A little background. This case is being brought by ten voters seeking an SJC order to place the Health Care Constitutional Amendment on the 2008 ballot after the 2005-2006 Constitutional Convention failed to take an up or down vote on its merits. The Amendment is a proposal that citizens have guided through the complicated Article 48 process for over three years. They gathered over 90,000 signatures. They got the first of two required approvals. Then they were denied a constitutionally required vote on the last day of the last legislative session.
There is no question that the Legislature had a duty to vote. Five days before the Constitutional Convention met on January 2, 2006 the SJC issued the Doyle opinion holding, in part, that the Legislature must vote on every initiative before it. When the time came, the Legislature cherry picked between the two initiatives on the Calendar. It chose to vote on one, the same sex marriage ban, and, then, over the objection of 91 members, to use a procedural maneuver to avoid a vote on the Health Care Amendment. The only logical explanation is that the Amendment had the 50 votes needed to go to the ballot. If the votes were there to kill it, it would have come to the floor in a flash and been defeated.
The Court’s opinion will determine the future of the Health Care Amendment:- will it die from legislative inaction that violates the state constitution or will the voters get to decide if the People of the Commonwealth should have an enforceable right to affordable, comprehensive, equitably financed health and mental health care coverage.
But the plaintiffs in this case are even more concerned with a more crucial issue:- will our elected officials be held accountable to the constitution they are sworn to uphold?
On January 2, 2006 the Legislature thumbed its nose at the voters and at the SJC. It ignored a part of our constitution added in 1917 specifically to give the People a way to get around a “recalcitrant” legislature. It’s own recalcitrance was a clear statement to the SJC that it will pick and choose when to pay attention to court opinions. It should be a wake up call to all of us that we should keep this power for when we might need it in the future to control a Legislature that increasingly forgets that it exists to serve the People and that all its powers are derived from them.
If there is no remedy for such a flagrant violation, then the balance of powers between the People and their elected officials and between the legislature and judicial branches will has been permanently altered.
This case asks the SJC to restore the system of checks and balances designed to protect our individual freedoms on a day to day basis. In Massachusetts, that balance includes a direct role for the People. Only We can give that power away. The Legislature can’t just steal it back without Our consent. If they are allowed to all doubts that a “government of laws, and not of men” is beyond our reach.
Oral arguments will take place at 9:00AM, November 5th, at the Adams Courthouse, 2nd floor, Courtroom 1. They are open to the public or you can watch the webcast live or later in the day through the archive.
Here’s a short summary of the arguments for those who just might get bogged down with almost 150 pages of lawyer-speak.
The Plaintiffs Brief: Absent a meaningful remedy the Legislature will have rewritten the state constitution. The SJC has the power to craft a remedy to make Article 48 serve the purpose intended by the framers. In fact, after months of research, our attorneys have been unable to find and the Attorney General does not provide any case where the SJC did not provide a remedy after it has emphatically stated the law and been defied.
The Attorney General’s Brief: The language of Article 48 is fatally flawed and the SJC will be rewriting the constitution if it provides the requested remedy. The only options are to get two consecutive legislatures’ approval to “fix” the language or to “throw the bums out”.
What do you think?
Barbara Waters Roop, PhD, JD
Plaintiff and Co-Chair
Committee for Health Care for Massachusetts
617-413-1622
