I had not realized just how ignorant the MA GOP is about the MA Constitution [update: MA GOP loses]

I confess that when I posted last night about the MA GOP’s amusing lawsuit over the Governor’s emergency letter, I had not yet had a chance to read over the “Opinion of the Justices to the Governor” on which the lawsuit is based.

I have now done so.  Good Lord — the depth of ignorance over at MA GOP HQ is really staggering.  The Opinion in question (368 Mass. 889 (1975) — you can read it at this link) is directly on point.  It answers the exact question that Governor Patrick’s emergency letter presents.  And it answers it squarely in favor of Governor Patrick.  Here is the Opinion’s bottom line:

The net result of our opinion is to confirm in the Governor an emergency power similar to that of the Legislature when it enacts an emergency preamble. This seems not inappropriate for the “supreme executive” officer of the Commonwealth (Mass. Const. Part II, c. 2, Section 1, art. 1) charged with carrying the laws into effect.

In other words: the question raised by the GOP’s lawsuit has already been asked of and answered by the SJC, and the answer was that the Governor can do what he did.  The MA GOP’s lawsuit is a joke.

Details on the flip.


In 1975, the legislature enacted a couple of statutes, one having to do with medical care for minors, and the other with certain property rights.  The legislature did not attach an emergency preamble to either statute, so under the usual rules, they would have gone into effect in 90 days.  The Governor, however, wanted them to go into effect immediately, so he asked the SJC whether he had the power to make that happen by filing an emergency letter.  (You will note that this is precisely the factual scenario set up by the interim Senator law.)

Although Governors had been filing emergency letters to make such statutes take effect immediately for many years, the Governor requested an opinion from the SJC as to whether he had the authority to do so.  The SJC recited the question as follows:

Grave doubt exists whether an emergency letter by the Governor may constitutionally cause the law with respect to which it is filed to take effect forthwith on the date of filing the letters, and this doubt extends to all laws for which emergency letters have been filed in the past by the Governor and his predecessors in office. Accordingly the Governor requests the opinion of the Justices on the following questions:

“1. Would appropriate gubernatorial emergency letters filed with the Secretary of the Commonwealth as provided in Amendment Article 48, The Referendum, Part II, of the Massachusetts Constitution, cause Chapter 564 and Chapter 573 of the Acts of 1975 to take effect forthwith on the date of such filing?

“2. Are the effective dates of laws, which by their terms do not state when they shall take effect, the respective filing dates of appropriate gubernatorial emergency letters?”

The SJC started off its analysis by noting that “[t]he answer to this question is not free from doubt.”  But the doubt did not last long (emphasis mine):

The words in the last sentence of The Referendum, II, “then such law, if not previously suspended as hereinafter provided, shall take effect without suspension . . .” may possibly be read as indicating that the ninety-day waiting period may not be terminated by a Governor’s declaration made prior to the ninetieth day, that the declaration serves only to prevent suspension after that day. But we think the better reading is that such a declaration brings the law into effect immediately.

The SJC noted that a previously-decided case had established that “a declaration may validly be made before any referendum petition is filed,” thereby eviscerating any possible claim that the Governor may act only to stave off suspension due to a referendum actually going forward.  (Of course, that didn’t stop the MA GOP from making that exact claim this time around.)  

The SJC then rejected any claim that the Governor’s acting in this way was contrary to the original intent of Article 48:

The interpretation favorable to the Governor’s power is not contradicted by anything in the records of the Constitutional Convention of 1917-1918 which framed art. 48 of the Amendments, although it is not much strengthened by those records. The gubernatorial authority to forestall or undo the suspensive effect of a referendum petition was imported into art. 48 as one of the means of providing some check on the power of a small minority of the voters to nullify adopted legislation until the next eligible Statewide election. But the exact desired extent of the gubernatorial power was not delineated, nor was the precise meaning of the language used. [A footnote here notes that "the debate touching on the emergency section of the amendment was 'casual and uninformative.'"] There was concern about the Governor’s intruding on the legislative province, but, as already indicated, the decision to allow the Governor to erase the suspensive effect of a referendum petition, when the Legislature had not acted by an emergency preamble, could be seen as a larger step than the mere matter of precipitating the effective date of a law.

Finally, the Justices were “[m]indful that ‘the long continued practice by another branch of our tripartite government is entitled to very great weight in interpreting what art. 48 requires,’” and therefore “look[ed] to the practice over the years.”  They noted that since Article 48 went into effect in 1919, Governors have filed numerous emergency letters, and everyone assumed that such letters caused the statutes to go into effect immediately; no one had ever seriously questioned the Governor’s authority in that respect.  

Again, the Justices’ bottom line:

The net result of our opinion is to confirm in the Governor an emergency power similar to that of the Legislature when it enacts an emergency preamble. This seems not inappropriate for the “supreme executive” officer of the Commonwealth (Mass. Const. Part II, c. 2, Section 1, art. 1) charged with carrying the laws into effect.

It’s clear from reading the MA GOP’s lawsuit that they (a) don’t understand what a “referendum” is (since they don’t understand the deadlines, as explained in my previous post), and (b) didn’t bother to read the Opinion of the Justices upon which their lawsuit relies very carefully (if they read it at all), since that Opinion answers the very question they’re posing.  Which leads one to ask: who prepared this lawsuit, anyway?  Party Chair Jennifer Nassour signed the papers herself; she is a lawyer, but I have no idea what her practice is.  Apparently it doesn’t have much to do with state constitutional law, though, because this thing is ridiculous, as I hope the judge will make clear in the next 45 minutes or so.

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19 Comments . Leave a comment below.
  1. Credit where credit is due, by the way

    And in this instance, credit is due to BMG's differently-winged stalwart Peter Porcupine, who is taking all comers over at RMG on this issue.  This thread is not to be missed.  Two of Peter's finest:

    I think this effort is dumber than dirt.   (0.00 / 0)

    Yr. Obedient Servant, Peter Porcupine, Republican by: Peter Porcupine @ Thu Sep 24, 2009 at 14:22:07 PM CDT

    ...

    I am not big on jumping off bridges just because the other kids did.   (4.50 / 2) 'Our day in court' is a waste of taxpayer money (we pay for the courts).  THAT is the worst case, my friend.

    We didn't hae the votes to stop the bill.  We DID attract enough votes to prevent a LEGISLATIVE emergency preamble - making Patrick the sole authority on this.

    We should hold him to that responsibility, and question his quisling judgement, not save him from it.

    Becasue we WILL lose this fight, and look like cry-baby hypocrites in the process.

    And every time we trivialize our ideas like this, every time we act like obstructionists, it makes more and more people discount us.

    Can you remember the last time there was a press release or effort from MA GOP that wasn't a reaction to the Democrats instead of an ACTION of our own?

    Yr. Obedient Servant, Peter Porcupine, Republican by: Peter Porcupine @ Thu Sep 24, 2009 at 14:48:15 PM CDT

  2. From the opinion

    Interesting stuff, David.  Thanks for educating us on The Referendum.

    I found this part of the opinion you linked to interesting:

    ...the decision to allow the Governor to erase the suspensive effect of a referendum petition, when the Legislature had not acted by an emergency preamble, could be seen as a larger step than the mere matter of precipitating the effective date of a law.

    How do you interpret "the Legislature had not acted". It seems to me this could be read as they didn't vote on an emergency referendum. This is reinforced later in the opinion:

    We learn that since 1919 Governors, in approving several hundred statutes passed by the Legislature without emergency preambles, have made "forthwith" declarations with supporting findings as set out in The Referendum, II, and the understanding and practice have been that the laws took effect on the dates of the filing of the respective declarations.

    But, in this case, the Legislature did act. They voted down the emergency preamble. Have you been able to find case law or opinion on that situation?

    • $quot;They voted down the emergency preamble.$quot;

      Irrelevant, IMHO.  Legally, it's exactly the same as if they had not considered it: it arrives at the Gov's desk without an emergency preamble, and it is then up to the Gov to decide whether he wants to file a letter or not.

      The Justices' opinion is very clear: the Gov's power to declare a law an "emergency law" is coextensive with that of the legislature.  If the legislature chooses not to act, either because they don't take it up or because they vote it down, the Gov can do so on his own.

  3. Quote of the year ...

    NECN

    The irreparable harm would be the Commonwealth would have a senator sitting?

    Judge Connolly to MA GOP

  4. MA GOP's hilarious reaction to the decision

    Via NECN:

       "From President Obama to Senate Majority Leader Reid to Governor Patrick, Democrats have mounted a campaign to change Massachusetts election law for their own political expediency. Today the Massachusetts Republican Party has exposed them for what they are; purely partisan. While the court saw that our argument warranted a hearing, it ultimately disagreed.

       I urge the voters of Massachusetts to not allow the courts the final say in this matter. I believe the ultimate remedy to the untenable situation on Beacon Hill can be found in the voting booths.

       It is up to the voters of Massachusetts to finally decide enough is enough and to refuse to re-elect the entrenched incumbents responsible for raising our taxes in the middle of a recession, turning a blind eye to public corruption, and manipulating the law to keep their grip on power.

       The preliminary elections for mayor in cities across the Commonwealth show an anti-incumbent sentiment, indicating that voters are fed up with the status quo. It is my sincere hope that this frustration turns into action in the January U.S. Senate special election and into November 2010, and that voters reject the pawns of the special interests and the Democrat Party and elect candidates who believe this is a government for the people."

    No, actually, what the Massachusetts Republican party "exposed" today is that it doesn't know the difference between a referendum and an initiative -- a pretty basic concept under the Massachusetts Constitution.  

    And how pathetic that Chairman Nassour has taken up the Tom DeLayism of referring to the "Democrat Party."  There really is no hope for these jokers.

    • My question...

      ...What in the world does Harry Reid have to do with this?  This was an internal matter for the Commonwealth, wasn't it?

      Also, I've always wondered why some Republicans use "Democrat" Party and likewise why do some Democrats get upset about it.  Is there really an egregious insult in that form of the word that I'm missing?

      • Why

        Republicans do it (and have for decades, I think it may have started with Nixon, but I'm not 100% sure on that) because 1) there's a significant body of evidence that people react more negatively to people and things described with "Democrat" as an adjective than to the same people or things described with "Democratic" as an adjective and 2) it's a petty, grade-school-level taunt and they want to needle Democrats.

        Democrats get upset about it because it's so transparently 1) manipulative and 2) juvenile.

      • Rats!!!

        Also, I've always wondered why some Republicans use "Democrat" Party and likewise why do some Democrats get upset about it.  Is there really an egregious insult in that form of the word that I'm missing?

        I've always assumed it allowed them to stress the word 'rat' and/or 'rats' at the end...    'Demok' - 'rat' rather than 'Demo' - 'krat' as in 'democratic'.. I recall in the 90's (I think the '96 pres election) an ad that scrolled through the word and... lingered... shall we say... on that specific portion of the word.  

        • I believe that was 2000.

          I'm pretty sure it was the GWB campaign that was questioned about it because Bush responded that he wasn't using "subliminable" tactics, thus creating another "Bushism".

    • Utilizing the lingo of their more fringe brethren in a state full of moderates/independents

      shows how out of touch they are with the constituency and relegates them to a minor party for the foreseeable future.

  5. REPUBLICARATS THE PARTY OF NO

    They have nothing else to offer the country or the state but to say NO to everything.

    They act like 3 year olds in a temper tantrum.

    Republicrats - Go To Your Room !

  6. I think current usage began with Robert Dole

    I remember Robert Dole using this as a trademark phrase in the seventies.

    Mr. Dole (then Senator Dole), was one of the go-to GOP hatchet-men during that time, and it was in that context that he used the phrase. I've always thought Mr. DeLay was mostly emulating one of his hatchet-man mentors and role models.

    • $quot;Democrat Wars$quot;

      That's the term Dole used in the 1976 VP debate when complaining about loss of life in wars engaged (at least initially) by Democratic Presidents (Korea and Vietnam definitely, was he really complaining about the World Wars as well?).  Then they complained WE were trigger happy, but ever since they've decided we're soft on defense!

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