SJC Opinion on Lawsuit Did Not Address Legality of Sen. Birmingham's Actions
Atty. Pawlick told the court that the citizens are troubled, they wonder if we have become a society without law.

MN Staff
November 2002 Print Edition

Although Justice Francis X. Spina of the SJC dismissed a Complaint by Sarah McVay Pawlick against Sen. Thomas Birmingham on October 10, it was done solely on technical grounds and did not address the legality of Birmingham's actions, according to the lawyer for the plaintiff, Atty. J. Edward Pawlick.

"This opinion does not in any way address the merits of the suit. It only says that the plaintiff as a private citizen has no ability to sue about it," said Atty. Pawlick, who is the plaintiff's husband.

Atty. Pawlick had stated in his brief to the Court, "Although the parties could argue this case for hours, the personal, policy beliefs of the Justices will decide the issue. The Justices will be able to justify their decision whether they choose to hear this case or not. The law allows them to go either way. It is a judgment call."

In a statement after Justice Spina's opinion, Atty. Pawlick said, "The opinion does not affect what is absolutely clear to everyone, that the Senator broke the law, or that, as the Attorney General said, in his brief in this case, the Governor is now required as a result of the failure to vote on the Amendment to call the Legislature back for a vote on the Protection of Marriage Amendment.

"This decision does not affect the Protection of Marriage Amendment in any way, but we expect to appeal the matter in order to help people of all persuasions who wish to bring Constitutional Referendums in the future. We believe that the fact that only two such Referendums have been submitted to the voters in the 85 years since this procedure was enacted by Progressives in 1918, shows that the system is broken and needs the attention of the Court to the matter.

Justice Spina sat quietly and listened to each lawyer for less than ten minutes without commenting or asking a single question of either, except for asking Atty. Sacks whether there is a time constraint on the matter.
The Supreme Judicial Court was asked in the suit to clarify the duties of the Senate President regarding Amendments under the referendum process.

"This is not crucial to us," Atty. Pawlick said after Justice Spina's decision, "because we have the gumption and the means to fight the matter in the public arena. But for most citizens who bring a referendum before the people, it is an impossible hurdle when the Legislature breaks the law."

Atty. Pawlick says the case is important because no one knows which referendum will suffer next from illegal conduct by the Legislature. "Will those citizens who come after us want a totally lawless process when they petition the government? Someone must correct this illegal conduct."

The plaintiff is not looking for damages from Sen. Birmingham or anyone else in the suit that was filed on August 16.

Atty. Pawlick believes that even though the law is clear, the Court has unnecessarily confused things in extraneous, unnecessary wording, known as dicta, that it has put in some of its opinions. It should correct that dicta which allows the unscrupulous to attempt to hide behind it, he said.

He believes that the SJC has allowed the state to return to 1918 when the referendum process was first adopted. "We have an unresponsive legislature which is thwarting the will of the people. It is 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 make the citizens cynical, we are doing a good job, but to what end?"

The Court must advise the citizens whether we still have a referendum process for Amendments to the Constitution or whether it is dead for most people, he says.

If the action of Sen. Birmingham was not a violation of the law, he continued, then the citizens will understand that they should never again bring a referendum for a constitutional amendment unless the President of the Senate is on their side and unless that President will not be replaced by someone else during the next three years, or unless they have large resources to fight the unscrupulous. "Luckily we have both an outraged citizenry and the resources that are necessary," he said.
		Justice Spina sat quietly and listened to each lawyer for less than ten minutes without commenting or asking a single question of either, except for asking Atty. Sacks whether there is a time constraint on the matter.

In a brief which was filed with the Complaint, Atty. Pawlick noted that the SJC said earlier this year in the Clean Elections case that, "It is the 'imperative duty' of the judicial branch of government to say what the Constitution requires." He reminded them that it is unlikely they will ever get another chance to clarify this matter, because no lawyer would advise anyone to ever begin another referendum for an Amendment under the present law as everyone believes it to be.

He told the judges that the citizens were greatly amazed and upset when it appeared to them that the process to amend the state Constitution by referendum was, for all practical purposes, destroyed on July 17 by Thomas Birmingham, the President of the Massachusetts Senate.

He said many people still believe that the process is over for the Marriage Amendment. 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. The other media are following their lead and the opponents also keep repeating that mantra.

The citizens are troubled, according to Pawlick. They wonder, he said, if we have become a society without law. This is damaging the image of both the courts and the Legislature.

He said the Governor is following 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, Pawlick believes, to the fact that the extraneous information (called "dicta" by the courts) from the SJC 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.

Pawlick notes that the Court has written that Article 48 was created as a "people's process" to circumvent an unresponsive legislature. It has said many times that this is a means by which the people can move forward on 1) statutes and 2) constitutional amendments without being thwarted by the legislature.

He believes the entire state is looking to the Court for leadership on this issue.

Pawlick says they are not seeking any relief except a clear statement about the duties and responsibilities of the Senate President. They are seeking to avoid any unnecessary litigation and believe that if the Court would correct its erroneous opinions, they would solve all of the problems that presently exist.

"The Court said very clearly in the Clean Elections case that this is their job. Perhaps the full bench will realize that more than Justice Spina," Pawlick stated.

When asked if Justice Spina's decision discouraged him, Pawlick replied, "Hell, no. The first thing we were taught at Williams College was that we had to speak very slowly to our rivals down at Amherst College. But they are good people and eventually will understand who has the better teams and school. Besides we always had to be nice to them because that was where we stayed and partied when visiting Smith and Mt. Holyoke. But it certainly does show that our work is cut out for us when even someone such as he fails to understand exactly what is happening in our state today."