Court Dismisses Lawsuit Brought by New Bedford, but City May Sue Again

By JULIA WELLS
Gazette Senior Writer

Quoting archaic academic political scientists and pointedly avoiding a position on any substantive issues of law, a federal judge this week dismissed a lawsuit between the city of New Bedford and the Steamship Authority.

The dismissal ends two and a half years of contentious - and costly - legal sparring between New Bedford and the public boat line that was fueled by hostile politics over expanding ferry service between New Bedford and the two Islands.

"This litigation has functioned as an adjunct to a political initiative," declared the Hon. Douglas P. Woodlock, a U.S. District Court judge, in the six-page decision issued on Wednesday.

Actually, the word decision may be too strong in this case.

Judge Woodlock dismissed the lawsuit without prejudice, which means the city is free to bring the complaint back into court at a future date.

Attorneys for the Steamship Authority had argued that the case should be dismissed with prejudice.

"We had argued all along that the case should be dismissed, but this is disappointing, and it's inappropriate to use the courts to achieve purely political objectives," said John Montgomery, a partner at Ropes & Gray in Boston who represented the boat line in the case.

"This was an appropriate arena to address political questions - if you look at all the important legal cases - segregation, abortion, they're all political questions," former New Bedford city solicitor George Leontire countered in a telephone conversation with the Gazette yesterday afternoon.

First filed in U.S. District Court in October of 2000, the lawsuit claimed among other things that the Steamship Authority is an unlawful monopoly whose shipping practices and licensing policies violate interstate commerce laws.

Attorneys for the boat line filed a motion to dismiss the case early on, but a year after the complaint was filed, Judge Woodlock decided to allow a complete record to be developed first.

Along the way the case took some unusual turns. At one point Judge Woodlock ordered the city to find a private carrier to submit a license application to the boat line, in order to force a real-life test of the city's claim that there were numerous private carriers who wanted to run freight service to the Islands, but had somehow been restrained by the boat line.

In the end only one carrier submitted a license application - Seabulk International Inc., the same carrier that the boat line paid to operate a pilot freight program between New Bedford and the Vineyard. The Seabulk application was rejected by the SSA because it was accompanied by a long list of demands.

New Bedford attorneys also filed a complaint with the Federal Highway Administration, but early last summer federal highway officials ruled that boat line licensing and shipping practices do not violate the rules for receiving federal transportation grants.

Attorneys for the SSA questioned whether the city had standing to bring the claim against the state-chartered boat line in federal court. They also questioned whether the lawsuit violates state sovereignty because both the boat line and the city are considered subdivisions of the commonwealth. Federal courts are expected to respect state sovereignty and the decisions of the state legislature, but there is little case law in this area.

More than once during the case, Judge Woodlock took an apparent interest in the issues of law. In a courtroom grilling that went on for nearly three hours last summer, he put the lead attorney for the city of New Bedford on the hot seat.

"I am faced with an intramural squabble. . . . Why does the federal court have to open itself up to dissident issues within a state?" the judge asked Henry Dinger, a partner at Goodwin Procter & Hoar.

But in the end this week, the judge sidestepped any weighty legal questions, noting that the controversy between New Bedford and the boat line has now cooled since the state legislature approved a law giving New Bedford a voting seat on the boat line board of governors.

"My inclination . . . was to find significant force to the Steamship Authority's position," Judge Woodlock began. "After considerable research and reflection, however … any determination by me of the difficult open issues of law … would be, under the circumstances, in the nature of an advisory opinion on topics which are now - and will remain for an appreciable period of time - essentially moot," he continued.

Much of the rest of the decision is marked by rambling, academic verbiage, including a quote from Democracy in America by the late Alexis de Tocqueville. "There is almost no political question in the United States that is not resolved, sooner or later, into a judicial question," de Tocqueville wrote.

To date the boat line has spent about $1 million on legal fees associated with the case. Mr. Leontire said the city has spent about $550,000.

In a deposition taken during the discovery portion of the case, Mr. Leontire admitted that the lawsuit was filed as a strategic weapon in the city's political war with the boat line.

It is not clear whether the SSA will appeal the ruling; the decision will be up to the boat line board of governors.

"We will have to consider what our options are," Mr. Montgomery said yesterday.

He also said:

"From the outset the Steamship Authority has maintained that a municipality should not be able to spend public funds, and in turn force a state agency to spend public funds, to resolve a political dispute. The court has agreed that the city's lawsuit was political and it is unfortunate that the court declined to decide whether the federal courts and and public monies can be used in that fashion. The Steamship Authority is pleased the action has been dismissed - but that issue should have been decided. In the absence of a decision on this question, New Bedford or any other municipality is free to pursue the same wasteful strategy in the future."

Mr. Leontire downplayed the significance of the federal court ruling.

"It's sort of old history to me at this point - those arguments were made over a year ago, and I really don't think the decision has that much significance at this point. I don't think anybody thinks the relationship between the city and the Steamship Authority will deteriorate to the same level again. I hope it's a closed chapter," he said.

The former city solicitor said the money was well spent, because it bought New Bedford a minority voice on the board of governors.

"In my opinion at the time and given the circumstances, yes I think it was money well spent," he said. "Do I think it was necessary? No, I think it all could have been avoided, but sometimes parties have to go to extremes before they can find common ground."