A lawsuit filed in the Massachusetts Supreme Judicial Court (SJC) last month by 40 Amherst voters who claim that Town officials wrongfully disqualified their petition signatures in April has expanded, to include claims of federal civil rights violations. In an amended complaint filed on June 4, the plaintiffs cite U.S. Code 42 Section 1983, and state that the Board of Registrars, while “acting under color of law,” wrongfully deprived them of their federal Constitutional rights to vote, and to petition their government for redress of grievances. The amended complaint can be read or downloaded using the links below.
“Voting rights and petitioning rights are civil rights under the U.S. Constitution,” said petitioner Marla Jamate. “The expansion of this lawsuit underscores the seriousness of the Town’s errors in failing to certify signatures of duly registered voters, and the need to correct these mistakes and restore faith in our local government.”
The Massachusetts legislature, in 1971, adopted an act which relaxed requirements for signatures on nomination papers, and the Massachusetts General Laws have since required only that a person sign “substantially as registered.” Boards of Registrars are supposed to certify a signature if they can “reasonably determine from the form of the signature the identity of the duly registered voter.”
As of Friday, no hearing dates were set by the SJC and the Town had not filed a response to the complaint.
Petitioners sought a referendum on the Town Council’s April 5 vote to borrow $35 million to renovate and expand the Jones Library, and submitted signed petitions on April 20. Boards of Registrars statewide are responsible for certifying signatures on nomination papers and petitions, but the Amherst Town Clerk’s Office obtained authority to certify instead at a brief Board meeting on April 21. The Clerk’s Office announced later that day that although 1,088 signatures were submitted, the petitioners were 22 certifiable signatures short of the 864 which represent five percent of the Town’s registered voters. Under the Amherst Home Rule Charter, the five percent threshold must be met to trigger a Voter Veto referendum.
The lawsuit filed by Attorney Carol Gray of Amherst and Attorney Thomas O. Bean of Verrill, Dana in Boston asks the court to enter judgement in favor of the plaintiffs, direct the Town to certify at least 76 of the disqualified signatures, and conclude that the 5 percent threshold was met.
Voters who filed the recent lawsuit state that their signatures were disqualified for irrelevant reasons which are contrary to state law, including omission or inclusion of middle initials, failure to abbreviate “Lane” or “Road” in their addresses, or inclusion of the words “Amherst,” “Massachusetts,” and a zip code after a street name.
U.S. Code 42 Section 1983 allows public officials to be held liable for using governmental authority to deprive citizens of their Constitutional rights. The amended complaint also states that plaintiffs are “entitled to an award of reasonable attorneys’ fees and costs.” If the Town were to lose the lawsuit, it could be liable not only for its own significant attorneys’ fees and costs, but for the plaintiffs’.
The Board of Registrars held an executive session on Monday, June 14 at 11 a,m., to discuss the lawsuit called Terry Y. Allen et al vs. Board of Registrars, and was not slated to return to open session. At the Board’s last meeting on June 1, constitutional lawyer John Bonifaz of Amherst, who doesn’t represent the plaintiffs and didn’t sign the petition, urged the Board to enter into an immediate “consent decree” to certify signatures and schedule the referendum the petitioners sought.
The Board, Bonifaz said, “can opt to waste tens of thousands of taxpayer dollars in legal fees fighting this case in court or can opt to settle this matter.” The Board could propose the consent decree with the assistance of the Town’s attorneys, an action that would “vindicate the Constitutional rights of Amherst voters whose signatures on this Voter Veto petition were wrongly disqualified,” Bonifaz said.
The Town Council, although it met in an executive session to discuss the lawsuit on June 7, has not made any public statement about it, and the Council’s role in the matter is unclear. The Charter grants Town Manager Paul Bockelman the authority to “prosecute, defend, and compromise all litigation” in which the Town is involved.
In a June 7 Town Manager’s Report, Bockelman noted that the petitioners had withdrawn an earlier case filed in April in Hampden Superior Court, which sought the right to use electronic signatures and other COVID-19 accommodations.
Bockelman wrote that he submitted signed documents to the Massachusetts Board of Library Commissioners prior to April 30 in order to receive funds this year. “We will be creating a Building Committee to oversee the project,” he stated, adding that the Town will be responding to the recent lawsuit “within the designated time frame.” Meanwhile, the Jones Library Board of Trustees is also scheduled to meet June 14, and will discuss the building project.
The amended complaint stated that the Board of Registrars failed to certify 17 signatures based on names alone, including denial of two for no apparent reason, five because a middle initial was inserted or omitted, one for use of a common nickname, and two because first and middle initial were used with a last name. These variations are allowable under state regulations.
The signatures disqualified over address issues include 28 in which signers included their street address as it appears in the Town’s voter rolls, but didn’t write their apartment numbers. Another six wrote addresses that “precisely” matched the voter rolls, according to the complaint. In three other instances, signers were disqualified for writing out the words Lane or Road, when those terms were abbreviated on the voter rolls. Three signers were also disqualified for writing “Crossbrook” or “Crossbrook Ave.,” on the petition when voter rolls used the abbreviation “Cross Brk.”
Six signers were disqualified for not including the words “Court,” “St.,” or “Rdg” after their street names, and seven for including “Amherst,” the abbreviation “MA,” or the zip code after their street addresses.
The Amherst referendum petitioners have also submitted 92 affidavits to the Board of Registrars from residents who stated that they signed and wrote their addresses as they do normally, and would like their signatures to be counted. However, Town attorneys from KP Law told the Board at recent meetings that it could do nothing to change the certification, and that the petitioners’ only avenue for redress was to file suit in a court of law.
Public Records Request Seeks Information On Legal Fees
A former Jones Library Trustee President, Sarah McKee, filed a public records request with Bockelman and the Town Council on June 9, seeking information about how much the Town has spent on attorney’s fees from April 1 through May 31. This time period would include several weeks in which the Town was defending itself in legal actions filed by petitioners.
McKee asked for all bills, invoices and requests for payment from the law firm Kopelman and Paige (KP Law) of Boston, along with hourly billing rates for its attorneys Lauren F. Goldberg, Gregg J. Corbo, and Devan C. Braun.