_        About the hearing on April 5, 2012

Much as I tried, I was unable for the past several days
to suppress ruminating about the impending hearing in
the Nantucket case. It occurred today. 

Only yesterday, I had composed a summary of my case as
I would present it to the Court:
http://home.earthlink.net/~ej1meyer/diary12/d120404.00

Then, last night, when, preparing for today's hearing,
I reviewed the recent filings in the case:
http://home.earthlink.net/~jochenmeyer/litigation/litig_index.html
items nos. 12 through 20, I concluded that my written arguments
were so complete that an attempted summary, would only weaken them;
and I resolved that when I was called on to speak I would refer the
Court to the documents on file and offer to answer any questions.

As usual, I was early. At 11:45 a.m. I arrived at Government Center.
It was a beautiful clear day in early April, and I decided to walk
past Faneuil Hall and Quincy Market to the Harbor whose waterfront
has been tastefully landscaped. I like to observe the boats of
different sizes as they criss-cross the bay. I arrived back at the
courthouse at 1 p.m.  The hearing was set for 2 p.m.  Mine was the
third of four cases.

My decision not to offer any argument was correct. Judge Mcdonald never
asked any questions. He wasn't hostile, he was, as a matter of fact,
quite friendly. Originally he had been prepared to rule against me.
But now, the record made it impossible for him to side with Nantucket, 
and he couldn't bring himself to rule against the government. He said
he had read only some of my filings.  He seemed to recuse himself when
he said didn't know anything about plumbing. I offered to help.
"I wish I could teach you," I said. He commented: "You should have
been a lawyer rather than an ophthalmologist."

He proposed sending the case back to the Board of State Examiners
of Plumbers and Gas Fitters.

I explained to Judge Mcdonald that I was about to turn 82 years old,
and for practical purposes I had lost the case by lapse of time,
since I would not be able to perform the necessary physical labor
required for completing the house. Nonethless I considered myself
privileged and found it very satisfying to litigate in his court.
I said that I expected the case to go on indefinitely and that I
was looking forward with pleasure to returning to these status
hearings regularly to the end of my life.

Nonetheless, I objected. I read to Judge Mcdonald from the Appeals
Court Footnote 13:

"Any decision resting upon the inspection will remain subject to
review by the Superior Court and appellate courts under the standards
of the Administrative Procedure Act, G.L. c. 30A, § 14()(a)-(g)"

and argued that the Appeals Court did not intend that three engineers
and three plumbers and one member from the public should be expected
to apply the standards of the Administrative Procedure Act. I argued
further that the State Board was a party to the action, had been served
with all the documents in the case, including the Inspection Report/
Condemnation Order, and had by failing to object, implicitly endorsed
them.

I also considered but did not make the argument, that the appeals
provisions of Footnote 13 should be construed so as not to be redundant.
Since the Administrative Procedure Act already provides for an appeal
from the State Board to the Superior Court and to the appellate courts,
Footnote 13 would be gratuitous if it were not construed to authorize
a direct appeal. On reviewing this issue with an obviously knowledgeable
appeals court clerk, I learned that the appeals court ruling that the
case was closed meant that as simple motion would not be accepted.
Except for an interlocutory appeal, only a final judgment is subject
to appeal. At this juncture, I consider an interlocutory appeal
inappropriate, and I'm content to let the Court's remand the
case to the Board of State examiners and then to wait for the
next status hearing, which has been scheduled for August 29.

I did ask Judge Mcdonald to issue a formal order about his
ruling and he promised to do so. That order which would logically
be addressed to the assistant district attorney who represents
the Board, has not yet been issued.