to bear the burden of a social cost that should be shared instead by the general public, whether through general taxation or through the payment of just compensation to the property owner.  The Nollan-Dolan standard serves this core principle of distributive justice by limiting the government’s permitting power to the imposition of permit conditions that are commensurate with the likely public harm or impact that the property owner may cause.  Under Nollan-Dolan, an exaction that is unrelated to, or disproportionate with, the likely public impact of a land-use development is a compensable taking. To give full effect to this constitutional requirement of economic parity between the impact and the exaction, it should not matter what kind of property the government seeks to exact from the property owner.  What matters is whether the value and use of the property exacted are commensurate with the development’s likely public impact.

NELF also argued that an inclusive application of the Nollan-Dolan standard is necessary to address the Court’s concern that, in the land-use permit process, “there is heightened risk that the purpose [of the permit conditions] is avoidance of the compensation requirement [under the Takings Clause], rather than the stated police-power objective.”  Nollan, 483 U.S. at 841.  The potential for abuse of the police power inheres in the discretionary, adjudicative permit approval process, an ad hoc, monopoly power that is typically unaccountable to the political process and is generally subject to deferential judicial review.  Under those insulating circumstances, where local government has the discretion to deny a permit altogether, it may abuse its power by singling out a property owner with unduly burdensome permit conditions that may serve primarily to coerce the forfeiture of private property without just compensation. 

Unfortunately, the Supreme Court denied certiorari on November 14, 2011.

Arguing Against an Improper Attempt to Increase a Business's Liability by an Overly-Expansive Definition of Interstate Travel

This case concerned the reach of federal law over intrastate commerce.  At issue is the claim by the plaintiffs Mr. and Mrs. Barton that the limousine ride they took from Sunderland, MA, to Logan (where they took a plane to Jamaica) was in interstate commerce.  An accident occurred during the trip, allegedly resulting in injuries to Mrs. Barton.  If it had been determined that the ride indeed was in interstate commerce, federal law governing passenger motor carriers would have applied, and the limousine company’s insurer—Arbella—could have been liable to pay any judgment the Barton’s win up to $1.5 million, a much higher limit than that which would apply under state law.

The Bartons argued that the limousine ride was in interstate commerce because (a) the limo had been used in interstate commerce routinely before they used it, (b) the limo was in any case available for interstate commerce; and (c) their limo ride was part of their trip to Jamaica.  (Apparently, they carried on with their trip despite Mrs. Barton’s alleged injuries.) Arbella, the party NELF intended to support, prevailed in the trial court.  However, in NELF’s view, the trial court’s decision, while correct in result, was erroneous in reasoning.  Because of the economic and regulatory importance of the case, NELF’s planned to file an amicus brief so that the correct reasoning could be presented to  the Appeals Court in order to ensure that the trial court’s decision would be upheld and sound precedent established.

In the brief that NELF drafted, it argued that federal law mandates, and therefore exclusively governs, the interstate-travel insurance endorsement under which the Bartons sought to recover.  The trip was not in interstate commerce because, according to unanimous federal case law, that determination is to be made based on the use of the vehicle as of the time of the accident.  NELF pointed out in its brief that trips to an airport, like the Bartons’, lack “integral” ties to interstate commerce and have been repeatedly found by state and federal courts to be entirely intrastate under the holding of United States v. Yellow Cab Co., 332 U.S. 218 (1947). 

Unfortunately, one week before NELF’s fully completed brief was due to be filed, we were informed by Arbella’s counsel that the case had settled.  Accordingly, NELF’s brief was not filed.

Supporting a Property Owner’s Right to Seek Redress in Federal Court for an Alleged Unconstitutional Taking of Property

Each of these petitions for certiorari raised the same issue in a different factual context.  Each challenged the so-called Williamson County state litigation requirement for takings claims under the Fifth Amendment. In Colony Cove Supreme Court review was sought of a decision by the Ninth Circuit; in Downing/Salt Pond Partners a decision by the First Circuit is at issue.  In each case the Federal Court of Appeals affirmed the dismissal of the petitioner’s takings claims on the ground that Williamson County requires the matter to be litigated in state court. In Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court ruled that, when asserted against a state authority, a takings claim under the Fifth Amendment is not ripe to be heard in federal court until there has been a final decision denying just compensation to the complaining property owner.  (As the Supreme Court pointed out in Williamson County the Fifth Amendment does not forbid the government from taking private property for a public purpose; it only forbids the taking of private property without the payment of just compensation.  Therefore, the Williamson County majority concluded, there can be no federal claim until there has been a final state decision on compensation.) 

The ripeness requirement of Williamson County has led to the following anomalous result.  Under Williamson County no state takings claim could be ripe for federal adjudication until it has been fully litigated in state court.  (This is the so-called “state litigation requirement.”)  But, as the Supreme Court expressly recognized in San Remo Hotel L.P. v. City and County of San Francisco, California,545 U.S. 323 (2005), once a state-based takings claim has been fully litigated in state court, it cannot be re-litigated in federal court.  See, e.g., the federal full faith and credit statute, 28 U.S.C. § 1738.)   The upshot has been that, unlike any other federal or constitutional right, a property owner’s rights under the Takings Clause of the Fifth Amendment can never be litigated in federal court against a state defendant.  The only chance for federal review of a state taking of private property—either pursuant to eminent domain or a regulatory taking—is via a petition for certiorari to the United States Supreme Court.

In San Remo, former Chief Justice Rehnquist wrote a concurring opinion, in which three other justices joined. The four justices called for a reexamination of the Williamson County state litigation requirement.  These two petitions for certiorari presented the issue in a relatively pure form, and NELF, joined by other amici, urged the Court, in each case, to heed Chief Justice Rehnquist’s suggestion and seize the opportunity these cases present to look once again at its holding in Williamson County and its, perhaps unintended, denial of access to federal courts for one of the most fundamental federal rights, that forbidding a governmental body to take property for a pubic purpose without just compensation.

Despite NELF’s arguments, and the fact that this issue has continued to present problems for property owners in New England and throughout the United States, the Supreme Court denied certiorari in both cases.  This indicates that, despite the former  Chief Justice’s suggestion in San Remo, the Court has no present intention of revisiting the Williamson County rule.