Above: SJC Justice Kimberly Budd, left, and Justice Serge Georges, Jr. Screenshot.
Justices of the Supreme Judicial Court (SJC) wasted no time in peppering attorneys with key questions on both sides of the White Stadium reconstruction issue during a hearing Wednesday morning, skipping over presentations by both attorneys and hitting on issues that were problematic for both arguments.
The hearing did not result in any decision, but the seven members of the high court will contemplate the written record and Wednesday’s hearing in coming up with a decision in the near term. The case is on appeal from a Suffolk Superior Court decision last year that ruled in favor of the defendants, the City of Boston and the Boston Unity Soccer Partners, parent company of the Boston Legacy women’s professional soccer team.
The plaintiffs- led by the Emerald Necklace Conservancy (ENC) and a group of neighbors known as the Franklin Park Defenders – appealed that ruling.
The SJC agreed to take up the case last December.
During the one-hour hearing Wednesday in Boston’s John Adams Courthouse, justices fired questions at the attorneys on both sides to clarify their positions, often putting those attorneys on their heels in answering difficult queries and pointed follow-up questions.
Justice Dalila Wendlandt quizzed Attorney Alan Lipkind – who represented the plaintiffs – on why two key statutes from 1947 and 1950 weren’t enough to declare by law that the Stadium was no longer parkland and under the “care, custody, and control” of the Boston School Committee. Lipkind had argued the statutes were vague and didn’t accomplish what was required under the case’s main disagreement regarding Article 97 – a state Constitutional provision that serves to protect parklands and was not applied so far to White Stadium, which is situated inside Franklin Park – which is protected by Article 97.
“The two statutes together are not sufficient,” said Lipkind.
“Why not?” fired back Wendlandt. “Because the 1947 act acknowledges a park purpose and 1950 says transfer to the White Fund will be for use of the School Committee.”
“With all due respect, I don’t agree,” said Lipkin.
“But I’m asking you why they are not enough?” she responded.
“Why is that trilogy of facts not enough to change the purpose?” she asked later.
For both attorneys, the justices jumped around to many potential legal precedents the case could set, including whether access roads being used for the Stadium should be considered a license or an easement, and whether the plaintiffs have standing to contest the charitable trust – the George Robert White Fund that funded the Stadium in the 1940s. Over and over, justices interrupted attorneys asking for established case law on the issues at hand and not verbal interpretations.
“The real world test is you’re building a very expensive project on an island with no road to get there and no right to get there and no public ways that get there,” said Lipkin in challenging the issue of access roads to the Stadium in Franklin Park. “No one is going to do that based on a revocable license.”
Challenged Wendlandt, “That might be good legal advice, but I’m really concerned about whether it is an easement or a license as it’s stated to be…People make bad deals all the time; that’s not going to be how we’re going to determine if something is an easement or a license.”
But the morning was equally tough for Attorney Sammy Nabulsi, representing the city as the defendants. As he tried to contend that the Stadium was just a renovation of a school building and a school yard and nothing inherently different from the old Stadium, he also faced frustrated questions.
“We’re really just replacing a 10,000 seat stadium with another 10,000 seat stadium,” he said.
“It seems like you’re sort of dancing around the fact – you’re trying to say this is going to be the same, and everyone knows it’s not going to be the same,” said Chief Justice Kimberly Budd. “Do you admit it’s not going to be the same? You’re going to have a bigger crowd, it’s a completely different thing…Can you at least admit we’re talking about something different now?”
Replied Nabulsi, “Your honor on the White Stadium parcel we are talking about something a little different, but at its heart White Stadium will be as it has been for 75 years, the home of Boston Public Schools athletics, but yes, there will be a new use at the White Stadium parcel, but it’s not affecting a change in use to Franklin Park.”
Justices Elizabeth Dewar and Frank Gaziano were concerned about if the stadium remained under the “care, custody, and control” of the School Committee – as required. They referred to the fact that regular season football games have been forbidden by the soccer team in the lease agreement and certain parts of the new stadium – including retail stores and NWSL locker rooms – would be off-limits to the public and the schools.
“On football, all that it says on Boston Public School games from when their season starts to when the (NWSL) soccer season ends, that the Boston Public Schools athletics department needs to ask the team if they may use the field for football,” said Nabulsi.
“So, is that control?” asked Dewar. “So, who in that arrangement has control?”
Answered Nabulsi, “With respect to the request for playing football games at White Stadium in that specific time period, which is about a month, the team has control over whether or not those BPS games are being played on the field.”
“That may undercut the idea that the stadium remains under the custody and control of the School Committee,” noted Dewar.
Dorchester native Justice Serge Georges, Jr., noted that the key statutes from 1947 and 1950 don’t seem to meet the three prongs required by the court.
“You breeze past the 1947 and 1950 acts, and I’m still stuck there because typically we mean what we say in our cases,” he said.
“In the opinion of the justices cases, they laid out a three-part test in there and if we go through the1947 and 1950 statutes, there’s some problems…The 1947 act seemingly fails all three prongs…When you look at 1950, I’ll give you maybe it gets prongs one and three but fails prong two. There’s no acknowledgement in the 1950 act of the parkland that’s being surrendered. Would you agree with me on that?”
“I disagree with you on that,” Nabulsi said. “There’s no caselaw that exists that says we have to explicitly say we’re terminating the park use.”
Interrupted Georges, “I think the opinion of the justices say that; that you have to say what you’re giving up.”
The decision will cut to the heart of the matter of whether or not the reconstruction of the stadium to accommodate the soccer team and some Boston Public Schools (BPS) teams and programs can move forward under the current plans. Construction on the estimated $325 million stadium has already begun but could face serious setback if the decision goes against the defendants.
Neither side had an immediate reaction to the hearing, nor chose not to comment to The Reporter.
For the defendants, prior to the hearing former Boston School Committee member Dr. Jean McGuire, a neighbor and plaintiff in the case, said the stadium is parkland.
“For all 95 years of my life, and 48 years before I was born, Franklin Park has been a public park. It belongs to the people of Boston — not private interests,” said McGuire, a Roxbury resident and plaintiff in the case. “We firmly believe that all of Franklin Park is constitutionally protected recreation land under Article 97 of the state constitution, approved by the voters in 1972.”
A city spokesperson ahead of the hearing said they were also confident the outcome would favor their side, the plaintiffs.
“Nearly 80 years ago, City and state leaders came together to build White Stadium as home for BPS athletics and reflected that partnership in our laws,” read the statement. “The renovation is well underway and will deliver a state of the art stadium open to both BPS students and community members 365 days a year. We hope and expect that the Supreme Judicial Court will uphold the previous court decisions and that our community can look forward to this long-delayed investment in our students and the community.”
