Town’s Legal Fees Mount As Amherst Fails To Set Date For Referendum On Library Project

Photo: Legal fees by Nick Youngson CC BY-SA 3.0 Pix4free

The Town of Amherst was billed nearly $12,000 by a Boston law firm for work in April to defend the Board of Registrars against petitioners who sought a referendum on the Jones Library building project, according to documents obtained via a public records request. 

The amount of the Town’s legal bills for May have not yet been released under the initial records request filed by resident Sarah McKee. However, during the last several weeks, lawyers from Kopelman & Paige (KP Law) attended public meetings of the Town Council and Board of Registrars, filed legal documents, and may have been present at closed executive sessions of the Town Council which could yield additional bills for May and June. 

“This is a voters’ rights issue,” said McKee, a past president of the Jones Library Board of Trustees. “The Town is on the wrong side of it, and is paying thousands of our taxpayer dollars to defend its flawed process, which disqualified the petition signatures of at least 76 registered Amherst voters.” 

Certifying just 22 of those signatures, including the 28 who were wrongly disqualified for not including their apartment numbers, would give voters the referendum to which they are entitled under the Amherst Home Rule Charter, McKee said. “It is wasteful and insulting for the Town … to spend taxpayers’ money to defend its own patently unlawful disqualifications of Amherst voters’ signatures,” she added. 

The petitioners sought a referendum after the Town Council’s April 5 vote to borrow $35 million to reconstruct the Jones Library, and submitted signed petitions on April 20. Municipal Boards of Registrars are responsible for certifying signatures on nomination papers and petitions, but the Town Clerk’s Office claimed that it obtained authority to certify instead at a virtual, three-minute Board meeting on April 21. Although 1,088 signatures were submitted, according to the Town Clerk’s Office the petitioners were 22 certifiable signatures short of the 864 which represents five percent of the Town’s registered voters.  

Forty voters who filed a lawsuit that is now pending in the Hampshire County Superior Court state that their signatures were disqualified unlawfully, based on insignificant differences between the information they provided and the town’s voting rolls. Plaintiffs’ signatures were disqualified for adding or omitting middle initials, failure to abbreviate “Lane” or “Road” in an address, or including the words “Amherst,” “Massachusetts,” and a zip code after a street name. 

The Massachusetts General Laws require 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.” 

The Town was billed $11,237 in April by KP Law to oppose a prior lawsuit by 11 residents against Town Clerk Susan Audette, according to the public records. In that case withdrawn in late May, petitioners who were informed that they couldn’t submit signatures electronically during the pandemic sought a court order for COVID-19 accommodations. 

KP Law also billed the Town $170 to discuss the referendum petition with Town Manager Paul Bockelman, review emails from petitioners, and attend a meeting with Bockelman and Audette.

Although the existing lawsuit, Terry Y. Allen et al vs. Board of Registrars of Amherst, was not filed until May 20, the April invoice includes $289 in fees under the heading “Allen vs. Amherst Board of Registrars.” 

One Year Added To Town’s Grant Contract With Library Board 
Meanwhile, records requested from the Massachusetts Board of Library Commissioners show that its contract with the Town to provide $13.87 million in grant funds for the library project was extended in June by one year, and will now end on June 30, 2026. Questions remain about why the year extension was sought and granted, and its possible impact on the overall costs of the reconstruction project. In weekly project updates sent by the Jones Library to the community this spring, library officials have warned that even a three-month delay could yield a “significant increase in the cost of the project.”  

 Deadline Looms for Putting Referendum Before Voters In November 
The current  lawsuit, which was originally filed in the Massachusetts Supreme Judicial Court (SJC), was transferred on June 22 to Hampshire Superior Court by Single Justice Serge Georges Jr.  The plaintiffs had filed a motion for speedy resolution of the case by the SJC on June 14, noting that Sept. 28 is the deadline for the Town Clerk to place a question on the ballot for the local election in November. However, the Town declined to assent to the motion, and said it was inclined to oppose it. 

In its answer to the lawsuit on June 15, the Town said it lacked sufficient information to admit or deny many of the allegations, and that the Town’s actions “were consistent with and complied with” state and federal law.  

This spring, petitioners 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.

Several weeks ago, Registrar Demetria Shabazz proposed that the Board nullify its April 21 meeting by determining that Open Meeting Law violations took place, a move that would have allowed the petition signatures to be counted anew. However, lawyers from KP Law told the Board 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. Constitutional lawyer John Bonifaz of Amherst had urged the Board in early June to pursue a “consent decree” with the plaintiffs to settle the case.

The Board of Registrars and the Town Council both held executive sessions in June to discuss the pending lawsuit, but neither body has taken public action regarding it.  The authority to “prosecute, defend, and compromise all litigation” involving the Town rests with the Town Manager, under the Home Rule Charter. 

The current lawsuit states that the Board of Registrars owed a duty to the plaintiffs and other petition signers to comply with state law about signature certification, and to uphold their rights under the U.S. Constitution and Massachusetts Declaration of Rights. The case, filed by Attorneys Thomas O. Bean of Verrill, Dana in Boston and Carol Gray of Amherst, asks the court to conclude that the 5% threshold for a referendum was met.

Town Calls Federal Claims “Frivolous” 
The plaintiffs expanded their claims to include federal civil rights violations in an amended complaint filed June 4, and cited 42 United States Code Section 1983. They stated 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. That section allows public officials to be held liable for using governmental authority to deprive citizens of their Constitutional rights. 

The Board of Registrars, according to the lawsuit, failed to certify 17 signatures based on names alone, including denial of two signatures 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.  Twenty-eight signers who wrote their street address as it appears in the Town’s voter rolls, but didn’t write their apartment numbers were disqualified, along with six whose addresses “precisely” matched the voter rolls, according to the complaint. In three instances, signers were disqualified for writing out the words Lane or Road, when those terms were abbreviated on the voter rolls. 

Seven petitioners were disqualified for including, “Amherst,” the abbreviation “MA,” or the zip code after their street addresses, and others for writing “Crossbrook” or “Crossbrook Ave.,” on the petition when voter rolls used the abbreviation “Cross Brk,” or for not including the words “Court,” “St.,” or “Rdg” after their street names. 

April Legal Bills Tied To Three Lawyers At KP Law 
In her public records request, McKee asked for all bills, invoices and requests for payment from the law firm, along with hourly billing rates for its attorneys Lauren F. Goldberg, Gregg J. Corbo, and Devan C. Braun. 

The Town was billed $612 for 2.3 hours of Braun’s work on April 20, in opposition to the lawsuit seeking use of electronic signatures; followed by $561 for 3.3 hours on April 21 and $629 for 3.7 hours on April 22.  Braun also spent 4.2 hours on April 26 drafting an opposition motion, for which the Town was billed $765. On April 27, Braun spent 8.6 hours on research and drafting a memorandum, among other tasks, resulting in a bill of $1,462, while Corbo spent six hours that day engaged in legal research drafting an argument, resulting in costs of $1,020. Other legal expenses in April resulted from Goldberg’s preparation for meetings with Bockeman, Audette, and Town Council President Lynn Griesemer.  On April 28, Goldberg spent three hours on legal research and hearing preparation, at a cost of $510.

Rita K. Burke, a registered voter in Amherst for over 40 years whose petition signature was disqualified, said she is unhappy that the Town is using taxpayer funds, including her own, to defend its actions. 

“Clearly many mistakes were made when the Town Clerk’s Office attempted to certify petition signatures. Many registered voters like me, including former Town employees and elected officials, were shocked to find that their signatures were disqualified. The Town needs to take responsibility for its errors, and not spend more money to prevent a referendum, which is the just and rightful outcome,” Burke said.

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5 thoughts on “Town’s Legal Fees Mount As Amherst Fails To Set Date For Referendum On Library Project

  1. If this makes you mad, imagine being a voter in Arizona, where the Supreme Court recently upheld racist voting restrictions at the cost of gutting one of the few remaining provisions of the Voting Rights Act of 1965. These kinds of shenanigans are going to be used to block people of color from voting in many places.

  2. Spending our tax dollars to deny us our democratic say….how’s that for wasting money?

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