Fried's Possible High Court Nomination Irks Tenant Groups

Two tenant groups and the Cambridge Democratic City Committee are vigorously protesting the expected nomination of Harvard Law School professor Charles Fried to the Supreme Judicial Court (SJC), the state's highest judicial body. The tenant activists, and several attorney groups, will hold a rally at the State House at 10:30 a.m. today.

Despite the state legislature vote in January to gradually phase out rent restrictions in Cambridge, Boston and Brookline, tenants have not forgotten that Fried was an opponent of their cause celebre.

Fried, Carter professor of general jurisprudence at Harvard Law School, served as solicitor general in the Reagan administration from 1985 to 1989. A Cambridge resident, he was an active and vocal opponent of rent control.

Gov. William F. Weld '66 is reportedly hoping to nominate Fried to the SJC, following the departure of Justice Joseph R. Nolan, who must leave the court this year upon reaching the mandatory retirement age of 70.

A state judicial nominating council will provide five names to Weld, from which the governor will choose his nominee.

Fried said yesterday that speculation about his nomination is premature. "The nominating council has not even provided the five names," he said yesterday. "The whole thing is really pretty hypothetical."

Fried said he had agreed to submit his name as a possible nominee, but said Weld has Fried his intentions.

The nomination would require the approval of the Governor's Council, but not of the state legislature. The Democratic-controlled legislature would have little control over the appointment process.

Rent control supporters hope their protests will pressure Weld to nominate another candidate, saying Fried would be an unacceptable choice.

"Fried approached the whole question of rent control with what can only be described as ideological fervor," said Michael H. Turk, co-chair of the Cambridge Tenants Union, one of the groups opposing Fried. "This was someone who had an agenda, which essentially meant wiping out tenant protections, and he was essentially hell-bent on doing it."

The Democratic city committee also contends that Fried's right-wing arguments during his federal tenure make him unsuitable for a spot as a jurist on the nine-member SJC. The city Democrats voted last Monday to formally oppose Fried's nomination.

"Jurists on our Commonwealth's historic high bench uniformly possess the quality of fairness or at minimum the appearance of fairness or at minimum the appearance of fairness," the committee said in a written statement. "Fried fails to pass this basic test."

The statement also said that Fried opposed the passage of the Civil Rights Act of 1991, and it criticized Fried's positions on collective bargaining and social welfare.

`A Sore Thumb'

But critics are especially angered by Fried's legal assistance to real estate interests during one of the three court challenges to Question 9, the state referendum that abolished rent control.

Charles A. Ash, a Cambridge rent control tenant, filed suit against the state attorney general last summer, charging that revocation of the rent control laws would violate the local autonomy of Cambridge, Boston and Brookline, the three communities with rent control laws.

Fried wrote the introduction to a brief supporting the state's position. In that introduction, he ridiculed the plaintiffs' argument that a referendum to kill rent control would violate local autonomy.

"It is a strange kind of ratchet that would require consent of the people of the Commonwealth as a whole before a locality may impose rent control, but then that would foreclose, in the name of local autonomy, that same general authority from thinking better of it and withdrawing the consent," Fried wrote in the April 29, 1994 brief.

Fried was apparently persuasive; the SJC voted unanimously to uphold the ballot question.

But tenant activists have not forgiven the outspoken law professor.

"What we saw was something much more intemperate and utterly inappropriate for someone who would serve on the court," Turk said, saying he was disturbed by Fried's opposition to rent control.

"From what he has said, we believe that he could not be impartial in adjudicating and interpreting [local] laws," Turk said. "His view of home rule is one that we think is very damaging to the powers of localities, and that extends far beyond rent control to the way in which the Commonwealth itself is constructed."

Fried's record has been unabashedly opposed to rent control. Along with writing the introduction to the brief submitted by lawyers representing the Greater Boston Real Estate Board in the constitutional challenge last summer, Fried authored two op-eds in the Boston Globe.

Fried yesterday declined to state his views on rent control, referring inquiries to his two published opinions.

"Cambridge and other communities can regulate rents only because the Legislature has specifically allowed them to," Fried wrote in an opinion printed July 21, 1994. "If the people of the state must grant that permission, they can take it away."

Fried said Cambridge politicians have abused rent control, which was originally designed as an emergency measure to help low-and moderate-income tenants.

"Rent control causes a deterioration in the housing stock and a lowering of property values that necessarily shifts a greater burden of state aid to other communities that manage their affairs in a less unusual way," Fried wrote.

The professor continued: "Cambridge is not only a sore thumb but also one whose infection may spread."

Rent Control Supporters

Turk said yesterday the two groups--the tenants union and the Save Our Communities Committee--fear Fried's conservative voice on the high court could bode badly for tenants in future constitutional battles with landlords and real estate interests.

Ash, whose constitutional challenge failed last July, expressed dissatisfaction with Fried's possible nomination. "When it comes to rent control many people are past reason," Ash said. "That he was in the Reagan administrator and was solicitor general of the U.S. is really scary."

But it is those same anti-rent control sentiments which have endeared city landlords to Fried, whom they see as one of their own.

"It was great to have him as one of the authors of the Ash brief," said Jon R. Maddox, the Cambridge attorney who drafted Question 9. "It was a real honor to have someone of his stature on our side."

Maddox said Fried could play an instrumental role on the SJC, by emphasizing property rights "as part of the panoply of individual rights and liberties."

Other landlords agreed, accusing tenant groups of being unable to accept their defeat at the bench and in the voting booth.

"A special-interest group is basing its whole opposition to his nomination on a single-issue," said Salim E. Kabawat, treasurer of the Massachusetts Homeowners Coalition, which spearheaded the Question 9 effort.

"The man should be judged by the totality of his work and the history of his career, not by a single issue which is irrelevant as it stands now," Kabawat added.

As for the charges that Fried would not be an impartial jurist, Kabawat pointed out that Justice Ruth Abrams lived in a rent-controlled unit for nearly a decade prior to rent control's elimination. SJC justices earn more than $90,000 annually.

And Fried said the constitutional issues in the Ash case were very clear and should have invited no dispute.

"The SJC...agreed with the attorney general and us in a unanimous opinion," Fried said yesterday. "There was a unanimous opinion saying there was no constitutional problem about the referendum."

Fried also defended his record as solicitor general. "I certainly didn't oppose the 1991 [civil rights] act at all," said the professor, whose work has focused on constitutional law and jurisprudence. "I testified in Senate testimony hearings and I testified in favor of some aspects and against others."

Fried was himself a rent-control landlord.

According to Cambridge Rent Control Board documents examined by The Crimson, Fried and his wife Anne S. Fried have owned a two-unit property on Irving Street since 1974, and have lived in the house since the end of the Reagan presidency in 1989.

The house was removed from rent-control status in 1990, after the Frieds moved in. The state Rent Control Act of 1976 exempted owner-occupied houses from rent restrictions.

A press release issued by the tenant groups earlier this month charges that "Fried violated Cambridge's rent control laws, overcharging his tenants by $6,500."

Fried refused yesterday to discuss the charges. But according to the rent board documents. Fried did in fact attempt in 1987 to raise his tenant's rent from $1,500--the legal limit--to $1,857.

The rent board fond that Fried's actions were inconsistent with the rent control ordinance. "You may be liable to your tenants for any overcharge," board inspector Judith A. Stalos wrote in a letter to Fried, dated February 25, 1987.

End of an Era

If there is one thing both tenant activists and landlord representatives agree on, it is that the era of rent control is over.

But whether feisty law professor Charles Fried will emerge in triumph or as a casualty in the aftermath of the rent control wars remains to be seen.

Both sides in the rent control dispute are hedging their bets.

"Charles Fried is a very controversial figure," Turk said. "I think it's likely that first his nomination would be questioned, and that, in fact, he might well be denied."

Kabawat disagreed. "I don't know if Governor Weld will answer to instances of childish behavior," he said of the tenant groups' effort to discredit Fried. "I hope not."