Questions Presented

Legal Brief
December 4, 2002

1. Where the 182nd Legislature failed to vote on the Protection of Marriage Amendment as is required of it under art. 48, did it forfeit its chance to vote on the Amendment?

2. Was this suit against the President of the Senate properly dismissed?

3. Was this suit against the Secretary of State properly dismissed?

STATEMENT OF THE CASE

Prior Proceedings
On August 16, Sarah McVay Pawlick filed this suit. On October 10, a Motion to Dismiss was allowed because 1) as a private individual, Sen. Birmingham had no duties under art. 48; 2) as Senate President, the Declaratory Judgment Act excluded Sen. Birmingham from suit, and 3) there was no controversy between Pawlick and the Secretary and no particular relief was sought. 1

Statement of Facts
Since July 31, 2002, Senate President Thomas Birmingham is no longer capable of holding a joint session of the Legislature to vote on the Protection of Marriage Amendment. He is not able to perform this simple, ministerial duty because he purposefully waited for the clock to run out, knowing that Joint Rule 12A would forbid his unilateral conducting of any further business.

All the facts herein are in the public domain and the subject of judicial notice.

Pawlick has been President of Massachusetts Citizens for Marriage since its inception. It is a Massachusetts corporation organized for the purpose of passing the Protection of Marriage Amendment to the state Constitution under art. 48. Although she has "suffered monetary damages because of her monetary support" of the Amendment, her primary desire is to obtain a vote on the Amendment as required under art. 48 and she seeks the help of the Court in that.

After the Amendment was transmitted to the Legislature by the Secretary of State, it was "deemed to be introduced and pending" according to the language of art. 48. It was timely referred to the Joint Public Service Committee which held a hearing and presented a report. The Amendment was presented to two Joint Sessions, each of which was recessed to a later date. On July 17, a third Joint Session voted to adjourn without taking a vote on the Amendment.

The citizens were amazed and upset when the process to amend the state Constitution by referendum under article 48 was, for all practical purposes, destroyed on July 17, 2000, by Thomas Birmingham, the President of the Massachusetts Senate.

Most people don't understand that the process is not over. They haven't been told that the Governor is required under the Constitution to call the Legislature back into session until they vote. The Boston Globe, the most powerful information source in the Commonwealth, is reporting to its readers that the process is over and the Amendment is dead with headlines such as the one from page one on July 18, "Gay marriage ban thwarted, Legislators kill ballot question." The other media are following their lead and the opponents also keep repeating that mantra.

The citizens are troubled. They wonder if we have become a lawless society. This is damaging the image of the Legislature, the Governor and our entire political process.

The Governor has followed the Senate President's lead and is presently saying that she will not recall the Legislature, despite the clear requirement of the Constitution.

This confusion is in large part due to the fact that dicta from this Court in 1992 and 1997 has been misinterpreted and misreported. This is too bad because the Court has shown many times that it enthusiastically supports the referendum process.

The entire state is looking to the Court for leadership at this time.

The facts are not disputed. The Boston Globe, which has enormous influence and power in this state and which staunchly opposes the Amendment, wrote in its news columns on May 2, 2002 at page B8, "As Senate president, Birmingham could choose to not schedule a proposed amendment for a vote, which would scuttle the measure." That is not true. If Sen. Birmingham did as they suggested, this would violate the law. This is not just something he "chooses."

The paper gave public advice on its news pages that if Sen. Birmingham were to see that no vote is taken on the measure, it would "potentially generate some needed excitement about his campaign [for Governor]." The paper did not say anything about whether this would be moral, ethical or legal. According to the Globe, this was strictly a political question.

The Globe indicated in the same story that the Senator could use more "subtle" means of avoiding a vote. It said, "He could use more subtle means of squashing it, rallying allies behind the scenes and then putting it up for a vote when he knows it wouldn't get the support it needs to pass." While such a tactic may not be "nice," it is usually expected in politics. But the question about which many want an answer, is whether not calling for a vote despite the mandate by the Constitution is merely a "political trick?"

Senator Birmingham did not attempt to hide what he was doing. His spokesperson, Alison Franklin, openly told the Globe in the same story that he might never allow the measure to come to a vote. When he followed through on that threat, this allowed one man to nullify every effort that had been made by thousands of voters for two years to put the Amendment on the ballot for a decision at the elections in 2004.

In a story in the Boston Globe the day before the July 17 vote on page B1, the Globe said that "… Birmingham said he is seeking ways to defeat the measure … Birmingham said he is strategizing with other opponents on ways to block the question from advancing tomorrow, but he would not detail their plans." He told the paper, "I'm going to do what I can to defeat it. Our options are open." He said on July 17 after the Amendment was not allowed to come to a vote, as reported in the Globe on July 18 on page one: "Today we saw democracy in action. They may not like it but they lost two to one."

He also admitted that a vote on the merits was not allowed at the session and a Motion to Adjourn was allowed so that the legislators could deny that they voted against the Amendment. Birmingham told the press in the same story, "Everybody [i.e., the legislators] recognizes a vote to adjourn was a vote up or down [on the Amendment]."

The Globe reported in its story that the measure appeared to have the necessary support "and more," and that is the reason that Birmingham did not allow the legislators to vote on it.

Sen. Birmingham was afraid the Amendment would pass, according to an article in Bay Windows on July 4. Sen. Cheryl Jacques told Bay Windows in that article that she was fighting to stop a vote from ever taking place in the Legislature: "I'm fighting ... to see that [the Marriage Amendment] never comes up for a vote. I'm happy to throw my body in front of the train to block this question." She says Sen. Birmingham's delay of the vote was heroic: "Tom Birmingham is a hero for the gay community." The article said he may never allow a vote. "Birmingham, who opposes the measure, has not committed to bringing it up for a vote at the upcoming Constitutional Convention [on July 17], leaving open the possibility that the amendment could be dead and buried by the end of this legislative session."

Jacques told the paper it is not undemocratic to defy the state Constitution and break the law. But the public disagrees.

After the vote, Bay Windows unhappily reported on July 25 that there was criticism of the process from all sides. "[H]ardly a day has passed without reading or hearing criticism over the way Massachusetts Senate President Tom Birmingham handled the legislative process."

Robert Reich was quoted in the same article that he disapproved of the way it was handled, saying, "We should have had a vote on this issue and all issues."

The MetroWest Daily News, which strongly opposed the Amendment, was upset that the law was so blatantly violated: "We elect senators and representatives to debate and vote on the issues of the day. Most people who run for office expect to be called on to take a stand on tough questions. Birmingham should get out of the way and let elected legislators do what they are paid to do." It said this in an editorial on July 7.

The State House News Service had this to say in its "Weekly Roundup - Week of July 15" from its offices at the State House, "Another power play was pulled on Wednesday. The Legislature voted 137-53 to adjourn its Constitutional Convention for the year rather than debate and vote on a controversial measure put before them by a campaign that had garnered more than 130,000 signatures. Senate President Thomas Birmingham, who orchestrated the proceedings, said it was better to kill a measure defining marriage as between a man and a woman by adjourning than risk taking it up and having it pass, which would have moved the measure one step closer to a ballot vote two years from now."

Most people are outraged at what they see as this breakdown in our government.

SUMMARY OF ARGUMENT

Where the Legislature failed to take a vote on a Constitutional Amendment, it forfeited its chance to vote on the measure which should now be sent by the Secretary of State to the next Legislature for its consideration as required by art. 48.

Pawlick has an action against Sen. Birmingham in his private capacity and in his official capacity which are not affected by the Declaratory Judgment Act or Article 21 of the Declaration of Rights.

She also seeks clarification of the duties of each legislator when voting on an art. 48 amendment.

She has a controversy with the Secretary of State.

ARGUMENT
I. WHERE THE PEOPLE ARE "THWARTED BY AN UNRESPONSIVE LEGISLATURE" WHICH HAS FAILED TO VOTE ON THE PROTECTION OF MARRIAGE AMENDMENT, DID THE LEGISLATURE FORFEIT ITS CHANCE TO VOTE AS HAPPENED IN 1992?

In 1992 Justice Greaney wrote Citizens for a Competitive Massachusetts, 413 Mass. 25, which involved an art. 48 law initiative. The Secretary of State had been sued by a citizens group and ten registered voters 2 to stop the initiative from appearing on the ballot. The citizens claimed that the measure should not appear on the ballot because the Joint Committee on Taxation, to which it had been referred, had not reported to the Legislature. As a result, the Legislature had never voted on the measure. But Justice Greaney cited the 1976 case of Buckley v. Secretary of the Commonwealth, 371 Mass. 395, which had held that it was permissible to sue the Secretary of the Commonwealth for relief where the Legislature had acted inappropriately in an art. 48 case. Justice Greaney wrote that the Secretary was correct in the 1992 case: he had a duty to examine what the Legislature had done. The Secretary was also correct that the Legislature had not acted properly under art. 48 and the Secretary should place the Initiative on the ballot.

Both of the cases involved art. 48 where a law, not a constitutional amendment was sought. There is no question that in both cases, the Court carefully examined what the Legislature had done.

It is undisputed that most commentators agree that the law portion of the art. 48 initiatives, which were enacted in 1918, has proven to be successful. But that is not true for Constitutional Amendments where up until 1991, only two initiatives had been presented to the voters in the 73 years since its enactment. 3

Clearly, the 1918 attempt to create a "people's process" to "circumvent an unresponsive General Court" has been a dismal failure for Amendments. Justice Greaney wrote in Citizens in 1992 at page 31, "We cannot endorse a result that would permit the Legislature, by failing or refusing to comply with a mandatory provision of art. 48, to frustrate the right of the people to place a proposed law on the ballot."

There is no reason to hold other than that the 182nd General Court has forfeited its right to vote in this matter. It clearly enjoyed its heady role of defying the people and the Court.

To do so would not be crucial for the Legislature. The 183rd General Court will still have to approve the measure before it goes to the people. Therefore, the Legislature would not be left out of the process, but it would not be allowed to block it by defying the law, the Constitution and the Court. The new leaders on Beacon Hill indicate they wish to follow the law and stay within it. They saw in the recent election that they paid a heavy price for being arrogant.

There is every reason to believe that the new leaders would welcome a way out of their dilemma and would engage in a debate and a vote of the members as required by art. 48.

II. PAWLICK HAS AN ACTION AGAINST SEN. BIRMINGHAM 1) IN HIS PRIVATE CAPACITY AND 2) IN HIS OFFICIAL CAPACITY

The question before the Court is whether the President of the Senate has a duty to perform his ministerial duty and bring to a vote an initiative petition that was properly verified and filed with the Joint Session of the Legislature.

Sen. Birmingham states that Pawlick has no viable action against anyone and she cannot change the "obvious fact" that she seeks a declaratory judgment regarding Sen. Birmingham's duties as Senate President, not as a private citizen. And he says there is no declaratory relief available to her to sue him in his official capacity.

But the U.S. Supreme Court says this is a common confusion among lawyers:

Because [the] distinction [between personal- and official-capacity suits] apparently continues to confuse lawyers and confound lower courts, we attempt to define it more clearly through concrete examples of the practical and doctrinal differences between personal- and official-capacity actions.

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. [citation] Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." [citation] As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. [citation] It is not a suit against the official personally, for the real party in interest is the entity.

This was said in 1985 in Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

Perhaps the easiest way to understand this is to analogize Sen. Birmingham with a police officer who can be sued in his private capacity for violating someone's civil rights while in uniform and performing his official duties.

Sen. Birmingham can be also sued as a private citizen if he has acted ultra vires in his duties as Senate President. It is indisputable that he did not follow art. 48 and has acted ultra vires.

It does not appear that the SJC has ever had an ultra vires case even though this rule of law has been around since before the Commonwealth was established. There is a plethora of law from other jurisdictions.

In 1997 the U.S. Supreme Court reversed a Massachusetts case from the U.S. District Court for Massachusetts and the First Circuit in Bogan v. Harris, 523 U.S. 44. First, the Court agreed that local officials in Fall River had the same protection that state officials have for their legislative activities, but it reversed the First Circuit because it held that these Fall River officials were performing legislative duties and deserved that protection. However, they made it clear their answer would be different if the officials were performing ministerial duties. It wrote at page 49, "[T]he common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government …" It wrote:

The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.[citation] The Federal Constitution, the constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. *** We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend that general language of §1983 to "impinge on a tradition so well grounded in history and reason."

The Court assumed that everyone agrees what the common law was in this regard. The law of legislative immunity is hoary with age. It wrote at page 51 that when §1983 was passed:

[L]ocal legislators were absolutely immune for their legislative, as distinct from ministerial duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e.g., Norris v. The People, 3 Denio, 381, 395 (N. Y. 1846) (noting that the duty was "of a ministerial character only"); Caswell v. Allen, 7 Johns. 63, 68 (N. Y. 1810) (holding supervisors liable because the act was "mandatory" and "no discretion appeared to [have been] given to the supervisor"). Respondent's heavy reliance on our decision in Amy v. Supervisors, 78 U.S. 136, 11 Wall 136, 20 L. Ed. 101 (1871), is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. Id., at 138 ("The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct"). The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e.g. Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem §647 (same). ***

Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.

Although it is clear that Legislators have a privilege of legislative immunity, that privilege is lost if the Legislator is not performing his official duties or if he is acting illegally, i.e., if he is acting ultra vires.

It is difficult to understand Sen. Birmingham's statement on page 9 of his brief where he says, "Because Pawlick sued Sen. Birmingham only in his capacity as a private citizen, the claim against Sen. Birmingham was properly dismissed." But that is not true. Pawlick said in paragraph 4 of her Complaint that Sen. Birmingham is President of the Senate. In paragraph 8 of the Complaint she said, "If the action of the Senate President in failing to call for a vote is illegal and he was ultra vires, he was not acting in his capacity as the President of the Senate at the time and would not have the protection of legislative immunity. Therefore, this action will lie."

A. What effect does the Declaratory Judgment Act Have?

Sen. Birmingham argues that the Declaratory Judgment Act is an important factor in the case.

But the purpose of the Declaratory Judgment Act was to introduce declaratory judgments as a form of relief. It was not intended to enlarge the special privilege of immunity that legislators enjoy if they are sued for misdeeds. That portion of the Declaratory Judgment Act which excludes legislators from its coverage merely made it clear that this new law was not to be used as a new means of suing legislators. The same hoary rules still apply that have existed for centuries.

B. What Is the Effect of Article 21 of the Declaration of Rights?

Article 21 of the Declaration of Rights in the Massachusetts Constitution deals with the rights of Legislators to "deliberation," "speech" and "debate." But Pawlick is not questioning the right of Sen. Birmingham's ability to perform any of those legislative functions. She is concerned only with his failure to perform his ministerial duty to hold a vote of the joint session. Where does Art. 21 give Sen. Birmingham the right to defy his ministerial duties under the State Constitution?

The only case that appears to deal with Art. 21 is the 1803 case of Coffin v. Coffin, 4 Mass 1, which held that the defendant legislator was liable in a civil suit for defamation for words uttered to another member while in the "passage way" of the House. The Court used the word "privilege" over and over to indicate that the protection against suit was a privilege accorded to legislators but it was not an absolute right.

It stated that whether the privilege should be accorded in a particular case should be decided by a judge in each case.

In any event, this Article is of no effect where the Senator is being sued for violating the Constitution and thus failing to perform a required ministerial duty. Article 21 of the Massachusetts Constitution is not a "permission slip" to break the law. All the members of the Legislature are required to follow the law.

This was clearly stated in Coffin, where the member had appealed the judgment against him to this Court where he was rebuffed after defaming another member while in the "passage way" of the House. Some of the language from that case was:

[I]f it were competent to the judge on the trial to declare his opinion of the true intent and meaning of it [Article 21], it must be competent for this court to decide whether his opinion was or was not legal: or the defendant can have no relief by his motion; unless the court are to decide without enquiry or authority, that the opinion was against law. But I know of no action within the jurisdiction of a court, and regularly before it, in which it will not be the duty of the judges to decide all matters of law arising in it, so far as the court is competent to decide on them, according to their own apprehension of the law. Otherwise they will have no jurisdiction of legal questions; or they must act as ministerial agents, deciding according to the will of others. * * *

Whenever a declaration shall be made by the house, claiming privileges not belonging to it in the opinion of the judges of a court of law, let the judges then decide the question. * * *

A struggle for privileges [for legislators], in this state, would be a contest against the people, to wrest from them what they have not chosen to grant. And it may be added that the grant of privileges is a restraint on the rights of private citizens, which cannot be further restrained but by some constitutional law. These principles are perfectly consistent with the resolution of the house [which had recently stated the privileges of its members], which is not [in our opinion] a claim of any further privileges not granted by the constitution [in our opinion]; but a description of some, and only of some privileges there granted.

The plaintiff in this case is not attempting to stop either "speech," or "debate." To the contrary, the plaintiff is seeking to begin speech and debate which have been curtailed because of the Defendant's illegal acts. It is the defendant who has stopped speech and debate.

While it is true that art. 21 bars the Court from investigating or interfering with the exercise of the Senate President's performance of his official duties, it does not prevent the Court from stopping an illegal action by anyone.

The defendant states that "every claim against a legislator asserts that he or she has in some fashion acted illegally." But that is not true. The claim in Coffin was not that the defendant had acted illegally, but that he defamed someone.

Sen. Birmingham appears to believe that Pawlick is unhappy with his official voting or speech. But that is far from the truth. Sen. Birmingham cites page 54 of Bogan in his brief at page 15, "[L]egislative immunity applies so long as the acts in question were taken 'in the sphere of legitimate legislative activity.'" Exactly. And this ministerial act of Sen. Birmingham to violate the Constitution was clearly not in "the sphere of legitimate legislative activity."

C. SJC Dicta in 1992 Caused the Confusion

There were two crucial cases in 1992 involving Article 48. One concerned an Initiative for a statute and one for an Amendment.

It is crucial to understand that there was no Joint Rule 12A in 1992. 4

The problems which are faced today by Amendments under art. 48 arise from an apparent misreading, sometimes real and sometimes feigned, by lawyers and laymen of the 1992 opinion, Limits v. President of the Senate, 414 Mass. 31(1992), issued on December 23, 1992.

That case involved an Amendment. It had been certified by the Secretary of State but had not yet been voted upon by the Legislature when the opinion was written. The proponents of the initiative were seeking mandamus and declaratory judgment. The term for that legislature was due to end on January 5, 1993, according to page 34 of the opinion.

The opinion correctly stated that the legislature had not done anything illegal. It had not yet failed to act and it could still act at any time up until January 5. It said at p. 34: "The joint session has not yet failed to comply with the direction of Art. 48 that it take final action."

That was the correct rationale for the decision. If only the opinion had stopped there, but it didn't. It stated next: "There are more fundamental problems with the plaintiffs' requests for relief."

And the two paragraphs of dicta that followed went way beyond the subject of that specific case. The over-arching sound bites from that case have been included in every book published by West and Lexis for the past ten years:

"There are more fundamental problems with the plaintiffs' requests for relief. The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties." Limits at 35.

"These principles call for the Judiciary to refrain from intruding into the power and function of another branch of government, in this case, the joint session of the Legislature held under art. 48." Ibid.

"The reason for this rule rests on separation of powers principles expressed in art. 30 of the Declaration of Rights of the Massachusetts Constitution." Ibid.

"It follows that a judicial remedy is not available whenever a joint session fails to perform a duty that the Constitution assigns to it."
Ibid.

"When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box." [emphasis added] Ibid.

"Just as a judicial order directing the joint session to act is not appropriate, declaratory relief is not available to the plaintiffs as a remedy." Ibid.

Perhaps, the most damaging statements are in the fourth and fifth quotes above. In response to the third quote, we have seen that a judicial remedy has been used many times to help art. 48 against an unresponsive, hostile legislature. One would hesitate to say that "a judicial remedy" of any sort is never available.

In the fourth quote, the opinion went further and opined at p. 35 that the only remedy was at the ballot box. "When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box."

The Limits people were resilient and bounded back in 1994 with a successful effort to enact a law which accomplished the same purpose as the 1992 failed Amendment. This time, the League of Women Voters challenged the statute as an invasion of the power of the Constitution in that it stated additional qualifications for Legislators and others. The Court agreed and the citizens were denied once again in League of Women Voters of Massachusetts v. Secretary of the Commonwealth, 425 Mass. 424 (1997).

Once again, the decision was correct but the opinion went far beyond what was necessary. This time it scolded the citizens for not listening carefully in 1992. Then it repeated the same dicta at p. 431:

The proponents of term limits … have cause for discouragement. It appears from our conclusion in this action that they cannot achieve their goal through a statutory initiative. Efforts to obtain term limits by a constitutional amendment foundered in 1992 because of the refusal of the Legislature in joint session to take final action on such a proposal as the Constitution of the Commonwealth directed. [citation] We concluded in LIMITS v. President of the Senate, supra, that this court should not direct the Legislature to exercise its mandated function. We did so based on principles of separation of powers. [citation] [That is not true. The Court ruled as it did because no violation had yet occurred and the Legislature could still act. Rule 12A was not yet in effect. It was conjecture that they would not act. The proper remedy would have been for the proponents of the Amendment to bring their action after the Legislature had adjourned.] We noted also that art. 48 "gives the Governor a role in seeing that a joint session carries out its constitutional obligations, but gives to the courts no enforcement role." [citation] [Because the Governor was given a role to try to help in this situation does not mean that the Judiciary is foreclosed from performing its Constitutional duties. That was not the intent.]

Article 48's provisions concerning an initiative proposal for a statutory change and an initiative proposal for constitutional change differ significantly with respect to legislative inaction. [citation] Upon the Legislature's failure to enact a proposed statutory change (assuming sufficient additional signatures are obtained), 'the secretary of the commonwealth shall submit such proposed law to the people at the next state election.' [citation] On the other hand, if a joint session held under art. 48, The Initiative, IV, § 2, fails to act on a proposed constitutional amendment, the only remedy set forth in art. 48 '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.' [citation] The distinction that the 1917-1918 Constitutional Convention made was intentional. [The authority for proof of this statement was the 1992 opinion. It is true that the Convention crafted different remedies for the two types of Initiative, but nowhere is there any indication that the Judiciary was not supposed to perform its Constitutional duties.]

The opinion then, at p. 432, repeated the unsolicited advice that the people must remove at least 48 legislators if they wish to amend the Constitution.

We suggested in LIMITS v. President of the Senate, [citation] that, when the Legislature fails to act in joint session on a proposed initiative to amend the Constitution, and thus frustrates the purpose of art. 48, 'the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.' This statement may have had a Delphic quality. The suggestion was not to propose use of the statutory initiative approach but rather to point to 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.

But the advice is poor because that is exactly why art. 48 was enacted in the first place. Everyone knew in 1918 that there are times when the people are unable to accomplish their goals through an "unresponsive" legislature. That is why the "people's process" of art. 48 was established in 1918, to allow them to move forward without being "thwarted" by the legislature.

That is why it is so cruel to tell the people over and over that the only remedy they have is to go out and elect 48 or more new legislators. They have always had that remedy. If that is still their only remedy, then art. 48 is worthless.

This Court must make clear to everyone the duties of the Senate President so that this political officer can clearly tell everyone, "I must hold an election as required under the Constitution. I have no other choice." That will relieve much of the pressure on him.

There is also the argument that art. 48 gives the Governor the power to solve any mischief that may occur by recalling the Legislature. But the delegates in 1918 did not mean by giving the Governor some duties in this process that it meant to exclude the Court from the process. There is nothing to indicate that that was intended.

D. Mischief Did Not Begin in 1992

The mischief against the Constitutional initiative did not begin in 1992, but that case gave it legs and soundbites.

Throughout prior years, the Court kept saying it did not have the power to force the Legislature to act. So it abandoned the field without even using its bully-pulpit to let the citizens know that an "unresponsive" Legislature was "thwarting" them by using unfair and illegal tricks to stop the referendum process.

The two cases that did this were in 1935 and 1956. In the 1935 case, Opinion of the Justices to the Senate and the House of Representatives, 291 Mass 578 (1935), an Amendment received seventy-one votes, which was much more than the necessary 25%, but an immediate Motion to Reconsider was passed by the majority and the Amendment was doomed even though it had received the necessary 25% of the legislators. Because this was a question raised by the Legislature, apparently no one appeared before the Court to argue the case.

In the 1956 case, Opinion of the Justices to the Governor and Council, 334 Mass 745, 756 (1956), the Governor and the Council sent some questions to the Court, apparently without anyone arguing the case for the citizens. This Amendment had also passed the Legislature but was immediately hit by a Motion to Reconsider. The Court cited the 1935 case and said at p. 756, "Unless we are to repudiate what was said in that opinion, we must answer question 2 'No.' We so answer it.

This is an excellent example of how one bad opinion can garner a life of its own. The 1935 case was the only authority given in the 1956 case, which simply said it was not going to repudiate that 1935 case. That led Alexander Gray and Thomas Kiley to deplore the condition of the art. 48 Amendment procedure but to also write there was nothing we could do about it in their 75-page law review article at 26 New Eng.L. Rev. 27 in 1991. They wrote at p. 95:

Perhaps the most serious flaw in the entire initiative and referendum procedure is the provision governing legislative action on initiative constitutional amendments. This flaw has resulted in only two initiative amendments ever having been submitted to the electorate in the entire history of the initiative in Massachusetts.

They also wrote at p. 96:

The failure of Article 48 is to recognize the power of the legislature, or the legislative leadership, to thwart the will of the people. There are two separate, but equally effective, ways for the legislative majority to kill an initiative amendment. The first is to simply not call a Joint Session, or not call up a particular amendment for consideration. Since there is no deadline or due date established by Article 48, there is no means of requiring the Joint Session to take any particular action.

But this pessimistic view is based upon one opinion from 1935 and assumes that a bad decision is never changed. We know that it took a war to change the Dred Scott decision but Plessy v. Ferguson, 163 U.S. 537 (1896) was overruled by Brown v. Board of Education, 347 U.S. 483, (1954). Bad decisions are constantly being changed in one manner or another.

This happened to art. 48 right at the beginning. In 1926 the SJC said it had no power to review the decision of the Attorney General as to whether an initiative petition met the requirements of art 48. But in 1929, another Court said to pay no attention to that opinion because the SJC did have the duty and the power to review the A.G.'s ruling.

The first case was Anderson v. Secretary of the Commonwealth, 255 Mass. 366 (1926) where the Court said at p. 368:

While no measure that relates to religious practices, or religion, or religious institutions can be made the subject of an initiative petition, the Attorney General is required to certify that the measure is in proper form. [citation] A petition is not in proper form if it falls within the exclusion. The Attorney General, therefore, is to pass upon this question before making his certification of approval or disapproval. This power is expressly conferred upon him in unequivocal words. The question, whether the preliminary requirements have been complied with, is for him to determine and his decision, in the absence of bad faith, is final. It cannot be set aside by this court which can interpret, but cannot override the organic law.

The 1930 case was Horton v. Attorney General, 269 Mass. 503, which said at p. 507:

A preliminary question as to the power of the court to consider the issues raised by the petitions has been argued and must be decided. There are not to be found in article 48 of the Amendments to the Constitution any words indicative of a purpose that, respecting proceedings pursuant to its provisions, the courts are shorn of their ordinary powers. It is elementary in constitutional law under the Constitution of this commonwealth that a duty is cast upon the judicial department of government, when the question is properly raised between litigants, to determine whether a public officer is overstepping constitutional bounds and whether statutes duly enacted conform to the fundamental law as expressed in the Constitution. It is a delicate duty, always approached with caution and undertaken with reluctance, but an imperative duty which cannot be escaped. The words defining the authority and obligation resting on the Attorney General under 'The Initiative,' part 2, § 3, of article 48 of the Amendments to the Constitution, import no more of unreviewable finality than do those of part 2, chapter, 1, § 1, arts. 3 and 4, of the Constitution, and of article 2 of its Amendments, creating the legislative powers of the General Court, or those of article 21 of the Amendments, conferring upon commissioners power to divide the territory of the several counties into representative districts. Genuine controversy as to the conformity of acts of these bodies to the requirements of the Constitution is a justiciable subject and cognizable by the courts when properly presented. [citations] It follows irresistibly from these indisputable premises that the certificate of the Attorney General under said section 3, part 2, 'The Initiative,' is open to inquiry as to its conformity to the Constitution in appropriate proceedings. That was decided in substance in Brooks v. Secretary of Commonwealth, 257 Mass. 91, 153 N. E. 322. It was stated in Opinion of the Justices, 262 Mass. 603, 606, 160 N. E. 439. Nothing contrary to these principles was decided in Anderson v. Secretary of Commonwealth, 255 Mass. 366, 151 N. E. 378, or in Thompson v. Secretary of the Commonwealth, 265 Mass. 16, 163 N. E. 192. Without analyzing those decisions, it is enough to say that, if anything there said is thought to be of broader sweep, it must be narrowed to the particular facts of each case and be taken to be limited by the underlying principles upon which the present decision rests.

There is no reason for the negative thought expressed by Gray and Kiley at p. 98:

Unless or until the one-fourth favorable requirement of Article 48 is brought into harmony with the notion of majority rule under parliamentary law, there will never be a successful effort to amend the constitution by initiative petition.

Since the Gray and Kiley article appeared in 1991 and Limits was written the following year, one would assume that the article influenced the Court.

E. Effect of Clean Elections Dispute

Chief Justice Marshall stated the importance of art. 48 again this year in the dispute about clean elections in Bates v. Director of the Office of Campaign, February 25, 2002, Slip opinion where she wrote at sect. II A:

The debate over whether to add initiative and referendum provisions to the Massachusetts Constitution was the focal point of much of the 1917-1918 constitutional convention, and the subject of widespread press attention and public interest.

She also stated clearly in sect. 1 of the slip opinion that the Secretary of State does more than print booklets for the voters. His duties include "administering the Massachusetts election law."

The office of Secretary, also a part of the executive branch, was created by the Massachusetts Constitution. See Part II 2, c. 2, arts. 1 and 2, of the Massachusetts Constitution, and art. 17 of the Amendments to the Constitution. The constitutional and statutory duties of the Secretary include administering the Massachusetts election laws. E.g., art. 48, General Provisions, IV, as amended by art. 74, of the Amendments (Information for Voters) (printing and distribution to voters of initiative or referendum petition and related documents); G. L. c. 53, (promulgation of regulations designed to achieve and maintain accuracy, uniformity, and security from forgery and fraud in the nomination certification process).

You had already made it clear in the 1992 case that you will judge the Legislature. In that case against the Secretary, you looked behind the Legislature's actions and determined that the Joint Committee on Taxation had not yet filed a report on an art. 48 initiative for a new statute. Even though the Legislature had not finished its process, you brushed that aside and ordered the Secretary to put the measure on the ballot.

F. Article 48 Is Now a Shambles for Constitutional Amendments

The opponents of art. 48 have jumped upon the gratuitous advice of Limits. They are twisting that advice in order to destroy the vision of art. 48 as a device for a people's process to amend the Constitution.

They interpret Limits to mean that even though the Constitution says that the President of the Senate "shall" preside at a joint session of the legislature to debate and vote on the issue, whether the President actually follows the mandate is his choice.

According to the standard mantra, no ethical, moral or legal values are involved. Under this standard, even though thousands upon thousands of citizens toil over a two-year period to get a vote by the people, one person, the President of the Senate, may throw all those signatures into the trashcan at his whim - depending upon his political desire at the moment.

The enemies of the referendum process have returned us to 1918. We have an unresponsive legislature which is thwarting the will of the people. It is even worse than 1918 because at that time, the people knew they had no chance against a cynical politician, but now they go out with enthusiasm to make a difference, only to find that their efforts are still in vain. If we are attempting to also make the citizens cynical, we are doing a good job, but to what end?

G. Does the Court Have Jurisdiction over Thomas Birmingham?

M.G.L. 231A sect. 2, says that declaratory judgment may not be used against the "legislative department." This is a codification of "legislative immunity" which has always been a part of common law since its inception.

The answer to the question whether the Court has jurisdiction depends upon whether or not this action of Sen. Birmingham violated the state Constitution or was it merely a political trick?

If he violated the Constitution when he planned to not allow a vote as required by the Constitution, this was an ultra vires act and he is not entitled to legislative immunity.

If the action of Sen. Birmingham was not a violation of the law, then the citizens will understand that they should never again bring an initiative for a constitutional amendment under art. 48 unless the President of the Senate is on their side—and unless he will not be replaced by someone else during the next three years.

They will also realize that the procedure under the Constitution as adopted in 1918 has been changed, not by the courts, but by Sen. Birmingham. Instead of obtaining 25% of the legislators, they are now required to obtain more than 50%. This is true because they must have all those votes to defeat a motion to adjourn or to defeat a motion for a quorum call. If the drafters of art. 48 had that intent in 1918, they would have said so. This is clearly a violation of the state Constitution.

III. Clarification of Duties of Each Legislator

Some Legislators keep saying it is their prerogative when they do get to vote on the merits of the Amendment to vote as they wish.

But that is not what the Court has said in the past. What standard must a Legislator use when deciding whether to send an Amendment initiative to the voters after it has been certified by the Secretary of State? Is a legislator merely to vote his own opinion about the merits of a proposed Amendment?

There have, unfortunately, been very few initiative petitions for Constitutional Amendments. Therefore, many legislators have become confused and do not understand the difference between enacting a new law and amending the Constitution. The process for a new law under art. 48 requires the legislators to vote their own beliefs about the proposed legislation. But in the case of an Amendment the process is totally different.

The Court has said the art. 48 process is a "people's process," which was added to provide a "check on legislative action" and to give the people a method of "circumventing an unresponsive General Court."

There are three decisions from the SJC giving guidance on this process. Two of those decisions concerned a proposed statute.

In the 1976 Buckley case, the Court said at p. 199:

"It [art. 48] presented to the people the direct opportunity to enact statutes regardless of legislative opposition. It projected a means by which the people could move forward on measures which they deemed necessary and desirable without the danger of their will being thwarted by legislative action."

In 1992 in Citizens, the Court quoted the above statement from the Buckley case with approval. It continued at p.31:

"Our interpretations have been guided by the 'firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.' . . We cannot endorse a result that would permit the Legislature, by failing or refusing to comply with a mandatory provision of art. 48, to frustrate the right of the people to place a proposed law on the ballot. . . . Because the purpose of art. 48 is to allow the people 'to enact laws directly without being thwarted by an unresponsive Legislature,' . . . a different result is required."

The reasoning behind both the law initiative and the Amendment initiative are the same. Both were adopted in 1918. The purpose of both is to allow the citizens to enact "laws" and amendments without being "thwarted" by an "unresponsive legislature."

You have articulated that the purpose of the 25% rule is to ensure that the Amendment has "at least a reasonable amount of public support." But no one - not even the opponents -- denies that the "Protection of Marriage" Amendment has the support of over 60% of the citizens. The opponents have clearly stated that many times and have also said that is why they don't want it to go to the people - they (and everyone else) know that the people overwhelmingly support the measure.

Therefore, a legislator cannot in good conscience vote against the Amendment simply because he does not favor it. The level that is required for him to reject it is much higher. As you say, it is not his prerogative to thwart the people - regardless of his or her personal beliefs.

You stated it this way in Opinion of the Justices to the Senate, 386 Mass. 1201 (1982) at p. 1212:

"The 'one-fourth vote' requirement applicable to initiative amendments was intended as a 'legislative minority check' on initiative amendments to the Constitution. Its purpose is to ensure that initiative amendments submitted to the people for approval have at least a reasonable amount of public support, as reflected by the favorable votes of at least one-fourth of the legislators elected to the General Court. See 2 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 680, 688 (1918)."

IV. DOES PAWLICK ALLEGE A CONTROVERSY WITH THE SECRETARY?

A suit against the Secretary of the Commonwealth is not a new or unique idea.

The Buckley case involved a law initiative where the Legislature had substituted its own law for that proposed under the art. 48 process. Some of the first ten signers sued the Secretary of State to force him to decide whether the Legislature had acted properly. In other words, the Secretary of State was told to judge the Legislature.

The Secretary of State was instructed by the Court that he did have the power and was required to act. The Court would monitor the process to make sure that the law was followed. In that case, it was held that the Legislature had not acted properly, and the Court said at page 202: "In short, we cannot countenance the emasculation of the initiative petition by the attempt to substitute a measure with objectives at variance with those which the plaintiffs have proposed."

It was not necessary for the Court to confront the Legislature and order it to follow the law. It merely stated what the law was and told the Secretary of State to ignore what the Legislature had done.

In Citizens, Justice Greaney cited Buckley in another art. 48 case. In that case, the Secretary of State was sued because the Legislature was claiming that a law initiative should not appear on the ballot because the Legislature had not voted on the measure in that the Joint Committee on Taxation, to which it had been referred, had not reported to the Legislature. But Justice Greaney cited Buckley, examined the actions of the Legislature and held that the Secretary of the Commonwealth could be sued. He ordered that the Secretary should examine what the Legislature had done, determine that it had not acted properly under the Constitution, and the Secretary should place the Initiative on the ballot.

Both of the above opinions involve art. 48 law cases involving a law, not a constitutional amendment. In these cases, there was no need to order the Legislature to do anything. But there is no question that in each case, the Court very carefully examined what the Legislature had done.

Most commentators agree that the law portion of the art. 48 initiatives, which were enacted in 1918, has proved to be successful. But that is not true in the Constitutional process where only two initiatives have been presented to the voters in the 74 years since its enactment.

Clearly, the 1918 attempt to create a "people's process" to "circumvent an unresponsive General Court" has been a dismal failure. As Justice Greaney wrote in Citizens, we cannot permit the Legislature, by refusing to comply with a mandatory provision of art. 48, to frustrate the right of the people to place an initiative on the ballot.

That was true when Justice Greaney wrote it in 1992 and it is still true today. The plaintiff is not asking the Court to order the Legislature to do anything. It merely asks it to clearly state the duties of the various officials under art. 48.

The plaintiff believes that a clear statement by the Court would help solve the problems that the art. 48 process faces concerning Constitutional amendments.
It is unlikely this Court will get another chance to clarify these matters, because it is doubtful any lawyer will advise anyone to ever bring another initiative for an Amendment under the present law as it is perceived to be.

Sen. Birmingham says in footnote 9 and on page 16-17 of his brief that, "Pawlick identifies no such controversy" with the Secretary. But the Secretary is not a disinterested bystander to all of this. His duties include "administering the Massachusetts election law." He knows that an art. 48 initiative was transmitted by him to the Legislature. It is his duty to determine what happened to that initiative.

V. Conclusion - People Seek Leadership

Are we to have a lawless society because the courts evince no shock or disappointment when the state Constitution is manipulated by those in the Legislature seeking their own selfish goals? Is this Constitution to have no meaning?

Does anyone really expect to see a change in 83 legislators this year? What a sad event to see the citizens mocked in this manner.

Pawlick only seeks the help of the Court in reforming the art. 48 process so that it will finally be possible for citizens to enact Amendments. It is a very arduous lengthy process, as it should be so that there is much discussion over many years before an Amendment is passed. But it should be possible.

The citizens look to this Court for help in finally accomplishing the process that was begun in 1918.

FOOTNOTES:
1 MEMORANDUM AND JUDGMENT. The defendants filed a motion to dismiss the complaint, pursuant to Mass. R. Civ. P. 12(b(6). 1. The complaint alleges that Thomas Birmingham, in his individual capacity, acted ultra vires of his office as President of the Massachusetts Senate by failing to call a vote of the legislators sitting in a Constitutional Convention on the question of an initiative amendment known as the "Protection of Marriage Amendment." The complaint seeks a declaration of the duties of the President of the Senate with respect to a proposal for amendment to the Constitution introduced into the General Court by initiative petition. See Amendment Article 48, pt. IV, §2. To the extent that the plaintiff has filed her complaint against Mr. Birmingham as a private individual, she is not entitled to relief because in that capacity he has no duties under Amendment Article 48. To the extent that she may be seeking declaratory relief against Mr. Birmingham in his capacity as President of the Senate, she is not entitled to relief because G. L. c. 231A, §2, excludes the legislative department as a party against whom declaratory relief is available. In either case, the complaint fails to state a claim against Thomas Birmingham upon which relief can be granted. 2. The plaintiff has alleged no controversy between herself and the Secretary of the Commonwealth, and no particular relief is sought. She has failed to state a claim against the Secretary upon which relief can be granted. The complaint is hereby dismissed.

2 All of the citizens opposed the initiative and were total strangers to the process. Yet there was not even a question raised about their right to sue. Their Complaint was not dismissed. In footnote six, the Court noted that the Secretary had challenged the standing of a plaintiff which was an organization but the footnote also said, "We need not decide that issue because the individual plaintiffs have standing." It is difficult to understand how ten strangers to the process would have standing to sue the Secretary, but the sponsor of an Initiative would not.

3 Alexander Gray and Thomas Kiley in 26 New Eng.L. Rev. 27, (1991)

4 Joint Rule 12A. All formal business of the first annual session of the General Court shall be concluded no later than the third Wednesday in November of that calendar year and all formal business of the second annual session shall be concluded no later than the last day of July of that calendar year.

In order to assist the Senate and House in its analysis and appraisal of laws enacted by the General Court, each joint standing committee, upon conclusion of the formal business of the annual sessions, shall, as authorized by Joint Rule 1, initiate oversight hearings for the purpose of evaluating the effectiveness, application and administration of the subject matter of laws within the jurisdiction of that committee. [Adopted June 12, 1995.]