Petition for Writ of Certiorari — Municipal Light Co. v. Massachusetts

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Supreme Court of the United

OCTOBER TERM, 1993

THE MUNICIPAL LIGHT COMPANIES OR DEPARTMENTS OF

ASHBURNHAM, BOYLSTON, HUDSON, PAXTON, PEABODY,

SHREWSBURY, TEMPLETON, WAKEFIELD and WEST BOYLSTON,

MASSACHUSETTS, individually and on behalf of their ratepayers, and THE

TOWNS OR CITIES OF ASHBURNHAM, BOYLSTON, HUDSON,

PAXTON, PEABODY, SHREWSBURY, TEMPLETON, WAKEFIELD, and

WEST BOYLSTON, MASSACHUSETTS,

Petitioners,

V.

THE COMMONWEALTH OF MASSACHUSETTS, ROBERT BOULAY,

Director of the Massachusetts Civil Defense Agency,

Officially; MICHAEL J. DUKAKIS, Governor of the

Commonwealth of Massachusetts; AND JAMES SHANNON,

Attorney General of the Commonwealth of Massachusetts,

Respondents,

AND

THE TAUNTON MUNICIPAL LIGHTING PLANT, UNITED ILLUMI-

NATING COMPANY, VERMONT ELECTRIC COOPERATIVE, and the

MUNICIPAL LIGHT COMPANIES OR DEPARTMENTS OF BRAINTREE,

DANVERS, GEORGETOWN, GROTON, HINGHAM, HOLDEN,

HOLYOKE, IPSWICH, LITTLETON, MANSFIELD, MARBLEHEAD,

MIDDLEBOROUGH, MIDDLETON, NORTH ATTLEBORO, READING,

SOUTH HADLEY, STERLING, WESTFIELD and the MASSACHUSETTS

MUNICIPAL WHOLESALE ELECTRIC COMPANY,

Necessary Parties.

Petition For Writ Of Certiorari

To The Appeals Court

For The Commonwealth Of Massachusetts

PETITION FOR WRiT OF CERTIORARI

Thomas J. Heiden (P-14828)*

Meg Hackett Carrier (P-34078)

MILLER, CANFIELD, PADDOCK AND STONI

99 Monroe Ave., Suite 1200

Grand Rapids, MI 49503

(616) 454-8656

Counsel for Petitioners

*Counsel of Record

i

QUESTION PRESENTED

IS A TEMPORARY TAKING OF PROPERTY RESULTING

FROM A STATE’S DELIBERATE OBSTRUCTION OF A

FEDERAL LICENSING PROCEDURE COMPENSABLE AS A

REGULATORY TAKING UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION?

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), the names of all parties to

the proceedings below appear in the caption of this case. There are no

known parent companies nor non-wholly-owned subsidiaries.

TABLE OF CONTENTS

PAGE(S)

Seameee Sor MASE temi ties CITED .... 2... eee ee iv

PETITION FOR WRIT OF CERTIORARI TO THE

APPEALS COURT FOR THE COMMONWEALTH

NE OO 5g sc seks auc c cnc censcssrncecvens l

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CONSTITUTIONAL AND STATUTORY PROVISIONS

ea 6G ania Ak As 45 5640s 4 60s a sv bk ncadac 3

I OO GOS ees a eens 3

REASONS FOR GRANTING THE WRIT.................. 6

eke wane fd.on 4s «bac sd ban 60s 7

I 8

a ig wy ask d's bein eo ve cee 16

INDEX TO APPENDICES

APPENDIX A RESCRIPT AND OPINION OF THE APPEALS

COURT FOR THE COMMONWEALTH OF

MASSACHUSETTS, DATED FEBRUARY 25,

1993

APPENDIX B MEMORANDUM OF DECISION AND ORDER

FOR JUDGMENT OF THE SUFFOLK SUPERIOR

COURT FOR THE COMMONWEALTH OF

MASSACHUSETTS, DATED DECEMBER 238,

1990 AND ENTERED JANUARY 23, 1991

APPENDIX C NOTICE OF DENIAL OF F.A.R. APPLICATION

ISSUED BY THE FULL SUPREME JUDICIAL

COURT OF THE COMMONWEALTH OF

MASSACHUSETTS ON APRIL 27, 1993

APPENDIX D AMENDMENTS V AND XIV, SECTION 1 TO

THE UNITED STATES CONSTITUTION

APPENDIX E ARTICLE I, SECTION 10, CLAUSE 1 TO THE

UNITED STATES CONSTITUTION

APPENDIX F EXCERPT FROM REPLY BRIEF FILED BY

PETITIONERS IN THE MASSACHUSETTS

APPEALS COURT

iV

TABLE OF AUTHORITIES CITED

PAGE(S)

CASES:

Agins v. City of Tiburon, 447 U.S. 255 (1980) ............ 9,12

Allied-General Nuclear Services v. United States, 839

F.2d 1572 (Fed. Cir.), cert. denied, 488 U.S. 819 (1988) ...... 15

Appeal of Public Service Co. of New Hampshire, 454

Pe ee ee re er 15

Armstrong v. United States, 364 U.S. 40 (1960) ........... 9.10

Chicago Burlington and Quincy R.R. Co. v. Chicago,

MON Sia RMR hc nce enaaeakounecaawenes aca naks 7

Citizens For An Orderly Energy Policy, Inc. v.

County of Suffolk, 604 F. Supp. 1084 (E.D.N.Y. 1985)... 2... 13

City of Cambridge v. Comm’rs of Public Welfare, 257

PRM TORE 4 549.5 o Cae Raa eR ee OEE R en 11

City of Cleveland v. Pub. Util. Comm’n of Ohio, 414

TORU VERE oo oh cs eeu eis cate wn yoann 14

County of Suffolk v. Long Island Lighting Co.,

554 F. Supp. 399 (E.D.N.Y. 1983), aff'd,

FOP Cae oe Gs Bs hae eee adie sak teresa ieee kas 13

Danforth v. United States, 308 U.S. 271 (1939) ............. 12

First English Lutheran Church of Glendale v. County of Los

Angeles, California, 482 U.S. 304 (1987) .. 5, 9, 10, 11, 14, 15, 16

Flores v. Pierce, 617 F.2d 1386 (9th Cir.)

cert. denied, 449 U.S. 875 (1980) .................26.- iz, i2

Goldblatt v. Hempstead, 369 U.S. 590 (1962). ............... )

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 10, 12, 15

Griggs v. Allegheny, 369 U.S. 84 (1962)................... 10

Hodel v. Virginia Surface Mining & Reclamation

cee ee | re er ee re Pee 9

Hunter v. Pittsburgh, 207 U.S. 161 (1907) ................. 1]

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..... 9,11, 14

SN br scet eee hee on nn ss

Vv

TABLE OF AUTHORITIES — Continued

Keystone Bituminous Coal Assoc. v. DeBenedictis,

bowie aie Bc dtce, cn cid DEERE CR OT ee ED a eee 9

Lucas v. South Carolina Coastal Council, 112 S. Ct.

> Eran neh remem 4,5, 9, 12, 15, 16

MacDonald, Sommer & Frates v. County of Yolo,

Pe 8 PMs ROUND is <b dnd Wee ew ess Cake aes sda a wba Koes 11

Mount Hope Cemetery v. Boston, 33 N.E. 695 (1893) ........ 11

Nader v. Citron, 360 N.E.2d 870 (1977) ...........0.....4.. 7

New England Coalition on Nuclear Pollution v. NRC,

OEE ee OF EN, BIND is 6 bo bk kd da cn cues Kvaviaedenn 8

Nollan v. California Coastal Comm’n, 483 U.S.

t+ RANA Ln tay ee 9

Northern States Power Co. v. Minnesota, 447 F.2d

1143 (8th Cir. 1971), aff’d, 405 U.S. 1035 (1972). ........... 14

Pacific Gas & Electric Co. v. State Energy

Resources Construction and Development Comm’n,

ee I aa nee aw es Goes vo vn ka aw homes 12

Penn Central Transportation Co. v. New York City,

i ts | ee a 9, 15

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .. 9, 10, 16

Portsmouth Co. v. United States, 260 U.S. 327 (1922) ........ 10

Public Interest Research Group of New Jersey, Inc.

v. New Jersey, 377 A.20 915 (1977) .. 0. ce ccc cen 14

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.)

| | Ee pea ane ey ae a a a ee ee ee 10, 14

San Diego Gas & Elec. Co. v. San Diego, 450 U.S.

ee ee es cnc uns 9

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)......... 13

State ex rel. Util. Consumers Council v. Pub.

Serv. Comm’n of Missouri, 562 S.W.2d 688

(Mo. App. 1978), cert. denied, 439 U.S. 866 (1978).......... 14

vi

TABLE OF AUTHORITIES — Continued

Trustees of Dartmouth College v. Woodward,

eee ae I CURD, coe eases va én es eure 11

United States v. Causby, 328 U.S. 256 (1946)... 2.2 ......... 10

United States v. Chandler-Dunbar Water Power Co.,

xcs sah av ia 6 aA le aw we ee es 15

United States v. Cress, 243 U.S. 316 (1917) ................ 10

United States v. Reading Co., 226 U.S. 324 (i913)........... 12

United States v. Willow River Power Co.,

NN sn ey Sonn os bare en a4 bee A 15

Yankee Atomic Elec. Co. v. Secretary of

Commonwealth, 526 N.E.2d 1246 (1988) .................. 11

STATUTES:

United States Constitution,

Fifth Amendment.............. 3,4, 7, 8, 16, Appendix D

Fourteenth Amendment......... 3, 4, 7, 8, 16, Appendix D

Article I, Section 10, Clause 1 ........ 3, 7, 16, Appendix E

Be ee Se IAP POP CLOUD 5 oo ek ene bck vaxusbuebeea eee 2

Atomic Energy Act, 42 U.S.C. §2011 et seq. (1973). ......... 12

Mass. Ann. Laws, Ch. 212, §3 (Law. Co-op. 1979

NO sha es pee ck pb on Gee eee Ce eee ea 3

RULES:

Ss Rosary: en's x dh hah oh ee a ee 4

a. PD sy i ds ek ha hos eRe 4,7

OTHERS:

In the Matter of Public Service of New Hampshire, Docket

Pree. Saree, Oi SO-AGGOL ow. ect cwawsucsceurws 13

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

THE MUNICIPAL LIGHT COMPANIES OR DEPARTMENTS OF

ASHBURNHAM, BOYLSTON, HUDSON, PAXTON, PEABODY,

SHREWSBURY, TEMPLETON, WAKEFIELD and WEST BOYLSTON,

MASSACHUSETTS, individually and on behalf of their ratepayers, and THE

TOWNS OR CITIES OF ASHBURNHAM, BOYLSTON, HUDSON,

PAXTON, PEABODY, SHREWSBURY, TEMPLETON, WAKEFIELD, and

WEST BOYLSTON, MASSACHUSETTS,

Petitioners,

V.

THE COMMONWEALTH OF MASSACHUSETTS, ROBERT BOULAY,

Director of the Massachusetts Civil Defense Agency,

Officially; MICHAEL J. DUKAKIS, Governor of the

Commonwealth of Massachusetts; AND JAMES SHANNON,

Attorney General of the Commonwealth of Massachusetts,

Respondents,

AND

THE TAUNTON MUNICIPAL LIGHTING PLANT, UNITED ILLUMINAT-

ING COMPANY, VERMONT ELECTRIC COOPERATIVE, and the MU-

NICIPAL LIGHT COMPANIES OR DEPARTMENTS OF BRAINTREE,

DANVERS, GEORGETOWN, GROTON, HINGHAM, HOLDEN,

HOLYOKE, IPSWICH, LITTLETON, MANSFIELD, MARBLEHEAD,

MIDDLEBOROUGH, MIDDLETON, NORTH ATTLEBORO, READING,

SOUTH HADLEY, STERLING, WESTFIELD and the MASSACHUSETTS

MUNICIPAL WHOLESALE ELECTRIC COMPANY,

Necessary Parties.

Petition For Writ Of Certiorari

To The Appeals Court

For The Commonwealth Of Massachusetts

PETITION FOR WRIT OF CERTIORARI

PETITIONERS, THE MUNICIPAL LIGHT COMPANIES OR

DEPARTMENTS OF ASHBURNHAM, BOYLSTON, HUDSON,

PAXTON, PEABODY, SHREWSBURY, TEMPLETON,

a

2

WAKEFIELD and WEST BOYLSTON, MASSACHUSETTS, in-

dividually and on behalf of their ratepayers, and THE TOWNS OR

CITIES OF ASHBURNHAM, BOYLSTON, HUDSON, PAXTON,

PEABODY, SHREWSBURY, TEMPLETON, WAKEFIELD and

WEST BOYLSTON, MASSACHUSETTS, respectfully pray that a

writ of certiorari issue to review the Rescript and Opinion of the

Appeals Court for the Commonwealth of Massachusetts, affirming

the summary dismissal of Petitioners’ First Amended Complaint,

holding that a temporary taking of property and impairment of

contracts, resulting from a state’s deliberate obstruction of federal

licensing procedures, is not compensable under the United States

Constitution.

OPINIONS BELOW

The unpublished Rescript and Opinion of the Appeals Court of

the Commonwealth of Massachusetts appears in Appendix A to this

Petition. The unpublished Memorandum of Decision and Order for

Judgment of the Suffolk Superior Court for the Commonweaith of

Massachusetts appears in Appendix B to this Petition. The unpub-

lished Notice of Denial of F.A.R. Application issued by the Full

Supreme Judicial Court of the Commonwealth of Massachusetts

appears in Appendix C to this Petition.

JURISDICTION

The Massachusetts Appeals Court entered its opinion in this

matter on February 25, 1993. A timely Application for Leave to

Obtain Further Appellate Review (“F.A.R.”) By the Full Supreme

Judicial Court of the Commonwealth of Massachusetts was filed on

March 15, 1993. The Full Supreme Judicial Court issued its Notice

of Denial of F.A.R. Application on April 27, 1993. This Court’s

jurisdiction is invoked under Title 28, U.S.C. §1257(a) (1966) which

States, in pertinent part, that:

Final judgments or decrees entered by the highest court

of a State in which a decision could be had, may be re-

viewed by the Supreme Court by writ of certiorari . . . where

the validity of a statute of any State is drawn in question on

the grounds of its being repugnant to the Constitution of the

United States, or where any title, right, privilege, or immu-

nity is specially set up or claimed under the Constitution . . .

of... the United States.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth and Fourteenth Amendments to the United States Con-

stitution are set forth in Appendix D.

Article I, Section 10, clause 1 to the United States Constitution is

set forth in Appendix E.

STATEMENT OF THE CASE

Petitioners are various cities, towns and municipal light depart-

ments, suing individually and on behalf of their ratepayers to re-

cover over $1,000,000,000.00 in losses resulting from Respondents’

temporary taking of Petitioners’ property and unlawful impairment

of their contracts. This taking was effected by Respondents’ deliber-

ate abuse of the state’s police power, and deliberate obstruction of

the federal licensing procedures for the Seabrook Nuclear Power

Plant Unit 1 (“Seabrook”), which abuse and obstruction also unlaw-

fully impaired certain of Petitioners’ contracts.

The Suffolk Superior Court for the Commonwealth of Massachu-

setts had jurisdiction pursuant to Mass. Ann. Laws, Ch. 212, §3

(Law Co-op. 1979 and Suppl. 1988).

Petitioners filed their original Complaint and Jury Demand on or

about December 9, 1988, followed by an Amended Complaint and

Jury Demand on or about July 5, 1989. Respondents never filed an

Answer to either the Complaint or the Amended Complaint. More-

over, insulated by a Protective Order, Respondents never answered

nor otherwise responded to outstanding discovery requests.

Rather, on November 7, 1989, Respondents filed a Motion to

Dismiss Amended Complaint; on January 4, 1990, Petitioners filed

their Memorandum in Opposition to Respondents’ Motion to Dis-

miss Amended Complaint; and on January 19, 1990, Respondents

filed their Reply Memorandum. On July 18, 1990, Petitioners vol-

untarily dismissed Counts I and II of the Amended Complaint,

which had sought mandamus and declaratory relief and were ren-

dered moot by the licensing of Seabrook in mid-1990. Thereafter,

on August 6, 1990, a hearing was held on Respondents’ Motion to

Dismiss the remaining counts of the Amended Complaint, including

the federal “Takings Claims” and “Impairment of Contract Claims”

at issue here. Petitioners filed a Supplemental Brief in Opposition to

Motion to Dismiss on August 30, 1990.

In a Memorandum of Decision and Order for Judgment dated

December 28, 1990, and entered January 23, 1991, Justice Patrick J.

King granted Respondents’ Motion to Dismiss, under Mass. R. Civ.

P. 12(b)(6), for failure to state a claim upon which relief could be

granted. Judgment was entered on that same date.

The state trial court never reached nor addressed the merits of

Petitioners’ federal “Takings” and “Contract Clause” claims, erro-

neously finding instead ——- on the basis of Massachusetts case law

— that the Commonwealth was immune from liability. The state

trial court ignored federal Constitutional law prohibiting the taking

of property and the impairment of contracts held by a municipality

in a proprietary capacity without payment of just compensation/

money damages. '

On February 21, 1991, Petitioners timely filed their Joint Notice

of Appeal in the Massachusetts Appeals Court, followed by the

filing of their Statement of Proceedings on or about March 22, 1991.

Petitioners’ Brief on Appeal, along with Appendix, was then filed

on or about September 7, 1991, followed by the filing of Respon-

dents’ Brief on or about October 31, 1991. Petitioners’ Reply Brief

was then filed on or about December 11, 1991.

Petitioners argued before the Massachusetts Appeals Court that

their claims under the Takings Clause and the Contract Clause of the

United States Constitution had been dismissed erroneously by the

state trial court on grounds of immunity. Petitioners argued that the

Appeals Court’s holding violated controlling federal precedent pro-

hibiting the taking and impairment, respectively, of municipal prop-

erty and contracts, held in a proprietary capacity, without payment

of just compensation/money damages.”

On or about August 21, 1992, Petitioners filed a letter with the

Clerk of the Appeals Court, pursuant to Rule 16(1) of the Massachu-

setts Rules of Appellate Procedure, directing that Court’s attention

to this Court’s recent decision in Lucas v. South Carolina Coastal

Council, 112 S. Ct. 2886 (1992) (holding that any regulation which

deprives a property owner — whether temporarily or permanently

— of all “economically viable use” of his/her property affects a

“taking” under the Fifth and Fourteenth Amendments to the United

‘The trial court also fundamentally erred in dismissing Petitioners’ state consti-

tutional and common law implied contracVestoppel claims.

"Petitioners also argued before the Appeals Court that their state constitutional

and common law implied contract/estoppel claims had been dismissed erroneously.

States Constitution even where the regulation may have been a

lawful exercise of the state’s police power).

On November 12, 1992, oral argument was heard in the Appeals

Court before a panel comprised of Justices Brown, Kass and Ireland.

That panel issued its Opinion on February 25, 1993, affirming the

Suffolk Superior Court’s judgment of dismissal. The Appeals Court

declined to rule on whether the distinction between “proprietary

functions” and “governmental functions” applies in the context of

takings of property by superior governmental agencies, erroneously

holding instead that no temporary regulatory taking had occurred.

(See Appendix A-8). Likewise, the Appeals Court declined to rule

on whether the distinction between “proprietary functions” and “gov-

ernmental functions” applies in the context of impairments of con-

tracts by superior governmental agencies, erroneously finding, in

total disregard of Petitioners’ binding factual allegations to the

contrary, an absence of legislative conduct to support such claims.

(See Appendix A-10).°

On March 15, 1993, Petitioners timely filed their Application For

Further Appellate Review (“F.A.R.”) By the Full Supreme Judicial

Court of the Commonwealth of Massachusetts. Petitioners argued

before the Full Supreme Judicial Court that the Appeals Court’s

determination that “. . . there has been no taking” constitutes revers-

ible error and contravenes the direct and binding holdings of this

Court in First English Lutheran Church of Glendale v. County of

Los Angeles, California, 482 U.S. 304 (1987) and Lucas v. South

Carolina Coastal Council, 112 S. Ct. 2886 (1992) (each holding

that temporary regulatory takings are compensable). Petitioners fur-

ther argued to the Full Supreme Judicial Court that the Appeals

Court had erroneously dismissed their federal Contract Clause claims

on the basis of the impermissible factual finding that Petitioners “...

do not point to any act of the Legislature which impeded their

contract.” (See Appendix A-10).* The Full Supreme Judicial Court

‘To the contrary, Petitioners identified six specific acts of legislative conduct to

support their federal Constitutional claims. Moreover, Petitioners further argued

that the full extent of Respondents’ legislative entanglement had not yet been

disclosed because Petitioners were not permitted to conduct any discovery and

were enjoined from obtaining information under the Public Records Act. (See

Appendix F).

“To the contrary, see n.3, supra. Petitioners also argued to the Full Supreme

Judicial Court that the Appeals Court fundamentally erred in dismissing their state

constitutional and common law implied contracVestoppel claims.

6

issued its Notice of Denial of F.A.R. Application on April 27, 1993.

The substantive errors below are exacerbated by the fact that,

throughout the lower court proceedings, Petitioners were not only

denied the opportunity to conduct any discovery, but were affirma-

tively enjoined from obtaining information otherwise available to

every citizen under the Public Records Act. On January 13, 1989,

shortly after filing their original Complaint, Petitioners filed their

First Request for Production of Documents Directed to James M.

Shannon, Attorney General of the Commonwealth of Massachusetts

and Individually; their First Request for Production of Documents

Directed to Robert J. Boulay, Director of the Massachusetts Civil

Defense Agency and Individually; and their First Request for Pro-

duction of Documents Directed to the Commonwealth of Massachu-

setts. On January 27, 1989, Respondents filed a Motion for Protec-

tive Order in which they requested entry of an order staying re-

sponses to discovery and related public records requests pending

resolution of “questions of official immunity” which Respondents

planned to argue in their anticipated Motion to Dismiss. On Febru-

ary 7, 1989, Petitioners filed their Opposition to Respondents’ Mo-

tion for Protective Order. On February 13, 1989, a Protective Order

was entered over Petitioners’ objections

The lower court granted Respondents’ Motion to Dismiss having

wholly precluded Petitioners from obtaining evidence to support

their claims, either through discovery or under the Public Records

Act.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted for three reasons:

(1) This Petition presents an important question of federal Con-

stitutional law either not previously resolved by the Su-

preme Court or resolved by implication but not specifically

and unequivocally decided by this Court;

(2) The Opinion below has decided an important federal Con-

stitutional question in a way that conflicts with previous

decisions of this Court and with the decisions of other

federal and state courts; and,

(3) If the Opinion of the Massachusetts Appeals Court stands,

Petitioners will have been denied every avenue of redress

for the substantial federal Constitutional harms they have

suffered.

7

A. Background

This case involves claims for just compensation and money dam-

ages under the “Takings Clause” and the “Contract Clause” of the

United States Constitution.’ Petitioners are various cities, towns and

municipal light departments, suing individually and on behalf of

their ratepayers, who spent or committed to spend over

$1,000,000,000.00 on the Seabrook nuclear project (“Seabrook”) in

reliance upon authorizations and inducements made by :he Com-

monwealth of Massachusetts and its agents (“Respondents”).®

Respondents did much more than merely induce Petitioners’

expenditures in Seabrook. Respondents created the “investment-

backed expectation” itself; i.e., the mechanism for such investments

and the statutory authorizations and administrative approvals with-

out which Petitioners would not, and indeed could not, have in-

vested in Seabrook.

Thereafter, Respondents withdrew their prior authorizations and

approvals of Seabrook, worked to erect what Respondent Shannon,

then-Attorney General of the Commonwealth of Massachusetts,

termed “insuperable obstacles” to licensure and operation of

Seabrook, and refused to publish the Commonwealth’s Seabrook

Radiological Response Plan.’

As a result of Respondents’ conduct here, licensing and operation

of the Seabrook facility was unduly delayed for almost four (4)

‘The Takings Clause, U.S. Const. Amend. V, provides in pertinent part that“. . .

nor shall private property be taken for public use, without just compensation,” and

applies to the States through the Fourteenth Amendment. Chicago Burlington and

Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1987). (See Appendix D).

The Contract Clause, Art. 1, Sec. 10, cl. 1, provides in pertinent part that “[n]Jo State

Shall ... pass any ... Law impairing the Obligation of Contracts ...”. (See Appendix

E).

° For purposes of reviewing the dismissal of Petitioners’ Amended Complaint

under Mass. R. Civ. P. 12(b)(6), all of Petitioners’ factual allegations must be

accepted as true and all inferences must be drawn in their favor. Nader v. Citron,

360 N.E. 2d 870 (1977).

’In September 1987, Respondent Shannon, as recently-appointed Massachu-

setts Attorney General, stated that the refusal by Respondent Dukakis to submit a

radiological response plan for Seabrook presented an “insuperable obstacle to

licensure”.

8

years. Although the Seabrook plant was completed and stood ready

for commercial operation on October 8, 1986, the Commonwealth’s

withdrawal of its prior approvals, its deliberate obstruction of feder-

ally preempted licensing procedures, its refusal to abide by prin-

ciples of federal res judicata,* and its refusal to publish a radiologi-

cal response plan, delayed issuance of an operating license until

mid-1990.

With each month of delay, Petitioners and other investors in

Seabrook incurred approximately $50,000,000.00 in carrying and

operating charges. Additional damages also resulted from the loss of

electricity and the cost of substitute power.

B. Discussion

This Court has expressly held that a state’s regulatory conduct

can give rise to a compensable taking under the Fifth and Fourteenth

Amendments to the United States Constitution where it temporarily

deprives property owners of all “economically viable use” of their

In a letter dated February 3, 1988, Respondent Shannon wrote to Petitioners that, in

his judgment and that of Respondent Dukakis, nuclear power is “unsafe under any

circumstances”. Respondent Shannon boasted that, because of his Department’s

ongoing efforts in actively opposing the Seabrook plant, it “will not ever operate”.

Respondent Shannon demanded that Petitioners terminate the “endless licensing

proceedings before the NRC and default on their legal obligations to the project”.

Respondent Shannon concluded his letter by stating, “These developments high-

light what Governor Dukakis and I have been saying for months: The plant will

never operate.” (emphasis added).

Thereafter, Respondents’ refusal to publish the Commonwealth’s emergency re-

sponse plan was described by the Atomic Safety and Licensing Board (“ASLB”) as

designed “to further a litigation strategy intended to defeat the application for an

operating license”. Partial Initial Decision - Seabrook Plan For Massachusetts

Communities and 1988 FEMA Graded Exercise (ASLB November 9, 1989).

“Respondents participated as an interested state in the public hearings which

were held in 1975 and 1976 regarding the selection of the Seabrook site. Respon-

dents also participated in several subsequent administrative hearings and in an

appeal to the United States Court of Appeals for the First Circuit. That appeal

resulted on August 22, 1978, in an Opinion affirming the decision of the relevant

federal regulatory bodies determining that Seabrook was a suitable site for the

nuclear power facility. See New England Coalition on Nuclear Pollution v. NRC,

582 F.2d 87 (Ist Cir. 1978). No appeal was taken by Respondents from th. First

9

property. See Lucas v. South Carolina Coastal Council, 112 S.Ct.

2886 (1992); First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, California, 482 U.S. 304 (1987).?

While all of the “regulatory takings” cases addressed to date by

this Court have analyzed the effect of land-use Statutes, regulations

or ordinances, this Court has intimated that other state conduct may

give rise to compensable takings.!° This Court acknowledges “quite

simply, [that it] has been unable to develop any ‘set formula’ for

determining when ‘justice and fairness’ require that economic inju-

ries caused by public action be compensated by the government...”

Penn Central Transportation Co. v. New York, 438 US. 104, 124

(1978), quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962).

However, in the context of “physical appropriations” cases, it is now

well settled that state conduct which is functionally equivalent to a

physical appropriation of property may be found to constitute a

Circuit’s decision. That decision thus became res judicata as to safety concerns

regarding the Seabrook site, and Respondents were barred by principles of federal

res judicata from incessantly relitigating that siting issue. That is, of course, exactly

what Respondents had been relitigating in their efforts to cause Seabrook to not be

licensed nor operated.

*See also Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 495

(1987); Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987); Hodel v.

Virginia Surface Mining & Reclamation Assn. Inc., 452 US. 264, 295-96 (1981);

and Agins v. Tiburon, 447 U.S. 255, 260 (1980) (each holding that a “. . . land use

regulation can effect a taking if it ‘does not substantially advance state interests . . .

or denies an owner economically viable use of his land.’ e

See First English, 482 U.S. at 318, citing Armstrong v. United States, 364 U.S.

40, 49 (1960) (stating, “[i]t is axiomatic that the Fifth Amendment’s just compensa-

tion provision is ‘designed to bar Government from forcing some people alone to

bear public burdens which, in all fairness and justice, should be borne by the public

as a whole’”); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 415 (1922)

(where Justice Holmes aptly stated that governmental power must have its limits or

“the contract and due process clauses are gone” and “private property disappears”);

Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, (1978),

cited in Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979) (where this Court

spoke of “economic injuries caused by public action”); San Diego Gas & Elec. Co.

v. San Diego, 450 U.S. 621, 653-54 (1981) (J. Brennan, dissent) (stating that the

plain language of the just compensation clause requires its application to any

governmental action that causes a sufficient devaluation of property). It should in

any event be noted here that Petitioners expressly alleged substantial legislative

conduct by Respondents. See n.3, supra.

10

compensable taking.'' So too, state conduct which is functionally

equivalent to a land-use regulation should give rise to a compensable

regulatory taking where, as here, it “goes too far.”**

Indeed, the entire doctrine of inverse condemnation is predicated

on this proposition.

It would be a very curious and unsatisfactory result if . . . it

shall be held that if government refrains from the absolute

conversion of real property to the uses of the public it can

destroy its value entirely, can inflict irreparable and perma-

nent injury to any extent, can, in effect, subject it to total

destruction without making any compensation, because, in

the narrowest sense of that word, it is not “taken” for the

public use.

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177-178 (1872),

quoted in First English, 482 U.S. at 316.

Here, the Massachusetts Appeals Court held that no compensable

“taking” had occurred for two (2) reasons:

[1] The plaintiffs have not been totally deprived of the value

of their property (citation omitted); and, [2] the Common-

wealth has not regulated and cannot regulate Seabrook. Its

activities have been confined to the role of an advocate

before those federal agencies which can and do regulate

Seabrook.

See Appendix A-9.'* The first of these conclusions — that Peti-

'"'See Armstrong v. United States, 364 U.S. 40, 48-49 (1960) (Government's

complete destruction of a materialman’s lien in certain property held a “taking”);

United States v. Causby, 328 U.S. 256, 262-63 (1946) (Government’s overflights

above claimant’s land, destroying present use of chicken farm, is a “taking”);

Griggs v. Allegheny, 369 U.S. 84 (1962) (overflights held a taking); Portsmouth

Co. v. United States, 260 U.S. 327 (1922) (United States military installations’

repeated firing of guns over claimant’s land is a taking); United States v Cress, 243

U.S. 316 (1917) (repeated floodings of land cauSed by water project is taking).

'*Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

The Appeals Court expressly declined to consider whether municipal property

held in a proprietary capacity may be taken without payment of just compensation.

(See Appendix A-8). Nonetheless, this Court has suggested that such municipal

property may not be taken without payment of just compensation. See Gomillion v.

1]

tioners had not been totally deprived of the value of their property

— conflicts with this Court’s holdings in First English and Lucas,

supra, in that the Appeals Court erroneously concluded:

. . . that the interest of the plaintiffs in Seabrook retains

value because the generating plant is operating. Obtaining

that value has perhaps taken longer and cost more because

of the Commonwealth’s activity, but that is analogous to

inconvenience.

See Appendix A-9 (emphasis added). To the contrary, Petitioners

were temporarily deprived of all economically viable use of their

property for the protracted period of time that the Commonwealth

exercised its police power to circumvent the federal licensing pro-

cess.!4

Thus, pursuant to this Court’s holdings in First English and

Lucas, just compensation must be paid for that period of total

deprivation in the event this Court determines that Respondents’

conduct here constitutes “regulatory conduct” within the purview of

those decisions."

Lightfoot, 364 U.S. 339, 344 (1960), citing Hunter v. Pittsburgh, 207 U.S. 161.

178-181 (1907). Likewise, municipal contracts involving proprietary functions

may not be impaired. See Hunter, supra; and Trustees of Dartmouth College v.

Woodward, 17 U.S. (4 Wheat.) 418 (1819). See also City of Cambridge v. Comm’rs

of Public Welfare, 257 N.E. 2d 782, 785 (1970); Mount Hope Cemetery v. Boston,

33 N.E. 695 (1893). Moreover, and in any event, Petitioners brought suit here

individually and on behalf of their ratepayers.

'SMoreover, and in any event, whether Respondents’ conduct constituted a

taking requiring just compensation presents complex questions of material fact

rendering summary disposition, in the absence of discovery, clear and reversible

error. See Kaiser Aetna v. United States, 444 US. 164, 175 (1979), quoted in

MacDonald, Sommer & Frates vy. County of Yolo, 477 U.S. 340, 349 (1986),

(holding that whether a taking has occurred requires “essentially ad hoc, factual

inquiries . . .”). See also Yankee Atomic Elec. Co. v. Secretary of Commonwealth,

526 N.E. 2d 1246, 1250 (1988) (holding that whether a compensable taking has

occurred requires a “lengthy factual determination”).

'SThis Court expressly limited its holding in First English “. . . to the facts

presented . . .” and did not deal with what were termed “. . . the quite different

questions that would arise in the case of normal delays in obtaining building

permits, changes in zoning ordinances, variances, and the like which are not before

us”. (emphasis added). 482 U.S. at 321.

12

This brings us to the second basis for the Appeals Court’s deci-

sion — that:

the Commonwealth has not regulated and cannot regulate

Seabrook. Its activities have been confined to the role of an

advocate before those federal agencies which can and do

regulate Seabrook. (Appendix A-9).

The Appeals Court is correct only insofar as it implicitly ac-

knowledges that the licensing of nuclear power facilities has been

federally preempted, including “preemption” by Order of the First

Circuit,'® and vested solely with expert federal agencies, first the

Atomic Energy Commission and later the Nuclear Regulatory Com-

mission.!’

As for Respondents’ conduct as “advocate” before these federal

agencies, the ASLB found inter alia that “. . . the Attorney General

Nonetheless, this Court has suggested that “abnormal” delays in governmental

action may effect a taking. See Agins v. City of Tiburon, 447 U.S. 255, 263, n.9

(1980), quoting Danforth v. United States, 308 U.S. 271, 285 (1939) (“Mere

fluctuations in value during the process of governmental decision making, absent

extraordinary delay, are ‘incidents of ownership. They cannot be considered a

“taking,” in the constitutional sense.” ”) (emphasis added).

Likewise, this Court has suggested that interference with property rights or inter-

ests, precipitated by a governmental entity acting in bad faith or with ill motives,

may give rise to federal claims. See Gomillion v. Lightfoot, 364 U.S. 339, 347

(1960) citing United States v. Reading Co., 226 U.S. 324, 357 (1913) (“Acts

generally lawful may become unlawful when done to accomplish an unlawful

end...”). See also Lucas, 112 S.Ct. at 2906 (where Justice Blackmun, in dissent,

predicated, in part, his conclusion that South Carolina’s “police power” defense

should preclude Lucas’ taking claims upon the fact that Lucas “. . . did not contend

... that the legislature was motivated by anything other than a desire to minimize

damage to coasta! areas.”). Compare Flores v. Pierce, 617 F.2d 1386, 1391 (9th

Cir.), cert. denied, 449 U.S. 875 (1980) (recognizing a constitutional violation

where “the rigors of the governmental or administrative process are imposed upon

certain persons with an intent to burden, hinder, or punish them by reason of their

race or national origin .. .”).

See n. 8, supra.

"See Atomic Energy Act, 42 U.S.C. §2011 et seq. (1973). See also Pacific Gas

& Elec. Co. v. State Energy Resources Construction and Development Comm'n,

461 U.S. 190, 213 (1982).

13

attempted to manufacture the evidence he [sought] to use as a

license impediment”. Jn the Matter of Public Service of New Hamp-

shire, Docket Nos. 50-443-OL and 50-444-OL, Memorandum and

Order Ruling on Massachusetts Attorney General’s Motion To Ac-

cept As Exhibit (ASLB August 7, 1989). Moreover, the ASLB

found that Respondents had refused to publish their radiological

response plan in contravention of P.L. 96-294 “to further a litigation

strategy intended to defeat the [Seabrook] application for an operat-

ing license.” /d., Partial Initial Decision - Seabrook Plan for Massa-

chusetts Communities and FEMA Graded Exercise (ASLB Novem-

ber 9, 1989).!8

Although Respondents’ “regulation” of Seabrook was circuitous,

given that Respondents were without authority to directly regulate a

nuclear power facility, it nonetheless remains that Respondents

deliberately exercised the state’s police power in opposition to

Seabrook, obstructed the federal licensing process, deliberately ig-

nored principles of federal res judicata,'’ and unduly delayed the

licensure of Seabrook by approximately four (4) years. Such con-

duct should be deemed “regulatory” for Fifth Amendment pur-

poses.” This is particularly true where, as here, Respondents did not

inadvertently “take” Petitioners’ property through the enactment of

"See also n.7, supra.

See n.8, supra.

“Compare Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (where

this Court acknowledged that the imposition by state courts of compensatory and

punitive damages in cases involving nuclear accidents could constitute improper

“regulation” of nuclear power in violation of the Supremacy Clause); County of

Suffolk v. Long Island Lighting Co., 554 F. Supp. 399, 405 (E.D.N.Y. 1983), aff'd,

728 F.2d 52 (2d Cir. 1984) (where a County’s Complaint — seeking injunctive

relief against the Shoreham nuclear facility — was held to be preempted as

“regulatory conduct” designed to “regulate through the courts” the radiological

safety of the Shoreham nuclear facility; Citizens For An Orderly Energy Policy,

Inc. v. County of Suffolk, 604 F. Supp. 1084, 1098 (E.D.N.Y. 1985) (stating that“...

mere interference with a licensing process may under some circumstances violate a

constitutionally protected liberty interest); Flores v. Pierce, 617 F.2d 1386, 139]

(9th Cir.), cert. denied, 449 U.S. 875 (1980) (holding that “the policy of [govern-

ment] officials to force [minority liquor license] applicants to undertake extraordi-

nary measures for its issuance” can constitute a denial of equal protection even

where the decision to approve the license rests with a superior governmental

agency).

14

what they believed to be legitimate land-use regulations. Rather,

Respondents deliberately obstructed federal licensing procedures

with the objective that Seabrook “never operate.” See n.7, supra.

That Respondents lacked legitimate authority to “regulate” Seabrook

in the strictest sense of that word?! should in no way insulate either

their egregious conduct or misconduct from Constitutional scrutiny

under the Takings Clause.

Indeed, “[i]t would be a very curious and unsatisfactory result

if’? the proper exercise of a state’s police power, which temporarily

denies property owners all “economically viable use” of their prop-

erty, gives rise to a compensable taking, while the misuse or abuse

of a state’s police power — in violation of, inter alia, principles of

federal preemption and res judicata — escapes scrutiny under the

“Takings” clause and leaves Petitioners without redress for the

substantial Constitutional harms they have suffered.”

Here, executives and legislators within the Commonwealth of

Massachusetts deliberately obstructed federal licensing proceedings

*ISee n. 17, supra. See also Northern States Power Co. v. Minnesota, 447 F.2d

1143, 1154 (8th Cir, 1971), aff'd, 405 U.S, 1035 (1972); City of Cleveland v. Pub,

Util. Comm’n of Ohio, 414 N.E.2d 718, 720 (1980); Public Interest Research

Group of New Jersey, Inc. v. New Jersey, 377 A.2d 915 (1977); and State ex rel.

Util. Consumers Council v, Pub, Serv. Comm'n of Missouri, 562 S.W.2d 688 (Mo.

App. 1978), cert. denied, 439 U.S, 866 (1978).

?2 Pumpelly, 13 Wall. at 177-178, quoted in First English, 482 U.S. at 316.

3Having erroneously concluded that no taking had occurred, the Appeals Court

(and, likewise, the trial court) never reached the question of whether or not Petition-

ers had articulated a protectable property interest. Nonetheless, it should be noted

that Petitioner Hudson and all of the Necessary Parties hereto own various interests

in Seabrook under the “Agreement for Joint Ownership, Construction and Opera-

tion of New Hampshire Nuclear Units” dated May 1, 1993, as amended.

Moreover, the remaining Petitioners invested in Seabrook through certain Power

Sales Agreements whereby they became holders of substantial percentages of the

electric generating capacity of Seabrook and were required, under the “take or pay”

provisions of those contracts, to pay for their respective percentages of Seabrook’s

generating capacity during the period of undue delay which resulted from Respon-

dents’ obstruction of the licensing process.

It is well settled that reasonable investment-backed expectations of the type alleged

here are protectable property interests. See Kaiser Aetna v. United States, 444 U.S.

15

and thereby took Petitioners’ property and impaired certain of their

contracts. Now, that state’s judiciary holds that such conduct is

insulated from scrutiny under federal Constitutional law, binding

precedent of this Court, and principles of both federal preemption

and res judicata. To the contrary, where, as here, “. . . state power is

used as an instrument for circumventing a federally protected right”

it will not be “insulated from federal judicial review.” Gomillion v.

Lightfoot, 364 U.S. 339, 347 (1960).

This Court should take the opportunity to reverse the Appeals

Court’s rejection of the temporary regulatory takings doctrine set

forth in First English and Lucas, supra.

This Court should also take the opportunity to reverse the Ap-

peals Court’s dismissal of Petitioners’ Contract Clause claims on

the basis of an impermissible factual finding, contrary to the binding

allegations of predicate legislative conduct set forth in Petitioners’

Amended Complaint. (Compare Appendix A-10 with Appendix F).

Finally, this Court should grant certiorari here to explicitly rule

that a temporary taking of property resulting from a state’s deliber-

ate obstruction of a federal licensing procedure is compensable as a

164, 179 (1979) (holding that"... the consent of individual officials representing

the [government]... can lead to the fruition of a number of expectancies embodied

in the concept of “property” - expectancies that, if sufficiently important, the

Government must condemn and pay for .. .”), See also Penn Central Transporta-

tion Co. v. New York City, 438 U.S. 104, 125 ( 1978), citing United States v. Willow

River Power Co., 324 U.S. 499 (1945) and United States v. Chandler-Dunbar

Water Power Co., 229 U.S. 53 (1913) (holding that government action which

causes economic harm gives rise to a compensable “taking” where the challenged

action “interfere(s) with interests that were sufficiently bound up with the reason-

able expectations of the claimant to constitute “property” for Fifth Amendment

purposes.”). Cf. Allied-General Nuclear Services v. United States, 839 F.2d 1572,

1577 (Fed. Cir. 1988), cert. denied, 488 U.S. 819 (1988) (holding that “. . . the

principle [of implied contract] would apply if the government induced private

capital to embark on a project, expecting for its part to be called on to cooperate in

making the project a success, or at least to do nothing harmful, and the contractor

invested his capital, expecting it to be sheltered from adverse government action);

Appeal of Public Service Co. of New Hampshire, 454 A.2d 435, 439-40 (1982)

(holding that a party who relies in good faith on the absence of any regulation

which would prohibit a proposed project, and makes substantial construction on the

project or incurs substantial liabilities relating directly thereto, or both, acquires a

vested right to complete the project in spite of the Subsequent adoption of an

ordinance prohibiting the same. “If ever a case for vesting applied, it is the

expenditure of hundreds of millions of dollars to date at Seabrook!”),

16

temporary regulatory taking under the Fifth and Fourteenth Amend-

ments to the United States Constitution where, as here, the conduct

” 4

“goes too far”.

CONCLUSION

For the reasons set forth above, a writ of certiorari should issue to \

review the Rescript and Opinion of the Appeals Court for the Com-

monwealth of Massachusetts in this matter.” ;

Respectfully submitted,

MILLER, CANFIELD, PADDOCK AND STONE

Counsel for Petitioners

Dated: July si, 1993 By:

*

Thomas J. Heiden

By:

Meg Hackett Carrier

*Counsel of Record

*4Pennsylvania Coal, 260 U.S. at 415.

*If this Court elects not to address the issues presented in this writ at the present

time, it is requested that the writ issue and that the matter be summarily reversed in

light of this Court’s opinions in First English and Lucas, and/or in light of the

Appeals Court’s blatant disregard for Petitioners’ binding allegations of legislative

conduct to support their Contract Clause claims. (See n.3, supra and Appendix F).

ca ereemeeenieneeaatii el

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT FOR THE COMMONWEALTH,

AT BOSTON, February 25, 1993

IN THE CASE OF

MUNICIPAL LIGHT COMPANY OF ASHBURNHAM & others

VS.

COMMONWEALTH & others

pending in the Superior

Court for the County of Suffolk

ORDERED, that the following entry be made in the docket; viz..,-

The judgment of dismissal is affirmed.

BY THE COURT,

Nancy Turck Foley, Clerk.

February 25, 1993

91-P-910 Appeals Court

MUNICIPAL LIGHT COMPANY OF ASHBURNHAM & others'

VS.

COMMONWEALTH & others.*

No. 91-P-910

Suffolk. November 12, 1992. - February 25, 1993

Present: Brown, Kass, & Ireland, JJ.

Practice, Civil, Complaint, Motion to dismiss. Electric Company.

Estoppel. Contract, Implied. Commonwealth, Claim

against. Constitutional Law, Constitutional challenge by

government agency, Impairment of contracts. Eminent Do-

main, What constitutes taking. Corporation, Stocholder’s

[sic] derivative suit.

Civil action commenced in the Superior Court Department on

December 9, 1988.

The case was heard by Patrick J. King, J., on a motion to dismiss.

Thomas J. Heiden of Michigan (Meg Hackett Carrier of Michi-

gan, & Jonathan W. Blodgett with him) for the plaintiffs.

Peter Sacks, Assistant Attorney General, for the Commonwealth

& others.

'Eight other municipal light companies and the towns and cities in which those

municipal light companies are located, viz., Ashburnham, Boylston, Hudson, Paxton,

Peabody, Shrewsbury, Templeton, Wakefield, and West Boylston.

“The director of the Massachusetts Civil Defense Agency, the Governor, and the

Attorney General. The plaintiffs also named various other municipal light compa-

nies, the Vermont Electric Cooperative, and the Massachusetts Municipal Whole-

sale Electric Company as necessary parties. None of this latter category of parties

made claims or, so far as appears from the docket, filed an appearance; none is

involved in this appeal.

a

A-3

KASS, J. In their brief, the plaintiffs, who are municipal light

companies or departments, state a prodigious twenty-six issues on

appeal but these rather quickly boil down to three. All are based on

actions taken by the Commonwealth to delay the operation of

Seabrook Nuclear Power Plant Unit 1 (“Seabrook”) in Seabrook,

New Hampshire. Seabrook, since the plan for its construction

surfaced in 1968, has generated seemingly countless reactions of

super-heated litigation and civil disobedience. As a consequence of

the Commonwealth’s delaying actions, the plaintiffs (which we

shall sometimes refer to as the light companies) claim financial

losses attributable to Seabrook having come on line several years

later than would have been the case, but for the Commonwealth’s

machinations. The three issues to which the many urged can be

reduced are: (1) whether the Commonwealth’ is liable for damages

to the light companies on theories of estoppel or implied contract;

(2) whether the Commonwealth made a de facto taking of property

without just compensation; and (3) whether the Commonwealth

unconstitutionally impaired contractual obligations of which the

light companies had the benefit.

A judge of the Superior Court, acting on a motion to dismiss

under Mass.R.Civ.P. 12(b), 365 Mass. 755 (1974), dismissed the

complaint for failure to state a claim for which relief can be granted.

We affirm.

We summarize facts alleged in the complaint which, for purposes

of reviewing dismissal of a complaint under Mass.R.Civ.P. 12(b)(6),

we accept as true. Nader v. Citron, 372 Mass. 96, 98 (1977). We

do not purport to make any determination whether the facts alleged

and which we recite are accurate.

During the early to mid-1970’s, in response to a felt need for

capacity to generate more electric power, the Legislature, by the

enactment of St. 1973, c. 571,‘ created the New England Power Pool

and, by St. 1975, c. 775, created the Massachusetts Municipal Whole-

‘As the various individual defendants acted in their official capacities, we shall,

as a convenience, refer to all the defendants collectively as the Commonwealth.

4Codified at G. L. c. 164A.

A-4

sale Electric Company (“MMWEC’”).° Those statutes enabled, and

thereby encouraged, electric utility companies in Massachusetts to

participate in jointly owned power plants in or out of the Common-

wealth. In 1975, Seabrook was the only jointly owned power plant

planned in New England available to outside participants, and the

immediate purpose of the MMWEC legislation was to facilitate and

encourage participation in Seabrook.

Also in 1975, the Department of Public Utilities (DPU) deter-

mined that the Seabrook plant was necessary to meet the future

power needs of the Commonwealth. The following year, 1976, the

Energy Facilities Siting Council approved MMWEC’s participation

in the Seabrook project. From mid-1976 to late 1979, the DPU

approved four bond issues (presumably the issuer of the bonds was

MMWEC — the complaint does not say) which enabled MMWEC

to acquire its interest (11.59340%) in Seabrook. Relying on those

authorizations and approvals, the light companies acquired a sub-

stantial interest in Seabrook through the medium of membership in

MMWEC, memberships which involved entry by the light compa-

nies into power sales agreements (“PSAs”) with MMWEC. Under

the PSAs, the light companies were obligated to buy a stated per-

centage of the generating capacity of Seabrook.® The PSAs contain

what the parties call a “take or pay” provision, whereby the light

companies pay their pro rata share of MMWEC’s costs applicable to

the shared facility, irrespective of whether the light companies buy

electricity and, indeed, irrespective of whether the facility has elec-

tricity to sell.’

Contrary to its encouragement of Seabrook through the various

authorizations and approvals (so the complaint continues), the Com-

*MMWEC acts as a wholesaler of electricity which it purchases from large

generating facilities and sells to participating municipal light companies. Its struc-

ture and how it operates are described in Massachusetts Mun. Wholesale Elec. Co.

v. Danvers, 411 Mass. 39, 40-42 (1991), also a case arising out of the Seabrook

i project.

“The PSA mechanism does not apply to Hudson, which did not join MMWEC

but bought a direct interest in the Seabrook project.

7How the PSAs function is described in Massachusetts Mun. Wholesale Elec.

Co. v Danvers, 411 Mass. at 42.

A-5

monwealth, acting through its director of civil defense, its Gover-

nor, and its Attorney General, impeded the licensure of Seabrook by

the United States Nuclear Regulatory Commission (NRC). The

Massachusetts authorities delayed licensure by persistently raising

questions about the safety of Seabrook, notably the means to evacu-

ate population from the environs of Seabrook in the event of a

radiological emergency. Apart from objecting that inadequate safety

precautions were being taken, the Commonwealth declined to for-

mulate an emergency response plan. On March 27, 1986, the

Governor stated publicly that he would oppose final licensure of

Seabrook unless fallout shelters were provided on nearby beaches.

On October 8, 1986, the Seabrook plant was complete and stood

ready for commercial operation. All conditions for operation had

been satisfied except for the Massachusetts portion of the radiologi-

cal emergency response plan. Successive attorneys general* contin-

ued to oppose the grant of an operating license by the NRC. On

February 3, 1988, the Attorney General wrote a letter to the light

companies which restated his and the Governor’s view that the

Seabrook plant should and would not operate and urged the light

companies to withdraw from the project, even if that were a default

of their obligations under the PSAs. Approximately two years later,

on March 15, 1990, the NRC issued a full power operating license to

Seabrook.

As a consequence of the delays engineered by the Common-

wealth through its officers, the plaintiffs suffered damage because

-hey had to pay their share of the carrying costs (e.g., bond interest)

and suffered further damage on account of the electric power they

did not obtain from Seabrook and had to buy elsewhere.

It is familiar doctrine that a complaint can be dismissed for failure

to state a claim for which relief can be granted only if a reading of

the complaint establishes beyond doubt that the facts alleged, ac-

cepting them as true and drawing all inferences in the plaintiff’s

favor, do not add up to a cause of action which the law recognizes.

The plaintiff has to plead itself out of Court. Nader v. Citron, 372

Mass. at 98. Connerty v. Metropolitan Dist. Comm’n., 398 Mass.

140, 143 (1986). New England Insulation Co. v. General Dynamics

Co., 26 Mass. App. Ct. 28, 29-30 (1988). A complaint should not be

dismissed because it asserts a novel or extreme theory of liability or

‘Mr. Francis X. Bellotti and later Mr. James M. Shannon.

A-6

improbable facts. Coolidge Bank & Trust Co. v. First Ipswich Co.,

9 Mass. App. Ct. 369, 370 (1980). Jenkins v. Jenkins, 15 Mass. App.

Ct. 934 (1983).

1. Liability based on implied contract and estoppel. Through

establishment of the New England Power Pool and MMWEC, ap-

proval of the Seabrook site by the Energy Facilities Siting Council,

and approval (through the DPU) of MMWEC’s bonding authority,

the plaintiffs say that the Commonwealth encouraged their invest-

ment in Seabrook. On that encouragement the plaintiffs claim to

have reasonably relied and spent a great deal of money.’ They say

that the Commonwealth is estopped to deny an implied contractual

obligation io support the Seabrook project and to refrain from acting

so as to impede it.

We turn first to the question of estoppel. Generally, the prin-

ciples of estoppel are not applicable against the government in

connection with its exercise of public duties, particularly when the

government is acting in the public interest and safety, as its duly

constituted officials see that interest. Phipps Products Corp. v.

Massachusetts Bay Transp. Authy., 387 Mass. 687, 693 (1982), and

cases cited. Fitchburg Gas & Elec. Light Co. v. Department of Pub.

Utilities, 395 Mass. 836, 857 (1985) (also a case arising out of the

Seabrook project). Risk Management Foundation of Harvard Med.

Insts, 407 Mass. 498, 509-510 (1990). Gamache v. Mayor of No.

Adams, 17 Mass. App. Ct., 291, 294 (1983).

Here, the Commonwealth, acting through two of its highest offi-

cials, the Governor and the Attorney General, and through the

director of its civil defense agency, consistently opposed licensure

of Seabrook on the public policy ground that operation of the plant

posed a significant health and safety risk to the public. Governmen-

tal officials need to be free to act in accordance with their constitu-

tional and statutory authority in such manner as they think is in the

public interest without encumbrance from earlier collateral deci-

sions which may have suggested a different tendency so far as the

public issue is concerned. See, as an illustration, Hood Industries,

Inc. v. City Council of Leominster, 23 Mass. App. Ct. 646, n.1

*The complaint alleges that the plaintiffs and MMWEC “directly and indirectly

devoted $1 [b]illion to Seabrook.” If MMWEC’s share is 11.59340% an Hudson

has a .07% share, the indirect investment of the plaintiffs would be in the neighbor-

hood of $116,600,00.

A-7

(1987), in which the mayor and the regional chamber of commerce

encouraged the Plaintiff to buy land for a manufacturing plant but

the city council could lawfully deny a permit to store inflammable

liquids. To the degree that it has not become the subject of an

express and authorized contract, a public policy is necessarily sub-

ject to changes of view and changes of administration. See Phipps

Prod. Co. v. Massachusetts Bay Transp. Authy., 387 Mass. at 689,

693-694.

The light companies do not buttress their case by alleging that the

Governor and Attorney General were acting to advance their per-

sonal political agendas. Opposing Seabrook was within the scope of

the general duty of those officials to protect the public interest; it is

their actions that matter, not their states of mind.

Related to the theory of estoppel is the implied contract claim.

The administrative actions on which the plaintiffs rely, i.e., the

siting approval and bonding authority, cannot reasonably be inter-

preted as an unconditional approval of the Seabrook project. Bond-

ing authority involved a fiscal inquiry. See Fitchburg Gas & Elec.

Light Co. v. Department of Pub. Utilities, 394 Mass. 671, 680-681

_ (1985). Safety details had yet to be confronted. Nothing in the

statutes creating the New England Power Pool (St. 1973, c. 571) or

MMWEC (St. 1975, c. 775) binds the Commonwealth to a particu-

lar power facility. Those statutes are purely enabling and mention

no particular power facility. As to the Commonwealth’s attitude

toward Seabrook, it was never one of unalloyed support. There

were cross-currents of opposition to the project by Massachusetts as

early as 1975, as the complaint states. Upon examination, the stat-

utes and administrative decisions do not provide a reasonable basis

for a conclusion that the Commonwealth was unconditionally com-

mitted to Seabrook.

2. De facto taking by the Commonwealth. The light companies

complain that the Commonwealth, by its opposition to Seabrook, so

damaged the economic interests of the light companies that it in

effect made a taking by eminent domain of their property. Of course

there was no taking in the formal sense of G. L. c. 79, §1. If there is

a taking claim it must rest upon G. L. C. [sic] 79, §10 (damage to

property without a formal taking), or constitutional requirements of

just compensation under the Fifth Amendment to the Constitution of

the United States or art. 10 of the Declaration of Rights of the

Massachusetts Constitution.

A-8

The trial judge disposed of the taking claim on the ground that

public entities such as Hudson and the light companies may not

make claims for damages based on constitutional rights against the

State or another State agency. See Spence v. Boston Edison Co., 390

Mass. 604, 610 (1983); Trustees of Worcester State Hosp. v. The

Governor, 395 Mass. 377, 380 (1985). There have been occasions,

however, when superior public authorities have appropriated to

public use property owned by a body politic and corporate which

was engaged in a proprietary function, such as a municipal light

company, and in those instances eminent domain damages were

held payable. Proprietors of Mt. Hope Cemetary v. Boston, 158

Mass. 509, 511-512 (1893). Higginson v. Treasurer & School

House Commrs. of Boston, 212 Mass. 583, 585-589 (1912). Cam-

bridge v. Commissioner of Pub. Welfare, 357 Mass. 183, 185-187

(1970). 1 & 2 Nichols, The Law of Eminent Domain 2.225[1],

5.550[6] (1993).

In its application to tort liability, the “governmental function”

and “proprietary function” distinction has been the subject of censo-

rious comment. See Morash & Sons, Inc. v. Commonwealth, 363

Mass. 612, 622 (1973); Whitney v. Worcester, 373 Mass. 208, 213-

215 (1977); Green v. Commonwealth, 13 Mass. App. Ct. 524, 525-

526 (1982). Thus far there do not appear to have been occasions to

examine the vitality of the distinction in the context of takings by

superior governmental agencies, and an occasion so to do is not

present in the instant case because there has been no taking.

Although takings generally involve the appropriation or damage

of physical property by a State agency, i.e., acquiring title to or

occupying the property, compensable takings may occur when the

governmental action deprives an owner of virtually all of that owner’s

interest in the property affected. Cayon v. Chicopee, 360 Mass. 606,

609 (1971). By way of illustration, an owner of business premises

was held to have a right to taking damages when an order of taking

deprived the business of access to a public way which previously

nrovided the only access. Cann v. Commonwealth, 353 Mass. 71,

"3-75 (1967). Less convenient access, however, is not a ground for

compensation. Tassinari v. Massachusetts Turnpike Authy., 347

Mass. 222, 223-224 (1964). LaCroix v. Commonwealth, 348 Mass.

652, 657 (1965). What the plaintiffs in the instant case complain of

falls in the latter category.

There are economic consequences to the plaintiffs by reason of

A-9

the Commonwealths’s safety demands upon Seabrook but they are

collateral consequences. There are collateral consequences from all

manner of governmental decisions, e.g., to levy a tax; to impose a

tariff; to impose standards of manufacture; to build a new and better

road; to locate a new airport; to revoke a subsidy; or to reduce the

budget for public safety. There would be no end to assaults on the

public purse if persons who suffered economically by reason of

public policy or changes in public policy could claim a de facto

taking of their property. To this we add the observations (1) that the

Commonwealth has not and, of course, could not acquire, hem in,

shut down or even inhibit the Seabrook facility, which is located in

New Hampshire, and (2) that the interest of the plaintiffs in Seabrook

retains value because the generating plant is operating. Obtaining

that value has perhaps taken longer and cost more because of the

Commonwealth’s activity, but that is analogous to inconvenience.

What we have said applies to the theory argued by the plaintiffs

that they have suffered a regulatory taking. See Lucas v. South

Carolina Costal Council, 112 S.Ct. 2886 (1992); Wilson v. Com-

monwealth, 413 Mass. 352 (1992). The plaintiffs have not been

totally deprived of the value of their property, id. at 355, and the

Commonwealth has not regulated and cannot regulate Seabrook. Its

activities have been confined to the role of an advocate before those

Federal agencies which can and do regulate Seabrook.

A further disability which the plaintiffs suffer as taking claimants

is that they are not the applicant for the operating license for

Seabrook. As stockholders have an interest in a corporation; plain-

tiffs have an interest in Seabrook. Stockholders may not in their

own names bring an action for damage to the corporation in which

they hold stock; they may bring a derivative action in the name of

the corporation. Schaeffer v. Cohen, Rosenthal, Price, Mirkin,

Jennnings & Berg, P.C., 405 Mass. 506, 513 (1989). Vincel v.

White Motor Corp., 521 F.2d 1113, 1118 (2d Cir. 1975). Citizens

for an Orderly Energy Policy, Inc. v. County of Suffolk, 604 F.Supp.

1084, 1091 (E.D.N.Y. 1985) (utility ratepayers and shareholders

lacked standing to claim unlawful interference with utility’s appli-

cation for an operating license from the Nuclear Regulatory Com-

mission).

3. Impairment of contract claim. The last clutch of claims as-

serted by the plaintiffs is that the action of the Commonwealth

impaired the contractual rights which they had in relation to Seabrook

A-10

and, thus, the Commonwealth acted contrary to Art. I, §10, cl. 1, of

the United States Constitution, commanding that “[n]o State shall...

pass any ... Law impairing the Obligation of Contracts ...” That

constitutional provision aims “at the legislative power of the State,

and not at decisions of its courts, or the acts of administrative or

executive boards or officers, or the doings of corporations or indi-

viduals.” New Orleans Waterworks Co. v. Louisiana Sugar Refin-

ing Co., 125 U.S. 18, 30 (1888). Hanford v. Davies, 163 U.S. 273,

278 (1896). See United States Trust Co. v. New Jersey, 431 U.S. 1,

15-16 (1977); Boetti v. Ogden Suffolk Downs, Inc., 587 F. Supp.

1048, 1050 (D.Mass. 1984). The plaintiffs do not point to any act of

the Legislature which impaired their contract. An additional ob-

stacle for the plaintiff is the inhibition, previously averted to, upon

the assertion of constitutional claims by a public entity created by

the State against the State. See Spence v. Boston Edison Co., 390

Mass. at 610.

The complaint was rightly dismissed as failing to state a claim for

which relief can be granted. The judgment of dismissal is affirmed.

So ordered.

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION

NO. SS-6917B

THE MUNICIPAL LIGHT COMPANIES OR

DEPARTMENTS OF ASHBURNHAM and others,!

Plaintiffs

Ay

COMMONWEALTH OF MASSACHUSETTS and others,”

Defendants

AY

MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC

COMPANY and others,’

Third-Party Plaintiffs

MEMORANDUM OF DECISION AND ORDER

FOR JUDGMENT ON THE DEFENDANTS’ MOTION

TO DISMISS AMENDED COMPLAINT

‘Boylston, Hudson, Paxton, Peabody, Shrewsbury, Templeton, Wakefield and

West Boylston, Massachusetts, individually and on behalf of their ratepayers, and

the Towns or Cities of Ashburnham, Boylston, Hudson, Paxton, Peabody,

Shrewsbury, Templeton, Wakefield, and West Boy!ston, Massachusetts.

‘Robert Boulay, Director of the Massachusetts Civil Defense Agency, offi-

cially; Michael Dukakis, Governor of the Commonwealth of Massachusetts; and

James Shannon, Attorney General of the Commonwealth of Massachusetts.

‘The Taunton Municipal Lighting Plant, United Illuminating Company, Ver-

mont Electric Cooperative, and the Municipal Light Companies or Department of

Braintree, Danvers, Georgetown, Groton, Hingham, Holden, Holyoke, Ipswich,

Littleton, Mansfield, Marblehead, Middleborough, Middleton, North Attleboro,

Reading, South Hadley, Sterling, and Westfield.

B-2

BACKGROUND

This action for damages and equitable relief stems from the

controversy surrounding the granting of an operating license for the

Seabrook Nuclear Power Plant Unit 1 (Seabrook). The plaintiffs

claim that the defendants’ opposition to the licensing of Seabrook

has unjustly stymied their efforts to obtain a full-power operating

license for Seabrook, and has caused them to suffer irreparable

harm, thereby entitling them to damages and equitable relief. The

defendants are now before this court on a motion to dismiss Counts

III through VII of the amended complaint pursuant to Mass. R. Civ.

P. 12(b)(1) and 12(b)(6). The plaintiffs filed a Notice of Dismissal

of Counts I and II on or about July 18, 1990. After a hearing and

review of the record, this court allows the motion to dismiss for the

following reasons.

DISCUSSION

A complaint should not be dismissed for failure to state a claim

upon which relief can be granted unless it can be shown that, even

when accepting the complaint as true and drawing all inferences in

favor of the plaintiffs, there is no set of facts which would entitle the

plaintiffs to relief. Nader v. Citron, 372 Mass. 96, 98 (1977).

Doubts or misgivings as to whether a claim is provable or even

credible are not a proper basis for dismissal of a claim under Mass.

R. Civ. P. 12(b)(6). Gibbs Ford, Inc. v. United Trucking Leasing

Corp., 399 Mass. 8, 13 (1987); Wrightson v. Spaulding, 20 Mass.

App. Ct. 70, 72 (1985). A claim will not be dismissed simply

because it asserts a new or extreme theory of liability or improbable

facts. Jenkins v. Jenkins, 15 Mass. App. Ct. 934 (1983).

I. Count III

Count III of the plaintiffs’ amended complaint, sounding in con-

tract, alleges that because of various actions taken by the state,* the

plaintiffs were induced to participate in Seabrook and ultimately to

*These actions include the General Court of the Commonwealth’s encourage-

ment of Massachusetts Utilities and Municipal Light Departments’ (MLDS’) par-

ticipation in the Seabrook project via the New England Power Pool (NEPOOL)

statute (G.L. c. 164A, §§ 1-27), and the Massachusetts Municipal Wholesale

Electric Company (MMWEC) statute (G.L. Spec. L. c. 13 §§ 1-25), the Massachu-

setts Energy Facilities Siting Council's approval of the Seabrook site, and the

Department of Public Utilities’ approval of bonding authority for Seabrook.

Amended Complaint at 9987-90.

B-3

devote $1 billion to the project. However, by the actions of defen-

dants Dukakis, Shannon and Boulay, who opposed the licensing of

Seabrook and who refused to publish the emergency response plan,

they claim that the Commonwealth breached its implied contract

with the [sic] them; they now seek damages for the loss of their

reasonable investment backed expectations.

This court is not persuaded by the plaintiffs’ argument that,

because certain approvals were given to them, the state was some-

how contractually obligated to approve and authorize the Seabrook

project. The Supreme Judicial Court has addressed a similar argu-

ment in a case involving MMWEC and DPU. In Fitchburg Gas and

Electric Light Co. v. Department of Public Utilities, 395 Mass. 836,

856 (1985), MMWEC contended that, because it relied on prior

DPU approvals in entering contracts, issuance of MMWEC bonds

was contractually obligated. The court rejected this argument for

two reasons. First, it held that a department’s reasonable exercise of

its statutory authority was not subject to an amendment through the

creation of a contract with those it is intended to govern; second, the

court expressly refused to apply principles of estoppel to public

utilities where the application of those principles would negate legal

requirements intended to protect the public interest. /d. at 857.

Such reasoning is indeed applicable here. This court will not find

that either the Governor, Attorney General, or Director of this state’s

Civil Defense Agency is estopped from taking any steps within their

broad authority, simply because other government agencies granted

site approvals or bonds for the Seabrook project. Private entities

may not constrain the abilities of public officials to take action they

believe to be in the public interest merely by acquiring some pre-

liminary approvals from other agencies of the state. The principles

of estoppel are clearly inapplicable here.

The plaintiffs’ implied contract argument must also fail. They

allege that the MMWEC and NEPOOL statute, as well as the siting

and bond approvals, were reasonable representations upon which

they could rely, and which ultimately created a contractual relation-

ship between the parties. The three defendants, however, took

positions regarding the safety and licensing of Seabrook, matters not

at all related to the prior approvals upon which the plaintiffs claim

they relied. See, e.g., G.L. c. 164, §14. The plaintiffs knew the

limits and scope of the approvals they had received; for them to

assume that these approvals provided carte blanche governmental

B-4

approval for the Seabrook project as a whole is unreasonable as a

matter of law.

Most importantly, it must be noted that the plaintiffs themselves

recognize that the Commonwealth has opposed the Seabrook project

since as early as 1975. Amended Complaint at 27. Simply because

the plaintiffs invested money in the belief that, based on prior

approvals, all additional approvals would be forthcoming, does not

mean that an enforceable contract was formed. The plaintiffs’

assumption that Seabrook would receive the remaining necessary

approvals, and that no Commonwealth official would dispute those

approvals, will not support their claim of breach of implied contract.

Lastly, even if such an implied contract was created, it would be

unenforceable. A state has no power to enter into binding contracts

not to exercise its police power at a future date. U.S. Trust Co. v.

New Jersey, 431 U.S. 1, 23 n.20 (1977); Boston Elevated Railway v.

Commonwealth, 310 Mass. 528, 550-553 (1942). Particularly where

the health and safety of its citizens are involved, a contract will not

stand in the way of the defendants ability to exercise their legal

authority.° Therefore, the defendants’ motion to dismiss Count III

will be ALLOWED.

II. Counts IV-VII

In Counts IV and VII, the plaintiffs allege that they have a

proprietary interest in Seabrook, and that the actions of defendants

Dukakis and Shannon, in opposing the licensing of Seabrook, mani-

fest the Commonwealth’s intention to take their interest in Seabrook

for public purposes in violation of the Massachusetts and United

States Constitutions. Likewise, in Counts V and VI the plaintiffs,

the Town of Hudson and the MLDs, claim that the two defendants

have violated the Contract Clause of the U.S. Constitution (Article I,

10, cl. 1), by “interposing ‘insuperable obstacles to the licensure’ of

Seabrook.” Hudson is a party to the Seabrook Participation Agree-

‘This court has found no statute restricting either the Governor, the Attorney

General, or the head of the Civil Defense Agency from vocalizing or publicizing

their concerns about a nuclear power plant.

“This Agreement purportedly deals with the construction, licensing and opera-

tion of Seabrook. Based on this Agreement, Hudson asserts that it will be entitled to

Ee

B-5

ment,” while the MLDs are mutual contracting parties to a variety of

power sales agreements.’

The plaintiffs seek to recover monetary damages for the losses

they suffered as a result of these constitutional violations. All four

of these counts, however, must be dismissed, because government

entities may not challenge the constitutionality of the acts of another

of the state’s agencies. Spence v. Boston Edison Co., 390 Mass.

604, 610 (1983).

In Spence, the court held that

... It is one thing to allow governmental agencies the

protections of a private consumer where the parties are

both acting in a private capacity and where there is

absolutely no “public aspect” to the transaction. It is

quite another, however, to permit an agency created by

Statutory authority to raise constitutional challenges to

procedures developed by legislative authority.

Id. at 610. Here, the plaintiffs are not suing the defendants based on

their business practices or a commercial transaction between them.

Rather, they challenge the defendants’ participation in the approval

process itself. Thus, this case falls squarely within the holding of

Spence.

Moreover, there is absolutely no dispute that each of the plaintiffs

are publicly created entities, formed to effect public functions. The

Town of Hudson, although a part-owner of Seabrook, is a municipal

corporation under the Massachusetts Constitution. Amended Com-

plaint at 4,9, 99. The statute which created MMWEC, Spec.L. c.

12, §2, expressly states that it is a body politic and a corporate and

political subdivision of the Commonwealth. It is “a public instru-

mentality and the exercise of [its] powers . . . shall be deemed and

held to be the performance of an essential public function.” The

MLDs are electric departments or lighting plants of the plaintiff

towns of the Commonwealth.

percentages of produced electricity upon the completion of Seabrook. Amended

Complaint at 999.

‘These power sales agreements pass the burdens and benefits of MMWEC’s

interest in Seabrook through to the MLDs. Amended Complaint at 9105.

B-6

The constitutional claims of the plaintiffs are therefore barred by

the long-standing and broad prohibition on constitutional challenges

by sovarmmeanal anities t¢ acts of their creator state. Therefore,

Counts IV through VII will be dismissed."

ORDER

Accordingly, it is hereby ORDERED that defendants’ motion to

dismiss Counts III through VII of plaintiffs’ amended complaint be

ALLOWED), and judgment shall enter dismissing said amended com-

plaint.

Patrick J. King

Justice of the Superior Court

Dated: December 28, 1990

“Also as in Spence, the constitutional provisions invoked by the plaintiffs are

rights given to individual citizens which may not be infringed by the government.

Specifically, the words used to describe those entitled to constitutional protection

are “person” or “citizens” (U.S. Constitution, Amendments V and XIV), and

“individual” (Declaration of Rights, Article 10). The plaintiffs here, according to

these terms, do not have such rights. Spence, supra at 608.

: meds

B-7

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT

CIVIL ACTION

THE MUNICIPAL LIGHT COMPANIES No. 88-6917

OR DEPARTMENTS OF ASHBURNHAM,

et als. [sic],

PLAINTIFF(S)

¥s

COMMONWEALTH OF MASSACHUSETTS,

et als. [sic],

DEFENDANT(S)

JUDGMENT ON MOTION TO DISMISS

(PURSUANT TO MASS.R.CIV.P.12(b))

THIS ACTION CAME ON TO BE HEARD ON THE MOTION Of

DEFENDANT(S)

TO DISMISS [COUNTS III-VII OF] THE ACTION, AND THE

COURT, KING J., PRESIDING, HAVING ALLOWED THE SAID

MOTION, IT IS HEREBY ORDERED AND ADJUDGED THAT

THE ACTION BE DISMISSED, AND THAT DEFENDANT RE-

COVER COSTS.

DATED AT BOSTON, MASSACHUSETTS, THIS 2nd DAY OF

JANUARY, 1991.

MICHAEL JOSEPH DONOVAN

CLERK/MAGISTRATE

By:

ASSISTANT CLERK

APPENDIX C

Supreme Judicial Court For The Commonwealth Of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 725-8055

Jonathan W. Blodgett, Esquire

Blodgett, Delaney & Donovan

40 Lowell Street

Peabody MA 01960

RE: Docket No. FAR-06545

MUNICIPAL LIGHT COMPANY OF ASHBURNHAM & others

VS.

COMMONWEALTH & others

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on April 27, 1993, the above-captioned

Application for Further Appellate Review was denied.

Jean M. Kennett, Clerk

Dated: April 27, 1993

To: Jonathan W. Blodgett, Esquire

Peter Sacks, A.A.G.

APPENDIX D

AMENDMENT V TO THE UNITED STATES

CONSTITUTION

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use without just compensation.

AMENDMENT XIV, SECTION 1 TO THE UNITED STATES

CONSTITUTION

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

APPENDIX E

ARTICLE I, SECTION 10, CLAUSE 1 TO

THE UNITED STATES CONSTITUTION

No State shall enter into any Treaty, Alliance, or Confederation;

grant Letters of Marque and Reprisal; coin Money; emit Bills of

Credit; make any Thing but gold and silver coin a Tender in Pay-

ment of Debts; pass any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or grant any Title of Nobility.

APPENDIX F

Petitioners included the footnote set forth below at p. 19 of their

Reply Brief filed in the Massachusetts Appeals Court. This same

footnote was referenced and paraphrased in Petitioners’ Application

For Leave To Obtain Further Appeliate Review By The Full Su-

preme Judicial Court.

22/ The Commonwealth’s contention that Counts V and VI of the

Amended Complaint must be dismissed for their failure to allege

legislative (as opposed to executory) conduct in violation of the

Contract Clause is also without merit and, at the very least, prema-

ture. (See Brief of Defendants/Appellees at pp. 46-49). Given that

the lower court denied the MLDs the opportunity to conduct any

discovery in this matter, the precise nature and scope of the legisla-

tive conduct undertaken by the Commonwealth cannot be specifi-

cally alleged. Nonetheless, there has been substantial legislative

entanglement. First, through the NEPOOL Statute enacted in 1973,

the General Court of the Commonwealth encouraged the MLDs to

increase the region’s share of nuclear generating capacity. Second,

through the MMWEC statute enacted in 1975, the General Court of

the Commonwealth encouraged and enabled the MLDs to partici-

pate in Seabrook and other such jointly-owned power plants. Third,

in approving the Seabrook site, the Massachusetts Energy Facilities

Siting Council exercised the Commonwealth’s police power in fa-

vor of the MLDs’ participation in Seabrook. Fourth, the Department

of Public Utilities, under legislative authority delegated by the Gen-

eral Court of the Commonwealth, determined both that the Seabrook

plant was necessary to meet the future power needs of the Common-

wealth, and that a series of bond issues was reasonable and neces-

sary to finance Seabrook. Fifth, upon information and belief, the

General Court of Massachusetts approved special appropriations to

finance a “Seabrook Strike Force” in the Office of the Massachu-

setts Attorney General in order to develop and implement a litiga-

tion strategy designed to defeat Seabrook’s application for an oper-

ating license. Sixth, the Civil Defense Agency, which refused to

promulgate the Commonwealth’s emergency response plan, oper-

ates under legislative authority delegated by the General Court of

Massachusetts. Accordingly, sufficient legislative conduct has been

alleged to support a claim for relief under the federal Contract

Clause. Moreover, additional legislative involvement may well be

uncovered and/or substantiated once reasonable discovery is permit-

ted to take place.