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About the Law Suit Lawsuit Filed on Jan. 2 to End Scandal about Marriage Amendment The Constitution of Massachusetts was defied by both the Legislature and the Governor from July 17 to Dec. 20, 2002. The Supreme Judicial Court was also flouted for the last 11 days of the year, after it issued an advisory on Dec. 20 clearly outlining the duties and responsibilities of all parties under the law. The people in this state are being denied a representative form of government as guaranteed to them by the U.S. Constitution, Art. IV, Sect. 4. As a consequence, according to former Senate President Thomas Birmingham, the people are so outraged about his conduct that it cost him the primary race for Governor. A less experienced candidate was chosen by the Democrats, who lost to Mitt Romney. The purpose of the unlawful behavior was to stop the citizens from voting on the Protection of Marriage Amendment, which would do no more than codify and continue the law on marriage as it has always been since the state was first founded. Republican Mitt Romney did not object to the violation of the law despite the fact that his wife, son and daughter-in-law had all signed the Amendment. He either did not know what was in the Amendment or pretended he did not know. The flouting of the law did not appear to bother him. A lawsuit was started in the SJC on January 2, 2003 by Massachusetts Citizens for Marriage, requesting the Court to instruct the Secretary of State to send the Marriage Amendment on to the new Legislature for its consideration as the second Legislature to do so. If the Court sends it on as requested and the Legislature votes to approve the measure, it will go on the ballot in Nov. 2004. The press, led by the Boston Globe (a NY Times subsidiary), has never informed its readers and listeners about the scandal. We will continue to provide daily updates on the progress of the lawsuit. Does the SJC Possess the Power to Send Amendment to New Legislature? The SJC is not being asked to do anything novel or new. Many times before, it has ordered the Secretary of State to place a referendum question on the ballot despite the protests of the Legislature. The last time this happened was in 1992 where the Court told the Secretary to place the law on the ballot even though the Legislature had never voted on the question and argued that nothing could happen to the proposed law as a result. Justice Greaney wrote at that time: "We cannot endorse a result that would permit the Legislature, by failing or refusing to comply with a mandatory provision of art. 48 [of the Constitution], to frustrate the right of the people to place a proposed law on the ballot." But the opponents say that the 1992 case and similar ones involved referendums for a new law, not for an Amendment to the state Constitution. They are correct that the procedure for an Amendment is different in that it's much more difficult to put it on the ballot than it is for a new law. An Amendment must not only get the required number of signatures of voters; it must also be approved by 25% of the Legislators at two sessions of the Legislature before going on the ballot. This requirement that the Legislature approve it was demanded by conservatives at the 1917-1918 Convention so that the "rabble" did not start amending the Constitution too quickly and easily. Therefore, it's much simpler to get a proposed law on the ballot and it takes only one year to do so. If the Legislature fails to enact the law, then the Constitution mandates that the Secretary put it on the ballot for the people to approve or reject. In the case of an Amendment which has been approved by the Legislature, the Constitution says it "shall be referred to the next general court [legislature]." Although it does not say who shall "refer" it to the next Legislature, one would assume that the old Legislature would send it to the next Legislature. But if they fail to follow the law, is there no redress by the citizens? Clearly, there must be. There has never been a more stark case of the Legislature and the Governor mocking the Constitution and the Court than what we saw in the last 11 days of 2002. The SJC should do exactly what it does for new laws and hold that the Legislature, of its own volition, failed to avail itself of its right and its opportunity to vote on the Amendment. The Court does not need to order the Legislature to do anything. The Secretary can just move it on to the new Legislature for their action. This is not a drastic
remedy because the next Legislature would still get
a chance to vote on the measure, although it would
be very careful to follow the law this time. Press
Release Explaining Lawsuit The SJC will be asked by Mass. Citizens for Marriage today to instruct the Secretary of State to send the Protection of Marriage Amendment to the new Legislature for its consideration as the second and final Legislature to consider the measure. The old Legislature "failed and refused to follow its mandated duty to vote on the Protection of Marriage Amendment as required under article 48 of the state Constitution, although it had adequate notice of its responsibilities," MCM said in its suit filed by Atty. J. Edward Pawlick. It requested the Court to notify the Secretary that the old Legislature "has not availed itself of its right and opportunity" to vote on the measure. "It was bad enough in this ongoing scandal that both the Governor and the Legislature pretended they didn't know what to do last summer and fall," said Atty. Pawlick, "but it was incredible that they continued the charade after the SJC clearly informed them on Dec. 20 of their rights and duties under the amendment process. "The SJC worked hard after Gov. Swift asked for an advisory opinion on Dec. 3 as to what was required of her in the matter. Then two days later, Sen. Birmingham also requested advice. "Although the SJC advised them on Dec. 20, in plenty of time to act, that the Legislature had violated its duties on July 17 when it adjourned without voting on the Amendment, they both ignored their duties." Pawlick says he is also considering a federal suit for damages under the First Amendment against the Governor and all Legislators who voted to adjourn on July 17. "But we are
trying to mitigate our damages," Pawlick said.
"Clearly, the most important thing to the 130,000
citizens who signed the Petition is to move the Amendment
to a vote by the people at the election in 2004. If
the SJC sends it on to the next Legislature, our damages
will obviously be much less than if all of our efforts
for more than two years are thrown away. So we will
wait to see what happens before considering our federal
suit." Statement of Atty. Pawlick after SJC Decision of Dec. 20 It's exciting that the Supreme Judicial Court has told Sen. Birmingham that he did not follow the Constitution and obey the law when he adjourned the Legislature on July 17 without taking a vote on the Protection of Marriage Amendment. We've been trying to point that out for months. But it's disappointing that the spokesman for Gov. Swift did not have time to consult with her lawyers before making a statement last night. Like all of us, the spokesman, James Borghesani, did not know that the Court had issued its opinion until the press started calling after 5 p.m. on Friday evening. He had to answer their questions because they were on deadline; but in so doing, he obviously did not have time to consult with their attorneys. The press informed him that the Court had rejected the arguments of Senate President Tom Birmingham, whose lawyers had argued that the action by the Joint Legislature was "final action." The SJC rejected that argument and held that it was required that a vote be taken on the Amendment itself. The Court was very polite to the Governor and was mindful of its obligation not to intervene in the duties of another branch of the government. But it's clear that the Justices were not happy. They took the very unusual step of inserting a special footnote in the opinion which in very polite language told the Governor how they felt about her inaction on the matter. The footnote said, "We note that the joint session was adjourned on July 17, 2002. The Acting Governor's questions were not submitted until December 3, 2002. The current General Court ends on December 31, 2002." In other words, they said, "Where have you been, Governor? What have you been doing for over four months?" The Court then informed her, again in very polite language, that they are also busy and did not appreciate having this brought to their attention as a crisis situation. "On past occasions, the Justices have declined to answer requests when there was insufficient time to do so." But the Court did not do so in this case, not because of deference to the Governor but because they realized the importance of the issue. If he had had the time to ask, the Governor's spokesman would have been advised by any lawyer that the Court did not say that the Governor had reached any position of "futility." What it did say was that this is a jury-like question of fact, which the Governor must decide. The Court will not interfere with the Governor's role. It refused to answer that question because it has stated before that a Governor need not engage in a futile exercise. But it politely refused to make that decision for her. Whether she follows the law and obeys the Constitution will be for another court to decide if my client is forced to bring an action for damages against her for violating the Constitution. The SJC will not make that decision now. The Governor's office as the head of the Executive branch, is a respected part of the government and is expected to follow its lawyers' advice and obey the Constitution. It should be noted that the opinion cited over and over by the Governor involved a case where the Governor had already called the Legislature back three different times. That is clearly not the situation here. Therefore, it is apparent that the Governor must recall the Legislature immediately unless she has valid reason to believe that it would be "futile" for her to do so. But what person could possibly think that this would be a futile gesture where the Legislature has just been told that what it did on July 17 was in violation of the Constitution? Obviously, they wish to obey the law and the SJC has now made it clear to them what the law is. In addition, the Governor has already delayed so long, as the Court indicated in its unhappy footnote, that she might be liable for damages in a suit by my client even if she does issue an immediate order which is then ignored by the Legislature. It's clear to any lawyer that Gov. Swift must recall the Legislature at her earliest opportunity, in order to obey the law and to avoid any personal liability for failing to do so. It is too bad that Mr. Borghesani was unable to reach a lawyer before making his unfortunate statements. It's also clear that any Legislator who voted to adjourn on July 17 could be the subject of a personal suit in the U.S. District Court for violating the First Amendment rights of Free Speech. Any damages in such a suit could be trebled by the court. Those money damages since July 17 would be higher than most of them realize. Swift's Statement Confused the Globe Reporter The statement by Swift's spokesman on Friday evening obviously confused the reporter for the Boston Globe, Yvonne Abraham, who wrote this headline, "SJC declines to weigh in on gay marriage ballot debate." The story said, "In a ruling released yesterday, the state Supreme Judicial Court declined to say whether Acting Governor Jane Swift must recall legislators to a special session to consider a ballot question that would ban gay marriage. "The ruling by the state's highest court left state officials uncertain about what steps they should take next on the measure. "Responding to a question posed by Swift, the court ruled that a procedural maneuver used by Senate President Thomas F. Birmingham to block the question from reaching the state ballot last summer was not the final action on the matter. But the court did not specifically address the question of whether Swift now has a duty to call legislators back to vote on the matter." But it's clear to any lawyer that the Court did not "specifically address the question" whether Swift must recall the Legislature because that is a question of fact which the Governor is paid to decide. They cannot do her duties for her. The Globe story continued: "That ambiguity left Swift and Birmingham pointing fingers at each other last night, with a spokesman for each suggesting the ball is now in the other's court. If neither takes action to reconvene legislators, the ballot question will die Dec. 31. As of late yesterday, neither Swift nor Birmingham appeared eager to act on the controversial measure." The Globe story went on to quote Swift's spokesman: '''From the governor's standpoint, the decision really is on the Legislature,' said James Borghesani, Swift's spokesman. 'The court ruled the Legislature did not take final action. We will wait and see what the Legislature does, and once we make a determination, if there can be a determination made regarding what the Legislature will or will not do, we will review our options.'" The Globe was given a different view by a Birmingham spokesman. "But Birmingham said responsibility for reconvening the legislators was squarely on Swift. 'The SJC has ruled that the constitutional convention has not taken final action on the proposed constitutional amendments,' Birmingham said through spokesman Paul Wingle. 'The opinion appears to grant the governor discretion regarding the next steps in this process. I await the governor's decision.'" There is no question that Sen. Birmingham is correct in his interpretation of the SJC opinion. Because of a Rule that was adopted in 1995, he cannot recall the Legislature for a vote after July 31. Only the Governor can call them back. Whether she will finally understand her duties under the Constitution remains to be seen. Boston Herald Reaches a Better Spokesman The Boston Herald reached a better spokesman for Gov. Swift for its story, but it still didn't talk to any lawyers and did not present a clear picture of what is happening. The Herald reporter, David Guarino, talked to spokesman Sarah Magazine and reported: "The state's high court yesterday breathed sudden life into a constitutional ban on gay marriage, saying the Legislature's effort to dispatch the ballot question didn't effectively kill the issue. "The Supreme Judicial
Court, in a 14-page ruling, simply said 'no' to acting
Gov. Jane M. Swift's question of whether lawmakers'
adjournment without voting on the ban constituted
a 'final action.' "A Swift spokeswoman didn't rule out trying to force a session." The story then quoted the spokesman: "'The SJC has clearly determined that the Legislature did not discharge their obligation, so the governor is going to wait and see what they do as a result of this opinion,' spokeswoman Sarah Magazine said. 'She will make a decision whether or not she needs to act in the next several days.'" But Swift does not
have that luxury of waiting, because any jury would
say that she has already defaulted in her duties under
the Constitution.
The spokesman for Gov. Swift, James Borghesani, should reveal which lawyer was so dumb as to give him such "terrible and false" legal advice, says Atty. J. Edward Pawlick, attorney for Mass. Citizens for Marriage. Borghesani told the press last Friday evening, after the SJC released its decision that Sen. Birmingham had violated the state Constitution, that the Governor would look at her options and decide whether it was futile to call the Legislature back for a vote on the Marriage Amendment. "Borghesani never said he had consulted with lawyers and I couldn't imagine that any lawyer had been so dumb as to tell him what he told reporters," says Pawlick. "Therefore, when I wrote a statement, I said it was too bad he had not had time to consult with lawyers before talking to the press. "Then Borghesani blasted a staff member of MCM at the State House this week, saying he had talked with lawyers for half-an-hour before his statement and he wanted to talk to me about it. I called him and left a message, but he has never returned my call. "My question is. 'If he talked to a lawyer who was it? Is there a reason he did not reveal the name of the lawyer?' "Any lawyer would obviously be terribly embarrassed to give false information. Is that the reason he made the statement and not a lawyer? The citizens want to know, 'Who is this mysterious lawyer who hides behind a 'spokesman?'" Pawlick says that any lawyer who does not know about the Legislature's Joint Rule 12A should not be practicing law. The Rule says that the Legislature cannot do anything except routine matters after July 31 unless the Governor calls them back. No lawyer in his right mind would tell the Governor she should wait until she sees what the Legislature does next. Any lawyer would also understand that the SJC went to extreme lengths to tell Gov. Swift that they are extremely unhappy that she waited over four months before doing anything in the matter, and then only to ask the SJC what to do. The SJC hesitates to tell another branch of government what do, according to Pawlick. They assume that she is competent. In addition, any lawyer who does not understand the difference between "law," which is what the SJC gives advice about, and "fact," which is what the Governor does, should not be giving advice. And he should not be citing an old case where the Governor had called the Legislature back three times over a two-year period and use it to decide we are in a state of "futility" here. "Gov. Swift is the first woman Governor in the history of the Commonwealth," says Pawlick. "She should be setting an excellent example of what a woman can do in this high office. What a terrible shame that in a matter of critical importance, obeying our state Constitution, she is flagrantly shirking her duty. "Sen. Birmingham
told the Globe in today's issue that Swift was a good
Senator and a good Governor. Does this mean that Swift's
loyalty still extends to the insiders' clique instead
of to the people or the Constitution?"
Atty. Pawlick's Letter to Gov.'s Legal Counsel Expressing Concern about Her Personal Liability David L. Veator, Esquire Dear Attorney Veator: I am unaware of the arcane dealings of lawyers at the State House. I do not know whether or not you have ever handled any personal injury cases or had any trial experience. But I must tell you that the Governor is playing with fire at the present moment. If she had any insurance, her carrier would be all over her at the present time. She has serious exposure for millions of dollars. Yet she is acting like nothing has happened. The SJC indicated on Friday that she has violated the Constitution. It clearly indicated its annoyance with her behavior. All that my clients ask is that she obey the law! Is that too much to ask?! She is liable in federal court for violating the First Amendment rights of my clients. If she continues to dawdle in view of the SJC's clear ruling of Friday, the amount of damages will increase exponentially. I would also suggest that you, as a lawyer, have a conflict of interest in this case. Clearly she has a personal exposure for millions of dollars. Will you represent her if she is sued? If the Attorney General represents her, I will make the same motion before the federal judge. I do not believe the AG could represent her where she has obviously violated the law. But even if he did, she would have to have separate counsel also, because there is exposure far beyond what the Commonwealth could legally pay. I suggest that you look at this carefully, because there plenty of worms here for all, including the lawyers. I would like to avoid the worms and get a vote as my clients deserve. Sincerely, /s/ J. Edward Pawlick P.S. I am also sending
a flier which is being distributed around the State
House today.
The Legislature violated the state Constitution when it adjourned on July 17 without taking a vote on the Marriage Amendment, the SJC ruled in an opinion released at 5 p.m. on Friday, Dec. 20. But the Boston Globe refused to admit the Constitution had been violated, writing instead the following headline for its Saturday paper, "SJC declines to weigh in on gay marriage ballot debate." What the SJC actually did was to write a nine-page opinion for Gov. Swift where it answered one of her questions and a five-page opinion for the Senate in which it refused to answer any of its questions. The Court told the Governor that the July 17 vote was not the "final action" required by art. 48 of the Constitution. Therefore, the joint session of July 17 did violate the Constitution. The "confusion" at the Globe arose because the SJC refused to answer the Governor's second question, which was whether this matter had reached "futility" and whether she is required to recall the Legislature. Before answering that question the Court used a footnote to politely note its annoyance with the Governor for waiting so long. It wrote: "We note that the joint session was adjourned on July 17, 2002. The Acting Governor's questions were not submitted until December 3, 2002. The current General Court ends on December 31, 2002." In other words, they said, "Where have you been, Governor? What have you been doing for over four months?" The Court then informed
the Governor, again in very polite language, that
they are also busy and did not appreciate having this
brought to their attention as a crisis situation.
"On past occasions, the Justices have declined
to answer requests when there was insufficient time
to do so." But the Court did not decline to answer
in this case, not because of deference to the Governor,
but because they realized the importance of the issue. It is unfortunate that the spokesman for Gov. Swift apparently did not have time to consult with her lawyers before making a statement on Friday evening. Like all of the parties
involved, the spokesman, James Borghesani, did not
know that the Court had issued its opinion until the
press started calling after 5 p.m. on Friday evening.
He had to answer the The press informed him that the Court had rejected the arguments of Senate Counsel David Sullivan, who had argued that the action by the Joint Legislature was "final action." The SJC rejected Sullivan's argument in their opinion to the Governor and held that a vote was required on the Amendment itself. If he had had the time to ask, the Governor's spokesman would have been advised by any lawyer that the Court did not say that the Governor had reached any position of "futility." What the SJC did say was that this is a jury-like question of fact, which the Governor must decide herself. The Court will not interfere with the Governor's role. It refused to answer that question because it has stated before that a Governor need not engage in a futile exercise. Whether she follows the law and obeys the Constitution will be for another court to decide if my clients are forced to bring an action for damages against her for violating the state Constitution and the First Amendment. The SJC will not make that decision now. The Governor's office as the head of the Executive branch, is a respected part of the government and is expected to follow its lawyers' advice and obey the Constitution. It should be noted that the opinion cited over and over by the Governor involved a case where the Governor had already called the Legislature back three different times, Opinion of the Justices, 334 Mass. 745 (1956). That is clearly not true here. Therefore, it is apparent that the Governor must recall the Legislature immediately unless she has valid reason to believe that this would be "futile." But what person could possibly think that this would be a futile gesture where the Legislature has just been told that what it did on July 17 was in violation of the Constitution? Obviously, the Legislators wish to obey the law and the SJC has now made it clear to them what the law is. In addition, the Governor has already delayed so long, as the Court indicated in its unhappy footnote, that she might be liable for damages in a suit by my clients even if she does issue an immediate order which is then ignored by the Legislature. It's clear to any lawyer that Gov. Swift must recall the Legislature at her earliest opportunity, in order to obey the law and to avoid any personal liability for failing to do so. It's also clear that any Legislator who voted to adjourn on July 17 could also be the subject of a personal suit in the U.S. District Court for violating the First Amendment rights of Free Speech. Any damages in such a suit could be trebled by the court. Those money damages since July 17 would be much higher than most realize. Any Legislator who votes again to violate the Constitution would clearly have exposure under the First Amendment. The primary desire of my clients is to have a vote on the Amendment, but a suit for damages is clearly a viable option if they are forced to go that route, now that the SJC has indicated that Legislators did violate the state Constitution with their vote on July 17 and did restrict freedom of speech in so doing.
What is Rule 12A Which Makes this Case Different from 1992? [The following paragraph was added after Dec. 22.] Sen. Birmingham says he cannot call the Legislature back to vote after July 31 because of the Legislature's Joint Rule 12A which forbids him from doing so. He is correct that he cannot do so by himself, but he could use leadership to get the Legislature to waive Rule 12A or he could declare it is not valid where it violates the Constitution or he could merely request the Governor to recall the Legislature so they can follow the Constitution. He has many options if he wishes to follow the law. — Rule 12A (adopted by the Legislature in 1995) requires the Legislature to essentially end on July 31. — The Legislature cannot violate the Constitution simply by passing a Rule which requires or permits it to do so. — If Rule 12A is followed in this instance, the leaders of the 2002 Legislature are stopped from calling the Legislature back for a vote on the three Constitutional amendments. — Rule 12A was established solely by the Legislature. It is its own creation. — If the leaders of the Legislature follow it in this instance, they will be violating their Constitutional duty under art. 48. — That duty is to call the Legislature back for "final action" as stated by the SJC in its opinion on Dec. 20. *************** The SJC may have been hinting about this in its opinion on page 7 where it said: "The joint session of the two houses of the General Court required by art. 48 is a legislative assembly and by necessity possesses the ordinary prerogatives of a deliberative body. [citation] 'One of these is to adopt rules for the regulation of its conduct.' [citation] These can include, among other rules, acting on a motion to recess or adjourn. In this instance, the joint session, using its own procedures, adjourned on July 17, 2002." Although the SJC did not specifically say so, it is apparent that when the Legislature used "its own procedures," it violated the Constitution. The leaders should have refused to follow those procedures when they violated the Constitution on July 17. As of last Friday, December 20, they are under notice from the SJC that their Rule 12A is violating the Constitution. *************** Full
Text of 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.
Musings of J. Edward Pawlick, Atty. for Mass. Citizens for Marriage, Monday 12/30/02 • Why won't Gov. Swift's lawyers talk to the press? Who was the lawyer who gave James Borghesani the information that he used on Dec. 20 to talk about the Governor's legal options? He tells us that he talked to lawyers for half an hour before he made his statements. Who did he talk to? Are those lawyers ashamed to say they advised him or, to the contrary, was the Gov. told she must obey the Constitution and she refused the advice? • If Gov. Swift refused their advice, why did she do so? She has great exposure to a lawsuit in federal court that will be started if there is no vote today or tomorrow. She should not be represented by the AG lawyers if she is guilty of illegal conduct, and state money should not be used to pay our damages, particularly after the Dec. 20 ruling by the SJC made it so clear. Why does she appear so unconcerned? She is not wealthy. Is someone promising to indemnify her if she is sued? While part of us would like to believe that the state will pay our damages (over seven figures) because that would assure that we are paid, a part of us rebels if the state would attempt to protect her from liability for her illegal conduct. • If a vote is not held by tomorrow, we will attempt to mitigate our damages. We will bring an action in the SJC asking it to advise the Secretary of State that the old Legislature forfeited its right to vote on the Amendment and the Secretary should notify the new Legislature that it should consider the Amendment just as though the Legislature had approved it. We requested this relief in our lawsuit but the Court hoped it could settle the matter with its notice to everyone that the Constitution had been violated. But that notice was not followed. Most on Beacon Hill are thumbing their noses at the Court, and we believe it will be moved to act. • If a vote is not held by tomorrow, we will sue in U.S. District Court for damages as the result of the violation of our civil rights. Although we will have to research and think this through carefully, we will probably also sue every Legislator who voted to adjourn on July 17 and is not now requesting the Governor to call them back. Some of our opponents characterize this as a "threat," but there is no lawyer who begins a lawsuit without notifying the other party and seeking to settle the matter. After tomorrow, it will be impossible to settle, and all the money we have spent over the last 2 1/2 years will be out the window. So we must give notice now. • Tom Birmingham has said many times that his action on July 17 hurt him and the Democratic Party, but this has been reported only by Bay Windows. His latest expression was on Dec. 26 when Bay Windows wrote, "Birmingham's gubernatorial bid failed partially due to religious conservatives following his every move on the campaign trail. 'I can't even begin to tell you what the political ramifications were,' he told Bay Windows. . At this point, the conservative activists had bombarded Birmingham with correspondence for his earlier decision to recess the Constitution. The Democratic gubernatorial primary was just around the corner and Birmingham was on the ballot. He knew the anti-gay movement would rally against him — if he defied them again — but he stood behind his principles and took a stand for a community that wasn't his own. . Despite the political repercussions, Birmingham does not second-guess his decision." • The Globe
reported the SJC decision of Dec. 20 on its front
page of City & Region the next day, but this was
merely an attempt at damage control. It did not report
the story accurately. It did not report that Birmingham
and the Legislature had violated the state Constitution.
Instead, it had the following headline, "SJC
declines to weigh in on gay marriage ballot debate."
Therefore, most
Legislators and others still do not realize we won
the SJC decision. If
we are forced to sue in federal court, the first question
will be whether the Constitution was violated. Now,
no one can question that it was.
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