Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2

An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0

From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.

High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0

Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.

Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894
Smithsonian NMAAHC

The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use

The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ᾧ ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

Observers comment on Assange extradition hearings

My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.

"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about"
Prof. Rick Peltz-Steele @UMassLaw pic.twitter.com/9ONm9RDxVz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7
2/ pic.twitter.com/umiT9FAvQz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

State high court simplifies anti-SLAPP, draws picture

Notwithstanding the merits of anti-SLAPP statutes—I've opined plenty, including a catalog of problems—the Supreme Judicial Court of Massachusetts (SJC) in recent years made a mess of the state anti-SLAPP law by creating an arcane procedure that befuddled and frustrated the lower courts.

Yesterday the SJC admitted the arcanity and clarified the procedure. I'll note that one thing I like about the Mass. law is that it has a focused trigger in petitioning activity; that's not changing. It'll take me some time to work through the 50 pages of the opinion. But to my delight, there's a picture! The SJC kindly created a flow chart:

The case is Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. (Mass. Feb. 29, 2024). The court then helpfully applied the new framework in another case the same day, Columbia Plaza Associates v. Northeastern University (Mass. Feb. 29, 2023). (Temporary posting of new opinions.)

The court's unofficial top technocrat, Chief Justice Scott L. Kafker authored both opinions. The court affirmed in both cases, denying the anti-SLAPP motion to strike in Bristol Asphalt and granting it in Columbia Plaza, so the lower courts waded their way to correct conclusions despite the mire.

Consultant panning contractor was not 'improper' interference with lucrative reno deal, court holds

Rawpixel CC0 1.0

An architect whom homeowners hired to review their bills in multimillion-dollar renovation did not tortiously interfere with the reno contract when he advised them to terminate and hire another contractor, the Massachusetts Appeals Court held yesterday.

The devil in the details here is the element "improper" in the tort of interference. The same element, or the same concept, lives at the heart of many a business tort, and it's a difficult line to find. Indeed, the Appeals Court wrote that "improper" "has proved difficult to capture in a universal standard."

Interference with contract in Massachusetts law requires a contract or prospective business relation, knowing inducement to break the contract, interference by "improper motive or means," and harm to the plaintiff as a proximate result. Here, the architect told the homeowners they were being overbilled and urged them to terminate the renovation contract and hire a contractor the architect recommended. They did, and the terminated contractor sued the architect for interference with contract.

The fact pattern is common for generating interference claims, as the very job of the defendant is, in a sense, interference, that is, to run interference between consulting client and its contractor. Only "improper" was in dispute, and the plaintiff-contractor could not show evidence that measured up.

The plaintiff disputed the veracity and quality of the defendant's consultation and advice. But worst case, the court reasoned, the plaintiff might persuade a jury to find negligence or gross negligence. That can't be the basis of an interference claim, because then the interference tort would make actionable every negligent infliction of economic loss. 

The negligence tort usually requires a physical infliction of loss or harm. Business torts are exceptional in this regard, but they are predicated on a strong duty relationship, such as contract or fiduciary obligation. The plaintiff-architect and defendant-contractor here were not in privity of contract.

The court looked to an earlier case in which the Massachusetts Supreme Judicial Court had allowed interference predicated on deceit or intentional misrepresentation. That can suffice to support interference. But there was no evidence here of deceit. So the court pondered what improper means short of that standard.

The court leaned heavily on the Second Restatement of Torts, which suggested, besides deceit, threats, defamation, or other conduct "innately wrongful, [and] predatory in character." Inversely, the Second Restatement advises that no interference liability can arise from "truthful information" or "honest advice within the scope of a request for advice."

The latter standard fit, the court opined. And the Restatement comments elaborated, "[N]o more than good faith is required," regardless of competence. "The rule as to honest advice applies to protect the public and private interests in freedom of communication and friendly intercourse," affording latitude especially to "the lawyer, the doctor, the clergyman, the banker, the investment, marriage or other counselor, and the efficiency expert."

The court affirmed the superior court award of summary judgment to the defendant.

There's unfortunately one point of confusion reiterated in the court's opinion. The court correctly pointed to a line of Massachusetts cases approving of "actual malice" as supporting interference claims in the context of employment, when a disgruntled terminated worker claims interference against a supervisor or corporate officer for interfering with the worker's employment contract. In this context, the courts defined "actual malice" as "spiteful, malignant purpose unrelated to a legitimate corporate interest."

Common law malice

That's not what "actual malice" means, at least in the civil context. "Actual malice" generally is a stand-in for reckless indifference and is distinguishable from "common law malice," which represents spite, ill will, or hatred. It's been observed many times that "actual malice" is unfortunately named, and it would be better had there been a different term from the start. Common law malice can be evidence of actual malice, but certainly is not required. The difference can be confusing to jurors.

The Massachusetts precedents on interference in the employment context seem to have misused the term "actual malice" to refer to common law malice. OK, I guess, as long as we all know that malevolence is the one that can evidences tortious interference.

I have some doubts, by the way, about the correctness of the Massachusetts cases that apply the interference tort in fact patterns involving a fellow worker as defendant. A basic rule of interference is that one cannot be said to have interfered tortiously with a contract to which one is a party. If the defendant was clearly acting within the scope of employment, that is, as an agent of the employer, then I don't see that a tortious interference claim can arise, and there's no need to analyze impropriety. But then, I guess, the threshold requirement overlaps with the "unrelated to a corporate legitimate interest" piece of the impropriety test.

The case is Cutting Edge Homes, Inc. v. Mayer, No. 23-P-388 (Mass. App. Ct. Feb. 27, 2024) (temp. slip op. posted). Justice John C. Englander wrote the opinion of a unanimous panel that also comprised Justices Ditkoff and Walsh.

Parks group challenges soccer stadium under state constitutional right to environmental conservation

A Boston lawsuit pits parks against soccer, tying in knots fans of both such as me.

The Emerald Necklace Conservancy on February 20 sued the City of Boston and Boston Unity Soccer Partners to stop the redevelopment of White Stadium to host a women's professional soccer team. 

(UPDATE, Mar. 25: The Superior Court on March 22 denied injunction of the redevelopment project. E.g., WBUR.)

What's compelling about the case as a matter of urban redevelopment arises from the fact that a stadium is already there. The conservancy is not trying to get rid of it. Though there is tentative objection to the footprint of the redevelopment project in Franklin Park, the complaint focuses on the repurposing of the stadium for the benefit of private investors, to the exclusion of public use.

Everyone agrees that White Stadium is in sore need of refurbishment. The 1945 construction has a storied history going back to Black Panther rallies in the 1960s. Its present state of deterioration for age is evident. Naturally, local government is keen to link arms with private investment. Boston Unity makes a heckuva pitch (pun intended) in a town willing and able to support an entrant in the expanding National Women's Soccer League.

Site plan in complaint exhibit.

However, the project, which Boston Unity characterizes as "a first-of-its-kind public/private partnership," will exclude the public from the redeveloped area on game days. That includes the expulsion of local high school times for their 10 to 12 games per year, according to the Dorchester Reporter. At the same time, city officials say other stadium uses, such as a track, might see more public use. 

The conservancy and residents say that the project has been moving too fast for them to study and comment, and that the headlong rush violates article 97 of the Massachusetts Constitution.

That's another eyebrow-raising point in the story. Article 97 of the Massachusetts Constitution is worth a read:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The general court shall have the power to enact legislation necessary or expedient to protect such rights.

In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

Voters approved Article 97 in 1972. That's the same year as the federal Clean Water Act, and about halfway in between the Clean Air Act and Love Canal.

The "right to a clean environment" is a hallmark of contemporary human rights discussion, sometimes grouped in with "third generation" human rights. In this sense, notionally, Massachusetts was ahead of its time.

But like statutory expressions of environmentalism, Article 97 was not understood to ground an affirmative right, rather a negative right to prevent government from repurposing conserved land without legislative approval. The Supreme Judicial Court (SJC) entertained the constraint of Article 97 in cases in 2005 and 2013, but didn't find that the local governments in those cases had dedicated land to public purposes. The SJC did constrain local government in a 2017 case. 

The 2013 and 2017 cases might prove instructive in the White Stadium matter if the case progresses. In Mahajan v. Department of Environmental Protection (Mass. 2013), the court distinguished land taken for "conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources," which triggers Article 97, from land taken urban renewal, that is, "for the purpose of eliminating decadent, substandard or blighted open conditions." In that case, the Boston Redevelopment Authority was able to commit a part of Long Wharf in Boston Harbor to a private redevelopment project without legislative approval under Article 97.

In Smith v. Westfield (Mass. 2016), the court decided that the City of Westfield had dedicated a parcel of land, 5.3 acres comprising a playground and two little-league baseball fields, to serve as a park, so was constrained by Article 97 before the city could build a school there.

In Smith, the court opined that Article 97 would attach only "there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park." The court also acknowledged that the analysis fact intensive.

On the face of it, Smith looks like the better fit with Emerald Necklace. The land is clearly dedicated to park use and has been used as a park. The baseball fields and playground in Smith show that a recreational use can include a structure, such as the stadium.

At the same time, there's a viable counterargument in the re- of the White Stadium redevelopment. The city will argue, I expect, that it's not changing the purpose of the land, i.e., its dedication to recreation. A stadium is and will remain. The city is just improving the land to do recreation better.

The problem then boils down to that "first-of-its-kind public/private partnership": whether the private end of the partnership means that the land is being "otherwise disposed of" within the meaning of Article 97.

I've written about transparency and accountability in foreign development specifically amid the challenges of privatization and quasi-privatization. So it's fascinating, if it shouldn't be surprising, to see this problem arise in my own backyard. I wonder as well whether there ever might be a future for Article 97's purported "right to clean air and water" that amounts to more than a procedural hurdle in property development.

See more about Boston's remarkable 1,100-acre Emerald Necklace park system, designed by architect Frederick Law Olmsted, with Will Lange on PBS in 2014.

The case is Emerald Necklace Conservancy, Inc. v. City of Boston, No. 2484CV00477 (filed as 24-0477) (Mass. Super. Ct. filed Feb. 20, 2024). Emerald Necklace asked for a temporary injunction. Hat tip @ Madeline Lyskawa, Law360 (subscription).

Assange Defense Boston rallies at State House

The Boston Committee of Assange Defense rallied today at the Massachusetts State House.

At the rally today, I spoke about my experience with freedom-of-information law and read parts of a letter from U.S. law professors to U.S. Attorney General Merrick Garland. The letter asks the U.S. Department of Justice to drop Espionage Act charges against Assange and abandon the request for his extradition from the UK. 

Freedom of the Press Foundation has more on the letter. My comments were based on, and the text of the letter can be found in, my February 16, 2024, post, "Me and Julian Assange."

The High Court in London heard arguments today that Assange should have a right to appeal to the courts over his extradition, which the British government has approved. Read more about today's proceeding from Jill Lawless at AP News. The case continues in the High Court tomorrow.  Protestors crowded on the street outside the London courthouse today.

Photos and videos by RJ Peltz-Steele CC BY-NC-SA 4.0.

The sun shines at the Massachusetts State House.

The group sets up.

The crowd grows.

Committee organizer Susan McLucas introduces the cause.

Victor Wallace speaks.

A letter in support is read from U.S. Rep. Jim McGovern (D-Mass.).

A speaker decries government secrecy. The s***-word might have been used.

A woman speaks to the intolerable cruelty of U.S. federal prisons.

Committee organizer Paula Iasella says that Assange is hardly alone in aggressive national security accountability, citing John Young's Cryptome.

Hart, legislative counsel, talks public service career

Attorney Kevin Hart speaks to students today, Feb. 20, at UMass Law School about his career path in public service in Massachusetts state government, and earlier, in the Town of Bridgewater.

Hart is now chief counsel for the Joint Committee on Transportation in the Massachusetts legislature. He graduated from UMass Law in 2015. He came to UMass Law with a BA from Stonehill College and an MPA from the Sawyer Business School at Suffolk University.

Hart was the second teaching assistant I hired at UMass Law in Torts I and Torts II. (The first is doing well too.) He wrote a characteristically excellent research paper on the modern inutility of the historical negligent-delivery-of-telecommunication cause of action.

I'm not saying that my teaching causes meteoric career success. I'm just observing correlation.

Mass. high court nominee brings tort law experience

Justice Wolohojian
Mass.gov

Massachusetts Governor Maura Healey Wednesday announced the nomination of Massachusetts Appeals Court Justice Gabrielle R. Wolohojian to the Supreme Judicial Court. 

UPDATE, Feb. 29: The justice was confirmed

Justice Wolohojian practiced with Big Law on "product liability cases, consumer class actions, false advertising claims, and other business and consumer transactions," according to her official bio. Governor Deval Patrick appointed her to the Appeals Court in 2008. She has a Ph.D. from Oxford and a J.D. from Columbia.

For Law360 (subscription), Julie Manganis reported as well:

Outside her legal work, Justice Wolohojian is ... a violinist who has performed with the Boston Civic Symphony for 35 years, and has served as president of the organization's board. She also serves as an overseer of a radio program called "From the Top," which features children performing classical music.

Justice Wolohojian has authored several Appeals Court opinions that I've featured here on The Savory Tort, all sound.

• Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number (Sept. 2, 2022)
• Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment (July 20, 2022)
• Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments (Nov. 7, 2019)
• Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules (Sept. 16, 2019)

There's been a fuss in the media over Justice Wolohojian once having been in a long-term relationship with the Governor. The relationship ended before the Governor was elected, and she is now with another partner. Governor Healey said nothing about the issue in the nomination announcement. Law360 and other media have reported that the bar and executive officials are "shrug[ging] off" the personal relationship as immaterial. I concur; Justice Wolohojian's bona fides are unimpeachable.

UPDATE, Feb. 29: 

Yesterday the justice was confirmed 6-1 by the Governor's Council. For Law360, Julie Manganis reported of the dissenting vote:

The lone member who voted against Justice Wolohojian, District 8 Councilor Tara Jacobs, said she still has "some concerns around the recusal situation," but said she was also troubled by the selection process, calling it "insular."

From an inclusion standpoint, it just felt very exclusionary in that you couldn't have a more insider nominee," said Jacobs, "and so I have concerns about that in terms of how it might dissuade people from applying who are not inside a network like that."

Jacobs also said she had another concern after meeting with Justice Wolohojian.

"My perception is she has breathed rarefied air from the time she was young, [in] her education and through her career, and my perception from that is she intellectualizes the marginalized community's struggle in a way that feels very much like a bubble of privilege and detached from the struggle itself, so I do have a concern whether justice is best represented through that lens," Jacobs said.

Mass. High Court Nominee Who Dated Gov. Confirmed 6-1 (Feb. 28, 2024) (subscription).

Consumer-unfriendly designs resist right to repair

The nation is in the grip of a battle over right-to-repair laws. I'm a fan.

Right to repair ensures consumers' ability to repair, or to have repaired, the products they own without having to go back to the original manufacturer. Corporations in the tech era have sought to lock down their products and the business of servicing them, both to profit from service and to protect intellectual property. The behavior is anti-competitive and monopolistic, which is to say, it's how things work in America.

Consumers can be kept out of products, and independent repairers can be driven out of business, by legal and design mechanisms. Legally, a consumer might be barred from repairing a product by contractual clauses in product sale and warranty or by clickwrap terms and conditions of software. Right to repair laws are effective to fight back against these limitations.

Product design can exclude consumers from repair access, too, and this is the more challenging problem. Makers always claim that design limitations on repair are incidental or required for the integrity of the product. A car's onboard computer might be accessible only with a proprietary interface, a measure the carmakers says is necessary to protect the consumer from hacking. A cell phone might break when it's not pried opened properly, an inconvenience the maker says is necessary to pack safely the features consumers want into so small a space.

More than half the states had right to repair on the legislative docket in 2023, the National Conference of State Legislatures counted, with new enactments in California, Colorado, New York, and Minnesota. NPR reported recently on the latest from Michigan. The White House and Europe are on board, and Apple seems to have gauged the winds and decided to play nice. 

Apple's strategy is not the norm. Despite the popularity of right to repair and its obvious essentiality for a free market, right to repair has been elusive. Carmakers have been especially resistant.

Massachusetts adopted right to repair by voter initiative in 2012. The legislature came on board the next year. Carmakers resisted at every turn. Voters were compelled in 2020, despite deceptive industry political tactics, to approve another initiative that expressly expanded the law to apply to automobile telematics, that is, cars' onboard diagnostic data. 

Carmakers continue to resist, tying the law up in litigation, with claims such as federal preemption (this blog in July 2022). Federal regulators initially sided with carmakers, but in recent months, pressured and shamed by Massachusetts senators and the White House, have grown indecisive and tried to plot a middle course. The problem is exacerbated with electric vehicles, as carmakers resist right to repair by leveraging the Administration's wish to transition inventory.

In carmakers' latest fit of passive-aggressive resistance to right to repair, they're refusing to include features such as internet connectivity in states such as Massachusetts. If we insist that carmakers share, then they'll pack up their toys and go home.

A car cabin air filter usually is easily accessible behind the glove box.
Not on the 2023 Nissan Versa. (Generic image.)
Matt Woolner via Flickr CC BY-NC-SA 2.0.

I believe I saw for myself last weekend evidence of carmaker resistance-by-design to right to repair. 

My family acquired a 2023 Nissan Versa last year. The dealer purchase and the car itself have been nothing but a series of frustrations and disappointments. The seller was deceptive in pricing and failed to provide standard equipment; I might write about those issues another time. I am shopping for counsel now to bring a design-defect claim against Nissan: also a story for another time. My advice in short: don't buy a Nissan.

My latest micro-frustration was over the cabin air filter. A passenger car's cabin air filter is almost invariably located behind the glove box and easily changeable by the owner. No longer in the 2023 Versa.

Even removal of the glove box first requires the extraction of six screws; the box's latch assembly comes out too, along with two of the screws. It's not easy to replace later. 

Behind the glove box there is ample room for a cabin air filter; it's not there. Rather, a lower side panel in the passenger compartment also must then be removed. The plastic pins for the side panel are not made for repeated removal. So repeated access to the filter seems to ensure that the interior plastic walls will need replacement, too, in time.

Finally, one can reach the filter, though removing it from a too-small access window means squeezing it, thereby diminishing the integrity of the new filter one puts in.

I can imagine no good reason for the relocation of the filter than to make it more difficult for consumers to replace it themselves. And for those who don't and do take the car to a Nissan service provider, the now more involved operation, especially removal and replacement of the glove box, will increase the labor cost. Win-win for Nissan.

That's just the tip of the iceberg. Makers are doubling down on consumer-resistant designs.

I want to replace the faulty charging port on my more-than-two-year-old Google Pixel 3 cell phone. One would think it an easy and foreseeably necessary operation to replace an essential external port with pins and contacts that bend, break, and degrade over time, faster than the electronics they serve. 

But I've read online that it's nearly impossible for an amateur such as me to pry the phone open, to access the port's plug-in, without shattering an interior glass panel. Why? To sell me a Pixel 8, I suspect.

Resistance to right to repair through deliberate design will be much harder for consumers to fight than mere terms and conditions or even proprietary codes. Physical design limitations are difficult to detect and disallow. Industry capture of regulators doesn't help.

Right to repair might have won the battle of public opinion, but it's far from becoming consumers' reality.