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C. Joseph DOYLE & others [FN1] vs. SECRETARY OF THE COMMONWEALTH & another.
[FN2]
SJC-09887
December 20, 2006. – December 27, 2006.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Marriage. General Court. Mandamus. Practice, Civil, Action in nature of mandamus. Declaratory Relief. Constitutional Law, Amendment of the Constitution, Initiative petition, General Court, Governor. Initiative. Governor.
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on November 24, 2006.
The case was reported by Cowin, J., on a statement of agreed facts.
John D. Hanify (Daniel J. Dwyer with him) for the plaintiffs.
Peter Sacks, Assistant Attorney General, for the defendants.
Donald K. Stern, Nikki Jean Fisher, & Jeff Goldman, Committee for Health Care for Massachusetts & others, amici curiae, submitted a brief.
GREANEY, J.
As the final day of the current legislative session approaches, the General Court has yet to vote on the merits of a proposed amendment to the Massachusetts Constitution, introduced pursuant to art. 48, The Initiative, IV, §§ 1-5, as amended by art. 81, § 1, of the Amendments to the Constitution of the Commonwealth, which is currently pending before a joint session of the two houses. If eventually adopted by the people, the initiative would amend the Constitution to define marriage as the union of one man and one woman. The plaintiffs seek a declaration, essentially, that art. 48 imposes an obligatory constitutional duty on the Legislature in joint session to take final action on the initiative amendment, by a vote of yeas and nays, before the legislative session expires on January 2, 2007. [FN3] The plaintiffs filed their complaint in the county court pursuant to G.L. c. 214, § 1. [FN4] A single justice reserved and reported the matter to the full court on a statement of agreed facts. We conclude that, while the plaintiffs cannot obtain declaratory judgment or mandamus against the Legislature, and, therefore, the complaint must be dismissed, it is our obligation, in these circumstances, to restate what art. 48 requires.
1. The facts are as follows. The petition proposing the initiative amendment (signed by the plaintiffs) was certified by the Attorney General as having met the requirements for presentation to the joint session of the 2005-2006 General Court. Art. 48, The Initiative, II, § 3, as amended by art. 74, § 1, of the Amendments to the Constitution of the Commonwealth. The initiative petition was filed with the Secretary of the Commonwealth (Secretary), id., and the signatures of the required number of qualified voters (at least three per cent of the votes cast in the 2002 gubernatorial election) were collected. Art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. The Secretary determined that 123,356 allowable certified signatures had been collected (more than required) and transmitted the initiative petition to the General Court, where it was deemed introduced and pending. The initiative amendment was placed as the twentieth item on the joint session’s calendar. The full text of the initiative amendment is as follows:
“When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.”
The joint session has convened three times since the initiative amendment was placed on the calendar, each time without considering its merits. At its most recent assembly on November 9, 2006, by a roll call vote of 109-87, the joint session voted to recess until 2 P.M. on January 2, 2007, the last day of the 2005-2006 legislative session. [FN5]
2. We now discuss the applicable law. The members of the joint session have a constitutional duty to vote, by the yeas and nays, on the merits of all pending initiative amendments before recessing on January 2, 2007. With respect to legislative action on proposals for constitutional amendments introduced to the General Court by initiative petition, the language of art. 48 is not ambiguous. Section 2 of art. 48, The Initiative, IV, provides:
“If a proposal for a specific amendment to the constitution is introduced into the general court by initiative petition … such proposal shall, not later than the second Wednesday in May, be laid before a joint session of the two houses, at which the president of the senate shall preside; and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.”
Section 3 provides:
“A proposal for an amendment to the constitution introduced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.”
Section 4 further provides:
“Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session … an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected [ ] shall be referred to the next general court.”
The Constitutional Convention of 1917-1918, at which the procedure for the adoption of a constitutional amendment by popular initiative was proposed, confirms the plain meaning and purpose of the above text. See 2 Debates in the Constitutional Convention 1917-1918, at 16, 39 (1918) (quoting two proponents as stating that purpose of art. 48 is to “provide[ ] the machinery by which the will of the voters of this Commonwealth may be made effective” and “enable the people to have some say … with regard to constitutional amendments”). We have stated that the framers crafted art. 48 as a “people’s process. It was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court…. It projected a means by which the people could move forward on measures which they deemed necessary without the danger of their will being thwarted by legislative action.” Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976). We have also stated that “art. 48 was adopted in the expectation that all officers concerned would perform the duties required of them at the proper times.” Opinion of the Justices, 334 Mass. 745, 758-759 (1956).
It is not surprising, therefore, that the records of the drafters’ debates indicate that they did not intend a simple majority of the joint session to have the power effectively to block progress of an initiative. See 2 Debates in the Constitutional Convention 1917-1918, supra at 629 (expressly rejecting such a proposal). [FN6] Specifically, words spoken during the debates by one Mr. Quincy of Boston, raised the prospect of what would happen “if the mandate of the Constitution is disregarded and somebody declines to carry it out?” Id. at 685. Mr. Quincy answered himself: “I do not believe we need to consider seriously that co
ntingency or a defiance of the provisions of the amendment by either of these two branches of the General Court.” Id. See LIMITS v. President of the Senate, 414 Mass. 31, 35 n. 6 (1992).
Enough has now been said about the requirement to vote on the merits to place the proposition beyond serious debate. See, e.g., Massachusetts Citizens for Marriage v. Secretary of the Commonwealth, 440 Mass. 1033, 1033-1034 (2003); Opinion of the Justices, 438 Mass. 1201, 1203-1205 (2002); LIMITS v. President of the Senate, supra at 34-35; Opinion of the Justices, 291 Mass. 578, 586 (1935) (“[Final] action [on a proposal for an initiative amendment] must be taken at some time. The mandate is that the joint session shall continue from time to time until final action is taken”). Even counsel conceded at oral argument that it would have been inconceivable to the drafters of art. 48 that the Legislature would refuse to comply with its obligation to vote on a pending amendment that had been introduced by the initiative process. Yet, that is precisely what could happen on January 2, 2007, should a majority of the members of the joint session vote to recess without first taking a roll call vote on the merits of the initiative amendment.
3. The plaintiffs, however, have set forth no viable relief for the asserted violation. Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature’s indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter. G.L. c. 231A, § 2 (establishing express exemption from declaratory relief for “the governor and council [and] the legislative and judicial departments”). See Pawlick v. Birmingham, 438 Mass. 1010 (2002) (declaratory relief unavailable with respect to Senate President’s official duties as presiding officer of art. 48 joint session). The remedy of mandamus (once sought by the plaintiffs but since abandoned, see note 4, supra ) does not lie against the Legislature. See Milton v. Commonwealth, 416 Mass. 471, 475 (1993); LIMITS v. President of the Senate, supra at 35; Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 270- 271 (1960), and cases cited. Our holding in the LIMITS decision is clear: “The only remedy set forth in art. 48 for the failure of a joint session to act is a direction to the Governor to call a joint session or a continuance of a joint session if the joint session fails in its duty. Article 48 provides no judicial remedy.” LIMITS v. President of the Senate, supra at 34. See League of Women Voters of Mass. v. Secretary of the Commonwealth, 425 Mass. 424, 431-432 (1997); Opinion of the Justices, 334 Mass. 745, 757 (1956) (considering failure of joint session to vote on merits of legislative amendment, concluding “there is no means of compelling a joint session to take any action”). We recognize, as a practical matter, that the Governor’s recall power is unavailable here because the joint session, by recessing until the last afternoon of its existence, has effectively neutralized the Governor’s constitutional power. Nonetheless, the plaintiffs have not set forth any legally tenable judicial enforcement role in ensuring that the members of the joint session comply with their constitutional duties under art. 48, and, as has been pointed out, case law provides no enforcement mechanisms.
The plaintiffs appear to have abandoned a request asserted in their brief that we retain jurisdiction until after the final day of the 2005-2006 session of the General Court, to consider possible remedial relief should the inaction of the joint session result in a violation of art. 48. For the reasons set forth in this opinion, it is certain that any request for relief against the General Court or the Secretary (such as that initially set forth in the plaintiffs’ complaint, see note 4, supra ) that might be submitted to this court after January 2, 2007, would be equally unavailing. In the absence of an actual affirmative vote of not less than one-fourth of all members of the joint session, the Secretary lacks authority under art. 48 to submit an initiative amendment to the next General Court. See Massachusetts Citizens for Marriage v. Secretary of the Commonwealth, supra; League of Women Voters of Mass. v. Secretary of the Commonwealth, supra (purposeful distinction, in this regard, between art. 48’s provisions for initiative petition for statutory change and initiative amendment for constitutional change). The language of art. 48 does not permit, by inference or otherwise, a judicial order that the Secretary could permissibly deem the absence of a final vote on the initiative amendment to have the same effect as an affirmative vote, for purposes of submitting the amendment to the next General Court.
We conclude with these observations. Some members of the General Court may have reasoned, in good faith, that a vote on the merits of the initiative amendment in accordance with the directives of the pertinent provisions of art. 48 was not required by the constitutional text and that their duty could be met by procedural (or other) votes short of a vote by the yeas and nays on the merits. [FN7] Today’s discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people’s elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them. [FN8] See League of Women Voters of Mass. v. Secretary of the Commonwealth, supra at 432 (recognizing “the power of the people to elect a sufficient number of legislators who would not defy the requirements of the Constitution so that a joint session would be required to perform its duty”); LIMITS v. President of the Senate, supra at 35.
4. The case is remanded to the county court for entry of a judgment dismissing the complaint.
So ordered.
FN1. Raymond L. Flynn, Richard F. Guerriero, Bronwyn E. Loring, Roberto S. Miranda, Philip D. Moran, Joseph R. Nolan, Jossie E. Owens, Richard W. Richardson, Mitt Romney (the Governor), and Philip Travis (a member of the General Court). The plaintiffs are registered voters and residents of the Commonwealth and signatories to the petition that proposed the constitutional amendment which is the subject of this action.
FN2. President of the Massachusetts Senate.
FN3. In their brief, the plaintiffs requested a different declaration, that the Senate President, as the presiding officer at the joint session, has a nondiscretionary constitutional obligation to convene and maintain a joint session of the General Court until such time as final action is taken on the proposed initiative amendment, by a vote of yeas and nays, before the expiration of the legislative session, and that his failure to do so is an abdication of his constitutional duty. At oral argument, counsel for the plaintiffs conceded that, under the rules governing the joint session, the
presiding officer has no authority to force members to vote on a proposed initiative amendment.
FN4. In their complaint, the plaintiffs also requested an order in the nature of mandamus directed to the Senate President to reconvene the joint session, on or before January 2, 2007, and to present the terms of the proposed initiative amendment to the joint session for a vote on its merits as required by art. 48. Failing such a vote, the plaintiffs in their complaint request that this court enter an order directing the Secretary of the Commonwealth to place the initiative amendment on the ballot at the 2008 Statewide election for approval or rejection by the voters. It became apparent, durin
g oral argument, that the plaintiffs have abandoned these requests for relief, which could not be granted in any event.
FN5. The Committee for Health Care for Massachusetts, and ten individual qualified voters, have submitted an amicus brief calling to our attention a second initiative amendment still pending before the joint session, which, if successful, would establish a duty on the part of the Commonwealth to make health care insurance available to all Massachusetts residents. A joint session of the 2003-2004 General Court had approved the health care initiative amendment, by a rollcall vote of 153 to 41, and it was transmitted to the 2005-
2006 General Court. See art. 48, The Initiative, IV, § 4, of the Amendments to the Constitution of the Commonwealth. The amici have filed a complaint in the county court seeking a declaration that “the 2005-2006 General Court’s unconstitutional failure to vote on the health care amendment is without legal effect, and that the Secretary of the Commonwealth should place the proposed amendment on the 2008 statewide ballot.” They have not, however, requested that their complaint be heard and acted on.
FN6. It is significant that the parallel initiative process for a legislative amendment requires an affirmative vote of a majority of the members of the joint session in order to be referred to the next General Court. Art. 48, The Initiative, IV, § 4. To ignore this distinction would render meaningless the requirement of only one-fourth affirmative vote in the case of an initiative amendment. The framers clearly contemplated that an initiative for constitutional change, unless unable to command the approval of a one-fourth minority of two successive General Courts, would be submitted to the people. See Opinion of the Justices, 386 Mass. 1201, 1212 (1982) (one-fourth approval required as “legislative minority check” to “ensure that initiative amendments submitted to the people for approval have at least a reasonable amount of public support”).
FN7. The plaintiffs have submitted to the court copies of articles recently appearing in the news media indicating that at least some members of the 2005- 2006 General Court may be confused as to the nature of their constitutional duties under art. 48.
FN8. The requirement that a roll call vote be taken at various stages of the initiative amendment process, see art. 48, The Initiative, IV, §§ 3 and 4, ensures the political accountability of individual legislators.
“When building the legal structure of the state, it was generally assumed that the members of the Legislature would obey laws like decent human beings. Since we all assumed that, there’s no way to actually make them obey the law when they don’t feel they have to.”
Rather then vote to put the civil rights of a persecuted minority on the ballot, the legislators should say:
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p> “I am practicing civil disobedience. I am not going to support of a vote on this issue. I am willing to accept the consequences at the ballot box if the people disagree with this decision of conscience”
“I, A. B., do solemnly swear and affirm, that I will faithfully and impartially discharge and perform all the duties incumbent on me as [office] according to the best of my abilities and understanding, agreeably, to the rules and regulations of the constitution, and the laws of this commonwealth — So help me, God.” – Oath of Office, Mass. Constitution
For instance, if a law is unjust, then breaking the law is perfectly decent. Were those that illegally harbored escaped slaves before the Civil War not decent human beings?
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In this case, members of the Legislature can argue that this law was unjust in this instance because it would allow one minority to restrict the rights of another minority.
But they wanna keep the perks, don’t they? Fine bunch of MLK’s and Ghandis THEY are, the little perjurers!
…disagree with what the court says thay are supposedly obligated to do under the constitution, how is their action a violation of their oath?
Are you saying that the legislature has the authority to override the SJC’s interpretation of the Constitution? That is, is it your position that the legislature may not only refuse to act in accordance with what the SJC says (we already know that they can), but in fact to declare the SJC wrong, and declare themselves the arbiters of the meaning of the Constitution?
If they did this for moral reasons, then for the same reason it is morally incumbent on them to stay in office as long as they are allowed in order to protect the rights of the minority.
Those who practice true civil disobedience understand that, as part of what they’re doing, they may end up suffering consequences. MLK, for example, understood and accepted that he might end up in jail for what he was doing — and so he did. As Dr. King explained,
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But today we read that the legislators are up in arms about the possibility that Romney may delay their biennial pay raise as part of this brouhaha. Hmm.
More like mildly annoyed.
until he actually does it. Then we’ll see how “mildly annoyed” they are!
I don’t think they are all that worried. Also don’t forget that Romney cannot just withhold the raise from his opponents, but must also hurt his supporters as well. Furthermore, leaving this to Deval to take care of just ensures that the Legislature will owe Deval one from the very start.
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My guess is that Romney will probably go through with it anyway.
This came up in a language and ethics class I had during a discussion of Crito. For those unfamiliar with this work, Socrates is offered the chance to escape from prison before his upcoming execution. He refuses, and trots out the positions of “respect for law.”
There is an excellent Howard Zinn essay on this, one of my favorites of his. Here are excerpts:
<A HREF "http://books.google…. “>Here and here.
The basic point is this: breaking the law is acceptable. Refusing to accept the punishment that the law hands down is acceptable. Look especially at the second link, page 382:
“Can a decent society exist (that is our concern, not the state“, if people humbly obey all laws, even those that violate human rights? And when unjust laws and unjust policies become the rule, should not the state (in Plato’s words) be overthrown?
“Most people quickly accept the idea of disobedience in a totalitarian society or in a blatantly undemocratic society as in the American South with its racial segregation. But they look differently at breaking the law in a liberal society, where parties compete for the votes of citizens, where laws are passed by bodies of elected representatives, and where people have some opportunities for free expression of their ideas.”
Also look at the two paragraphs at the top of 382 on the second link, which specifically address the fallacious (I believe) principle of “accept your punishment.”
Legislators are right to stand up against injustice.
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2. Who decides when it’s OK to break the law and refuse to accept the consequences?
It isn’t that doing so would break the law, but that it would corrupt his friends that Socrates must refuse to escape. Socrates is offered escape by way of bribery; his friends offer to pay off his guards. Since Socrates devoted his life to the promotion of virtue, he cannot escape in this without corrupting the souls of his friends and his guards: he would be a hypocrite, acting exactly counter to his self-professed purpose. Since Socrates submitted to Athenian law, the rules of the Athenian court, thus bound himself to this judgment; by participating in Athenian politics, and his trial, he consented to submit to whatever outcome he was consigned to. The life of Socrates and his submission to the verdict could be considered a pre-cursor to modern civil disobedience.
That’s only one of his points…I’m referring to this:
“And was that our agreement with you?” the law would say; “or were you to abide by the sentence of the State?” And if I were to express astonishment at their saying this, the law would probably add: “Answer, Socrates, instead of opening your eyes: you are in the habit of asking and answering questions. Tell us what complaint you have to make against us which justifies you in attempting to destroy us and the State? In the first place did we not bring you into existence? Your father married your mother by our aid and begat you. Say whether you have any objection to urge against those of us who regulate marriage?” None, I should reply. “Or against those of us who regulate the system of nurture and education of children in which you were trained? Were not the laws, who have the charge of this, right in commanding your father to train you in music and gymnastic?” Right, I should reply. “Well, then, since you were brought into the world and nurtured and educated by us, can you deny in the first place that you are our child and slave, as your fathers were before you? And if this is true you are not on equal terms with us; nor can you think that you have a right to do to us what we are doing to you. Would you have any right to strike or revile or do any other evil to a father or to your master, if you had one, when you have been struck or reviled by him, or received some other evil at his hands? — you would not say this? And because we think right to destroy you, do you think that you have any right to destroy us in return, and your country as far as in you lies? And will you, O professor of true virtue, say that you are justified in this? Has a philosopher like you failed to discover that our country is more to be valued and higher and holier far than mother or father or any ancestor, and more to be regarded in the eyes of the gods and of men of understanding? also to be soothed, and gently and reverently entreated when angry, even more than a father, and if not persuaded, obeyed? And when we are punished by her, whether with imprisonment or stripes, the punishment is to be endured in silence; and if she leads us to wounds or death in battle, thither we follow as is right; neither may anyone yield or retreat or leave his rank, but whether in battle or in a court of law, or in any other place, he must do what his city and his country order him; or he must change their view of what is just: and if he may do no violence to his father or mother, much less may he do violence to his country.” What answer shall we make to this, Crito? Do the laws speak truly, or do they not?
😉
is the most hilarious thing I’ve heard all day. These 109 legis may be dodging a vote they are supposed to take, but ol Willie has been dodging his duty to the state for 4 years. knee-slappin funny, I tell ya!
The legislators ARE upholding their oath of office by turning their backs on this vessel of bigotry. They see that it was a small hate group that used out of state money to buy signatures for their petition against gay marriage. Rampant fraud was committed in the signature gathering process, and is still under criminal investigation. This petition was not the will of the people, and the legislators know that. They also know that people don’t get to vote on someone’s civil rights.
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Legislators see the REAL will of the people of Massachusetts as being one that wants to move on and be done with this fight against equality; one that had no due process. How can anyone look at this petition and not realize the virulent few that spawned it have not justified it’s need? Absolutely none of the fears they tried to say would be visited upon our society have come to fruition. I guess none of these points matter to the few people who would rather parrot “Let the people vote!” than have dialog over it’s necessity.
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The Constitution protects all people’s rights equally, and one person’s right to marry who they want is no special favor, and is defended through the stance of equality. It is enough that people have their own freedoms, they do not need to control their neighbors and tell them they can’t marry because they are different. That is all this petition boils down to. Bigotry is an ugly part of our past, but it does not need to be maintained as a standard of living. The lack of due process coupled with the fundamental need for equality gives the legislators the right to turn away from this bad idea for the good of all. History will put this issue in the light it deserves, and the legislators that stand up against hate for hate’s sake will be remembered as heroes.
I don’t think this will change the expected outcome on Tuesday. I also don’t think that anyone is going to pay for this next election cycle, either. If the voters weren’t willing to oust their reps over support for gay marriage, I don’t think they are going to pay much attention to this issue.
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The decision that this aspect of article 48 is not enforceable, in essence invalidates it. Yes, politicians can always be held accountable at election time, but that is really no different from holding them accountable for their constitutionally valid actions.
…when the TIMING of the vote was deliberately moved until AFTER the election?
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People don’t like being lied to – and Trav said, at the BEGINNING of the Session – there WILL be a substantive vote on this issue (just after the election).
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The unwillingness to vote people out has a GREAT DEAL to do with the deceptive tactics used by the Senate President to give the Democrats cover.
Obviously, some people feel strongly about this, but I think most of those people already would have voted against representatives who showed a willingness to support same-sex marriage. There weren’t enough of those people to vote anyone out of office in November, and there won’t be enough of those people next time either.
Was it really all that hard to move the vote?
It was easy. That’s the point.
You implied that the amount of trouble they went through to move the vote indicates they were afraid of significant voter backlash. But if it was in fact very little trouble to move the vote, then perhaps they were only afraid of a very minor backlash.
Most of them already knew they were running unopposed.
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Does this strike you as a good thing?
I would like to see more contested races, but who are you going to blame for that? Republicans have had a tough time recruiting credible candidates in many districts.
A prime example: Attack and devalue the entire legal profession, especially solo practitioners who represent the poor [as Gov. Romney did in a veto of 20% of the funding for line item 0321-1510 that pays the tiny group who represent the indigent, and who financially bear the burden for the Commonwealth – thereby alienating a large pool of potential candidates as prior to Romney a large portion of these attorneys WERE Republicans, and when they did run for office during Romney’s tenure, they were not supported because there are already too many already too many attorneys in the legislature]…oh yeah, and then Healey lobbed mud at the whole profession….I serve on a Board of a bar association where many of the Board members are ex-military and consider themselves Republican and THEY were alienated as well…
be careful not to try to blame pro-equality folks for that as well.
…that the results of the Nov. 7 election would have been any different if the vote had been taken before the election, are you?
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If you are, I have a bridge that you might want to consider buying.
…with one legislator in particular taking advantage of the Traviglini Screen.
…in a rural area is quite a few votes.
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Try again.
n/t
Not really all that close.
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Closer than most races, however.
But didn’t want to vote for a Republican because they didn’t want to believe they were lied to. Of course, he voted to recess.
From extensive exit polling of people who admitted they didn’t vote for that office? I don’t think so.
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…you know how the persons who cast the blank ballots would have voted if they had bothered to cast a vote, are you? If you are, you are more super-human than anyone would have expected.
If you look at the results of other contested State Rep races you will see that a 2.6% blank rate is on the lower end of the spectrum. For Peter’s explanation to be true, I would expect it to be on the higher end.
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I think it is more likely that people didn’t vote for the usual reason: they just wanted to vote for state-wide races and did not have much of an opinion on the local ones.
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You can check for yourself:
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http://www.sec.state…
…”yr obedient servant” can do, then it pretty much belies her assertion that such-and-such-number-of-races were decided by only 400 votes or so.
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What is also instructive is the fact that the Republican party chose to contest races in only about 1/3 of the seats. Those races were obviously decided by the party’s default.
…your statistic is pretty much irrelevant unless you compare it with previous elections.
Did you notice that as Rep. Philip Travis decided not to run for re-election, ALL of the candidates that ran in his district were pro-equality? This lends substance to the idea that he was voting his own will and not his people’s. My opinion is that he decided not to run for re-election because he knew he would be defeated, and he didn’t want his carrer to end with the same egg on his face that Marie Parente has on hers. This petition was not the will of the people, and the election results prove that with the unprecedented support given to pro-equality candidates. The legislators have nothing to fear for standing up in the face of bigotry and saying, “NO MORE!”
A good, sensible opinion from the Justices. The case itself is little legal value, since the holding is simply “complaint dismissed”, and the dicta regarding the interpretation of Article 48 simply restates what everyone already knew from the LIMITS case (though in clearer and more forceful language).
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But politically, it will be interesting indeed. The real question very well may be whether there will likely be fewer than 50 votes in favor of the amendment in the next session (thereby making this vote less important). Assuming the session expires without final action on the amendment, it will also be politically interesting to see if this inspires the anti-gay marriage forces to fully take over the MA Republican Party and press this as a major political issue (as in 2004), thereby consigning the party to a fate even worse then it finds itself in today.
Does it automatically expire at midnight next Tuesday, or do they actually have to vote to adjourn?
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If it is the former, then the good guys could always “run out the clock” and kill the thing without ever even voting to adjourn simply by keeping debate open until time expires (kinda like a filibuster).
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Or is that not possible? I’m kinda worried the court’s quite forceful language will convince some legislators who voted to recess in November not to do the same this time.
That case is frivolous and will no doubt be dismissed shortly.
The SJC ruling just adds credence to the statement that the Legislature may violate 1st and 14th amendment rights. AND commit perjury.
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Do they have to be sworn in if they abrogated their oaths? Can an injunction be obtained?
…not to be able to draw up a federal complaint to withstand a FRCivProc. 12(b)(6) motion to dismiss. That’s all that was decided in the federal lawsuit.
Cases get dismissed on Rule 12(b)(6) motions all the time. I don’t know anything about the specifics of the motion practice in this case, but it’s not correct to say that it’s always easy to survive a motion to dismiss.
…virtually all that is required for a complaint to survive a R. 12(b)(6) motion is that it correctly allege jurisdiction and venue, and a case under federal law (statute, constitution, or whatever), or, if the case is brought under diversity jurisdiction, a claim under state law.
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Don’t confuse a motion to dismiss (R. 12(b)(6)) with motions for summary judgement. They are very different things. A motion to dismiss is based on the “four corners” of the complaint, whereas a motion for summary judgement is based on the substantive facts as presented in the motion and the response to the motion.
don’t lecture me about civil procedure. I know a thing or two about it.
…I seem to have more degrees than you do.
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If you have a point, please make it.
is that if you think the only time a case gets dismissed on a FRCP 12(b)(6) motion is when the lawyer opposing it is incompetent, you know nothing about civil practice in the federal courts.
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Got it?
Lots of more-than-competent lawyers have had cases dismissed under Rule 12(b)(6). It really does happen all the time.
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Anyway, this is a pointless debate – I actually agree with you that the non-dismissal of this particular federal case doesn’t tell us very much.
Heh
unless winning is more important than discussion.
That the case was not dismissed by summary judgment isn’t particularly surprising since Constitutional claims are involved, and really says nothing about the frivolous nature of the suit. There is no precedent for judicial action on the arguments found in that complaint and the court will not fashion anything now.
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Also, the ruling in the SJC case was “complaint dismissed”. I doubt that would be too helpful in the Federal case (which is based upon the US, not MA, Constitution in any case).
…as opposed to some of the issues involved in this state suit, the Federal court case you mention has absolutely no legal merit to it so I doubt many legislators will take it into account.
…especially since they are individual plaintiffs. Not the Commonwealth – so the AG has no duty to defend.
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Interesting factoid – Trav is not named, because he voted ‘no’ on the recess vote.
whether the session automatically ends at midnight on Jan. 2, or at the moment on Jan. 3 when the new legislature is sworn in. In either case, I don’t think a formal motion to adjourn is needed – it seems to happen automatically. Anyone got more precise info?
Is there any chance that enough supporters would not show up to the final session to allow the initiative to be voted on and defeated?
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If that were to happen, then would that really satisfy those who claim to be upset that legislators are violating their oath of office?
and that is amend the loophole out of the constitution. HC and procedural folks, are you up for the challenge? it was more important to you (and the homobigots at VOM, of course) than marriage equality, so i expect the sjc’s decision will trigger some signature-gathering activities in your camps? am i correct? if not, why not?
Should the judiciary be allowed to punish the legislature? That would trigger a Federal consitutional crisis!
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This SJC has said – the Lege has a duty to vote, despite their claims that a roll call on a recess covered their butts. Period. So where’s the loophole?
the SJC says the legislature must vote, but there is no enforcement/punishment mechanism if they don’t. I don’t have the answer as to how the law or constitution could be changed to remedy this; I’m not one of the ones who is bothered that the loophole exists. David, HC folks, VOMers, how do you recommend we change things so that legislators can never again not vote on a constitutional amendment without punishment? Although I do not have the answer, I will answer your concern, PP, and say that I certainly am NOT advocating that the SJC be given some sort of police power in this.
…any legislator who abrogates their oath of office by refusing to proceed to a substantive vote may not be seated if reelected to another subsequent term, although they may run for office in the future.
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Howzat?
who voted for the person, so good luck with that one.
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But as I said, I’m not wedded to any solution because I’m not seething about the loophole. So if there is a concensus among those who hate the current state of things that that should be the remedy, then go for it. Get another petition drive started. It is what any self-respecting opiner of the current situation must do, is it not? Or is all the bad blood raised over this issue going to be for naught? [this comment not aimed at you PP per se, but generally]
I don’t. Personally, I like the separation of powers, and I am a big believer in the notion that recourse to the judiciary does not and should not solve everyone’s problems. In many cases, it’s much better to work these things out through the political process. The SJC has done what it can do: it has stated its interpretation of what the law is. Now it’s up to the legislature to decide whether or not to abide by it. If they don’t, then, according to the SJC, they’ve violated their oaths of office. Will they suffer political consequences? Who knows? That’s the beauty of the political process. I think, as I have said all along, that the legislature should vote, because they should abide by their oaths. (Otherwise, why take them?) If they don’t vote, the consequence for their failing to do so will be up to the people. Which is as it should be.
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All of which is to say: it’s not a loophole. It’s how our system works.
I’m definitely on the same wavelength as you today. Well said!
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This comment gets to the heart of the problem of setting up this whole “final action” debate as between those who are supposedly “pro-process” and those who are “pro-substance” (as in, the “civil right” of marriage trumps process so the outcome is what counts).
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I, for one, think the outcome here represents the best possible process. You have 1) the judiciary scolding the legislature but respecting the separation of powers and 2) the political process of the ballot box firmly in place if you don’t like whatever the legislature decides to do next week. That’s “respecting the process” in the most ideal fashion.
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And as far legislators “abiding by their oaths” goes, well, the people in the aggregate will decide in the next election whether the oath to defend the constitution for all citizens “trumps” the necessity to follow Article 48’s commands. Should be interesting.
I’d amend Article XLVIII to follow the HC folks’ suggestion. If the General Court does not vote on an initiative petition, let the petition pass to the next stage as if the General Court had voted “yes”.
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Or, in other words, change things so that the General Court has two chances (in two consecutive sessions) to “veto” the petition by a 3/4 margin (but that it only needs to be “vetoed” once — it doesn’t need to fail in both sessions). If they don’t vote it down, it goes to the people.
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Getting the language right would be easy. I have zero confidence that the Legislature would make this change, though.
…changing it so that you need 50% + 1 to pass an initiative petition.
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All the initiative process should guarantee is that the initiative be considered by the general court, basically, it should let the people put a subject on the agenda that otherwise might not be even considered, but the ridiculously low bar of 25% (which in effect lets any initiative automatically go onto the ballot, because pretty much any proposal in the universe will garner 25%) should be eliminated.
The basic premise of Article XLVIII as currently written is that the Constitution is our Constitution, not the Legislature’s. Thus, the Legislature should serve as a gatekeeper to modification, a filter to keep insane ideas off the ballot, but by and large let most (not all) stuff through. Which is how they’ve served when they’re not flouting their responsibilities.
That is the problem.
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Are we a republic or a direct democracy?
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The way things are now, any kook with enough money to hire some signature-gatherers can get any insane idea on the ballot. If we wish to keep the initaitve as a legititmate check on an unresponsive legislature, at least modify it so that the bar for entry is very high, making only matters of extreme public importance get on the ballot.
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And finally, how about making it so that civil rights can’t ever be subject to a vote? Vote on selling liquor and taxes, fine…but basic civil rights should not be subject to a popularity contest.
Any kook with enough money can get a question to the legislature, but it still must get some reasonable support, 1 out of 4 for two consecutive sessions, to get on the ballot.
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The problem with requiring 50%+1 is that you basically throw the issue back to the same Legislature that the initiative process was meant to circumvent in the first place. If an idea could get the support of a majority of the legislature, then it probably wouldn’t be necessary to gather signatures in the first place.
…amend the loophole out of the constitution.
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Perhaps the loophole that needs to be addressed is the low ratification threshold (in the legislature) for citizen initiatives. We are governed under the principles of a Republic, not a (direct) Democracy. With the current system, especially if the legislature were compelled to vote on these things, it’s not that hard to strong-arm the Republican system, forcing it to submit to the will of a direct Democracy. Is that what we really want? The current issue of denying rights to a minority is a good example of why this should not be so easy. The legislature has found an unwritten work-around for this weakness, and it looks like they will succeed, but it would be better if such a work-around was not needed.
Clearly, before we make a 3-5 year commitment to join together and close any Article 48 loopholes by initiative we should ask ourselves some basic questions:
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Unless we know the answer to each and every one of these questions and the answer is favorable to our position there is no point in wasting our time trying to close any Article 48 loopholes. If the answers are favorable – we should go the legislative amendment route because its easier and we already have a majority in support.
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Barbara Roop
This is a civil rights issue. It is just for the legislature to practice civil disobedience by refusing to vote on the pending anti-gay amendment.
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If the legislature practices civil disobedience by refusing to vote on the amendment, they will be taking part in a long standing tradition in the commonwealth. Massachusetts has a very long history of civil disobedience when it comes to matters of freedom and civil rights. Let us not forget the Boston Tea Party and the American Revolution.
How many Bay Staters broke federal law by not remanding runaway slaves to their “owners”? One such person was famously a judge in Boston (mane escapes me at moment). He is lauded universally as far as I know for his subversion of that unethical law.
I guess the response to that is simply that while certain historical examples of civil disobedience look good now in retrospect, it is often difficult if not impossible to know how “right” the “civil disobedience” is when it’s occuring in the present. After all, civil disobedience was no doubt used for causes that don’t look so great today (like secession).
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That’s part of the reason I prefer to think of this not in “civil disobedience” terms but simply in everyday political process terms. One side claims (with new judicial backing) that the legislature isn’t doing everything it should be under the Constitution; the other side claims that the issue simply isn’t important to most people and we should move on.
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Let the voters decide that when they cast their vote for or against their legislator during the next election. That’s the correct democratic process.
“the other side claims that the issue simply isn’t important to most people and we should move on.”
Actually we are saying that it is SO important, indeed an issue of civil rights, that it should not be voted on.
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There were many people in 1776 that were against practicing civil disobedience. They simply wanted to follow the everyday political process. Luckily, the Massachusetts delegation was able to convince the others to do the right thing…and disobey the law.
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Marriage equality is not the same as Independence. However the principals are the same. Gays and Lesbians have been oppressed, not treated equality under the law, and denied their civil rights for hundreds of years. It is time to do the right thing…and disobey the law.
you do see the dilemma here, correct? After all, people on the anti-gay rights side also think that this is an issue of THEIR civil rights. Also, I’m sure a Southern seccessionist back in the day would have used the same argument as you are now for why his unlawful actions were morally correct.
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I’m on your side on this political issue, but I think there are some real concerns with the “civil disobedience” argument you raise here. Who is to say one thing or another is “morally right”?
They really don’t see how this can precipitate anarchy. ‘Civil Disobedience’ with no untoward consequences – how VERY 21st century! Thoreau would be proud.
this is NOT a civil rights issue. It’s not their right to get married that is in jeopardy. They argue on religius grounds and that has no place in civil government.
when laws are disobeyed by the state.
i take your point, Trickle Up, but are legislators ‘the state’? i think of the state police, for example as an arm of the state because they are career state employees in control of lethal power, often operating out of the public eye. lots of legis have been in office for a long time, but their ‘contract’ is renegotiated every 2 years, so to say. i don’t count them as the state, but rather the people’s representatives before to the state. if the people they represent don’t mind them being civilly disobedient, then…
There is not anything fundamentally unjust about the process to amend our Constitution, which is the issue at hand. If the process to amend the Constitution was fundamentally unjust (like taxation without representation) then they would have the right, and I’d even say the moral duty, to disobey it.
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You are confusing the two issues. Doing your duty as a ConCon and holding the vote is one issue. Supporting or opposing the marriage amendment is another. You can not claim civil disobedience in this instance.
The constitutional process has been hijacked by right-wing extremists bent on denying people basic human rights. In this case, I still think there is a moral duty to keep this amendment off the ballot.
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This isn’t a question of amending the constitution to fix problems with taxes or transportation or selling booze, it is a matter of fundamental human decency, and I think that trumps “process”
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A lot of liberals may disagree with me, but history has been rife with examples of good people who followed process, and let evil triumph because of this.
Nothing was hijacked. The proponents of the amendment went out and jumped through every legal hoop put before them by the Constitution. They dotted all the i’s and crossed all the t’s. Then, with only seconds remaining the goalposts weren’t just moved, they were removed from the stadium all together.
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You are not trumping process then. You are trumping the Constitution. How can anyone be sure that the General Court or the Governor or the Courts, or the State Police, or the MBTA, or the lottery or any other branch of the state may not in the future just say “Screw the Constitution. I think this is bad, and I don’t care what the Constitution says or what the SJC says or what I swore an oath to do. I am going to do what I want to do.” Then we live in a dictatorship – do you really want that? We would be no better than the Soviets – they had a great Constitution, they just ignored it when it was inconvenient.
it is the dictatorship of the majority which reserves special privileges for itself.
Like 109 of 200 who decide which parts of the Constitution they will and will not follow?
To my mind, any process that allows the Constitution to be changed by a minority to take away the rights of another minority is fundamentally unjust.
I think there WILL be a substantive vote on Jan. 2nd.
If a motion is made to adjourn and 101 vote for that, there’s nothing he can do to stop it.
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The real question is if 8 legislators will change their votes because of this decision and vote against adjourning. There will certainly be some browbeating to try to get this to happen.
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I am guessing that is where the drama will be seen.
Our state Constitution provides for impeachment of legislators in the event of “misconduct” or “maladministration” of office. Given today’s SJC ruling, and the legislators’ oath of office, it would seem clear that failure to vote yea or nay (and I hope they vote “nay” btw) is either or both. I truly hope, regardless of legislators’ views on equal marriage, that our elected officials uphold the Constitution. When was the last impeachment of a legislator in Massachusetts anyhow?
would you go after all of them, or just the house and senate leaders? how would simultaneously removing a majority of legislators from office affect the conduct of business in the legislature? would those seats remain vacant until 2008, or would the gov. appoint replacements? could he reappoint the people just deposed? would any meaningful business get done while all this is going on? would it really be worth it?
without an up or down vote would be committing “misconduct” or “maladministration” of office in violation of their constitutional oath, no? For an interesting history of impeachment, particularly Massachusetts’ constitutional guidance for the federal version, see http://www.lib.utah….. No cracks about the Utah source…..
can the legis even conduct business with less than half it’s seats filled? i think the chaos factor needs to be carefully considered before impeachment of a majority of the legis.
…..if the stakes rise to such obvious Constitutional moment, perhaps our Representatives and Senators will realize that their oath of office trumps all other considerations and follow the law. For a very thoughtful post, see Charley’s “They Should Vote and Vote No” elsewhere in this blog. Given the choice between 200 legislators, many of whom violate their oath of office, or 100 legislators and 100 vacancies for special elections, I’ll take the smaller group of folks who follow the law thanks.
I can imagine few things that would make people around here happier than kneecapping the Legislature and giving Deval rule by fiat.
I don’t think that voting in favor of recess or adjournment without an up or down vote is either misconduct or maladministration. On the contrary, I think a lot of legislators may feel that they are in fact fulfilling their oath of office — their oath to “bear true faith and allegiance to the Commonwealth” and to “support the Constitution” — by voting in favor of recess or adjournment.
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In fact, none other than Republican Senate minority leader Brian P. Lees said that his duty to vote against a measure that would discriminate against a minority group trumped the court’s findings. “I will never vote to put a form of discrimination into the state constitution,” said Lees, an East Longmeadow Republican. (From today’s Globe story)
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The whole impeachment movement really seems to be a non-starter to me. Assuming for the sake of argument that there was misconduct or maladministration (which, again, I do not believe there would be), impeachment would involve a majority of the legislators finding that their own acts rise to the level of an impeachable offence and then removing themselves (or their leaders) from office. In other words, if a majority of the Con Con votes to recess or adjourn, how would there be a majority of the House to impeach or a majority of the Senate to remove the legislators from office?
When the legislature refused to vote to put “a woman’s right to choose” to the voters?
And for those legislators who are comfortable with the idea that impeachment can’t happen – there’s always recall.
Does it?
…that would explain the Asselins and Rogers holding their seats, though.