ROCKPORT – In a lawsuit alleging the City of Rockport failed to enforce certain rules against commercial divers using Back Beach, parties must obey the court’s rules, a federal judge said Thursday.
A group of property owners near Back Beach in Rockport called the Back Beach Neighbors Committee filed a lawsuit against the city earlier this year alleging that “masses of divers” are destroying their enjoyment of their property, their privacy and the world threaten public safety and order and that the city has done nothing about it.
This is a violation of their civil rights under both the US Constitution and the Massachusetts Declaration of the Rights. The group also contends that the situation is both a public and private nuisance, and it violates one of the few remaining “blue laws” on the Massachusetts books – a ban on participating in “unlicensed” sports.
The city then asked a judge to throw the case back, claiming that they had no valid legal claim. City lawyers Deborah Ecker and Matthew Sirigu say the neighbors’ dispute had to do with the behavior of divers, not the city.
“It is well known that even when a community provides law enforcement agencies, there is no enforceable right to any level or type of prosecution unless state law requires positive action,” they stated in their motion to dismiss of the case.
You say the lawsuit is “out of place”.
While that motion is pending, neighbors’ attorney Michael Walsh said he wanted to “move the case forward” by engaging in the evidence-gathering process – including what he claims is a spreadsheet given to divers from town lists issued permits.
Instead of waiting for the routine process of “discovery” – exchanging evidence – Walsh filed with the city for public records.
The city denied his request on the grounds that there was no such table and even if it were because of the pending case, he should make the request as part of the case. He turned to the Foreign Minister but was unable to get the information.
Walsh then filed an application with the court for permission to question two city officials about the existence of records of diving permits.
However, interviewing potential witnesses in a civil proceeding is a step that would normally only take place after a judge determines that there are legal grounds for a trial. The city disagreed with Walsh’s request.
Walsh told the judge that he was simply trying to save time while the motion was pending.
“This is not a case of public records,” Judith Dein told Walsh. She said Walsh could pursue his appeal against public records in a state court if he chose, but she would not issue an order allowing him to question staff about the information he is seeking related to it.
“We have a civil case and there are ways to proceed,” such as filing a formal motion to get the process started early. A judge would then have to determine that there is a legitimate reason to do something, such as making an early filing.
“I have to say that this is the most awkward way to do something straightforward that I’ve ever seen,” said Dein to the lawyer. She called his request “premature and inappropriate”.
Court reporter Julie Manganis can be reached at 978-338-2521, email at [email protected], or on Twitter at @SNJulieManganis.