Richard Howe Substack: Jan 7, 2024

On Tuesday, January 2, 2024, at 10 am, the newly elected Lowell City Council took the oath of office at the Lowell Memorial Auditorium. City Clerk Michael Geary chaired the event until the new Mayor was elected. Geary explained that the inauguration ceremony had been moved to the Auditorium when the Council was expanded from nine to eleven members to ensure that there would be plenty of room for family, friends, and well-wishers. (With the last inauguration also happening during a spike in Covid, the additional space of the Auditorium versus the City Council Chamber would be safer for everyone).

Lowell District Court Justice Stephen Geary (the cousin of Clerk Michael Geary; both the grandsons of Mayor James Geary) administered the oath of office to Councilors.

Next came the election of a new Mayor. During the roll call, each Councilor stated the name of their candidate for Mayor. Here’s how that went:

  • Sokhary Chau voted for Dan Rourke
  • John Descoteaux voted for Dan Rourke
  • Erik Gitschier voted for Rita Mercier
  • Wayne Jenness voted for Dan Rourke
  • John Leahy voted for Dan Rourke
  • Rita Mercier (I think, but it was very hard to hear) voted for Dan Rourke
  • Vesna Nuon voted for Dan Rourke
  • Corey Robinson voted for Rita Mercier
  • Dan Rourke voted for himself
  • Kim Scott voted for Dan Rourke
  • Paul Ratha Yem voted for Dan Rourke

With that, Clerk Geary declared that Dan Rourke was elected Mayor of Lowell and immediately called on Judge Geary to administer the Mayoral oath.

(Traditionally, Councilors who vote for an unsuccessful candidate for Mayor ask to change their vote to the winning candidate after the issue has been decided but before the vote is formally “recorded,” presumably as an expression of unity. However, this does not always happen, which was the case this year with Gitschier and Robinson allowing their initial votes for Mercier to stand. Geary moved rapidly from declaring Rourke the winner to the administration of the oath, so it is unclear whether not changing their votes was a result of not having a clear opportunity to do so, an expression of dissatisfaction with the result, or something else. In any case, it’s not a big deal.)

Mayor Rourke then gave his inaugural address. He said that as a life-long resident of the city, being Mayor was “the honor of a lifetime.” He also expressed deep appreciation for the support of his family which he said has allowed him to devote time to public service. He then praised each of his fellow Councilors and said he hoped that they could continue to build upon the three pillars that have characterized Lowell: inclusivity; diversity; and the relentless pursuit of progress.

The next task was the election of the Council’s Vice Chair. Paul Ratha Yem won that seat with the unanimous support of his colleagues.

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The evening of the inauguration ceremony the City Council held its first meeting of the new term. The agenda was light with only four motions, none of which generated much discussion.

However, when speaking on her motion for a report on how much revenue the city was deriving from Constables, Councilor Rita Mercier pointedly stated at least twice that this was her second request for the same information and that if it were not forthcoming, she would make a third request.

Constable is an ancient office that still serves an important role in the judicial system. In Massachusetts, constables are appointed by city government (in Lowell’s case, by the City Council), to serve civil process within the city. Civil process includes things like eviction notices, subpoenas, and some civil complaints. Constables are independent contractors who charge a fee for their service. The fee is paid by the litigant for whom the service is performed (for example, when serving an eviction notice, the Constable’s fee would be paid by the landlord).

According to Councilor Mercier, state law requires Constables to pay 25 percent of the fee they receive for civil process service to the city. My guess is that is not being done, hence Mercier’s understandable persistence in seeking a report.

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Normally, I do not report on members of the public who speak at Council meetings, but circumstances warrant an exception this week. A person identifying herself as Laura Ortiz spoke on several motions and  public hearings. She was concise in her remarks which largely urged Councilors to follow the law more closely and to provide greater transparency.

An existing Council rule requires a member of the public who speaks at a Council meeting to first state their name and address for the record. When asked to do this on her first trip to the podium, Ms. Ortiz identified herself as “a resident of Lowell.” In her second trip to the podium, she seemed taken aback when either the Clerk or the Mayor again asked her for her name and address (which is standard procedure, even when a person has previously spoken). This time, Ms. Ortiz identified herself as “a resident of Massachusetts” and made her remarks. In her third trip to the podium, the same exchange occurred except she said she was a “citizen of the United States.” She then made her comments on whatever matter was on the floor, but when she finished, Councilor Mercier asked for a point of order and queried the City Solicitor if the Council rules did indeed require a speaker to state their address. When Solicitor Williams confirmed that, Mercier turned to Ms. Ortiz and asked her to give her address in accordance with the rules. Although she did not seem to return to the podium (the camera never shifted to her), Ms. Ortiz could be heard saying something like she had an exemption from that rule. The matter was dropped at that point, and Ms. Ortiz offered no further remarks at the meeting.

This interchange is relevant because that same morning, the Lowell Sun reported that a person named Laura Ortiz had filed an Open Meeting Law complaint against the City Council for, among other things, tabling motions made by Councilor Corey Robinson.

According to the Sun, the complaint was filed on December 15, 2023, and includes the following:

“On or before 11/20/23, Lowell City Councilor believed to be Wayne Jenness outside of the Open Meeting Law process, called a quorum of (9) peer City Councilors to ask them to make a statement and also to pressure fellow City Councilor Corey Robinson (a minority federal court decree ward duly and legally elected city council representative) into resigning his seat as the elected representative of Centralville….”

Violations of the Open Meeting Law are within the jurisdiction of Attorney General Andrea Campbell. Here is what the AG’s website says about Open Meeting Law complaints:

An Open Meeting Law complaint must first be filed with the public body that is alleged to have violated the law. G.L. c. 30A, § 23(b). The public body must review the complaint, take remedial action, if appropriate, and send a response to the complainant and to the Attorney General. G.L. c. 30A, § 23(b); 940 CMR 29.05(5). A complainant who is unsatisfied with the public body’s resolution of his or her Open Meeting Law complaint may file the complaint with the Attorney General and request review of the complaint. G.L. c. 30A, § 23(b); 940 CMR 29.05(6). The Attorney General will then review the complaint, investigate as needed, and determine whether there has been a violation of the Open Meeting Law. G.L. c. 30A, § 23(c).

Notably, at the end of Tuesday’s meeting, the Council voted to go into Executive Session to discuss “pending litigation” which most likely was this complaint.

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The action alleged to be a violation of the Open Meeting law – the tabling of Robinson’s motions – was a response by fellow Councilors to the criminal case pending against Robinson. That matter is scheduled to be back in the Lowell District Court this week.

Here’s a recap of how Councilors have handled Robinson’s post-arrest motions. Also, I’ve included some items from December 19, 2023, Council meeting which I’ve not previously written about.

While Robinson was physically present at this Tuesday’s inauguration ceremony and Council meeting, he participated in the three prior Council meetings via Zoom and missed the first meeting after his arrest. Although he filed no motions for this week’s meeting, he filed multiple motions on each of the three Zoom meetings. At the first two, a majority of his colleagues voted to table his motions, so no action was taken on them.

At the December 19th meeting, Robinson’s supporters on the Council, Erik Gitschier and Rita Mercier, both attempted to pre-empt further tabling of Robinson’s motions. Early in the meeting, Gitschier gained the floor on a point of personal privilege and, citing the language of Robert’s Rules of Order (the procedural handbook that governs the operation of Council meetings) gave his opinion that the manner in which Robinson’s previous motions had been tabled was an improper use of that device.

Mercier spoke next and also sought to prevent the tabling of Robinson’s motions, only she cited a “new development” in the case as the reason to relent. Here’s what Councilor Mercier said:

In light of the new development, such as what I heard on WCAP this afternoon, the charges against the accused from the victim, who, and I quote, said “He is innocent of what he is accused of” as stated by the victim. Having said that. So before we. I’m just asking. Before we table the motions of our colleague. I always felt that you’re innocent until proven guilty and we’ve never come to that point yet. And I don’t want to reiterate what I said before, but in view of what we, of what I just stated, which I heard on the radio, I feel, if we could just let our colleague talk about his three motions when the time comes. I find it very confusing when, ah, my colleague, his motions are tabled but yet he can talk about anybody else’s motion. That doesn’t make sense to me. He can talk about everybody else’s but he can’t talk about his own. He’s not making a statement that isn’t relevant to those that he represents until such time as he goes to court, and that hasn’t happened yet. And it isn’t because I favor this particular colleague. What I am saying for him is what I would say for every single member on this council that I feel was treated unfairly before time came that they were either found innocent, not guilty or guilty, and that’s what I’m saying. So I would just ask if we could take a roll call on allowing his motions to be heard. That’s all I’m asking.

[Mercier’s remarks begin at 19:35 of the recording of the meeting found on LTC’s YouTube channel].

In domestic violence cases, it’s common for the victim to recant their initial accusations of violence. That could be because the initial victim statement was untrue or an exaggeration, or it could be that the victim still holds feelings of affection for their assailant and does not want the assailant punished by the criminal justice system. In still other cases, the victim fears the assailant but doubts the criminal justice system can protect them against future violence and does not wish to provoke the assailant by assisting in the prosecution.

In Robinson’s case, In addition to all the possibilities listed above, it is also possible that the victim would assert their Fifth Amendment right against self-incrimination and not be available to testify in the case against Robinson. Although the Lowell Sun reporting has been steadfast in not identifying the victim, the newspaper has reported that the victim is facing their own criminal charges in an earlier case in which Robinson was involved, most likely as a witness.

Most people assume you can “take the Fifth” in a multiple-choice fashion, choosing which questions to answer and which to not answer. That’s not how it works. “Taking the Fifth” is all or nothing: when a witness is called to testify, if any of the lawyers involved know or suspect that the witness may incriminate themself in any way during their testimony, the lawyer is supposed to bring it to the judge’s attention ahead of time. The judge then holds a preliminary hearing and determines whether it is likely to be a proper invocation of the Fifth Amendment. If it is, and the standard is very liberal, then the witness is not allowed to testify – at all. Because the witness in the Robinson case faces their own criminal charges, my guess is they won’t be available to testify in Robinson’s trial.

However, that does not mean the case against Robinson will be dismissed. Remember, it is Commonwealth v. Robinson, not The Victim v. Robinson. If the District Attorney has sufficient evidence to go forward with the trial without the victim’s testimony, then the trial can still be held, and the defendant can still be found guilty provided there is sufficient incriminatory evidence from other sources. Based on prior Sun reporting, there is a resident of the apartment complex who watched Robinson chasing the screaming victim; there is the police observations and photographs of the victim shortly after that showing physical injuries; and there is Robinson’s reported statement (as relayed by his previous attorney) that was something like, he didn’t touch the victim but only knocked a bottle out of her hand. From those three pieces of evidence, the prosecutor would argue that the judge (or jury if it’s a jury trial) should infer that Robinson assaulted the victim and caused her harm.

No one knows what will happen when Robinson’s case returns to court, but based on the publicly reported facts, the scenario hypothesized in the previous paragraph is just as likely an outcome as is one where the charges are dismissed because the victim recanted their initial statements.

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