Friday, February 17, 2012

…And Justice For?

Ken O’Brien
Somewhat forgotten in the midst of the appalling antics of town government of late have been the developments in certain pending legal matters relating to the Southbridge landfill site assignment and the composition of the town’s Board of Health.
As regards the landfill site assignment, despite the premature crowing of devotees of the current regime, the decision initially rendered by the Massachusetts Supreme Court has been withdrawn.
In simple terms, the court initially ruled against the plaintiffs on three grounds:
1.      The plaintiff’s attorney was late in filing papers related to the case;
2.      The plaintiff’s lacked standing to bring the suit;
3.      The case failed on its merits.
Informed sources are now speculating that the reason for the withdrawal of the decision is related to the issue of the merits of the case. Without going into the technical details of the matter, if this is in fact the case, it is significant. It would indicate that the case warranted a ruling as to whether the landfill site assignment was valid.
Further, if this is the reason why the decision was withdrawn, then the other two bases for the court’s decision warrant review.
First, as regards the first item, the timeliness of filing, the Superior court judge exercised discretion in accepting the plaintiff’s attorney’s explanation for the delay and allowed the case to proceed. In reversing that discretionary ruling, the Supreme Court denied the appeal on a purely technical matter of discretion.
As regards the matter of standing, the Court decided that the plaintiffs had shown no specific harm. This would appear to fly in the face of the case of Marino v. the Town of Southbridge where the court upheld the right of citizens to file suit but where there was no demonstration of specific harm to those filing the suit.
Whatever the case, if the court removes the issue of the case being meritorious, then it would appear that there would be grounds for a new suit by an abutter who can show specific harm. If someone so situated and so disposed took this action then it would ultimately boil down to a question of the money to pursue the matter, that is, “What is the cost of justice?”
That question is also apparently what prevails in the second court case relating to the composition of the Southbridge Board of Health.
I am the lead plaintiff, along with twenty other Southbridge voters, challenging the composition of the Southbridge Board of Health. Specifically at issue is whether that Board should have three or five members in light of the current town charter.
Blatman, Bobrowski & Mead, LLC, (remember them?) is representing the town in this case.
From the very beginning the tactic that has been employed is one of delay and obfuscation. Most recently they have attempted to intimidate the plaintiffs by requiring them to be deposed on the matter. At a recent court hearing, the judge ruled that the defendant has the right to this. This is despite the fact that the issue is clearly a matter of law. However, the town is attempting, once again to restrict the right of citizens to legally challenge their actions by not merely contesting their right to do so, but to impose additional costs on them to pursue the case. The court will rule as to whether the plaintiffs (i.e. citizens) have to pay up front for at least a portion of the cost of such depositions. In the meantime, the town is using our tax dollars to pursue the prolonging of this case.
My compatriots in the filing of this case are being confronted with additional costs to pursue this matter while you are being required to pay out of your tax dollars for the delaying tactics of the town attorney backed by the town manager. The motivation is clear. They are attempting to keep this matter in the courts until their cravenly crafted charter amendments , including a change to the Board of Health membership, are adopted by the sheeple at the next town election.
These delays are designed to prevent the court from deciding what is clearly a matter of law, as pointed out in the plaintiff’s latest brief to the court, while intimidating us, imposing additional costs upon us and spending your tax dollars to quash the right of citizens to challenge unjust actions by their government.

2 comments:

  1. Well done Ken.

    It is also interesting to examine the former case brought against the landfill contract by our current town attorney, Robert Caprera, his wife Julie Caprera, et. al.:

    http://masslawyersweekly.com/fulltext-opinions/1990/01/01/hapgood-et-al-v-town-of-southbridge-et-al/

    Even a cursory reading of the decision in this earlier dismissal, demonstrates the inconsistencies of the Supreme Court's threshold regarding standing for ten citizens groups.

    It also emphasizes the unabashed hypocrisy and weak moral character in men such as Mr. Caprera.

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  2. All too often in lawsuits brought against the town, the plantiff gets beat down by the town because in the end, the town has the resouces (read:money) and this unlimited capital makes it harder for ayone to beat them. People do NOT pay attention thus there is no outrage. Keep up this fight Ken as you have them on the ropes, and Clark is VERY worried about thia actually seeing the light of day,as are his cronies on the board.

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