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08/23/78 RICHARD L. ANDERSON & OTHERS *FN1 v. CITY

August 23, 1978

RICHARD L. ANDERSON & OTHERS *FN1
v.
CITY OF BOSTON & OTHERS *FN2



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 23, 1978. The case was reported by Wilkins, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Municipal Corporations, Expenditure to influence elections, Constitutional protection. Elections. Constitutional Law, Political contributions, Elections, Freedom of speech and press.

The opinion of the court was delivered by: Wilkins

A municipality had no authority to appropriate funds for the purpose of taking action to influence the result of a referendum proposed to be submitted to the people at a State election. [183-188]

Discussion of legislation regulating the collection and expenditure of funds for election purposes. [185-188]

The First Amendment to the United States Constitution did not require that a city be authorized to appropriate funds to influence the result of a vote on a referendum proposal. [188-198]

The plaintiffs, eleven taxable inhabitants of the city of Boston (city), seek a declaratory judgment pursuant to G. L. c. 231A, and equitable relief pursuant to G. L. c. 40, § 53, concerning the legality of certain actions contemplated by the city in support of a referendum proposal which will be presented to the people at the November, 1978, general election. The referendum proposal concerns an amendment (the classification amendment) to Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth which would authorize the Legislature to "classify real property according to its use in no more than four classes and to assess, rate and tax such property differently in the classes so established, but proportionately in the same class" and to grant reasonable exemptions. Currently, except for reasonable exemptions (Assessors of W. Springfield v. Eastern States Exposition, 326 Mass. 167, 170 [1950]), it is constitutionally impermissible for a municipality to assess various classes of real property disproportionately in relation to the properties' fair cash value. Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth. See Weinstock v. Hull, 367 Mass. 66, 69, appeal dismissed, 423 U.S. 805 (1975); Opinion of the Justices, 344 Mass. 766 (1962).

The complaint was filed in the Supreme Judicial Court for the county of Suffolk on June 23, 1978. A hearing was held on June 28, 1978, on the question of the issuance of a preliminary injunction. The defendants stipulated that they would not expend certain appropriated funds. A single Justice reserved and reported the case for determination by the full court on the pleadings and a statement of agreed facts.

We summarize the material facts agreed to by the parties. On May 30, 1978, the mayor submitted a proposed ordinance to the city council (council), which the council passed by a five-to-four vote on June 7, 1978. That ordinance authorized, subject to appropriation, the expenditure of city funds "for the purposes of providing educational materials and disseminating information urging the adoption by the people of a proposed amendment to the Massachusetts Constitution relating to the classification of property for purposes of taxation." *fn3 On May 31, 1978, the mayor submitted to the council an appropriation request for funds for the purpose of funding an "Office of Public Information on Classification." On June 7, 1978, again by a five-to-four vote, the council passed an order appropriating $975,000, to be raised by taxation (G. L. c. 59, § 23), for the expenses of the Office of Public Information on Classification. *fn4 The mayor approved the ordinance and the appropriation order on June 23.

The mayor has organized the Office of Public Information on Classification "for the purpose of collecting and disseminating information about the impact of 100% valuation on the residents of the City and on the potential of the classification amendment to mitigate that impact." That office would include in its information the fact that the city urges the voters to approve the classification question. It is encouraging the formation of a group of unpaid citizen volunteers to assist in the collection and dissemination of information concerning the classification amendment. The city intends to provide office space and telephones to the volunteers to enable them "to augment the City's efforts." The city will provide printed materials at its expense for distribution to the voters. Some city employees have volunteered to serve full time on the staff of the office as part of their official duties. Others have volunteered to devote part of their time during regular city business hours aiding the operations of the office. The mayor initially requested city department heads to spend three hours each day "in this effort" in addition to their regular duties.

"Studies conducted by the City indicate that the implementation of 100% valuation in the City will effect a transfer of tax burden from commercial and industrial property to residential property in a gross amount of approximately $78,000,000. This transfer will practically double the tax burden on many single family homes in the City, increasing the tax on them by over $1,000." Other studies indicate that, "while many Boston voters understand the impact of 100% valuation on their taxes, few were acquainted with the Classification Amendment or had any idea of its possible impact in mitigating the effects of 100% valuation." There are persons and interests opposed to the passage of the classification amendment who will work to defeat it and who are raising funds from individuals and corporations for that purpose.

On June 30, 1978, the city paid an assessment of $112,550 to the Massachusetts Mayors' Association as its share of $500,000 which that association seeks to use for a Statewide information campaign on the classification amendment. On June 28, 1978, the city executed two contracts which were filed with the city auditor. One, with Lee-Grigsby Associates in the amount of $123,000, provides for instruction to volunteers in effective voter communication about the classification amendment. On June 29, 1978, the city made a payment of $10,000 on that contract for work already performed. The other contract, in the amount of $100,000, calls for Butcher-Forde Consulting to conduct a study of the level of public understanding on the classification issue and to design informational materials and a strategy for their distribution. No payments have been made on this contract.

Funds to meet the city's obligations to the Massachusetts Mayors' Association and to Lee-Grigsby Associates and Butcher-Forde Consulting "were transferred from the Public Facilities Department to the Administrative Services Department by the City Auditor on June 28 and 29, 1978, with the approval of the Mayor under section 3B of the City Charter (St. 1909, c. 486)." The fiscal 1978 budget had no funds expressly designated for expenditures on behalf of the classification ...


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