Amicus Brief — City of Boston v. Anderson

int. |

*.

In the DEC 22 1973

tee lie

Supreme Court of the United States.

OcroBer TERM, 1978.

No. 78-649.

CITY OF BOSTON, KEVIN H. WHITE,

PATRICK F. MCDONOUGH, FREDERICK C. LANGONE,

ALBERT L. O’NEIL, CHRISTOPHER A. IANNELLA,

JAMES MICHAEL CONNOLLY, JAMES V. YOUNG,

JAMES HYDE, anp JOHN WEIS,

APPELLANTS,

v

RICHARD L. ANDERSON, GEORGE M. BURKE,

DONALD G. COLONY, ROBERT L. HUGHES, JR.,

ANDREW A. HUNTER, ARNOLD LONDON,

FRANK REMICK, EDWARD N. WADSWORTH,

RICHARD WAIT, THOMAS R. B. WARDELL, ano

WILLIAM M. YATES,

APPELLEES.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Motion for Leave to File and Brief of the Massachusetts

Mayors’ Association as Amicus Curiae in Support of

Appellants’ Jurisdictional Statement.

H THEODORE COHEN,

TyLer & REYNOLDs,

One Boston Place,

Boston, Massachusetts 02108.

(617) 523-6550

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

amnttse

In the

Supreme Court of the United States.

OcroBer TERM, 1978.

No. 78-649.

CITY OF BOSTON, KEVIN H. WHITE,

PATRICK F. MCDONOUGH, FREDERICK C. LANGONE,

ALBERT L. O’NEIL, CHRISTOPHER A. IANNELLA,

JAMES MICHAEL CONNOLLY, JAMES V. YOUNG,

JAMES HYDE, anp JOHN WEIS,

APPELLANTS,

vo.

RICHARD L. ANDERSON, GEORGE M. BURKE,

DONALD G. COLONY, ROBERT L. HUGHES, JR.,

ANDREW A. HUNTER, ARNOLD LONDON,

FRANK REMICK, EDWARD N. WADSWORTH,

RICHARD WAIT, THOMAS R. B. WARDELL, anv

WILLIAM M. YATES,

APPELLEES.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Motion for Leave to File Amicus Curiae Brief in Support

of Appellants’ Jurisdictional Statement.

Pursuant to Rule 42, the Massachusetts Mayors’ Association,

Incorporated (the “Mayors’ Association”), a voluntary, non-

profit association of Massachusetts cities, moves for leave to

2

file an Amicus Curiae brief in support of Appellants’ Jurisdic-

tional Statement. The written consents of all parties to the fil-

ing of the Amicus Curiae brief have been obtained and have

been filed with this Court.

The Mayors’ Association had intended to submit an Amicus

Curiae brief substantially prior to the consideration of the

Jurisdictional Statement (J.S. 32 n.31), but decided to refrain

from such a submittal after the stay of the Supreme Judicial

Court’s decision was granted in this Court on October 20,

1978, by Mr. Justice Brennan as Circuit Justice. The deter-

mination not to submit a brief was reaffirmed after this

Court’s November 6, 1978, denial of Appellees’ motion to

vacate the stay. However, the Court’s intervening silence

with regard to noting probable jurisdiction of this appeal has

left the Mayors’ Association apprehensive that probable

jurisdiction might not be noted. The Mayors’ Association

believes that this would be a mistake, since municipalities, the

Mayors’ Association and all other publicly funded entities in

Massachusetts continue to be subiect to a prior restraint on

their right to free expression by the Supreme Judicial Court’s

decision that public funds may not be appropriated and ex-

pended for referendum advocacy purposes. Therefore, the

Mayors’ Association believes that this Court should be made

aware of the Mayors’ Association’s continuing interest and

concern on this matter, and it respectfully moves that it be

granted leave to file an Amicus Curiae brief at this time.

Respectfully submitted,

H THEODORE COHEN,

TYLER & REYNOLDS,

One Boston Place,

Boston, Massachusetts 02108.

(617) 523-6550

Dated: December 22, 1978.

Table of Contents.

I. Statement of continuing interest

A. Interest of the Mayors’ Association

B. Mootness

II. The questions presented are substantial

III. Conclusion

Table of Authorities Cited.

CASEs.

Dunn v. Blumstein, 405 U.S. 330 (1972)

First Nat'l Bank v. Bellotti, ___ U.S. ___, 98 S. Ct.

1407 (1978)

Holt Civic Club v. City of Tuscaloosa, 47 U.S.L.W.

4008 (U.S. Sup. Ct., November 28, 1978)

Hunter v. Pittsburgh, 207 U.S. 161 (1907)

Moore v. Ogilvie, 394 U.S. 814 (1969)

Mountain States Legal Foundation v. Denver School

District No. 1, 47 U.S.L.W. 2338 (D. Col., Novem-

ber 28, 1978)

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

(1911)

Storer v. Brown, 415 U.S. 724 (1974)

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115

(1974)

Weinstein v. Bradford, 423 U.S. 147 (1975

1]

12

10

10

ii TABLE OF AUTHORITIES CITED.

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

First Amendment

Fourteenth Amendment

Mass. Gen. Laws ch. 40, § 53

Mass. Gen. Laws ch. 55

MISCELLANEOUS.

Supreme Court Rule 42

3, 4n

3

9

2, 3n, 4, 8, 11

in the

Supreme Court of the United States.

OcrosBer TERM, 1978.

No. 78-649.

CITY OF BOSTON, KEVIN H. WHITE,

PATRICK F. MCDONOUGH, FREDERICK C. LANGONE,

ALBERT L. O’NEIL, CHRISTOPHER A. IANNELLA,

JAMES MICHAEL CONNOLLY, JAMES V. YOUNG,

JAMES HYDE, anv JOHN WEIS,

APPELLANTS,

v.

RICHARD L. ANDERSON, GEORGE M. BURKE,

DONALD G. COLONY, ROBERT L. HUGHES, JR.,

ANDREW A. HUNTER, ARNOLD LONDUN,

FRANK REMICK, EDWARD N. WADSWORTH,

RICHARD WAIT, THOMAS R. B. WARDELL, anv

WILLIAM M. YATES,

APPELLEES.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Brief of the Massachusetts Mayors’ Association

as Amicus Curiae in Support of

Appellants’ Jurisdictional Statement.

Pursuant to Rule 42, the Massachusetts Mayors’ Association

moves to file this brief as Amicus Curiae in support of the Ap-

pellants’ Jurisdictional Statement. The written consents of all

parties to file this brief have been obtained and have been filed

with this Court.

2

The Massachusetts Mayors’ Association supports the Ju-

risdictional Statement of the Appellants and adopts their re-

cital of the proceedings below, this Court’s jurisdiction, the

questions presented and the statement of the case.

I. Statement of Continuing Interest.

A. INTEREST OF THE Mayors’ ASSOCIATION.

The Massachusetts Mayors’ Association, Incorporated (the

“Mayors’ Association”), was incorporated in 1945 as a volun-

tary, non-profit association of Massachusetts cities for the pur-

poses, inter alia, of studying legislation and advancing and

supporting sound state and national government. The Mayors’

Association is non-sectarian and non-political in that it never

promotes or supports the candidacy of any particular person

for public office.

In Massachusetts there are thirty-nine cities and four towns

with city councils; those cities and towns are eligible to be

members of the Mayors’ Association. At present, there are

thirty-five members. Dues and assessments to the Mayors’ As-

sociation are paid by the member municipalities out of public

funds appropriated for that purpose from general tax rev-

enues.

The Mayors’ Association has an immediate, continuing and

compelling interest in this Court’s noting probable jurisdiction

of this appeal, since the Supreme Judicial Court’s construction

of Mass. Gen. Laws ch. 55 (“Chapter 55”)! has cast grave

'“[C]omprehensive legislation, enacted after the adoption of the Home

Rule Amendment, regulating election financing manifests an intention to bar

municipalities from engaging in the expenditure of funds to influence elec-

tion results. G.L. c. 55, as appearing in St. 1975, c. 151, § 1.” (J.S. 8a.)

3

doubt upon the Mayors’ Association’s ability as a publicly

funded entity, and the ability of its members as elected public

Officials, to continue engaging in publicly funded advocacy on

statewide referenda questions when such advocacy is deter-

mined by the Mayors’ Association or by its members to be in

the best interests of the public they represent.*

Because of its broad language and sweeping scope, the Su-

preme Judicial Court’s ban on statewide advocacy by the ex-

penditure of public funds by its “political subdivisions” (J.S.

17a) violates the First and Fourteenth Amendments to the

United States Constitution and abridges expression of the May-

ors’ Association and of other publicly funded entities (such as

the Massachusetts League of Cities and Towns, the Massachu-

setts Selectmen’s Association and the Massachusetts Municipal

Management Association)? that the First Amendment was

meant to protect.‘

*This case arose out of the City of Boston’s and Mayors’ Association's

desires to advocate passage of a proposed amendment to the Massachusetts

Constitution which would authorize the Massachusetts General Court to

“classify real property according to its use in no more than four classes and to

assess, rate and tax such property differently in the classes so established but

proportionately in the same class, and except that reasonable exemptions

may be granted.” This proposed amendment, known as the “Classification

Amendment,” would change the state constitutional requirement that all

real property be taxed at 100 per cent of fair cash value. On November 7,

1978, the Classification Amendment was overwhelmingly adopted by the

Massachusetts voters.

*Some of the other entities which are funded in whole or in part by “public

funds” (J.S. 18a), and which are therefore affected by Chapter 55’s ban in-

clude: Association of Town Finance Committees, Local Officials Human

Service Council, Inc., Massachusetts Association of Conservation Commis-

sior.s, Massachusetts Association of School Committees, Inc., Massachusetts

Federation of Planning Boards, Inc., Metropolitan Area Planning Council.

‘The Mayors’ Association has a vital interest in upholding its members’

First Amendment rights to expend public funds to advocate and inform their

4

The manner in which the Chapter 55 ban restricts the activ-

ities of the Mayors’ Association is illustrative of the restraints

which it presently imposes upon all publicly funded entities.

In furtherance of its goals, the Mayors’ Association has, since

its inception, not only proposed legislation to the Massachu-

setts General Court but also engaged in public lobbying efforts

with regard to its proposed legislation and with regard to other

pending matters when the Mayors’ Association believes that

doing so is in the best interests of its members and their constit-

uents and advances sound government. Legislative areas in

which the Mayors’ Association has been involved over the

years have included, among others, fiscal, structural and per-

sonnel matters.®

inhabitants on statewide referenda questions when such questions are related

to the form, function and interests of the municipality.

The Mayors’ Association also has a vital interest in upholding the First

Amendment rights of Massachusetts citizens to be advised on public issues

and to obtain information and arguments regarding referenda questions per-

tinent to the form, function and interests of their government regardless of

the source of such information, in the absence of any findings that free and

fair elections would be abused by such advocacy or that publicly funded ad-

vocacy would be monopolistic, domineering or calculated to perpetuate any

official in office.

‘The 1978 Mayors’ Association’s legislative program is representative of its

previous annual programs. Fiscal matters included: 1. Creation of a state/

local revenue sharing plan, 2. Prohibition of state mandated costs of local

government, 3. State assumption of post-secondary, vocational educational

costs and 4. Exemption of municipalities from diesel fuels tax.

Structural matters included: 1. Creation of a local government advisory

committee, 2. Fiscal home rule for counties, 3. Increasing management ca-

pacity of local government and 4. Municipal control over consortiums or

regional groupings.

Personnel matters included: 1. Management rights, 2. Exclusion of

supervisory personnel from collective bargaining, 3. Study of pension bene-

fit reform and 4. Study of civil service decentralization.

Other matters included: 1. Authorization for a municipality to provide

sewer services to subdivisions, 2. Opposition to preemption of local liquor

license cancellations and 3. Permanent state assumption of 50 per cent of

Massachusetts Bay Transportation Authority costs.

5

The Mayors’ Association currently maintains a joint legisla-

tive office with its kindred associations, the Massachusetts

Selectmen’s Association, the Massachusetts League of Cities

and Towns and the Association of Town Finance Committees,

in order to administer its legislative program.®

The Mayors’ Association’s activities with regard to this legis-

lative program include informing the voters about pending

legislation and encouraging the voters to become involved in

the legislative process. The Mayors’ Association also solicits

voter support for its legislative program and for its lobbying

activities.

In addition, the Mayors’ Association has, in the past, taken

positions on and taken action designed to influence the results

of referenda questions proposed to be submitted to the people

at statewide elections. In 1976, for example, the Mayors’ As-

sociation opposed a referendum question that would have au-

thorized a state take-over of private electric power production,

in light of the projected loss of municipal taxes paid by pri-

vately owned electric companies and the resulting diminution

of local tax revenues.

With regard to the Classification Amendment, the Mayors’

Association was involved for several years in reviewing, study-

ing and commenting upon it;’? and ultimately the Mayors’ As-

sociation concluded that sound government for Massachusetts

would be advanced and supported by the adoption of the Clas-

sification Amendment. The Mayors’ Association therefore

embarked upon a campaign to inform the voters of the effects

*The Mayors’ Association also maintains a joint administration and

finance office, a joint publication policy and shares office space and tele-

phone services with the Massachusetts Selectmen’s Association, the Massa-

chusetts League of Cities and Towns, the Massachusetts Municipal Manage-

ment Association and the Association of Town Finance Committees.

7 Classification is not a new idea. A Classification Amendment was a state

referendum question in 1970; it was defeated at that time.

6

of classification and 100 per cent valuation and to advocate

adoption of the Classification Amendment. A special assess-

ment was made upon all members of the Mayors’ Association

in order to pay for this campaign. However, the Mayors’ As-

sociation was forced to abandon this advocacy campaign by

the Supreme Judicial Court’s decision that “We thus construe

G.L. c. 55 as preempting any right which a municipality

might otherwise have to appropriate funds for the purpose of

influencing the result on a referendum question to be sub-

mitted to the people at a State election.” (J.S. 9a.) The ra-

tionale of the ban on municipal appropriations and expend-

itures plainly extended to all publicly funded bodies and was

clearly calculated to encompass the Mayors’ Association as

such; indeed, the supreme Judicial Court expressly raised the

spectre of a taxpayers’ suit against the Mayors’ Association

with regard to a special assessment made specifically fur refer-

endum advocacy purposes.®

As a result, for weeks prior to the vote on this important ref-

erendum question the Mayors’ Association was forced to stand

by and refrain from advocacy solely because it is publicly

funded, while non-publicly funded corporations and entities

were free to disseminate any sort of information they wished

— and did so, at great expense. It was only by reason of the

stay granted in this Court on October 20, 1978, by Mr. Justice

Brennan as Circuit Justice that the Mayors’ Association was

*“No claim has been made concerning the recovery of funds already ex-

pended.... In any event, ... the Massachusetts Mayors’ Association,

which received $112,550 from the city . . . [for advocacy on the Classifica-

tion Amendment] is [not] a party to this proceeding. We decline to express

any view concerning whatever obligation there may be to restore, or to seek

to recover, these amounts which were paid not only after this action was

commenced but also after the defendants had knowledge of the action.”

(J.S. 22a-23a.)

7

able to engage in referendum advocacy for a brief period prior

to the November 7, 1978, vote on the Classification Amend-

ment.

The Mayors’ Association is of course delighted with the

favorable outcome of the vote on the Classification Amend-

ment and believes that its advocacy efforts might in some small

measure have contributed to that outcome. But the issues pre-

sented by this appeal are of continuing importance to the May-

ors’ Association, and to its members, since the Supreme Ju-

dicial Court’s decision continues to operate as a prior restraint

upon the Mayors’ Association’s and its members’ right of free

speech to engage in advocacy on future referenda questions of

vital concern to the cities and towns they represent.

The Mayors’ Association anticipates a substantial number of

referenda questions likely to arise in the near future on which

it may wish to take a position in the interest of advancing

sound local government. Such referenda questions may in-

clude: the imposition of tax limits upon state and/or local gov-

ernment, the redistricting of county boundaries, the adoption

of a state graduated income tax, the imposition by munici-

palities of taxes other than real estate taxes, the expansion or

contraction of the Massachusetts Home Rule Amendment,

substantial changes in the public employment laws, substan-

tial changes in pension benefits for public employees and de-

terminations of how regional transportation systems should be

designed and developed. These questions and others like them

go to the heart of the form, financing and functioning of state

and local governments; they are vitally related to how state

and local governments will respond to the needs and desires of

their citizens; and they can be expected to arise with growing

frequency. Yet, as a publicly funded entity, the Mayors’ As-

sociation cannot safely advocate positions on any of them in

light of the Supreme Judicial Court’s decision.

8

B. MOoorTNEss.

Although the vote on the Classification Amendment has

taken place, this appeal is not moot, (as Appellees have them-

selves conceded, see Motion for Reconsideration before Mr.

Justice Brennan, p. 4), for it clearly falls within the class of

controversies “capable of repetition, yet evading review.”

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). Indeed, this question is identical to that raised in First

Nat Bank v. Bellotti, __. U.S. ___., 98 S. Ct. 1407 (1978),

where the 1976 challenge to that portion of Chapter 55 which

prohibited business corporations from engaging in referendum

advocacy on certain questions did not reach this Court until

after the 1976 vote had taken place. In Bellotti the Court con-

cluded that the issue was not moot, finding present the two

elements identified in Weinstein v. Bradford, 423 U.S. 147

(1975), which preclude a finding of mootness even in the ab-

sence of a class action: “(1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or

expiration, and (2) there [is] a reasonable expectation that the

same complaining party [will] be subjected to the same action

again.” First Natl Bank v. Bellotti, supra, 98 S. Ct. at 1414

(quoting from Weinstein v. Bradford, 423 U.S. 147, 149

(1975)).

The only difference between Bellotti and this case is that the

Classification Amendment has been adopted. But Appellants

and the Mayors’ Association should not be penalized for their

successful advocacy pursuant to Mr. Justice Brennan’s stay.

Nor does the law require or permit any such penalty, for both

of the elements identified in Weinstein v. Bradford exist here,

as well.

Under no reasonably foreseeable circumstances could the

Appellants, the Mayors’ Association or any other publicly

funded entity obtain plenary review by this Court of the issues

9

presented here regarding referendum advocacy by a publicly

funded entity in advance of a future statewide referendum.

The histor oth of this case and of Bellotti demonstrate that

such judi _ review has been impossible in the past because of

theshor _riod of time involved, “and there is every reason to

believ = that any future suit would take at least as long.” Bel-

lotti, supra, 98 S. Ct. at 1415.

Further, there is every reason to believe that the Appellant,

City of Boston, would be subjected to the same action again if

it sought to appropriate and expend funds for referendum ad-

vocacy. This suit arose pursuant to a Massachusetts statute,

Mass. Gen. Laws ch. 40, § 53, which authorizes any ten tax-

able inhabitants of a municipality to challenge allegedly illegal

municipal appropriations and expenditures. If this appeal

were to be dismissed, and the stay thereby lifted, all would

know that one such successful challenge had been made to the

City of Boston’s advocacy activities; the fact that this chal-

lenge was thwarted by a stay order would hardly deter future

challenges by the same or other taxable inhabitants if Boston

or any other public body attempted other publicly funded ref-

erendum advocacy.°®

By the very nature of the case, then, this matter falls square-

ly within this Court’s decisions relating to other election mat-

® While this is not a class action, the issues raised in this appeal are relevant

to all municipalities, to the Mayors’ Association, and to all other publicly

funded entities in Massachusetts and elsewhere. Although elections might

repeatedly seem to moot this and similar challenges, the basic issue of ad-

vocacy with public funds will not go away. See, e.g., Mountain States Legal

Foundation v. Denver School District No. 1, 47 U.S.L.W. 2338 (D. Col.,

November 28, 1978), where on October 28, 1978, the United States District

Court for the District of Colorado granted, on federal constitutional

grounds, a request for a preliminary injunction to prevent the implementa-

tion of the Denver School Board’s resolution authorizing the use of School

District facilities and funds to advocate the defeat of a proposed amendment

to the Colorado Constitution. That case also could not have reached this

Court prior to the November election.

10

ters, all of which support the proposition that this appeal is not

moot. In Dunn v. Blumstein, 405 U.S. 330, 333 n. 2 (1972), a

class action suit challenging a Tennessee law which imposed a

residency requirement on voter registration, the Court stated:

“Although appellee now can vote, the problem to voters posed

by the Tennessee residence requirement is ‘“capable of repeti-

tion, yet evading review.”’” In Storer v. Brown, 415 U.S.

724, 737 n. 8 (1974), this Court upheld the constitutionality of

California statutes relating to procedures for persons who seek

ballot positions as independent candidates even though the

election had come and gone. The Court stated:

“The 1972 election is long over, and no effective relief

can be provided to the candidates or voters, but this case

is not moot, since the issues properly presented, and their

effects on independent candidacies, will persist as the

California statutes are applied in future elections. This

is, therefore, a case where the controversy is ‘capable of

repetition, yet evading review.’ [Cites omitted.] The

‘capable of repetition, yet evading review’ doctrine, in

the context of election cases, is appropriate when there

are ‘as applied’ challenges as well as in the more typical

case involving only facial attacks. The construction of

the statute, an understanding of its operation, and possi-

ble constitutional limits on its application, will have the

effect of simplifying future challenges, thus increasing

the likelihood that timely filed cases can be adjudicated

before an election is held.” (Emphasis supplied.)

See also, Moore v. Ogilvie, 394 U.S. 814, 816 (1969), and

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122

(1974).

ll

The Appellants, the Mayors’ Association and all Massachu-

setts municipalities and public bodies need a construction and

a delineation of the constitutional limits of Chapter 55 vis-&-vis

their right to appropriate and expend public funds for advo-

cacy on referenda questions. Faced by the threat of repeated

ten taxpayer suits, on similar referenda disputes in the future,

no Massachusetts municipality or publicly funded entity can

engaze in advocacy without fear of an injunction.

II. The Questions Presented are Substantial.

The Questions Presented in the Appellants’ Jurisdictional

Statement at 5 set forth the matters of greatest concern to the

Mayors’ Association, as those matters relate to the rights of

publicly funded entities. We believe that each of the Ques-

tions warrants plenary review and that Appellants’ Brief in

Opposition to Appellees’ Motion to Dismiss sufficiently dis-

poses of the claim that, despite the opinion below and the stay

of October 20, 1978, no federal constitutional question is

posed. Indeed, the strongest argument for doubting the pres-

ence of a substantial federal question — that based on Hunter

v. Pittsburgh, 207 U.S. 161 (1907), and advanced by Justices

Stevens, Stewart and Rehnquist in their dissent from this

Court’s November 6, 1978, denial of the motion to vacate Mr.

Justice Brennan’s stay — seems to the Mayors’ Association to

have been answered not only by Appellants’ November 16,

1978, Brief in Opposition to Appellees’ Motion to Dismiss (at 3

& n. 3) but also by this Court’s recent reminder that Hunter v.

Pittsburgh’s “broad statements as to state control over munici-

pal corporations . . . have undoubtedly been qualified by the

holdings of later [election] cases... .” Holt Civic Club v.

City of Tuscaloosa, 47 U.S.L.W. 4008, 4011-12 (U.S. Sup.

Ct., November 28, 1978) (dictum).

12

The Massachusetts Mayors’ Association submits that this ap-

peal brings before the Court substantial federal questions

which are not moot and which require plenary consideration,

with briefs on the merits and oral argumeat, for their resolu-

tion.

Respectfully submitted,

H THEODORE COHEN,

TYLER & REYNOLDS,

One Boston Place,

Boston, Massachusetts 02108. ;

(617) 523-6550

Dated: December 22, 1978.

:

: