Update 1/26/02

Judge Allan van Gestel yesterday recused himself from consideration of the Runway issue.

Boston Globe: "At a hearing yesterday, van Gestel denied he had a conflict of interest, but said Massport's attempt to lift the injunction was too important to be sidetracked by allegations of impropriety."


This story ran on page B1 of the Boston Globe on 12/23/2001.
© Copyright 2001 Globe Newspaper Company.

Runway foes cry foul over venue
Say judge has ties to Massport lawyers

By Raphael Lewis, Globe Staff, 12/23/2001

Massport's bid for a new runway at Logan International Airport has quietly moved to an experimental court program that normally doesn't hear environmental cases, prompting opponents to claim it is in the wrong venue and under the control of a judge with ties to Massport's attorneys.

The runway has been blocked by a 27-year-old court injunction imposed because the Massachusetts Port Authority violated the state's Environmental Policy Act. But Massport lawyers, arguing that the case involves complex commercial issues, filed suit last summer with the new court program, called the Business Litigation Session.

The judge who took the case, Allan van Gestel, is a former colleague of three Massport lawyers.

In addition, van Gestel shares the Superior Court bench with Judge David Lowy - husband of recently resigned Massport executive director Virginia Buckingham, the runway project's biggest proponent over the past few years. Lowy also worked briefly with van Gestel at the firm of Goodwin, Proctor & Hoar.

While van Gestel immediately disclosed his relationship with two of Massport's lawyers at a recent hearing, he failed to mention his tie to a third Massport attorney, Martin R. Healy. Healy joined Goodwin Proctor on May 8, 1996, with Massport already as a client. Van Gestel, who had spent 35 years at the firm, left to become a judge soon after. His appointment was effective Sept. 30, 1996.

Runway opponents point out that the experimental nature of the Business Litigation Session means van Gestel will be the sole arbiter of the challenge to the injuction.

''It's not as if this was a random courtroom assignment,'' said William Golden, a lawyer for runway opponents not involved in the current Massport case. ''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 that he's a capable judge.''

Van Gestel, one of the most respected jurists on the Superior Court, was appointed in October 2000 as the first presiding judge in the Business Litigation Session, which Chief Justice Suzanne V. DelVecchio called ''an efficient, innovative forum for the resolution of business disputes.''

The court order setting guidelines for the program said the session was created to hear complex commercial cases, and specifically excludes ''environmental claims,'' unless they also happen to involve complicated commercial matters, such as corporate mergers or intellecual property disputes.

While cases involving governmental entities were not excluded, they had to include some of those commercial issues, the order states.

Massport attorneys, in filing the case, said it ''involves complex commercial claims relating to the proposed construction of the runway,'' but did not amplify that assertion. They did note, however, that ''Massport is a business enterprise and a government entity.''

David Mackey, Massport's chief legal counsel who was a Goodwin Proctor partner until 1994, would not comment on the authority's rationale for filing with the Business Litigation Session, saying the court documents spoke for themselves.

As to the appearance of a conflict of interest, Mackey said: ''Judge van Gestel raised these issues on his own initiative during the first conference in this 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.''

According to state law, a judge ''must disqualify himself if he or a former associate has `served as a lawyer in the matter in controversy. '''

But in his written ruling, van Gestel said he had ''made the required consultation of [my] own emotions and conscience and deem [myself] free from disabling prejudice.''

Since van Gestel made that ruling, Peter Koff, an attorney for some of the runway opponents, informed van Gestel of his former tie to Healy. Koff attributed the omission to ''this court's inadvertence or lack of knowledge.''

Koff went on to ask that the case be reassigned to the time-tested civil section of the court, saying the appearence of a conflict of interest makes ''the petitioners uneasy.''

Apprised of his time spent working under the same roof as Healy, van Gestel on Sept. 14 ruled that Koff brought up ''what may be a well-grounded objection,'' and said he would hold a hearing shortly. Massport attorneys then asked the court for a stay, which van Gestel granted. The case reopens Jan. 15.

Van Gestel has insisted in his rulings, however, that the Business Litigation Session is indeed a proper venue for the case, saying he was given broad discretion in choosing cases to hear. So far, the session has accepted about 300 cases, court officials say. It could not be determined yesterday how many, if any, involve environmental claims or governmental agencies.

Gordon Katz, cochairman of the Boston Bar Association's Business Litigation Committee, said he sees no reason why the runway case should not be heard by van Gestel. For one thing, he said, the program offers something that's totally unique at Suffolk Superior Court: the chance to have a complicated case heard by just one judge, instead of several, thanks to the revolving seat system.

Also, he said, van Gestel is ''one of the most respected judges on the Superior Court bench.''

''His integrity is beyond reproach,'' said Katz.

But Eric Oddliefson, a runway opponent from Cohasset and an investment manager, said he is troubled that van Gestel would take an environmental case, regardless of his ties to the lawyers involved.

''Look, the Boston business and legal community are interrelated, so that kind of thing can't be avoided,'' Oddliefson said. ''But it troubles me that the Business Litigation Session simply does not hear environmental cases as a matter of mandate. That's the heart of this whole issue.''

Raphael Lewis can be reached by e-mail at rlewis@globe.com.

This story ran on page B1 of the Boston Globe on 12/23/2001. © Copyright 2001 Globe Newspaper Company.

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