Motion to Dismiss — Hub Theatres, Inc. v. Massachusetts Port Authority

gn The

Supreme Court Of The Anited States

Octoser TERM, 1976

No. 76-281

HUB THEATRES, INC., ASPEN REALTY, INC.,

SUFFOLK CONCESSIONS, INC.,

Appellants

V.

MASSACHUSETTS PORT AUTHORITY,

Appellee

On Appeal from the Supreme Judicial

Court of Massachusetts

MOTION TO DISMISS

Georce C. Caner, JR.

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

PRESS OF GEORGE H. DEAN CO., BOSTON

In The

Supreme Court Of The Anited States

Ocroser Term, 1976

No. 76-281

HUB THEATRES, INC., ASPEN REALTY, INC.,

SUFFOLK CONCESSIONS, INC.,

Appellants

v.

MASSACHUSETTS PORT AUTHORITY,

Appellee

On Appeal from the Supreme Judicial

Court of Massachusetts

MOTION TO DISMISS

The appellee Massachusetts Port Authority moves to

dismiss the appeal on the grounds that the Court lacks

jurisdiction under 28 U.S.C. § 1257(2), the statute invoked

by the appellants (Jur. St. 2), that the appeal does not

present a substantial federal question, that the purported

federal question presented was not timely or properly

raised, that the judgment | ‘ow rests on an adequate non-

federal basis, and that the appeal does not comply with the

rules of this Court, particularly Rule 15(1)(d).

The Supreme Judicial Court of Massachusetts affirmed

the dismissal of the action on the pleadings by the Massa-

2

chusetts Superior Court. The plaintiffs had commenced an

action in tort against the Massachusetts Port Authority,

created by an Enabling Act (Chapter 465 of the Massachu-

setts Acts of 1956) which directed it, as successor to the

state, to maintain and operate Logan Airport, on the ground

that flights over the plaintiffs’ theatre were the responsi-

bility of the Authority, constituted a nuisance,’ and entitled

the plaintiffs to recover three million dollars from the de-

fendant. The Authority demurred to the writ and declara-

tion and set up the bar of its Enabling Act. R. 4

The appellants say that “[t]he issue in the case from

the very outset has been whether or not the state has the

power to legislatively sanction . . . a substantial nuisance

... Without the payment of just compensation”. Jur. St. 5.

The truth of the matter is that they never pitched their

damage claim on the Fourteenth Amendment or any other

provision of federal law until such a position became a

prerequisite of further judicial review. The plaintiffs’ dec-

laration (R.1-3) does not rely upon any constitutional pro-

vision. The decision of the Superior Court dismissing the

1 The opening sentences in the plaintiffs’ Supreme Judicial Court

(SJC) brief were as follows:

“It may be properly inferred that the facts set forth in the

Plaintiffs’ Declaration wherein it is alleged that jet aircraft

operating below safe navigable air space over an outdoor theatre,

emitting noxious fumes and ear-splitting noise with attendant

tremendous vibrations and other undesirable operations, would

totally interfere with the exhibition and enjoyment of motion

pictures by patrons of said outdoor theatre. Such conduct if

proven by the Appellants, would certainly warrant the finding of

a nuisance.”

The appellee has requested that the clerk of the Supreme Judicial

Court forward to this Court the record of the proceedings below

and the briefs of the parties. Citations are to those materials.

eo

3

action on the “clear principle of Massachusetts law that

what the Legislature has authorized or directed cannot be a

nuisance or trespass” (R.7) does not refer to any issue of

whether the federal constitution confers a right to compen-

sation for an alleged “nuisance” of this kind, not amounting

to a taking. The appellants’ SJC briefs made no such con-

tention, leading the Authority in its brief to observe without

contradiction that “(t]he constitutionality of the compre-

hensive legislation embodying this judgment [that the air-

port is not a public nuisance but a public benefit] has at all

times been affirmed by our courts and is not challenged in

this suit.” Def. Br. 7-8; compare the plaintiffs’ reply brief

which takes no exception to this statement. The opinion of

the Supreme Judicial Court recognizes no such issue. See

Jur. St. 9-13. The plaintiffs’ Petition for Rehearing (letter

to Hennessey, C. J. of April 28, 1976) makes no claim that

the Enabling Act as construed violates the Fourteenth

Amendment, but rather maintains that the declaration was

sufficient as a matter of state law falling within the excep-

tion mentioned in the SJC opinion for unreasonable and

unnecessary activities. Coincidentally, the appellants have

discovered their Fourteenth Amendment argument just at

the point when it is the only argument statutorily review-

able.

The passage in the Authority’s SJC brief quoted in the

appellants’ jurisdictional statement argues the point that

even if a nuisance claim might be recognized by state law

for permitting noisy overflights, the area of airplane noise

had been occupied by federal law, which would preclude a

state claim. Def. SJC Br. 14-18. The Supreme Judicial

Court never reached this argument. Instead, it rested its

decision on the “adequate non-federal basis” that no cause

of action for nuisance existed under state law.

4

The insubstantiality of the contention now made that

“(b]lanket immunity such as is urged by the appellee would

give the Commonwealth the untrammeled ability to effec-

tively foreclose the appellants’ right to compensatory dam-

ages pursuant to the Fourteenth Amendment” (Jur. St. 6)

is shown by another circumstance. The Superior Court

noted the plaintiffs’ right to recover damages for an activity

“so extreme that it amounts to a taking” and the pendency

of the plaintiffs’ eminent domain petition for assessment

of damages then pending in that court. R.9, 8. The plain-

tiffs referred to this proceeding in their affidavit filed in

the Supreme Judicial Court on behalf of the appellants

dated September 30, 1975.2 The Supreme Judicial Court

agreed that the plaintiffs in a proper proceeding could try

out the issue of whether the activity complained of amounted

to a taking but noted that “we do not have that question

before us”. Jur. St. 13. Thus, there has never been any

question of “blanket” immunity here; it has always been

recognized that an interference so major as to amount to a

iaking is compensable in an eminent domain proceeding,

and the appellants have belatedly sought to take advantage

of this remedy.

The Fourteenth Amendment does not reach governmental

activities not amounting to a taking. See Transportation

Co. v. Chicago, 99 U.S. 635 (1878) ; Town of East Haven v.

Eastern Airlines, Inc., 331 F.Supp. 16, supplemented, 333

F.Supp. 338 (D. Conn. 1971), aff'd, 470 F.2d 148 (2d Cir.

1972). The appellants’ declaration did not allege a taking,

“The action previously instituted against the Appellee alleging

a constructive taking of the theatre property by the Appellee (Suf-

folk Superior No. 623529; which case is referred to on page 4 of the

lower court’s “Memorandum of Decision on Motion to Dismiss’’) is

still pending in the Superior Court.” Pl. SJC Aff. 1.

5

and its writ was in tort. While the Fourteenth Amendment

does underlie the appellants’ eminent domain position, it

is not brought into play by this action of tort. Compare

Crane v. Hahlo, 258 U.S. 142, 147 (1922); Mitchell v. W. T.

Grant Co., 416 U.S. 600, 610 (1974).

Finally, the absence of any legitimate argument for re-

view available to these appellants is underlined by their

resort to extra-record factual assertions which are quite

untrue. Conduct of this sort is a tacit admission that if

they were to confine themselves to the truth, they could not

prevail. This is a case decided on the pleadings . The Court

will not find any allegation that “[iJn the latter part of the

1950’s, and after the construction of the theatre, a new

runway was installed at the airport with a glide path di-

rectly over the theatre. The first aircraft to use the new

runway were prop jets....” Jur. St. 3-4; contrast R.1-3.

Instead, one finds that the actual allegation is:

“That the Defendant, Massachusetts Port Authority,

maintained and presently maintains its runways of vary-

ing lengths. Several of these runways were and are

aimed at and point directly to the said Suffolk Downs

Drive-in Theatre, and the glide paths to said runways are

directly over the theatre.” R.2 (Declaration, Count 1).

The plaintiffs’ allegation that the runways “were and are

aimed at” the theatre is basically truthful and is accepted

arguendo on demurrer. The assertion of a “new runway”

installed “after the construction of the theatre” not only

lacks foundation in the record, but is purely fictional. The

truth of the matter is that although there is indeed an air-

port runway (4R-22L) which is “aimed at and point[s]

directly to” the plaintiffs’ theatre, it was constructed in the

1940’s. From the time of its construction to date there has

been no change in its length or direction. The plaintiff-

6

appellants in 1955 deliberately located and built their open-

air theatre squarely in the approach path of this runway,

then Logan’s longest and principal runway. This was a year

before the creation of the Authority. The plaintiffs’ attempt

to avoid their share of responsibility for the overflights by

misstating the chronology of events is quite unconscionable.

For all of the above reasons, appellees’ motion to dismiss

should be granted.

Respectfully submitted,

George C. Caner, JR.

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorney for Appellee-Defendant

Massachusetts Port Authority

September 24, 1976