Transcript of Oral Argument Before Single Justice Greaney on February 5, 2003

COURT OFFICER: All rise. You may be seated.

JUSTICE GREANEY: Good afternoon.

ASSISTANT CLERK LILLIAN C. ANDRUSZKIEWICZ: Your Honor, the first matter on the list is SJ2003001, "Massachusetts Citizens for Marriage and Sarah McVay Pawlick versus the Secretary of the Commonwealth." Attorney Pawlick for the Plaintiff, Assistant Attorney General Peter Sacks of the Attorney General for the Commonwealth.

JUSTICE GREANEY: Okay. Who is up first? You're moving to dismiss this lawsuit?

The attorney for MCM, J. Edward Pawlick, told SJC Justice John Greaney on Februaury 25th that there has to be a remedy when the Legislature violates the state Constitution and then ignores a ruling from the SJC. Pawlick said that his proposal of moving the Marriage Amendment to the new Legislature is the best idea he has thought of, but if the Court has a better solution, that would be fine. Justice Greaney dismissed the lawsuit without comment on February 28th and it will now go before the full seven-judge Supreme Judicial Court.

ASST. ATTORNEY GENERAL: Plaintiffs are supporters of a Protection of Marriage amendment to the Constitution which obtained sufficient signatures for the Secretary to transmit it to the Legislature in early 2002, but the Legislature took no final action before adjournment. Plaintiffs now ask this court to order the Secretary to transmit the petition to the current Legislature as if it was the second Legislature to consider the amendment.

ASST. ATTORNEY GENERAL: That's correct, because no final action had been taken at that point.

ASST. ATTORNEY GENERAL: She did not do that, no, and the Justices did not address her second question regarding whether there was an occasion of futility in that situation.

The plaintiffs apparently believe that the approval of the first Legislature is not necessary for this amendment to proceed in the article 48 Constitutional amendment process, and their complaint should be dismissed essentially for two separate and independent reasons. First, even if the proposed amendment had somehow been approved by the 2001-2002 Legislature, the Secretary simply doesn't play any role in transmitting a petition from a Legislature that's approved it to the next Legislature, which must also approve it before it appears on the ballot. Secondly, the proposed amendment simply wasn't approved here by the first Legislature.

JUSTICE GREANEY: Going back to the first point for a minute, assuming their argument is correct, who transmits it?

ASST. ATTORNEY GENERAL: Yes, as the materials set forth in our memo demonstrate, it is referred by the Joint Session itself to the next General Court and then the next General Court. As the journals show, it takes it from the files of the previous General Court and then lays it before the Joint Session. There is no language in article 48 nor language in any of the past initiative amendments or legislative amendments, for that matter, indicating that the Secretary plays any role in that process.

JUSTICE GREANEY: And your second point is that failure to act is not constructive approval.

ASST. ATTORNEY GENERAL: That's right. So that even if the Secretary did play some duty in transmitting a petition from a Legislature that had approved it to the next Legislature, there is no approval here.

Constructive approval simply does not exist under article 48 and language that would have provided for constructive approval was actually in several of the earlier drafts of article 48, but was deleted and what was inserted as a potential remedy for legislative inaction on an amendment was a provision that the Governor could call the Joint Session back if they hadn't taken a final action. This Court, or the full court, has said on several occasions that article 48 provides for a remedy with the Governor, but provides the courts no enforcement role if the Legislature has not taken final action as envisioned under article 48.

So the Secretary certainly has no role to play here in between one Legislature and the next. He transmits it to the first Legislature. If the clerk of the Joint Session in the second Legislature certifies that it's been approved by the 25% of the Joint Sessions of two successive Legislatures, then it comes back to the Secretary and he puts it on a ballot. But while it's over at the Legislature, he has no duty under article 48 to do anything with respect to the petition.

The purpose of this 25% so-called, legislative minority-check is to ensure that a petition has a certain level of legislative support before it goes to the people. The Justices in several prior opinions have addressed this and have said that a proposed amendment cannot be submitted to the people unless it has received the specified vote of a Joint Session of two successive General Courts. This petition has not received the specified vote of the first General Court therefore it doesn't proceed to the second.

Plaintiffs don't really dispute in their opposition to our motion either of the points under article 48. They don't dispute that article 48 doesn't give the Secretary a role in forwarding an amendment from one Legislature to another. Nor do they dispute that article 48 doesn't provide any "constructive approval" or "deemed approval" for passing an amendment along to a second Legislature when it hasn't been approved by the first Legislature. Their argument is simply that where the Legislature hasn't taken final action as envisioned by article 48, the Court must order the Secretary to do something to remedy the situation almost regardless of the language of article 48. Their frustration may be understandable, but they're coming to this Court asking for what is essentially mandamus relief against the Secretary. In order to get the relief, they need to identify some present duty that the Secretary has, but is not performing, and they simply don't identify that duty in article 48 or elsewhere.

Plaintiffs also concede in their opposition that what they're really looking for is a declaration as to the current Legislature's duties. They will seek a declaration that the current Legislature is obligated to vote on this amendment as if it's the second Legislature and that if it gives the measure at least a 25% approval, it will go on the ballot in the fall of 2004. But, as a matter of both chapter 231A itself and separation of powers, declaratory relief isn't available against the Legislature and plaintiffs can't circumvent that rule through the expedient of suing the Secretary rather than the Legislature.

The full court has said on several occasions that where the Legislature fails to take action -- final action -- on a proposed amendment, article 48 gives the Governor an enforcement role; that is, calling the Joint Session back to take action. But it gives the court no enforcement role and that that distinction was intentional. Likewise, the court has noted that where the Legislature fails to take proper action on a proposed law under article 48, the Secretary has a clear duty under article 48 to place that matter on the ballot.

But that the provisions regarding Constitutional amendments are very different and unless there is the approval by 25% of two successive Legislatures, the matter simply doesn't go forward. The Court has also said that when the purpose of article 48 has been frustrated by the Legislature's failure to take final action on a proposed amendment the only remedy may come from the influence of public opinion expressed ultimately of the ballot box. That was the Limits case. And then in the League of Women Voters case regarding the term limits amendment, the Court mentioned the "power of the people" -- it was referring in talking about the ballot box, to the power of the people to elect a sufficient number of legislators who would not defy the requirements of the Constitution so that a Joint Session would be required to perform its duty. That is the ultimate remedy that's envisioned by article 48 if the gubernatorial remedy isn't sufficient, but there is no judicial remedy and therefore the complaint should be dismissed.

JUSTICE GREANEY: I guess the remedy you're thinking about is they would have to start all over.

JUSTICE GREANEY: Which would put it off, assuming it's going to make it through the Legislature, until 2006.

ASST. ATTORNEY GENERAL: That's correct. They could file it this summer. If they got sufficient signatures, the Secretary would transmit it to the Legislature in January of 2004. If it were then approved by a Joint Session sometime in 2004, it would go to the 2005-2006 Legislature. If they gave it the 25% approval, it would go on the 2006 ballot.

I think the natural question here is what is the solution to this problem? Is there really nothing the court can do? And I think part of the problem may lie in article 48 itself. It is not perfectly constructed to maximize the chances of getting a proposed amendment on the ballot. Some initiative amendments have certainly made it onto the ballot, the most recent one being the proposal to authorize a graduated income tax which was on the ballot in 1994, although not approved by the voters.

So article 48 has worked as expected in those cases, but article 48 doesn't fully provide for every contingency. It does make it possible for an amendment not to reach the ballot without first having faced an up-or-down vote in the Legislature. And article 48 has been found to have other flaws and gaps in it as well. It's been amended twice since 1918 to address flaws or difficulties that were only discovered once the amendment began to be implemented that couldn't have been envisioned when it was adopted in 1918.

Here, the drafters assume that the Legislature would do its duty and that if it didn't, empowering the Governor to call the Legislature back into Joint Session would be a sufficient remedy. They didn't foresee the particular problem that we encounter here, but what is clear is that the drafters did not intend that an amendment be passed on to the second Legislature if it hadn't obtained the requisite approval in the first Legislature.

They specifically deleted the language that would have authorized that remedy and they substituted language giving the Governor the role of calling back the Joint Session and, as we've said in our memo, language that deems inaction to constitute approval appears in several other parts of the state Constitution, but not in article 48. So where the drafters expressly considered and rejected it in article 48, the courts should not reinsert it into article 48. The ultimate remedy, if the Governor doesn't call the Joint Session back, is at the ballot box, but not in court and for that reason we ask that the complaint be dismissed.

MR. PAWLICK: Basically, Peter is talking about where the law is followed. In this case, the law was not followed. He's absolutely correct that where the law is followed then what he says happens. The question is what happens when the law is not followed?

JUSTICE GREANEY: Is there any language in article 48 that talks about constructive approval?

MR. PAWLICK: Let me answer that in this way. In 1918, it was raised -- this exact scenario was raised in 1918. They said at that time that they could not even consider that this would happen, that the Legislature would on purpose disobey the law. They said they could not even conceive of it. What they said is, [reading from the transcript of the 1918 Convention]:

"I do not believe we need to consider seriously that contingency 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 could 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 valid objection, particularly in the case of this amendment."

So they did consider this in 1918 and they said we can't conceive of such -- what word should I say -- such corruption that this would happen. So they did consider this, they said we don't think this would ever happen. It was not in their minds and they said this is the same thing as if the Constitution is not followed in some other route, what do you do? So they didn't put it in specifically. They didn't think they had to. They said -- basically, just said if it ever gets that bad, things are really bad.

JUSTICE GREANEY: Mr. Sacks seems to indicate that there was such language in some of the drafts about constructive approval, but --

MR. PAWLICK: Yes, that is a little misleading the way he states it. As I understand it, what they did was they suggested putting it in the same way it is for legislation. They didn't have anything in there like this. That was not what was suggested. What was suggested was they follow the same route that is followed for legislative changes under article 48. They did not say -- they did not suggest a change like this that they could come in and somebody could say, "Okay, they didn't do it, let's put it in instead." That was not what they were discussing during their convention.

So what we're talking about is what remedy do the citizens have now when the Constitution is not obeyed? We don't have any great love for this idea. But there has to be a remedy. If somebody can think of a better remedy or another way to do it, that's fine. We have just come up with this as a suggestion of the best way we can think of, but we don't have the best brains. The court and other people have more experience in this than we do. What should be the remedy? We believe there has to be some sort of a remedy and what it is we don't know, but we think this remedy is not drastic. It's merely sending it on to the next Legislature, sending it on to the same people who broke the law. This time they can do the same thing, but they should follow the law this time and have plenty chance to debate it, argue it. It will send a message to them that this time they should obey the law and we find it hard to believe that is a very serious remedy.

They're the ones, Your Honor, who have abandoned their duty and their right -- they had a right to vote on this, but they decided not to use that right. So I don't see why we should be too worried about them because they decided it. Up until December 20th [when the Court issued an advisory opinion to Gov. Swift], some people could say that they didn't understand. After December 20th, your opinion was perfectly clear and after December 20th they were just defying not only the Constitution, but this Court.

JUSTICE GREANEY: Why did the Governor wait so long to send those questions over here?

MR. PAWLICK: Well, if you want my opinion. She obviously didn't want this to happen and she felt goaded into it by our lawsuit and for some reason, she made a mistake. She shouldn't have asked you for an opinion and everything might have rolled right over. Why she did it, I don't know, but I'm very glad she did.

MR. PAWLICK: She could have, yes. She should have done it right away. She didn't even need to do it. I don't know how much I should say, but you know we've been in constant touch with her lawyers throughout this whole thing and there is no question in my mind that they knew what the law was and they said to her what the law was. She just didn't want to follow it. If you notice, she never had a lawyer speak. No lawyer ever got up and said what her rights were and what her duties were. It was always somebody else, a press person or somebody like that because their lawyers knew.

We were talking with their lawyers, they knew what the law was. They didn't need to ask you. They knew what the law was. The law was clear and was the same as you found it. She had to call them back. It said "shall." And we go back to the same word that was used in the Clean Elections case where you made short swift of what "shall" means. I mean it's very clear what "shall" means and they knew. The lawyers knew and she knew, she just didn't want to do it. And even after it was clear to everybody on December 20th, she still didn't do it. She just didn't want to do it.

I think one other very important thing I would like to say is, you're not bound by the dicta in Limits. This is not the Limits case again. In Limits, the Legislature had until December 31st to act, but they passed Rule 12A in 1995 and that changed everything as you found in your advisory to the Governor. In 2002, they broke the law on July 31st. They violated the Constitution on July 31st. So it was already done. It was a fate accompli, which was not true in Limits. Limits, in my opinion, was decided correctly, it's only the dicta in it that caused all the problems. But you're not bound by the Limits case in any way, anymore because it's totally changed because of Rule 12A which says that they broke the law or violated the Constitution on July 31st whereas in the Limits case they had until December. The court was sitting here in the Limits case trying to say they had broken the law when they hadn't broken the law. In December, they hadn't broken the law. They still had time to remedy it, but they didn't have time to remedy it in 2002. So it's an entirely different case from Limits.

MR. PAWLICK: I don't know how important it is, but it's very important to my client that they spent three years of their lives, $1.7 million on this thing and to say, "Well, you can come back next year and spend another two or three years and another million, two million dollars and hope that the Legislature will hear it next time?" That's all you have is a hope? What's going to change them? They're not going to change. I mean if they can get away this, they'll get away with it next time. We've just thrown out half of article 48 [which has referendum procedures for both new laws and constitutional amendments]. It's almost worthless because you never know who the Senate leader is going to be, what he's going to do. So you can't come back again.

I mean you'd be—really—you're really kind of stupid to come back this time, I guess, but you'd really be stupid to do it again. So I don't know what the answer is, but you know we've suggested one answer is to just send it to them. It's not a very drastic remedy at all because they're sending it right back to them. They can kill it again if they want to if that's their choice, but they should follow the law this time and at least take a vote on it.

JUSTICE GREANEY: Okay. Well, I'll take the time to study your papers and get back to both of you.

MR. PAWLICK: Can I say just one other thing. I don't know if I said this before, but you know we live with checks and balances in our society. There are three branches of government and the framers could see that people were not perfect, people were going to make mistakes and everything, so we had checks and balances. If this court doesn't perform its duty under that system, that kind of system has kind of been lost. I don't think this court can abdicate its role of doing checks and balances. You're correct when you defer to the Legislature and don't go running in there, but on the other hand when something wrong has happened, I think our whole system of checks and balances are going to be down the tube if you don't do something about it.