Hodge on the bench on August 11…in the courthouse everybody wants to escape, but to differing places. (WMP&I)

The Massachusetts Division of Capital Asset Management (DCAMM) and Liberty Junction, the developer selected to build the new courthouse in Springfield, can keep talking—and negotiating. That was the ruling from Superior Court Judge David Hodge, who refused to enjoin the process, as the plaintiffs in a suit, USPB JV, LLC and Springfield Tower Square, LLC, had requested. Instead, he accepted many, if not all, of the defendants’ arguments.

In the immediate term, the ruling was much of what the defendants could have hoped for. In analyzing the request for a preliminary injunction, Hodge essentially said the plaintiffs have no case. Or rather, they had no case for the relief the plaintiffs were seeking right now. As skeptical as the ruling was, it might not have gone far enough to give DCAMM and Liberty Junction confidence the case is ending soon.

“There are myriad difficulties with Count 1,” Hodge wrote, referring to claim that ethical violations tainted the selection. “There is no legal or logical support for the plaintiffs’ convoluted theory that DCAMM somehow violated [state ethics law], in the procurement process” due to an “‘unwaivable conflict.’”

Barely a week after the Commonwealth selected Liberty Junction to develop the courthouse at 125 Liberty Street, USPB JV and Springfield Tower Square, who had submitted competing bids, filed suit. They zeroed in on the apparent conflict of interest created from the connection John Barros, the interim head of the state convention center authority, had with Liberty Junction.

The hearing on the request for a temporary restraining order/preliminary injunction occurred on August 11. Hodge did not tip his hand exactly, but the questions suggested some sympathy for the defendants.

In a statement released shortly after Hodge issued his decision, Liberty Junction feted the ruling. The group asserted that the selection—and this decision—saved taxpayers money and served the court’s needs. They also styled the opinion as evidence that should reassure taxpayers concerned about the process.

“What is most important to Liberty Junction now is what we know is most important to the people of Hampden County, namely that the too-long-awaited replacement of the County Courthouse gets underway,” Liberty Junction said in its statement.

“Many lives of the good people who work in the current building, now and in the past, and their families have been negatively affected by a sick building that should have been remedied years ago,” the consortium continued.

Damn the TROs! Full speed ahead…well, maybe. (DCAMM)

Spokespeople for DCAMM and the attorney general’s office, which represented DCAMM, did not immediately respond to a request for comment.

Jeb Balise and Dinesh Patel, the owners of USPB JV and Springfield Tower Square respectively, greeted Hodge’s lemons with sugar and a juicer. In a release, they announced they would appeal and they emphasized that the case was not dead. Discovery had already begun. The plaintiffs once again phrased their efforts as ensuring “a full airing of the facts and circumstances surrounding this procurement.”

“We remain fully committed to that goal. Our confidence is complete, and our commitment to this community is unwavering, which is why we will continue to pursue every available legal avenue, completely and without hesitation,” Balise and Patel said in a statement.

In his opinion, Hodge expressed deep skepticism about the legal basis for the suit. Yet, it was through the prism of the available evidence that he concluded that the likelihood of success for the moving parties—in this case the plaintiffs—was too low to merit an injunction.

At this early stage, a judge can only impose an injunction under strict conditions. The reason is that the record is undeveloped. While the parties have furnished a tide of records, the litigation could still yield another ocean of evidence. In other words, the ruling is only based on the facts available now.

That said, Hodge doubted that any injunctive relief was likely and said the remedy may ultimately be monetary. Put another way, there may be no way to stop construction.

The plaintiff raised four claims. However, only two were substantive counts based on state ethics law violations and certiorari, a procedure for reviewing government actions. The other two were independent claims, but rested heavily on the first two.

Barros was not a bar, per the judge. (via bc.edu)

In rejecting the violation of state ethics law, Hodge’s analysis was plain. His review of the ethics law claim centered on the fact that the law regulates employees, not agencies like DCAMM. To the extent Barros was a factor, he did not influence the process or act inappropriately.

“Even if the plaintiffs could clear that hurdle, they have presented no legal or factual support for their contention that DCAMM’s conditional selection of Liberty Junction contravened the Conflict of Interest Law due to what the plaintiffs assume to be a conflict of interest by Barros,” Hodge wrote. “There is no evidence in the voluminous record that Barros violated any 13 provision of G.L. c. 268A, § 7.”

The opinion mentioned other areas of ethics law that did not favor the plaintiffs, too.

However, Hodge’s firmness lessened somewhat in the section on certiorari. Ultimately, the facts that led him to reject any application of the ethics law contributed to finding there was insufficient proof of impropriety—at this stage—that merits injunction. However, he also rejected the Commonwealth’s claim that certiorari was inappropriate here.

The goal of certiorari is to establish a government action was arbitrary and capricious. The plaintiffs had not yet done that. While much of his reasoning mirrored his analysis of the ethics claim, Hodge also said the plaintiffs had not presented evidence the bidding process itself failed to follow appropriate procedures.

This analysis focused on the likelihood of success prong for issuing an injunction. Hodge said the insufficiency here was enough to deny the request. However, he also mentioned the irreparable harm prong and the public interest prong. While he declared the “irreparable harm” to either party was a wash—and tie goes to the defendants here—the public interested militated against an injunction.

“The longstanding, serious problems with the current courthouse in Springfield are well known. Enjoining the defendants from proceeding with these negotiations would harm the public interest by delaying an already protracted process required for the Commonwealth to build, as expeditiously as possible, a sorely needed new courthouse in Springfield,” Hodge wrote.

As a strictly judicial assessment for the injunction, Hodge’s conclusion is not wrong. However, events are moving quickly. Balise and Patel have not been curled up in the fetal position, anxiously awaiting Hodge’s decision. Rather they continued to make their case in public.

This may not stop Liberty Junction in the end. However, Balise and Patel’s release noted the officials who have expressed disapproval of Liberty Junction site. That list has only grown since August 11.