Select Board comment policy “unconstitutional” according to SJC

The Mass Supreme Judicial Court made a declaration on the Town's policy and remanded Barron v Kolenda back to court for review of a plausible civil rights violation.

In a case that has made national news*, the state’s Supreme Court today ruled that Southborough’s public comment policy created by the Select Board is “unconstitutional” in Massachusetts.

(The finding by the Mass Supreme Judicial Court is based on language in the Commonwealth’s constitution. The plaintiff previously withdrew a complaint on the violation of the 1st Amendment that would have moved the case to federal courts.)

The state’s highest court remanded the case back to Worcester Superior Court with an opinion that Louise Barron has a plausible case against former Selectman Dan Kolenda for violation of her civil rights.

At a Select Board meeting in December 2018, Barron was threatened with removal after she objected to Kolenda cutting off her comments criticizing actions of the board. In defense of the acting Chair’s actions, the Town pointed to its comment policy which includes the requirement:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal, or slanderous remarks. 

The SJC took up the case and solicited amicus briefs on the constitutionality of the policy. During oral arguments in the case, several Justices took issue with the policy’s language. Justice Scott Kafker characterized the restriction as “a lot” and wondered aloud if the Declaration of Independence would violate the provision.

In the opinion issued today, the court rejected the Town’s defense of the policy, clarifying that while the Town has the right to limit residents’ behavior and length of comments, it doesn’t have the right to limit the public’s criticism of officials:

Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials. What can be required is that the public comment session be conducted in an “orderly and peaceable” manner, including designating when public comment shall be allowed in the governmental meeting, the time limits for each person speaking, and rules preventing speakers from disrupting others, and removing those speakers if they do.

The judgement reverses an earlier decision by a Worcester Superior Court judge in Barron v. Kolenda, the case filed by Barron in 2020 over her treatment at the meeting:

when Barron alleged that the chair threatened to have her physically removed from a public comment session of a public meeting after she criticized town officials about undisputed violations of the open meeting laws, she properly alleged that he threatened to interfere with her exercise of State constitutional rights protected by arts. 16 and 19 in violation of the [Massachusetts Civil Rights Act (MCRA)]. 

The opinion also offers a clear rebuke for Kolenda’s “unlawful” behavior at the December 2018 meeting, and finds that it was not covered by qualified immunity:

At a public comment session in a meeting of the board, a resident of the town thus clearly has the right to accurately complain about violations of law committed by town officials and object to other town actions, including its spending practices, and to express her views vehemently, critically, and personally to the government officials involved. Such a right is clearly protected by art. 19 as well as art. 16 for the reasons discussed supra. When a government official responds to a resident’s exercise of those rights by accusing her of slandering the board, screaming at her, and threatening her physical removal, it should be clear to him that his conduct is unlawful. Thus, there is no basis for qualified immunity.

Today’s ruling remands the case back to the lower court for a finding “consistent with this opinion” and details:

the plaintiffs’ allegations plausibly suggest that Barron’s rights were interfered with via threats, intimidation, or coercion. Kolenda’s response is not fully captured by the video recording, but, accepting the plaintiffs’ account as true, Kolenda told Barron to stop speaking, started screaming at her, and threatened to have her removed from the meeting in response to her protected speech. If this is proved at trial, she could establish a violation of the MCRA.

To read the full ruling, click here. (For past coverage of the case, click here.)

*Given the wider context of the SJC ruling, I won’t be surprised if this case makes headlines across the state, or even nationally. In January, the Washington Post included Barron v. Kolenda in a story about towns’ grappling with legal issues around “taming” public comments as “meetings grow wild”. 

Newest Most Voted
Inline Feedbacks
View all comments
Michael Weishan
1 year ago

This is a fantastic day for all residents of Southborough who value free speech! Firstly, we should all offer up our thanks to Jack and Louise Barron, who fought long and hard for our civil rights against long odds, and risked their health and fortune to do it. We are accustomed to lauding those who enter the military to defend our country. Yet “they also serve who only stand and wait,” and to my mind, in engaging in this battle, the Barrons have made an invaluable contribution to preserving the very freedoms every American veteran has ever fought for.
To get to brass tacks: Dan Kolenda has been proven to be a bigoted bully and a disgrace to Southborough’s government—a little man who had no problem violating other people’s civil rights while demanding strict adherence to his own personal code of prejudice. His name will now be forever associated in Massachusetts legislative history as the man who verbally assaulted a beloved grandmother, then tried to hide behind his elected office, and lost.
Given the above, and in reward for her laudatory courage and public service, I would like to propose that we rename the upstairs meeting room in Town House THE LOUISE BARRON MEETING ROOM. It’s about time we commemorate some of our town’s most courageous women, and I can’t think of anyone better than the little lady with a sign who changed free speech history in Massachusetts.

Tim Martel
1 year ago

Hi Michael.
Allow me to play “devil’s advocate”.
This ruling, while a triumph for personal rights on its surface, could very well result in the very opposite of what was desired. i.e. the ability to freely comment in a public meeting. (Note: I do not include public hearings, which are a different situation.)
The Open Meeting Law (see updated guidance from AG) guarantees private citizens the following:
— 48 hour notification of meetings.
— access to meetings (physical or digital) or a full transcript of meetings in certain hardship situations.
Also guaranteed:
— availability of meeting minutes (town bylaw)
— access to documentation/data (via public records request)
However, public comment is not a requirement. In fact, the Open Meeting Law specifies that nobody shall address the public body without permission of the chair, and all persons shall, at the request of the chair, be silent.
So…do you really think public comment line items will be offered in agendas moving forward? If not, what good did this lawsuit bring?
Please share your thoughts.

Michael Weishan
1 year ago
Reply to  Tim Martel

Hi Tim
For starters, I would never dare to challenge the logic behind the Supreme Judicial Court of Massachusetts.
Their ruling wasn’t just a decision to support free speech. The highest legal force in our state judged that our Board of Selectmen has knowingly and repeatedly engaged in illegal activity. 
Think about that for a moment: The highest judicial force in our state judged that our Board of Selectmen has knowingly and repeatedly engaged in illegal activity.
It’s mind-boggling.
Frankly I don’t believe that any voter in Southborough need be overly concerned about potential limitations on public comment going forward as a result of this decision.
However, there is something that DOES concern me terribly. It’s that this illegality hasn’t been limited to this one issue. Past and present board members of the BOS have openly lied and misrepresented the truth on numerous occasions, assured in the conviction that they were protected by Town Counsel, and the fact that few of our citizens could afford to mount a legal challenge. 
As witness I give you former selectman Brian Shea, who actively worked with members of his parish to arrange a private land deal for one of his fellow parishioners, and in the process, destroyed one of the last remaining historic parcels in that part of town. For this transgression, Mr. Shea was subjected to a State ethics investigation, but was ultimately let off the hook because it couldn’t be proven that he personally benefited financially from the transaction. His handiwork though—the incredibly ugly parcel next to St. Anne’s—remains to this day in silent testimony. 
And then we have Dan Kolenda, caught red-handed. Enough said. 
Next, we have Marty Healey, who advocated, as chair of the BOS, a 290K funding request to the state for “a history walk” that was subsequently shown to be at best dishonest, and at worst, fraudulent. (The jury is still out on that one.) He was aided in this by Ms Braccio, his co-chair, Ms. Malinowski, and Mr. Andrew Dennington, who supported Mr. Healey as he openly lied to us— fully captured on video at Town Meeting—about the original intent of this project.
And then we have Ms. Braccio, who just recently decided to jump the sinking BOS ship to run for the Planning Board. She, along with her co-chair Ms. Malinowski (now attempting to flee to the School Board) are the subject of a complaint for allegedly misdirecting public funds in a retaliatory attempt to silence a whistleblower (that would be me) over the St. Mark’s Triangle debacle. 
Further, Ms. Braccio is also the subject of a far more extended complaint for allegedly directing DPW monies as a member of the BOS for six years while her husband was the recipient of over 70K in income from that same department. In any other town, this allegation should have resulted in her immediate resignation and her voluntary disavowal of further elected office, but here in Southborough it seems you need to be sued, hauled into, and shamed by the highest court in the land before you are forced to release your sway over local governance. 
So, Tim, in short, what I would respond to you is this: no, I do not share your concerns for now, because there is still something terribly rotten over there at the Town House that demands our immediate attention. 
Let’s agree to find and eliminate that stink. It’s rotting the very foundations of our town government, and eroding the absolutely essential confidence that our voters MUST possess in our elected officials in order for our democracy to function effectively. 
All best to you, 

David Parry
1 year ago

Now that is some letter! Saying it clearly, and fearlessly. So unusual, because so few people dare to speak the truth, for fear of retaliation. — Good for you Michael ! You are truly fearless, and you speak from bitter experience.

It was a DISGRACE when “our” Select Board sought to silence you , two years ago, after you ACCURATELY criticised their scandalous St Marks Road Project.

They proved themselves to be vindictive wth you, and recently they have been conocting false accusations against me too. But I am NOT going to back off, one inch. I will write it down and send it to the State Inspector General to take action. . In fact , I have already received calls from State officials, thanking me for pursuing this petty corruption.

The St Marks Rd Project is the epitome of petty corruption. It never should have started. Now it needs to be stopped. It is nothing but a FREE GIFT to a wealthy private school, ochestrated by an autocratic alumnus — the town’s forner DPW Sup. Karen Galligan.

Galligan attempted to disguise ther Project as a “legitimate” public works project — by cococting a false justification — “flooding” — when the flooding was actually caused by none other than her Alma Mater, St Marks School. She manoevered to get the School pernission to build the wall. ( The permissoo was in the form of an illegal “license” — instead of a normal easement, which would have revealed the details of the scheme,
because easements require approval of Town Meeting).

The stone wall is situated at the HIGH point in ground elevation, so that water prevkously flowed NORTH from that point, across St M playfields to the small lakes west of Rt 85 playfields, to the lakes west of Rt 85.

But INSTEAD of demanding that St M unblock the flooding caused by the wall (by, for instance, making holes in the bottom of the wall, so water could once again flow North) … INSTEAD OF THAT … GALLIGAN SPENT OVER $100.000 OF OUR TAX MONEY TO INSTAL A 12 ” DRAINAGE PIPE UNDER RT 85, from Main St to St Marks Rd intersection.

Galligan bailed out St Marks … so they no longer had to perform their duty, which was to correct the flooding problem which they created.

Then, to cap it all off, we have GALLIGAN’S Coup De Grace. The free parking lot.

Galliga.and the Town Administrator (her boss) devised a scheme to abandon the existing St Marks Rd, and the intersection with Rt 85 …. and replace them with a BRAND NEW ROAD AND INTERSECTION — all so that St Marks could have a larger parking lot … and have it paid for by the Town. … Another free gift to St Marks from a generous alum.

I hope Town Meetjing stops this project. The cost to stop is ZERO. The cost to carry on and complete the Project will be anotber $ half million …. For something we don’t need and won’t benefit from. We don’t need a new raod, because the existing road works fine the way it is, now that flooding has been resolved.

And don’t let the Select Board scare you into believing that we, the town, will have to pay reparations to St Marks for stopping. Quite the reverse is true — because St Marks has already benefitted enormously by having new undergrounf drainage pipes they can use, plus the tons of gravel the town trucked to the site.

St M is perfectly capable of building their own Parking lot on their own land …. in the former grassed triangle. They can install a gravel parking lot there, on their own land … if they wish. They do NOT need the town’s help in buildihg
their own parking lot.

Alex Neihaus
1 year ago

Town residents are used to this town government’s imperiousness and insular, opaque operation. Enter the SJC — reaching all the way back to the Adamses — to deliver a stinging rebuke to Southborough.

The Massachusetts constitution is the oldest in the country and the SJC is the oldest supreme court in the USA. In 29 entertaining pages, the SJC rejects what the town has become.

I lay blame at our permanent apparatchik staff, whose capture of hard-working volunteer select people sets them up in opposition to the good select people try to achieve. IOW, you are what you read and hear. And what the Southborough Select Board sees and hears is carefully orchestrated by town administration whose interests are separate from residents’.

Thats why Kolenda lost it and thought it OK to do so. He was pwned by town management and was defending their interests, not ours.

  • © 2024 — All rights reserved.