Atty. Pawlick Asks SJC to Send Marriage Amendment to New Legislature

In oral argument before Justice John Greaney of the SJC yesterday, Atty. J Edward Pawlick asked the Court to send the Marriage Amendment to the new Legislature for consideration.

There has to be a remedy, he said, when the Legislature defies the state Constitution.

"This is the best remedy we have thought of," Pawlick told the Justice. "But obviously we don't have the experience that you do. If you know of a better method, that would be fine. But this is the best we have thought of."

This is not a drastic solution said Pawlick, because the Amendment would basically go back to the same people who violated the law last year. It would still need the approval of 25% of the legislators in the new session, but they would understand this time that they must obey the law and have a vote.

The attorney for MCM, J. Edward Pawlick, tells SJC Justice John Greaney there must be a remedy when the Legislature violates the state Constitution and then ignores a ruling from the SJC. Pawlick said that their proposal of moving the Marriage Amendment to the new Legislature is the best idea they have thought of, but if the Court has a better solution, that would be fine. The judge listened thoughtfully and is considering the request. Half hidden, to Pawlick's left is Assistant General Peter Sacks and in front of him is Lillian Andruszkiewicz, First Assistant Clerk of the Supreme Judicial Court for Suffolk County.

The past Legislature abandoned its duty and its right voluntarily, he said. No one forced them or tricked them.

"They are the ones, your honor, who have abandoned their duty and their right. They had a right to vote on this and they decided not to use that right. So I don't see why we should be too worried about them. After Dec 20, when the SJC issued its advisory opinion to Gov. Swift, they were defying not only the Constitution, but this Court."

Justice Greaney said he continues to be puzzled by Governor Swift's failure to act. He questioned Pawlick if he had an answer as to why she did not call them back for a vote as she was required to do under the Constitution. Pawlick told the Justice it was because she did not want to.

Pawlick responded. "We were in constant touch with her lawyers during that entire period. They knew what the law was. It was just that she didn't want to follow the law. You will notice that none of her lawyers were ever used to tell the press that she didn't understand what to do. It was always a staff member who talked to the press; never a lawyer because they knew."

When questioned further, Pawlick responded, "We don't know why she finally asked you for an advisory opinion at the beginning of December, but we're very happy she did. It helped us immensely to have you advise everyone about the law. She was probably feeling the pressure we were putting on her."

The attorney emphasized that everyone knows our government is composed of "checks and balances" between the Governor, the Legislature and the courts, because our founding fathers knew that no man is perfect and there could not be total power in any one person. But this system will fail if the Court abdicates its role, he said.

"It is good that this Court is deferential to the Legislature," he said. "But this is all a matter of judgment and values. You cannot abdicate your role or the system will fail."

Yesterday's argument concerned a motion by the Commonwealth, which is a routine motion used in many cases, to summarily dismiss Pawlick's suit because even if everything that was alleged in the suit by the plaintiff were true, they were not entitled to any relief by the Court.

Because he was the one who was requesting that the suit be dismissed and had the burden of proof in that regard, Assistant Attorney General Peter Sacks was the first to address the Justice.

He told Greaney that the framers of the referendum procedure in 1917 had considered the procedure that Pawlick was suggesting and had rejected it. But when Pawlick rose, he said it was misleading to state it that way and what actually happened was much different. He said that those delegates had been unable to believe that any Legislature would violate the Constitution as was done in 2002.

Pawlick quoted the following from page 685 of the record of the 1918 proceedings.

"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] 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, Pawlick said, the framers were unable to anticipate a scandal of this magnitude. They 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.

The Attorney General also gave examples of the procedure that is followed when the first Legislature passes a proposed Amendment on to the next one. He noted that the Secretary of State is never involved in this procedure.

But Pawlick immediately said upon arising that those cases were where the law was followed. In the instant case, the law was not followed and the framers did not devise a remedy because they were unable to conceive such a deliberate scandal as this.

He noted that the Commonwealth was arguing that the plaintiffs were free to bring another Constitutional initiative that could be on the ballot in 2006. To this Pawlick replied that meant that they should spend another three years of their lives and another $1.7 million and "hope" that the next Legislature would follow the law. "Anyone would have to be crazy to do that," Pawlick responded,

"If this is the law, then Article 48 [the referendum procedure adopted in 1918] is almost worthless because you never know who the senate leader is going to be and what he is going to do. You'd really be stupid to do it again," he said.

Pawlick also noted that the 1992 case, known as Limits, which is always cited by the opposition, is no longer valid law because the Legislature adopted Rule 12A three years later in 1995. The SJC acknowledged on Dec. 20, 2002, in its advisory to Gov. Swift, that Rule 12A has made the Limits case obsolete.

The lawsuit was brought on Jan. 2, 2003 by the President of Mass. Citizens for Marriage, Sarah McVay Pawlick, the wife of Atty. Pawlick, and is No. SJ-2003-001.

Justice Greaney is the longest serving member of the Court, having been appointed by Gov. Michael Dukakis in 1989. He has been a judge since 1975, having served on the Housing Court, the Superior Court and the Appeals Court, where he was Chief Justice, before being appointed to the SJC. Born in Westfield in 1939, he is an honors graduate of Holy Cross College and a Root-Tilden Scholar at New York University School of Law. Before becoming a judge, he was a partner at Ely and King, Springfield.