Written 'Three Minute Summary' Given to SJC
Summary Given at Dec. 3 Oral Argument
MassNews Staff
December 4, 2002
Attorney J. Edward Pawlick gave this written "Three Minute Summary" of the marriage case to the Justices the day before the Dec. 3 oral argument in order to help them better understand the issues. The time constraints were necessary because of the necessity of deciding the case quickly.
He told MassNews at the time: "The short timing on the case has made it difficult for everyone. We were lucky to find a printer who would open his shop on Sunday evening so that we could have our answering brief at the court at 8:30 on Monday morning. The justices have so much to do, it is understandable, but discouraging, that they had not looked at the briefs before the Oral Argument. We hope we have convinced them to take a serious look at this matter. It doesn't affect our case so much because we are also going by the political route, but it is crucial to our democracy that our laws be followed. We hope they realize that many people are unable to understand how this could be happening here." |
10-Minute 'Oral Argument' Requires 3-Minute 'Written Summary'
The time constraints that the SJC is under require a short, 10-minute argument, and I failed miserably in that environment in October when I was conveying my message to Justice Spina.
In order to now explain this case to the Justices in a better manner than I did to Justice Spina, I have prepared both a traditional brief as required under the Rules of Appellate Procedure and a quick "3-Minute Summary," which will help them considerably and save a lot of their time in becoming familiar with the case.
As founder/owner of Lawyers Weekly from 1972-1997, I worked closely with Chief Justice Joseph Tauro in 1973-4 to revolutionize the way the lawyers obtained their information in Massachusetts. While serving as publisher of Lawyers Weekly and of the official Advance Sheets (which had always been more than 8 months late until we mailed them in 3 days after we took charge) and publisher of the bound volumes (whose timeframe was also shortened considerably), we changed the way that lawyers in Massachusetts learned the information they needed.
| We then turned to establishing Lawyers Weekly newspapers in seven additional states. (We watched various people in all 50 states attempting to copy our format. Some even attempted to use our name.) We then used the same techniques to bring this format to technology and eventually to the finest Internet site in the country for lawyers. (Reed Elsevier, the present owner of Lawyers Cooperative Publishing, Lexis Nexis, and others, was unable to compete with us in Texas and abandoned their paper there but still publish a "Lawyers Weekly" in Canada where they cannot be challenged for |
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| Asst. Atty. General Peter Sacks addressed the Supreme Judicial Court while Atty. J. Edward Pawlick reviewed his notes. |
trademark infringement. West Publishing Company hired 40 journalists in an unsuccessful attempt to compete with us on the electronic level in the 1990s but gave up after about a year and opted to sell to the Thompson group from Canada and Great Britain.)
We then turned to establishing Lawyers Weekly newspapers in seven additional states. (We watched various people in all 50 states attempting to copy our format. Some even attempted to use our name.) We then used the same techniques to bring this format to technology and eventually to the finest Internet site in the country for lawyers. (Reed Elsevier, the present owner of Lawyers Cooperative Publishing, Lexis Nexis, and others, was unable to compete with us in Texas and abandoned their paper there but still publish a "Lawyers Weekly" in Canada where they cannot be challenged for trademark infringement. West Publishing Company hired 40 journalists in an unsuccessful attempt to compete with us on the electronic level in the 1990s but gave up after about a year and opted to sell to the Thompson group from Canada and Great Britain.)
It seems only fair that I might now possibly suggest the "Three Minute Summary" as a method of improving the manner in which judges receive their information from lawyers.
Three Minute Summary
The Current Legislature Has Forfeited Its Right to Vote. The 182nd General Court has forfeited its chance to vote, the same as in 1992 when this Court decided Citizens for a Competitive Massachusetts. In that case, Justice Greaney wrote that where the Legislature had never voted on a measure as required by art. 48, the Secretary should nevertheless place the Initiative on the ballot. This Court said the Secretary of State has a duty to carefully examine what the Legislature does, and after he did so in that case, he would determine that by not obeying art. 48, it had forfeited its involvement in the process. Where the present Legislature has also failed to vote on the Protection of Marriage Amendment, the Secretary should inform the 183rd General Court that it should vote on the Amendment as though the 182nd General Court had approved it. This is not a crucial matter for the Legislature because the 183rd General Court will provide another chance for it to hold hearings and debates on the measure and approve or reject it as art. 48 requires, if it chooses to do so, before the measure goes to a vote of the people in 2004. The Boston Globe reported that the measure appeared to have the necessary support "and more," and that was the reason why a vote was not allowed.
Dichotomy Between Two Types of Initiatives. The perceived enthusiasm by the SJC for art. 48 has extended to new laws but not to Amendments. As a result, only two Amendments have appeared on the ballot in the 85 years since art. 48 was enacted. The reason appears to be that the Court fears getting into a Marbury v. Madison controversy where it cannot enforce its order, or because many of these SJC cases are a response to requests for "Opinions of the Justices" where no lawyer appeared for the citizens. The relief sought in the present case does not lead to either dilemma.
Suggested Order of Court. The plaintiff suggests the following Order:
After an Amendment is transmitted to the Legislature by the Secretary of State under art. 48, it is mandatory that the President of the Senate perform his ministerial duty and convene a Joint Session of the Legislature for a debate and a vote on the proposed Amendment. If the President of the Senate fails to do so or fails to take final action thereon, it is mandatory that the Governor call the Legislature to perform its required duties.
The Secretary of State shall monitor the entire process, and if it is flawed, the Secretary is required to notify the officials in the Legislative branch and in the Executive branch of their duties under the law.
In the present case, the Secretary will inform the 183rd General Court, which convenes in January 2003, that it should consider the Amendment as though the 182nd General Court had approved it.
Classic Example of Why Art. 48 Was Written. This case presents a classic case of why art. 48 was written. Justice Greaney wrote for the Court in 1992, "We have previously stated that 'art. 48 ... created a people's process. It was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court. It 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.'" Justice Greaney continued, "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."
This is a classic example of the Legislature laughing at the people, with the Governor joining in, as it scoffs at the law of the Commonwealth.
Sen. Birmingham Is Sued in His Official and Private Capacity. Although Sen. Birmingham goes into a long 8-page discussion (Argument II in his brief) that, "No Declaratory Relief is Available Against the Senate President in His Official Capacity," this is not true. Pawlick is also suing Sen. Birmingham in his private capacity because Sen. Birmingham is ultra vires in what is a simple, ministerial duty and has therefore lost the privilege known as legislative immunity. This is readily apparent to this Court by judicial notice. If Pawlick cannot sue, who can?
Privilege of Legislative Immunity Has Been in Existence for Almost 1000 Years. The Declaratory Judgment Act was not intended to start a new body of law about judicial immunity, only to reinforce the existing law and to indicate that the statute could not be used to destroy the privilege. The existing law would continue to be followed.
Important Change after Limits. Joint Rule 12A, which states that the Legislature must adjourn by July 31, was enacted in 1995. This was not in effect when Limits was decided in 1992. Therefore, although the President of the Senate was not in violation of the law when Limits was decided, Sen. Birmingham is in violation today because he has knowingly and intentionally forfeited his duty and has violated art. 48. This violation of the law is an accomplished fact, not something he might do in the future as in 1992.
Duties of Secretary of State. The Secretary of State does more than print booklets for voters. According to Justice Marshall in the Clean Elections case, the duties of that office include "administering the Massachusetts election law." It is he who transmits to the Legislature all certified Initiatives, which according to art. 48 are "then deemed to be introduced and pending." The Secretary is expected to monitor the process. If he receives no notice that a vote has been taken prior to adjournment of the Legislature, he has a duty to inquire into the status of the Initiative and notify the officials in the Legislative branch, the Executive branch and the public, of their duties under the law.
