(11/11/07) The Select Board met at 6:30 p.m. on Wednesday, November 7th in the Middle School music room prior to Town Meeting. Gerry Weiss, Rob Kusner, Anne Awad, Alisa Brewer and Hwei-Ling Greeney were present, as was Town Manager Larry Shaffer.
It was decided that consideration of the Select Board recommendations on articles 13, 14 and 19 would be put off until November 15th, because no one was available to speak to those articles as all relevant parties were at a Planning Board meeting.
Public Hearing – UMass Faculty Club Liquor License (6:39)
Mr. Kusner and Ms. Brewer recused themselves from this discussion and left the room.
Mr. Weiss said that the club was seeking to change its liquor license type from “club” to “restaurant.”
Faculty Club Manager Dennis Scott spoke briefly about the club’s history and its high-quality food and service. He said that the impetus for the license change is based on a desire to reach out to the larger community in order to increase revenues. He said that as the only non-academic and non-student-specific entity on campus, the Faculty Club gets neglected in UMass budget, and that a full restaurant liquor license and the ability to bring in the public might help it to improve its finances. He said that the club is the first impression of the University for many new faculty members, distinguished visitors and guests. He said that undergraduates are not allowed to use the club except as part of an official campus function, and that that would not change with the new license.
Mr. Weiss asked if it were true that there would be no new tax revenues paid to the Town. Mr. Scott said that that was true, but that the club pays sales taxes on food and liquor which go to the State and then indirectly benefit communities. Mr. Weiss said there may be concern that the club would now be taking business from local restaurants that pay local taxes. Ms. Awad said that if a liquor license is available, then she didn’t believe that would be a legitimate complaint. Mr. Scott said he felt that there was enough business for all the restaurants to thrive. Mr. Weiss said that the Faculty Club did have a right to the license.
Ms. Greeney said she had been to the restaurant once and thought very highly of it. She said it was an asset to the community. She moved to approve the change of license from an all-alcohol club license to an all-alcohol restaurant license. The vote to approve the change was 3 in favor, 0 opposed.
Ms. Brewer and Mr. Kusner returned after the vote and were told of the results. Mr. Kusner appeared displeased.
Mr. Weiss asked Mr. Shaffer to talk about the status of the eviction order for David Keenan of Shays Street.
Mr. Shaffer recapped the recent history of the issue. He said that a year ago, the Town successfully petitioned the court to complete foreclosure on the property in compensation for 12 years of unpaid property taxes, totaling about $60,000. He said that Mr. Keenan had exhausted the right of redemption and that the court had allowed him ample time and that he had missed every deadline. He said that the eviction process had begun this past summer, and that Mr. Keenan contested that through the housing court. He said that it was negotiated that Mr. Keenan would pay back the full tax obligation, and that the Town would not oppose his petition to the court to reinstate title on the property and to vacate the foreclosure order. He said that Mr. Keenan met the obligations, and paid back about $64,000 in two payments. Mr. Shaffer said that it was Mr. Keenan’s obligation to petition the court to set aside the foreclosure order and that the Town would not initiate that, and that Mr. Keenan had failed to do so. Mr. Shaffer said that the Town wanted to inspect the property in preparation for the vacating of the foreclosure order so that the condition of the property would be known at the time the order was set aside, so that no representations about its condition and the Town’s obligation could be made subsequent to the title vesting back to Mr. Keenan. Mr. Shaffer said that Mr. Keenan contested that, but that the housing court ordered the inspection to take place, and that the Town had conducted them. He said that from both the health inspection and building inspection perspective, the house was found to be uninhabitable and was condemned on both counts. He said that there were a litany of problems, including the fact that the roof trusses had been removed, which he said was a serious health and safety violation, and that the roof could collapse with snow or strong wind. He said that sink fixtures emptied directly into the basement without any pipes. He said that whole sections of the house were opened up to nature and the elements, and that sections of the basement wall were removed. He said that once the house was condemned, Mr. Keenan appealed to the court seeking for the Town to pay for his housing because the house is still Town property, but that that was dismissed. Mr. Shaffer said that the court also ordered an electrical inspection of the property, and that that would take place next week. Mr. Shaffer said that the Town has not stood in the way of Mr. Keenan taking back title of the property, and that the court has ordered inspections to protect the health and safety of the occupants. He said there is a question as to whether a child attending the Amherst schools lives there, which is uncertain, but furthered the health concerns. Mr. Shaffer said Mr. Keenan was told to comply with building and health codes, with the pending issue of electrical code issues as well, before the house could be inhabited again. Mr. Shaffer said that there has been some public suggestion that the Select Board was involved in the issue and affected how the rules are being applied, and he said he wanted to make sure the public knows that that is false and that the Select Board has had no involvement.
In response to a question, Mr. Shaffer said that Mr. Keenan has satisfied the tax payment conditions required to regain title, and that the Town would not challenge that, but that the Town also won’t initiate it. He said that the Town can’t convey property outside of a vote by Town Meeting, but that the courts can vacate the foreclosure and let the title vest back to Mr. Keenan.
Mr. Weiss asked if the Town is required to do the repairs because it holds the title. Mr. Shaffer said no, and that that issue had been resolved clearly in housing court. Mr. Weiss said he was concerned that because it was the Town’s house, it would be the Town’s problem. Mr. Shaffer said it would have been the Town’s problem if Mr. Keenan had not paid his taxes, and said that that issue brought about the eviction process, because “we needed to get him out of there while we own the house in order to take care of the house.”
Mr. Weiss asked if Mr. Keenan can work on the house. Mr. Shaffer said that he (Mr. Shaffer) had authorized a building permit and that Mr. Keenan was welcome to proceed. Mr. Shaffer said he can’t imagine that the house could be damaged more than it already is, and said that Mr. Keenan has to follow the rules and work with a legitimate building permit and have the repairs inspected by the Town to ensure code requirements are being met. Mr. Shaffer said he had no intention of enforcing more or fewer laws with Mr. Keenan than with anyone else.
Approval of Water Supply Protection Committee Charge (6:58)
There was considerable discussion about details of the proposed committee charge. As no copy of the charge was available for the audience, it was difficult to follow along with the discussion. In general, Mr. Kusner was proposing an expansion of the charge of the Aquifer Protection Committee, and proposing that that committee would be superseded by this new committee. There was some tweaking of language to clarify that the committee would make recommendations to the Select Board rather than directly implementing any recommended changes. There was also discussion about how much expertise required of potential committee members needed to be specified within the charge, as well as how the committee would be comprised. It was agreed that those who served on the recent Watershed Task Force would be among the members. Ms. Brewer suggested that due to the expertise required, the committee should have Special Municipal Employee (SME) status from the outset, and Mr. Weiss agreed and said that the committee should be asked to have a request for such on file. He said that granting SME status should be a separate motion.
The vote to approve the committee charge was unanimous.
Notification Period – W.D. Cowls APR (7:18)
A request from the State sought the Select Board’s approval to reduce the statutory notification period from 120 days to 60 days for the intended purchase of an Agricultural Preservation Restriction (APR) on W.D. Cowls land on Route 116 in North Amherst. Approval also required the public announcement of that reduction.
[Note: this APR was the subject of Article 27 at the Annual Town Meeting in the spring, where $90,000 of CPAC money was approved to pay the Town’s share, while the State would pay $360,000.]
Ms. Brewer noted that she is personal friends with Cinda Jones of W.D. Cowls, and said she didn’t think that had any bearing on the issue.
Ms. Greeney asked if there was anything the Town needed to do prior to the transaction that would be affected by the shortened timing. Mr. Shaffer said there was not, and that it is better for such transactions to occur sooner rather than later, and that he had no opposition to it.
The vote to approve reducing the notification time from 120 days to 60 days was unanimous, and an announcement of that was read aloud.
Mr. Kusner asked about proposed amendments to the zoning articles by the Zoning Board of Appeals (ZBA.) Mr. Weiss said that the ZBA had met and wanted to propose some amendments, and that he had heard that the Moderator might not allow those motions.
Mr. Kusner said that he head heard that the ZBA may seek to divide Motion B of Article 15. [Note: this is the Spring Street rezoning article. Motion B proposes that hotels, motels and inns be allowed by right in the General Business district.] He suggested that since the Select Board had already voted on that, perhaps they should consider a new position in light of the proposal to divide. Mr. Weiss said he was uncomfortable to do so without having any language for such, and said that if the amendment is allowed, any member could speak to his or her opinion about it as an individual. Mr. Kusner expressed concern about the results of the original vote being expressed without clarification, should there be an amendment. Mr. Weiss said that it would be made clear that their vote had been on the original unamended article.
The meeting adjourned at 7:27 p.m. The next Select Board meeting is scheduled for 6:30 p.m. on Thursday, November 15th in the Middle School music room, prior to Town Meeting,
-- Stephanie O’Keeffe
Comments
Supreme Court of the United States
Argued January 6, 1964
Decided March 9, 1964
Full case name: The New York Times Company v. L. B. Sullivan
Citations: 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686; 1964 U.S. LEXIS 1655; 95 A.L.R.2d 1412; 1 Media L. Rep. 1527
Prior history: Judgment for plaintiff, Circuit Court, Montgomery County, Alabama; motion for new trial denied, Circuit Court, Montgomery County; affirmed, 144 So. 2d 25 (Ala. 1962); certiorari granted, 371 U.S. 946 (1963)
Holding
The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of Alabama reversed and remanded.
Court membership
Chief Justice: Earl Warren
Associate Justices: Hugo Black, William O. Douglas, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron White, Arthur Joseph Goldberg
Case opinions
Majority by: Brennan
Joined by: Warren, Clark, Harlan, Stewart, White
Concurrence by: Black
Joined by: Douglas
Concurrence by: Goldberg
Joined by: Douglas
Laws applied
U.S. Const. amends. I, XIV
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a United States Supreme Court case which established the actual malice standard before press reports could be considered to be defamation and libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases — when they involve public figures — rarely, if ever prevail.
Before this decision there were nearly US$300 million in libel actions outstanding against news organizations from the Southern states and these had caused many publications to exercise great caution when reporting on civil rights, for fear that they may be held accountable for libel. After the New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements. The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.
Contents
1 Background of the case
2 The Court's decision
2.1 Actual malice
3 See also
4 Further Reading
5 External links
[edit]Background of the case
On March 29, 1960, the New York Times carried a full-page advertisement entitled "Heed Their Rising Voices", which solicited funds to defend Martin Luther King, Jr. against an Alabama tax-evasion charge. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Commissioner L. B. Sullivan, whose duties included supervision of the police department, wasn't named but argued that his position as a commissioner there meant that the inaccurate criticism of the actions of the police were defamation against him.
Alabama law denied a public officer recovery of punitive damages in a libel action brought on account of a publication concerning their official conduct unless they first make a written demand for a public retraction and the defendant fails or refuses to comply, so Sullivan sent such a request. The Times did not publish a retraction in response to the demand. Instead it wrote a letter stating, among other things, that "we . . . are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you". Sullivan didn't respond but instead filed this suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, SR, Fred Shuttlesworth, and Joseph Lowery. Sullivan won $500,000 in an Alabama court judgment.
The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with "grave misconduct and ... improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama." When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is the ex-officio chairman.... "On the other hand, he testified that he did not think that 'any of the language in there referred to Mr. Sullivan.'"
[edit]The Court's decision
The rule of law applied by the Alabama courts was found constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. The decision further held that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for Sullivan.
Actual malice
Many people have seen the term actual malice as puzzling, since the standard spelled out in the decision refers to knowledge or reckless lack of investigation, not to malicious intent. This term was not newly invented for this case, but was a term from existing libel law. In many jurisdictions, including Alabama (where the case arose), proof of "actual malice" was required in order for punitive damages to be awarded, or for other increased penalties. Since proof of the writer's malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said: "The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice." (p. 106)
In New York Times Co. v. Sullivan, the Supreme Court adopted the term "actual malice" and gave it constitutional significance, at the same time defining it in terms of the proof which had previously been usual. To a person ignorant of this history, the term seems to contradict its definition, to find malice where there may well be none, and to ignore cases where malice, in the everyday sense of the term, is present.
See also
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): Actual malice not necessary for defamation of private person if negligence is present
Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Extending standard to intentional infliction of emotional distress
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990): Existing law is sufficient to protect free speech without recognizing opinion privilege against libel claims.
Further Reading
Make No Law : The Sullivan Case and the First Amendment by Anthony Lewis A book-length history of this case.
"Justice Scalia sets his sights on New York Times Co. v. Sullivan." http://www.slate.com/id/2170309/fr/flyout
Posted by: http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan | November 11, 2007 11:02 PM
Rob --
I'm going to have to wait to catch it on ACTV, if I have a chance. In the
meantime, feel free to comment. My impression was distinctly that you were
not pleased. My notes say "RK NOT HAPPY about." I don't have the slightest
idea why you wouldn't be happy about it, and I may well have gotten the
wrong impression....
For you to leave a comment denying your displeasure (or slamming me for
shoddy journalism, or whatever might strike your fancy -- have at it) is
probably the best way to handle this.
Stephanie
Posted by: Clueless InAmherst | November 11, 2007 11:41 PM
For the folks who are bewildered by the anonymous comments above…
Rob Kusner is having a fit of pique, and has chosen a particularly charming way to share it.
He objects to the sentence in the recap about the Faculty Club liquor license where I noted “Mr. Kusner appeared displeased.” He wants that sentence removed. He has posted above a snippet of my e-mail response to him about it. Our full exchange is considerably more interesting, but I’ll let that go.
It seems to me that there are two issues here. One is what I wrote. The other is how to deal with it.
What I wrote is true: to me, he appeared displeased. How can you quibble with that? It was my impression, and I thought it was worth noting. I believe I was well within my rights to do so.
How to deal with it: If I were him I would have left a comment that said “I don’t know what gave Stephanie the impression that I was displeased – I was not.” Or something to that effect. End of story. Instead, he wanted me to remove the sentence. Well, removing things just because people don’t like them is a slippery slope. And there really isn’t anything here for me to correct (and I do correct errors – of fact, of typing, etc. – I welcome corrections, and Rob has often been helpful in bringing such to my attention,) because this is not an error but a factual report of my impression at the meeting. So I encouraged him to leave a comment and even to criticize me if he wanted to – he’s entitled to his opinions and entitled to post them.
Had he provided a clarifying comment, I might have also put a little note in the story after that sentence saying something like [Note: I appear to have had the wrong impression; see comment below.] But instead of a clarifying comment, he left a lecture in journalism case law, and an edited fragment of my e-mail discussion with him about the issue.
Just another day in the life at inAmherst.com, where truth is stranger than fiction.
Posted by: Stephanie O'Keeffe | November 12, 2007 10:02 AM
Well, Umass is off today so Rob has plenty of time on his hands.
So Mr. Kusner and Ms Brewer can leave the room over a nickel-and-dime liquor license to Umass but when it comes to giving them $200,000 in free water they lead the charge?! Hmmm...
Posted by: Larry Kelley | November 12, 2007 10:37 AM
So just to let the readers decide for themselves, I uploaded to Youtube the very brief snippet of the exchange in question.
http://onlyintherepublicofamherst.blogspot.com/
Posted by: Larry Kelley | November 14, 2007 01:29 PM