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Statement of J. Edward Pawlick, It's exciting that the Supreme Judicial Court has told Sen. Birmingham that he did not follow the Constitution and obey the law when he adjourned the Legislature on July 17 without taking a vote on the Protection of Marriage Amendment. We've been trying to point that out for months. But it's disappointing that the spokesman for Gov. Swift did not have time to consult with her lawyers before making a statement last night. Like all of us, the spokesman, James Borghesani, did not know that the Court had issued its opinion until the press started calling after 5 p.m. on Friday evening. He had to answer their questions because they were on deadline; but in so doing, he obviously did not have time to consult with their attorneys. The press informed him that the Court had rejected the arguments of Senate President Tom Birmingham, whose lawyers had argued that the action by the Joint Legislature was "final action." The SJC rejected that argument and held that it was required that a vote be taken on the Amendment itself. The Court was very polite to the Governor and was mindful of its obligation not to intervene in the duties of another branch of the government. But it's clear that the Justices were not happy. They took the very unusual step of inserting a special footnote in the opinion which in very polite language told the Governor how they felt about her inaction on the matter. The footnote said, "We note that the joint session was adjourned on July 17, 2002. The Acting Governor's questions were not submitted until December 3, 2002. The current General Court ends on December 31, 2002." In other words, they said, "Where have you been, Governor? What have you been doing for over four months?" The Court then informed her, again in very polite language, that they are also busy and did not appreciate having this brought to their attention as a crisis situation. "On past occasions, the Justices have declined to answer requests when there was insufficient time to do so." But the Court did not do so in this case, not because of deference to the Governor but because they realized the importance of the issue. If he had had the time to ask, the Governor's spokesman would have been advised by any lawyer that the Court did not say that the Governor had reached any position of "futility." What it did say was that this is a jury-like question of fact, which the Governor must decide. The Court will not interfere with the Governor's role. It refused to answer that question because it has stated before that a Governor need not engage in a futile exercise. But it politely refused to make that decision for her. Whether she follows the law and obeys the Constitution will be for another court to decide if my client is forced to bring an action for damages against her for violating the Constitution. The SJC will not make that decision now. The Governor's office as the head of the Executive branch, is a respected part of the government and is expected to follow its lawyers' advice and obey the Constitution. It should be noted that the opinion cited over and over by the Governor involved a case where the Governor had already called the Legislature back three different times. That is clearly not the situation here. Therefore, it is apparent that the Governor must recall the Legislature immediately unless she has valid reason to believe that it would be "futile" for her to do so. But what person could possibly think that this would be a futile gesture where the Legislature has just been told that what it did on July 17 was in violation of the Constitution? Obviously, they wish to obey the law and the SJC has now made it clear to them what the law is. In addition, the Governor has already delayed so long, as the Court indicated in its unhappy footnote, that she might be liable for damages in a suit by my client even if she does issue an immediate order which is then ignored by the Legislature. It's clear to any lawyer that Gov. Swift must recall the Legislature at her earliest opportunity, in order to obey the law and to avoid any personal liability for failing to do so. It is too bad that Mr. Borghesani was unable to reach a lawyer before making his unfortunate statements. It's also clear that any Legislator who voted to adjourn on July 17 could be the subject of a personal suit in the U.S. District Court for violating the First Amendment rights of Free Speech. Any damages in such a suit could be trebled by the court. Those money damages since July 17 would be higher than most of them realize. Swift's Statement Confused the Globe Reporter The statement by Swift's spokesman on Friday evening obviously confused the reporter for the Boston Globe, Yvonne Abraham, who wrote this headline, "SJC declines to weigh in on gay marriage ballot debate." The story said, "In a ruling released yesterday, the state Supreme Judicial Court declined to say whether Acting Governor Jane Swift must recall legislators to a special session to consider a ballot question that would ban gay marriage. "The ruling by the state's highest court left state officials uncertain about what steps they should take next on the measure. "Responding to a question posed by Swift, the court ruled that a procedural maneuver used by Senate President Thomas F. Birmingham to block the question from reaching the state ballot last summer was not the final action on the matter. But the court did not specifically address the question of whether Swift now has a duty to call legislators back to vote on the matter." But it's clear to any lawyer that the Court did not "specifically address the question" whether Swift must recall the Legislature because that is a question of fact which the Governor is paid to decide. They cannot do her duties for her. The Globe story continued: "That ambiguity left Swift and Birmingham pointing fingers at each other last night, with a spokesman for each suggesting the ball is now in the other's court. If neither takes action to reconvene legislators, the ballot question will die Dec. 31. As of late yesterday, neither Swift nor Birmingham appeared eager to act on the controversial measure." The Globe story went on to quote Swift's spokesman: '''From the governor's standpoint, the decision really is on the Legislature,' said James Borghesani, Swift's spokesman. 'The court ruled the Legislature did not take final action. We will wait and see what the Legislature does, and once we make a determination, if there can be a determination made regarding what the Legislature will or will not do, we will review our options.'" The Globe was given a different view by a Birmingham spokesman. "But Birmingham said responsibility for reconvening the legislators was squarely on Swift. 'The SJC has ruled that the constitutional convention has not taken final action on the proposed constitutional amendments,' Birmingham said through spokesman Paul Wingle. 'The opinion appears to grant the governor discretion regarding the next steps in this process. I await the governor's decision.'" There is no question that Sen. Birmingham is correct in his interpretation of the SJC opinion. Because of a Rule that was adopted in 1995, he cannot recall the Legislature for a vote after July 31. Only the Governor can call them back. Whether she will finally understand her duties under the Constitution remains to be seen. Boston Herald Reaches a Better Spokesman The Boston Herald reached a better spokesman for Gov. Swift for its story, but it still didn't talk to any lawyers and did not present a clear picture of what is happening. The Herald reporter, David Guarino, talked to spokesman Sarah Magazine and reported: "The state's high court yesterday breathed sudden life into a constitutional ban on gay marriage, saying the Legislature's effort to dispatch the ballot question didn't effectively kill the issue. "The Supreme Judicial Court, in a 14-page ruling, simply said 'no' to acting Gov. Jane M. Swift's question of whether lawmakers' adjournment without voting on the ban constituted a 'final action.' "A Swift spokeswoman didn't rule out trying to force a session." The story then quoted the spokesman: "'The SJC has clearly determined that the Legislature did not discharge their obligation, so the governor is going to wait and see what they do as a result of this opinion,' spokeswoman Sarah Magazine said. 'She will make a decision whether or not she needs to act in the next several days.'" But Swift does not have that luxury of waiting, because any jury would say that she has already defaulted in her duties under the Constitution.
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