Lu v. Hulme et al

Filing 28

NOTICE of Change of Address and of State Court Filing by Friedrich Lu. (Attachments: # 1 State Court Filing)(MacDonald, Gail)

COMMONWEALlH OF MASSACHUSETIS

SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

Case No.

Friedrich Lu, Plaintiff

v

Thomas M Menino; City of Boston; William F Sinnott; Caroline Driscoll; Trustees of Boston Public
Library; George Hulme; Boston Public Health Commission; Local 1526, American Federationof State,
County, and rmmicipal Employees; and Boston Public Library Professional Staff Association;
Department of Labor Relations, Defendants
COMPLAINT
(l)

The court has subject matterjurisdiction over this case pursuant to Mass Gen Law (Gen L)

Chap 231A, § 1.
(2)

Defendants: Of City of Boston, Thomas M Menino is itsmayor for the past two decades;

William F Sinnott Corporate Counsel; and Caroline Driscoll Assistant Corporate Counsel. Trustees of
BostonPublic Library (Trustees or Library, interchangeably hereafter) and Boston Public Health
Commission are bodies politic bearing 'Boston" intheir names. George Hulme is security directorof the
Library inthe pertinent period. The individuals are sued inboth official and personal capacities. Two
laborunions represent different sets of Library employees: Local 1526, American Federation of State,
County, and municipal Employees and Boston Public Library Professional StaffAssociation (PSA;
which "is no longer affiliated with CWA," per its (former) counsel). The last two are sued so that they
can have their say, if they so choose. A regulatory agency, the state Department of Labor Relations is
sued for itsclerical, rather than adjudicatory, function or lack thereof; record of its administrative
proceedings is presumedpublic.
(3)

Menino lords over Boston. Worse, inword and in deed Menino has treated as hisfiefdoms any

and all agencies bearing "Boston" in the names.
(a)

In its official website, the city lists BPL as its "department." See City Department, Cityof

Boston, undated
http://www.cityofboston.Qov!govenIDlentlcitvdept.asp
(retyped and attached as an exhibit; ct US S Ct Rule 33.1 (a "standard typesetting process" for every
document" filed in that court except one proceeding in forma pauperis», which also listed are Boston
Housing Authority (BHA), Boston Redevelopment Authority (BRA), Boston Public Health Commission
(BPHC), Boston Water & Sewer Commission (BWSC), city council, city clerk (who is independently
elected), and Zoning Board of Appeal.
(b)

In the matter of City of Boston, Boston Public Library and Professional Staff Association,

CWA Local 1333, AFL-CIO (2010) (case No: CAS-08-3727) ('Ruth Kowal (Kowal) has been the
Library's Director of Administration and Finance since March of 2009. [Even so,] Kowal testified that
either the City or the Board of Trustees are responsible for approving the Library's major policy
decisions'')
(c)

Mayor Thomas M Menino of City of Boston reportedly domineer over supposedly independent

government agencies that happen to bear 'Boston" in their names.
(i) Inside the BRA; Critics say it's a tool of mayor's office; Agency under fire. Boston Herald, June 7,

2013. (cover);
(ii)

three reports in the inside pages:

(A)

Dave Wedge, Richard Weir and Erin Smith, Agency's Independence Has Eroded, Critics Say.

http~/bostonherald.com/news

opinion/local coverage/2013/06/bra s independence has eroded criti

cs say
(B)

Chris Cassidy, BRA; How it works--and is funded

http~/bostonherald.com/news

opinion/local coverage/2013/06/bra how it works and is funded

('The agency receives no funding from the city')
(C)

Mayor's Prints All Over Skyline (vignette).

http://bostonherald.com/news opinion/local coverage/2013/06/mayor s prints all over skyline

(palazzo photos inprint, but not shownonline)

(c)

In the meantime, he has made those agencies a moving target: now you see it, now you don't.

See (7).

(4)(a) On June 22, 2013 under 42 USC § 1983 and Gen L Chap 12, § 111 (civil rights violations),

Friedrich Lu filed a verified complaint against Trustees and George Hulme. Lu v Hulme, US Dist Ct No

12-cv-11117-MLW. Sinnott and Driscoll purportedly are defending the two defendants there.

(b)

City inserted itself--not by substituting for Trustees and/or Hulme or becoming a co-defendant

as a pennissible or indispensable party, Fed Rule Civ Proc **--but by representing them as defense

lawyers. Taunting City's fancy footwork (to avoid legal exposure but at the same time using federal

defendants as eat's paw at their expense, to promote City's agenda, Lu fought City's legal representation

vigorously--even bitterly. Ignoring a century and a half of legal development in state case law, federal

district judge Mark L Wolf sided with City and defendants there. Lu vowed to challenge the ruling in the

state court (as an alternative to appeal to First Circuit fromjudgrnent entered at federal district court).

And it looks futile to move federal district court to certify the question to this court. So here he is,

requesting interpretation of state law (in the broad sense: including City's Municipal Code, but excluding

federal law).

(5)

At the end of the day, though, City's legal representation raises an issue of first impression in

Massachusetts jurisprudence--about exact relationship between the Cityand Trustees as well as that

between the City and a Library employee, about interpretation of a specific Municipal Code, and about

city's legal representation of Trustees (This--City's defending Trustees in adversarial proceedings-vis
not the first time. Lu can not say with certainty it happens all the times. The issue is murky, presumably
because Trustees' adversaries have so far overlooked the issue.)
(6)

Lu viewed City's intervention as bully tactics. The irony is City's Law Department has a

diametric perception about Lu's lawsuits. Considering City's spat with Lu over federal defendants yet
another lawsuit from Lu against the City, the receptionist of Law Department on Jan 3, 2013 ran Luout
of Department foyer and warned him not to set foot again--followed a couple of hours later by an email
from assistant corporate counsel Nicole Loughlin: "if you need to contact me, please do so via email."
(7)

Lu sued the City (but not BostonPublic Health Commission) in Lu v Doe, Suffolk Super Ct

Civil Action No 01-0129E. While the case was ongoing (no discovery allowed), the City removed
Web pages that tended to show its Emergency Shelter Department was an alter ego of Boston Public
Health (when administering the homeless). The superior court (FaheyJ) sided with the City's argument
that Boston Public Health Corrnnission is not part of the City--and ended the case. Now the City argues
Trustees is a branch of the City!
(8)

Luprays for declaratory judgment

(a)

that Trustees is not a unit or division within the Cityunder organic law;

(b)

that Trustees is not subsidiary of the City under corporate law;

(c)

in terms of labor relations: that Trustees isthe directand exclusive employer of Boston workers

(from president down, Library trusteeship being an unpaid position), who receive salary and benefits
from Trustees, and that the City is not their employers--be it direct or indirect;
(d)

thattrustees and City are two separate, independent legal entities, without one subsuming the

other, much like Commonwealth of Massachusetts and thenMassachusetts Turnpike Authority

immortalized in Levy v Acting Governor (2002) 436 Mass 736;
(e)

that Municipal Code 5-8.2 enjoins the City (including its Law Department) from acting as

counsel to represent the Trustees and the latter's employee(s), which reads in toto: ''No person
connected with the Law Department shan, except as hereinbefore provided, appear in court in any case
to which the City is not a party;" and

(1)

that judicial estoppel bars the City from taking a position: Trustees is a constituent part of the

City--contrary to its previous stance Public Health Commission was not a constituent part of the City.

Plaintiff:
Date:
Address:
email:

Friedrich L];pro s e N ~
October 1J, 2013
% St Francis House, Lafayette Station, Boston, MA 02112
x21Iu(ii)vahoo.com

COMMONWEALTH OF MASSACHUSEITS
SUPREME ruDICIAL COURT FOR SUFFOLK COUNTY
Case No.
Friedrich Lu, Plaintiff
v
Thomas M Menino et al, Defendants
PLAINTIFF'S MOTION FOR SUMMARY ruDGMENT

AND MEMORANDUM OF LAW IN SUPPORT

PlaintiffFriedrich Lu moves for summary judgment in his favor. Memorandum oflaw
follows.
A preliminary matter.
(1)

In the federal case, Corporate Counsel William F Sinnott and his aide Caroline Driscoll act as

defense lawyers for Trustees ofBoston Public Library (Trustees or Library interchangeably) and
Library's security director George Hulme. They insist the Library is a city agency and that Hulme,
as well as trustees (individuals rather than the legal person Trustees) are Library employees (a fact
not in dispute)--and therefore City or ''nnmicipal employees." The other two assertions are bones
ofcontention here and in the federal court: (which are not found in Lu's federal complaint but arose
in the course offederal litigation). For this reason, the state case is distinguishable from England
reservation. England v Louisiana State Board ofMedical Examiners (1964) 375 US 411, 420-421.

This is so within the First Circuit. Compare Geiger v Foley Hoag LLP Retirement Plan (CAl 2008)
521 F.3d 60, 67 (circuit precedents: 'The right to reserve claim; only arises where a federal court
abstains [under Pullman] from deciding a federal issue to enable the state court: to address an
antecedent state law issue'); Barreto-Rosa v Varona-Mendez (CAl 2006) 470 F.3d 42,47 with San
Rerm Hotel, LP v City & County of San Francisco (CA9 1998) 145 F.3d 1095, 1106, n 7 (citing a
circuit precedent discussing England reservation); United Parcel Service, Inc v California Public

Utilities Corrnnission (CA9 1996) 77 F.3d 1178, 1184 (''More significantly for our purposes
[England reservation], this circuit has not required litigants to file first in federal court in order to
reserve the right to a federal hearing under England'').
(2)(a) The downside ofEngland reservation is a state court may walk over it, decide the federal
question, and pulls the rug from under the federalcourt. Id, 77 F.3d, at 1186 (''One ofthe
difficulties inherent in the England process is that a plaintiffwalks a fine line between saying too
little and saying too much") anticipated San Remo Hotel, LP v City & County of San Francisco
(CA9 2004) 364 F.3d 1088, 1093 ("Although they could have also asserted their federalclaim; for
adjudication in California [state] court, plaintiffs specifically reserved their federal claim; for
adjudication in federalcourt'), 1095 (''we specifically rejected Dodds' argument that their
reservation offederal takings claims under England prevented operation ofthe issue preclusion
doctrine'); cert granted (2005) 545 US 323, 332 (California Supreme Court noted England
reservation but went ahead to decide federal questions anyway), 334 (even so, the hotel "did not
seek a writ ofcertiorarifrom California Supreme Court's decision in this Court" but insteadreturned
to Federal District Court);
(b) This was the major stumbling block Lu has wrestled withfor months, since last May when he

vows at federalcourt to seek a definitive ruling fromstate court on the rankling issue oflegal
representation To put it politely, Lu does not trust federal district judge Mark L Wolf any more
than otherjudges (whichis forgivable given what he went through in the past two decades:

corruption permeates judicialsystem; in (not merely oj) Massachusetts, whichthen blame the
victim). Forum shopping is perfectly legal However Lu has never done it (mostly because his cases
were terminated in a flash, quicker than he could utter ouch). Winning is not everything. There are

values as important ifnot more so; dignity, for one, is singularly human. Thus inNorse mythology,
gods will stoically march toward Ragnarok,
(c)

Lu's initial plan was to present the federalcomplaint to the state court, invoke England

reservation and move to resolve housekeeping issues oflegal representation, once the Cityjumps in
(as its modus operandi). Ergo, inLu's calculation, any state trialcourt will do (including district
courtbut not land or probate court, ofcourse).Thatplan nonetheless opened the door for Judge
Wolfto lose his case, against Lu's wish. Agonizing for months, Lu settleson the instant mode,
following mich tweaking on the concept. The resultis a brand new complaint, based on a single
state cause ofaction and stripped offederal elements.
(3)

Lu is not implying Massachusetts court system, supervised by Supreme Judicial Court,

ignores or overlooks England reservation. Far from it. The onlyreported case mentioning the
reservation is Levy, supra, 436 Mass,at 737, n 3. Lu viewedthe case file, inwhichplantitfs' filings
("complaint" and other papers) had not broached England reservation, whichpresumably was
discussed inthe hearings, then. (Plaintiffs' counselstruck Lu as inexperienced and odd, but this
courtrespects their reservation. Sheer luckperhaps helped those plaintiffs; see next.) This court
(SJC single justice session) has very limited jurisdiction: unlike superiorcourt whichhas concurrent
jurisdiction for declaratoryjudgment, this court shuns tort and handles little equity. That is why Lu
selects this forum,
I

(I)

Villages Development Co, Inc v Secretary ofExecutive Office ofEnvironmental.Affilirs

(1991) 410 Mass 100, 106 ('To secure declaratoryreliefina case involving administrative action, a
plaintiffmust show that (1) there is an actualcontroversy; (2) he has standing; (3) necessaryparties

have been joined; and (4) available administrative remedies have been exhausted [not applicable
here]")
(2)

City ofBoston is a necessary party. Mass Rule Civ Proc 19(a); Gen L Chap 23lA, § 8;

Springfield Preservation Trust, Inc v Roman Catholic Bishop of Springfield (1979) 7 Mass.App.
Ct. 895 ("Althoughthe building commissioner of Springfieldwas made a party he is not the city, cf
Mayor ofCambridge v Dean (1938) 300 Mass 174, 176, and does not represent its interest for
purposes ofc 23lA, Section 8'').
(3)

It is unclear if labor unions are necessary parties. With abundance ofcaution, Lu sues both in

a fog ofwar.

IT
(1)

Regarding establishment ofattorney-client relationship, federal court looks to state court in

civiland criminalcases alike. Estate ofKeatinge v Biddle (CAl 2002) 316 F .3d 7, 8-9 (Maine state
law holds the issue ofan attorney-client relationship is one offact).
(2)

Jarosz v Palmer (2002) 436 Mass 526, 527-528, 532 (To show attorney-client relationship

exists, a client has burden ofproof with a preponderance ofevidence).
(3)

FDIC v Ogden Corp (CAl 2000) 202 F.3d 454,460 (''In a discovery dispute, the burden to

establish an applicable privilege rests with the party resisting discovery. Ifthe privilege is
established and the question becomes whether an exception to it obtains, the devoir ofpersuasion
shiftsto the proponent ofthe exception. We look to Massachusetts law to determine the scope of
both the asserted privilege and the exception in this case'') (citation omitted); Mass Eye and Ear

Infirmary v QLT Phototherapeutics, Inc (CAl 2005) 412 F.3d 215,225-226 (A client (QLT) meets
its burden ofestablishing attorney-client privilege to the comnumications in question. Then the

party (MEEI) challenging the privilege carries the burden ofestablishing that any comrrn.mications
are discoverable).
A

(l)

Exhibits I and 2 respectively are:

(a)

City's July 13, 2012 opposition, through its ann Law Department, to Lu's "motionto

disqualify so-called counsel" and
(b)

Judge Wolfs Mar 30,2013 Memorandum and Orderpp 6-8 only.

(2)

In a pre-motion email exchange with Lu in the federal case, the City insists:

'The Law Department represents all city departments, including the Boston Public Library
and its Trustees, who are appointed by the Mayor. As a BPL employee, Mr Huhne is a city
employee * * * The Law Department advises and represents the Trustees in all matters concerning
the BPL, including all ofits branches. The Trustees themselves are a separate
legal entityby statute. That said, they are considered special nnmicipal employees ofthe City of
Boston under Massachusetts law. As for Mr. Huhne, all library employees are City ofBoston
employees.
(3)

Definitions within state law are not helpful to the instantcase: they are limited to certain

topics, such as Gen L Chap 31A (Municipal Personnel System), § 2 ('inunicipality" and ''municipal
employee''); Chap 268A (Conduct ofPublic Officials and Employees), § 1 ('inunicipalagency,"
''municipal employee"and "specialnnmicipal employee''); plus Chap 109 (Labor and Industries), §
178G (''municipal employer"and nnmicipal "employee"--repealed in 1973); Act ofIncorporation;
Board ofTrustees. Boston Public Library, undated
httpj/wvvw.bpl.()rg!generaVtm~tees/act.htm

(full title: Acts of1878, Chap 114: An Act to incorporate the Trustees ofthe Public Library ofthe

City ofBoston; amendments of 1887, 1953, and 1885) ('Members ofsaid Board ofTrustees shall
not receive any pecuniary compensation, and shallbe deemed to be special nnmicipal employees for

the purposes ofchapter 268A ofthe General Laws'').
(4)

On occasions, City and Trustees roil the water by not sufficientlydistinguishing themselves

through words or deeds. For example: Job Opportunities. Boston Public Library, undated.
http://v\'ww.bpLorglgcncraVjobs.htm ('Boston Public Library posts all ofits career opporttmities
on the City ofBoston website, on the Boston Career Center page''). However, the law is clear on
their separateness.
(5)(a) Lu was excluded from the Library on June 13,2012 and stepped into rain. There he met an
acquaintance, who screamed, "This is discrimination. Go to City Hall" Then and there, Lu knew
neither was correct. (Discrimination or no, this is not the fonnn) Anyone with keen observation
knows Library is separate from the City. Trustees hires and fires its own employees, including
Library president. Matt Viser, Trustees to Replace BPL Head; Margolis praised; Need for change
cited. Boston Globe, Nov4, 2007.
htlpJ!www.boslon.cOlTvllcws/local/massachw;etts/m1icles/2007/11 !04!trustees to replace bpI hea
d/

(Trustees ofBPL ousted BPL president Bernie Margolis)
(b)

Boston Mayor Thomas Menino had clashed Margolis for a decade, but could not boot him

out until the mayor replaced trustees one by one, and assumed control ofboard oftrustees.
(c)

In the pending federal action Lu sued Huhne and Trustees. Had Lu sued the City fur Library

misdeed, the City would surely have moved to dismiss for mistaken identity. See Part V, infra.
(6)

Trustees enjoys "capacity to sue and be sued" under state law. Fed R Civ Proc 17(b)(2) and

(3); Mass R Civ Proc (real party in interest). In Lu's federal lawsuit, it is indisputable that the City is a
non-party--it is not a named party and has no stake; the City has not asked to substitute for or join

defendants there, see Fed.R.Civ.P. 19 (required joinder), 20 (permissible joinder)-- precisely because it
can not by law and said rules. In sum, Trustees is not part and parcel ofthe City, it is crystalclear.
Thus it is oxymoronic, and a shame, that Lu needs to go finther.
(7)(a) In the same vein, Boston School Corrnnittee is similarly situated (as Trustees), see
School Corrnnittee. Boston Public Schools, undated
httpjlwv·,'W.bostonpublicschools.orgicommittee
(appointment ofcommittee members by mayor since 1992)
, has the capacity to sue and to be sued, as wellas is empowered to enter a contract with labor
union: collective bargaining agreement between Boston Teachers Union Local 66 AFT
Massachusetts, ATF, AFL-CIO and Boston School Committee.
(b)

Ditto zoning board of appeals, Gen L Chap 40A, sec 12 (''mayor subject to confirmation of

the citycouncil, or board ofselectmenshallappoint members"), Board ofAppeals ofRockport v
Decarolis (1992) 32 Mass.App.Ct. 348, 351 ('The individual members ofa public board need not
be named as parties to a suit brought on behalfofthe board'}
(8)(a) The citybarely mentions libraryin its charter or Municipal Code, both ofwhich are
supplied inthe website ofBoston City Council2
http://\vww.c1tyofboston.gov/citycounciV
(b)

There is nothing in the charter. Municipal Code states:

W ''2-7.2 Appointment by Mayor * * * For the term offive (5) years, beginning with the first

day ofMay inthe year ofappointment: one trustee ofthe Boston Public Library."

(iI)
"11-8 LillRARY DEPARTMENT AND TRUSTEES OF THE PUBLIC LillRARY.

11-8.1 Duties ofTrustees.
The LibraryDepartment shall be under the charge ofa Board ofnine (9) Trustees, who shall
adopt such measures as shallextend the benefits ofthe institution as widelyas possible, and may
from time to time establishbranch libraries and delivery stations in different sections ofthe City;
and shall annually appoint an examining Corrnnittee ofnot less than five (5) persons, not members
of the Board who, with one ofthe Board as Chairman, shall examine the hbraryand make to the

Board a report of its conditions.

(St. 1853 c. 38; St. 1878 c. 114; St. 1885 c. 266 §§ 6,12; Rev. Ord. 1961 c. 18 § 1; CBC 1975 Ord.

TIl § 350; Ord. 1989 c. 6; Ord. 1994 c. 5 §§ 1,2)

11-8.2 Annual Report.
The Board shall, in its annual report, include a statement ofthe condition ofthe library, the
number ofbooks that have been added thereto during the year, the report ofthe Corrnnittee
appointed to examine the library, and the total amount ofmoney received from fines and sales.
(Rev.Ord. 1961 c. 18 § 2; CBC 1975 Ord. TIl § 351)"
(8)

Library is not a branch of City ofBoston The following explains that from two different

perspectives.

III
A
Trustees ofBPL is a body corporate, a legal person ofits own right. See Kargman v Boston
Water and Sewer Commission (1984) 18 Mass.App.Ct. 51 (interpreting Massachusetts Tort
Claims Act, Gen Law Chap 258),52 (''In the Boston Water and Sewer Reorganization Act of1977,
St. 1977, c. 436, effective July 18, 1977, the Legislature created the commission as a 'body politic
and corporate and political subdivision ofthe commonwealth'), 54 (explaining ''body politic and
corporate'), 557, n 7 (attributes of "separate corporate existence'). Trustees exhibits most ofthe
attnbutes listed in n 7.
(1) Trademark
http://www.tradcmarkia.cotTvboston-public-librarv-78266386.html
(''On Tuesday, June 24, 2003, a US federal trademark registration was filed for BOSTON PUBLIC
LmRARY by TRUSTEES OF THE PUBLIC LmRARY OF THE CITY OF BOSTON, BOSTON
02199. The USPTO has given the BOSTON PUBLIC LmRARY trademark serial number of
78266386. The current federal status of this trademark filing is REGISTERED')
(2) Trustees ofBPL has its own chieffinancial officer.

Board ofTrustees Meeting. Boston Public Library, Mar 23,2011.
http://www.bpl.org!gcncraVtrustccs/fyI2 bpI budget tmstcc_Drcscntation 20 I Imarch23 .pdf
(FY12 funding sources at page 2: city ($36.94M) and state ($3.9M) originally)
(3) Trustees hires and fires its own employees (presumably including defendant George Hulme), not
just its president. John M Guilfoil, BPL to Eliminate 40 Jobs; Branch closings on slate. Boston
Gbbe, Oct 1,2010.
hnp://wvrw.boston.com/news/locaVmassachusetts!artic1cs/201 0/1 0/01/bpl to clinnnate 40jobs br

anch closings on slatc/
(4)

Trustees ofBPL holds assets ofits own, citation in Complaint (3), and may transfer to the

City. See Connnittee on Economic Developmentand Planning, Boston City Council, Dec 8, 2011
(mentioning state attorney general suingboth the City and Trustees over Kirsten branch ofthe
Library; A rrerro on 'Docket # 1238 Message and order authorizing the city to accept fromthe
Trustees ofthe Public Library ofthe City ofBoston the former Kirstein Building located at 20 City
HallAvenue, Ma 02108 (Ward 03, Parcel 02865000)'')

(a)

IfTrustees ofBPL had been an arm ofthe city, the transfer would not have been necessary.

(b)

Law Department ofthe City did represent Trustees ofBPL in this superior court case, but

nobody raised it as an issue (in any event, the case is not a legalprecedent).
B

(l)

In an unguarded rrorrent, the City concedes as much See Comprehensive Annual Financial

Report; Fiscal year ended June 30, 2011. City ofBoston,

Dec 21, 2011.

http://www.cityo:fbostongov/Images_Docurrents/FY2011 %20CAFR_tcm3-29923.pdf

(pages i (''December 21, 2011') and 4 "Discretely Presented Component Units-- These are legally
separate entities for which the City has financial accountability but fimction independent ofthe
City. For the most part, these entities operate similar to private sector businesses and the
business-type activities described above. The City's four discretely presented component units are
the Boston Public Health Cormnission, the Boston Redevelopment Authority, the Economic
Development Industrial Corporation, and the Trustees ofthe Boston Public Library').
Page numbers are at upper right or left comer.
(2)

Trustees ofthe Public Library ofMelrose v City ofMelrose (1944) 316 Mass 584,586

(''Sections 38 and 39 oftitle 7 ofthe [Melrose city] charter, as amended, provide so fur as here
material as follows: 'Section 38. A board oftrustees ofthe public library, to consist ofsix persons,
is hereby established, which shall have control ofthe public library department. Section 39').
Concerning "public library department," see next.
(3)

City ofBoston v Dolan (1937) 298 Mass 346, 351-353, 356 (final decree is modified as

hereinbefore stated, and as modified is affirmed'). Ofnote, "[t]hough the corporation ofTrustees of
the Public Library ofthe City ofBoston is in one sense a nnmicipal agency," id, at 352, likely
alluded to Broadhurst v City ofFall River (1932) 278 Mass. 167, 170-171 (power ofGeneral
Court; degree of separation between finance department and City ofFall River).
C
Under corporate law, Trustees is not a subsidiary corporation ofthe City.
(1)

In re Grand Jury Subpoena (CAl 2001) 274 F.3d 563,572 (Citing Ogden; Attomeywho

had served as principal outside counsel for subsidiary corporation, and who had also represented
former officers ofsubsidiary in their personal capacities, could theoretically have represented

officers individually with respect to grandjury investigation, so that theirconnmmications would be
protected by attorney-client privilege; however, this attorney-client relationship would only extend
to those connmmications which involved officers' individual rights and responsibilities arising out of
their actions as officers of corporation)
(2)

Two separate corporations, Trustees is not a subsidiary ofBoston. Boston on one side and

Trustees and Huhne on the other can not pass the five-benchmark test (eg, Boston can not waive
privileges ofthe latter). Ibid. Trustees and Boston are two separate corporations. A Fortiori,
Bostoncan represent neither Trustees nor Huhne, inviewofthe explicit proscription ofcity
COlIDCil

embodied inthe Municipal Code 5-8.2.

IV
Rulings fromMassachusetts administrative proceedings stands out like a sore thumb insofar
as theygoes against the grain of(at least implicit) state appellate court decisions. Lu howeverhas a
hard time weighing theirprecedentialvalue. CfThurdin v SEI Boston, LLC (2008) 452 Mass 436,
455, n 27 (''SuperiorCourt opinions have no precedential value'). Moreover, not making case file
available to the public (Lu included) counts against the Department ofLabor Relations
(Department). CfLeahy v Local 1526, American FederationofState, County, and Municipal
Employees (1987) 399 Mass 341, 352 (''From our reviewofthe record, it is clear that the
proceedings before the [Labor Relations] connnission never reached the point ofa judgment on the
merits of the issue in this case').
A State Administrative Proceedings in General
(1)

First thing first: an aggrieved party may appeal Department ruling to state appeals court.

Gen L Chap 150E, § 11 (lastparagraph).

(2)

Adjudication ofan administrative proceeding binds the parties. Alba v Raytheon Co (2004)

441 Mass 836; Astoria Federal Savings & Loan Assoc v Solimino (1991) 501 US 104, 107-108.
(3)

The adjudication binds the issuing agency as well as prospective parties. Tofias v Energy

Facilities Siting Board (2001) 435 Mass 340,349 ("A party to a proceeding before a regulatory
agency

* * * has a right to expect and obtain reasoned consistency in the agency's decisions. The

requirement ofreasoned consistency does not mean that an agency may never deviate from its
originalposition, but rather means only that any change from an established pattern ofconduct
rrrust be explained") (citations omitted; internal quotation marks omitted); Boston Gas Co v Dept of
Public Utilities (1989) 405 Mass 115, 120-121 (''It is generally unacceptable for an agency to
announce a new standard in its final decision in an adjudicatory proceeding and then rule, often not
surprisingly, that a party who had no notice ofthat standard failed to meet it") (citations omitted);
National Labor Relations Board v Wyman-Gordon Co (1969) 394 US 759, 765-766 ("Adjudicated
cases may and do, ofcourse, serve as vehicles for the fonnulation ofagency policies, which are
applied and announced therein. They generally provide a guide to action that the agency may be
expected to take in future cases. Subject to the qualified role ofstare decisis in the administrative
process, they may serve as precedents") (plurality decision)(citation and footnote omitted).
(4)

A court is, as a rule of thumb, is deferential to an agency's ruling, rule-making and regulation

arising from its interpretation ofpertinent law. See Fitchburg Gas & Electric Lights Co v Dept of
Public Utilities (2011) 460 Mass 800, 811- 812 ("Ordinarily courts grant great weight to an agency's
interpretation ofits own rulings. However

* * * this principle is one ofdeference, not abdication")

(internal quotation marks omitted)
(5)

Said adjudication, like any court decisions, does not bind a non-party such as Lu. Martin v

Wilks (1989) 490 US 755, 762 ("Ajudgrrent or decree among parties to a lawsuit resolves issues as
among them, but it does not conclude the rights ofstrangers to those proceedings').

B Department's Rulings in Particular
(I)

Established in 2008 Division ofLabor Relations was renamed Department ofLabor

Relations (Department). In the Matter ofTown ofBourne and Professional Firefighters ofBourne,
IAFF Local 1717 (2011) 38 MLC 47, at n I (Case No: MUP-IO-5928) (''Pursuant to Chapter 3 of
the Acts of20 II, the Division ofLabor Relations' name is now the Department ofLabor Relations.
References to the Department include the Division ofLabor Relations. Pursuant to Chapter 145 of
the Acts of2007, the Department 'shall have all ofthe legal powers, authorities, responsibilities,
duties, rights, and obligations previously conferred on the labor relations commission.' The
Corrnnonwealth Employment Relations Board (Board) is the body within the Department charged

with deciding adjudicatory matters. References in this decision to the Board include the former
Labor Relations Commission (former Commission)'')
(2)

The Department ofLabor Relations as well as its predecessors (''Depart:trent'') does not

always its rulings in Massachusetts Labor Cases (MLC).
(3)

To view case files and ask questions, Lu reached out repeatedly to the Department

(specifically director Erika F Crystal and chair ofCorrnnonwealth Employment Relations Board
Marjorie Wittner), which did not bother to respond. Due to Department's refusal to deal with Lu,
Lu is clueless about its odd practice and what authority, if any, should be accorded to Department's
published and unpublished rulings.
(4)

Lu asked Local 1526 why it complained about both the City and the Library, for what the

Library did; 1526 allowed: ''The BPL is a department ofthe City ofBoston."

(5)

In Department rulings listed below, all attorneys "representing the City ofBostonIBoston

Public Library"--to wit: Samantha Doepken, Stephen B Sutliff T Martin Roach, Paul Curran,
Robert Boyle, and Joseph Samo--were employed in pertinentperiod by Office ofLabor Relations,
city ofBoston (namely none were outside counsel hired by the Trustees).
C

(1)

Exhaustive search yields nine cases--eight from the Department--in state administrative

proceedings that at least alludes to the conjoined-twinstatus ofthe City and the Library, judging
fromthe captions; (a) and (h) explicitly found Librarywas a branch ofthe City.
(2)

The eightDepartment rulings are arranged latest first.

(a)

In the matter ofCity ofBoston, Boston Public Library and Professional Staff Association,

CWA Local 1333, AFL-CIO (date issued July 12, 2010; case No. CAS-08-3727; Westlaw number:
2010 WL 2811559)
Quote:
'The highest-ranking officer at the Boston Public Library responsible for fomrulating or
determining policy, conductingcollective bargaining and having substantialresponsibility involving
the exercise ofindependentjudgment of an appellate responsibility is the President. Since October
2008, that positionhas been held by Amy Ryan. Prior to October 2008, that position was held by
Ruth Kowal, as ActingPresident, and prior to that, by Bernard Margolis. The President is
appointed by and reports to the Trustees ofthe Public Library ofthe City ofBoston.
"A nine-memberBoard ofTrustees governs the Library. According to Article III, Sections 1
and 2 ofthe Board ofTrustees' Bylaws, as revised in 1985, the Board ofTrustees has 'as its prime
duty the responsibility ofthe general administration ofthe Library and the representation ofits
interests and needs.' The Board is 'responsible for establishing objectives ofthe Library" and "shall
determine the policies which are to govern the achievement ofthese objectives.'
'Ruth Kowal (Kowal) has been the Library's Director ofAdministration and Finance since
March of2009. [Even so,] Kowal testified that either the City or the Board ofTrustees are
responsible for approving the Library's major policydecisions.
'The President ofthe Library is appointed by and reports to the Board ofTrustees.
(b)

In the matter ofCity ofBoston, Boston Public Library and Professional Staff Association,

CWA Local 1333 and AFSCME COlIDcil93 (2010) (May 14, 2010; Case Nos. CAS-07-3692,
CAS-07-3708; 2010 WL 1970220)
(c)

In the matter ofCity ofBoston, Boston Public Library and Professional StaffAssociation,

CWA Local 1333, AFL-CIO. 35 MLC 293 (May 21,2009; Case No. CAS-08-3727; 2009 WL

1740192)

(d)

In the Matter of City ofBoston and AFSCME Council 93, Local 1526, AFL-CIO. 35 MLC

289 (May 20, 2009; Case No. MUP-04-4077; 2009 WL 1740195)

(e)

In the matter ofCity ofBostonIBoston Public Library and Professional StaffAssociation,

CWALocal1333, AFL-CIO and AFSCME, Council 93, Local 1526, AFL-CIO. (May 21, 2008;

Case No. MUP-08-5142; 2008 WL 5395603)

(f)

In the matter ofCity ofBostonIBostonPublic Library and AFSCME, Council 93,

AFL-CIO. (Oct 26,2006; Case No: MUP-05-441O; 2006 WL 6165557)

(g)

In the matter of City ofBoston and AFSCME, Council 93, Local 1526, AFL-CIO. 32 MLC

173 (June 2, 2006; Case No. MUP-02-3623; 2006 WL 6165542)

(h)

In the matter ofCity ofBostonIBoston Public Library and American Federation ofState,

County and Municipal Employees, Council 93, AFL-CIO, Local 1526. 26 MLC 215 (May 31,

2000; Case No. MUP-208l; 2000 WL 35733288)

('The City, on behalfofthe BPL, filed an answer to the Corrnnission's Complaint * * * [Finding of

Fact] Founded in 1848, the BPL is an administrative agency ofthe City, as well as a separately

chartered state non-profit corporation. It is governed by a nine member Board ofTrustees (the

Trustees) and its employees are represented by three differentunions, Local 1526 ofAFSCME,

Council 93, the Professional StaffAssociation (PSA) and a graphics union')

D

(1)

The Department's aforesaid rulings comported with Fleming v City ofBostonIBoston

Public Library. 22 MDLR 8,8 (Feb 3,2000; No. 93-BEM-l079; 2000 WL 33665423) (Finding of
Fact: ''Respondent City ofBoston ('respondent') employs more than six. people and is an employer
as defined by Gen L Chap 151B, § 1 (5). Boston Public Library ('BPL' or 'library') is a division of
respondent and employs more than six. people. The BPL is not a separate legal entity from
respondent. Although this complaint concerns a practice ofthe BPL, the City ofBoston is the
proper party respondent'). The published decision is identical to that in Westlaw. MCAD says
old case files, such as that of2000 ''were destroyed."
(2)

However, a "recorrnnended decision" from state Division ofAdministrative Law

Appeals--Linehan v Boston Public Library. (Aug 15, 2007; Docket Nos. CS-07-540, D-04-429;
2007 WL 2580401 )--had a caption that did not include the City. Massachusetts Civil Service
Reporter did not indicate whether to accept the recorrnnendation.

E
(1)

All the haphazard pell-mell is embodied in collective bargaining agreements between unions

on the one hand and City and Trustees on the other. City ofBoston, Boston Public Library v
Professional StaffAssociation (2004) 61 Mass.App.Ct. 105, 115 (collective bargaining agreement),
116 ([Arbitrator's] Award directed decision to Boston Public Library, but not City ofBoston), n. 1
(''Neither party seeks the termination ofMs Henry as a BPL employee'). Take notice of
"[n]either"(excluding the city) and a ''BPL employee" (not city employee).
(2)(a) The collective bargaining agreement (CBA) on file in the underlying (superior) court ofthe
aforesaid case was signed (in late 1990s) by both officials ofboth the City and the library

(president, that is; but not ofthe trustees themselves).

(b)

On another occasion, a CBA was signed by the City (in absence ofthe Trustees) and the

same union See Collective Bargaining Agreements. City ofBoston, undated.
httpJ/www.cityo:fboston.goV/1abor/agrccmcnt'i.asp
(PSA 2002 - 2006 CBA) Page I ofthe text (not numbered) stated the agreement was between ''the
City" and PSA.
(c)

Then there was a memorandmn of agreement between the Trustees and PSA (signed by

Trustees officials but no the City; not shown), which is the one mentioned in Meetings, Board of
Trustees, Boston Public Library, May 22,2001
http J/www.bpJ.orglgcncraVtmstccs/oldcnnectings/tnl.itccagcnda5101.htm
('The President reported that the Library has reached a contract settlement with the Professional
StaffAssociation and noted that a copy ofthe Memorandum ofAgreement was included in the
packets delivered to the Board in advance ofthe meeting. Following discussion among the Board, on
a motion duly made and seconded, it was 'VOTED: to endorse the terms ofthe Professional Staff
Association Agreement for July I, 1999 through June 30, 2002")

V
A
(I)

In Lu v Doe, Suffolk: Super Ct Civil Action No 01-0129E (whose certified docket is Exlubit

3), defendant City stated in the memorandum oflaw (Exhibit 4; under penahies ofperjury, Lu
states that the memorandum is reproduced verbatim, includingitalics and brackets with insertions,
but excluding the "[sic]') accompanying its (City's) motion to dismiss:
'The Public Health Commission has the power to sue and to be sued, prosecute and defend
actions relating to its properties and affairs, and to be liable in tort * * * The Public Health
Corrnnission, not the City ofBoston, is therefore the appropriate party to an action allegingany
misconduct Long Island Annex * * * Public Health Corrnnission is a separate legal entity from the

city ofBoston
(2)

The court swallowed City's argwnent hook, line, and sinker:

Docket #9: ''Motion (P #5) denied as to Pltfs injunctive reliefas to City ofBoston as Plff
has failed to established likelihood ofsuccess in this claim as to the City ofBoston. Further, the
City's Motion to Dismiss is granted and the Pltfs motion for SJ [sunmary judgment] is DENIED
on the grounds that the Public Health Commission, an independent public agency, perates [sic] and
controls the Long Island Annex. The City ofBoston is not a proper party to an action alleging
misconduct by the Sheher (Fahey J) Notice sent 2/20/0 1 (dated 2/16/01)
(a)

Paper #5 was in fact Lu's Supplemental Complaint [rather than a "motion," though he did

have a motion for injunctive reliefagainst the City.

(b)

City's memorandum in support ofmotion to dismiss was undated. The motion to dismiss is

not listed in the docket (Exhibit 4) or found in state court's case file. City did file one in federal
court after it had removed the case from state superior court; federal court of appeals subsequently
remanded the case back to state superior court.
(c)

Appearing at present in the docket only, Judge Fahey's order is not found in state case file.

Lu did not receive it back then; unaware ofdismissal Lu kept on trucking untiljudges halted him
Consult the docket.
(d)

In any event, the City prevailed over Lu on that issue, whatever its merit and however it

achieved it (corruptly or not). Now the City must taste the fruit ofits past victory.

B
Judicial estoppel dictates the City not maintain an opposite stance to gain unfair advantage.
See Commonwealth v Middlemiss (2013) 465 Mass 627,636-638; Greene Archives, Inc v Marilyn
Monroe LLC (CA9 2012) 692 F.3d 983. See also Graham v Quincy Food Service Employees Assoc
and Hospital, Library and Public Employees Union (1990) 407 Mass 601, 605, n 2 ('mon's

conduct estops it fromraising the issue. See Brownv Quinn (1990) 406 Mass 641, 645-646',).

Plaintiff.
Date:
Address:

Friedrich Lu,pro se ~
October 18, 2013
% St Francis House, Lafayette Station, Boston, MA 02112

email:

[e-mail]

d"

Cornmunwenlth of Mavsachusetts
SUFFOLK SUPERIOR COURT

Case Summary

Civil Docket

SUCV2001·00129
Lu
File Dato

V

Doe et al

Status

DiSpc·sod (disp)

Status Date Oir'i'!/2(;()'

Session

[~

Origin

Case Type

899· Mise tort

Track

Lead Case

- CIvil E, 3 Pcrnt}erton Sq . Boston

Jury Trial

(.!nk'I01in

DEADLINES
Service

Answer

Rule12119f20

Rule 15

Rule 56

Discovery.

Final PTC

Judgment

1UYj i200 1

Served By
Filed By
Heard By

04!O~J/200 1

(JtiiOtli2001

(JuiOB;200 1

06iOhf200 I

12Jo5f20ii'!

PARTIES

Plaintiff
St r:r:)I1CiS HOl;S8
PO 8()x 4H~1 LafayeUe Station
boston. Mi\ \.12112
"dive f) 1fOOl2001 Notify

~ AlTli!lf\

ANOCIiR1'Il'Y OM

October 10, ~()l:l,mAln*,
~~T\tAf-l:l!-L
"'lllIII4I«l C<lRMIICT OOI'Y QF TN~
~

Defendant

O!t fU III 1fT Of'fI<:E.

. . . ftlf11.HiIl CtllmXlY
~ JO&._ DonOV;'h
CU!kK I lj",n.. cl\,llW

:->ervad. 0 Ji24;2001
Oismissed by Court Order 02/20/2001

Ii.-~~K

$.w,lO>-OOFJV
!'l!l'Al'!r"'I!'i! 0#'

Ci~~.J

4L",,~~,~.:{'~~.;~:~ti
Assistant

Cl~rk ~agi

Defendant

C.>ty of f).:}stD(;
dS ;~rnon(1(~d

S'YVf;{,j n li24:20di
L">srnlSSdd by Court On18r

02/20i200 1

ENTRIES
Date

Paper

1.0

Text
Affid;;wit of lndiqency of Fne(Jnch Lu and request for waiver.
substitution or state payment of fees & costs. Filinu ke. service
fOH Wai"f(~r8d

Oriqi» 1. Type 899. Track F
2.0
01:0\.11200 1

Complaint of Friei.iricl1 lu filed

3.0

CiVI! action COV(;f sheet
t~1otl()n

Ul,'19'20l! I

tH~}d

to appoint special precess server & All(J'lo/(:d (Lupez -1)

01,24/2001

5.0

Supplemental complaint of Friedricl1 Lu

f.l1:24i20C t

G.0

SERVICE RETURNED: John Oi)O(ill h,m(J on 1;18i01)

r.O

SEHViCE F,ETURNED: City of Boston(in hand on J!2:liUl)

1 '.'

HASX P · 2G11042S

Commonwealth of Massachusetts

!;:indvirq

SUFFOLK SUPERIOR COURT

Case Summary

Civil Docket

SUCV2001·00129
Lu V Doe et al
Date

Paper

02'20::.:'U01

Text
Motion (P#ti) denied as to Pitts injunctive relief as to City of
Buston as the Plff has tfjllt~d to establish likeletlood or-svccess in
this claim as to the City. Further, the City's Motion to Dismiss rs
wanted and the rfffs motion ror S,! is f)[NIED on fhl- qrounrIs that the

Pdt\ic H€t3lth

Commission, an irH.1ependont public dnency, perates and

controls the Lann Island Healttl Annex. The City of Boston is not a
oroper party to an action a!if,:;ging misconduct uy the

)) notice sent 2120:0 1

{(i,1h~O

\-10lion ot plft for sanctions

SheltF.~I·

(Farley

2/16/01)

dgalil~t

City

(w!(~

apposition)

Motion of pitt to further supplement r;omplaint (wio opposition)
f.<~;2U-;20U 1

Motion (P#9) Tv1ution Denied without pre}Uf.HCH tor failure to comply
with Supenor Court Rule 0A (Giles, Justice) (Oared 3115(01) Notices
rnailm103/19:2001

OT2G:2001

100

()~IOlJ2001

11.i!

Moti v i1 01 pllf to reconsider (1'1/0 opposition)
Pitt's. intorrl1ative motion rtf:

dt.djne<:t1[~

thf: houndary

or

the instant

action
11.,0

F· irst motion c/' pItt to compel discovery by dett Cit":' of BOSl(;rl {WiG

opposition)

13.U

Second motion of plft to <;::ofnpel discovery l)y den City 01 Boston {WIO

upposiucn)

O,j,1 i:200 t

Motinn (PI! 10) allowed and Piff's rnotio» tor Iurtner supplement

complaint is

1101"

Allowed (Mana

I

Lopez, Justice) Notices mailed

April fO, 2001 (Dated 4/91(1)

Motion {P#11} This case was disrrussed on 2;}0/01 rJy ardor :.,f Jl.l(jgE

Fatwy (Lopez.J) Nonce Sent 4/12/01

MOlion (piI12) Denied This case was nismisseo by ?;20i01 Order pf .!

Fancy (lOPDl,J) Notice Senl4i12 i 0 1

r,10t'on of plff to reconsrdor Court's Order of Apnl II, 2001 dlinyinq

hrst motion to compel drscovery (wJo opposition)

M()UOf1 (P#14) corned (Maria l. Lopez, Jusucc) Notkos !ndilet1 r·"t.ly 02,

2001 ((fated 6/1/01)

Dsn0i2U01

Cdse status changed to 'Needs review for answers at serv.ce tieadJine

re ', ew

n
PItt'S third motion to compel d.scovcrv (w/O opposition)

(Case dlsposeu on 2/20/02) (See Endorsement for P#12)

~l[)tion

(P#15) .. No action taken tor tarluru tu comply with Rules Y,\

9C. and 30A of the Superior Court (Fabricant.J) (Dafbd Hi1Oi(!1)

notice sent 9/12/01

Motion of pitt lor reconsideration of Court Ordor dated Sept 10.2.00"

\\,·/:0 uppositlon)

Motion (Ptr1G) den:bd (Judith Fabricant, justice} Notices rnwied

Snptemb~:):r 20,

2001 (entered

U;19iO'~)

EVENTS

Mf\SXp··?0110425

Commonwealth

Or Massachusetts

SUFFOLK SUPERIOR COURT
Case Summary
Civil Docket

SUCV2001·00129
Lu
Date

V

Doe et al

Sossion
Event
Civi: E. :J r\::mberton Sq. Bo~tor) Motion/Hearing: order of notice

Result
Evenf Ilt~lG as $chedu!e~..i

hold at the "F" S6SSl0n 211 [)/C1- und.jr advrsernont