Hampshire Superior Court Judge Agrees To Speed Up Lawsuit Over Referendum On Jones Library Project. Sets Hearing For August 23

Hampshire County Superior Court. Photo: Wikimedia Commons

Hampshire Superior Court Judge Richard Carey issued an order on July 21, setting an expedited schedule in a lawsuit by forty Amherst voters against the Town’s Board of Registrars. The voters, who seek a referendum on the $35 million Jones Library project, say that the Board failed to certify dozens of legitimate petition signatures in April. 

“The court is satisfied that, in the interest of justice, a somewhat expedited briefing and hearing schedule … is appropriate,” the judge wrote.

Sarah McKee, a former chair of the Jones Library Board of Trustees, said she was glad to hear the case is moving forward. “That Judge Carey appreciates the urgency of fast-tracking this voting rights lawsuit is excellent news. It directly concerns Amherst voters’ due process rights, when they lawfully petition Town government,” McKee said. “Swift action is particularly vital, as the Town Council is spending thousands of our taxpayer dollars each month on lawyers to oppose this referendum.” 

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, the Town Clerk’s Office reported that petitioners were 22 certifiable signatures short of the 864 needed – a number which represents five percent of the Town’s registered voters.  

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, asked the court to conclude that the 5% threshold for a referendum was met.

The plaintiffs in the case of Terry Y. Allen vs. The Board of Registrars of Amherst filed an emergency motion on July 13 asking Carey to rule on key elements of their complaint by August 27, and are seeking summary judgment – a court ruling made prior to a full trial. The plaintiffs state that rapid judicial action is needed, so the referendum question can be put on the ballot for the local Amherst election in November.

Under the Amherst election calendar, the deadline for the Town Council to advise the Town Clerk to place a referendum on the November 2021 ballot is September 28. 

Evidentiary Hearing Set for August 23.  Secretary of State’s Office to Receive Judge’s Order
Carey’s July 21 order sets an in-person evidentiary hearing for August 23 at 10 a.m. He also ordered the plaintiffs to serve Secretary of State William F. Galvin’s Office with his order and their motion for summary judgment “so the Secretary may determine whether he wishes to intervene in this matter.”  Galvin oversees the state elections division. 

The court will “need to evaluate” the Board of Registrar’s reasons for non-certification of challenged signatures, Carey wrote, to determine if the Board properly applied state laws and regulations. 

“The court anticipates that it will need to compare the challenged signatures to the Town’s voter registration list,” Carey stated.  He noted that in legal actions challenging non-certification of signatures, the burden of proof as to the propriety of non-certification is “on the Board.”

The plaintiffs 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.” 

Just 3.5% of Signatures Not Certified On Building Moratorium Petitions 
Meanwhile, the plaintiffs state that they reviewed the number of signatures disqualified on two other local petitions, including one filed this past March seeking a 6-month moratorium on multi-unit residential construction; and a petition from late 2016 to place a $67 million school building project on a Town Meeting warrant.

The percentage of signatures not certified on the Jones Library referendum petitions “contrasts starkly” with the other two petitions, which are posted on the Town’s website.  

For the Jones Library project referendum petitions filed April 20, 22.6% of the signatures submitted were not certified, about six times as many as the 3.5% not certified on the building moratorium petitions. Meanwhile, just 4.2% of the school building project petition signatures reviewed were not certified, according to court documents. 

“These numbers are stark. The extremely large percentage of signature rejections, five and six times the rate of two other recent petition drives, should concern everyone,” said Rita K. Burke, a longtime registered voter whose library referendum petition signature was disqualified. Burke said the discrepancy in numbers raises questions about possible bias or competency issues.  Although the Town Clerk’s Office has denied any negative intent, the impact of the process was damaging, and “needs redress,” Burke said.

Town Posts Notice Seeking Jones Library Building Committee Members 
Meanwhile, Town Manager Paul Bockelman posted to the Town website more than a week ago that he is seeking members to serve on the “Jones Library Building Committee.” The nine-member committee, according to the notice, will “oversee the design and construction of the Jones Library Restoration and Expansion.”

The committee will include members or representatives of the Library Board of Trustees, Town Council, Library Director, Town Manager’s Office, the Town’s Finance Director, a Library building maintenance official, and two members of the public including a resident experienced in energy-efficient public architecture and community outreach. 

McKee expressed shock that building committee recruitment is underway prior to the lawsuit being resolved. “The 40 plaintiffs now suing the Town for denying Voter Veto petition rights have an exceedingly strong case. If they prevail, and if Amherst voters then reject this multi-million dollar demolition/expansion project, it will not even happen.” McKee also expressed concern that none of the building committee members will be required to have expertise in historic preservation, “ yet the current design guts much of the historic 1928 Jones Library’s interior.” 

The building committee will work with “several consultants,” and “develop a timeline, milestones, and plans for the project,”  according to the notice. 

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 the petitioners who sought a referendum, according to documents obtained via a public records request. The amount of the Town’s legal bills for May were not yet released under the initial records request filed by McKee. 

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