Editorial Roundup: New England

Portland Press Herald. March 31, 2024.

Editorial: Greater housing opportunities will require lateral thinking

New creativity needs to be brought to bear on the housing crisis and the private sector has a valuable part to play.

If we’re going to solve Maine’s housing crisis, all hands have to be on deck.

At a conference last week on the subject of affordable housing, Gov. Janet Mills sent a message along these lines this to Maine towns – and to Mainers.

“There is nothing to fear,” the governor said in remarks opening the event. “We are all in this together. The whole state needs you to do your part.”

Mills was referring to the embrace – or, indeed, the rejection – of new affordable housing developments across the state. Speaking later in the day, Greg Payne, the governor’s senior housing adviser, doubled down.

“So long as we continue to operate in a system where the comfortably housed get to decide where and when others are comfortably housed, we can’t be surprised (by resistance),” Payne said.

He’s right.

Until the system shows more promising signs of change, however, what can be done? Resourceful, creative actions that maximize existing buildings and land. There have been some decent examples of late.

We learned last week about a proposal by state lawmakers to convert three disused courthouses into affordable housing complexes. As it stands, the vacant buildings in York, Biddeford and Sanford cost the state $350,000 in maintenance annually.

The proposal to transfer the properties to local housing authorities for a “nominal” cost makes eminent sense, and the idea itself should be applauded. A Biddeford lawmaker referred to the proposal as a “no-brainer.” The response of the executive director of the Biddeford Housing Authority, Guy Gagnon, brought home the pitiful conditions he and his colleagues around the state have been forced to work under for years.

“We’re way ahead of the game on the cost spectrum as far as creating housing there (in the courthouse building),” Gagnon told Maine Public. “That’s not something we have happen to us very often. Usually we’re redeveloping the worst building in town.”

The move shouldn’t be as unusual as it is; as we reported last week, state law gives MaineHousing and local housing authorities first right to purchase state property, it’s just that this right is very seldom exercised – the state’s offerings generally aren’t in the right location or conducive to retrofitting.

Something like the courthouse proposal won’t come along everyday. The good news is that in order to be a valuable part of the housing creation mix, it doesn’t have to.

At the housing conference last week, it was announced that – thanks to a recent bill authorizing more bonds for financing the construction of housing – MaineHousing will finance the construction of 105 affordable units for rent in Hallowell, Newcastle, Rockport, Rumford, Sanford and Waterville. A combination of sources of land, structures and developers is what will help solve Maine’s housing crisis. There is, as we are by now painfully aware, no panacea.

In Kennebunk earlier this month, there was landslide support for a ballot question asking residents if they supported permission for Kennebunk Savings Bank to use land it owns and does not use for a 70-unit affordable housing development for older Mainers.

With 2,226 votes in favor and 412 votes against, voters approved a zoning exception that will pave the way for the joint project of the local bank and the nonprofit housing provider Avesta Housing. The housing is designated for those aged 55 or older who make up to 60% of area median income.

Bradford C. Paige, Kennebunk Savings Bank chief executive and president, told the Press Herald last July that he was motivated to do something worthwhile with the undeveloped land. This confluence of resources, vision and motivation is, again, rare – but we don’t doubt that there’s scope for more of it around the state.

“The approval is one significant step forward of many needed to secure housing stability for older adults in our communities,” Paige said in a statement after the vote. “The overwhelming support demonstrates that the people of Kennebunk are here to look out for each other – neighbor helping neighbor. And we’re proud to be one of those neighbors (who just happens to be a bank).”

Just as is in the interest of the state to relinquish state-owned space that would be put to far better use as housing, it’s in the interest of business owners and employers to identify ways in which they might support housing affordability and, by connection, the local economy and the people behind it.

While Maine continues its work on conditions that allow more housing to be built, inventive initiatives like these deserve to be respected – and emulated.


Bangor Daily News. April 2, 2024.

Editorial: Maine needs significant action to address shortage of legal representation

Gov. Janet Mills recently signed a bill passed by lawmakers to open two new public defender offices in Maine, serving Aroostook, Penobscot and Piscataquis counties. Lawmakers last year also increased the hourly pay for attorneys that take on the cases of low-income defendants.

Despite efforts like these, the number of defendants without representation continues to grow.

Last month, the Commission on Indigent Legal Defense counted more than 750 criminal cases where defendants lacked lawyers.

That’s a massive jump from the 74 cases counted by the commission in October, which was already a problem.

The result is often defendants spending time in jail or more time in jail while they await court dates, often for crimes that may not require incarceration if they are ultimately found guilty.

This points once again to the need to speed up efforts to build up a full network of public defenders in Maine, which had been the only state without such a system. At the same time, elected leaders are right to also look for ways to strengthen the indigent defense program until it can be replaced by a robust number of public defenders.

“I really think the Legislature is going to have to wake up and realize that this is something that needs action, like now,” a lawyer Mitchel Roberge told the Bangor Daily News. “Something really, really significant has to be done now, that’s going to guarantee that people are immediately coming on board to take cases.”

Like others, he noted that the fees paid to lawyers that take on these cases are too low. The Legislature recently raised the hourly rate to $150 to encourage more lawyers to work with low-income clients. But when attorneys can make $300 or more per hour in private practice, this is not enough of an incentive to encourage more lawyers to do this work, Roberge said.

“The question really for us is, ‘Why would somebody want to practice an indigent criminal defense unless you have a passion for it?’” Roberge said. “There’s really no reason that you would want to get involved in it. You’re making half of what you could charge otherwise.”

As Joan Fortin, the CEO of Bernstein Shur, explained to the BDN editorial board last year, the landscape of lawyering is changing. Years ago, many lawyers wanted to be on their own or part of a small firm. These lawyers formed the backbone of the state’s indigent defense system.

Increasingly, lawyers value firms where they have access to more training, benefits and colleagues. Therefore, a system that relies on independent lawyers or lawyers from small firms to take on these cases is outdated, Fortin, who has long been involved in attorney recruitment at Bernstein Shur, said in September.

In addition, Fortin noted, the lawyers at her firm are not well versed in criminal and child welfare law, although the firm has committed to supporting lawyers who want to be rostered and trained to help with these cases, in addition to the pro bono work that the firm’s lawyers already do.

A former Maine Superior Court judge, Paul Fritzsche, and his son, Tom Fritzche, the head of Pine Tree Legal Assistance, in a BDN column last week made a persuasive case for more support for low-income Mainers involved in civil litigation as well. A lack of representation in such cases can have long lasting negative impacts.

In addition to the shortage of attorneys, there is a shortage of prosecutors and court officials that also contribute to the backlog of cases across the state’s court system.

Mills and legislators have devoted a significant amount of attention and financial resources to many aspects of Maine’s legal system. But to ensure that Maine meets its constitutional obligations, that work is far from over.


Boston Globe. April 3, 2024.

Editorial: Lawsuits challenge how those internet cookies crumble

But efforts to use the Massachusetts Wiretap Act against two hospitals is a cynical misuse of an admittedly outdated law.

Is clicking on a website and agreeing to allow those ubiquitous cookies the same as having someone bug your phone?

And can a 1968 Massachusetts law intended to prohibit such invasions of privacy — a law that predates by decades the rise of internet searches — be used as a legal cudgel against some of the state’s most respected institutions?

The Massachusetts Supreme Judicial Court will be asked to wade through that legal maze, defining what privacy means under the 55-year-old Massachusetts Wiretap Act and whether it applies to hospital websites that share and transmit data to third parties such as Meta Pixel or Google Analytics.

The case being heard Wednesday by the high court was brought against New England Baptist Hospital and Beth Israel Deaconess Medical Center by a Revere woman — but as lawyers for the two hospitals note in their brief, “These are two among at least two dozen putative class action lawsuits that plaintiffs’ lawyers have recently commenced against Massachusetts hospitals and other organizations, seeking to weaponize the Wiretap Act to create massive liability for website owners arising from website analytics and advertising technologies (‘AdTech’) that are ubiquitous in the 2020s.”

Why hospitals? Well, as the old joke goes, why did Willie Sutton rob banks? Because that’s where the money is.

In fact, when confronted with a similar class action lawsuit filed in 2019 by two anonymous parties, Massachusetts General Hospital, Brigham and Women’s Hospital, and Dana-Farber settled the case for $18.4 million. And while denying any wrongdoing, they said they settled to avoid protracted and costly litigation.

Like the cases at hand, there were no allegations of a breach of patient medical or financial records, simply the collection of data.

But the named plaintiff in the current case alleges that the “intercepted communications provided a rich source of information that bolstered Google and Facebook’s ability to target advertising to individual consumers.” As a friend of the court brief filed by the Greater Boston Chamber of Commerce notes, “the plaintiffs do not even allege any actual harm resulting from the alleged violation of the Wiretap Act.”

The Chamber brief, filed in conjunction with the Massachusetts Nonprofit Network, said that while the two organizations “share the concern of all Massachusetts citizens and taxpayers over protecting consumer data and privacy,” that a “jerry-rigged interpretation of the 1968 Wiretap Act, which could not possibly have been intended to regulate the use of advertising technology on the internet, is not the way to do it.”

The fact is that the state’s Wiretap Act — which, despite its name, covers more than just government surveillance — is tougher than its federal counterpart and the law in some other states. Except for court-authorized wiretaps by law enforcement (which are rare), the law requires both parties to consent to being recorded. Its definition of “wire communication” has been broadened in recent years (through court decisions), as the hospitals’ brief notes, to protect people from secret eavesdropping on email, text messages, or videoconferencing. That makes sense. Mobile phone calls are the logical successors to landlines, and text messages and emails “successors to interpersonal telegrams.”

But the brief adds, “What Plaintiffs seek here: to interpret the language of this pre-internet age statute in a way that creates unintended, absurd, and calamitous internet age consequences.”

It even cites the privacy notice used by the hospitals at the time the suit was filed last year was the very same used by the Mass.gov website for a section where people can search under the heading Treatment and Recovery Services.

The scary fact is that those two dozen cases still pending here — most filed against hospitals or health care practices — and awaiting some kind of definitive answer from the SJC on the cases being heard Wednesday represent merely one branch of a huge and growing national “industry” — one in which any business or nonprofit could be vulnerable.

The Philadelphia Inquirer faces a federal lawsuit filed by two subscribers to its website for its use of Meta Pixel tracking software.

BJ’s Wholesale Club faces a class action suit filed by Joe Alves alleging the store’s use of a particular computer code, known as Session Replay Code, which tracks keystrokes and mouse movements and replays them for analysis violates the Wiretap Act. The rather busy Alves also filed a suit against Goodyear Tire and Rubber Co. in federal court in Boston for using the same technology. The latter was dismissed for “lack of personal jurisdiction.”

The cases at hand have little to do with requiring sensible policies on regulating the collection of information by the nation’s internet giants — something that Congress has been wrestling with for years without a great deal of success or progress. Hitting up the region’s major health care institutions for millions of dollars in penalties won’t impact the bottom lines of Google or Meta one bit. It’s not even about whether those often overlooked privacy policies offer sufficient disclosure. They remain a work in progress and some legislative guidance would help.

What this is about is a cynical misuse of a 1968 law — one that admittedly could use a legislative update to the current hodgepodge of case law that has grown around it in an attempt to adapt it to the 21st century. But broadening its scope beyond recognition isn’t some backdoor approach to internet regulation. It’s merely an open door to litigation without end.


Barre-Montpelier Times Argus. April 3, 2024.

Editorial: Dark day ahead?

Apparently, we scare easily these days.

The April 8 solar eclipse, while rare and the center of our immediate attention, should not be a cause for concern. While we can expect an influx of thousands of visitors to the state (especially with a decent forecast), that is a good thing. It is a potential economic shot in the arm.

It is true we should be prepared, but we don’t need to prepare for the worst. As a state, we need to embrace the opportunity.

(We recognized the importance of this event and are putting together a special pullout section in our April 6-7 Weekender edition that will highlight events, features and advice about eclipse-watching.)

While communities across the band of totality should be thinking about potential risks, some are taking the “risks” very seriously.

In Plainfield, for example, the Emergency Management Director and Hazard Mitigation Committee posted some suggestions that prepare for the worst and seem only to hope for the best.

“Prepare your household for the possible disruptions, traffic jams on Route 2, and possible loss of cellphone service,” it states. It warns of people leaving their vehicles (while on the roadway) and lost individuals wandering onto properties.

“It could be a bit nuts, especially when the eclipse ends. They all will likely get back into their cars and try to head home at the exact same moment,” the notice warns. “All of them will want to hit the highway at the same time. ... Be prepared for an unusual and possibly very disruptive day.”

It seems to assume widespread panic, ignorance and ill-preparedness.

Some of the committee’s suggestions (in their words):

— “Stock up ahead on anything you might need for your household (medications, food, pet supplies) before that day. Every food and necessities outlet will be jammed, and some items will be massively sold out.”

— “Stay home or walk. Work from home if you can. And especially stay off the state highways and the Interstate.”

— On the day, “Stay off your cellphone unless necessary. Try to use landlines whenever possible … We may lose cell service all together.”

— “Try to stay polite to people who ... in many cases ... may well have caused their own difficulties. Be prepared for knocks on your door ... asking for water, help or access to your bathroom. You may see people wandering into your field, parking lot or big front yard, if you have one. Most of them will be looking at the sky and not where their feet are walking. Try to be patient.”

— “Be as helpful as possible. Multitudes of people … will be in Vermont for possibly the first time. They don’t know about our roads, our marginal cellphone service, our absence of public toilets and the scarcity of police to help them. They may not have maps and be very unsure how to get anywhere (including home).”

— “Call 911 (from a landline) when you see someone in dire trouble. They will probably be panicking.”

— “To be safe, the town is opening its Emergency Operations Center at Town Hall.”

The American Red Cross was less Zombie Apocalypse-like. It confirms the large influx of people to Vermont could lead to major traffic issues, potential fuel shortages and communication system disruptions due to heightened demand. It, too, will be monitoring the situation, keeping tabs on first responder agencies.

“With all eyes on the sky, the Red Cross stands ready to support our emergency management and first responders on the ground as hundreds of thousands of eclipse viewers descend on the state. To help everyone stay safe, we are asking those viewing the eclipse to be prepared. That means packing an emergency kit, making a reunification plan with your group in advance, heeding all local warnings and keeping an eye on the forecast,” said John Montes, regional disaster officer, Red Cross Northern New England Region.

Whether there is an eclipse or not, their recommendation for an emergency kit includes: water, nonperishable food, a flashlight, battery-powered radio, First Aid kit, medications, supplies for an infant if applicable, a multipurpose tool, personal hygiene items including toilet paper, cellphone chargers, extra cash, blankets, maps of the area and emergency contact information. (Remember that looking directly at the sun is unsafe. NASA recommends eclipse eyewear with an IOS compliance label, or standard, of 12312-2.)

Being prepared comes down to using common sense. Let’s assume the folks who are coming to Vermont to witness this moment will not be here to purposefully be disruptive. There will be more people around. They will not be here to eat our brains.