|
Excerpts
from Pawlick's Brief
Plaintiff
Has Been Told That She is Wasting Her
Time and Money Appealing to a Court in
This Liberal State
|
|
 |
| |
|
Sarah McVay
Pawlick believes courts are still fair. |
The plaintiff has been told
by many, probably most people, that she is wasting
her time appealing to anyone in this state,
including the courts. But she keeps assuring
them that the courts are still fair, although
some judges are not, as is true with people
everywhere. There is little question that every
Justice on this Court would describe himself
as "liberal." It was a disappointment
last fall to see even Justice Greaney reveal
his liberal bent when he told the Superior Court
judges on Nov. 1, 2002:
Unfortunately for us,
this cynicism has seeped into the judicial
system. We are now part of the crisis in public
trust and confidence in governmental institutions.
A considerable number of citizens now think
that judges are nothing more than politicians
in black robes; that the court system utterly
fails to protect the rights of the poor and
minorities; and that the law is a mass of
unpredictable outrageous decisions. The average
citizen, if called upon to give an example
to justify the latter point, would probably
refer to three cases: the O.J. Simpson trial;
the McDonald's coffee cup spill case; and
Bush v. Gore.
Most citizens would respectfully
disagree that the 2000 Presidential election
was in any way unfair, particularly with the
hindsight that was available in the fall of
2002. But they would not be surprised that even
our most respected judges in Massachusetts have
a strong liberal bent. And those citizens are
quick to point out the plaintiff's naiveté
for believing she will find justice anywhere
in Massachusetts.
Many citizens, together with others on the national
scene, point to the upcoming Goodrich
case which seeks to impose homosexual marriage
in our state. Oral argument will be held in
this Court in March. Many have already decided
what the Court will hold. They know that the
Protection of Marriage amendment would not permit
homosexual marriage and they counsel us that
that is why we will never win in this Court.
But the plaintiff points out to them and to
those on the national scene that she has not
seen unfairness in the legal actions she has
observed in the last few years, despite the
political beliefs of the judges, the Attorney
General and the Secretary of State. She is still
optimistic about the integrity of most of our
people.
There is no question, however, that she has
her head on the chopping block, ready to be
ridiculed and laughed at if she is proven wrong.
Her greatest concern is that she will be turned
away without any answer as to who can sue.
In particular, she is unable to
understand why everyone appears to be able to
sue the Secretary of the Commonwealth except
her. Whether she is right or wrong about the
merits of her suit, why would she be estopped
from raising the issues?
If she is not allowed to sue, who can?
Many persons have been allowed to sue the Secretary
without any problem.
Does
Anyone Have a Right to be Heard?
What citizen has a right to be heard in this
scandal? If not the plaintiff, then who?
It is difficult to believe that the citizens
have nowhere to go for relief. If that is true,
there will be much unhappiness in the Commonwealth.
Over 60% of the citizens favor the amendment
and about 90% want the law to be obeyed. It
was to correct this type of abuse by the powerful
that the liberals and progressives enacted art.
48 in 1918, to return our republican form of
government to the people.
 |
|
At the very least,
the citizens have the right to be heard
and to present their grievances. If they
are to be cut off without anyone even listening
to their issues, this would be a terrible
indictment of our democracy. And
yet, that is what
the attorney for the Commonwealth
is urging. |
| Picketers
protest violation of law by legislature. |
|
|
This is particularly true when
everyone else is able to sue the Secretary without
problem.
Framers
of Constitution in 1918 Were Unable to Conceive
of Our 2003 Scandal
When the framers
of art. 48 were questioned in 1918 about the
possibility of a scandal like this occurring
in the future, they replied that they could
not conceive of such a situation and would not
include any specific provisions to deal with
it.
*****
The framers in 1918 stated the
reason they would not include such a contingency
was because they were unable to conceive of
the scandal we face in 2003. Mr. Quincy said
at p. 685 of the debates, "I do not believe
we need to consider seriously that contingency
[that the two Houses would fail to agree upon
a time to meet or would fail to continue until
final action had been taken upon all amendments
pending] or a defiance of the provisions of
the amendment by either of these two branches
of the General Court. There are a great many
provisions in the Constitution where the same
question can be asked: 'What is going to happen
if the mandate of the Constitution is disregarded
and somebody declines to carry it out?' It does
not seem to me that such a question suggests
any very valid objection, particularly in the
case of this amendment."
In other words, the framers did not anticipate
this scandal or any similar one and therefore
did not explicitly prepare for it because it
would be impossible to consider every devious
scheme that enters the minds of men. That is
why we have the Supreme Judicial Court.
*****
It's disturbing that when this
scandal did occur in 2002, many of us did not
even recognize it.
*****
The attorneys for the Commonwealth
argue that the citizens have no relief available,
even though they have spent three years of their
lives and over $1.7 million in furtherance of
their belief that we still have a representative
government in Massachusetts.
They argue that
it is okay to violate our state Constitution
and other laws with impunity because there
is nothing anyone can do to demand
that our laws be obeyed. According to him,
not even the Supreme Judicial Court can
provide a remedy.
The citizens do not believe that. They are
aware that the United States Constitution,
as it was enacted in 1788, guarantees to
every state a republican form of government.
It says
in Article IV, Section 4, "The United
States shall guarantee to every State in
this Union a Republican Form of Govern-
ment …" |
|
 |
| |
|
Supporters
of MCM stand on the steps of the State House
on July 31st, the last day of the formal
legislative session for 2002. |
*****
The attorney
for the Commonwealth argues in footnote 2 that
the plaintiffs should just try again. "Of
course," he says, "plaintiffs remain
free to pursue their proposed amendment by beginning
the art. 48 process again this year." He
opines that they are allowed to spend another
three years of their lives and $1.7 million
— only to be laughed at once more in 2005!
Can anyone deny that if what the
attorney for the Commonwealth argues is true,
we have lost our republican form of government
in Massachusetts?
Opponents
Fear An Honest Debate;
NY Times and Boston Globe Smeared Supporters
of Marriage with Libel; Two Briefs in SJC Libel
Supporters With No Opportunity to Respond; How
Many Judges Have Seen These Untrue Smears?
Why are the opponents so afraid of an honest
debate that they will violate the law to avoid
it? It is necessary that we mention this subject
because Pawlick and the other supporters of
the amendment are constantly smeared, even in
the courts of the state.
Two briefs were filed in this Court during Dec.
2002 that illustrate this. The briefs were a
response to the requests from Gov. Swift and
the Senate for advisory opinions. One brief
came from the erudite GLAD [a homosexual law
firm in Boston with a staff of 15, including
5 fulltime lawyers], which always walks the
high road and has scholarly people writing their
material with an estimated budget of $1 million
a year.
The other was from MassEquality.org., a coalition
formed by GLAD and others for the sole purpose
of defeating the amendment. It is an integral
part of GLAD's team, but with a different name
and agenda. It credits the Human Rights Campaign
[a national group which gives $22 million a
year for homosexual causes] for its funding.
Its brief, written by a member of the City of
Boston Law Department, David J. Breen, attacked
the amendment and those involved with it. On
page one he began, "We are familiar with
the substance of H.4840 [the amendment] as well
as the signature gathering and lobbying undertaken
in connection with H4840." It then devoted
more than 5 pages of an 18-page brief to "possible
fraud in the signature gathering process."
This brief which is now on file in the Supreme
Judicial Court for eternity has many pages in
the Exhibit section about the "fraud."
Pawlick has no idea who in this Court has read
about her "fraud," but it has to bother
her. Who has been exposed to this smear of her?
The truth is that there was no fraud except
on the part of the opponents of the amendment,
who are also responsible for the brief that
resides in the files somewhere in this Court.
The "horse" trick was
broadcast far and wide by the Boston Globe.
The national edition of the New York Times was
nasty, even libelous (although Pawlick is definitely
a "public figure"). No one has reported
that the paid signature gatherers became necessary
only because the ACLU was training blockers,
who would harass the voters and violate their
Constitutional right to vote, at every major
mall throughout the state. When the decision
was made to hire professionals because of concerns
for the safety of the volunteers, they hired
a reputable organization, which was already
in the state working for the horse people and
Carla Howell. The opponents have reported the
names of only 13 people who say they were tricked
out of a total of 76,607 people who were certified,
despite the fact the opponents have spent a
lot of money with mailings, etc. ever since
Nov. 2001.
No citizen should ever be treated as Pawlick
and the other supporters of this initiative
have been. It goes beyond the pale to be labeled
in a brief in this Court without an opportunity
to respond. We cannot begin to recount this
sad commentary on our society in one tiny memorandum.
The "horse" trick by itself would
cover hours of explanation.
It's been very difficult and very expensive
for MCM to compete with the power of the Globe
in informing the citizens about the truth. The
opponents thought it couldn't be done. That's
why they were so bold as to keep violating the
law and challenging the Supreme Judicial Court,
even in December. The Globe reported the Dec.
20 advisory opinion to the Governor with this
headline, "SJC declines to weigh in on
gay marriage ballot debate." The message
that everyone in New England has received is
that this Court vindicated
Sen. Birmingham!
The large law firms are all frightened of the
combination of the MCAD [the Mass. Commission
Against Discrimination] and the Globe. If any
homosexual employee becomes upset for any reason
and files a complaint with the MCAD and the
Globe reports that firm as a "hater,"
it would never again be able to regain its reputation,
even if it is vindicated two years later in
a trial.
Unfair
Tactics Have Influenced the Courts
 |
|
This type of
unfair tactics has influ-enced even the
Court. Although the members of the Court
undoubtedly do not realize it, the citizens
are greatly upset as they begin to understand
what is happening. They know that the Chief
of the Superior Court, Suzanne DelVecchio,
went to an annual meeting of the political
organization, the Mass-achusetts Lesbian
and Gay Bar Asso-ciation, and told them
they should be working harder for homosexual
mar-riage, even though such a case would
be decided in her court. What has she been
told to cause her to act in this manner? |
| Chief of the
Superior Court, Suzanne DelVecchio |
|
|
When Brian Camenker and Scott
Whiteman blew the whistle about the Fistgate
scandal, where public schools and state employees
taught teenagers how to play with the sexual
organs of other students, Judge Allan van Gestel
of the Superior Court didn't punish the perpetrators
for contributing to the delinquency of minors.
He punished the whistleblowers! Those men are
now in their third year of protecting themselves
from a lawsuit from the five
lawyers at GLAD. Judge van Gestel was so solicitous
of GLAD that he embarrassed himself and our
courts nationwide by putting a gag order on
the press. This blatant violation of the First
Amendment aroused the national media and others
(not the Globe), especially Fox News and Nat
Hentoff. They became upset, along with civil
libertarians like Alan Dershowitz and Laurence
Tribe. Why did Judge van Gestel act in this
manner?
Why
the Citizens Are Upset
Why are the citizens upset and
becoming more so? A poll of 600 voters in 2000
asked if they approved encouraging teenagers
to be sexually active. A surprising 92% did
not approve. Of the 47% of the sample who were
liberal, 91% did not approve. The vast majority
of citizens do not approve of encouraging teenagers
to titillate the sexual organs of other teenagers,
whether it be "heterosexual" or "homosexual"
titillation.
But, if a citizen is so bold as to question
this in public, he is termed a "hater,"
"bigot" or worse.
The homosexual newspaper, Bay Windows, revealed
a portion of the truth in an editorial in its
Aug. 22, 2002 paper, which was probably written
about Aug. 19. Our suit was filed on Aug. 16.
Their Aug. 29 edition had a much more balanced
story.
The celebratory Editorial on Aug. 22 was ecstatic
about the "victory" over the amendment.
But when the editors heard about our lawsuit,
they pulled the editorial from their website.
(Of course, it remained in the print edition).
They finally realized about a month later that
this did not make them look good either, and
the Editorial was restored to the site.
Why were they concerned about their Aug. 22
Editorial? What could it say that would cause
this behavior? It reported that the average
homosexual was not interested in the marriage
matter. It was like pulling teeth to get them
to contribute to the effort, one activist reported.
 |
|
This bus from
the Methuen schools
and a van from the Marblehead schools were
among the vehicles parked
at Fistgate II. |
It stated that those who were
the real opponents of the amendment were powerful,
national forces, particularly the feminists,
including NOW, ACLU, AFL-CIO (they do not publicize
this among the union members) and the Anti-Defamation
League. Although not specifically mentioned,
the New York Times Company and its Boston Globe
were an important player and the foremost enemy
of the amendment.
Pawlick told the press at the time, "This
[editorial] confirms what we have been saying.
This is not primarily about homosexuality. It's
about a powerful, extreme liberal agenda to
change our sexual morality. These liberals are
seeking a socialist state similar to Sweden
or Cuba, with a free-love society in which children
are the responsibility of the state, not their
parents.
| The shockwaves
from Fistgate, held in this building at
Tufts University, showed that there is no
mandate from the citizens to make teenagers
sexually active. |
|
 |
"That's why the national,
liberal organizations are so interested in what
is happening in Massachusetts. They are hiding
behind homosexuals and others to achieve their
political objective.
"They wish to diminish the institution
of marriage which has been the bedrock of our
country since its founding. When the state was
first founded, everyone knew what 'marriage'
meant, so it was never written down. But now
it's obvious to everybody that we must do so."
There is nothing wrong with the
extremists pushing their agenda as long as it
is not sneaky or libelous. It's well known that
the extreme feminists, such as those at NOW,
believe that the institution of marriage is
deleterious to women and should be weakened
or abandoned.
More
and More Understand the Truth
But more and more people are
understanding the truth. The opponents are increasingly
nervous that in two more years of debate, the
truth will assuredly come out as the framers
intended. That's why the opponents don't want
a debate.
We, as a society, have three choices.
1) Punish those who practice homosexuality,
2) tolerate it, or 3) extol it. The vast majority
of Massachusetts citizens would choose to tolerate
it. It will not be the end of this type of demand
if it is extolled. There is a professor of ethics
at Princeton (Prof. Peter Singer, the Ira W.
DeCamp professor at Princeton's "Center
for Human Values.") who argues that sex
with animals is normal and should be allowed
and encouraged for those who desire it. Bigamy
and group sex have over 250 websites and are
already knocking on the door for acceptance.
Even those at the North American Man/Boy Love
Association and others in intellectual circles
who argue that sex with children is positive
are very much alive. Should the citizens be
excluded from this debate by the rich and powerful
at the New York Times Company?
Pawlick agrees with the opponents in one respect.
The citizens do want a debate and they will
approve the amendment when given the opportunity
to vote on it.
Is a vote too much to ask for in Massachusetts
in 2003?
Is
It an Unusual Remedy that the Plaintiffs Seek?
Issuing an order that would send the Amendment
to the 2003 Legislature is not drastic. The
Legislators at the last session were able to
read and understand the Constitution as well
as anyone. They knew what they were doing and
what was required of them, but they pretended
that they didn't. Even after the Dec. 20 advisory
from this Court, they still did not comply.
This order would only be a slap on the wrist.
It would merely send the Amendment back to virtually
the same people who violated the law, the vast
majority of whom are still in the Legislature.
If this is done, they will have two years to
obey the law and study the Amendment. If they
still do not like it, they will have the opportunity
to kill it, but
only if they sincerely believe that the Amendment
does not have "at least a reasonable amount
of public support." This time they would
be on notice that they are to obey the law.
If the Amendment is killed now and she must
start again, Pawlick will be looking to recover
her $1.7 million from someone. That will be
a long and intractable process that will cost
the Commonwealth a lot of money, including the
possibility of attorney fees and treble damages.
Pawlick is informed that the Attorney General
would be defending Sen. Birmingham, Gov. Swift
and the 143 legislators who voted to adjourn.
owever, Pawlick is advised by
counsel that all of those parties will need
two attorneys because they were not doing the
business of the Commonwealth when they were
knowingly violating the Constitution. Therefore,
the Attorney General could not defend them,
nor could the Commonwealth pay any damages awarded
against them. The damages would be the responsibility
of each of those who broke the law, just the
same as what happened to Jane Swift last year
when she was sued by a former member of the
Turnpike Authority.
For many reasons, including the respect of the
citizens, the Court needs to be decisive in
this matter.
Jane
Swift Knew What Her Duty Was
Pawlick takes issue with the following statement
in the memorandum: "On December 3, 2002,
the Acting Governor, uncertain whether she was
obligated to call a further joint session under
art. 48, Init., pt. 4, §2, requested the
Justices' opinion regarding whether the joint
session's adjournment constituted 'final action'
on three proposed amendments within the meaning
of art. 48."
The Court itself wonders (see footnote 5 in
its opinion of Dec. 20) why the Governor took
over four months to take any action in this
matter and so does Pawlick. It would appear
that she was not "uncertain" at all
and waited until the last moment with the hope
that her inquiry would not be answered in time
by the Court.
A
Successful Process, but an Expensive One
Plaintiffs are 1) a corporation and 2) an individual,
both of which have been working assiduously
to move forward an art. 48 initiative, known
as the Protection of Marriage amendment, to
the other citizens for their vote at the November
election in 2004.
The corporation was established in 2001. The
Commonwealth required that it be created especially
for the purpose of pursuing the art. 48 initiative.
Prior to it, another corporation, Massachusetts
Citizens Alliance, had been formed in 2000 for
the same purpose. Those two corporations have
spent $1,761,086.54 to date, and 2) the President
of those corporations since their inception,
Sarah McVay Pawlick, has personally contributed
$1,560,398.22 to date to those corporations.
Same
Scandal as Last Year
This case involves the same scandal which was
the subject of last fall's case, Pawlick
v. Birmingham, SJC-08879.
The plaintiffs followed all the intricate requirements
of art. 48, obtaining over 130,000 raw signatures
and 76,607 certified signatures (which was almost
20,000 more than the 57,100 necessary for approval).
As a consequence, the Secretary of State certified
the Amendment to the 2001-2002 Legislature in
January 2002.
Although the duties of the Legislature and the
Governor were clear, both failed to perform
those duties and the plaintiffs were forced
to bring an action in this Court on August 16,
2002, which merely requested a clarification
of the legal responsibly of the various officers
and legislators of the Commonwealth. Because
of the plaintiffs' action against her, the Governor
also requested on Dec. 3, 2002, that the Supreme
Judicial Court advise her of her responsibilities
under the law. The state Senate made a similar
request two days later. As a result, the lawsuit
by the plaintiffs was rendered moot because
that was exactly what the plaintiffs had requested
from the Court, i.e., a clarification of the
duties of the parties.
On Dec. 20, the Supreme Judicial Court answered
the Governor's request and advised her that
the Legislature had not followed art. 48 as
required and a vote was necessary before Dec.
31 in order to obey the requirements of art.
48. Despite the clear message from the Court,
the Governor and the Legislature still failed
to perform their duties.
As a result, the Secretary has not forwarded
the art. 48 initiative to the new Legislature.
Because of the relief which is
requested of this Court at this time, it is
important that 1) the new Legislature be notified
as quickly as possible what further action is
required of it and 2) that the many thousands
of citizens who are carefully following this
suit see a final closure to this matter.
Two Major
Differences
from Last Year's Suit
There are two major differences in this suit,
which was filed on Jan. 2, 2003, from last year's
case.
1) One is that the major perpetrator of this
scandal, Senate President Thomas Birmingham,
is no longer a defendant. The only defendant
at this time is a neutral person, the Secretary
of the Commonwealth, whose apparent desire is
only to obey the law, whatever it may be.
The attorney who opposes the suit
continues to be the Attorney General, whose
duty it is to defend the person who has been
sued, regardless of the attorney's personal
beliefs. We will never know, and do not wish
to know the personal feelings of the Attorney
General, because it is his duty to protect his
client. When we disparage the arguments of the
Assistant Attorney General, we do not mean anything
personal.
The scandal resulted because the people on Beacon
Hill were, and are, under tremendous pressure
from their political allies to kill the Protection
of Marriage amendment even though the majority
of the citizens favor it. Therefore, the Legislature
and Governor Jane Swift resorted to violating
the Constitution in order to prevent a vote
on the measure, because they knew they would
lose if it came to a vote.
2) The other major difference from last year
is that no one can claim any longer that they
are confused by Limits v. President of the
Senate, 414 Mass. 31 (1992). Whether the
person making that claim is Thomas Birmingham,
Jane Swift or any of the 143 Legislators who
voted to adjourn the constitutional convention
on July 17 or any of the other politicians who
seek to impose their will upon the citizens,
it no longer has any aura of truth.
That is true because this Court made it clear
in its advisory of Dec. 20 that the Legislature's
Joint Rule 12A changed the law when it was enacted
in 1995. Unlike 1992, this meant that the 2002
Legislature violated the Constitution in July
when it adjourned the Constitutional Convention
on July 17 and then adjourned the Legislature
on July 31 so that it was unable to recall the
Constitutional Convention on its own without
the help of the Governor.
The advisory of Dec. 20 accomplished everything
that Pawlick had requested in her suit last
fall. The only relief she had sought was a clear
statement of the legal responsibilities of the
parties in the art. 48 process. When this was
accomplished in the Dec. 20 opinion, it essentially
made her suit moot.
|
|
•
Full
Text of Brief
•
Plaintiff Has Been Told She is
Wasting Her Time and Money Appealing
to a Court in This Liberal State
•
Does Anyone Have a Right to be
Heard?
• Framers of Constitution in
1918 Were Unable to Conceive of Our 2003 Scandal
•
Opponents Fear An Honest Debate;
NY Times and Boston Globe Smeared Supporters
of Marriage with Libel; Two Briefs in SJC Libel
Supporters With No Opportunity to Respond; How
Many Judges Have Seen These Untrue Smears?
•
Unfair Tactics Have Influenced
the Courts
•
Why the Citizens Are Upset
•
More and More Understand the Truth
•
Is It an Unusual Remedy that the
Plaintiffs Seek?
•
Jane Swift Knew What Her Duty Was
•
A Successful Process, but an Expensive
One
•
Same Scandal as Last Year
Related
Stories:
Two
Major Differences from Last Year's Suit
|
