Summary Given on Dec. 9 in Response to Gov. Swift and Sen. Birmingham

January 2003 Print Edition

Suggested Answers to the Requests from Governor Swift
Advisory No. A-105,
December 3, 2002
SJC - 08916.

1. Does adjournment by a roll call vote (137 yeas to 53 nays) of the joint session [of the two Houses] constitute final action on a proposed constitutional amendment such that the Governor's power and duty to recall the joint session under Article 48 [of the Constitution of the Commonwealth] do not attach?
No. The Constitution requires that "final" action in the Legislature shall be only by roll call vote. This requires a vote on the amendment itself. A vote for adjournment without a vote on the amendment does not satisfy the requirement of the Constitution. This is clearly seen in this request where there are three Amendments pending. It is not possible to have a final, combined vote on all of them at once. They must be voted on one at a time.
This is found in the Constitution at art. 48, Init., pt. 4, §4: "Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays ..." This requires a roll call vote on each Amendment.

2. If there has not been final action by the joint session, may the Governor, using her judgment, reasonably determine whether this controversy has reached the 'limits of futility.' LIMITS v. President of the Senate, 414 Mass. 31, 32 n. 4 (1992), such that she may decline to recall the joint session under Article 48?"
The Governor's citation to the Limits case apparently is incorrect. Apparently, she refers to footnote 5 on page 34.
The case cited at footnote 5 is Opinion of the Justices, 334 Mass. 745 (1956). In that case, the Governor had recalled the Legislature three times without any success. In this case, the Governor has taken no action at all to recall them. Obviously, she has not reached any level of futility, particularly where they have now asked this Court for its advice on their following the requirements of art. 48.

Suggested Answers to the Requests from the Senate
Advisory No. A-106,
December 5, 2002
SJC - 08917
1. Would a member of the joint session violate Article 48 by moving to adjourn before the joint session otherwise takes action on any of the proposed amendments?
Yes. Each Legislator is required to know and obey the Constitution of the Commonwealth. See Answer #1 above.

2. Would the President of the Senate, as presiding officer of the joint session, violate Article 48 by recognizing a motion to adjourn before the joint session otherwise takes action on any of the proposed amendments?
Yes. Under art. 48, Init., pt. 4, §2, the president of the senate is given the ministerial duty of presiding at the session to ensure that the mandate of the Constitution is followed and the required vote is taken by call of the yeas and nays.

3. Would the joint session violate Article 48 by voting to adjourn before otherwise taking action on any of the proposed amendments?
Yes. Same as question 2. Each legislator is also required to obey the Constitution.

4. If the joint session votes to adjourn before otherwise taking action on any of the proposed amendments, does Article 48 require any further action by the President of the Senate?
Yes. Art. 48, Init., pt. 4, §2 gives the President of the Senate the ministerial duty to preside at the joint session and §4 requires him to see that the final legislative action at the joint session is a call of the yeas and nays for each of the three amendments before the joint session.

Reference to Rules of Legislature. As to the reference by the President to Special Rule F of the joint session and Rule 64 of the House of Representatives, which applies to the joint session according to Special Rule J, it is manifest that the legislature may not enact rules which would allow it to violate the Constitution. Therefore, a decision must be made by the President of the Senate on each and every request by a legislator whether such request would violate the Constitution, which is the paramount law of the Commonwealth.		Globe Still Urges Violation of Law
		The NY Times continues to tell the Boston Globe to urge defiance of the Mass. Constitution. Here it printed a letter Dec. 9 telling the Governor not to obey the Constitution.

Final Disposition of Case
This matter is currently the subject of a lawsuit which was argued before this Court on December 3 and was taken under advisement. The principal defendant in that lawsuit, Thomas Birmingham, is now asking this Court for answers to these questions, and the Governor, Jane Swift, who was not a named defendant but is closely involved in the relief sought in that suit, is also seeking advice on the suit currently before the Court.

As a result, the decision by the Single Justice to dismiss the suit because the plaintiff had no standing to sue Sen. Birmingham is moot because Sen. Birmingham, apparently without the knowledge of his attorney, is now requesting that this Court decide the issues raised by the plaintiff in her suit.

This means that the Court must rethink the issues because the defenses which were strenuously argued by the Attorney General no longer apply. It appears that the Court now must only determine what is the appropriate relief. All of the defenses such as the argument that declaratory relief cannot be applied against Sen. Birmingham, about Sen. Birmingham's official capacity vs. his private capacity, etc., etc. are now moot.

The Court should now consider carefully that the 182nd General Court forfeited its right to vote when it made a willful violation of art. 48 of the Constitution by adjourning without taking a vote on three amendment initiatives. The Secretary of State should notify the 183rd General Court that it shall proceed as though the 182nd General Court had approved all three of them. Therefore, there is no further duty required of the Senate President or the Governor this year.

Justice Greaney's Opinion in 1992
Justice Greaney wrote in an opinion in 1992 that where the Legislature had failed to vote in an initiative for a new law, the Legislature had lost its right to vote. Sen. Birmingham has many arguments why this opinion would not apply to an initiative for an amendment.

"The remedy of the citizens is at the ballot when the Legislature violates an art. 48 initiative for an amendment." But that was the remedy available to the citizens in 1918. "Go out and elect a majority of the House and Senate." If that is still the only remedy in 2002, then the wonderful dream of the progressives/liberals/populists is truly dead. If that is true, then the words of Justice Greaney were a cruel hoax when he wrote: "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."

"The duties of the Secretary are much different under an amendment initiative than when a law initiative is involved." There is a facial difference in the language of art. 48 between the process of a law initiative and an amendment initiative, but it is only facial. The Secretary of the Commonwealth is not just a clerk. In a law initiative, there is nothing that gives him any notice whether the Legislature has failed to enact the law before the first Wednesday of May. He is required to monitor the process and discover what is happening. He has no less duty for an amendment initiative.

"Inaction by the Legislature should not be deemed to be approval." That is absolutely correct. But no one has said that it should be deemed as approval. What is important is that they have forfeited their right to vote. Whether they approve or disapprove the measure is immaterial.

"Because the Governor has a role in the process, she, and not the Court, has the role of ensuring that the Legislature follows the Constitution." That is obviously not true on its face. Nowhere by giving the role to the Governor, has anyone taken away this institution's judicial function of enforcing the Constitution.

Will the SJC Reassure the Citizens?
The question is whether this Court will show the citizens that there is someone who will see that our Constitution is obeyed.

Justice Greaney told the Superior Court judges on November 1, 2002 about the "cynicism about government" and about "politicians who constantly rail about the 'mess on Beacon Hill' and the corruption in Washington, yet offer no realistic solutions."

But the "cynicism" about art. 48 comes not from the politicians, but from citizens who see a broken government. Many people wished us luck back in July in our endeavor to amend the Constitution, but nobody believed we would prevail. They thought we were tilting at windmills, like Don Quixote, but that is now changing, thanks to your interest and your giving the people a forum in which to express their anger and frustration.

They will be watching closely to see if the SJC has the heart of the 1930 Court. Will it really take charge and see that our Constitution is obeyed?