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Text of Complaint COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss, SUPREME JUDICIAL
COURT MASSACHUSETTS CITIZENS
FOR MARRIAGE and SARAH McVAY PAWLICK SECRETARY OF THE COMMONWEALTH
Parties 1. Plaintiff, Massachusetts Citizens for Marriage, is a Massachusetts corporation, which was organized in May 2000 for the purpose of passing an amendment, the Protection of Marriage Amendment, to the state Constitution under the referendum procedure of Article 48, with offices at 1277 Main Street, Waltham, Massachusetts 02451. 2. Plaintiff, Sarah McVay Pawlick, has been the President of Massachusetts Citizens for Marriage since its inception. 3. Defendant, William Galvin, is Secretary of the Commonwealth, One Ashburton Place, Boston, Massachusetts 02108. Facts 4. On December 20, 2002, this Court gave an advisory opinion wherein it told the Governor, in answer to her Question 1, that the vote to adjourn by the joint session of the Legislature on July 17 was not a final action as required by art. 48 of the Constitution. 5. It declined to answer question 2, which was: "If there has not been final action by the joint session, may the Governor, using her judgment, reasonably determine whether this controversy has reached the 'limits of futility,' [citation] such that she may decline to recall the joint session under Article 48?" 6. The Court declined to answer question 2 because a prior Court had held that "a Governor need not recall a joint session 'even though final action on all proposed amendments has not been taken' whenever the Governor 'has made a genuine effort to secure action by joint session and has become reasonably convinced that it will be impossible to secure' such action." As to whether "futility" had been reached in this case, the Court made no opinion, holding, in effect, that this was a question of fact, not of law, which was the Governor's duty to decide. 7. On the same day, it declined to answer any of the four questions requested by the Senate. 8. After its opinion, both the Governor and the Legislature were on notice that the vote to adjourn on July 17 had not fulfilled the Legislature's obligations under art. 48. 9. The Court noted that the Governor had waited until December 3, more than four months after the adjournment vote of July 17, before doing anything to call the Legislature back for a vote. It also noted that the current session of the Legislature was due to end on December 31. 10. Despite its own heavy caseload, the Court provided the answer that both the Governor and the Senate had requested, and it did so in plenty of time for them to act. The Court held that the vote of July 17 had not satisfied the requirements of the Constitution. 11. Although both the Legislature and the Governor were on notice that a vote was necessary before December 31 and action therefore was required by both of them, neither responded in any manner to fulfill their obligations under the Constitution. 12. The Governor and the Senate President, Thomas Birmingham, pointed their fingers at each other and refused to perform their Constitutional duties. 13. The spokesman for the
Governor told the press on December 20 as reported
by the Boston Globe on December 21: "From the
governor's standpoint, the decision really is on the
Legislature. 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."
He also told the Globe the Court had given the Governor
discretion and had not compelled her to call the Legislators
back. 15. Although the Plaintiffs are not experts in the arcane subject of Legislative Rules, they believe the President of the Senate could have 1) reconvened the joint session by a majority or two-thirds vote of the Senate or 2) declared that Rule 12A could not grant him power to violate the Constitution, and as a consequence, he was recalling them for a vote. In addition, either he or any Legislator could have requested the Governor to recall them, particularly after she indicated she was looking for their counsel. 16. Both the Governor and the Legislature sat, waiting for the clock to run out, while neither took any action to fulfill their duties and responsibilities under the Constitution. Jurisdiction 17. The constitutional and statutory duties of the Secretary of State include administering the Massachusetts election laws, including art. 48 referendums. Claim for Relief 18. Inasmuch as the Legislature has failed and refused to follow its mandated duty to vote on the Protection of Marriage Amendment as required under art. 48, although it had plenty of time to do so and had adequate notice of its rights and duties, Plaintiffs request the Court to rule that the Legislature has not availed itself of its right and opportunity to vote on the Protection of Marriage Amendment, and therefore, the Secretary of State is instructed to send the Protection of Marriage Amendment to the 183rd General Court for its consideration as the second Legislature to consider the Amendment. 19. All such further relief
that the Court may deem appropriate to fulfill the
protection of the art. 48 process and the Plaintiffs. By Their Attorney,
CERTIFICATE OF SERVICE I, J, Edward Pawlick, hereby certify that I have on this day served the within Complaint by hand upon Peter Sacks, Assistant Attorney General, One Ashburton Place, Boston, ____________________________________ January 2, 2003.
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