PAUL MACHADO, GORDAN SIMARD, SUZANNE JARDIN, STEVEN BAUSMAN, SHANE CARLSON, SUSAN GALLAGHER-HEROUX, MICHELLE RIOUX, ROBERT KIDD, MICHAEL ZEMAN, HAWLEY BIGELOW, THOMAS WORKMAN,
Plaintiffs,

vs.

WILLIAM J. LEAHY, CHIEF COUNSEL, THE COMMITTEE FOR PUBLIC COUNSEL SERVICES; WILLIE J. DAVIS, CHAIRMAN, COMMITTEE FOR PUBLIC COUNSEL SERVICES; WILLIAM F. GALVIN, SECRETARY OF THE COMMONWEALTH and SHANNON O' BRIEN, TREASURER OF THE COMMONWEALTH
Defendants.

The Committee for Public Counsel Services is a committee created by G.L. c. 211D to plan and coordinate the delivery of indigent defense. The Supreme Judicial Court has described CPCS as "a statutory agency of the Commonwealth.". German v. Commonwealth, 410 Mass. 445, 447, 574 N.E.2d 336 (1991). See also, Machado v. Weld, 2 Mass. L. Rptr. No. 6, 112 (June 13, 1994) ("CPCS is a governmental entity related to the judiciary"), aff'd sub nom. Machado v. Committee for Public Counsel Services, 39 Mass.App.Ct. 178, 654 N.E.2d 328 (1995); See generally, Perez v. Amherst-Pelham Regional School Committee, 410 Mass. 396, 398, 572 N.E.2d 566 (1991) (where presentment may be made upon a committee, presentment upon the chairperson is proper). See also, Moore vs. McManus, 8 Mass.L.Rptr. 263, 1998 WL 77904 Mass.Super. Feb 17, 1998, where the plaintiff’s 93A claims were dismissed for lack of “ presentment on the chief counsel in that individual's capacity as CPCS' ‘ nominal chief executive officer.’".

In this case the plaintiffs have not named the single entity, Committee for Public Counsel Services as a defendant, but rather have named and served both their Chief Counsel and the Chairman of the Committee. As both are named in their official capacity the plaintiffs have no understanding of the defendants’ claim that CPCS is not a defendant. [Def. mem. p 5].

While the defendants assert that “No allegation is made that any of the defendants has violated the rights of the plaintiffs,...or has the power to afford them relief...” the plaintiffs contend that they do in fact clearly make those contentions. The plaintiffs contend that the defendants, CPCS, have a statutory duty to set fair compensation rates and that they have failed to do so.

The plaintiffs contend that the statutory language is unambiguous and in the one Massachusetts Appellate decision implicating this issue, the Appeals Court has also recognized the defendants powers and obligations.

“ CPCS establishes standards, G.L. c. 211D, § 9; monitors compliance with those standards, G.L. c. 211D, § 10 ; establishes compensation rates, G.L.c. 211D, § 11; and monitors billing, G.L. c. 211D, § 12. The contracts that Machado and Rosa signed are with the Bristol County Bar Advocates, Inc. those lawyers who provide services, however, are the intended beneficiaries of the contractual arrangements between CPCS and the bar groups. As such, they may maintain an action against CPCS arising out of so much of the contract between a bar group and CPCS as bears on the rights of the participating lawyers. See St. Charles v. Kender, 38 Mass.App.Ct. 155, 157, 646 N.E.2d 411 (1995).”

The matter-of-fact manner in which this provision is set forth in this Appellate decision belies the defendants’ argument that this statutory provision has no significance and should be disregarded by this Court. The defendants next argue, without citation, that even if this Court were to determine that this simple, clear, directive means something, the Legislature simultaneously, by including the language ‘subject to appropriation’ cancelled its effect. The defendants assert that this Court should take judicial notice “..that the Legislature and not CPCS, exercises that power and actually determines the rates.” [Def. mem. p 5]

The defendants ask this Court to interpret these unambiguous statutes in a manner that supports their argument. If this Court were to do so, they would be disregarding established principles of statutory interpretation. See, e.g., Commonwealth vs. One 1987 Mercury Cougar, 413 Mass. 534, 537-538 (1992) (“We start with the proposition that where the statutory language is clear, the courts must give effect to the plain and ordinary meaning of the language.”); see, Rambert vs. Commonwealth, 389 Mass. 771, 773 (1983). Where ambiguity exists, the method of interpretation requires the Court to take into consideration more factors than one party’s unilateral assertion of its meaning. See, e.g., Kemble vs. Metropolitan District Commission, 49 Mass. App. Ct. 165 (2000); Police Department of Boston vs. Fedorchuk, 48 Mass. App. Ct. 543, 548 (2000). The defendants ignore the fact that the Legislature never repealed that portion of 211D which authorizes CPCS to set rates of compensation. They also ignore the fact that the plaintiffs raise as a separate issue whether that language, ’subject to appropriation’ can in fact be used to trump Constitutionally protected rights.

The defendants’ argument, that even if the defendants, CPCS, are not performing their statutorily required duties, they are immune because of the Legislature’s later actions, has no factual basis. First in considering this issue the Court should recognize that the Legislature never fully funds that portion of the CPCS budget which involves the payment of private counsel. Therefore, whether the amount of compensation is fair or not, sufficient funding is never appropriated. However it does not follow that when the Legislature fails to appropriate funds that, for example, would cover the last three months of a fiscal year, that the rate of compensation for that period falls to $0 per hour. In spite of the lack of a full appropriation, the then applicable rates of compensation remain intact.

The defendants’ assertion is also wrong because it misperceives the obligations imposed on the defendants, CPCS, by GL 211D. As the Appellate Court has stated CPCS establishes compensation rates. This means that when they determine that a particular rate is fair they establish that rate so that counsel in turn is paid that rate irrespective of the amount allocated. This would do nothing more than make larger the shortfall that occurs in many year.

Alternatively the plaintiffs contend that even if the Legislature is the ultimate rate setter, a claim that the defendants assert is irrefutable according to their otherwise unexplained exhibit, the defendant, CPCS, has failed to act as the Legislature’s agent in collecting and conveying sufficient information, as statutorily directed, so that the Legislature’s ultimate decision may be an informed one. In this scenario, the plaintiffs claim that CPCS has been negligent in its duty to collect information and to convey it, in persuasive form to the Legislature . Either way, as to Counts II, III, and IV and in some respects Count I, the plaintiffs have named an identified defendant and raised issues of actual controversy, as more fully developed in the response to the 12(b)(6) matter.

As to the broader claims of Count I , denial of Sixth Amendment Rights, and Count V, the constitutionality of a statutory provision, the plaintiffs recognize that: "The question of standing is one of critical significance. 'From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.' ", Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 715, 672 N.E.2d 504 (1996); see also, Doe v. The Governor, 381 Mass. 702, 705, 412 N.E.2d 325 (1980); Ginther v. Commissioner of Ins., 427 Mass. 319, 693 N.E.2d 153 (1998). "To qualify as a 'person aggrieved,' a person must allege substantial injury as the direct result of the action complained of." Harvard Law School Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 69, 595 N.E.2d 316 (1992), quoting, Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 177-178, 375 N.E.2d 1192 (1978). See, Matter of Elec. Mut. Liab. Ins. Co. (No. 2), 426 Mass. 1007, 1007, 689 N.E.2d 773 (1998)

The plaintiffs recognize that one "zealous in the enforcement of law but without private interest" is not an aggrieved person. See, Godfrey v. Building Comm'r of Boston, 263 Mass. 589, 590, 161 N.E. 819 (1928). They further recognize that “An unfounded assumption that, if the individual plaintiffs lack standing, no one will have standing to sue, is not a reason to find standing where none exists." Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 716, 672 N.E.2d 504 (1996).(“Footnote 6: The plaintiffs do not allege any individual harm as a basis for standing. They appear to be concerned that the act will lead ultimately to the over-all loss of tax revenues, thereby possibly creating a "deficiency [which will] fall in some manner in part upon [them as] petitioning taxpayers.").

But as Professor Lawrence Tribe, American Constitutional Law § 3-22, at 97-98 (1978), has described “The terms used to define a plaintiff's standing--"injury within the area of concern"; "definite interest in the matters in contention"; "violation of duty owed,"--are elastic concepts that have different meanings for different parties. Plaintiffs asserting standing invariably see their interests as squarely within the disputed area of concern, and they adopt an "on a clear day you can see forever" approach to standing. Defendants, on the other hand, invariably view the issue of standing more narrowly and, unless standing on the part of the plaintiffs is definitely present, seek to insulate the governmental conduct in dispute from judicial review. In the final analysis, we must decide whether standing exists by examining several considerations, including the language of the statute in issue; the Legislature's intent and purpose in enacting the statute; the nature of the administrative scheme; decisions on standing; any adverse effects that might occur, if standing is recognized; and the availability of other, more definite, remedies to the plaintiffs. In making our inquiry, we pay special attention to the requirement that standing usually is not present unless the governmental official or agency can be found to owe a duty directly to the plaintiffs.”

As Professor Tribe describes the task, it involves far more complexity than the defendants would have this Court consider. Review of cases involving the very issue of the impact of compensation on Sixth Amendment Rights are telling.

In Lewis vs. Iowa District Court, 555 NW2d 216,219 (Iowa 1996) the Iowa Supreme Court held “ The issues of a defendant’s right to effective representation and an attorney’s right to fair compensation in cases such as these are ‘inextricably linked’. Therefore the circumstances particular to court-appointed representation warrant this review. To deny standing in cases such as these would put a lawyer in the unfavorable position of having to admit that inadequate representation was provided; thus raising the specter of malpractice and bar sanctions.” See also, State vs. Hardaway, 1998 Mt. 224, 966 P2d 125, where the Court allowed an indigent defendant to claim counsel’s right of reimbursement for witness fees. See also, Makemson vs. Martin County, 491 So.2d 1109,1112 (Fla. 1986)( “We must not lose sight of the fact that it is the defendant’s right to effective representation rather than the attorney’s right to fair compensation which is our focus. We find the two inextricably linked.”)

Clearly in the specific context of the delivery of Constitutionally required indigent defense services, the Courts have repeatedly recognized the special link between fair compensation and effective representation rising to the level of an actual controversy. Often described as “ a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142, 144, 379 N.E.2d 1095 (1978), quoting, School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320Mass. 516, 518, 70 N.E.2d 298 (1946).

In Benjamin vs. Fraser, 264 F3d 175,185 (2nd Cir. 2001) the Court stated “Where the right at issue is provided directly by the Constitution,...a prisoner has standing to assert that right even if the denial of that right has not produced an ‘actual injury’.”. That Court concluded that where the pre-trial detainees raised claims involving their Sixth Amendment rights, “It is not clear to us what ‘actual injury’ would even mean as applied to a pre-trial detainee’s right to counsel.”. Id. at 186. (Distinguishing Lewis vs. Casey, 518 US 343, 116 S. Ct. 2174(1996) a case involving post conviction issues, which essentially do require a showing of actual past harm.)

In Luckey vs. Harris, 860 F2d 1012,1017(11th Cir. 1988) the Court rejected the applicability of the Strickland test for ineffective assistance of counsel prospectively, as “The Sixth Amendment protects rights that do not affect the outcome of trial. Thus, deficiencies that do not meet the ‘ineffectiveness standard’ may nonetheless violate a defendant’s rights under the Sixth Amendment.” Id. at 1017. The Luckey Court concluded that “In a suit for prospective relief the plaintiff’s burden is to show ‘the likelihood of substantial and immediate irreparable injury, and the inadequacies of remedies at law.”. Id. at 1017-18.

The Supreme Judicial Court has recognized that the Right to Counsel is even more expansive under the Declaration of Rights. “We have drawn on our own judgment and experience to grant more expansive protections under art. 12 than have been required of States under the Sixth Amendment.” Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982). In fact the Supreme Judicial Court has taken pride in being in the forefront of efforts to protect the criminally accused. “This court and the bar of the Commonwealth have historically taken measures to assure persons charged with crime the benefits of legal representation. Thus the Supreme Judicial Court adopted a rule which required the appointment of counsel in all noncaptial felony cases in 1958, five years before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), imposed this obligation on the States.” Commonwealth v. Rainwater, 425 Mass. 540, 681 N.E.2d 1218 (1997). See also, Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U.L.Rev. 887, 888-889 n. 7 (1980).

Given the proud history of protection of these rights in Massachusetts it would seem unlikely that a reviewing Court would want this Court to dispose of these important claims in as cavalier manner as the defendants pray. Instead a reviewing Court would probably want this Court to determine whether the alleged flaws are merely correctable errors of pleading. See, Doe v. Governor , 381 Mass. 702, 412 N.E.2d 325 (1980)(“The plaintiffs seek declaratory and injunctive relief to remedy deficiencies in the Commonwealth's system of protective services for abused and neglected children, which is alleged to be "in a state of complete chaos and total disarray." We hold that their complaint is defective in its failure to allege any specific grievance, but that they should be given a further opportunity to amend the complaint.... we think it best to afford the plaintiffs a further opportunity to reframe their complaint. ”); See also, Charbonnier v. Amico, 367 Mass. 146, 153-154, 324 N.E.2d 895 (1975).

Viewed broadly, the plaintiffs’ claims are that the criminal justice system is approaching a crisis because lack of fair compensation is driving attorneys from being able to provide these Constitutionally required services. See generally, O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 509, 287 N.E.2d 608, 611 (1972)(“... a judge has the power to contract for expenses "reasonably necessary for the operation of his court," and (3) attorneys appointed to represent indigents are entitled to compensation even in the absence of explicit statutory authorization, Abodeely v. County of Worcester, 352 Mass. 719, 723-724, 227 N.E.2d 486 (1967). The answer to the second question is that appointed attorneys are entitled to be paid. Department of Public Welfare v. J. K. B. 379 Mass. 1, 393 N.E.2d Aug 16, 1979 ) The plaintiffs assert that the issues raised are fact intensive but suggest that a document attached as Exhibit A should serve as sufficient reason for this Court to conclude that the defendants motions should be denied. It is a document whose source is the defendant, Committee for Public Counsel Services. That chart reveals that although the number of active cases has steadily and expectedly risen, the number of participating attorneys has been steadily declining. Some simple calculations would reveal that while the number of cases per attorney per year remained relatively stable during the period 1993 through 2000, that number increased by 10% in 2001 and by 8% in 2002.

The implications are clear, increasingly, more lawyers are becoming financially unable to continue to provide these services; those remaining, are assuming exponentially increasing caseloads. The answer to this simple equation is that there is a likelihood that services rendered will become systemically ineffective, thereby depriving Constitutionally guarantied rights to effective counsel. In no sense do the plaintiffs contend that the services they have and continue to perform are inadequate. Instead, the plaintiffs here, as in many other jurisdictions, are not only making sacrifices to be able to provide these services, but are making even further efforts to raise these issues in order to ward off an inevitable crisis in the ability to deliver these services. Notably in contemporaneous proceedings in other jurisdictions, such efforts to prematurely terminate the Court’s consideration of the important issues raised have proven unsuccessful. The defendants’ 12(b)(1) motion should be denied.

Clearly in the few cases in which the appellate courts have deemed the allowance of this motion appropriate, an omission, status or lack of an element is glaring. In the multitude of cases where a reviewing court has deemed a 12(b)(6) allowance unwarranted, the issues involved the existence of facts in support of the claims, a determination to be made at trial or at minimum at a Motion for Summary Judgment. Where a claimant seeks declaratory relief, this already stringent burden upon the defendant becomes even more so. “The statutory purpose of an action for declaratory judgment is to enable the judge ‘to afford relief from ... uncertainty and insecurity’ with respect to the rights of the parties, Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292, 367 N.E.2d 796 (1977). Dismissal under Mass.R.Civ.P. 12(b)(6) (failure to state a claim) was inappropriate. See, G.L. c. 231A, § 1. The judge should have determined the rights of the parties.” Pina vs. Liberty Mutual Ins. Co., 388 Mass. 1001, 445 N.E.2d 1057 (1983)

The defendant, Committee for Public Counsel Services, has been delegated the authority by the Legislature to establish policies and procedures to provide fair compensation to private counsel. GL Ch. 211D s. 12 Further the Legislature has specified that CPCS shall establish rates of compensation, albeit ‘subject to appropriation’. The Legislature has also directed the method by which the defendant shall set these fair rates of compensation, by gathering data at biannual public hearings. Although the Legislature cannot delegate the authority to make law it may delegate "the working out of the details" of a legislatively established policy. Opinion of the Justices, 393 Mass. 1209, 1219, 471 N.E.2d 1266 (1984); see, C & S Wholesale Grocers, Inc. v. City of Westfield, 436 Mass. 459, 766 N.E.2d 63 (2002). Even delegations of power to “... private persons are not forbidden so long as proper safeguards are provided. Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 420, 294 N.E.2d 354 (1973)”. Town of Arlington v. Board of Conciliation and Arbitration, 370 Mass. 769, 352 N.E.2d 914 (1976) In Tri-Nel Management, Inc. v. Board of Health of Barnstable, 433 Mass. 217, 741 N.E.2d 37 (2001), the Supreme Judicial Court held that a Legislative directive to local boards of health to "make reasonable health regulations.", G.L. c. 111, § 31, authorized the banning of smoking in public places. Repeatedly the reviewing Courts have found that a reasonable delegation of authority by the Legislature does not violate Art. 30 of the Massachusetts Declaration of Rights and that the language by which this is established may be broad.

Certainly the enabling statutory provision here, ‘that CPCS shall establish rates of compensation’ is far more specific than the general, but upheld, authority to ‘make reasonable health regulations’. agent shall establish fair rates of compensation, by means of ‘public hearings’. See, G.L. c. 30A, s 2, see generally, 1980-81 Mass. Op. Atty. Gen. No. 5, 1980-81 Mass. Op. Atty. Gen. 107 (“ By contrast, paragraph 2 of G.L. c. 7, § 3B, which authorizes the secretary of administration to determine the costs of certain services provided by the Commonwealth, does require that such costs be determined "after notice and a hearing in the manner provided by chapter thirty A.")

Each of these statutes is specifically set forth in this complaint. Paragraphs 22, 23, 26 and 27. In Paragraph 44 the plaintiffs assert that when these rates of compensation were last set they were not based upon empirical data. In Paragraph 45 the plaintiffs assert that the defendant, Committee for Public Counsel Services, in violation of their statutory duty, collected no data. This complaint specifically and clearly articulates the plaintiffs’ claims, that the defendant, CPCS, failed to follow a statutory directive, to set fair rates of compensation, by gathering data at real ‘public hearings’ and making use of this information in formulating the rates set.

Additionally, CPCS has created policies which impact attorney compensation. Their policy that waiting time is limited to one hour potentially artificially reduces the attorney’s bill in spite of the fact that he has no control over this situation. Similarly a cap on the number of hours per day, means that an attorney donates any hours worked in excess of the cap, no matter how pressing the task to be completed. Factual questions exist whether these are reasonable policies, do they merely penalize rather than effectively regulate? Did other alternatives exist? Recently United States Court of Federal Claims Judge Robert Hodges, Jr. held that when Department of Justice attorneys are on trial, they are required to work longer than a standard work day in order to do their jobs effectively. He thus concluded that they were entitled to overtime compensation. Clearly, forcing attorneys to donate time actually worked is a taking of their property.

Obviously each of these contentions is fact specific. A factual issue exists as to whether, in setting rates of compensation, the defendant, CPCS, conducted ‘public hearings’ as required. While they might have appeared in public and allowed participating attorneys to speak, if they failed to gather this information and collect it into a useful form then the required hearing was a nullity. Obviously the defendants have never set a different rate since 1996, this means that the rate remains ‘fair’ only if it was adequate when established and costs have not increased. By attaching an exhibit to their 12(b)(6) motion the defendants have implicitly acknowledged that this Court is not in a position to make a determination without considering extrinsic materials. While preserving an objection to this Court considering any materials beyond the scope of the complaint, the plaintiff’s contend that the defendants are wrong in their assessment of the import of that exhibit. While the Legislature specified the hourly rates of payment, this document does not represent an amendment of GL 211D in which the Legislature authorized the defendants, CPCS, to set rates of fair compensation. The document reflects nothing more than the fact that the agency as of that date had determined these to be fair rates. The factual dispute remains whether the rate setting authority appropriately followed its statutory directive.

When the defendants filed this Motion to Dismiss they simultaneously requested that discovery be stayed. To date the plaintiffs have been unsuccessful in obtaining any information from the defendant, CPCS, as to records of past public hearings and submissions to the Legislature made from this accumulated data. It does not necessarily follow that by specifying the rates of payment as indicated in Exhibit A, the Legislature made their own finding that these were fair rates of compensation. Instead the defendants’ document reveals that only after facts are gathered can a correct determination be made. Did the defendant agency, CPCS, comply with its statutory directive? Did it conduct public hearings as required? Did the meetings qualify as the required public hearings? Were any records of these hearings maintained? Was any of the information gathered reduced to some meaningful compilation? Were these materials conveyed to the Legislature in some meaningful way?

If the defendants, CPCS, failed in any, some or all of these ways to comply with its statutory directive then the rates last set in 1996 may not constitute fair compensation. Since 1996 there have been other biannual dates which obligated CPCS to convey timely information to the Legislature concerning fair compensation. If this material was not conveyed appropriately during 1998, 2000 and 2002 then an issue exists whether these rates constitute fair compensation for those periods of time.

Clearly, as alleged, the named plaintiffs and other members of the proposed class continued to provide these Constitutionally required services. If the plaintiffs provided services during these years and were in fact compensated at rates which do not qualify as fair compensation then the inaction of this state agency has deprived them of an earned property interest. It is not as the defendants assert a claim involving a future expectancy. Compare, German vs. Commonwealth, 410 Mass. 445, 449-451 (1991) While the defendants are correct in asserting that the complaint is in minor ways flawed, the underlying claim, raising multiple factual issues, is sufficient to survive.

GL Ch 211D s. 9 (d) authorizes the defendant, CPCS, to set ‘a range of rates payable’ for supportive services. In fact the rates established by CPCS for nineteen types of service providers all exceed the rates to be paid to attorneys. But the defendants assert to this Court that it can accept as true their assertion that graphic artists will not perform these services for less than $75 per hour and handwriting analysts for not less than $150. They ask the Court to accept on its face an assertion that an unlimited supply of qualified attorneys establish an appropriate market rate of no more than $39 per hour.

On the face of the complaint these assertions are disputed as the plaintiffs contend that as a result of the inadequate rates of compensation experienced attorneys have become increasingly unwilling to accept assignments. (paragraphs 50-53) Moreover the defendants disregard the claim that the different treatment is occasioned by the defendant, CPCS, establishing rates for other service providers pursuant to GL Ch. 211D s. 9 in a different manner than they do in setting fair compensation for counsel. The allegation is that the defendants establish these rates for other service providers by either accepting their stated rates or by obtaining expense information from them, methods which the plaintiffs contend are not applied to them.

While sage counsel may ascribe a rational reason for this disparity, that the Commonwealth can obtain the services of lawyers cheaper than those of non-lawyers, it remains a factual determination if this is in fact the real reason. If this were sufficient to dispel an equal protection claim, all defendants would succeed on their 12(b)(6) motions by merely asserting a non-discriminatory reason for their disputed action. Attorneys for the club which bars minority members, by asserting that the minority candidates were rejected only because they had not timely filed applications, would succeed in terminating the litigation whether the rationale was true or not .

On the face of the complaint, the plaintiffs have set forth a claim that they have been denied Equal Protection.

The plaintiffs,
By their Attorneys,

Paul J. Machado
928 Bedford St.
Fall River, Ma. 02723
(508) 675-8850