The following leaflet was distributed to all 200 Legislators on Monday, Dec. 23.

Legislature Violated Constitution, Says SJC

Legislators Who Voted to Adjourn on
July 17 Are Liable for Damages

By Atty. J. Edward Pawlick
December 23, 2002

The Legislature violated the state Constitution when it adjourned on July 17 without taking a vote on the Marriage Amendment, the SJC ruled in an opinion released at 5 p.m. on Friday, Dec. 20.

But the Boston Globe refused to admit the Constitution had been violated, writing instead the following headline for its Saturday paper, "SJC declines to weigh in on gay marriage ballot debate."

What the SJC actually did was to write a nine-page opinion for Gov. Swift where it answered one of her questions and a five-page opinion for the Senate in which it refused to answer any of its questions.

The Court told the Governor that the July 17 vote was not the "final action" required by art. 48 of the Constitution. 2

Therefore, the joint session of July 17 did violate the Constitution. The "confusion" at the Globe arose because the SJC refused to answer the Governor's second question, which was whether this matter had reached "futility" and whether she is required to recall the Legislature.

Before answering that question the Court used a footnote to politely note its annoyance with the Governor for waiting so long. It wrote: "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 the Governor, 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 decline to answer in this case, not because of deference to the Governor, but because they realized the importance of the issue.

As to the Governor's desire to have the Court make her decisions for her, the Court "respectfully" declined to do so. Every lawyer would recognize this as a question of fact, not law, and she is paid to make those decisions. It's also obvious that the matter is far from "futile" because she has done nothing to date to fulfill her Constitutional duty. Even the SJC politely noted its annoyance with her in the footnote.

It is unfortunate that the spokesman for Gov. Swift apparently did not have time to consult with her lawyers before making a statement on Friday evening.

Like all of the parties involved, 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 the reporters' questions because they were on deadline; but in so doing, he made some hasty statements.

The press informed him that the Court had rejected the arguments of Senate Counsel David Sullivan, who had argued that the action by the Joint Legislature was "final action." The SJC rejected Sullivan's argument in their opinion to the Governor and held that a vote was required on the Amendment itself.

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 the SJC did say was that this is a jury-like question of fact, which the Governor must decide herself. 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. Whether she follows the law and obeys the Constitution will be for another court to decide if my clients are forced to bring an action for damages against her for violating the state Constitution and the First Amendment. 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, Opinion of the Justices, 334 Mass. 745 (1956). That is clearly not true here.

Therefore, it is apparent that the Governor must recall the Legislature immediately unless she has valid reason to believe that this would be "futile." 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, the Legislators 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 clients 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's also clear that any Legislator who voted to adjourn on July 17 could also 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 much higher than most realize. Any Legislator who votes again to violate the Constitution would clearly have exposure under the First Amendment.

The primary desire of my clients is to have a vote on the Amendment, but a suit for damages is clearly a viable option if they are forced to go that route, now that the SJC has indicated that Legislators did violate the state Constitution with their vote on July 17 and did restrict freedom of speech in so doing.

Massachusetts Citizens for Marriage
1277 Main St., Waltham 02451
Tel: 781-647-1942

1 Attorney for Mass. Citizens for Marriage. Founder and former owner of Lawyers Weekly until sold in 1997.

2 "The vote taken on July 17, 2002, was a single vote to adjourn the joint session. No determination can be made, therefore, as to whether any proposed constitutional amendment [three amendments were before the joint session] received the number of votes -- different for initiative and legislative amendment -- required by art. 48 of the Constitution if the amendment is to be 'referred to the next general court.' Accordingly the vote of July 17, 2002 was not 'final action' on 'a proposed constitutional amendment' pursuant to Part IV, §4 of art. 48."