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Marshall Was Required to Excuse Herself in Case
against Tom Birmingham in 2002; "Worst Type of Corruption"
When Senate President Tom Birmingham refused to allow
a vote on the Protection of Marriage Amendment in 2002, Margaret Marshall
was required to excuse herself from the ensuing lawsuit brought by Massachusetts
Citizens for Marriage, says its attorney, J. Edward Pawlick.
"We've just discovered that Birmingham was #1 on
the list of references called by Marshall to urge her confirmation when
she was considered by the Governor's Council on September 21, 1999," says Pawlick.
"I wish I had known that earlier. I have always
wondered about the strange things that happened during that lawsuit. Now
it is absolutely clear. This is just another example of Marshall deciding
cases based upon her friendships, rather than the law. This is the worse
type of corruption of which a judge can be guilty."
Pawlick notes that even though MCM had spent $1.7 million
and gotten thousands of hours of work from volunteers, Marshall held that
the citizens had no right to complain.
"She threw out our suit, telling us to try again
next year and maybe the Legislature would be nice enough to obey the law," says Pawlick.
"The only reason we 'won' was because I sent a
FedEx to Jane Swift at her home in Williamstown the day before Thanksgiving
of 2002, threatening a personal suit if she didn't start obeying the law.
On December 6, the same day that I appeared before Marshall on our suit,
Swift caused a big stir by filing a request with Marshall, asking for
advice as to what she was supposed to do.
"Margaret couldn't duck that one as she did our
suit which was asking for the same thing. She had to reply, which she
did on December 20. She gave the obvious answer that every lawyer knew.
I had been in constant contact with Jane's lawyers, and we knew that they
knew that the Legislature and Jane were in violation of the Constitution.
But Pinch Sulzberger's Globe lied about the December 20 ruling and put
a spin on the story so that everyone believed, and still does, that the
bad guys had been vindicated by the Court.
"Marshall threw out our suit, which was reported
by the Globe. But we filed again on January 2, 2003, telling the Court
that not only had the Legislature and the Governor broken the law, but
now they had also thumbed their noses at the Court in failing to respond
to its order to take a vote before December 31, 2002."
Suits Were Very Productive
Pawlick says that even though they were denied any relief
by Margaret Marshall, the two suits were very productive because they
were a constant reminder to Marshall that someone was watching her very
closely and it made the other judges aware there were serious problems.
"We must remember that no one was ever allowed
to address Marshall on homosexual marriage except Assistant Attorney General
Judith Yogman, who was given about fifteen minutes. That is the only public
discussion that Marshall ever allowed on this historic case. And even
then, she wouldn't let Yogman speak without interruption.
"I
appeared before her Court four times, twice before all the judges, including
her. The last time was on May 9, 2003, which was two months after
her disgraceful conduct against Attorney Yogman and one month after Sally
filed an Ethics charge against her with the Commission on Judicial Conduct.
Sally didn't expect to win that charge, but it put Marshall on notice
that we knew she was breaking the law in not excusing herself from the
case.
"When I went before her on May 9, it was clear
she was going to impose something (although we still thought it would
be 'civil unions,' not 'marriage'). So I didn't care what happened. I
gave her a political speech, scolding her about what was going to happen.
I was amazed that she let me keep talking. No one had ever talked to her
like that. But she didn't stop me until I had used all my time anyhow.
"A remarkable transformation had taken place. When
I first went before the Court, it was embarrassingly obvious that no one
had even glanced at my briefs. But I had made considerable progress. The
last session ended with Justice Cordy questioning Assistant Attorney Peter
Sacks with disbelief that our only remedy was to try again, spend another
$1.7 million and hope that the next Senate President would follow the
law. When Peter gave an answer about the law that I thought was totally
wrong, I could not respond because my time had expired.
"But something had happened. Whether I had anything
to do with convincing the three dissenters, I have no idea, but I do know
that I had invaded Marshall's wall of secrecy, which stopped every other
lawyer in the country from even getting close to a discussion of the issues
with any of the judges."
Massachusetts Citizens for Marriage, PO Box 5882, Holliston,
MA 01746
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