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."