Review of the Supreme Judical Court Hearing on the Acton CPA Lawsuit

September 8, 2017: Yesterday morning, the Massachusetts Supreme Judicial Court heard oral arguments concerning the ongoing CPA lawsuit in the town of Acton. The below summary of the hearing was provided by Tad Heuer, a partner at Foley Hoag who specializes in Massachusetts administrative and land use law. Tad and his colleague Andrew London filed an amicus brief on behalf of the National Trust for Historic Preservation in support of the Town of Acton.

On Thursday, September 7th, the Supreme Judicial Court heard arguments in Caplan v. Acton, the legal challenge brought by several taxpayers to the Town of Acton’s grant of CPA funds to the Acton Congregational Church (ACC). Both sides agree that the CPA funds will be used to restore certain key historic exterior features of the ACC’s state register-listed buildings.  The disagreement centers on whether public funds can be granted to an active house of worship, even where those funds are used exclusively for historic preservation purposes. Although oral arguments at the SJC are scheduled for 15 minutes per side, the Court heard arguments for nearly an hour.  The justices were actively engaged in questioning the attorneys for both sides.

Counsel for the plaintiff taxpayers focused his argument on the language of the Massachusetts “anti-aid” amendment, arguing that it categorically prohibits the grant of public funds to an active house of worship.  Several justices noted that the SJC’s previous interpretations of the anti-aid amendment are more nuanced, and pressed plaintiffs’ counsel to explain how the plaintiffs’ position was consistent with SJC precedent. Other justices observed that even Old North Church in Boston— itself an active house of worship — has received public historic preservation funds, and appeared skeptical of plaintiffs’ claim that the courts should distinguish between structures like Old North and structures like the ACC by attempting to discern whether their “predominant use” is more historic or more religious.

Counsel for the Town of Acton stressed that the key legal question is not whether the applicant is a religious organization, but whether the grant funds a “historic resource” as defined by the CPA statute, and is awarded based on neutral criteria. She noted that there is no dispute that the ACC meets the definition of a “historic resource,” and that there is no claim that Acton awarded the CPA grant for any reason other than historic preservation.  Several justices probed at length as to whether the mere fact that such a CPA grant would assist a historic religious structure constitutes impermissible church-state entanglement, thus potentially violating the anti-aid amendment. Acton’s counsel emphasized that long-standing SJC precedent establishes a three-part test for evaluating whether a given public grant is consistent with the anti-aid amendment, and that the CPA grant to the ACC complies with that test.

The practice of the SJC is to issue written decisions within 130 days of the oral argument, meaning that a ruling is anticipated by mid-January 2018.

Further Resources:

>> Case Docket for GEORGE CAPLAN & others vs. TOWN OF ACTON, SJC-12274

>> SJC Video Archives: Search for Docket #12274 for a recording of the full hearing

>> National Coverage of the hearing by Associated Press

>> Editorial on the case in the Gloucester Times