Defense Verdict Kennie v. Town of Dennis

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Defense Verdict: Kennie v. Town of Dennis

On August 7, 2009, a Barnstable Superior Court jury returned a verdict in favor of the defendant, Dennis Shellfish Constable Alan Marcy, following a one-week trial. The case, captioned Kennie v. Town of Dennis, C.A. No. BACV2002-00293, was successfully defended by Attorney John J. Davis. Suit arose out of plaintiffs’ application to the Dennis Conservation Commission for a permit to construct a private dock from their property into Bass River. The Shellfish Constable, plaintiffs alleged, was so opposed to the dock proposal that he threatened to do “whatever it takes” to defeat plaintiffs’ application, even going so far as to “salt” the proposed site by distributing quahogs into the waters of Bass River, thereby tainting the results of a shellfish survey later conducted by the Massachusetts Division of Marine Fisheries (“DMF”). After the DMF confirmed that plaintiffs’ “preferred” dock location was a viable shellfish habitat, plaintiffs claimed they were forced to abandon the site and select another, resulting in additional delay and expense. Several months later, the Conservation Commission eventually approved plaintiffs’ revised application and the Kennies got their dock.

Prior to the public hearing on their revised application, plaintiffs filed suit against the Shellfish Constable under M.G.L. c. 12, §§ 11H & 11I, the Massachusetts Civil Rights Act (“MCRA”), alleging the Shellfish Constable interfered or attempted to interfere with their constitutional and statutory rights to develop their property through “threats, intimidation or coercion.” Dismissing the “quahog-planting” allegations as absurd, the Town and Mr. Marcy believed plaintiffs’ real purpose in bringing the suit was to pressure the Conservation Commission into granting the dock permit. The Superior Court subsequently dismissed plaintiffs’ claims on a motion for summary judgment (Kane, J.), and the Appeals Court affirmed. Kennie v. Natural Resource Dep’t of Dennis, 69 Mass.App.Ct. 158 (2007). In its ruling, the Appeals Court concluded that no reasonable person would have felt threatened, intimidated or coerced in the context of plaintiffs’ dock permitting process. Id., 69 Mass.App.Ct. at 163. On further appellate review, however, the Massachusetts Supreme Judicial Court reversed, ruling that the summary judgment record raised questions of material fact as to whether the Shellfish Constable’s words and conduct interfered with plaintiffs’ constitutional or statutory rights by means of “threats, intimidation or coercion.”Kennie v. Natural Resource Dep’t of Dennis, 451 Mass. 754, 755 (2008).

At trial, plaintiffs offered expert testimony that the results of the DMF shellfish survey could not be squared scientifically with those of a similar survey conducted six months earlier by plaintiffs’ own surveyor. Plaintiffs also called to the stand an eyewitness who testified that, several days before the DMF survey, he saw the Shellfish Constable “doing something” in the waters off of plaintiffs’ property. Defendant’s expert rebutted plaintiffs’ scientific evidence, testifying that, based on the methodology employed by plaintiffs’ surveyor, the results of the earlier survey most likely under-reported the number of shellfish present at the site at that time. And, during Mr. Marcy’s testimony, the Shellfish Constable admitted he was present at the site several days before the DMF survey for the purpose of surveying the number of soft shell clams in the intertidal zone.

The jury deliberated for one hour and twenty minutes before returning its verdict. In response to special questions, the jury found that, in applying for a dock permit, plaintiffs were exercising a right protected under Massachusetts law. Nevertheless, Mr. Marcy did not interfere or attempt to interfere with that right. Ironically, the jury never reached the issue of whether plaintiffs were the victims of “threats, intimidation or coercion,” the issue expressly preserved by the SJC one year earlier. The plaintiffs did not pursue another appeal.