Appeals court orders judge to reconsider fee award in T&G police records lawsuit

Editor's note: This story has been updated to include what the city paid former head litigator Wendy L. Quinn for her work on the T&G records case since she left the law department last spring for a private firm.

WORCESTER — The Massachusetts Appeals Court has ordered a judge to consider increasing the amount of money the city must pay to lawyers for the Telegram & Gazette following the city's three-year withholding of police records that was ruled to be illegal and conducted in bad faith.

A three-member panel of the court, following oral arguments in which justices repeatedly expressed concern over the city’s legal strategy, ordered a local judge to reconsider the amount the newspaper will receive.

“At 10,000 feet, what happened here is the newspaper wanted to write about something and it took them three years to get the documents they wanted to write about,” noted Associate Justice John Englander, who, after questioning Wendy L. Quinn, the city’s former head litigator, said he understood the judge’s concern regarding good faith.

Worcester Superior Court Judge Janet Kenton-Walker, in an opinion last year, ordered the city to pay $5,000 in punitive damages and nearly $100,000 in the T&G’s legal fees after finding the city broke Massachusetts Public Records Law in withholding internal police investigations the newspaper had requested into allegations of officer misconduct.

The allegations pertained to claims a local civil rights lawyer filed in 2018 with prosecutors — including at the U.S. Department of Justice (DOJ) — that Worcester officers engaged in racial bias, used excessive force and violated civil rights.

The DOJ last November announced a civil investigation into whether city police engaged in a pattern of excessive force or discrimination based on race or sex.

It has not stated specifically what prompted its probe.

The punitive damages Kenton-Walker imposed for the city’s withholding of records were the first such damages ever to be awarded under a 2016 legislative reform aimed at strengthening the Public Records Law.

The T&G argued to the Appeals Court that the $100,000 Kenton-Walker awarded in legal fees should be closer to the more than $200,000 it had requested.

The Appeals court ruling will require Kenton-Walker to reconsider the amount she settled on. It ruled that a 50% cut Kenton-Walker applied to the number of hours the paper's lawyers billed on the case was overly broad.

"Especially in light of the city's shifting legal defenses and the significant issues that arose at each subsequent stage of the proceedings, we have great difficulty discerning how any duplication of effort here was sufficient to justify such a deep discount in the amount of fees allowed," they wrote.

The justices further referenced the “important public policy implications at stake,” noting that the law allows for recovery of lawyers fees to “act as a powerful disincentive against unlawful conduct.”

During oral arguments, Englander at one point asked Quinn whether the T&G was wrong about anything it argued, prompting Quinn to pause for several seconds before asking for clarification of the question.

“What the heck did you spend three years and hundreds of thousands of dollars fighting over if they should have gotten (the records)?” Englander replied. “If you had a defense, I’d like to understand what the defense was.”

Unsuccessful arguments

The city argued that it relied in “good faith” on an exemption to the Public Records Law that Kenton-Walker ruled was improperly applied in bad faith.

Quinn restated the city’s unsuccessful arguments during the hearing, prompting sharp questioning from Englander and, at times, other justices.

One of the city’s decisions was to withhold documents kept by police that summarize an officer’s history with internal affairs including basic information such as the number of times an officer had been investigated.

When Quinn restated the city’s defeated legal position that the information could be withheld because some of the officers were being sued, multiple justices interrupted her.

“The protective orders don’t protect you,” Englander, the former general counsel for the Massachusetts Department of Transportation, noted. “They don’t protect you from a public records request.”

Quinn responded that the situation invoked a “struggle” of the question of why the newspaper should have a “greater right of access” to police documents than the plaintiffs who were suing the department.

“Because the Legislature created the Public Records statute,” Associate Justice James R. Milkey — a former top lawyer at the Attorney General’s office who successfully argued a case to the U.S. Supreme Court — replied as he chuckled.

“And they don’t have a greater right,” Englander added. “They have exactly the same right. Anybody could have made the public records request and they would have had exactly the same right.”

The justices’ correction of the city’s claim jibed with what the T&G argued for years: That the city’s position amounted to an unlawful withholding from the public documents which it was entitled regarding the city’s investigation of its own officers.

Over the course of the litigation, the T&G’s lawyer, Jeffrey J. Pyle, noted that the city’s position shielded from scrutiny officers who had been accused of wrongdoing by virtue of the fact they had been sued.

Such a position, he argued, defeated the spirit of the Public Records Law by making available for public inspection only records pertaining to officers who weren’t being accused of misconduct.

In her decision awarding punitive damages, Kenton-Walker noted that the “plain language” of the statute the city relied on to forge its main argument “does not allow for the interpretation” it argued.

She wrote that the city, in attempting to support its erroneous interpretation with case law, “merely cherry-picked certain language from those cases, taking it out of context.”

Kenton-Walker continued that the city “appears to have ignored” language that contradicted its position that was contained within the very ruling it alleged supported its claims.

No comment

She further wrote that a pair of decisions from the Supervisor of Public Records the city used to buttress its position were “merely instances where (the supervisor) declined to opine” on a case, and likewise did not support the city’s argument.

“While the court appreciates that counsel may at times advance novel legal arguments to zealously represent a client, counsel may not misrepresent to the court what cases and other materials stand for,” she wrote.

The city declined to comment on the Appeals Court’s ruling on fees, or the oral arguments that preceded it.

Quinn left her position as head city litigator last year to work for the private city firm Hassett and Donnelly PC.

Quinn has continued to argue several cases for the city in private practice including a recent trial in which a man was awarded $8 million after a jury determined city police fabricated evidence in a case in which he was imprisoned for nearly 16 years.

The city paid Quinn $18,060 for her work on the T&G case in 2022 while at Hassett and Donnelly, figures the city provided the Telegram & Gazette on Wednesday evening pursuant to a public records request.

The T&G filed its lawsuit in 2018 after the newspaper requested records related to a lengthy complaint a civil rights lawyer filed with prosecutors, including the DOJ, regarding police.

The lawyer, Hector E. Pineiro, alleged police in some of the city’s elite units routinely violated people’s constitutional rights, used excessive force and engaged in racial animus.

He argued local prosecutors were turning a blind eye to the issues in violation of obligations to defendants set forth by the U.S. Supreme Court.

Worcester District Attorney Joseph D. Early Jr. created a “Litigation Integrity Unit” days after Pineiro’s complaint was filed, but, the office confirmed in 2021, never produced any written findings on the matter.

The U.S. Department of Justice’s Office of Civil Rights declined to release any records related to Pineiro’s complaint in 2021, saying the records pertained to an “ongoing law enforcement proceeding.”

The DOJ in November 2022 opened a civil investigation into Worcester police after finding “significant justification” to investigate whether city police routinely use excessive force or discriminate based on race or sex.

The department has not stated the specific basis for its probe, with leaders saying they examine all complaints they receive, as well as public information such as news articles and court cases.

This article originally appeared on Telegram & Gazette: Appeals court orders judge to reconsider fee award in T&G police records lawsuit