Kahn: SMOC v. Framingham: Cutting through the fog September 15, 2010
John Kahn Metrowest Daily News
FRAMINGHAM -- This is the second of three columns analyzing the latest ruling in the SMOC v. Framingham case.

The Vietnam era Secretary of Defense, Robert S. McNamara, reacquainted the country with the term, "the fog of war." In a hindsight review of that event he emphasized the difficulty of making wise decisions in the face of uncertainty as to an adversary's resources, motives, and doggedness. To all of those, add confusion and dissension as to the goals that might be achieved and the money and manpower (sic) to be expended in the fight that might more usefully be spent elsewhere.

Those uncertainties and confusion are not unlike those the Town of Framingham and its officials face in making wise decisions on the future course of SMOC's suit against the Town. Judge Woodlock's decision reduces the confusion about the genuine issues that will be decided by a jury.

One key issue will not be decided at trial. It is the one that causes the most heated debate. It is the issue that causes great anguish to those who acknowledge the need for social services while fearing the impact of SMOC upon the larger community. That issue is: Does Framingham bear a disproportionate burden of meeting that need? In question form: "Why us? Why them? Why here?

If the issues at trial are not about the sufficiency or excess of social service facilities in Framingham, what are those issues? Leaving to one side the legal complexities of the case, Judge Woodlock's decision highlights four issues: (1) Did town officials violate the federal Fair Housing and Rehabilitation Acts? (2) Did town officials abuse the lawful power of land use regulation as a "pretext" for covering up unlawful discrimination? (3) Did town officials by intent or through negligence make untrue and harmful statements about SMOC? and (4) Is SMOC eligible to receive damages from the Town and its officials?

The role of judges in deciding a motion for summary judgment is limited. The ultimate decision of what testimony is to be believed is up to the jury. Judges are limited to deciding whether the material submitted to them at the motion hearing would be enough, if believed by the jury, to support the plaintiff's claim.

Judges must also consider whether the plaintiff's material that covers all of the matters that must be proved to justify a claim. In this case Judge Woodlock has decided there is sufficient evidence on key points of SMOC's claim. Here are just four examples: (1) He ruled against the Town's claim that delays in granting permit applications did not violate the law; (2) He said that there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken; (3) He ruled that the zoning bylaw amendment that made Dover Amendment projects subject to site plan review may have targeted SMOC's relocation of Sage House by creating "procedural hurdles that make it difficult to obtain a building permit;" (4) He ruled that there are genuine disputes as to whether the Planning Board and the selectmen acted in ways that were deliberately aimed at deterring or delaying SMOC's permit applications. More tellingly, in making those rulings the judge relied on evidence that Planning Board members and selectmen knew that they were exceeding their lawful authority when they continued to challenge the building commissioner's decision that SMOC projects were protected by the Dover Amendment.

Of particular interest to town officials and Town Meeting members worried about liability for statements and actions at public meetings are the judge's statements on anti-discrimination law about such behavior. They include that: statements that appear to be factual must not be "unsubstantiated" or "unsupported by 'objective evidence'," "that a government official will not be held personally liable for a 'reasonable, although mistaken, conclusion' about the lawfulness of his conduct;" and that officials may not engage in manipulation of procedural devices to target persons or projects entitled to federal anti-discrimination protection.

Finally, as to potentially defamatory statements, whether or not by public officials, the judge emphasized that speakers who make or repeat untrue harmful statements of fact must not have been negligent in ascertaining whether they were true or false.

In essence, public officials or private citizens need to be careful when making statements that hold another up to "scorn, hatred, ridicule, or contempt" that they are true or were reasonably believed to be true.

John Kahn, a former Framingham selectman and town counsel, is not affiliated with any party to the SMOC suit.


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