Plaintiffs Decry Venue Decision in Boston Airport Case

DECEMBER 23, 2001

Opponents of a new runway at Logan Airport are criticizing the choice of an experimental court session and a state Superior Court judge who is a former law firm colleague of three Massachusetts Port Authority attorneys.

Construction of the new runway, which Massport says is needed to reduce delays at busy Logan, has been prevented by a court injunction obtained by opponents 27 years ago on environmental grounds. Boston Mayor Thomas Menino and a number of communities in Logan's takeoff and landing paths have long voiced opposition to the plan.

But Massport lawyers, claiming the case involves complex commercial issues, has filed suit in a new court program, the Business Litigation Section. Judge Alan van Gestel, who presides over the section, has disclosed he worked at a law firm with two Massport lawyers and has been informed he also worked with a third. The Business Litigation Section was established in 2000 as a forum for resolving business disputes, and van Gestel is its first presiding judge.

"It's not as if this was a random courtroom assignment," William Golden, an attorney for runway opponents not involved in the case, told The Boston Globe. "If that were the situation, things would be different. But there is definitely an issue of impropriety here, even though Judge van Gestel has a very fine reputation, and no one would doubt he's a capable judge."

The court order setting guidelines for the program said it was created to hear complex commercial cases, and specifically excluded z'environmental claimsz' unless they involved complicated commercial matters like corporate mergers or intellectual property disputes.z,p. In rulings on the case to date, van Gestel has said the Business Litigation Section is a proper venue for the case, saying he was given broad discretion in choosing which cases to hear. Van Gestel, in a written ruling, said he had "made the required consultation of (my) own motions and conscience and deem myself free from disabling prejudice."

Following that ruling, Peter Koff, an attorney for some of the runway opponents, informed van Gestel that he had failed to disclose he had worked with Massport attorney Martin R. Healy at the firm of Goodwin Proctor in 1996, before he was appointed to the bench. Koff attributed the omission to "this court's inadvertence or lack of knowledge" and called for the case to be reassigned to the civil section. Van Gestel ruled Koff had brought up "what may be a well-grounded objection" and said he would hold a hearing on the matter.

David Mackey, Massport's chief legal counsel, said "Judge van Gestel raised these issues on his own initiative during the first conference in the case. None of the parties who were present objected at the time. And he subsequently issued a written ruling on the matter, which reflected that he had concluded that he was free from any bias."

Source: Associated Press