PioneerLegal Amicus Brief Supports Court Challenge to Attorney General’s Misleading Wording of the Proposed Tax Hike Amendment

BOSTON – To ensure that Massachusetts voters will have an accurate description of the tax hike amendment to the state Constitution when they cast their ballots in November, PioneerLegal has filed an amicus brief in support of the lawsuit challenging the Attorney General’s summary language and “yes”/”no” statements that describe the amendment. The suit will be heard by the Commonwealth’s Supreme Judicial Court.

The amendment to the state Constitution would add a 4 percent surtax on all annual income over $1 million, including capital gains (sales of homes and other assets) and most small business income. The proposed summary language put forward by the Attorney General and the Secretary of State reads that the revenue from the tax will be dedicated to fund public education and transportation.

“While revenue from the tax would be deposited in transportation and education accounts,” said Brackett Denniston, chairman of PioneerLegal, “there is nothing to prohibit lawmakers from diverting money previously dedicated to transportation and education to different purposes, as has occurred in other states.”

Authored by Daniel P. Ryan, Caroline A. Kupiec, and Jillian Friedmann of Sullivan & Worcester at the request of PioneerLegal, the brief establishes four key points:

  • The Legislature is granted constitutional authority in the budgeting process, which allows it to allocate funding among various budget categories. The brief outlines how the Attorney General’s own brief on an identical proposal in 2018 concedes that surtax revenues are fungible and may not result in any increase in appropriations for education and transportation. In the argument of the case before the Supreme Judicial Court, the Attorney General’s counsel also conceded this point and Chief Justice Gants made the same point (cf. linked video, minute 52:00).
  • The Legislature could have required that surtax revenues be additive to current education and transportation spending but explicitly rejected legislative attempts to do so. During their debates on the proposed ballot measure, legislators made their intentions crystal clear by rejecting two amendments (by votes of 154-39 and 156-40) requiring new revenues to be invested in addition to existing expenditures.
  • A close analysis of the annual budget for education and transportation, which together exceed $18 billion, as well as their component parts — line-item expenditures, dedicated funds, and special obligation bonds — demonstrate this fungibility, based on the Massachusetts Constitution and well established legislative practice.
  • Finally, the brief provides a close analysis of the experience in California, where revenues derived from a similarly “dedicated education” tax largely substituted existing appropriations, which were then diverted to other purposes.

“It is of utmost importance that any ballot initiative that seeks to amend the Massachusetts Constitution is accurately described to voters,” said Denniston. “Absent an accurate summary of the effect of a vote, citizens of the Commonwealth are, in fact, robbed of their voice in the governance of Massachusetts.”

SJC Affirms Summary Judgment in Immigrant Entrepreneur Case

Pioneer Law Center filed amicus brief on behalf of immigrant property owner

BOSTON, August 17, 2023 – Massachusetts’ Supreme Judicial Court (SJC) has affirmed a summary judgment granted by the Superior Court in Norvella Hill-Junious v. UTP Realty, LLC, a case in which the Pioneer Public Interest Law Center (PPILC) filed an amicus brief. 

This case involved Vietnamese immigrant Uyen Phan, who owned and operated a nail salon in Randolph. To protect her successful business, she bought the shopping plaza in which it operates, which included the City Limits Saloon, a nightclub where some violent disturbances had occurred. 

On February 17, 2017, about three months after Uyen purchased the shopping plaza, there was an execution-style murder in the parking lot of the City Limits Saloon.

The decedent’s mother sued Uyen and UTP Realty, alleging that the murder was foreseeable and that owners of commercial real estate have a duty to implement measures to prevent such foreseeable crimes on the premises.

The SJC upheld the Superior Court’s grant of summary judgment for the defendants, finding that such an act was not foreseeable. The SJC determined that the plaintiff offered no precedent to support her claim that commercial landowners have a duty to inquire about any history of criminal activity on their properties.

PPILC’s brief argued that a ruling in favor of the plaintiffs would have had an outsized negative impact on immigrant entrepreneurs because they tend to own property in transitional neighborhoods. The cost of owning such property would rise dramatically, as owners would need to equip the premises with nearly full-time security, which might foreclose the ability of immigrant entrepreneurs to acquire commercial property. 

“Immigrants investing in commercial property located in marginal neighborhoods bring jobs and development to those locations,” said PPILC President Frank Bailey. “Investing in real property is also an important step toward achieving the American dream by creating equity and family wealth for immigrant investors.”

U.S. Supreme Court Invalidates Minnesota Tax Foreclosure Scheme

Ruling could impact Worcester homeowner’s suit against city and private tax lien buyer

BOSTON, May 26, 2023 – The United States Supreme Court today struck down Minnesota’s tax foreclosure scheme, ruling that a Minnesota homeowner who lost her home to a tax foreclosure was entitled to the surplus from the home’s sale.

In Tyler v. Hennepin County, Geraldine Tyler lost her home valued at $40,000 because she had not paid $15,000 in property taxes.

“The Court sent a clear message today, ruling unanimously that any surplus beyond the tax debt should be returned to the homeowner,” said Pioneer Public Interest Law Center President Frank Bailey.

The Supreme Court’s ruling could affect a Massachusetts case filed in U.S. Bankruptcy Court earlier this month.  There, homeowner Carmen Rodriguez sued the City of Worcester and a tax lien buyer, Tallage Davis, LLC, seeking to invalidate a state statute that allows municipalities to confiscate people’s homes — including all the equity built up over many years — when they fall behind on their real estate taxes.  Ms. Rodriguez is represented by the Pioneer Public Interest Law Center, Morgan, Lewis & Bockius LLP and Greater Boston Legal Services.

Ms. Rodriguez has owned her Worcester home for decades. She raised her family there and paid the mortgage in full.  When she became ill and had to leave her job at the TJ Maxx warehouse where she worked for 37 years, she fell behind in her city real estate taxes, but she was not terribly worried because she owed only about $2,600 and her house was worth $200,000 to $300,000.

Worcester, however, quickly moved ahead with a little-known practice of selling its right to foreclose on Ms. Rodriguez’s home to Tallage Davis, LLC, a Boston-based tax title buyer.  Tallage soon took title to the house and commenced eviction proceedings against Carmen and her son, seeking to remove her from the house during the 2022 holidays.

Ms. Rodriguez continued to make payments to Worcester even after Tallage filed a tax foreclosure, as she was unaware that the company was trying to foreclose on her home.

Ms. Rodriguez is not alone in her efforts to invalidate what many have called the “equity theft process.”  Approximately 13 states have laws that allow equity theft.

In the U.S. Supreme Court case, Geraldine Tyler, an elderly Minnesota woman, lost her home under that state’s statute, which tracks the Massachusetts law.  Like Ms. Rodriguez, Tyler argued that statutes such as these violate state and federal constitutional provisions that prohibit the taking of property without just compensation and the charging of unreasonable fines.  Today’s decision found that Minnesota violated the U.S. Constitution when it took the entire value of her home for the taxes.

“I appreciate that the U.S. Supreme Court ruled that homeowner’s have rights and they should not lose the entire value of their home for a small amount of taxes owed,” Rodriguez said.  “I am fortunate to have great team of lawyers in my corner to show how unjust this is.  Hopefully it will never happen to another homeowner in Massachusetts.”

Carmen Rodriguez was preparing to move out of her home prior to accessing legal assistance.

“The process used by Worcester does not even benefit the city’s citizens, because while Worcester received less than $4,000, Tallage took the deed to Carmen’s home worth about $300,000,” said Todd Kaplan of Greater Boston Legal Services.  “This process makes no economic sense for Massachusetts communities; it only enriches people like those who own Tallage.”

Massachusetts High Court Strikes Down Town’s Civility Code as Unconstitutional

BOSTON, March 7, 2023 — In an opinion that reinforces political speech rights at public meetings throughout the Commonwealth, the Supreme Judicial Court of Massachusetts has declared that Southborough’s civility code governing participation at public meetings violates Article 19 of the Massachusetts Constitution.

Article 19 protects core political speech rights—the right to assemble “in an orderly and peaceable manner. . . to consult upon the common good; give instructions to [the people’s] representatives,” and to request of the government “by way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”

Exercising her Article 19 rights is just what appellant Louise Barron was attempting to do during the public comment portion of a Southborough town meeting when she was abruptly silenced and threatened with expulsion by town officials who claimed that her criticism of their repeated violations of the Open Meeting Law violated Southborough’s civility code.

“We are delighted that the court has made it absolutely clear that our democratic form of government was founded upon, and still depends upon, our right to freely and peaceably criticize our leaders, and to seek redress of our grievances, without fear of retribution or governmental restraints,” said PioneerLegal staff attorney Selena Fitanides.

The town’s code requires that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks,” and it warns that [i]nappropriate language . . . will not be tolerated.”

PioneerLegal filed a non-party amicus brief in the case last fall urging the court to rule that civility codes like Southborough’s constitute viewpoint discrimination and, therefore, violate the sacrosanct right to free political expression enshrined in the Massachusetts Constitution.

In a 29-page scholarly opinion, Justice Kafker agreed, writing that “[a]lthough civility can and should be encouraged in political discourse, it cannot be required.” According to our Constitution, “political speech must remain ‘uninhibited, robust, and wide-open.”

PioneerLegal President Frank J. Bailey reacted to the opinion as follows:

“We are convinced that the Barron decision, which marks a high-water mark in free speech rights in the Commonwealth, will have a nationwide impact on the rights of citizens to be heard by their elected officials. We also hope the United States Supreme Court will recognize those same rights in the federal Constitution when given an opportunity.”

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Pioneer Public Interest Law Center (PPILC) is a nonprofit, nonpartisan, public interest law firm that through advocacy and litigation promotes inclusive educational and economic opportunity and open, accountable government. PPILC works to preserve and enhance liberties grounded in the constitutions and civil rights laws of the United States and the individual New England states.

Organized in 2021 by a group of prominent lawyers and business leaders, PPILC is affiliated with Pioneer Institute, a research foundation based in Boston with a broad public interest mission that embraces reform and innovation in health care, public transit, education, immigration, civil rights and public governance.  Governed by an independent board of directors, PPILC will pursue high impact, cutting-edge cases that advance educational quality and opportunity for all students, especially those in underserved areas, open and accountable government, and enhanced economic opportunity for all, especially lower income and immigrant communities.

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PioneerLegal is a non-partisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. PioneerLegal achieves its mission through legal research, amicus briefs, and litigation.