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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.”

Keeping State Taxation Powers Within the Law

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U.S. Auto Parts Network, Inc. v. Commissioner of Revenue

Read the Amicus Brief

In December 2022, the Massachusetts Supreme Judicial Court ruled in favor of U.S. Auto Parts Network, Inc., in a case that involving taxation of online sales. Pioneer Public Interest Law Center — then known as PioneerLegal — had submitted an amicus brief in the case.

In 2018, in the Wayfair case, the U.S. Supreme Court ruled that a state could, consistent with the Commerce Clause, require a company that engages in online retail sales to file a sales tax return and to collect the tax, provided the company has a “substantial nexus” with the state, even if it has no physical presence in the state. The Court  left it to the states to define “substantial nexus.” The Massachusetts Department of Revenue (DOR) then sent a tax bill to U.S. Auto Parts, an out-of-state retailer, for a period before the Wayfair decision.

Pioneer’s amicus brief argued that the application of Wayfair retroactively was impermissible, and the state’s SJC agreed. Importantly, the ruling in this case will apply in other instances where the DOR seeks to expand tax liabilities retroactively, an invidious technique that has been seen in other contexts.

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.

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

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Summary language fails to clarify a critical matter for voters—an overall increase in education and transportation funding is not mandatory since other revenue is entirely fungible

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.”

About PioneerLegal

PioneerLegal, LLC is a nonprofit, nonpartisan legal research and litigation entity that defends and promotes educational options, accountable government, and economic opportunity across the Northeast and around the country. Through legal action and public education, PioneerLegal works to preserve and enhance liberties grounded in the constitutions and civil rights laws of the United States and the individual New England states.

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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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