MCM Suit against Sen. Birmingham Is Taken Under Advisement by SJC Justice

Court Is Asked To Clarify the Law on Amendment Process

By Ed Oliver
October 10, 2002

Judge Francis Spina of the SJC yesterday heard oral argument by the Attorney General to dismiss the case brought against Senate President Tom Birmingham by the President of Mass. Citizens for Marriage, Sarah McVay Pawlick.

She seeks to clarify the law governing the referendum process so that politicians will have no doubt about their required duty when they are presented with Constitutional Amendments proposed by the people.

Pawlick was represented by her husband, Atty. J. Edward Pawlick, who sued Senate President Birmingham after he adjourned the July 17 Constitutional Convention in order to derail the Protection of Marriage Amendment.

The purpose of the suit is not to seek monetary damages, but to ask the SJC to make clear the responsibility of the Senate President and each legislator in the referendum process concerning an Article 48 initiative for a Constitutional Amendment.

As it stands today, the Article 48 process for Amendments is broken, said Atty. Pawlick.

"The reason we are here is because the Constitution is under frontal assault. It's being challenged, it's being disobeyed and it's being violated," he said.

He argued that the Senate President is required by the state Constitution to bring the proposed Amendment to a vote by the legislature in order to move it along to the ballot box where the people can vote on it. In addition, the governor must call the Convention back in session if there is unfinished business, but Governor Swift acts as though she is also unsure about her Constitutional duty, he said.

Atty. Pawlick told the judge that the results of a Tarrance Group poll of 500 likely voters who were surveyed in the last three days shows that 64% of them say that Governor Swift should call the legislature back to finish their Constitutional business on the Marriage Amendment.

The brief from the Attorney General pointed out that she is required to call the Legislature back and she has not done so yet.

Atty. Pawlick told Justice Spina that politicians don't understand what their duties are in these circumstances because of a murky interpretation of the law that stems from widely disseminated "dicta," or excess verbiage from previous SJC opinions. The legal confusion makes politicians vulnerable to heavy pressure from special interests to kill a proposed Amendment.

According to him, liberals in high places used Senator Birmingham almost as a pawn. For instance, the Boston Globe publicly advocated in their news pages that Birmingham disobey the law in order to kill the Marriage Amendment. If the law was clear, Birmingham could have stood up to the pressure and said no to the special interests, he said.

Assistant Attorney General Peter Sacks motioned for the suit to be dismissed. Sacks said there is no controversy because the suit was brought against Senator Birmingham in an individual capacity as a private citizen, but in that capacity he has no Article 48 duties whatsoever. Sacks said other laws provide immunity to Birmingham in his official capacity.

In making his case, Sacks quoted some of the very "dicta" from court cases that Pawlick said in his argument is not law and is confusing the politicians.

Judge Spina took the matter under advisement.

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