American Bar Association Elects President of the Pioneer Law Center as Vice Chair of Judicial Division

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The Hon. Frank J. Bailey (ret.) will Advance to Chair in 2026

(Boston, Mass.)- The Pioneer Public Interest Law Center today announced that its president, Hon. Frank J. Bailey (ret.) has been elected as the next Vice Chair of the Judicial Division of the American Bar Association  (ABA). Judge Bailey will advance to chair-elect and then chair in 2026.

“The American Bar Association is proud to welcome retired U.S. Bankruptcy Judge Frank J. Bailey as our Judicial Division’s next Vice Chair, ” said ABA President Bill Bay. “Judge Bailey’s extensive experience and dedication to the rule of law makes him a strong leader for the division. His commitment to addressing the challenges faced by the judiciary today will be vital as we continue to uphold the integrity and independence of our courts.” 

The Judicial Division comprises 3,000 federal, state, tribal and local judges who serve throughout the United States and serves as the “voice of the American judiciary” within the ABA. Bailey was nominated by the National Conference of Federal Trial Judges for election to this role. He follows the Honorable J. Michele Childs of the U.S. Court of Appeals for the D.C Circuit as the nominee of the federal judges.

“It is an honor to be elected as the next Vice Chair of the American Bar Association’s Judicial Division,” said Frank J. Bailey, President of the Pioneer Public Interest Law Center. “In today’s climate, it is imperative that our great judges, court officials and tribal leaders come together to share ideas and innovative solutions as we face new challenges, including AI and judicial security, across the legal system.”

In its capacity, the Judicial Division proposes policy to the ABA House of Delegates, coordinates with the ABA President on public statements regarding issues of importance to the American Judiciary, conducts outreach on judicial education to the public -including high school and college students- and works with law students and young lawyers to advance the rule of law in the U.S. and abroad.

Bailey was a long-time partner of Sherin and Lodgen LLP and an associate at Sullivan & Worcester LLP.  He also served as a law clerk to Chief Justice Herbert P. Wilkins at the SJC.

Superior Court Judge Invalidates “Equity Theft” Law as Unconstitutional

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SPRINGFIELD, MA –A Massachusetts Superior Court has ruled that a state law allowing municipalities (or private actors to whom municipalities sell the right to foreclose) to foreclose on homes due to property tax debt without having to pay the homeowner the difference between the taxes owed and the value of the home is unconstitutional as applied to the facts of the case at hand.

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MIAA to Allow Virtual School Students to Participate in Home School District Athletics

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Under pressure from lawsuits, agency reinstates long-held policy

BOSTON – Pioneer Public Interest Law Center (PPILC) and the law firm of Sullivan & Worcester LLP are pleased to announce that after an 18-month legal battle, the Massachusetts Interscholastic Athletic Association (MIAA) has reversed its position and will once again allow children who attend Commonwealth Virtual Schools to play interscholastic sports in the school districts where they live.

“While I am deeply gratified that the MIAA leadership finally decided to abide by state and federal constitutional requirements, I am deeply disappointed that children have missed as much as two years of participation on their school sports teams,” said PPILC President Frank J. Bailey.

Nicholas M. O’Donnell, a partner at Sullivan & Worcester LLP who also represented the students, added, “I am filled with admiration for our clients, who stayed the course long after the rule change robbed them of their own seasons, to make a positive change for other students.”

In 2022, MIAA announced that students from Massachusetts’ two virtual schools — TECCA Connections Academy (TECCA) in Walpole and Greater Commonwealth Virtual School (GVCS) in Greenfield — were no longer eligible to participate in interscholastic athletics in their home districts, even though such participation had been successfully in place for seven years prior.

Under the earlier policy, virtual school students could participate in athletics at their local public high school if the heads of both the virtual and traditional schools agreed to it. There had never been an issue with the mutual agreement system, nor was there any outreach from MIAA about any possible change. Many school districts allow virtual school students to participate in all other extracurricular activities, such as theater and music programs.

The families of students at TECCA and GVCS challenged the MIAA’s decision.

In late 2022, PPILC, a Massachusetts public interest law firm, teamed with Sullivan & Worcester to file suit against the MIAA on behalf of two students who were suddenly prohibited from competing as part of their local district teams.

One plaintiff, who had attended public schools in his hometown for five years, joined the lawsuit during his sophomore year in high school. While attending his local public high school, he was relentlessly mistreated and bullied by his classmates — experiences that destroyed his self-confidence and were greatly exacerbated by an anxiety disorder.

By last year, his third at TECCA, he had gained the self-confidence to try out for and make junior varsity soccer team at his local public high school, where he had a great experience. But just before the first game of the season in September 2022, he was informed that he was no longer eligible to play. Having now missed two seasons, his hopes of playing high school soccer are over.

The other named plaintiff is an outstanding hockey player who is in line to be recruited at the highest level of collegiate hockey. He was adopted from another country at 18 months old and attended local public schools through ninth grade, but struggled with learning issues likely attributable to neglect before he was adopted.

After enrolling at TECCA nearly two years ago, he received the academic support he needed, and the online format can accommodate his busy club hockey travel schedule. The student has also competed as part of his local high school’s lacrosse team, but the new MIAA rule prevented him from continuing at TECCA.

The families of both students own homes and pay real estate taxes that support their local public schools. The plaintiffs are representative of the diverse student bodies at public virtual schools that also include students with medical issues, those seeking the flexibility to proceed at a slower — or, not infrequently, a faster academic pace — and students who are very involved with the arts. The schools provide districts and parents alike with a far less expensive option to private schools that address these needs.

After over a year of litigation, MIAA announced in October 2023 that it had reversed the decision to ban virtual school students from participating in local school sports. The decision was ratified in November.

“Pioneer Public Interest Law Center is dedicated to preserving families’ right to choose the educational environment that best suits their child’s needs,” Bailey said. “We will continue to protect those rights in and out of court.”

Public Interest Law Firms File Direct Action with SJC to Enjoin Use of ‘Equity Theft’ Law

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Action seeks to bring Massachusetts into compliance with recent U.S. Supreme Court ruling

BOSTON – The Pioneer Public Interest Law Center and Greater Boston Legal Services have filed an action with Massachusetts’ Supreme Judicial Court (SJC) to enjoin the City of Springfield from foreclosing on a home worth about $230,000 because of a $22,000 unpaid tax bill without returning the more than $200,000 difference between the value of the home and the tax liability to the homeowner.

The action comes after the U.S. Supreme Court unanimously found earlier this year in Tyler v. Hennepin County that a Minnesota statute substantially similar to the Commonwealth’s “equity theft” law was unconstitutional because it denied just compensation to a homeowner for the taking of her property. State Attorney General Andrea Campbell recently opined that Tyler renders the Massachusetts law, known as Chapter 60, unconstitutional.

“In Tyler, the Supreme Court sent a clear message that any surplus beyond the tax debt must be returned to the homeowner,” said Pioneer Public Interest Law Center President Frank Bailey. “Massachusetts is one of a minority of states that has a law like Minnesota’s, and the Court’s ruling makes it clear that such laws are unconstitutional and therefore unenforceable.”

In Tyler, the Court unanimously ruled in favor of Geraldine Tyler, an elderly woman who had lost her home valued at $40,000 because of $15,000 in unpaid property taxes. Pioneer Public Interest Law Center filed an amicus brief in the case arguing that the Minnesota statute was unconstitutional.

In the Massachusetts case, Ashley Mills is on the verge of losing her Springfield home worth around $230,000 and for which the mortgage has been fully paid, due to a $22,000 property tax debt. Currently, Chapter 60 allows Springfield — or a private actor to whom a municipality sells its right to foreclose — to keep the more than $200,000 difference between the home’s fair market value and the taxes owed.

Mills, 25, lives with her 22-month-old son and disabled mother in the home she inherited from her grandmother. The home is her only financial asset. If it is foreclosed on and she does not receive the more than $200,000 of remaining equity after the tax debt is satisfied, Ashley, her toddler, and her disabled mother are at risk of becoming homeless.

In 2016, Mills was unable to pay $1,636.70 in property taxes she owed. Over the next three years, she entered into payment agreements with the city, but was unable to catch up, largely due to a punitive 16 percent interest rate and other charges imposed under Chapter 60. In May, the City of Springfield filed a motion in the Massachusetts Land Court for judgment of foreclosure.

“Ms. Mills will continue to use every avenue available to pay her taxes and keep her home,” said Catherine M. Kay, Supervising Attorney at Community Legal Aid, who represents Mills in the Land Court foreclosure case. “But those options are limited at this point. If she cannot save her home, she should at least receive the equity in it.”

Ashley Mills’ home is but one example among dozens of unconstitutional tax takings in Massachusetts this year. As a result, in addition to enjoining the City of Springfield from taking her home, the Pioneer Public Interest Law Center and Greater Boston Legal Services are also asking the SJC to enjoin all use of Chapter 60 takings for 90 days.

The action is meant to give the state Legislature time to amend the law to conform with Tyler and allow for a permanent injunction that would prevent Springfield from taking Ms. Mills’ home unless the city makes a provision to turn over, in a reasonable time, the difference between the fair market value of the home and the amount Mills owes in taxes.

Prior to Tyler, 13 states had laws similar to Chapter 60 and the Minnesota statue the Court struck down. Since then, Minnesota, Maine and Nebraska have changed their laws. Illinois has frozen sales of the right to foreclose.

“Low-income households are especially vulnerable to tax foreclosures and Massachusetts has failed to provide these homeowners with realistic options to repay tax arrears,” said Todd S. Kaplan, Senior Attorney at Greater Boston Legal Services. “We are asking the Supreme Judicial Court to stop tax foreclosures while the Legislature works to align the tax foreclosure process with Tyler. The Legislature has an opportunity to ensure that tax foreclosures are a last resort and are done in accordance with the Constitution.”

SJC Affirms Summary Judgment in Immigrant Entrepreneur Case

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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

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

Read the Amicus Brief

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

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Read slip opinion Barron vs. Kolenda Read PioneerLegal’s amicus brief

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.”

PioneerLegal Files Amicus Briefs in Cases That Challenge State Tax Foreclosure Laws

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Urges Supreme Court to hear cases that allow state, private actors, to realize windfall at expense of property owners

BOSTON – PioneerLegal, LLC has filed amicus briefs urging the U.S. Supreme Court to hear two related cases that test the constitutionality of Nebraska and Minnesota laws that permit the state, or a private debt collector as assignee, to take a private home, sell it, and keep the entire proceeds, even if the property sells for much more than the taxes, interest, and costs of collection due for unpaid taxes.

“We’re interested in this question because municipalities in Massachusetts have the very same right to deprive a homeowner of his or her equity in property sold at a tax foreclosure,” said PioneerLegal President Frank Bailey. Bailey added that “these cases most often fall on low income, elderly, and medically challenged homeowners.”

In Kevin Fair v. Continental Resources, the plaintiff lost his home after quitting his job to care for his wife, who had been diagnosed with multiple sclerosis.  Kevin lost the home that was a wedding gift from his late mother.

Scotts Bluff, the Nebraska county in which the Fairs lived sold a tax lien for the Fairs’ unpaid 2014 taxes to a private investor, Continental Resources, for the amount owed — $588.

Continental quietly paid the Fairs’ 2015 and 2016 taxes, all the while tacking a 14 percent interest rate onto the growing tax debt.  Because the county was getting the money it was owed, it stopped sending tax bills to the Fairs and gave them no warning that they were in danger of losing their home.

In April 2018, Continental notified the Fairs that it intended to apply for a tax deed, which would give the company full ownership of the home and leave the Fairs with nothing. The only way to keep their home, said the investor, was to pay $5,268—the total value of unpaid taxes, fees, and interest—within three months’ time.

The Fairs applied for loans to redeem their property, but no lender approved them. The county issued a deed to the investor for the home—including the Fairs’ equity in it—worth around $60,000. The Nebraska law at issue allows private tax collectors to keep such windfalls at the expense of property owners.

In most states, property is sold, the debts are paid, and the remaining proceeds are returned to the former owner. But Nebraska claims that it can ignore the value of the homes it seizes when collecting property tax debts.  Scotts Bluff took the Fairs’ $60,000 home as payment for $5,200.

“Scotts Bluff County owes Kevin Fair just compensation for the additional $55,000 in home equity,” Bailey added.  “That’s far more than the $5,268 tax debt.”

The Fairs lost their case at the state trial court.  In March 2022, the Nebraska Supreme Court denied their due process, takings, and excessive fines claims.  More importantly, Kevin’s wife Terry lost her battle with MS that month.

In the second case, Tyler v. Hennepin County (Minnesota), Geraldine Tyler, a 92-year old widow, lost her home to foreclosure when she could no longer afford the property taxes.  When the taxes mounted to $15,000 the county seized her home and sold it for $40,000.  Rather than paying itself the taxes and fees due and refunding the $25,000 to Ms. Tyler, the county kept the full sale proceeds, thus wiping out the equity that Ms. Tyler had accumulated in her lifetime.

Minnesota law permitted this outcome. From 2014 to 2020, some 1,200 Minnesotans lost their homes and all their equity for tax debts that averaged 8 percent of the home’s value. When Ms. Tyler challenged the law in federal court, the judge dismissed her case saying the state law was constitutional. After the federal Court of Appeals affirmed, Ms. Tyler sought certiorari in the Supreme Court.

PioneerLegal’s amicus brief urges the Court to hear the cases.  It points out that the states’ conduct upends standard commercial law principles that provide for the debtor to enjoy a return of the equity after the state is fully paid, argues that the Nebraska and Minnesota statutes violate the rights of other creditors by allowing the state a windfall while other creditors may get nothing, and that Nebraska and Minnesota tax law runs counter to state and federal law that requires a debtor, such as Mr. Fair and Ms. Tyler, to receive “reasonably equivalent value” upon transfer of property, including in a foreclosure.

The PioneerLegal amicus brief was prepared by Morgan, Lewis & Bockius attorneys Julia Frost-Davies, Stephanie Schuster, Matthew C. Ziegler, and Matthew K. Stiles, together with the assistance of PioneerLegal attorneys Frank J. Bailey and John C. LaLiberte.  PioneerLegal thanks Morgan Lewis for preparing a brief that adds a strong commercial law basis in support of certiorari.

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Public Interest Law Firm Sues to Allow Virtual School Students to Participate in High School Sports

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MIAA rule change prohibits public virtual school students from playing for teams in their home districts

BOSTON – PioneerLegal, a non-profit public interest law firm, has filed suit against the Massachusetts Interscholastic Athletic Association (MIAA) in Norfolk County Superior Court for prohibiting students at a public virtual school from playing on high school sports teams in the students’ home district.

The plaintiff is a Massachusetts high school parent whose child, a student at a statewide virtual high school, has been denied participation in interscholastic athletics. To protect the privacy of the clients, the case was filed under pseudonyms (“Sally and Jimmy Jones”).

TEC Connections Academy Commonwealth Virtual School (TECCA) is an online public school that enrolls 3,000 students from across Massachusetts, 1,650 of whom are in high school. TECCA students had long played on their home district sports teams until the MIAA “reinterpreted” its eligibility rules as of July 1 of this year. The new rule bans students at statewide public virtual schools from playing on sports teams in their home district and even prohibits them from applying for a waiver from the rule.

“Other non-traditional schools – including homeschoolers and even district-based virtual schools – can apply for a waiver and be granted permission to participate,” said PioneerLegal President Frank Bailey. “But TECCA students cannot.”

The student plaintiff played lacrosse for his local high school team in 2021 as a TECCA student, having received an MIAA waiver. Without injunctive relief, he will have to watch this year from the sidelines, or make a painful choice about where to enroll at school.

Virtual schools attract a diverse student body. Some students have found learning in a traditional classroom to be very challenging because of bullying or emotional challenges. Others are highly advanced academically and want the ability to move more quickly. Still others seek the flexibility to train for sports activities or develop a special skill or talent such as acting.

Participating in athletics can be the only way for virtual school students to interact with their peers. For many years they have been eligible to play on teams in their home districts, where their parents often pay taxes.

The MIAA is a private association that creates rules for high school sports in Massachusetts. The fact that most public-school districts are members; its dues are mostly paid with tax dollars; and its board is made up of public employees such as school board members, teachers, superintendents and athletic directors caused the Massachusetts Supreme Judicial Court to rule that it is a “state actor.” That means the MIAA is, for all intents and purposes, acting as the government.

The organization has done little to clarify the reason for its policy change, other than to claim that a virtual school is “no different” than a private school. TECCA is a public school under Massachusetts law.

Bailey added that “the MIAA’s decision requires students to choose between dropping participation in a sport they love or enrolling in a district school, a choice that usually is not in their personal or academic interest.”

One statement from MIAA Executive Director Bob Baldwin may offer insight into the policy change. He said “principals, athletic directors, and guidance personnel should counsel students regarding athletic eligibility prior to committing to non-traditional educational pursuits.”

PioneerLegal is being assisted in this case on a pro bono basis by the law firm of Sullivan & Worcester. The plaintiffs plan to seek an injunction to prevent TECCA students from being prohibited from participating in high school sports during the Fall semester.

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MA Court Misses Opportunity To Reaffirm A Core Pillar Of Democracy

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By not requiring that the Attorney General present an accurate, impartial summary of the tax hike amendment the MA SJC discounts the ideal of an informed voter

BOSTON – Today the Massachusetts Supreme Judicial Court missed an opportunity to reaffirm a basic tenet of American government: An informed electorate is necessary for a healthy democracy. The SJC’s decision will prevent Massachusetts voters from having an accurate description of the tax hike amendment to the state Constitution when they cast their ballots in November.

PioneerLegal 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 proposed 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 pass-through income. The proposed summary language put forward by the Attorney General and the Secretary of State reads that revenue from the tax would be dedicated to fund public education and transportation.

“While revenue from the tax would be deposited in transportation and education accounts,” said Frank J. Bailey, President 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.”

Speaking about the need for transparency in the constitutional amendment process, Bailey noted that: “a ballot initiative that seeks to amend the Massachusetts Constitution must be fairly described to voters. Absent an accurate summary of the effect of this vote, homeowners, small business owners, and retirees may well be surprised by the implications of a vote in favor of the amendment. Voters should never be surprised.”

Among the key points in the PioneerLegal brief authored by Daniel P. Ryan, Caroline A. Kupiec, and Jillian Friedmann of Sullivan & Worcester, are:

  • The Attorney General’s own brief on an identical proposal in 2018 conceded 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.
  • The Legislature 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.
  • 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.

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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.

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