New Legal Filing: Jones Library Reconstruction Project Should Require A ⅔ Supermajority To Pass In Referendum

Group Cites Established State Law On Municipal Borrowing

Source: Plaintiffs, Terry Y. Allen vs. Board of Registrars

Petitioners who sought a referendum on the $36 million Jones Library reconstruction project filed an emergency motion in Hampshire Superior Court on Tuesday (10/26), seeking to make the town comply with a state law that requires a ⅔ supermajority for long-term capital borrowing by cities and towns. The filing, which also asks for an emergency court hearing prior to the Nov. 2 election, cites Massachusetts General Law Chapter 44 Section 7, which states that

“Cities and towns may incur debt, by a two-thirds vote … not to exceed 30 years … for the … construction, reconstruction, rehabilitation, improvement, alteration, remodeling, enlargement, demolition, removal … of public buildings.”

“The 2/3 supermajority is basic state law … It applies to all borrowing by every single city and town. This includes Amherst,” said Sarah McKee, a former president of the Jones Library Board of Trustees, and a former federal prosecutor.

In the lead-up to Tuesday’s vote, the “Yes for the Jones” campaign maintains that Amherst needs to spend $16 million for essential repairs and accessibility modifications to the library, and that the ballot question would enable the Town to secure an additional $20 million in state and private funding combined. Meanwhile, the “Vote No- Start Over Smart” campaign argues that the $35.3 million plan is extravagant and unnecessary, and would needlessly demolish 40% of the existing building.

Rita K. Burke, an Amherst voter for four decades whose signature on petitions seeking the referendum was disqualified, while her husband’s was not, said she wants to see the town uphold state law when ballots are counted on Tuesday.

“Voters have the right to petition for a referendum, and to have their signatures certified according to state standards. The town also has an obligation to taxpayers like us to follow state law, which requires a 2/3 supermajority on borrowing for capital projects,” Burke said. “Many people will be paying attention on Tuesday, and we want to know that this referendum will be conducted properly.”

Lawyers for the Town of Amherst previously stated that the town will determine the referendum’s outcome by a “majority vote,” according to Monday’s filing by the petitioners’ attorney, Carol Gray of Amherst. However, the state law includes no option for a referendum on borrowing to be made as an “affirmation” by a simple majority of a prior ⅔ vote.

“Casting the referendum question as an affirmation does not circumvent the requirement that Amherst comply with state law,” the plaintiffs stated. “The Town cannot evade the mandates of Massachusetts General Laws by phrasing the question as if it were simply an up or down vote, majority wins … rather, state law requires that the voters stand in the shoes of the Town Council.”

Petitioners sought a referendum after the Town Council’s April 5 vote to borrow $35.3 million to reconstruct the Jones Library, and submitted signed petitions on April 20. Although the Town Clerk’s Office reported 1,088 signatures were submitted, they said that petitioners were 22 certifiable signatures short of the 864 needed to triggers a referendum – a number which represents five percent of the Town’s registered voters in the most recent local election.

The 40 plaintiffs in Terry Y. Allen vs. Board of Registrars filed suit in the state Supreme Judicial Court in May, seeking a declaration that the board breached its duty to them, and violated their right to petition the government for redress of grievances. The case was transferred to Hampshire Superior Court in June, and the court has yet to rule on the issue of whether the plaintiffs’ signatures were wrongly rejected.

Amid the ongoing litigation, on August 2, the Town Council voted to place a question on the November. 2 ballot, based on Section 8.6 of the Amherst Home Rule Charter, rather than Section 8.4, which sets out the “Voter Veto” process under which the petitions were filed. However, Judge Richard Carey, in a decision issued August 19, found that the ballot question approved by the Town Council would provide the outcome that the plaintiffs sought, as “placement of the library renovation matter before the voters of Amherst.”

As of late Wednesday, the Court had taken no new action in the case. A lawyer for the town, Lauren Goldberg of KP Law, who was contacted by Gray to confer about the filing,  objected to the new motion, citing issues of timing, relevance, and “ripeness for review,” the court document states.

The ballot question that voters will see asks if a Town Council vote to borrow $35.3 million for the library expansion and renovation on April 5 will be “affirmed.” While the Massachusetts Home Rule amendment gives cities and towns the right to local self-governance, those rights have limitations, including to the manner in which a municipality can borrow money. The new motion notes that in the past, referendums in Amherst have complied with the ⅔ majority requirement, including in March of 2017, when a $66.7 million plan for a new consolidated elementary school failed to gain sufficient support to pass.

The plaintiffs stated that it is important that the court order the town to comply with ⅔ majority so that the results of the referendum won’t be in dispute. On November 7, according to the court document, if the referendum passes, the Massachusetts Board of Library Commissioners (MBLC) is scheduled to disperse ⅕ of a $13.8 million state grant to the town. The funds would have to be repaid to the MBLC with interest if the grant contract can’t be fulfilled.

Gray has previously asked the court to conclude that the 5% threshold for a Voter Veto. referendum was met since the Town wrongfully failed to certify dozens of petition signers who had signed “substantially as registered” in compliance with State law.

Ongoing Litigation
The plaintiffs state that their signatures were disqualified unlawfully, based on insignificant differences between the information they provided and the Town’s voting rolls. Signatures were disqualified for adding or omitting middle initials, failure to abbreviate “Lane” or “Road” in an address, or including the words “Amherst,” “Massachusetts,” and a zip code after a street name.

The Massachusetts General Laws require only that a person sign “substantially as registered.” Boards of Registrars are supposed to certify a signature if they can “reasonably determine from the form of the signature the identity of the duly registered voter.”

In an affidavit filed with the Court in August by the Town’s lawyers, the Assistant Town Clerk stated, “I do not dispute that this signature should have been certified,” in reference to at least 10 of the contested signatures.

More than two dozen petition signers were rejected because they did not list their apartment number, although they provided a correct name and street address. The Assistant Town Clerk rejected these apartment dwellers’ signatures, even though the Town Clerk’s office, on prior petitions, certified signatures of apartment dwellers who had omitted their apartment numbers. For the Jones Library project referendum petitions filed on April 20, 22.6% of the signatures submitted were not certified, about six times as many as the 3.5% not certified on the building moratorium petitions. Meanwhile, just 4.2% of the school building project petition signatures reviewed were not certified, according to court documents.