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The "Removal" process
will not be a surprise to Margaret Marshall because she was publicly warned
at least two times last year that there would be an uprising if she went
through with her scheme.
* * * * *
Removal Will Not Be a Surprise.
Ethics Complaint Was Filed Against Marshall
on March 23, 2003 by Sally Pawlick;
An Ethics Complaint was filed against
Margaret Marshall by the President of Massachusetts Citizens for Marriage,
Sarah Ann Pawlick, on March 23, 2003, after she observed Marshall's unfair
and tyrannical behavior against Atty. Judith Yogman at the Oral Argument
a few weeks earlier on March 4.
Mrs. Pawlick knew she could not win against
Marshall who ultimately controls everyone on the Commission, but she wanted
the judge to understand that the world knew about her bias and was watching.
The judge can not be surprised now by the removal process.
"The Code of Conduct for judges says,"
noted Mrs. Pawlick at the time, "that they must recuse themselves
from every case where their 'impartiality might reasonably be questioned.'
Obviously, any reasonable person would say that Marshall's 'impartiality'
must be questioned. I had hoped that Justice Marshall was going to be
a fair person, but it became clear at oral argument that that is not the
case."
Two events were noted in the Ethics Complaint,
which was summarily dismissed by the Commission on Judicial Conduct. One
event was Judge Marshall's attendance as an honored guest on October 5,
2000 before the 1,600 people at the Women's Bar Association where Mary
Bonauto was the honored guest. The second event was when Judge Marshall
appeared as Keynote speaker at the Massachusetts Lesbian and Gay Bar Association
and urged the homosexual audience to emulate Marshall's home country of
South Africa which has "sexual orientation" in its new constitution.
Atty. J. Edward Pawlick Personally Advised Marshall
of Perils
in Oral Argument on May 9, 2003
Attorney J. Edward Pawlick
appeared before the Supreme Judicial Court four times between the end
of 2002 and May 2003, twice before a Single Justice and twice before the
entire Court as Attorney for Sally Pawlick, who is President of Massachusetts
Citizens for Marriage, which brought the Protection of Marriage Amendment
in 2001. As a result of his pressure on Governor Jane Swift, the Governor
asked the SJC for an Advisory Opinion on December 3, 2002, about the Legislature's
refusal to vote on the Marriage Amendment on July 17, 2002. The SJC unanimously
replied on December 20, 2002, that both the Legislature and Governor Swift
had violated the Constitution and were required to comply with it before
the end of the year.
Reporter Yvonne Abraham reported the opinion
for the Globe on December 21 and wrote that the ruling was unclear and
a loss for Massachusetts Citizens for Marriage. Most people believed the
inaccurate Globe story and the Amendment did die on December 31, 2002.
But the Pawlicks sued again on January 2, 2003, telling the SJC that there
had to be a remedy where it had unanimously found that both the Legislature
and the Governor had violated the Constitution and they had then thumbed
their noses at the SJC ruling of December 20, 2002. But the Court continued
to hold that no citizen had a right to complain, even the President of
the organization which had spent over $1.7 million, obtained over 130,000
signatures and had had tens of thousands of volunteers working on the
Amendment.
It was at the final Oral Argument in that
case that Attorney Pawlick warned about what would happen if Justice Marshall
pursued this route.
Transcript of Oral Argument Before Justice Marshall
May it please the Court. I'm Ed Pawlick,
Attorney for the Plaintiff in this case. I would first like to express
my appreciation to the Court for giving us time in your busy schedule.
We really did appreciate your doing that.
I have great affection for this Court because
they have served the people of this State for many hundreds of years,
protected the freedom and liberty of those people. But I feel sad today
because I don't think we're addressing the issues that are before the
Court.
This case is not about arcane … we
could make it about arcane state procedure and state law, but so far the
Court has struck away all those things. So we're going to have to look
at this now as a U.S. Constitution case. And hearing the previous cases
[which were also before the Court that day, about millions of dollars
involving large insurance companies and other large corporations, about
which the judges appeared to be interested and well prepared] makes me
wonder whether we'd be doing better if we had couched this in monetary
terms. We're talking about over two million dollars, not of big corporate
money, but of small people. Over two million dollars spent and the money
has been just thrown away. And we're told that we can come back next year
and try again and maybe somebody will obey the law if we spend another
two million dollars and three more years of our time. We got 130,000 signatures
and this went to the Legislature for their vote, but they refused to allow
a vote to be taken.
What we're really debating today is whether
this case should be adjourned to a courtroom down on the Harbor [in the
new federal courthouse]. It seems that that's what we're going to do because
there are many issues that are before the Court concerning the U.S. Constitution.
Probably the most important one at this time is Article 4, Section 4,
which says that the U.S. Constitution guarantees to every state a republican
form of government. And a republican form of government means representative.
We're deciding today whether a federal court has to sit on this case because
we've lost our ability to convene a representative state government.
Now we can argue whether or not that is
because of the law in Massachusetts. We can certainly not disagree that
both the Legislature and the Governor have violated that law. We could
argue whether the law is there and this Court has just failed to find
it, or we could say that this State has no republican form of government
for this particular form of initiative procedure. But regardless of what
the cause is, the State no longer has a republican form of government.
I don't see how anyone can gainsay that, and most citizens out there believe
that you are not going to correct this matter.
My client has been laughed at by many people
because she has told them, and she has told national groups out there,
that Massachusetts will come through. The people of Massachusetts are
good; the courts are good; the judges are good; and in the end, they're
going to come through. But she has been laughed and scoffed at both here,
in this state and outside this state, for taking that position. They believe
you will not change because this case has an obvious direct impact on
the Goodridge case. And you are now deciding the Goodridge case. My client
was very much shocked and surprised to read the transcript of the Goodridge
case because it gave an indication that at least some of the judges in
this Court are going to overturn the definition of marriage or vote to
overturn it. We don't know how many or whether the Court is going to do
it, but at least some of the judges appear determined to do that, overturn
the most basic unit of our society, which is the family.
Actually, for you to do nothing at this
point [in answer to our request to send the Protection of Marriage Amendment
on to the new Legislature] may be the best thing for the conservative
movement because over 60% of the people in this state oppose gay marriage
and if this is imposed upon them, there is going to be a seismic revolution
that will forever have a tremendous effect upon the politics of this state.
And this is not something that just right wing conservatives look at.
I mean, people such as Robert Reich, Michael Dukakis, Senator Kerry and
I don't know the name of the woman who is the Green Party, but they and
many other people were dismayed and disheartened by what happened here
last year at that scandal and they can't understand why no one in this
Court appears to have that same feeling. Everybody seems, appears to ...
CHIEF JUSTICE MARGARET MARSHALL:
Mr. Pawlick?
ATTY. PAWLICK: Yes.
CHIEF JUSTICE MARSHALL: Excuse me,
the case we have before us, you are allowed a very liberal range of arguments,
but the issue before us is the appropriateness of the order of the Single
Justice, correct?
ATTY. PAWLICK: Yes. So I will close
then. I will ask you to consider that Senator Birmingham and Shannon O'Brien
both went down to defeat because they opposed the Protection of Marriage
Amendment and I would hate to see this Court get a stain on its face by
doing the same -- making the same mistake. So I would ask you to consider
that, and you and we both want what the people want. But we don't know
what the people want [because they have not been allowed to vote as required
by the state Constitution]. I would like to go just to the brief of the
Attorney General. I think this sums up the entire thing. His last paragraph
sums up his whole argument, on page 33. He says that if you do what we
suggest -- I'm quoting here -- "this will defeat the purpose of the
legislative minority check on initiative amendments which was to insure
that the initiative petitions submitted to the people for approval have
at least a reasonable amount of support as reflected by the favorable
votes of at least one-fourth of the Legislators elected to the General
Court."
But this [procedure] has already been "defeated"
by the Legislature. It really wouldn't be us who defeat it. They [the
Legislature and the Governor] already defeated it because how can we possibly
show an approval by the favorable votes of at least one-fourth if there
is no vote? So the summation by the Attorney General here is ludicrous.
We just ask that you -- hope and pray that you consider this very carefully,
and the Goodridge case, before forcing us, all of us, into Federal Court.
Thank you for your time.
CHIEF JUSTICE MARSHALL: Thank you
Mr. Pawlick.
* * * * *
It was after that Argument
by Attorney Pawlick that the Assistant Attorney General rose and had the
following conversation with Justice Cordy.
PETER SACKS, ASST. ATTORNEY GENERAL FOR
THE SECRETARY: Peter Sacks, Asst. Attorney
General for the Secretary.
We've laid out two reasons in our Brief why the complaint failed to state
a claim on which relief can be granted. I believe those grounds are set
forth adequately in the Brief and unless the Court has particular questions
about those grounds or any other issue in this case, I think we will submit
on a Brief.
JUSTICE CORDY: May I ask one question?
This issue was back before the Legislature this year?
ATTY. SACKS: There has been a Legislative
Amendment introduced by a Legislator that would define marriage. It is
not precisely the same in text as the amendment that's at issue in this
case.
JUSTICE CORDY: So the amendment that's
at issue in this case is where?
ATTY. SACKS: Essentially dead, Your
Honor.
JUSTICE CORDY: And that's because?
ATTY. SACKS: Because the Legislature
into which it was introduced, the 2001-2002 Legislature, did not give
it at least 25% approval of the joint session.
JUSTICE CORDY: And the Constitution
does require such a vote?
ATTY. SACKS: Yes.
JUSTICE CORDY: And it did not occur?
ATTY. SACKS: Yes.
JUSTICE CORDY: And there is no remedy?
And there is no remedy in Court?
ATTY. SACKS: There is not a judicial
remedy. This Court has previously said that there [are] essentially two
remedies. The Governor can call a joint session if the joint session has
not performed its duty of taking a vote on a proposed initiative amendment,
unless the Governor makes a judgment that such a call would be futile;
and then a second remedy which this Court identified in the Limits Case
is the political remedy, at the ballot box, for the voters to elect legislators
who will do their duty under Article 48. But as the Court said in Limits,
where Article 48 identified a remedy or a role for the Governor in enforcing
Article 48, but did not identify any such role for the Court, that decision
was intentional. The Court therefore did not grant any relief in Limits,
which was a similar situation.
Although Attorney Pawlick
was anxious to tell Justice Cordy that it was not true there was no judicial
remedy, his time had expired and he was unable do so, but apparently the
judges were alerted at that time to some of the machinations that were
taking place.
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