The Justices have entered. Here we go.
John Hanify is going first for Doyle et al.
First question from Cowin: why doesn’t the LIMITS case control this? Hanify has started his answer, but CJ Marshall has interrupted him again.
Marshall asks whether the past cases have left any lack of clarity as to what the lege’s “duty” is in these amendments and “final action” – she seems to think it’s pretty clear. Cordy notes that maybe the SJC has alluded to it, but has never come out and said it, and Hanify agrees.
Ireland wonders whether this whole case isn’t speculative since we don’t know what the lege is going to do. Hanify says the pattern has been pretty clear, and we don’t have to wait until the case is moot.
Greaney asks what the appropriate remedy is against the Senate President — “lock him up”?
Greaney: “didn’t we say in the LIMITS case that they’re supposed to vote?” Hanify says he agrees with Cordy that it’s not entirely clear. Marshall says it’s also possible to say that Art 48 is not entirely clear.
Marshall continues: if we clarify the extent and nature of the lege’s duties, would that be sufficient? Hanify says that Trav should be required to notify the members of the joint session of such a declaration from the Court, but concedes that they can’t force a vote.
Spina wonders what happens if a quorum doesn’t show up. Then, Hanify concedes, there will be no vote, and there’s nothing the SJC can do about it. Spina is now focusing on a point of ambiguity in Art 48.
Hanify argues that the “vote the bums out” remedy [my paraphrase, not his words] is unrealistic, as time has proven. Cordy responds that it may be unrealistic, but it may be all the Constitution allows.
Cordy then focuses on Hanify’s first request for relief, which is a clear declaration of exactly what the rules are, and Hanify agrees that that would be a helpful step.
Greaney wonders whether that’s a real remedy. Hanify says that he hopes that would be sufficient to motivate legislators to carry out their duty. Cowin wonders whether that has any purpose at all. Hanify says that we shouldn’t assume that the Court’s declaration will be lightly disregarded. Marshall notes that apparently some legislators have stated that they don’t believe the Constitution actually requires an up-or-down vote; Hanify says that’s true, and therefore the SJC’s declaration would be useful. He goes on to say that he’s not asking the SJC to force a vote or lock up the Senate President; he’s asking for a clear statement of what the Constitution says, and then leave it to the legislature to carry out its duty.
Hanify is done; Peter Sacks is up representing Galvin and Trav.
Sacks says that it’s already clear from past cases that the SJC has said the lege is supposed to vote.
Marshall says there’s a problem if officers who are sworn to uphold the Constitution then don’t do so — is there really no remedy? She goes on: it’s not unreasonable for people in a democracy to assume that when a duty is clear, it will be upheld. So she chooses to assume that the duty must not be clear, since if it were the legislature would carry it out.
Sacks responds that the SJC can always make it clearer, but cannot enter any relief.
Greaney wonders whether there is any analogy to Clean Elections. And Marshall then brings up the remedy requested by the Health Care amicus brief: why can’t we just “deem” the 25% vote to have occurred? Sacks says it contravenes the language of Art 48.
Marshall says that if Sacks is right, then there is actually no obligation of the legislature to vote on the merits. Sacks agrees that there is a textual argument that there is no actual duty to vote, but he says that was rejected in the LIMITS case. Marshall presses him: says his argument doesn’t make sense because it allows procedural maneuvers to block action on the merits completely.
Spina asks whether 51 legislators could file a petition next year saying “if a vote had been taken, we would have voted yes, so you should advance it.”
Sacks says no: absent a “vote” in the joint session, you can’t advance the amendment. So, Spina says, there is no judicial remedy. Sacks agrees. Marshall jumps in: says the 25% rule is essentially meaningless. Sacks disagrees — says that what you need is 25% who favor the amendment on the merits, AND 50% who are committed to taking final action regardless of their view on the merits.
Sosman says what the drafters didn’t actually foresee is legislators willing to disregard the rules of the Constitution. Sacks says maybe that’s true — they didn’t have perfect foresight.
Ireland asks what you say to people on the street who signed the petition. Sacks says their relief is at the ballot box. Cowin then wonders whether the clearest thing to do would be for this Court to make that very clear so that the full burden lies with the lege.
Sosman asks if there’s any other instance in which the remedy for a constitutional violation is at the ballot box. Sacks says that if the violation can’t be remedied by the courts, then the only remedy is at the ballot box.
And that’s it. We can expect a decision of some sort quite soon, since by setting such an expedited schedule for this case, the SJC seems to have signaled its intention to do something before January 2.
could you remove the strange man typing into the laptop from the courtroom.
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“Oh. it’s David. Sorry Dave. Carry on.”
The marvels of webcasting.
Did I get that right? Does that mean they still are asking the court to put the amendment on the ballot?
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Or is their position now just that the SJC should restate its previous opinion that legislators have a constitutional obligation to vote on this? which is what Hanify spent all his time talking about (and to which Sacks expressly made no objection).
they ever were asking the SJC to force the legislature to vote — that wasn’t ever going to happen. And there was (I think) no discussion at oral argument of ordering the Secretary to put the amendment on the ballot, so I don’t really know what the status of that is.
Kudos to Suffolk for the streaming video of the arguments-even if the video was upside down and green for a while. It’s a real public service.
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I do wish the most ardent proponents and opponents would listen and watch carefully. I may or may not agree with the ultimate outcome, but what I saw were all of the justices working hard to question both sides, understand the issues, and understand the implications of the contentions of each side. This is hardly the picture of “activist judges” it’s so convenient to paint when a court hands down a decision people disagree with.
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I’m guessing there will be a decision before January 2, although the remedy the plaintiffs seek wouldn’t require one.
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Any guesses on whether there will be a quorum for the Con/Con on January 2?
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I know that Gay Marriage supporters do not have the 150 votes they need to defeat this amendment; however; I do not think that the anti gay marriage folks have 50 solid votes either. I think there is a group of legislators that favor gay unions, but also want the people to have the opportunity to vote on the issue.
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My idea is to form a coalition of these groups to amend the wording of the amendment to make gay marriage constitional, rather than unconstitutional.
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This would go to the people to vote on and they would most likely approve it and the subject will be over. The nice thing about it is, if the people vote it down, nothing will change anyway. a win-win.
but it seems unlikely to me that they have the 3/4 of the members they’d need in this session to pull it off. If they did, wouldn’t that mean that there are less than 50 legislators willing to vote “yes,” which would mean that they’d have just taken the up-or-down vote and been done with it?
the current amendment can’t be amended. you would have to start over with a brand new one. i, for one, and tired of fighting the haters. i’d be happy if the legislature would get their selves in gear and just amend to existing marriage law or include same-sex couples.
it can be amended. It needs a 3/4 vote to do it:
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David – this amendment process is what happened to the first, Travis-sponsored petition – which even Travis urged people to against after Finneran and Traviglini were through with it.
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I had thought that was the REASON for the CITIZEN, as opposed to LEGISLATOR, sponsored petition – that it could NOT be amended. I believe the reason for it is that the legislator petition is treated as legislation, prompted by the petition, and like any legislation it is amendable. A direct CITIZEN petion, however, was signed subject to certain wording, and therefore cannot be changed, just like you can’t amend your nomination papers after people have signed them, unless you’re Bill Delahunt (he added ‘Veteran’ in the SoS office, not while gathreing signatures).
at least according to VOM’s faq page. is that authoritative enough for you?
But from the text of the provision I quoted above, it seems pretty clear that a proposed amendment introduced via the initiative can be amended, as long as you can get 3/4 of the members to agree. I didn’t see anything about whether legislative amendments can be amended, or what the procedure is to do so. (Incidentally, the rules are very different for proposed laws — there, the legislature must take a vote on the proposal in exactly the form in which it was introduced.)
and in any case, if they haven’t mobilized a simple majority during regular sessions to amend the marriage law, they’re not going to get 150 mobilized to amendm the amendment. if they had those votes, they would have simply taken the vote to kill it. who really thinks they want to be accused of dodging their duties. not a one of them. the 109 who voted to adjourn did a labor of love. or at least justice.
If the Court finds that legislators have violated their oath of office it will be a very powerful statement.
not “Democrats”.
to the Decider in Chief is just a long list of big words strung together to make him seem all official-like, sorta like a Prezeedent.
Trav?
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After all, we are discussing Mass politics. On topic and all that.
“Spina wonders what happens if a quorum doesn’t show up. Then, Hanify concedes, there will be no vote, and there’s nothing the SJC can do about it.”
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Anyone care to clarify what this boils down to?
My read of the hearing today is that at least four justices are ready to say what they think they have said before – that Article 48 mandates an up or down vote on the merits for every amendment submitted to the Legislature by the people.
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What they are clearly grappling with is whether there is anything else they can do.
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They are clearly not interested in ordering the Legislature to vote or ordering the Senate President to tell them they ought to vote. No surprise here.
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There seemed to be some interest, however, in finding some remedy to protect the people’s right to submit initiative amendments to the people if they can meet the 25% support rule. If they can’t figure out something Article 48 is dead, killed by a Legislature usurping a power specfically reserved to the people by our state constitution.
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The SJC has fashioned such remedies before. One example is Clean Elections. They set out the rule – either repeal it or fund it. And when they didn’t fund it, they allowed to plaintiff’s to start selling state property to finance Warren Tolman’s gubernatorial bid.
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Another relates to line-item vetoes. Our consititution allows the Governor to veto specific line items in the state budget without vetoing the entire budget. The Legislature came up with the great idea that it would start enacting laws through outside sections to the budget. When the Governor tried to line item veto one they took him to Court saying no-no it’s not a line item. Despite the fact that the constitutional language is limited to line-items the SJC decided that it would have to apply to outside sections as well – or the balance of powers between the Legislative and Executive branches would be destroyed by the Legislature figuring out how to enact veto proof laws.
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Same idea applies with Aticle 48. The Legislature has figured out how to game the system so the “people’s process” becomes useless.
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Our proposal was that if there’s no vote, an citizen’s initiative gets promoted to the next stage. In the case of the marriage ban to the second ConCon. In the case of the HC Amendment to the ballot. It’s the only remedy that protects the underlying right and keeps the Court out of never ending quarrels with the Legislature.
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I will address the understandable furor over our filing of an amicus brief in this case later. It’s my nephew’s birthday and I have to run.
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Thank you David for your coverage.
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The latest I hear is that the Court could issue its decision tomorrow or Friday. We’ll see what they say.
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Barbara Waters Roop, PhD, JD
Helath Care For Massachusetts Campaign
The 25% threshold is a terrible, terrible idea. It should go the way of the Dodo bird.
I’m not so sure I buy “the only remedy to legislators’ violation of the Constitution is to vote them out of office.” What if the violation relates to overstaying their time in office or other election violation? Or, as here, a subversion of the democratic process? I think this issue might best parallel the judicially-created remedy for government violations of the 4th Amendment against unreasonable search and seizure: the suppression rule–if the government actors violate the Constitution, they lose all benefits arising from the violation. I GUARANTEE that if the SJC rules now that the judicial remedy for any legislative violation of Art. 48 is the automatic placement of the question before the voters, there WILL be an up or down vote on the question. Problem solved. That said, I do hope our legislators vote “no,” but it’s important for them to vote.
… like their pensions? THAT would get ’em to vote! đŸ˜‰
If we are to read the letter of the law it is unclear indeed. Special Rules A through F that also govern voting on amendments to the constitution also state that they can adjourn. Nobody seems to talk about this though.
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Let’s say we just bypass the legislators and automatically give this amendment a leg up to the next level. Isn’t that the equivalent of saying that we don’t need the legislators involvement? The law clearly states that these amendments are to pass through 2 ConCons with 25% or more affirmative votes to go before the people. If legislators feel strongly enough to stand in the way of a bill they feel would be harmfull to the commonwealth, aren’t we supposed to let them do their job? Legislators have been killing bad ideas with parlimentary procedures for hundreds of years, so why is it suddenly no longer OK?
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To my knowledge all these meetings are governed first by Robert’s Rules of Order. If the legislators use that to their advantage and elect to not allow quorum, the measure that was to be voted on is killed, whether it is a vessel of bigotry or a poorly thought through well intended service. The legislators know what they are doing, and they take their responsibility seriously. We have a representative form of government because we know that we are not all lawyers and well educated in these matters. We pick the best people and ask them to vote in our interest. There is much more to this issue than letting the people vote. The petition to end gay marriage for example is a vote to take away someone’s civil rights. That is a slippery slope no one should feel safe standing on. Where would that end if people set it as precedence? During the assistant attorney general’s defense of the petition moving forward he was asked if the people could also pass a petiton to restore slavery. Because of the argument that is being supported he was forced to say yes. That should tell you something about how wrong this really is.