Appellate Court Stalls Repeal Of Rent Control

BOSTON--A state referendum to repeal rent control cannot take effect until the courts decide whether the conduct of the November vote was constitutional, a Suffolk Country appellate judge ruled yesterday.

Appeals Court Associate Justice Christopher J. Armstrong refused to lift a restraining order that bars Question 9 from taking effect.

Citing a "constellation of hardships" for thousands of tenants, the judge let stand a ban on Question 9's enactment, which would end rent control January 1.

But in a mixed victory for the state, Armstrong threw out the restraining order stalling enactment of four other ballot initiatives from the election.

Pushing ahead with the four referenda, Secretary of State Michael J. Connolly--who conducted the disputed vote--immediately submitted them to the Governor's Council for certification, a secretary to the council said yesterday. But they will not be certified until Gov. William F. Weld '66 gives final approval, the secretary said.

Armstrong's decision overturns most of the 10-day restraining order issued by Suffolk County Superior Court Judge Hiller B. Zobel '53 earlier this week.

But the controversy surrounding rent control is far from over.

While granting the bulk of Attorney General L. Scott Harshbarger '64's appeal of Zobel's ruling, Armstrong refused to give his opinion on whether the conduct of the referenda violated the state constitution.

The issue is almost certain to go to the Supreme Judicial Court (SJC). "The critical need in this extraordinary situation is to secure the quickest possible resolution of the challenge," Armstrong wrote in his eight-page decision.

The justice agreed with Zobel's ruling that a constitutional challenge to the election results "has a substantial likelihood, although not a certainty, of success."

Armstrong said he made rent control the exception because Question 9's implementation would harm tenants in Cambridge, Boston and Brookline--the three state communities with rent control laws.

"If the rent control laws remain in effect pending disposition of the court challenge, landlords and tenants will at least know where they stand legally," the justice wrote.

Certification of Question 9 would result in "a legal no-man's land of confusion where the authority of rent-control boards will be in doubt, as will numerous rent increase notices and, after January 1, eviction proceedings," Armstrong added.

Four plaintiffs are seeking to nullify the results of the November 8 referenda. They charged Secretary of State Michael J. Connolly--who conducted the vote--with violating the state constitution by not printing summaries of the ballot questions in voting booths, as required by Article 48 of the state constitution.

Because of the length and complexity of the nine questions, Connolly provided separate paper summaries of the questions at polling sites throughout the state.

But the plaintiffs are challenging the constitutionality of the state law passed in August that permitted Connolly to provide the paper summaries.

Armstrong decided to grant the state's appeal, stating that certification "will not, if allowed to occur, impair the plaintiffs' ability to maintain their challenge" on constitutional grounds.

The ruling permits the state to certify initiatives to keep a funding structure for student groups, raise gasoline-tax spending on state highways and limit the terms of elected officials.

Armstrong also allowed Question 5, the first of the initiatives to take effect, to be enacted, despite widespread opposition from blue-collar workers.

Lawyers for the plaintiffs argued that the measure, which would let stores open on Sunday mornings and some holidays, would pressure workers into putting in additional hours, even though its clauses are technically voluntary.

Armstrong disagreed. He said greater harm would result to retailers, who would lose profits at the height of the Christmas shopping season. And he said Massachusetts would be denied valuable sales-tax revenue if stores were kept closed.

But Ruth A. Bourquin, one of two attorneys representing the plaintiffs, said past precedents gave special permission for stores to open anyway during the two weekends before Christmas.

Both sides said they were pleased with Armstrong's decision.

"I'm pleased with Judge Armstrong's ruling, particularly his conclusion that the Secretary of State's argument on this issue is stronger than the lower court judge thought," said Ed Cafasso, spokesperson for the attorney general.

In a statement, Connolly said he was confident the courts will find the vote constitutional. He warned against efforts "to thwart the will of the voters."

But Bourquin interpreted Armstrong's ruling in a different light. She said both Zobel and Armstrong had recognized the legitimacy of their constitutional challenge.

"This is just about the narrow question of whether--pending a determination on the merit--the results will be certified or not," she said. "The fact that the [four] questions are certified doesn't mean they won't be ultimately struck down as unconstitutional."

But she disagreed with Armstrong's argument that the enactment of some questions would cause more harm than that of others.

"We think it's not appropriate to look at the questions individually," she said. "All the citizens and voters are irreparably harmed if laws that were inappropriately voted on take effect."

In addition to the constitutional challenge, Bourquin has filed affidavits charging that numerous voters did not receive the correct paper summaries of the ballot initiatives.

Carol R. Tobias, the Dorchester resident who is the leading plaintiff in the suit, said she is dissatisfied with the ruling.

"This is not a question about what will cause more harm or what won't," Tobias said in an interview. "That's not why I filed my complaint. I filed my complaint because the ballot questions were not on the ballot, and that hasn't been addressed."

Attorneys for both sides will meet Monday with Superior Court Judge Susan Garsh to set a timetable for an injunction hearing--on the larger issue of whether the conduct of the vote was constitutional.

The Superior Court could simply certify the case and send it to the SJC, Massachusetts' highest court.

Rep. John E. McDonough (D-Jamaica Plain), the chair of the House of Representatives Committee on Election Laws--which first approved the bill allowing Connolly to provide the paper summaries--said he had not anticipated the constitutional challenge.

"This is new legal terrain not just for the state of Massachusetts but, as far as we know, for any state," he said yesterday.

McDonough declined to give his opinion on the constitutionality of the vote, though he acknowledged that voting irregularities took place.

"The alarming thing is, this could drag on for a considerable period of time," he said. "It's mess.

Because of the length and complexity of the nine questions, Connolly provided separate paper summaries of the questions at polling sites throughout the state.

But the plaintiffs are challenging the constitutionality of the state law passed in August that permitted Connolly to provide the paper summaries.

Armstrong decided to grant the state's appeal, stating that certification "will not, if allowed to occur, impair the plaintiffs' ability to maintain their challenge" on constitutional grounds.

The ruling permits the state to certify initiatives to keep a funding structure for student groups, raise gasoline-tax spending on state highways and limit the terms of elected officials.

Armstrong also allowed Question 5, the first of the initiatives to take effect, to be enacted, despite widespread opposition from blue-collar workers.

Lawyers for the plaintiffs argued that the measure, which would let stores open on Sunday mornings and some holidays, would pressure workers into putting in additional hours, even though its clauses are technically voluntary.

Armstrong disagreed. He said greater harm would result to retailers, who would lose profits at the height of the Christmas shopping season. And he said Massachusetts would be denied valuable sales-tax revenue if stores were kept closed.

But Ruth A. Bourquin, one of two attorneys representing the plaintiffs, said past precedents gave special permission for stores to open anyway during the two weekends before Christmas.

Both sides said they were pleased with Armstrong's decision.

"I'm pleased with Judge Armstrong's ruling, particularly his conclusion that the Secretary of State's argument on this issue is stronger than the lower court judge thought," said Ed Cafasso, spokesperson for the attorney general.

In a statement, Connolly said he was confident the courts will find the vote constitutional. He warned against efforts "to thwart the will of the voters."

But Bourquin interpreted Armstrong's ruling in a different light. She said both Zobel and Armstrong had recognized the legitimacy of their constitutional challenge.

"This is just about the narrow question of whether--pending a determination on the merit--the results will be certified or not," she said. "The fact that the [four] questions are certified doesn't mean they won't be ultimately struck down as unconstitutional."

But she disagreed with Armstrong's argument that the enactment of some questions would cause more harm than that of others.

"We think it's not appropriate to look at the questions individually," she said. "All the citizens and voters are irreparably harmed if laws that were inappropriately voted on take effect."

In addition to the constitutional challenge, Bourquin has filed affidavits charging that numerous voters did not receive the correct paper summaries of the ballot initiatives.

Carol R. Tobias, the Dorchester resident who is the leading plaintiff in the suit, said she is dissatisfied with the ruling.

"This is not a question about what will cause more harm or what won't," Tobias said in an interview. "That's not why I filed my complaint. I filed my complaint because the ballot questions were not on the ballot, and that hasn't been addressed."

Attorneys for both sides will meet Monday with Superior Court Judge Susan Garsh to set a timetable for an injunction hearing--on the larger issue of whether the conduct of the vote was constitutional.

The Superior Court could simply certify the case and send it to the SJC, Massachusetts' highest court.

Rep. John E. McDonough (D-Jamaica Plain), the chair of the House of Representatives Committee on Election Laws--which first approved the bill allowing Connolly to provide the paper summaries--said he had not anticipated the constitutional challenge.

"This is new legal terrain not just for the state of Massachusetts but, as far as we know, for any state," he said yesterday.

McDonough declined to give his opinion on the constitutionality of the vote, though he acknowledged that voting irregularities took place.

"The alarming thing is, this could drag on for a considerable period of time," he said. "It's mess.