A group of gutsy legislators has filed a motion seeking sanctions pursuant to Federal Rule of Civil Procedure 11(b). See: http://www.prnewswir…= The gutsy legislators who are fighting this chilling attack on their legislative actions are:
Senator Jarrett Barrios (D- Cambridge)
Representative Ruth Balser (D- Brookline)
Representative Garrett Bradley (D- Hingham)
Representative Michael Festa (D- Melrose)
Representative Jay Kaufman (D- Lexington)
Representative John Keenan (D- Salem)
Representative Barbara L’Italien (D- Andover)
Representative Elizabeth Malia (D- Jamaica Plain)
Representative Anne Paulsen (D- Belmont)
Representative Kathi-Anne Reinstein (D- Revere)
Representative Carl Sciortino (D- Medford)
Representative Frank Smizik (D- Brookline)
Representative David Torrisi (D- North Andover)
Representative Cleon Turner (D- Dennis)
Good for them! I am tired of the sue everybody mentality. If legislators cannot take actions someone disagrees with – or they get sued – this is a “big chill” on free agency and I, for one, think it is an abuse of process.
Just when you think things can’t get more interesting, huh? đŸ™‚
And didn’t VOM sue them for something they havn’t even done yet? I’m not a lawyer so can’t evaluate this based on legal merrits, but I’m happy to see them pushing back against intimidation.
regardless of what happens on Jan. 2. If VoM has any sense (oxymoron alert!), they’ll withdraw the suit before the 21-day deadline under Rule 11.
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Also, doesn’t it strike you as the teensiest bit ironic that the very folks who decry “activist judges” for the marriage decision are the ones dashing off to the courthouse begging a judge to impose ridiculous fines on legislators for actions taken in their official capacities?
The Wall Street Journal ran an editorial yesterday entitled Contempt in Boston on just this subject, though with a different viewpoint than yours, David. It is available online to subscribers only, so I have culled out the pertinent sections:
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“Nearly three years ago, the Supreme Judicial Court of Massachusetts read between the lines of the state constitution to discover a right to same-sex marriage previously undetected across the decades. The court then gave the legislature six months to rewrite state law to accommodate its diktat.
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On Wednesday, however, the same court suddenly rediscovered the humility so lacking in its previous foray into the marriage debate. …
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The petitioners sued the legislature for abrogating its constitutional duty, and the state Supreme Judicial Court took the case. In its ruling this week, it agreed that the legislature’s duty to vote on the measure was “unambiguous.” But it claimed to be powerless to compel a vote. So the Supreme Judicial Court of Massachusetts, whose own arrogation of power created this mess, has suddenly discovered the limits of its power to clean it up.
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All in all, this is quite the political spectacle. First judges usurp the power of the legislature to dictate their own social policy. Then the legislature uses a procedural ruse to deny voters a say on the gay-marriage issue. And these are some of the same people who say Iraqis aren’t ready for democracy.”
first I check to see whether I have enough Charmin.
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If so, I’ve got no possible use for the editorial.
Laurel posted a link to an AP story about the Rule 11 motion, which I’m reposting here. I deleted her comment because it was breaking the page margins.
…the big legal problem with Term Limits vs. Bulger, 1992, is that it was filed AFTER the fact, and short of a way-back machine, there was no remedy.
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So – this suit has been filed pro-actively. We will know withi 21 days if the complaint is justified. If a vote is taken, yes or no, the the suit should be withdrawn. If a vote is NOT taken, especially in light of the SJC ruling, then it should proceed.
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The legislators were named individually because the decision to proceed to a substantive vote or not is an individual one, even under the current Lege leadership. The vote is not an action of the Commonwealth, but of the duly elected individual voters who comprise the Legislature. If an individual legislator votes, knowing that the SJC has said that a substantive vote must be taken, for a recess or adjournment, then s/he is indeed choosing to interfere with 1st and 14th amendment rights not only of their own constituents but of all the electorate of the Commonwealth.
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As I have said before, I believe that in light of the SJC decision, a substantive vote will be held, which renders the Federal suit moot, regardless of outcome. However, because in the past the accusation has been that the suit was filed after the fact, I see no remedy but to file in advance, and see if the facts warrant continuance – again, well within the 21 day mark set.
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And Amber – the various legislators can avoid both suit and sanction (for the attorneys among them) by upholding their freely sworn oath of office, taken under pains and penalty of perjury. This isn’t suing somebody for disagreeing with you – they can vote against the petition – it is suing them for refusing to uphold their sworn duty.
for the legis not voting, wouldn’t the sjc have mentioned it in their ruling?
The suit filed by VOM begins with a specialized bit of legal writing called a “Complaint” which is a subcategory of a kind of legal writing called a “pleading”. What the legislators filed in response is also a pleading.
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Before I can analyze myself, as an attorney specializing in legal work [check any legal data base using “Deborah Sirotkin Butler” – I am a sort of maverick of last resort] – I would need to be able to review the pleadings in full. So I have fired off e-mails asking for them, if I get them I will let you all know what I think and provide the pleadings too, to the best of my ability – someone want to let me know how to post .pdf files here? Unless I get a link that is.
OK… into the Wayback Machine to the first month of Constitutional Law….. It’s time for Separation of Powers!
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“Political” questions are supposed to be reserved to the “political” branch. Each individual legislator is protected from personal liability for political decisions under the law; thus, a court cannot hold indiviual legislators liable for failing to bring a matter to a vote. Any attorney who stayed awake during the first month of Constitional Law learned the core cases setting out these principals.
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In Marbury v. Madison, Justice Marshall famously declared that the Court, not the legislature, determines what the Constitution says. Therefore, whether you agree with the analysis or not, the SJC was within its rights in interpreting Article 48 and telling the Legislature to follow it. However, the SJC also said, correctly, that under the doctrine of separation of powers, the judiciary cannot FORCE the legislature to VOTE up or down on anything. The Court correctly noted that the power to compel a legislator to act is left to the voters at the ballot box.
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Further, there is that pesky little matter of Federalism. The federal judiciary does not like to tell a state to follow STATE law — and a request for such a ruling routinely gets kicked out of federal court for lack of subject matter jurisdiction, with direction to take the case to a state court. The Federal bench sends questions concerning the interpretation of state constituional law back to the highest state law court.
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I am unaware of ANY case in which a Federal court specifically directed individual State Legislator X to vote on Bill ABC-123 because of a state-constitutional duty to do so. That’s the separation of powers/Federalism double whammy.
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The suit IS frivolous–and unless they were asleep during the first two weeks of law school, the plaintiffs’ lawyers know it.
I haven’t read the actual suit, just the news coverage of it, but I believe they are claiming their civil rights under the US Constitution have been violated, not the ones granted by the Mass. Constitution. They are not suing and saying you violating our rights under Art. 48, they are claiming violation of the US 1st amendment right to petition their government, etc. That said, I don’t think its going to get very far either due to the protections legislators have when acting in their official capacity.
A summary with links to the actual complaint are here.
The suit, of course, was withdrawn. It served its purpose, as did the suit to the SJC. What a waste of paper, judicial resources, time and money.