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

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.

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.

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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.

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It's disturbing that when this scandal did occur in 2002, many of us did not even recognize it.

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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 Government ."

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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 influenced 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 Massachusetts Lesbian and Gay Bar Association, and told them they should be working harder for homosexual marriage, even though such a case would be decided in her court. What has she been told to cause her to act in this manner?

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. 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."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. However, 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.