This longish piece covers the first courtroom battle I know of regarding BDS. In addition to documenting how the particular 2005 divestment battle in Somerville ended, it also demonstrates why I’m not a big fan of legal remedies to political disputes since – as far as I know – everyone who has brought a suit regarding some BDS-related case (for or against) has lost in court.
The So-Called Somerville Divestment Project’s (SC-SDP’s) case that their failure was the result of great injustice is based on accusation of unfairness by Justice Julian Houston at the SDP vs. Somerville trial last week in Cambridge District Court.
“Where is the justice,” cries one SDP member. “The Superior Court Judge ruled against us in a grossly unfair decision,” cries another, all making the same case, that the SDP was absolutely within its rights to use any document it wished for it’s petitioning, and could collect signatures whenever and as long as it wanted.
Those of you bewildered by talk of Chapter 53, Section 18A and other state legislation and rules regarding ballot petitions might benefit from a description of the court proceedings in detail since, by good fortune, I was able to attend the hearing and witness both side’s legal cases while they were being made.
The trial took place in Room 7B of the Cambridge Superior Court building, by coincidence the same room I sat in while performing a week of jury duty regarding a back-ended automobile and very bad toupee (a story for another time).
The SDP was represented by attorney Neil Berman and a Lawyer’s Guild associate. John Gannon, the solicitor for Somerville, represented the city. Another attorney, Bill McDermott, represented a group of Somerville citizens who are part of the Somerville Coalition for Middle East Peace, a group which – in the interest of full disclosure – I should disclose my membership in.
The audience was surprisingly sparse, given that hundreds of people attended the alderman’s meetings last year. Two SDP members were there, carrying with them four cardboard boxes allegedly stuffed with signed petitions. Our side included just me and two other members of the anti-divestment coalition. Given the courtroom setting, I was looking forward to the issues being hashed out in a dignified environment. While certain SDP members found the courage to storm the alderman’s podium last year and burst into song, I strongly suspected they would not be interested in making the same kind of statement in the presence of armed court officers. Also, the context of a court trial meant that decisions would be based on facts and law, leaving little room for the type of emotional arguments that have characterized the debate to date.
The SDP’s attorney’s opening statement made a lucid case that Massachusetts law is vague on details regarding non-binding ballot petitions and that such vagueness could be interpreted as intentional because non-binding ballot drives do not circumvent the legislative process (since they are simply a way for voters to express an opinion, not a substitute for lawmaking).
The Somerville solicitor countered with an equally compelling argument that imparting legislator intention to the law’s vagueness was just speculation and that whenever law is vaguely worded, branches of government (including city officials or the courts) look at similar law (such as much more specific state statues regarding binding petitions) or legal precedent for guidance as to how vaguely worded laws should be interpreted.
Presiding over the case, Justice Julian Houston (who I later discovered played a prominent role in the civil rights movement in Boston and beyond), listened to both statements and indicated that the question foremost on his mind was whether or not, in the absence of clear guidance from state statute, the city was within its rights to determine procedures for a non-binding ballot petition and require those seeking such a petition to follow city-specified rules.
Discussions moved onto the petition itself, with Justice Houston inquiring as to why the city’s sanctioned petition (which included just one line asking if the signing voter supported putting divestment on the ballot) was so abbreviated from the SDP original form (which included a multi-part indictment of the Jewish state). Gannon indicated that the original petition never actually specified that the signer was being asked to support a ballot initiative, the question posed at the end of the petition merely asking if the signer supported divesting Somerville’s retirement holdings from Israel bonds and US companies doing business with Israel. He also indicated that the first three “Whereas'” of the SDP petition constituted political campaigning which would not be allowed within 150 feet of a polling place under Massachusetts election law, which was why the Somerville Election Commission could hardly allow such language on the ballot itself.
After some backing and forthing, it was clear that the judge was mostly interested in the one paragraph of the original SDP petition that had to do with fact, rather than opinion, the fourth “Whereas” specifying the scale of Somerville’s current holdings in Israeli-related securities. While this questioning had some merit, it was quickly clear that nothing could be done to create a court-ordered compromise petition that would satisfy either party. Gannon stressed that the deadline for filing petitions was days away and that the SDP had squandered the chance to work with the city’s Election Commission to come up with an appropriately worded petition and was thus now facing problems of its own making.
Interestingly, the SDP attorney also expressed no interest in coming up with a compromise form. This was no doubt prompted by the eleventh hour nature of the deliberations, but I also got the impression that SDP was committed to language that included multiple condemnations of Israel as a racist and Apartheid state, hoping that somehow such language would end up printed verbatim on a Somerville election ballot in November.
After some careful questioning of both sides regarding timelines and deadlines for various steps in the petition and ballot process, the court recognized Attorney McDermott as having standing in the case (representing, as he did, Somerville voters who would be affected by the decision). McDermott indicated that while state legislation regarding the form and format of a petition for a ballot initiative might be vague, the scheduling requirements for such a drive were very clear and that SDP should not have been collecting signatures before the August 10th deadline specified by the Somerville Election Commission. McDermott held before him several affidavits from witnesses (including one from me) saying they had seen SDP signature gathering months before that deadline. The judge seemed surprisingly dismissive of this written testimony, although that might have been because the SDP was not making the case that they had collected their names within the legal time window. Rather, they were saying that the time window, like the format of the petition, was open to interpretation and thus all of their activity was undertaken legally and properly.
At this point, Justice Houston surprised everyone in the room by deciding to issue a judgment from the bench. Slowly and deliberatively, the judge brought the question back to whether or not the city has the right to make the rules when the state has failed to lay out specific steps that must be followed by all municipalities. In his opinion, the city was indeed within its rights to do so. Since the only question he was being asked to decide was whether he should compel the city to set aside those rules for the sake of the SDP, he announced that he would not do so and thus the SDP’s motion was denied.
To say that the courtroom was a site of high drama would have been an understatement. For those of us raised on The People’s Court and Law and Order, we were not used to a justice who moved at his own pace (not the camera’s), a justice who took the time needed to make a deliberate and sensible judgment. The city’s filing in the case included a sworn affidavit stating that election commission officials informed the SDP of the rules, rules the SDP chose not to follow. Had evidence shown that the city had been arbitrary or misleading as to what those rules were, I suspect the court would have looked more favorably upon the SDP’s argument. But in light of the evidence presented, the justice’s ruling was unequivocal.
One of the SDP’s most compelling arguments (made in both its responses to the court ruling noted above) indicate that the group had received assurance (presumably verbal) from city and state officials that they could collect signatures on any form they wished for as long as they liked. While I do not have access to their official court filing that might have provided information about the form such assurances took, it was interesting to note that the SDP’s own attorneys chose not to bring up that argument in court.
While one can dismiss comments made during the SDP press conference on Friday that claimed Justice Houston had been “bought off” as heated rhetoric after a major disappointment, it does seem to me that the organization is running out of branches of government to besmirch and alienate.
More to the point, it is becoming increasingly clear that the Cambridge Court may have actually been doing the SC-SDP a favor, by allowing them to claim moral victory with 4500 signed forms that would never need to be checked, never need to be verified.
As noted in previous writing, it’s been comforting that this year the anti-divestment side was organized and (unlike last year) did not consist of people like me working in a vacuum. And I take great pride in everything we did to inform the public about the harm divestment would do to the city of Somerville.
That said, I wish I could say our effort had more to do with divestment’s failure than the SDP’s own fanaticism and unwillingness to play by the rules. In their heart of hearts, I suspect they truly believed that they could force the city to print up thousands of ballots that would give their hateful rhetoric of the Jewish state the official imprint of the Somerville city government. Apparently, anything they were told that conflicted with that desire crawled in one ear and flew out the other.
Now that divestment has gone down to defeat not once, but twice in less than one year, the SDP leadership is no doubt being faced by donors who provided them thousands of dollars, and volunteers who trudged through the streets of Somerville for weeks on end to “sell” divestment to a public that was thankfully not buying. How to explain that these leaders’ own arrogance and ideological blindness wasted everyone’s time and money and doomed their movement, not just in Somerville but in municipalities around the country?
Last Thursday in court, the SDP’s narrow-minded, blinkered view of the world ran smack into justice. And justice, and the people of Somerville, were the winners.