Blue Mass Group

Reality-based commentary on politics.

Question for David, Anthony, and other Lawyers Here

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Out of respect for the Senator, although I had this question yesterday I held off asking it.  I had a rather lengthy discussion by email yesterday about the legality of changing the succession law after an event has transpired that puts its provisions into motion.  

There is a longstanding legal practice that you can’t change a law to retroactively affect current events.  I’m not sure what the legal term of art is, but we saw it at play within the last two weeks when the SJC said that it was unconstitutional to force previously convicted sex offenders to wear GPS ankle bracelets.  

My question to the two of you and other lawyers is this.  Now that the Senate seat is vacant, can the law regarding the filling of it be changed and affect the current vacant Senate seat?  If so how? If not why?

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  1. None of the constitutional issues like those driving the ankle bracelets case are in play in the Senate seat situation.  The lege can pretty much do whatever they want, it seems to me.  Certainly, I see no problem with changing the law now to give the Gov an interim appointment.

        • Is the “can’t change the rules during the game” thing a way to protect people from prosecution or civil action over an act that they may have committed before it was a violation of a law? Ex: We just passed a law against poking cows in the eye and you poked a cow in the eye last week, you’re under arrest.

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          p>And since the law proposed is governing a process, it doesn’t matter that the situation is one already in play?

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          p>My other thought is that laws or bills are usually on a “going forward” basis because of budget considerations or to allow time for education about the new law or the creation of processes to enforce/administer.

    • Upon failure to choose a senator or representative in congress or upon creation of a vacancy in that office, the governor shall immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative. The day so appointed shall not be more than 160 nor less than 145 days after the date that a vacancy is created or a failure to choose occurs.

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      p>Link.  There’s no discretion — the vacancy existed as of the moment of Senator Kennedy’s death, and the Governor is supposed to cause precepts to be issued “immediately” thereafter.  Regardless, I don’t see an ex post facto problem here.  No one’s rights are being adversely affected.  No one has a right to be a Senator.

      • They do have a right to RUN for Senator, under the law as it stood on the day of the vacancy, no?  

        • But certainly no one has the right to be APPOINTED Senator.  Even if one could argue that the dates of the special election cannot change, if the law were changed there would be no reason why someone could not be appointed in the interim.

        • Is it really a constitutional violation to say to potential senatorial candidates, you only have 75 days, instead of the 150 you were counting on?  What constitutional provision does that violate?

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          p>Seems awfully tenuous to me.  But maybe a court would decide otherwise.  

      • i wasn’t sure if the ‘immediately’ timing of the announcement mattered, but I see the date appointment is contingent on the date of vacancy, not the date of announcement.

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        p>(It’s nice to have a lawyer on site…)

  3. …is that “ex post facto” doctine applies to criminal law.  In other words, you can’t do something today which is perfectly legal when you do it, only to have whatever you did outlawed tomorrow and then get arrested the next day.  It’s in the same clause of a bill of attainder prohibition whereby a legislature can’t just find you guilty by passing a law saying so.  These seem to both relate to preventing the state from determining someone to be a criminal just because they don’t like you.

    • For example If I were to open an adult bookstore, and the town fathers thought it was a bad idea and changed the zoning. My bookstore could remain in its current location.  That’s civil not criminal.

      • For example If I were to open an adult bookstore, and the town fathers thought it was a bad idea and changed the zoning. My bookstore could remain in its current location.  That’s civil not criminal.

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        p>But your actions are the ‘ex’ in the ‘post ‘facto’… so to speak. Nobody is changing the zoning based upon the timing or the circumstances of when the previous occupant of your storefront vacated the premises.

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        p>In our present circumstances, the death of Senator Kennedy is just the proximate cause for the actions of the governor, which would be at play here. The legislature is merely directing the actions of the governor.

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        p>Now if, for instance, in 2004 Gov Romney had actually made an appointment and then the legislature changed the law in attempt to nullify the appointment… that would be illegal.

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        p>In our present situation, should the legislature change the law to return the absolute power of appointment to the Governor (i.e. completely revert to old law) than a case can be made for ‘ex post facto’ mitigation since, upon the death of Sen Kennedy, the law was invoked and an election, it would be argued, must occur.  As far as I am aware nobody is advocating this.  Advocates merely wish to prevent lack of representation between the death and the election.  

        • Current law requires the Governor to call a special election within 15 days of the vacancy.  That is a week from next thursday.  So there is less than a week for them to change the law, one would assume.

          • Current law requires the Governor to call a special election within 15 days of the vacancy.  That is a week from next thursday.  So there is less than a week for them to change the law, one would assume.

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            p>I’m not sure a change to the law is needed as much as a small amendment, or even a separate law governing the interim.  I think that the governor will call a special election within the time period and that election will be held.  The question isn’t about the election. Everybody seems to want the election. The question is about representation up until the point the election takes place.  

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            p>So the law won’t change very much, if at all. Everything that is specified in the law will occur and become fact, I should think.    But an amendment, or even an entirely separate law, will provide for appointments by the governor until the election results are ratified.  

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            p>I think, then, that the stickiest question is about whether the appointed person might be eligible to run in the election, while simultaneously serving the interim appointment.  

      • You couldn’t be penalized for opening the store prior to the rezone, but I figure you could be closed down afterwards, possibly with compensation.

        • That his legislative body has been told numerous times by lawyers that they cannot do that.

  4. Harry Reid already said it ain’t happening before Christmas.  Why is there such a rush to have someone — anyone — in that seat until the special election?

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    p>It just seems like they have little to gain by having that one seat filled at an incredible political cost by playing on sheer oppurtunism with their legislative power.  

    • I support the position of your party’s legislative caucus in 2004 when they made an amendment to the special election law to allow the Governor a temporary appointment in the event of a vacancy in the interim period. I supported it then. I support it now. Why don’t you?

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      p>I oppose Governor’s making appointments on principle, I think the Blago and to a lesser extent the Patterson debacles confirm my suspicion of taking away our democratic votes and giving it to Governor’s. I also view those appointments as violating the spirit of the 17th amendment which specifically allows for direct election of a Senator and that direct election is subsided by an appointment.

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      p>Frankly both sides played opportunistic short term partisan politics and its disgusting. The very same state GOPers who decried stripping their Governor of that undemocratic power are the very same ones opposing giving the power they protected to the current governor. Similarly the state Dems stripped the power away from a Republican governor for partisan reasons, not because they wanted the voters to have a say. And I do agree with you that this could set a precedence for the lege continually playing games with this law any time they have a governor they don’t like or a Senate seat that needs a vote.

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      p>Anyone who says it is a good idea to make a temporary appointment ‘for the sake of passing healthcare’ is a partisan fighter and is not truly committed to the spirit of democratic representation. I would hold this position if we had a Republican governor and if the special election would be won by a Republican because I feel it just makes the most sense to have our voices represented during the interim period and to have our say on the replacement through an election.  

      • Since Kerry (2004) and Kennedy (2009) were both elected as Democrats, it stands to reason the people wanted a Democrat.  Therefore it WAS appropriate to prevent a Republican to be appointed in 2004, but with a Democratic Governor it’s not a concern now.  Personally, I stand by previous statements of gubernatorial appointment until the next biennial election, possibly with advice/consent and same party requirements.

        • but it’s going to be ludicrous is we’re changing the law every time the corner office changes parties.  

        • Think about Wellstone.  After he died, Ventura was heavily criticized for appointing a Republican, but then Norm Coleman ended up winning it anyway.  I guess what you pointed out is a valid reason, but is no means a barometer of what the people want at any given moment.  

          • Dean Barkley was an independent actually. He also served as a spoiler in the race between Coleman and Franken, likely taking away votes from Franken since he was a pretty libertarian independent (anti-war, pro campaign finance, pro free trade, anti bailouts, kinda a maverick all around)

            • Ventura was criticized for appointing Dean Barkley in a fit of pique.  He didn’t like the DFL’s behavior at Wellstone’s funeral, so appointed his campaign manager instead of a DFLer.  

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              p>If memory serves, he timed the announcement to coincide with a Mondale/Coleman debate.

        • Since Kerry (2004) and Kennedy (2009) were both elected as Democrats, it stands to reason the people wanted a Democrat.

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          p>And therefore…

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          p>Since Kerry (2004) and Kennedy (2009) were both elected as MEN, it stands to reason the people wanted a MAN.

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          p>Since Kennedy (2009) Opposes Cape Wind project, it stands to reason the people wanted a person who Opposes Cape Wind project.

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          p>Since Kennedy (2009) is a Catholic, it stands to reason the people wanted a person who is a Catholic.

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          p>…

          • Since Kennedy (2009) is a Catholic, it stands to reason the people wanted a person who is a Catholic.

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            p>Kerry is also Catholic, as are (per wikipedia) 44% of the state, by far the majority religion in the Commonwealth.

          • The PARTY is the important thing in politics.  They weren’t elected on the “male” ballot line, the “Catholic” ballot line, or even a single issue such as Cape Wind ballot line.  They were elected on the DEMOCRATIC ballot line, and since positions are organized primarily on party lines another Democrat is most likely to on balance have similar views to the previous incumbent.  For this reason I’ve mentioned before that I like Wyoming’s requirement that a gubernatorially appointed successor match the party label of the previous holder.  Of course, with a special election the voters are free to re-assign the office anyway, but absent an election the most recent will expressed by the voters should prevail.

          • JohnD frequently argues that everything is equivalent to everything else. Once it has been established that everything is equivalent to everything else, everyone other than JohnD is a hypocrite: hypocrites are those that refuse to acknowledge that everything is equivalent to everything else.

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            p>The Campaign to Make Everything Equivalent to Everything  Else aims to undermine meaningful discussion. When everything is equivalent, evidence doesn’t matter. Careful analysis doesn’t matter. Everything’s equivalent.

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            p>Where there are no meaningful distinctions, there can be no meaningful discussion.

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            p>When discussion ceases to be meaningful, we simply get exchanges of verbal aggression.

  5. when the so called “law” and all of its 50 cent words and legalese BS supplants plain old common sense and true fairness and justice.
    This blatant naked partisan abuse of the “law” to usurp the peoples right to decide their representation is beyond nauseating.
    What ever happened to what used to be America? Sadly it has been over run by a swarm of dime store slimy lawyers who twist and pervert the law to their own political ends. Hopefully we can can get rid of a few of them in 2010  

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