Did Noho’s City Council run afoul of federal law–or just open its mouth? (WMP&I)

NORTHAMPTON—Last Wednesday, a judge in Northampton heard dueling motions in a rather strange case. On the surface, it may be another political, legal and cultural battle waged over Israel. The roots of the case plainly reach there. Yet, the case has an odd feature. The plaintiffs, 10 residents of Paradise City, are seeking to overturn a nonbinding resolution.

On September 18, 2025, the Northampton City Council passed a resolution in which is “urges” the city and its retirement board to divest from assets the American Friends Society identifies as linked to Israel. By all counts, no organ of the city’s government has done anything to implement it. That and the nonbinding nature should leave nothing for a court to do. Nevertheless, the plaintiffs filed suit and sought a preliminary injunction and rejected any suggestion the court lacks jurisdiction.

“The Resolution is, in substance and effect, a legislative directive to specific City officials ordering them to make investment decisions in contravention of their fiduciary duties and in violation of state and federal law,” the plaintiffs said in an opposition to the motion to dismiss.

The March complaint names the city, the City Council and Mayor Gina-Louise Sciarra as defendants. It purports to claim the resolution violates a panoply of laws. The most critical, however, is the plaintiffs’ central contention the resolution oversteps states and localities’ ability to venture into foreign policy.

At the time the suit was filed, its proponents alleged the resolution was discriminatory and stigmatized Jewish residents. A similar suit was filed in federal court against the City of Medford. However, the Medford case involves an ordinance, not a resolution.

The city filed a motion to dismiss arguing the resolution was nonbinding and the administration is treating it accordingly. On that basis, they argue the suit is not ripe. The motion also contends the resolution would be government speech anyway and would stand even if it had acted on the resolution.

“Ultimately, Plaintiffs seek judicial invalidation of a purely expressive municipal resolution. Mere disagreement with government speech does not give rise to a cognizable legal claim,” the defendants’ memorandum states.

Although different motions, the legal underpinnings of a preliminary injunction and dismissal are similar. One part of the test for a preliminary injunction is likelihood of success, which considers the legal basis for the suit. If that basis has no law behind it, a motion to dismiss could follow and succeed.

As a practical matter, the suit only relates to invested city funds that finance non-pension benefits to retirees and employees. While the suit also claims the resolution “requires” the Northampton Retirement Board to divest, municipal retirement systems are independent entities. The plaintiffs did not name the retirement board as a defendant, something the city’s briefs notes. Ostensibly saving face, the plaintiffs spun it as further proof of the City Council’s lawlessness.

Judge Groce finds himself in the midst of a subplot of one of the most fraught matters of the day. (via mass.gov)

The hearing before Judge Charles Groce, III on August 26 attracted supporters of divestment, who had rallied beforehand. Many filled into the relatively few seats inside the courtroom. That may have been, in part, because another group of citizens had filed a motion to intervene in support of the resolution.

The attorney for the interveners did not return a request for comment.

With the gallery packed, late arrivals—including WMP&I—could not observe until the tail end. A handful of individuals waited in the hall. Few seemed to realize the city had taken no concrete action had since the resolution passed.

In their complaint and motion papers, the plaintiffs cite a 2000 US Supreme Court decision that struck down a 1996 Massachusetts law relating. The legislature barred or severely limited any state entity—including municipalities—from contracting with companies that did business with Burma, now called Myanmar. The Supreme Court in Crosby v. National Foreign Trade Council said the law conflicted with sanctions (and related legislation) Congress had imposed.

There are many reasons why Crosby may not apply to Northampton. The ordinance does not regulate commerce but just states the Council’s opinion. It is only a matter of principle, however much some object. That said, it is also not clear divestment will force the Israeli government to change its policy as sanctions against South Africa ultimately did. (Some, including Israeli human rights groups, have compared the conditions in Israel-occupied West Bank and Gaza, where Palestinians’ movements are tightly controlled and subordinated to Israel’s prerogatives, to apartheid.)

For the purposes of the pending motions, none of that is relevant. The resolution aside, there is no evidence the city divested anything subsequent to the resolution. Nor did they have to. “Nonbinding” was printed on the bottom of the Council’s resolution and the mayor did not need to sign it.

As of May, the Northampton Retirement Board had not responded to the resolution, according to a review of its minutes. In response to a public records request, city treasurer’s office said there were no records showing any action taken in response to the resolution. The treasurer oversees the funds used for employee and retiree non-pension benefits.

Therefore, it is not a surprise that the city’s attorneys argue that there is nothing to enjoin.

“The Resolution is a non-binding statement of policy that merely expresses the City Council’s views on a matter of public concern. It does not, and cannot, compel action, authorize expenditures, or alter any legal rights or obligations of municipal officials or entities,” the defendants said in its opposition to an injunction.

The motion continues to list how each of the other counts in the complaint lack a legal basis.

Both the motion for an injunction and the motion to dismiss were heard at last week’s hearing. However, if the city has not done anything to actually enact the resolution, what exactly does it want the court to do?

The decision to file in Hampshire Superior Court was…interesting. (WMP&I)

The National Jewish Advocacy Council (NJAC), which brought the lawsuit on behalf of the residents, did not say about what actions the city had taken. (In filings, it has claimed that adding up investments that would be subject to the resolution is akin to enforcement.) Nor did it explain what final relief would look like if the city had done nothing.

“We are proud of our clients, Northampton residents, for having the courage to stand up to town officials who seek to illegally misuse taxpayer money for ideological purposes, and we await the judge’s determinations on the pending motions,” Rachel Sebbag, NJAC’s litigation counsel, and Douglas Brooks, the plaintiffs’ local counsel, said in a statement to WMP&I.

Northampton City Solicitor Alan Seewald declined to comment on pending litigation prior to the hearing. The city hired a Fall River municipal law firm, for its defense.  One of the attorneys representing the city, Jay Talerman, was upbeat after Groce’s questioning.

“I think he understands completely our position, which is a balance of protecting the City Council’s free speech rights on of matter of extreme public importance, as well as the fact that what they did actually has no legal binding effect, and therefore dismissal is warranted,” he said.

Talerman added that he had not heard anything new from the plaintiffs.

“In my mind, they added nothing to indicate that the City Council overstepped their bounds,” Talerman continued.

Under city procedures, Mayor Sciarra did not need to sign the resolution because it was nonbinding. (WMP&I)

In their opposition to the motion to dismiss, the plaintiffs claim that state law makes a resolution binding. They also wave off the absence of Mayor Sciarra’s signature. The substantive nature of the subject makes it a directive and not symbolic, they argue. The city replies in a brief that the plaintiffs are citing general law charters—which cities like Springfield have—and not the bespoke charter Northampton received from the legislature.

“More fundamentally, Plaintiffs’ opposition ignores both the actual City Charter of Northampton and the text of the Resolution itself,” the city’s reply brief reads “By its plain terms, the Resolution merely expresses the City Council’s position on a matter of public concern and is not a legislative act.”

The other issue before Judge Groce is the motion of some 30 residents to join the case backing the resolution. The intervenors’ memorandum gets a bit hifalutin at times. It claims that the city is merely defending the suit, but not the underlying (dis)investment policy. It would seem the intervenors are seeking an affirmative statement that Northampton divesting from Israel-related assets would not violate federal law.

During oral arguments, the judge seemed skeptical about the need for more parties. Were the court to grant the city’s motion to dismiss, the intervenors’ motion would be denied as moot. The intervenors’ motion would have the same problem the plaintiffs’ suit has. Without any reason to be in court, the court has nothing else to do. The plaintiffs’ filed an opposition to the intervenors’ motion.

It is not clear how soon Groce will rule, however if he were inclined to dismiss the suit. If he does, there will be no reason to get into the substance of denying the preliminary injunction. That, too, would be denied as moot.