Our ‘inapposite’ Law Department
The loss Cambridge had in court last week, which means paying $3.7 million for the Vail Court land-taking near Central Square even as the payee sues to get the property back, is part of a pattern for our Law Department. Judges found the city’s arguments “inapposite,” meaning inappropriate – off topic.
It was just one reason the state Supreme Judicial Court found “the city’s argument unpersuasive,” as associate justice Scott L. Kafker wrote Feb. 17. There was also a 1971 precedent that had been “expressly overruled just three years later” cited in the case argued by John S. Leonard, a Boston eminent domain attorney working as outside counsel for the city’s Law Department.
But the department, which serves as counsel for Cambridge’s various government offices, departments and commissions, has a history of this kind of thing. Not all wind up in court. For instance, no one’s bothered to call the fire department on forbidding fire pits and the like in residents’ backyards because there’s “too much of a danger” of fire hazard, yet doing so by pointing inanely to a full 591-page section of state law dealing with air pollution. It would be a struggle for the city to argue its concern about air pollution in a courtroom after a program to help buy heat lamps for restaurants; and if the department were serious about citing a statute, it wouldn’t point people vaguely in the direction of an entire law library bookshelf.
If this sounds familiar, it’s because fire department officials wound up admitting to state judges in April 2019 that it had been prosecuting a North Cambridge bar owner on another improperly cited law. On the advice of the Law Department, city officials pursued a case about candles by using a law about portable cooking equipment.
Recently, the Law Department has been taking general questions to other city departments and turning them without permission into public records requests, which it handles. This is a too-clever-for-its-own-good way to avoid answering questions – sometimes because there are no “public records” that address a question that a public employee could simply take a few seconds to answer directly. The method is to employ a custom abracadabra in the phrase “The city is treating your inquiry as a public records request pursuant to G.L. c. 66, § 10.” That state law covers how the city is supposed to supply public records, though, and includes nothing that says the city can impersonate someone to make the request for them. Especially since the law allows penalties for requests a government subjectively considers frivolous or harassing, impersonating people to make records requests in their name seems like a bad idea for attorneys in that same government. Just because someone rides the bus occasionally, does it sound like a good idea for the MBTA to pretend to be them and apply for a drivers license without permission?
The fear is that these inapposite applications of the law – whether in a land taking with $3.7 million on the table, in a memo about fire pits, a persecution around candles or the impersonation of private citizens – just scratch the surface. How many more of these imprecise citations lurk in current, past or future case law? Is this level of inapposite thinking typical for a Law Department, or is Cambridge unique in deserving a higher, more secure standard? If the City Council gets its own legal representation or oversight of the city solicitor and staff through a charter change, these are questions it should ask.
The property is listed in the assessors data base with a value of $3.699 Million, mostly land value (since the building was in place at the time of assessment) Not surprised that a court found that value.
This article begs the question as to what criteria does our city use in hiring attorneys?
Mr. Russell, that wasn’t the question before the court. The law under which the City took the property more or less dictates the amount to be paid, and it’s based on assessed value. The issue was whether the City needed to pay it at the time of the taking, even though the former owner was contesting the validity of the taking itself, not the value of the property.
As the court acknowledged, this was a question of first impression, and there wasn’t an obvious answer. If the City paid and then lost the challenge to the taking, it would be entitled to the money back, but getting it wouldn’t be a sure thing because all or part of it could have been spent. On the other hand, someone losing their home (not the case here) could be left with no way to challenge that taking without the immediate payment of the compensation for the taking. The court ended up ruling that the more reasonable reading of the law favored the challenger, not the City.
You’re unlikely to find me ever defending the City’s Law Department, and citing an overruled case generally does not reflect well on someone. But, as more than sixty losses in election challenges by someone who could not acknowledge that he lost show, courts decide what’s before them, which is not always what we think the issue might be.
In this case, the issue was when the City had to pay, not how much. If the City ends up successfully defending its taking, I have no doubt the next issue will be how much (more) it has to pay in compensation for the taking. Then we’ll reap the fruit of the City’s relentless pursuit of development policies that keep land values escalating at ridiculous rates, to which it applies the occasional bandaids of a few subsidized homes here and there in the face of so much gentrification and displacement.
“I need to find out which board or officer has the powers and duties of a ‘board of health’ in Cambridge.” E-mail from me to Attorney Seah Levy, Cambridge Law (Mar. 5, 2021).
“Your public records request has been received by the City of Cambridge, and is being processed in accordance with Public Records Law. . . . Please note for your additional information: The Massachusetts Public Records Law does not require a governmental body . . . to answer questions.” E-mail from Levy to me (Mar. 5, 2021).
As you point out, Marc, the City’s “impersonating” someone to make an (apparently self-defeating) public-records request doesn’t seem like an appropriate or fair response to easy questions like this. Has the City been abridging our free-speech right _not_ to involuntarily submit such (prejudicially worded) requests? I’ll ask our State records supervisor, Rebecca Murray, to decide.