Wednesday, June 30, 2010

Worcester vote on Department of Transportation plan for Worcester, Beacon Yards, Grand Junction bridge and line

The Worcester City Council has voted in favor of the Department of Transportation's plan to expand the freight yards there, so as to increase commuter rail use of the Beacon Yards while drastically reducing freight in the latter.

The plan will have major consequences for Worcester neighborhoods as well as metro Boston. In Allston and Cambridge it will not seem to reduce rail traffic in the Beacon Yards, since DOT wants to use that facility as a car barn for commuter rail as well as increase through traffic on the Worcester-Framingham line to both North and South Stations.

Eliminating rail freight almost entirely, as it aims to do, will in fact greatly increase truck traffic throughout metro I-495, with attendant problems for the environment, roadway maintenance costs, and public health. There are other consequences, some of which are outlined in the letter Marilyn Wellons sent to the Worcester Telegram on Monday, June 28, 2010:

To the Editor:

On the eve of the city's vote on plans to move the Beacon Freight Yards to Worcester, please consider the following:

1. Recently announced plans to send Worcester-Framingham commuter trains to North Station would free up space in South Station for the new South Coast service that will compete for it. Will some or eventually all Worcester-Framingham trains end up at North Station? Will commuters learn to accept this change?

2. The same plans would send some or all Worcester-Framingham trains over the Grand Junction rail bridge. This structure has been the Urban Ring Phase 2 (UR2) critical Charles River crossing. Although UR2 is now on hold, will the new commuter rail plans scotch UR2's for the same bridge?

3. Crossings in Framingham and in Cambridge are to be at grade, with all attendant problems.

4. Your recent article on the virtues of the CSX facility in Atlanta make an excellent case for keeping the Beacon Yards in Allston rather than moving them west, to Worcester, with the increased truck traffic there and within I-495.

With so many last-minute uncertainties and so much at stake, Worcester should think again about these plans, rather than merely cross fingers and wish to make the supposed benefits so.


For the Worcester Telegram's coverage of last night's vote on DOT's plans, see:

Marilyn Wellons

Tuesday, June 22, 2010

Day 396, Desolation.

Bob La Trémouille reports.

1. Visibility.
2. Work.
3. The resident animals.
4. The Bad Guys’ Explanation.

1. Visibility.

I conducted a visibility across from the Destroyed Nesting Area of the Charles River White Geese at about 1 pm or so on June 22, 2010.

There is definitely not the foot traffic at this hour as during the evening rush, but there was more than yesterday.

People were nice, and the drivers show aggressiveness I have seen in the past.

2. Work.

In contrast to yesterday, I actually saw workers.

The workers have spread themselves out. Destruction of 3/4 of the Nesting Area was as heartless as the behavior which has been tradition from Governor Patrick’s people and from the City of Cambridge. Spreading out their goods did not hide the fact that about have the work area destruction was unnecessary.

3. The resident animals.

The really rotten nature of Governor Patrick’s people and Cambridge comes when you see the condition which has been forced on resident animals.

Their food has been poisoned at Magazine Beach and walled off with introduced vegetation which has no business on the Charles River, but the really rotten behavior is in the tiny ghetto who which the Charles River White Geese have been confined.

All ground vegetation between the BU Bridge and the BU Boathouse has been destroyed.

What was once lush greenery is now dirt. The green environment was destroyed in stages from about 2003 to the destruction as part of the BU Bridge repairs. There is no coincidence whatsoever that the construction zone destroyed almost all of what was not destroyed in the period 2003 to 2009.

I have posted some good photos in earlier reports and a larger collection of photos appears on the home page of the Charles River White Geese at Facebook.

4. The Bad Guys’ Explanation.

Governor Patrick’s people started their lies before he came into office, nonstop lies of intention to do no harm.

Cambridge’s machine simply tosses out the usual holier than thous that they are protecting the environment. Natuarlly,the somehow neglect to mention their environmental destruction and heartless animal abuse during their pieties.

Really rotten people.

Monday, June 21, 2010

Day 395, No signs of work.

Bob La Trémouille reports.

1. Visibility.
2. Observations.

1. Visibility.

On June 21, 2010, I leafleted a little after noon in sight of the Destroyed Nesting Area of the Charles River White Geese.

Traffic, once again, was quite bad because four lanes have been reduced to two.

There were even less people on the sidewalk than was the situation the day before, on Sunday. Nevertheless, the few people I saw were quite responsive.

2. Observations.

I saw no signs of life with regard to the construction.

There were people using the soccer field.

Sunday, June 20, 2010

Day 394 at the Destroyed Nesting Area — The work looks that much more bizarre

Bob La Trémouille reports.

1. Visibility.
2. Magazine Beach.
3. Malvina Monteiro.

1. Visibility.

On Sunday, June 20, 2010, I conducted a visibility on the west side of the BU Bridge across from the Destroyed Nesting Area.

It was a little bit past noon on Sunday, and the temperature was in the 80s.

Definitely not a busy time for pedestrians, although, because of the closing of bridge lanes, the car traffic was heavy.

We changed generations of fliers to a slightly different new printing. The new flier tells people about the new Facebook page created by Nick Cheung, a friend of the Charles River White Geese in Maine. As I started passing out the first few of the new fliers, I mentioned friending the Charles River White Geese on Facebook. The comment was well received.

2. Magazine Beach.

The bizarre introduced vegetation gets thicker at the same time as the DCR destroys native protective vegetation everywhere else on the Charles River twice a year.

The poison drainage system looks really very massive, an awful lot of recreation area destroyed simply because Cambridge and the state are so irresponsible as to dump poisons on the banks of the Charles River and then devise a way to drain the poisons off.

The responsible techniques would have been to have meaningful respect for the environment.

There were seven acres of healthy grass which survived without poisons for the better part of a century. That grass would survive one again. All that is necessary is toss on seeds for the responsible grass and stop feeding the poisons to keep the sickly introduced stuff alive.

To make it worse, the sickly introduced stuff seems to be wearing down under whatever little use the playing fields has seen.

3. Malvina Monteiro.

To date the appeal does not seem to have been filed yet. At least the public index does not reflect a case filed this year under her name.

When the case was in Superior Court, membership in the legal profession was needed to get access to the docket. On the appellate level, anybody can get access. The search page is: Just put in Ms. Monteiro’s name and 2010. There are a number of Monteiro cases in the index, but not Malvina, not yet.

Monday, June 14, 2010

Monteiro Appeal Filed by Cambridge

Bob La Trémouille reports:

Today, June 14, 2010, Cambridge filed notice of appeal in Malvina Monteiro v. City of Cambridge. We have given quite a few reports on this case. The most important case paper can be accessed from the link in the upper right corner which reads: “Monteiro Judge on Cambridge: Reprehensible.”

The following is the notice of appeal from the on line docket. The on line docket uses software which destroyed paragraphing. ALL the below paragraphing is my best guess. To the extent extraneous numbers appear in my quote, please let me know about them. They would be line numbers that I missed in the edit.

Please also note that the software loses a lot of punctuation / emphasis. I have made no attempt to correct these errors.

It is highly likely that the below quote is just the title. There may have been other matters filed as part of the document.


Defendant City of Cambridge's (second renewed) notice of appeal from:

(1) Corrected Amended Final Judgment on Jury Verdict entered on June 4, 2010;

(2) Amended Order of Judgment entered on May 20, 2010;

(3) Memorandum and Order on defendant's motion for reconsideration entered on May 20, 2010;

(4) Memorandum and Order on plaintiff's Petition for award of fees and costs entered on May 20, 2010;

(5) Memorandum and Order on plaintiff's motion to clarify, alter and 8 amend the court's judgment on jury verdicts entered on May 20, 2010, including but not limited to reversal to the previous award of costs 10 to defendant relating to the first trial;

(6) Judgment on jury verdicts entered on June 2, 2009;

(7) Order entered on May 8, 2009 denying the defendant's post-trial motions, including without limitation:

(a) defendant's motion for judgment notwithstanding the verdict;

(b) Defendant's motion for a new trial, or, in the alternative, for a remittitur, and

(c) motoin to supplement the record on appeal.

(8) Order from the Bench at the Charge Conference in May, 2008, rejecting defendant's proposed retaliation charge under McCormack v. Boston Edison, and other objections as preserved;

(9) Order denying defendant City of Cambridge's Motion for reconsideration of decision and order on post-trial motions;

(10) Order from the bench denying defendant City of Cambridge's motion for directed verdict dated May 20, 2008;

(11) order from the bench of May 13, 2008 denying defendant's motion for mistrial in connection with the admission of so-called "comparator" evidence;

(12) Implicit orders refusing to consider the defendant's submission of Statement of Authority regarding Everett v. The 357 Corp., filed on April 22, 2009, while giving full consideration to plaintiff's co-called statement of supplemental Authority regarding Haddad v. Wal-Mart Stores, Inc., filed on December 28, 2009;

(13) Order denying defendant's motion for directed verdict dated February 22, 2005 (first trial);

(14) Order denying defendant's motion for directed verdict and/or reconsideration of the denial of motion for directed verdict dated June 2, 2005, including but not limited to the denial of defendant's motion for judgment as a matter of law or, in the alternative, for a rule 64 Report (first trial);

(15) order denying motion of defendant City of Cambridge for entry of partial judgment dated August 4, 2005 (first trial); and

(16) January 2005 order from the bench allowing plaintiff Monteiro's motion to amend complaint filed on December 14, 2004 (first trial).

Saturday, June 12, 2010

Cambridge School Committee Member Marc McGovern: "Compassion" v. Heartlessness

Bob La Trémouille reports.

1. Introduction.
2. Marilyn’s Letter to the Editor.
3. The Exchange on Line.
A. Bob #1. Two weeks ago.
B. McGovern #2. Two weeks ago.
C. Bob #2. One week ago.
D. McGovern #3. One week ago.

1. Introduction.

In the June 3, 2010, edition of the Cambridge Chronicle, there was a letter to the editor from Cambridge School Committee Member Marc McGovern.

McGovern communicated a high level of sweetness in calling for compassion in the budget process. Compassion came through a lot more clearly than budget.

In the past, McGovern has printed two letters in the Cambridge Chronicle endorsing the outrage which has since been implemented at Magazine Beach.

McGovern has been disowning any responsibility for anything negative at Magazine Beach ever since.

McGovern’s latest letter was also printed on line. I responded on line. McGovern responded to me. I responded back. McGovern responded back to me.

Marilyn Wellons submitted a letter to the editor aimed at publication in the hard copy edition.

Marilyn’s letter follows. Then follows the on line exchange without the original McGovern letter. My two pieces are my two pieces and I think there would be no problem whatsoever passing them on. McGovern’s responses to me are extremely short and highly relevant to the purposes of this blog. They seem appropriate. The original McGovern letter is too long to print here without very clearly violating the doctrine of fair use, and really, except for the tone, is not relevant to this blog.

2. Marilyn’s Letter to the Editor.

David Harris, Editor
Cambridge Chronicle

To the Editor:

Cambridge School Committeeman McGovern’s letter about the School Department budget and staff firings (“We must never lose our compassion” May 31, 2010) and the subsequent online exchange about his support for the city’s squandering of $1.5M at Magazine Beach sent me to my notes of a telephone call Mr. McGovern made to me last summer, on August 5, 2009.

Campaigning for re-election and apparently stung by my July 23 letter to the Chronicle about the chemically maintained Little League and youth soccer fields that $1.5M was buying, he quickly acknowledged the project was a mistake. I gathered voters, especially parents in the Cambridgeport Little League that he headed, were not happy at the prospect of their children’s exposure to endocrine-disrupting substances.

We had a free and frank exchange of views. He said then, as he does now online, that he had no responsibility for the planning of the project. I challenged that, citing his consistent public support for it individually, as both a Little League official and School Committee candidate, and together with State Rep. Marty Walz. When he claimed he had no knowledge of plans for chemical maintenance, I reminded him with some heat of our conversation at the Dana Park party in June, 2007, when I told him about it and handed him a flyer with that information in writing. On the phone, he pointed to the DCR as responsible for the fields’ maintenance, and when I told him Cambridge would maintain the fields he said that was Paul Ryder’s responsibility, not his.

Money is fungible. Our elected officials have thought $1.5M a reasonable sum to pay to destroy sustainable, naturally maintained playing fields at Magazine Beach, open to all, that were also simultaneously a place for contact with the natural world. What else could that $1.5M (or, say, another $6.9M) have bought, or buy now, to make Mr. McGovern’s call for compassion unnecessary?

Yours sincerely,

Marilyn Wellons

[Ed: Marilyn’s mention of $6.9 M refers to the latest counting of the award in Malvina Monteiro v. City of Cambridge, reported elsewhere in this blog. This is the Chronicle’s quote of the plaintiff’s attorney. In this blog, please note in particular the link referring to a judge calling Cambridge “reprehensible.”]

3. The Exchange on Line.

I start with McGovern #2 counting the originally published letter which I am not reproducing (see above) as #1.

The dates are those posted on line.

A. Bob #1. Two weeks ago.

A very major expenditure that Mr. McGovern has belligerently supported is the bizarre project at Magazine Beach featuring very prominent and very heartless animal abuse. Heartless animal abuse which is a direct result of bizarre expenditure of funds is exactly the opposite of 'compassion.'

I would suggest that Mr. McGovern show compassion. He repeatedly claims that he only has responsibility for the good stuff in this outrageous waste of money. There is no good stuff.

Mr. McGovern could save money at Magazine Beach by stopping the dumping of poisons there. The poisons are there to keep alive introduced grass which cannot survive without lots of money being spent on poisons to keep it alive. Mr. McGovern, at the same time, is poisoning animals feeding off this and poisoning kids rolling in it.

Mr. McGovern can responsibly save money by tossing on the seeds of the grass which survived at Magazine Beach for the better part of a century and did not need poisons to survive. You toss on enough seeds and you no longer have to spend money on poisons to keep alive sickly grass.

At the same time, the beautiful 30 years resident and thus native Charles River White Geese are kept from their primary source of food at Magazine Beach by a bizarre wall of introduced vegetation which has not business on the Charles River.

Mr. McGovern's agents at the DCR, twice a year, run around the Charles River destroying native vegetation vegetation, but they do not destroy the bizarre introduced stuff that Mr. McGovern is responsible for.

Boston's Conservation Commission has punished the DCR for its destructiveness toward the native vegetation. The BCC is concerned about resident and visiting water fowl.

I would suggest that Mr. McGovern show compassion and common sense. Have the DCR chop down his introduced vegetation to end its harm to the native water fowl.

The DCR representative has bragged that this stuff keeps away the native water fowl.

My understanding is that Mr. McGovern has a total lack of compassion when it comes to his bizarre project at Magazine Beach.

Shame. 'We must never lose our compassion' is what he says in the next to the last sentence.


B. McGovern #2. Two weeks ago.

I am the president of central division little league. The project you are referring to is being run by DCR. I can't even get them to put a port-a-potty at the field let alone stop their project. You make slanderous and outrageous statements. 'Mr. McGovern is at this time is poisoning animals...' This is untrue and I am demanding that you stop making false allegations. 'Have the DCR chop down HIS introduced vegetation...' I did not introduce anything in this project. I never attended a meeting. I was never asked my opinion and had nothing to do with the planning of this field. I did write two letters thanking the DCR for redoing the little league field. That is all. I will not comment any further on your ridiculous statements.

C. Bob #2. One week ago.

Golly gee. Those lovely letters in the Chronicle must have been fakes, and even after never attending a meeting.

I live and oppose the really rotten situation you have consistently supported.

Have compassion. Undo the outrage you have public[ly] supported and then claim[ed] shock that anybody would blame you.

Give Cambridge open space. Start with the open space you have destroyed at Magazine Beach.

Massive amounts of open space have been destroyed for an expensive drainage system to drain poisons which were not necessary until you destroyed the healthy grass which was there for the better part of a century and replaced it with sickly stuff that needs poisons to survive.

Stop the poisons (and stop poisoning kids) by replacing your sickly grass with the native stuff you destroyed. Then you can fill in the poison drainage and give up back the playing fields you destroyed.

Chop down the bizarre wall of vegetation which has no business starving animals, and no business on the Charles River.

Chop down all those bizarre fences.

Oh, and, as usual, the two letters you put in the Chronicle unconditionally supporting this outrage are a fiction and my imagination.

How dare anybody expect you to be responsible a project which you have unconditionally supported.

A project which HAS NO VALUE. Destruction which HAS NO VALUE.


Small open space is not an improvement. [Ed: Typo, “small” should have been “smaller”.]

Poisoned playing fields are not an improvement.
Show compassion on the kids you have done this to.

Show compassion on the animals you have done this to.

Show compassion on the environement.

And stop the lies that you do no support an outrage to which you gave unconditioned PUBLIC support in the pages of this newspaper.


D. McGovern #3. One week ago.

I said I wrote two letters.

Wednesday, June 02, 2010

Monteiro judge’s reconsideration memorandum.

Bob La Trémouille reports.

Thank you to the Cambridge Chronicle for posting the key judge’s decision this year on line at, and thank you to Marilyn Wellons for recognizing the link in the Chronicle report, which I missed.

I have traded the key 2009 decision for this decision and attempted to download this decision to my hard drive.

Scribd tells me it downloaded, but my computer tells me it is not there.

This thing is not directly copiable and I now seem to be in some sort of loop.

In any case, the decision is at the above link. Total postings are apparently 16 pages including other papers which I have already posted.

In order to resolve the oddities, I have retyped the memorandum.

My retyping is perfect except for converting double spacing to single. Some specific formatting has been changed by the blog. An extended quote was double indented in the original and my copy. That has been lost. This formatting is replaced by asterisks preceding and following.

The Court's Memorandum on Reconsideration of the Penal Damages award follows:


NO. MICV2001-02737





The Defendant City of Cambridge (“Defendant” or “the City”) has moved for reconsideration of the issue of punitive damages on the basis that the Supreme Judicial Court’s decision in Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 (2009) requires that the award be vacated. The City contends that, as a matter of law, “the standard for the award of punitive damages as enunciated in the Haddad decision was not met in this case.” This Court disagrees.

In Haddad, although there was no claim of error in the instructions given on punitive damages, and the SJC found none, the Court nonetheless “[took the] opportunity . . . to set forth a new standard describing the circumstances in which punitive damages may be awarded.” Id. at 110.


To sustain an award of punitive damages under G.L., c. 151B, §4, a finding of intentional discrimination alone is not sufficient. An award of punitive damages requires a heightened finding beyond mere liability and also beyond a knowing violation of the statute. Punitive damages may be awarded only where the defendant’s conduct is outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation. In making an award of punitive damages, the fact finder should determine that the awarded is needed to deter such behavior toward the class of which plaintiff is a member, or that the demendant’s behavior is so egregious that it warrants public condemnation and punishment. Id. At 110-111 (citations omitted; emphasis added).


Although the present case pre-dated Haddad, the jury instructions on punitive damages (which were essentially those requested by the City) emphasized the need for the jury to make findings that the conduct was “outrageous” and “extreme” in nature. Therefore, assuming Haddad applies to this case, the jury instructions were consistent with the standard set forth by theSJC. This Court, however, is of the opinion that the SJC’s discussion in Haddad is not applicable here.

The Court in Haddad made it clear that its new enunciated punitive damages standard was to be applied prospectively, that is, it is “to be applied in (1) all claims for punitive damages under G.L., c. 151B commenced after the date of the rescript in this opinion, and (2) all pending claims that have not gone to judgment in the Trial Court by such date.” Id.

The decision does not appy there to a case such as the present case, where the case has been tried, the jury has been instructed and has rendered its verdict, and post-trial motions have been heard and decided. Here, verdicts were returned on May 23, 2008; this Court entered its decision on post-trial motions, which included uphonding the award of punitive damages, on April 24, 2009; a Motion for Entry of Final Judgment was allowed on May 18, 2009; and Final Judgment entered on June 2, 2009. The only matter “pending” at the time of the SJC decision was a Rule 59 motion concerning the form of the judgment. The City’s motion for reconsideration thus has no legal support.


For the foregoing reasons, the City’s Motion for Reconsideration of its post trial motions on punitive damages is DENIED.

Bonnie H. MacLeod-Mancuso
Judge of the Superior Court

Date: May 20, 2010