Posts tagged "Town"

Caplan, et al. v. Town of Acton (Lawyers Weekly No. 10-038-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12274   GEORGE CAPLAN & others[1]  vs.  TOWN OF ACTON.       Middlesex.     September 7, 2017. – March 9, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.     Constitutional Law, “Anti-aid” amendment.  Massachusetts Community Preservation Act.  Historic Preservation.  Church.       Civil action commenced in the Superior Court Department on July 7, 2016.   A motion for a preliminary injunction was heard by Leila R. Kern, J.   The Supreme Judicial Court granted an application for direct appellate review.     Douglas B. Mishkin, of the District of Columbia (Joshua Counts Cumby & Alex Luchenitser, of the District of Columbia, & Russell S. Chernin also present) for the plaintiffs. Nina L. Pickering-Cook (Arthur P. Kreiger also present) for the defendant. The following submitted briefs for amici curiae: Daniel Mach, of the District of Columbia, Anthony M. Doniger, Kate R. Cook, & Sarah R. Wunsch for American Civil Liberties Union & another. Maura Healey, Attorney General, David C. Kravitz, Assistant State Solicitor, & Matthew P. Landry, Assistant Attorney General, for the Attorney General. Eric C. Rassbach, of the District of Columbia, Joseph C. Davis, of Louisiana, Daniel D. Benson, of Utah, & Mark L. Rienzi for Becket Fund for Religious Liberty. Thomas A. Mullen for Massachusetts Municipal Law Association & another. Thaddeus A. Heuer & Andrew London for National Trust for Historic Preservation. Ryan P. McManus & M. Patrick Moore for Boston Preservation Alliance & others.     GANTS, C.J.  Article 18 of the Amendments to the Massachusetts Constitution, as amended by arts. 46 and 103 of the Amendments, known as the “anti-aid amendment,” prohibits in § 2, cl. 2, the “grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society.”  This case presents the question whether two grants of public funds to renovate an active church that has been identified as a “historic resource” under the Community Preservation Act (act), G. L. c. 44B, are categorically barred by the anti-aid amendment, or whether the constitutionality of such grants must be evaluated under the three-factor test we have applied under Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981) (Springfield), to payments made to other private institutions.  Also presented is the follow-up question:  if the three-factor test applies, do the grants […]

Read more...

Posted by Massachusetts Legal Resources - March 10, 2018 at 4:09 am

Categories: News   Tags: , , , , ,

Board of Selectmen of the Town of Hull, et al. v. Healey (Lawyers Weekly No. 09-054-17)

1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00161 BOARD OF SELECTMEN OF THE TOWN OF HULL & THE TOWN MANAGER OF THE TOWN OF HULL vs. MAURA HEALEY, ATTORNEY GENERAL MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this action, plaintiffs Board of Selectmen of the Board of Hull and the Board Manager of the Board of Hull (collectively “the Board”) seek certiorari review under G. L. c. 249, §4, of a decision made by defendant Attorney General, Maura Healey (“the Attorney General”) that the Board violated Opening Meeting Law, G. L. c. 30A, §21(b)(3), by failing to publicly identify unions in collective bargaining disputes and a claimant in a matter in civil litigation prior to entering executive session to discuss strategy with respect to these matters. Before the Court are cross-motions for judgment on the pleadings. The Board seeks an order reversing the Attorney General’s decision and for declaratory relief, and the Attorney General seeks affirmation of her determination. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, the Board’s motion for judgment on the pleadings is ALLOWED, the Attorney General’s cross-motion for judgment on the pleadings is DENIED, the Attorney General’s order that the Board amend its minutes reflecting the meetings in dispute is VACATED, and this matter is REMANDED to the Attorney General for further review consistent with this decision. The Town’s motion for further declaratory relief is DENIED. 2 FACTS Claims for judicial review of administrative agency proceedings are resolved through motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.” Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c. 30A, §14. The record in this case, and the relevant law, show the following. Plaintiff Board is a public body, and plaintiff Town Manager of the Town of Hull is the Chief Administrative Officer of the Town of Hull. Defendant Maura Healey is the Attorney General of the Commonwealth of Massachusetts. The Open Meeting Law, G. L. c. 30A, §§18-25 (“OML”), requires that, “[e]xcept as provided in section 21, all meetings of a public body shall be open to the public.” G.L. c. 30A, §20(a). Section 21 of the OML allows “[a] public body [to] meet in executive session” for an enumerated purpose, which includes “[t]o discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” G. […]

Read more...

Posted by Massachusetts Legal Resources - December 22, 2017 at 7:17 pm

Categories: News   Tags: , , , , , , ,

Town of Chelmsford, et al. v. Newport Materials, LLC, et al. (Lawyers Weekly No. 12-126-17)

COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 1681CV03455 TOWN OF CHELMSFORD1 & another2 vs. NEWPORT MATERIALS, LLC & others3 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS NEWPORT MATERIALS, LLC AND 540 GROTON ROAD, LLC’S MOTION TO DISMISS The Town of Chelmsford (“Chelmsford”) and its fire chief, Gary Ryan (“Chief Ryan”), bring this appeal pursuant to G. L. c. 40A, § 17, challenging a decision by the Town of Westford (“Westford”) and the Westford Planning Board (the “Board”) granting defendants Newport Materials, LLC and 540 Groton Road, LLC (collectively, the “Newport Parties”) special permits for the construction and operation of an asphalt manufacturing plant (the “Project”) on a piece of property located in Westford, near the Chelmsford line (the “Property”). The matter is now before the court on the Newport Parties’ motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) based on the plaintiffs’ alleged lack of standing, as well as Mass. R. Civ. P. 12(b)(6). Because the court agrees that the plaintiffs lack standing to bring this appeal, the Newport Parties’ motion to dismiss is ALLOWED.4 1 By and through its Board of Selectmen 2 Gary Ryan, in his capacity as Chief of the Chelmsford Fire Department 3 540 Groton Road, LLC; Dennis J. Galvin, Mathew Lewin, Darrin Wizst, Michael J. Green, and Kate Hollister, as members of the Westford Planning Board; and the Town of Westford, by and through its Board of Selectmen 4 Because the court allows the motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, the court does not reach the Newport Parties’ arguments that the plaintiffs’ complaint must be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. BACKGROUND The Newport Parties own the Property, which is located at 540 Groton Road, in Westford, Massachusetts. The Property is an industrially-zoned, 115.52 acre lot. Ninety-two of those acres are in Westford, while the remaining twenty-three are in Chelmsford. The location of the proposed Project is entirely within the Westford portion of the Property. The Newport Parties do not propose to alter any portion of the Property located in Chelmsford. There is no allegation that Chelmsford itself owns land abutting the Property. The Property is abutted on the west by the Fletcher Quarry, an active and operational quarry since the 1800s that has no objection to the Project; on the south by Route 40; on the north by vacant industrial land; and on the east by U.S. Route 3, industrial properties and a single residence located at 263 Groton Road in Chelmsford. None of the abutting industrial properties, nor the owner of the single residence, […]

Read more...

Posted by Massachusetts Legal Resources - September 8, 2017 at 8:32 pm

Categories: News   Tags: , , , , , ,

G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)

COMMONWEALTH OF MASSACHUSETTS   NORFOLK, ss.                                                                      SUPERIOR COURT                                                                                                 CIVIL ACTION 17-0882     G6 HOSPITALITY PROPERTY LLC   vs.   TOWN OF BRAINTREE BOARD OF HEALTH   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION   In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1]  At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits.  Its application and motion are thus DENIED.   FACTS The relevant facts in the administrative record provided to this Court are as follows: Procedural History:  On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.” Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol.  Accordingly, G6 requested a continuance of the hearing.  The Board approved the Motel’s request.  The Motel voluntarily closed June 1.  The hearing was rescheduled for July 13, 2017.  Prior to the July 13 hearing, a public notice was published in the local newspaper. Facts Disclosed at the July 13, 2017 Hearing:  At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony […]

Read more...

Posted by Massachusetts Legal Resources - August 18, 2017 at 5:46 am

Categories: News   Tags: , , , , , , , ,

Hartman v. Town of Stoughton, et al. (Lawyers Weekly No. 12-108-17)

COMMONWEALTH OF MASSACHUSETTS   NORFOLK, ss.                                                                      SUPERIOR COURT                                                                                                 CIVIL ACTION 17-0880   MICHAEL J. HARTMAN   vs.   TOWN OF STOUGHTON, et al.   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION   Plaintiff Michael J. Hartman brings suit against the Town of Stoughton and the members of its board of Selectmen (collectively, the “Town”), alleging that he was not validly terminated from his positon as Stoughton Town Manager and has been wrongfully prevented from performing his duties.  Before the Court is Hartman’s motion for a preliminary injunction, seeking to restrain and enjoin the Town from preventing Hartman from performing his duties as Town Manager unless and until he is dismissed from that position in accordance with Article 4, §C4-1, of the Town Charter. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, Hartman’s motion for a preliminary injunction is DENIED. FACTS The following relevant facts are alleged by Hartman or revealed in the records submitted by the parties, concerning which there appears to be no dispute. By an employment agreement dated October 30, 2012, Hartman was engaged for a three-year period to serve as Town Manager for the Town.  By a subsequent employment agreement dated April 1, 2014 (“the 2014 Agreement”), Hartman’s employment as Town Manager was extended until June 30, 2017. Section 3 of the 2014 Agreement set forth Hartman’s term of employment as running from July 1, 2014 to June 30, 2017.  Section 1 of the 2014 Agreement stated: The Town Manager agrees to continue employment until June 30, 2017 … unless termination or resignation is effected as provided in Section 14 below.  Should the Town fail to notify the Town Manager that the agreement will not be extended within six (6) months of the expiration of the Agreement, then the Agreement shall continue in full force and effect for another one (1) year term and all compensation and benefits shall remain in effect.   Section 14 of the 2014 Agreement, entitled “Termination,” outlined the steps that Hartman agreed to follow to resign his position, but added “[n]otwithstanding any provision of this Agreement, the Town Manager shall serve at the will of the Board of Selectman and may be discharged from his employment in accordance with Section C4-1 of the Town Charter of Stoughton.”  In the event Hartman was discharged by the Town without cause, the Town was obligated to pay him six months’ salary. Article 4, §C4-1, of the Town Charter, states: The Town Manager shall serve at the will of the Selectman except that a vote of a majority, plus one, of the full membership of Selectmen shall be required to discharge […]

Read more...

Posted by Massachusetts Legal Resources - August 17, 2017 at 7:01 pm

Categories: News   Tags: , , , , ,

AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, et al. (Lawyers Weekly No. 10-104-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12224   AIDS SUPPORT GROUP OF CAPE COD, INC.  vs.  TOWN OF BARNSTABLE & others.[1]       Barnstable.     February 14, 2017. – June 14, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Hypodermic Needle.       Civil action commenced in the Superior Court Department on November 10, 2015.   A motion for a preliminary injunction was heard by Raymond P. Veary, Jr., J., and the case was reported to the Appeals Court by Robert C. Rufo, J.   The Supreme Judicial Court granted an application for direct appellate review.     Bennett H. Klein (Andrew Musgrave also present) for the plaintiff. Charles S. McLaughlin, Jr., Assistant Town Attorney (Ruth J. Weil, Town Attorney, also present) for the defendants. Andrew H. DeVoogd, Kate F. Stewart, & Tiffany M. Knapp, for Massachusetts Infectious Diseases Society & others, amici curiae, submitted a brief.     LENK, J.  Prior to 2006, G. L. c. 94C, § 27, provided criminal penalties for the possession, delivery, sale, or exchange of hypodermic needles without a prescription.  In 2006, the Legislature amended the statute to regulate only the sale of such needles, thereby decriminalizing, inter alia, the possession of hypodermic needles.  See St. 2006, c. 172, §§ 2, 3 (2006 act). Since 2009, AIDS Support Group of Cape Cod, Inc. (ASGCC), has been operating a free hypodermic needle “access” program in Hyannis, a village in Barnstable.  It provides clean syringes without charge to those who use intravenous drugs, in order to prevent the spread of diseases such as human immunodeficiency virus (HIV) and hepatitis C.  Claiming that ASGCC, which did not first seek local approval of its program, is in violation of two State statutes, G. L. c. 94C, § 27, and G. L. c. 111, § 215, the town of Barnstable[2] (town) ordered the cessation of the program. General Laws c. 94C, § 27, in essence prohibits the sale of hypodermic needles to those under eighteen, while G. L. c. 111, § 215, authorizes the Department of Public Health (DPH) to operate nonsale needle exchange programs with local approval.  The town maintains that the statutes provide the only two legal methods for the sale and distribution of hypodermic needles in Massachusetts:  sale by pharmacists and distribution by a locally approved DPH program.  ASGCC contends that neither statute regulates the private nonsale distribution of hypodermic needles. In response to the town’s cease and desist order, ASGCC brought an action in […]

Read more...

Posted by Massachusetts Legal Resources - June 15, 2017 at 3:18 am

Categories: News   Tags: , , , , , , , , ,

Hanlon v. Town of Sheffield (Lawyers Weekly No. 11-052-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-799                                        Appeals Court   JOHN R. HANLON, JR.  vs.  TOWN OF SHEFFIELD & others.[1] No. 15-P-799. Suffolk.     March 7, 2016. – May 13, 2016.   Present:  Kafker, C.J., Katzmann, & Grainger, JJ. Zoning, Private airstrip, Validity of by-law or ordinance.  Statute, Construction.  Municipal Corporations, By-laws and ordinances.       Civil action commenced in the Land Court Department on March 21, 2012.   The case was heard by Howard P. Speicher, J., on a motion for summary judgment.     Alexandra H. Glover for the plaintiff. Peter Sacks, State Solicitor, for Department of Transportation, amicus curiae.      GRAINGER, J.  The plaintiff John R. Hanlon, Jr., appeals from summary judgment entered in favor of the defendants, ruling that the town of Sheffield (town) was authorized to regulate the plaintiff’s use of his property as a private noncommercial aircraft landing area notwithstanding the regulatory authority of the Massachusetts Department of Transportation aeronautics division (division).[2]  In reversing the judgment we acknowledge that the motion judge was confronted, as are we, with statutory language in G. L. c. 90, § 39B, that undermines the evident purpose of the statute, and we note that this is an appropriate subject for corrective legislation.[3] Background.  The facts are undisputed.  The plaintiff owns approximately thirty-eight acres of land (property) in the town, containing the plaintiff’s residence and a number of outbuildings suitable for storage of small airplanes.  On the property, the plaintiff created a strip eighty feet wide by 1,250 feet long for takeoff and landing of airplanes and, since at least 2006, has operated aircraft from the property as a hobby.  In 2006, the plaintiff registered the property with the Federal Aviation Administration as a helipad.  Pursuant to G. L. c. 90, § 39B, fourth par., he also registered the property as a noncommercial private restricted landing area (PRLA) with the division.  He neither sought nor received any approval from the town with respect to the PRLA. The property is located in a rural district under the town zoning by-law.  Section 3.1 of the by-law provides that land  may not be “used except as set forth in the . . . Table of Use Regulations.”  The section further provides that “[a]ny . . . use of premises not herein expressly permitted is hereby prohibited.”  Although “commercial airfield” is listed as a prohibited use in rural districts, the Table of Use Regulations contains no mention of noncommercial […]

Read more...

Posted by Massachusetts Legal Resources - May 13, 2016 at 8:32 pm

Categories: News   Tags: , , , , ,

Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 10-052-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11885   MARIA A. KITRAS, trustee,[1] & others[2]  vs.  TOWN OF AQUINNAH & others.[3] Suffolk.     December 8, 2015. – April 19, 2016.   Present:  Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.     Easement.  Necessity.  Real Property, Easement.  Law of the Case.       Civil action commenced in the Land Court Department on May 20, 1997.   After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J.   After further review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Jennifer S.D. Roberts for Vineyard Conservation Society, Inc. Diane C. Tillotson for Martha’s Vineyard Land Bank. Ronald H. Rappaport for town of Aquinnah. Wendy H. Sibbison for Maria A. Kitras & another. Leslie Ann Morse for Mark D. Harding & others. Jennifer H. Flynn, Assistant Attorney General, for the Commonwealth, was present but did not argue. The following submitted briefs for amici curiae: Lawrence H. Mirel, of the District of Columbia, for Aquinnah/Gay Head Community Association. Andrew H. Cohn, Felicia H. Ellsworth, & Claire M. Specht for Real Estate Bar Association for Massachusetts, Inc., & another. Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for Wampanoag Tribe of Gay Head (Aquinnah). Michael Pill, pro se.     SPINA, J.  In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).[4]  Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus.  At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).[5]  When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty[6] by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked.  The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants.  We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of […]

Read more...

Posted by Massachusetts Legal Resources - April 19, 2016 at 4:56 pm

Categories: News   Tags: , , , , ,

Malloch v. Town of Hanover, et al. (Lawyers Weekly No. 10-163-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11713   KRISTIN MALLOCH  vs.  TOWN OF HANOVER & others.[1]       Suffolk.     January 5, 2015. – September 24, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.   Civil Service, Decision of Civil Service Commission, Eligibility list, Judicial review, Police, Promotion.  Police, Promotional examination.  Administrative Law, Agency’s interpretation of statute, Decision, Findings, Judicial review, Agency’s authority, Substantial evidence.  Practice, Civil, Review respecting civil service.       Civil action commenced in the Superior Court Department on March 28, 2013.   The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Frank J. McGee for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth. Galen Gilbert, for Carla Sullivan, amicus curiae, submitted a brief.     DUFFLY, J.  The town of Hanover (town) had two open positions for sergeants in its police department.  Although the plaintiff, Kristin Malloch, had scored highest on the civil service examination for promotion to a police sergeant position, the town decided to bypass Malloch and promote the candidates who had scored second and third highest on the sergeants’ examination.  Malloch appealed the town’s decision to the Civil Service Commission (commission), pursuant to G. L. c. 31, § 2 (b), arguing that, where an appointing authority promotes a candidate other than the candidate ranked highest on the certification list; the promotion will not become effective until the appointing authority’s written statement of reasons for the bypass “has been received by the administrator,” G. L. c. 31, § 27;, that “received” in this context means substantially reviewed and approved by the administrator; and that the administrator[2] may not, in accordance with G. L. c. 31, § 5 (l), delegate that function to the town’s appointing authority.  Malloch argued also that, even if the delegation were permissible, her bypass was not supported by evidence of a reasonable justification for the bypass.  The commission denied her appeal, and Malloch sought review in the Superior Court pursuant to G. L. c. 30A, § 14. Agreeing with Malloch that the statutory requirement that the written statement of bypass reasons must be “received by” the administrator means “reviewed and approved by” the administrator, a Superior Court judge concluded that it was not “practicable,” see G. L. c. 31, § 5 (l), for the […]

Read more...

Posted by Massachusetts Legal Resources - September 24, 2015 at 5:56 pm

Categories: News   Tags: , , , , ,

Sherman v. Town of Randolph, et al. (Lawyers Weekly No. 10-164-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11711   SCOTT SHERMAN  vs.  TOWN OF RANDOLPH & others.[1]       Suffolk.     January 5, 2015. – September 24, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Civil Service, Decision of Civil Service Commission, Eligibility list, Findings by commission, Judicial review, Police, Promotion.  Police, Promotional examination.  Administrative Law, Decision, Findings, Judicial review.  Practice, Civil, Review respecting civil service.       Civil action commenced in the Superior Court Department on May 18, 2012.   The case was heard by Heidi E. Brieger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by her.   The Supreme Judicial Court granted an application for direct appellate review.     Frank J. McGee for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth. John Foskett for town of Randolph.     DUFFLY, J.  The town of Randolph (town) decided to bypass the plaintiff, Scott Sherman, and appoint three candidates with lower scores on the police sergeant’s examination to its three open police sergeant positions.  Sherman appealed, and, after an evidentiary hearing, a Division of Administrative Law Appeals (DALA) magistrate recommended that Sherman’s appeal be dismissed.  The Civil Service Commission (commission) adopted the magistrate’s findings and recommendation, and dismissed the appeal, concluding that there was “independent and reasonable justification” to bypass Sherman, although noting serious flaws in the town’s interview process.  Sherman sought review of the commission’s decision in the Superior Court.  A Superior Court judge denied Sherman’s motion for judgment on the pleadings and his motion for reconsideration, and judgment entered for the commission.  Sherman appealed, and we allowed his petition for direct appellate review. Sherman argues that his bypass was impermissible because the personnel administrator of the Commonwealth (administrator)[2] improperly delegated to the appointing authority its duty under G. L. c. 31, § 27, to “receive” statements of reasons for bypasses.  He argues also that the town’s decision to bypass him in favor of candidates with lower scores on the civil service examination was not supported by a reasonable justification because the commission determined that the town’s interview process was “fatally flawed.”  In Malloch v. Hanover, 472 Mass.     (2015), we determined that the administrator permissibly may delegate to an appointing authority its duty under G. L. c. 31, § 27, […]

Read more...

Posted by Massachusetts Legal Resources - September 24, 2015 at 2:22 pm

Categories: News   Tags: , , , , ,

Next Page »