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Addendum to Complaint
COMMONWEALTH OF MASSACHUSETTS ADDENDUM TO COMPLAINT Relief Desire I. Clarification of Duties of the President of the Senate. The plaintiff seeks a clarification of the duties of the President of the Senate in regard to Constitutional initiatives under Article 48. She believes that if these duties are made clear to everyone, the problems that presently exist will cure themselves. Most citizens wish to follow the law but they are now unclear what it is. If they understand, this will lessen any need for litigation. II. Clarification of Duties of Each Legislator. The plaintiff seeks a clarification of the duties of each legislator when he or she is deciding whether to send a Constitutional initiative on to the voters. This Court stated earlier this year, "It is the 'imperative duty' of the judicial branch of government to say what the Constitution requires, when the question is properly presented." 1 It is unlikely this Court will get another chance to clarify these matters, because it is doubtful any lawyer will advise anyone to ever bring another initiative for an Amendment under the present law as it is perceived to be. No one doubts that Constitutional initiatives under art. 48 are in serious trouble. Many initiatives for new laws have made it to the ballot since 1918, but only two Constitutional initiatives have done so in that eighty-year period. 2 I. Clarification of Duties of the President of the Senate A. Facts - The citizens were amazed and upset when the process to amend the state Constitution by referendum under Article 48 was, for all practical purposes, destroyed on July 17, 2000, by Thomas Birmingham, the President of the Massachusetts Senate. Of course, the people don't yet realize that the process is not over. The Governor is required under the Constitution to call the Legislature back into session until they vote. But the Boston Globe, the most powerful information source in the Commonwealth, is reporting to its readers that the process is over and the Amendment is dead. 3 The other media are following their lead and the opponents also keep repeating that mantra. The Amendment is dead as far as the power of the Senate President to recall the Legislature is concerned. He adjourned the Convention under Joint Rule 12A and cannot now recall it himself. He did this even though the Constitution clearly states that the Senate President "shall preside" to ensure that the Amendment is debated and voted upon. 4 But Thomas Birmingham, nevertheless, planned and plotted, instead, to not follow the Constitution. As a result, there has not yet been a debate nor a vote held on the Protection of Marriage Amendment as required by the Constitution. The citizens are troubled. They wonder if we have become a lawless society. This is damaging the image of both the courts and the legislature. The Governor has followed the Senate President's lead and is presently saying that she will not recall the Legislature, despite the clear requirement of the Constitution. This confusion is in large part due to the fact that dicta from this Court in 1992 and 1997 has been misinterpreted and misreported. This is too bad because the Court has shown many times that it enthusiastically supports the referendum process. The Court has written many times that Article 48 was created as a "people's process" to circumvent an unresponsive legislature. 5 You have also said many times that this is a means by which the people can move forward on 1) statutes and 2) constitutional amendments without being thwarted by the legislature. The entire state is looking to you for leadership at this time. Although the plaintiff has money damages because of the illegal actions of the Senate President and others, she is not seeking any relief except a clear statement about the duties and responsibilities of the Senate President. She is seeking to avoid any unnecessary litigation and believes that if everyone knows what the law is, they will follow it. B. SJC Dicta in 1992 Caused the Confusion There were two crucial cases in 1992 involving Article 48, one concerned an Initiative for a new statute and one for an Amendment to the state Constitution. You had written earlier, in 1976, about the art. 48 process:
On July 6, 1992, Justice Greaney reiterated those words when writing about a law initiative. The initiative had been assigned to a legislative committee that failed to act. A different group of citizens, who opposed the art. 48 measure, brought an action for declaratory relief against the Secretary of State, seeking to prohibit him from putting the measure on the ballot because it had not yet been acted upon by the legislature. The lead attorney in that suit was Margaret Marshall. Justice Greaney rebuffed the suit with the following words.
Justice Greaney and the Court clearly
held that the Secretary of State must look at the
process of the Legislature and determine whether or
not the Legislature had obeyed the Constitution. In
that case, the Court held that the solons had clearly
not done so. The problems which are faced today by
amendments under Art. 48 arise from an apparent misreading
by lawyers and laymen of the 1992 opinion issued on
December 23, 1992. 8 Justice Wilkins correctly stated that the legislature had not yet failed to act and it could still do so at any time up until January 5. He wrote: "The joint session has not yet failed to comply with the direction of Art. 48 that it take final action." 10 But Justice Wilkins then slipped into dicta which included many all-inclusive phrases that went way beyond the subject of the specific case he was deciding. The over-arching sound bites which were made that day have been included in every book published by West and Lexis for the past ten years:
Perhaps, the most damaging statements are in the third and fourth quotes above. In response to the third quote, we have seen, to the contrary, that a judicial remedy has been used many times to help art. 48 against an unresponsive, hostile legislature. One would hesitate to say that "a judicial remedy" of any sort is never available. In the fourth quote, the opinion went further and opined that the only remedy was at the ballot box. "When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box." 16 Justice Wilkins wrote about this again, this time as Chief Justice in 1997, after the Limits people had bounded back in 1994 with a successful effort to enact a law which accomplished the same purpose as the 1992 failed Amendment. This time, the League of Women Voters challenged the statute as an invasion of the powers of the Constitution in stating the qualifications of legislators. Justice Wilkins agreed and the citizens were denied once again. 17 The Justice could have stopped there but he went into dicta again, this time scolding the citizens for not listening carefully in 1992. Then he repeated the same dicta.
Justice Wilkins then went on to repeat his unsolicited advice that the people must remove at least 48 legislators if they wish to amend the Constitution.
But the advice is poor because that is exactly why art. 48 was enacted in the first place. Everyone knew in 1918 that there are times when the people are unable to accomplish their goals through an "unresponsive" legislature. That is why the "people's process" of art. 48 was established in 1918, to allow them to move forward without being "thwarted" by the legislature. That is why it is so cruel to tell the people over and over that the only remedy they have is to go out and elect 48 or more new legislators. They have always had that remedy. If that is still their only remedy, then art. 48 is worthless. The Court must make clear to everyone the duties of the Senate President so that this political officer can clearly tell everyone, "I must hold an election as required under the Constitution. I have no other choice." That will relieve much of the pressure on him. C. Mischief Did Not Begin in 1992 The mischief against the Constitutional initiative did not begin in 1992, but that case gave it legs and soundbites. Throughout prior years, the Court kept saying it did not have the power to force the Legislature to act. So it abandoned the field without using its bully-pulpit to let the citizens know that an "unresponsive" Legislature was "thwarting" them by using unfair and illegal tricks to stop the referendum process. The two cases that did this were in 1935 and 1956. In the 1935 case, an Amendment received seventy-one votes, which was much more than the necessary 25%, but an immediate Motion to Reconsider was passed by the majority and the Amendment was doomed even though it had received the necessary 25% of the legislators. Because this was a question raised by the Legislature, apparently no one appeared before the Court to argue the case. 19 In the 1956 case, the Governor and the Council sent some questions to the Court, apparently without anyone arguing the case for the citizens. This Amendment also passed the Legislature but was immediately hit by a Motion to Reconsider. The Court cited the 1935 case and said, "Unless we are to repudiate what was said in that sopinion, we must answer question 2 'No.' We so answer it." 20 D. Article 48 Is Now a Shambles for Constitutional Amendments The opponents of Art. 48 have jumped upon the gratuitous advice of Justice Wilkins. They are twisting that advice in order to destroy the vision of Art. 48 as a device for a people's process to amend the Constitution. They interpret his words to mean that even though the Constitution says that the President of the Senate "shall" preside at a joint session of the legislature to debate and vote on the issue, whether the President actually follows the mandate is his choice. According to the standard mantra, no ethical, moral or legal values are involved. Under this standard, even though thousands upon thousands of citizens toil over a two-year period to get a vote by the people, one person, the President of the Senate, may throw all those signatures into the trashcan at his whim—depending upon his political desire at the moment. The enemies of the referendum process have returned us to 1918. We have an unresponsive legislature which is thwarting the will of the people. It is even worse than 1918 because at that time, the people knew they had no chance against a cynical politician, but now they go out with enthusiasm to make a difference, only to find that their efforts are still in vain. If we are attempting to also make the citizens cynical, we are doing a good job, but to what end? E. Effect of Clean Elections Dispute You stated the importance of art. 48 again this year in the dispute about clean elections, when you wrote:
You also stated clearly that the Secretary of State does more than print booklets for the voters. His duties include "administering the Massachusetts election law."
You had already made it clear in the 1992 case that you will judge the Legislature. In that case against the Secretary, you looked behind the Legislature's actions and determined that the Joint Committee on Taxation had not yet filed a report on an Art. 48 initiative for a new statute. Even though the Legislature had not finished its process, you brushed that aside and ordered the Secretary to put the measure on the ballot. F. What They Are Saying The Boston Globe, which has enormous influence and power in this state and which staunchly opposes the Amendment, wrote in its news columns on May 2, 2002, "As Senate president, Birmingham could choose to not schedule a proposed amendment for a vote, which would scuttle the measure." 23 That is not true. If Sen. Birmingham did as they suggested, this would violate the law. This is not just another political decision he can "choose." The paper gave public advice on its news pages that if Sen. Birmingham were to see that no vote is taken on the measure, it would "potentially generate some needed excitement about his campaign [for Governor]." 24 The paper did not say anything about whether this would be moral, ethical or legal. According to the Globe, this was strictly a political question for the Senator. The Globe also indicated that the Senator could use more "subtle" means of avoiding a vote. It said, "He could use more subtle means of squashing it, rallying allies behind the scenes and then putting it up for a vote when he knows it wouldn't get the support it needs to pass." While such a tactic may not be "nice," it is usually expected in politics. But the question about which many want an answer is whether not calling for a vote despite the mandate by the Constitution is merely a "political trick" or is it a violation of our state laws? 25 Senator Birmingham did not attempt to hide what he was doing. His spokesperson, Alison Franklin, openly told the Globe that he might never allow the measure to come to a vote. When he followed through on that threat, this allowed one man to nullify every effort that had been made by thousands of voters for two years to put the Amendment on the ballot for a decision at the elections in 2004. 26 In a story in the Boston Globe the day before the July 17 vote, the Globe said that ". Birmingham said he is seeking ways to defeat the measure . Birmingham said he is strategizing with other opponents on ways to block the question from advancing tomorrow, but he would not detail their plans." He told the paper, "I'm going to do what I can to defeat it. Our options are open." 27 He told the press on July 17 after the Amendment was not allowed to come to a vote: "Today we saw democracy in action. They may not like it but they lost two to one." 28 He also admitted that a vote on the merits was not allowed and a Motion to Adjourn was allowed so that the legislators could deny that they voted against the Amendment. Birmingham told the press, "Everybody [i.e., the legislators] recognizes a vote to adjourn was a vote up or down [on the Amendment]." 29 The Globe reported that the measure appeared to have the necessary support "and more," and that is the reason that Birmingham did not allow the legislators to vote on it. 30 Sen. Birmingham was afraid the Amendment would pass, according to an article in Bay Windows. Sen. Cheryl Jacques told Bay Windows that she was fighting to stop a vote from ever taking place in the Legislature: "I'm fighting.to see that [the Marriage Amendment] never comes up for a vote. I'm happy to throw my body in front of the train to block this question." She says Sen. Birmingham's delay of the vote was heroic: "Tom Birmingham is a hero for the gay community." The article said he may never allow a vote. "Birmingham, who opposes the measure, has not committed to bringing it up for a vote at the upcoming Constitutional Convention [on July 17], leaving open the possibility that the amendment could be dead and buried by the end of this legislative session." 31 Jacques said it is not undemocratic to defy the state Constitution and break the law. But the public disagrees. 32 After the vote, Bay Windows unhappily reported there was criticism of the process from all sides. 33 "[H]ardly a day has passed without reading or hearing criticism over the way Massachusetts Senate President Tom Birmingham handled the legislative process." Even Robert Reich said he disapproved of the way it was handled, saying, "We should have had a vote on this issue and all issues." 34 Even the MetroWest Daily News, which strongly opposed the Amendment, was upset that the law was so blatantly violated: "We elect senators and representatives to debate and vote on the issues of the day. Most people who run for office expect to be called on to take a stand on tough questions. Birmingham should get out of the way and let elected legislators do what they are paid to do." 35 The State House News Service had this to say from its offices at the State House: "Another power play was pulled on Wednesday. The Legislature voted 137-53 to adjourn its Constitutional Convention for the year rather than debate and vote on a controversial measure put before them by a campaign that had garnered more than 130,000 signatures. Senate President Thomas Birmingham, who orchestrated the proceedings, said it was better to kill a measure defining marriage as between a man and a woman by adjourning than risk taking it up and having it pass, which would have moved the measure one step closer to a ballot vote two years from now." 36 Most people are outraged at what they see as this breakdown in our government. G. Does the Court Have Jurisdiction over Thomas Birmingham? M.G.L. 231A sect. 2, says that declaratory judgment may not be used against the "legislative department." This is a codification of "legislative immunity" which has always been a part of common law since its inception. The answer to the question whether the Court has jurisdiction depends upon whether or not this action of Sen. Birmingham violated the state Constitution or was it merely a political trick? If he violated the Constitution when he planned to not allow a vote as required by the Constitution, this was an ultra vires act and he is not entitled to legislative immunity. If the action of Sen. Birmingham was not a violation of the law, then the citizens will understand that they should never again bring an initiative for a constitutional amendment under Art. 48 unless the President of the Senate is on their side -- and unless he will not be replaced by someone else during the next three years. They will also realize that the procedure under the Constitution as adopted in 1918 has been changed, not by the courts, but by Sen. Birmingham. Instead of obtaining 25% of the legislators, they are now required to obtain more than 50%. This is true because they must have all those votes to defeat a motion to adjourn or to defeat a motion for a quorum call. If the drafters of Art. 48 had that intent in 1918, they would have said so. This is clearly a violation of the state Constitution. II. Clarification of Duties of Each Legislator Some Legislators keep saying it is their prerogative when they do get to vote on the merits of the Amendment to vote as they wish. But that is not what the Court has said in the past. What standard must a legislator use when deciding whether to send an Article 48 Constitutional Amendment to the voters after it has been certified by the Secretary of State? Is a legislator merely to vote his own opinion about the merits of a proposed Amendment? There have, unfortunately, been very few initiative petitions for Constitutional Amendments. Therefore, many legislators have become confused and do not understand the difference between enacting a new law and amending the Constitution. The process for a new law under Art. 48 requires the legislators to vote their own beliefs about the proposed legislation. But in the case of an Amendment the process is totally different. The Court has said the Art. 48 process is a "people's process," which was added to provide a "check on legislative action" and to give the people a method of "circumventing an unresponsive General Court." There are three decisions from the SJC giving guidance on this process. Two of those decisions concerned a proposed statute. In the 1976 Buckley case, the Court said: "It [art. 48] presented to the people the direct opportunity to enact statutes regardless of legislative opposition. It projected a means by which the people could move forward on measures which they deemed necessary and desirable without the danger of their will being thwarted by legislative action." 37 In 1992, the Court quoted the above statement from the Buckley case with approval. It continued, "Our interpretations have been guided by the 'firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.' . . We cannot endorse a result that would permit the Legislature, by failing or refusing to comply with a mandatory provision of art. 48, to frustrate the right of the people to place a proposed law on the ballot. . . . Because the purpose of art. 48 is to allow the people 'to enact laws directly without being thwarted by an unresponsive Legislature,' . . . a different result is required." 38 The reasoning behind both the initiative for a new law under Art. 48 or for a constitutional Amendment are the same. Both were adopted in 1918. The purpose of both is to allow the citizens to enact "laws" and amendments without being "thwarted" by an "unresponsive legislature." The statutory initiative requires the Legislature to enact the proposed "law" or else the citizens may return with 1/6 the number of signatures originally submitted and the measure will definitely go on the ballot for the voters to decide. 39 The constitutional initiative requires no additional signatures from the citizens if the legislature votes against it, but the process is longer and more arduous and requires a 25% vote in two Constitutional Conventions before going on the ballot. 40 You have articulated that the purpose of the 25% rule is to ensure that the Amendment has "at least a reasonable amount of public support." But no one - not even the opponents -- denies that the "Protection of Marriage" Amendment has the support of over 60% of the citizens. The opponents have clearly stated that many times and have also said that is why they don't want it to go to the people - they (and everyone else) know that the people overwhelmingly support the measure. Therefore, a legislator cannot in good conscience vote against the Amendment simply because he does not favor it. The level that is required for him to reject it is much higher. As you say, it is not his prerogative to thwart the people - regardless of his or her personal beliefs. You stated it this way, "The 'one-fourth vote' requirement applicable to initiative amendments was intended as a 'legislative minority check' on initiative amendments to the Constitution. Its purpose is to ensure that initiative amendments submitted to the people for approval have at least a reasonable amount of public support, as reflected by the favorable votes of at least one-fourth of the legislators elected to the General Court. See 2 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 680, 688 (1918)." 41 III. People Seek Leadership Are we to have a lawless society because the courts evince no shock or disappointment when the state Constitution is manipulated by those in the Legislature seeking their own selfish goals? Is this Constitution to have no meaning? Does anyone really expect to see a change in 83 legislators this year? What a sad event to see the citizens mocked in this manner. The citizens look to this Court for help in finally accomplishing the process that was begun in 1918. Footnotes: 1 Bates v. Director of the
Office of Campaign, February 25, 2002, Slip opinion
at sect. III A. 
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