Tuesday, December 15, 2009

Judge Repeatedly Suggests She Be Recused in BC Expansion Lawsuit Case

At Tuesday's first hearing in the case of Galvin et al. v. Boston Zoning Commission et al., Judge Christine M. Roach considered three motions by the defendants in the lawsuit: adding Boston College as a defendant in the case (plaintiffs were unopposed); whether the Boston College Task Force should be removed from the defendants in the case (plaintiffs opposed); and whether the whole case should be moved to land court instead of superior court (unclear plaintiffs position, but I suspect they were opposed).

In the process of hearing the arguments about the task force's status as a governmental body, Judge Roach repeatedly offered up reasons why the attorneys could ask her to be recused from the case: first, that prior to becoming a judge, she was a commissioner in the State Ethics Commission in 2003-5; and second, that she has previously represented the City of Boston (although not the BRA or BZC) when she worked in private practice.

It seemed to me that the judge really wanted to be asked to be recused from the case. It was as if she were saying: Please, please, will somebody ask for me to be recused? Here are all the reasons you could use to justify recusal! I won't be offended!

Judge Roach's ethics background may be relevant because the defendants introduced an opinion letter on Monday -- marked "confidential" -- sent by the legal counsel of the State Ethics Commission that reaches a different opinion on the applicability of the state's Open Meeting Law from the Suffolk County District Attorney's office June 2007 advisory opinion. Violations of the OML by the task force are among the allegations in the lawsuit.

The judge's previous litigation work for the city also may be relevant because two of the named defendants are city agencies (Boston Redevelopment Authority and Boston Zoning Commission), while a motion being discussed Monday had to do with whether or not a city advisory body -- the Boston College Task Force, an official advisory body to the BRA's Board -- would be kept as a defendant in the case.

The judge added to these reasons by further pointing out that the current year's docket is ending later this month, so that the continuation of the case will almost certainly be passed on to another judge in 2010.

She put a deadline of next Monday for the parties to file motions both on whether or not she should be recused and whether or not she should rule on any of these three motions before the court.

And, no, Jan Schlictmann did not make a court appearance Monday for the plaintiffs.

No Obvious Relief to Task Force Members

During Monday's hearing, Judge Roach suggested that one possible ruling the court could enter would be to remove the task force as a defendant, but still allow the usual discovery process. If discovery later resulted in the task force appearing to be involved in the substance of the case, then they could be re-entered as defendants.

This hypothetical outcome would still seem to entail some kind of testimony by members of the task force during the discovery process, regardless of whether or not they are named as defendants. So removing the task force as a defendant in the case might not necessarily get them off the hook.

Image of gavel by vitualis provided through a Creative Commons license.

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