Three Minute Summary

Full Text of Brief Given to Court

If the Supreme Judicial Court finally grants relief for the citizens in this scandal, it will go a long way toward creating more trust in the Massachusetts courts.

Justice Greaney said last year, when talking to the Superior Court judges, that "judges are nothing more than politicians in black robes," according to many citizens, and the law is "a mass of unpredictable outrageous decisions." A Special Committee reported to Chief Justice Marshall last week that a crisis exists because our court system is "mired in confusion."

It's no surprise that most citizens believe you will do nothing to correct the scandal which is the subject of this suit. However, this plaintiff has always remained positive and, for some reason, still believes that you will not abdicate your duty. A strong statement of leadership will help in many ways.

However, if you allow the Legislature and the Governor to violate the state Constitution in an attempt to kill this initiative under art. 48 of the state Constitution, then we no longer have a "republican form of government" as guaranteed by Art. IV, sect. 4 of the U.S. Constitution. The plaintiffs will be obligated, in order to be faithful to the 60% of the citizens who favor the Amendment, to appeal to the federal courts.

In addition, the First Amendment rights of those Legislators who were not allowed to debate the issue on the floor of the State House will have been violated. Other violations of constitutional rights also exist.

The U.S. Constitution guarantees to the citizens of every state a "republican form of government." This provision has not yet become as commonly used as others of the U.S. Constitution, but it is becoming more so. Many lawyers advise us that this case should be adjudicated in the federal courts if the Commonwealth is unable to provide a remedy for the blatant disregard of its state Constitution. If this were allowed to stand, we will no longer have a government that is ruled by law.

The right to petition the government for redress of grievances is among the most precious of liberties safeguarded by the Bill of Rights. It is fundamental to the very idea of the republican form of government.

Although they have no desire to do so, the plaintiffs would also be obligated to seek damages through the federal courts. This will cause untold lawsuits and claims for damages. The plaintiffs have spent $1.7 million in cash, in addition to untold amounts of money in volunteer efforts to date.

This matter concerns the same facts as the Dec. 20, 2002 advisory to Governor Swift, which stated that the Legislature violated the state Constitution on July 17, 2002, when it failed to take a vote on the Protection of Marriage Amendment and then adjourned on July 31.

The first question that Justice Greaney asked the Attorney General was whether this case involves the same facts as the Dec. 20 advisory. When the Single Justice questioned me, he expressed puzzlement as to why the Governor waited until Dec. 3, 2002 to act in the matter. I responded that we had been working with her attorneys throughout July-December 2002 and she clearly knew what the law was. She did not wish to follow the law. She believed that this Court would not respond in time, but you fooled her. A bigger puzzlement to everyone is why Single Justice Greaney failed to give relief to the citizens in this matter.

Where the Legislature and Governor defy the Constitution and refuse to perform their mandatory duties under art. 48, what can the citizens do?

The plaintiffs carefully followed every law and rule to pass the Protection of Marriage amendment and were successful in having it certified to the Legislature by the Secretary of State in January 2002, but the Legislature violated the law and refused to vote on it -- even after your Dec. 20 advisory made it clear to everyone that they were required to vote before the end of the year.

The attorney for the Commonwealth argues that the citizens have no remedy other than to try again, spend another $1.7 million and hope that the next Legislature and Governor will obey the law. The Single Justice concurred with this logic.

In order to correct the blatant violation of our Constitution, it is not necessary to issue a writ of mandamus or any other order to the Legislature. There is a simple remedy. The Court can order the Secretary of State to complete his certification of the measure by determining its present status.

When the Secretary of State performs his duty of determining the status of the Amendment, he will discover that the 2002 Legislature did not avail itself of its duty and its right to vote on the Amendment as set forth in art. 48, even though notified of such by this Court in its opinion of Dec. 20. The Legislature has abandoned its duty and its right voluntarily. No one forced them or tricked them to do so. This Court labored in December so that the Legislature would know their responsibilities and rights in time to act before Dec. 31.

Issuing an order to the Secretary to send the Amendment to the 2003 Legislature is not drastic. It is not even a slap on the wrist of the Legislature.

If the Secretary is ordered to send the Amendment to the 2003 Legislature, this would not be a drastic remedy. The Amendment would still need the approval of the Legislature before it could go to the voters in November 2004. Most of the new legislators are the same as the old. They would still have the opportunity to kill the measure if they so desire, but they would be on notice that they must follow the Constitution this time. If the Court does not address this scandal, it will appear to the citizens to be weak and ineffectual. A poll of 500 voters in Oct. 2002 showed that 64% wanted the Governor to recall the Legislature to vote, only 9% approved of what was done and the rest did not know enough to have an opinion. The citizens are looking to this Court for leadership.

The dicta in Limits no longer applies.

It was made clear in the Dec. 20, 2002 advisory that this Court is no longer bound by the Limits case from 1992 because the Legislature passed Rule 12A in 1995 which mandated that the Legislature end its second year at the end of July rather than the end of December. This meant that the Legislature back in 1992 had until the end of the year to comply with art. 48, and therefore had not yet violated the state Constitution when Limits was decided. However, in 2002, the Legislature ended its term on July 31 and the law was therefore violated on July 31 as you indicated.

When Single Justice Greaney conversed with the Attorney General on Tuesday, Feb. 25, 2003, they spent almost the entire ten minutes discussing two points which are a waste of time.

1) The Attorney General argued in great detail before Single Justice Greaney that the Secretary is not involved when Initiatives are sent from one General Court to the next, in the ordinary situation where the law has been followed. Everyone agrees with that. The relevant question that must be answered is what must be done when the law is not followed. Our discussion should focus on that. We should not waste time on something that is obvious and not disputed. This trivializes our discussion.

2) It is not true and is totally misleading for the Attorney General to say ". language that would have provided for constructive approval was actually in several of the earlier drafts of article 48, but was deleted ." That language would have been relevant only if the law was obeyed. That language would not deal with what we have here, where art. 48 was not followed. Those early drafts were not intended in any way to deal with a violation of the law, as we have here. They were basically a proposal that we use the same procedure for an amendment initiative as was eventually used for a law initiative.

Plaintiffs have been libeled in a brief in this Court.

Plaintiff was libeled in a brief that was filed in this Court concerning your advisory opinion. The plaintiffs have been unable to respond to this libel in any forum. It is part of a continuing attempt by the opponents to avoid a vigorous debate over the next two years as envisioned by the liberal and progressive framers in 1918. This serious scandal can be corrected at the state level only by this Court.