Public Safety Under Covid: Temporary Restraining Order Sought Against Williamstown, MA Over Refusal to Hold Town Meeting in Safe Venue

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Some citizens are not taking Covid risk sitting down. Attorney Stephen Dew has filed a suit on behalf of Janet Loux against managers, board members, and the town of Williamstown itself over its obstinacy in refusing to schedule its town meeting in one of the possible sites that would not pose undue Covid risk to participants. As you will see, Ms. Loux has been active in community and state politics and is diabetic. We’ve embedded the filing at the end of this post.

With Covid cases spiking and New York City again recommending indoor mask-wearing, the risk of Covid is real. Moreover, Williamstown held its town meeting in a safer location in 2020 and 2021, so it has implicitly acknowledged the importance of adequate space and ventilation for public safety. If the town does not quickly capitulate to avoid wasting funds on litigation, Ms. Loux may have to present data showing that even N95 masks protect user for only 2.5 hours against an unmasked person with Covid (and I’ve seen studies that suggest a mere 1.25 hours for an unfitted N95).

Note this story already made the Berkshire Eagle: A resident is suing to force Williamstown to move its annual town meeting to a larger venue because of COVID concerns. From the article:

With COVID cases again surging across the Berkshires, a resident is taking legal action to try to prevent the town from convening the scheduled annual town meeting tonight at Williamstown Elementary School…

Some residents have been pushing to move the meeting either outside or to a larger space to reduce the odds of the infection spreading at the meeting, while others are advising folks to take precautions such as wearing a mask and social distancing.

All of Berkshire County is listed as high risk for COVID transmission, including Williamstown, which reported 100 new cases in the last seven days, and currently has a 10 percent positivity rate….

In an email that was shared with The Eagle, Loux stressed the importance finding a change of venue.

“There are several important articles being voted on and it is important that these votes are not tainted by disenfranchised voters who can’t participate,” she wrote. “If this meeting goes forward in the current form, it is a clear statement to people who are immunocompromised or have certain disabilities that they are second-class citizens in this upcoming Williamstown Town Meeting.”

The legal argument is simple: Ms. Loux requires an accommodation under the Americans With Disabilities Act. And even though logically this argument ought to prevail, judges tend to be deferential towards government bodies.

However, absent a judge granting the restraining order, there’s a glaring procedural problem: citizens will have to go to the meeting at the dangerous location to vote to reschedule it and move it to a safer spot. Again from the Berkshire Eagle:

Town officials offered the proposed change of venue article this past weekend as a result of the residents’ concerns, according to Andrew Hogeland, chairman of the Select Board.

“At this point, the authority to adjourn Town Meeting rests with whoever votes on that question at Town Meeting on Tuesday night,” he wrote in an email to the community. “So if this question is important to you, you should show up if you can safely and comfortably do so to vote on it. Since such a motion may fail, you should show up if you can safely and comfortably do so to attend the full Town Meeting which would proceed.”

Talk about Catch-22. One has to wonder if the town officials deliberately addressed this matter too late to fix it themselves.

The Boston Globe even called for abolishing town meetings in 2020, arguing they were undemocratic because so few voters showed up that decisions are made ” a small, unrepresentative portion of the electorate.” While that may be the case, any other format is even less representative and accountable. And if there’s a hot issue to be decided, voters make the time to show up.

So wish Ms. Loux luck. And circulate this filing to others who might feel the need to press local officials to be mindful of Covid risk when they schedule public meetings.

00 Loux v. Filson et al
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  1. .human

    I lived in a town that built a new police/court house complex. Recent changes to the local building code then required sprinklers in public spaces. The town fathers decided to issue themselves an exemption in order to save costs.

    Well, as it turned out, the local Justice refused to hold court in the new building until the lack of a sprinkler system was remedied. Sometimes there is someone looking out for the public.

    1. Big River Bandido

      Those judges weren’t looking after the public. Just looking out for themselves. As always.

  2. Verifyfirst

    I wonder what other settings this approach could be applied to? Any place of public accommodation? Hospitals? (which seem to me to be permanent super spreader sites…..)

    1. ChrisRUEcon

      I would like to see this done in our local school district … good on them. It’s a freaking sh** show.

      Saw a tweet weeks ago from a healthcare worker saying that while mask-freedumb was in high gear, hospitals were being mandated to use (K)N95s. That would ostensibly be because hospitals are looking at the CDC’s transmission data, not the doctored level data.

  3. BeliTsari

    “Spectator gallaries” for us properly masked & goggled fear mongerers (live-streaming the clowns to loved-ones with cascading PASC, “preexisting comorbidity” to Rochelle) or big tents might just take on an entirely new meaning. “Dawn Of The Dead” mall balconies or abandoned drive-ins come to mind?

  4. Jason Boxman

    Remember way back in the early days, when Biden’s primary campaign encouraged everyone to go vote in the middle of a pandemic? (Foretelling of how they’ve handled the pandemic in office.) I’m glad to see someone trying to ensure public meetings aren’t potentially lethal.

  5. Arizona Slim

    I know this is a very micro example, but our most recent neighborhood association meeting was outdoors and included refreshments. It was one of the most interesting and civil meetings that I have attended in many years.

    Any possibility of more of these other meetings going outdoors? At least during the warm months?

  6. Swamp Yankee

    Lived in Williamstown for four years. Quick correction, Yves. Williamstown is a Town, rather than a city as described in the 2nd paragraph.

    FYI New England Towns vs Cities are defined typically by municipal government, not population.

    Towns have a Town Meeting form of government, either Open or Representative. Open Town Meetings are direct democracies.

    Cities have a mayor-council form of government.

    Thus Marshfield, MA, pop. c. 25,000, is a Town because it has an Open Town Meeting. North Adams, next door to Williamstown, with a population of about 14,000, is a City because it has a mayor and city council.

    And of course the Boston Globe wants to get rid of Town Meetings, they are the mouth piece of the New England business class, and Town Meetings are constantly wrecking the plans of various enclosers of the Commons in that class.

    A bizarre argument, frankly…. turn out is low so let’s try an even less democratic form of government.

    The reality is that Town Meeting is imperfect, but they are the only real direct democracies left in the world. Of course corporate liberals at the Globe hate them.

      1. Swamp Yankee

        Thanks for the correction!

        I cast my first Presidential vote in Williamstown (for John Kerry).

        And my first ever vote was in a Town Meeting in SE Mass. in 2001, right after I turned 18.

        Full disclosure: I wrote my doctoral dissertation on early Town Meetings.

        So I am partisan in this regard, one could say!

  7. Steve Dew

    Hi everybody, this is Steve Dew, Ms. Loux’s attorney. The judge denied my client’s motion for the TRO but ordered that everyone be masked at the town meeting, which I later attended.

    There were approximately 200 people at the elementary school gym, which off the top of my head I’d say is about 3% of the voting age population of Williamstown. The gym felt crowded, although everyone I saw had complied with the judge’s masking order.

    As Yves pointed out, the town created a classic Catch-22 by forcing the people who most needed the venue moved to attend an unsafe meeting in order to vote on moving the venue to a safer location. I made that argument at the hearing, but the judge was unmoved. Needless to say, the first order of business was adjournment of the meeting and rescheduling for June 14 at the gym at the local high school, which is larger and has a state-of-the-art HVAC system and is one of the alternatives we proposed in the motion. That measure passed by a vote of 149-49.

    My client went into this understanding that her suit and the relief she was requesting was a long shot, and I was pleased that the judge at least mandated masks. More disappointing was the anti-mask chatter on social media from Williamstown’s residents. There’s real anger out there when it comes to NPIs like masking that is dismaying.

    Also disappointing was the town’s decision to oppose our motion. Because our request was for an emergency TRO, our motion was being heard ex-parte, in other words without the normally required notice to–or presence of–the defendants. Nevertheless, as a responsible brother at the bar, I notified the defendants and sent them courtesy copies of our filing as soon as I found out a hearing had been scheduled. I understand that the town may have seen a principle being vindicated by opposing our motion, but given the fact that we were only seeking equitable relief and not money damages, it seemed like bad form. The town could have rescheduled the meaning by literally taping a sign to the door of the elementary school gym.

    Thank you for writing this up. I’m extremely proud of my client for stepping up like this. I just hope that she and similarly situated people won’t be forced to do so again.

    1. Jeff

      Did your client do a covid test before she attended to ensure she herself wasn’t covid positive at the time of the meeting?

  8. Adam Eran

    Personally, I’d suggest this is one subset of the moves by local governments to discourage participation. In Sacramento, the County has “Community Planning Advisory Councils” (CPACs) ostensibly to solicit neighborhood feedback about development proposals. So concerned citizens appear at these and “Mau Mau the flack catchers”…then go away, energy spent. The councils are *advisory* only, though, so a unanimous rejection from the neighborhood can mean County Supervisors unanimously accept the proposal. It’s a scam designed to grind any opposition to dust. Yet another disappointment of “democracy,” where principled people discover that “compromise” is really the only way to accomplish anything. “Americans are a primitive people, disguised by the latest inventions” – George Santayana

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