Arguing That the First Amendment Should Prohibit Massachusetts from Criminalizing Knowingly False Political Campaign Speech
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At issue was whether Mass. G. L. c. 56, § 42, a 1946 statute that criminalizes any knowingly false statement in relation to any candidate for nomination or election to public office, violated the First Amendment to the United States Constitution. The statute punishes the convicted speaker with either a fine of up to $1,000 or imprisonment for up to six months. This case was initiated during the 2014 state elections by an incumbent (and subsequently reelected) candidate, State Representative Brian Mannal, who successfully applied for the issuance of a criminal complaint against Melissa Lucas, the chairperson and treasurer of Jobs First, an independent-expenditure Political Action Committee. Mannal alleged that Lucas was responsible for the PAC’s publication and circulation of a brochure falsely stating that Mannal, a criminal defense attorney, would benefit personally from the passage of bill that he was sponsoring. Mannal’s proposed legislation would earmark state funds for court-appointed criminal attorneys representing indigent convicted sex offenders in post-conviction proceedings. The SJC stayed Lucas’ arraignment in Falmouth District Court until it decided the constitutionality of the statute, in the exercise of its general superintendence powers. The Court issued an amicus announcement and heard oral argument on May 7, 2015.
 
In its amicus brief in support of the defendant, NELF argued that this case was not about protecting the right to lie in political campaigns. Instead, it was about protecting the First Amendment right of everyone, including State Representative Brian Mannal himself, to engage freely in political debate about the qualifications of candidates for public office, without fear of criminal reprisal from the government. Such speech is “integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression . . . .” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995) (citations and internal quotation marks omitted). 
 
As NELF argued, political speech does not lose its First Amendment protection even if it is false (to the extent that political speech can be reduced to truth or falsity). This means that the disputed statute is a content-based prohibition on protected speech. Therefore, the statute violates the First Amendment unless the Commonwealth can show that it survives “exacting scrutiny.” It must be narrowly tailored to serve an overriding state interest.
 
This the Commonwealth cannot show. Indeed, “it might be maintained that political speech simply cannot be banned or restricted as a categorical matter . . . .” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). This is because political campaign speech is the essence of self-government and thus occupies the highest rung of First Amendment values. To ensure the proper functioning of a representative democracy, core political speech must be afforded ample breathing space to flourish.   The First Amendment thus requires that the electorate shall engage freely in political debate and shall decide whom and what to believe during an election campaign, without any governmental interference. 
 
By contrast, the fact or threat of criminal prosecution is antithetical to this First Amendment value because it stifles political discourse, especially when that discourse is needed most, on the eve of an election. The statute thus impinges the rights of the electorate, both as speaker and listener. As a result, the political process suffers.
 
The First Amendment ensures a wide-open marketplace of ideas in which the appropriate remedy for allegedly false speech is simply more speech, and not enforced silence through actual or threatened criminal prosecution. As the Supreme Court has long recognized, counter speech is a particularly effective remedy during a political campaign, because a candidate is likely to respond immediately and forcefully to false accusations, as this case illustrates.
 
Not only does the statute fail exacting scrutiny. It is also void for vagueness. Political speech is often an unruly mixture of fact and opinion that cannot be reduced to neat categories of truth and falsity. This means that the statute cannot provide adequate notice of what speech is permitted or proscribed. This can only result in widespread self-censorship among the electorate. The statute’s vagueness could also invite prosecutorial abuse, such as the silencing of views that are critical of incumbents or government generally. 
 
In its decision issued on August 6, 2015, the Supreme Judicial Court agreed with NELF that Mass. G. L. c. 56, § 42 was unconstitutional. The Court, however, based its decision entirely on the Massachusetts constitution holding that “§ 42 is antagonistic to the fundamental right of free speech enshrined in art. 16 of our Declaration of Rights and, therefore, is invalid.” On this basis, the Court dismissed the criminal complaint charging the defendant with criminal charges under § 42.

Whether an Agreement to Submit Valuation of Stock to the Binding Decision of Arbitrators is an Arbitration Agreement Enforceable Under the Massachusetts Arbitration Act
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At issue in this case, pending before the Massachusetts Supreme Judicial Court (“SJC”), is whether a stock valuation provision in the articles of organization of a closely held Massachusetts corporation is enforceable under the Massachusetts Arbitration Act, G. L. c. 251, §§ 1-18 (“MAA”). The SJC requested amicus briefing on this issue. Under this familiar contract provision, the shareholders have agreed in advance to submit any future dispute about the value of a departing shareholder’s stock to a binding and final determination by an arbitral panel. Unlike the common law, the MAA provides for expedited specific performance of an arbitration agreement, via a motion to compel arbitration, along with other streamlined statutory mechanisms designed to enforce the parties’ bargained-for expectations.
 
The departing shareholder in this case has refused to complete the parties’ agreed-upon process for arbitrating the value of his shares. Instead, he has sought an accounting in court, as part of his claim for breach of fiduciary duty against the defendant, New England Cleaning Services, Inc. (“NECS”). The Superior Court denied NECS’ motion to compel arbitration, concluding that the parties’ valuation agreement was not an arbitration agreement. The lower court based its decision on Palmer v. Clark, 106 Mass. 373 (1871), and its progeny. In Palmer, decided nearly a century before the MAA’s enactment in 1960, this Court drew a distinction between an appraisal and an arbitration agreement. The SJC has also requested amicus briefing on whether Palmer and its progeny survive the MAA.

In its amicus brief supporting NECS, NELF has argued that the parties’ valuation agreement is indeed an arbitration agreement enforceable under the MAA, which applies broadly to any “controversy” that the parties have designated in their agreement for resolution in binding arbitration. In fact, this Court has already enforced a property valuation agreement under the MAA. See Trustees of Boston & Maine Corp. v. Massachusetts Bay Transp. Auth., 363 Mass. 386 (1973) (enforcing railroad right-of-way valuation agreement under MAA). As the Court recognized implicitly in Trustees of Boston & Maine, the MAA allows the parties to decide in advance both what is to be arbitrated--however specific and factual the issue--and how it is to be arbitrated--however informal the procedures. See G. L. c. 251, § 1 (MAA applies to “any controversy thereafter arising . . . .“), § 5 (MAA requires certain arbitral procedures “[u]nless otherwise provided by the agreement . . . .”) (emphasis added). In short, the MAA embodies the modern notion of party autonomy in the crafting of arbitration agreements tailored to each particular dispute. Therefore, the parties’ valuation agreement should be specifically enforced under the MAA. As a result, the old distinction between an appraisal and an arbitration agreement under Palmer should not survive the MAA. That distinction was drawn under a predecessor arbitration statute that did not apply to valuation agreements. Moreover, Palmer was decided when predispute arbitration agreements were voidable. Thus, in its day, Palmer actually protected the rights of shareholders to an appraisal agreement. Such protection is no longer necessary now that such an agreement can be enforced under the MAA.

On May 22, 2015, the Supreme Judicial Court issued its opinion in this case. Agreeing with NELF, the Court concluded that Article 5 of NECS's articles of incorporation contained a valid agreement to arbitrate future controversies regarding the value of NECS's stock. However, the Court also concluded that no such controversy existed at the time of NECS's motion to compel arbitration and, therefore, affirmed the order denying the NECS's motion to compel arbitration. 

Defending the Immunity from Suit, under the Workers Compensation Act, of an Insured Alternate Employer
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This case raised an important issue of first impression under Massachusetts workers compensation law. The plaintiff worked for a temporary staffing agency (his general employer) and was sent out on a job assignment to the defendant (his special, or alternate, employer). He was injured on the first day of the assignment, while performing a task under the direct control of the defendant on the latter’s premises. Later, after collecting workers compensation benefits, he sued the defendant on the theory that the company had not been his employer under workers compensation law and so did not enjoy an employer’s statutory immunity from suit. The trial judge granted the defendant summary judgment, and the plaintiff appealed. He argued that the defendant could not be regarded as his employer because the benefits he received were paid on the temp agency’s workers compensation policy.
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As NELF noted in its brief, filed with co-amicus Associated Industries of Massachusetts, the defendant was named as an additional insured on an “Alternate Employer Endorsement” attached to the temp agency’s policy. As NELF successfully argued several years ago in another legal context, the effect of being named as an additional insured on a policy is to create a direct relationship between the insurer and the additional insured for the latter’s own liabilities, without regard to which party paid the premium for the additional coverage or who was identified as the named insured on the policy. Of crucial importance in this connection is the fact that the workers compensation act specifically permits a special employer, like the defendant, to agree with the general employer that it, not the general employer, will be liable for workers compensation, provided that the special employer is insured. The “Alternate Employer Endorsement” reflects precisely such an agreement and provides precisely such insured status to the defendant. In fact, as NELF pointed out, this particular endorsement form has been approved by the Massachusetts Division of Insurance for use in such situations, a fact of which both parties in the case were unaware. 

NELF further showed that such endorsements are used nationally for this purpose, typically in the exact same standardized form found here (the form is promulgated by the National Council of Compensation Insurers). NELF called the Appeals Court’s attention to the use of the form in other states (New York, North Carolina, Texas, Delaware, Minnesota), where the form is officially approved and sometimes even prescribed for this use. Molina’s contentions that the use of the endorsement amounted to “an illusory promise” and a nefarious “artifice” were therefore without merit. In short, NELF concluded that State Garden was clearly the relevant insured employer for purposes of the work-related injury Molina suffered and that the company was therefore entitled to employer immunity from suit.

In its decision issued on September 3, 2015, the Massachusetts Appeals Court agreed with NELF that, under the endorsement, the plaintiff’s special employer was immune from suit under the Workers Compensation Act.

​On September 23, 2015, Molina applied for further appellate review by the Supreme Judicial Court. This application remains pending.

Arguing that, Without an Express Legislative Mandate, the Massachusetts Department of Transportation Does Not Have the Authority to Regulate Outdoor Advertising Throughout the Commonwealth.
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This case is before the Massachusetts Supreme Judicial Court on a certified question from the United States District Court for the District of Massachusetts. The question is whether the Massachusetts Legislature has authorized the Massachusetts Department of Transportation (“MassDOT”) to regulate all “off-premise” outdoor advertising (billboards, outside signs, and the like) throughout the Commonwealth. The SJC issued an amicus call on the question and NELF filed an amicus brief in support of Outfront Media, arguing that the MassDOT had acted without legislative authorization when it promulgated regulations purporting to regulate all off-premise outdoor advertising in the Commonwealth. 
 
The issue was of importance to NELF and its supporters because outdoor advertising companies have long been subject to detailed and demanding local regulation by towns and cities throughout the state, and do not need to be burdened with duplicative and costly regulations at the state level.
 
In its brief, NELF argued that when the Massachusetts Legislature created MassDOT in 2009 in an omnibus Transportation Act, that same Act abolished the Outdoor Advertising Board, a state agency that for several decades had regulated the placement and manner of outdoor advertising in Massachusetts. Notably, the 2009 Act did not re-delegate the former Outdoor Advertising Agency’s regulatory powers to the MassDOT. By contrast, NELF argued that the Legislature, in the past, had indeed re-delegated the rulemaking authority of a predecessor outdoor advertising agency to its successor state agency, by so amending the relevant provisions of the enabling statutes. Therefore, the Legislature’s failure to do so in 2009 can only be a deliberate choice to remove the state from regulating all outdoor advertisements throughout the Commonwealth. Moreover, the Legislature has for nearly 100 years authorized cities and towns to regulate outdoor advertising. And both the Legislature and and the SJC have recognized that the regulation of outdoor advertising is primarily a local issue, because only local governments can respond to the particular aesthetic concerns and geographical details of each neighborhood.

​To reinforce this point, NELF provided an extensive analysis and summary of the ordinances and bylaws of several cities and towns throughout the Commonwealth. NELF demonstrated persuasively that several cities and towns have done far more than the disputed state regulations to restrict the size, placement, and manner of outdoor advertising. Therefore, state regulation of the same issue is unnecessary.
 
After filing its brief, NELF received word that the case had settled, leaving the legal issue unresolved.

Arguing that the Massachusetts Wage Act allows a business to maintain a no-tipping policy

At issue in this case, which was before the Massachusetts Supreme Judicial Court (“SJC”), was whether the tips provision of the Massachusetts Wage Act, G. L. c. 149, § 152A, allows a business establishment to maintain a no-tipping policy, under which patrons are requested not to tip employees, and employees are, in turn, required not to accept any such tips. The plaintiffs were employees of various Dunkin’ Donuts franchises owned and operated by the defendants Constantine Scrivanos and the Scrivano Group (collectively “Scrivanos”). The plaintiffs claimed, on behalf of themselves and all other similarly situated employees, that Scrivanos violated their rights under the Wage Act by preventing them from accepting tips offered to them by customers. The Superior Court (Fabricant, J.) ruled that a no-tipping policy is permitted under the statute, so long as the policy is “clearly and conspicuously announced” to provide notice to patrons. The SJC took the case on direct appellate review and requested amicus briefing on this issue.

NELF argued, in support of the defendants, that the Wage Act does not prohibit, or address in any other way, a no-tipping policy. While NELF is not opposed to the practice of tipping, nevertheless NELF does not believe that the statute requires a business to permit tipping on its premises. Nowhere does the statute provide that a business must permit its patrons to tip its employees. Instead, the Act addresses only the consequences that result when a business does permit tipping—i.e., such a business cannot confiscate tips from its employees. And, since the statute does not require a business to permit tipping, its silence on the issue should be interpreted as leaving undisturbed “the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants.” Butler v. Adoption Media, LLC, 486 F. Supp.2d 1022, 1030 (N.D. Cal. 2007) (citation and internal quotation marks omitted). After all, “[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed.” Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 549 (2013) (citation and internal punctuation marks omitted) (emphasis added). Therefore, the Act, lacking any clearly expressed intent to the contrary, should be interpreted as preserving the bedrock common law principle that “[t]he status of an invitee is not absolute but is limited by the scope of the landowner’s invitation.” 62 Am. Jur. 2d Premises Liability § 100.”). In short, the statute allows each business to exercise its own judgment and decide for itself whether tipping is a good idea for its particular establishment. 

In its decision of April 10, 2015, the Court agreed with NELF and held that the tipping statute does not require an employer of wait staff to permit tipping. Instead, the statute only addresses the circumstances when the employer does permit tipping. “No language in [the tipping statute] prohibits an employer from imposing a no-tipping policy. The Tips Act addresses circumstances in which tipping is permitted and wait staff employees have been given tips, directly or indirectly; it prescribes what the employer is required to do with such tips.” Meshna v. Scrivanos, 471 Mass. 169 (2015). 

Defending the Rights of a Secured Judgment Creditor Against an Asserted Discharge of the Debt in Chapter 7 Bankruptcy

This case was the subject of an amicus call by the SJC and presented what was essentially an issue of first impression in the Court, at least under modern bankruptcy law. The defendant credit union was a secured creditor that, in an earlier action, obtained a judgment against the present plaintiff and perfected a judicial lien on her real property to secure the judgment. It intended to sell the property in order to satisfy a judgment arising out her unpaid credit card debt. About a year after the credit union won its judgment and lien, the plaintiff filed for bankruptcy and her debts were discharged under Chapter 7. She then brought this action to “remove cloud on title” in order to forestall the sale of her property, arguing that the bankruptcy discharge voided the judgment on which the creditor’s pre-bankruptcy lien rested. Other than a glancing remark in a short, 1937 decision, the Court had not discussed, let alone decided, whether, in circumstances like these, a creditor retains a secured interest upon which it may foreclose.

Concerned by the failure of the parties and the trial judge to discuss controlling federal case law, NELF filed a brief in support of the credit union. In its brief, NELF identified Johnson v. Home State Bank, 501 U.S. 78 (1991), as providing the rule of decision in this case. NELF explained the reasoning of Johnson and cited numerous lower court decisions acknowledging the precedential status of Johnson. Briefly put, a discharge of debts only reaches debts for which the debtor’s personal assets in bankruptcy are liable; property interests (such as, here, liens interests) validly conveyed to another party before bankruptcy do not form part of the debtor’s later bankruptcy estate, and thus the debts secured by such interests remain unaffected by a discharge. NELF also rebutted Christakis’ attempts to exempt non-consentual liens, like the judgment lien in question here, from the rule of Johnson. NELF pointed out the Johnson itself relied on two cases involving judicial liens, noting further that Christakis conceded that she could not satisfy the sole statutory exception addressing judgment liens. Finally, NELF demonstrated that the few cases Christakis cited offer no support to her position for a variety of reasons; in particular, NELF observed that her strongest case actually rests on a serious misquotation of an earlier case on a crucial point of law.

In its May 6, 2015 decision, Christakis v. Jeanne D’Arc Credit Union, 471 Mass. 365, 2015 WL 2069689 (2015), the Court agreed with NELF and applied Johnson as the rule of decision in the case. Finding that the discharge did not reach the property interest transferred by the judgment lien, it rejected the plaintiff’s contention that the case turned on an issue of Massachusetts law, i.e., whether state courts should allow the credit union to execute on a judgment supposedly voided by the discharge. Interestingly, the Court went on to declare that other secured creditors, who had been defaulted in this case for failure to answer and were not part of the appeal, were entitled to judgment in their favor because Christakis’s complaint was legally insufficient as to them too for the reasons stated in the opinion.

Assisting the Court in Evaluating A Proposed Consent Judgment Addressing Competition in the Business of Healthcare Services


In 2014 the Attorney General of Massachusetts invoked the rarely used anticompetitive branch of the state’s Consumer Protection Act, G.L. chapter 93A, to bring an action against Partners Healthcare System, Inc., a not-for-profit corporation that is the largest healthcare provider in the Commonwealth.  The Attorney General sought to block Partners’ acquisition of three hospitals outside of Boston, principally alleging that the acquisitions would have a substantial anticompetitive effect on the business of healthcare in the relevant state market and would therefore harm the public interest.  After intense negotiations, Partners and the Attorney General agreed to entry of a consent judgment that would permit the acquisitions to take place, but would subject Partners’ operations to a series of restrictions intended to lessen any anticompetitive effect of the acquisitions. 

When the trial judge then solicited comments from the public at large concerning the proposed consent judgment, NELF, in a classic instance of playing its role as amicus curiae in the public interest, responded by filing with the court a letter in which it discussed the legal standard by which the court should evaluate the agreement struck by the parties.  Having reviewed the submissions of the Attorney General and Partners on the question of the legal standard to be used, and after careful independent review of the relevant legal authorities, NELF opined to the court that the Attorney General and Partners had accurately stated consensus legal principles, drawn from a variety of federal and state antitrust cases, that have guided other courts in a range of similar situations and that ought to guide this court as well.  NELF summarized the court’s inquiry into two areas.  First, there were core judicial concerns, including whether the consent judgment was the product of genuine adversarial negotiations, whether the terms reasonably relate to issues over which the court has jurisdiction, whether the terms of any possible future enforcement envisioned under the consent judgment are sufficiently clear, and whether enforcement would be adequate and manageable.  Second, there were concerns relating to the public interest.  Here, the court should satisfy itself that the judgment does not clearly violate any well-established public policy, taking due account of the Attorney General’s unique discretionary powers in protecting the public interest through the prosecution and settlement of law suits (a discretion recently reaffirmed by the Legislature specifically as to healthcare providers and anticompetitive conduct under G.L. c. 93A).  One point that NELF thought especially important to emphasize was that the proposed consent judgment did not rest on either a finding or an admission of liability and therefore “the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation” (quoting U.S. v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757 (1971)).

In February 2015, the judge declined to approve entry of the consent judgment, finding that its substantive terms failed to address adequately the likely anticompetitive effects of the acquisitions and finding, also, that the terms of the settlement were not sufficiently clear as to render possible future enforcement reasonably manageable by the court.

Fighting to Maintain the Massachusetts Supreme Judicial Court’s Requirements for Medical Monitoring

In this case some former employees of Raytheon and their family members sought to impose on the company the costs of their being monitored for possible future chronic beryllium disease. The plaintiffs claim that the employee plaintiffs were exposed to beryllium at a Raytheon plant and that their family members were exposed to it secondhand, on the persons of the employees.

In Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009) (“Donovan I”), the Supreme Judicial Court held that when a defendant negligently exposes a plaintiff to a substance capable of causing a disease, the plaintiff may have a cause of action in tort even though he does not suffer from the disease. Under Donovan I, the plaintiff’s relief would be that the defendant must bear the medical costs of monitoring the plaintiff for signs of the disease’s possible future advent. But before a defendant can be held liable for these costs, the plaintiff must prove that he presently exhibits at least subclinical, or subcellular changes that serve as medical “warning signs” of a substantially increased risk of developing disease in the future. A plaintiff must be able to prove the existence of these changes, in order to satisfy the tort element of actual injury.

On June 23, 2013, U.S. District Court Judge Mark Wolf granted Raytheon summary judgment, ruling that the plaintiffs could not come forth with admissible evidence of the required subcellular changes (i.e., for each of them, two positive tests for beryllium sensitivity, a “warning sign” of possible future beryllium disease). The plaintiffs appealed to the First Circuit, arguing that the trial court misunderstood Donovan and the relevant medical science.

NELF, together with Associated Industries of Massachusetts, filed an amicus brief in support of Raytheon. In it NELF explained that the plaintiffs’ case depends on weakening and obfuscating, in a variety of ways, the standard set out in Donovan I. Their claim requires proof of a present, actual physical “impact,” which in this case would mean that they each have suffered subcellular changes connected to beryllium sensitivity, the very thing the plaintiffs cannot show. NELF then explained how, under the erroneous standard advanced by the plaintiffs, a mere risk of a risk of future disease would give rise to a Donovan claim. NELF rebutted in detail the use the plaintiffs make of Donovan I’s successor case, Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 16 (D. Mass. 2010) (“Donovan II”), showing, for example, that the Donovan requirements are not limited to tobacco class actions and that the plaintiffs hold numerous erroneous views of the facts of Donovan II. Finally, NELF explained that amendment of their complaint, in order to seek refuge for their claims under an issue of law left undecided in Donovan I, should not be allowed because it would be futile.

In its June 10, 2014 decision, the Court upheld summary judgment, chastising the plaintiffs for trying to alter their appeal to encompass the issue left undecided in Donovan I.

Defending the Right of Private Property Owners to Forbid Political Activity on their Premises


In this case, the plaintiff, Steven M. Glovsky, an attorney, while seeking to run for election to the Massachusetts Governor’s Council in 2012, sought permission to solicit nominating signatures at a Roche Brother’s supermarket situated on a private 5-acre lot in Westwood, Massachusetts. The store, which has a policy against such solicitations, denied him permission. Glovsky later brought this pro se suit, alleging that Roche Brothers had violated his constitutional rights. He cites the Massachusetts Supreme Judicial Court’s decision Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983). In Batchelder the SJC held that the owners of the huge, 84-acre Northshore Mall had violated Batchelder’s rights under Article 9 (freedom and equality of elections) of the Massachusetts Declaration of Rights, when they prevented him from using certain common areas of the mall as a place to collect signatures to get himself put on the ballot for legislative office.

NELF, together with six co-amici, filed an amicus brief in support of Roche Brothers, arguing that the narrow holding in Batchelder does not apply to the modest property at issue in this case and its small, purely utilitarian common area (the parking lot and front entry way of the supermarket). NELF pointed out that crucial to the Court’s decision in Batchelder was its factual finding that large shopping malls, with their spacious common areas and numerous amenities intended to induce people to linger and congregate, sometimes may assume some of the functions of a traditional public downtown and therefore be deemed dedicated to the public as a practical matter. Nothing could be further from the facts of this case, where the property bears no resemblance to a “downtown,” lacks the scale of a place intended to draw the public to congregate and socialize, and possesses a common area that is a small utilitarian space completely devoted to facilitating shopping.

Especially concerning to NELF is Glovsky’s request that the Court extent Batchelder to any commercial property that is, allegedly, the “best” place to gather signatures. NELF argues that such a view is inconsistent with the text and reasoning of Batchelder and would lead to absurd or unworkable results. NELF also rebutted two false distinctions made by Glovsky in his attempt to deflect the fatal reasoning of Batchelder from his own case. NELF argued that his distinction between inviting the public into a commercial establishment and allowing the public there is completely spurious under Massachusetts tort law. NELF also argued that the Batchelder court did not apply a more accommodating standard than that applied in the seminal precedent Robins v. Pruneyard Shopping Center, 592 P.2d 341 (Cal. 1979); Glovsky’s distinction between a free speech issue in that case and a free elections issue in Batchelder is belied by the undisputed facts of both cases.

Opposing a Local Zoning Board’s Attempt to Block a Comprehensive Permit for Affordable Housing Based on a Misinterpretation of the Rules Governing Appeals to the Housing Appeals Committee

This case concerns a developer’s attempt to secure a comprehensive permit under c. 40B for a multi-unit dwelling in Scituate that would include affordable housing units. After protracted hearings, the local zoning board (“board”) denied a permit on the ground that a very small patch of the project site was defined as wetlands under the town’s regulations, and that local concerns therefore outweighed the regional need for affordable housing. The developer appealed to the Housing Appeals Committee (“HAC”), where the case was largely fought out over highly factual issues. The developer won the appeal and obtained its permit, but the board appealed the HAC’s decision to the Land Court, where the developer won again.

The board has now appealed to the Appeals Court and makes two legal arguments. Of these, NELF’s amicus brief concentrates on refuting the board’s view of what a developer must do to make out a prima facie case in an appeal to the HAC. The applicable regulation, 760 C.M.R. 56.07(2)(a)(2), states that an appellant establishes a prima facie case by proving “that its proposal complies [with] the federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.” The board contends that developers must prove compliance with restrictive local regulations as part of the prima facie case, not just with State and Federal law dealing with the same local concerns. NELF argues that, in making this argument, the board has misread the plain language of the regulation. Compliance with local regulations is not mentioned. In fact, compliance with restrictive local regulations is deliberately omitted from the developer’s prima facie case because the validity of such local concerns is precisely what is put into question by c. 40B as a matter of law. Because there is a history of towns using restrictive local rules as a means to keep affordable housing from being built within in their boundaries, the reasonableness of local rules and the validity of the local concerns they address are matters that must be established by a town as part of its case, before the developer can be required to accommodate the local rules.

The board’s approach would, in effect, present a great obstacle to developers seeking to construct housing that includes affordable units. In its brief, NELF focuses on construing the plain language of the regulation and explaining the public policy rationale for the regulation and why the board’s reading is in sharp conflict with the purposes of c. 40B. NELF expresses its view that the board’s reading, if affirmed, could have a disastrous effect on most developers’ ability to stay in the HAC and get a full review of a permit denial.

In a March 2014 decision, the Appeals Court agreed with NELF that the approach advocated by Scituate was inconsistent with the rationale of the comprehensive permit scheme and the role of the HAC in that scheme.