Single Justice Greaney Dismisses Suit About Marriage Amendment Without Comment

Single Justice Greaney Dismisses Suit About Marriage Amendment Without Comment

MassNews Staff
March 3, 2003

A Single Justice of the Supreme Judicial Court, John Greaney, dismissed without comment on Friday the lawsuit of Massachusetts Citizens for Marriage, which requests that the Protection of Marriage amendment be sent to the new Legislature in that the old Legislature violated the state Constitution when it failed to take a vote on the Amendment last July.

An appeal from the Justice's decision is being filed this morning for all seven Justices by Sarah McVay Pawlick, President of MCM and one of the plaintiffs in the case.

"We're obviously puzzled and disappointed," said Pawlick.

The attorney for MCM, J. Edward Pawlick, told SJC Justice John Greaney last Tuesday that there has to be a remedy when the Legislature violates the state Constitution and then ignores a ruling from the SJC. Pawlick said that his proposal of moving the Marriage Amendment to the new Legislature is the best idea he has thought of, but if the Court has a better solution, that would be fine. The judge listened thoughtfully and wondered aloud why Jane Swift had resisted obeying the law. The illegal conduct of Sen. Birmingham apparently did not puzzle the Justice.

"Justice Greaney failed to suggest any relief for the citizens even though the Court's advisory opinion to Gov. Swift on Dec. 20 made it clear that both she and the Legislature violated the Constitution when they adjourned the joint session on July 17 without a vote.

"But we don't have any reason to give up," she continued. "We have many more arrows in our quiver. It's puzzling that Justice Greaney indicated to everyone when he was hearing our case last Tuesday that he couldn't understand why the Governor hadn't obeyed the law and called the Legislature back for a vote. But then he held on Friday that the citizens could not do anything about the illegal actions of the Governor and the Legislature. Before deciding where we go from here, we have to see what happens next."

Pawlick indicated that the Court will be hearing oral arguments in Goodrich, the gay marriage case, tomorrow and it is unclear how that may have affected the Single Justice's vote on the marriage amendment. If the amendment is passed by the voters, it would prohibit the SJC from imposing gay marriage on the state.

Pawlick said that the last thing their attorney had said to Justice Greaney before they left the Courtroom last Tuesday was that our government was established with "checks and balances" in order to ensure that the executive, the legislature and the judiciary all watch each other and take action if one does anything wrong or illegal.

But this protection will not work if one of the three abdicates its role, the lawyer said. He opined it is excellent that the Court gives deference to the other two branches, but it must not abdicate its role.

Last week's argument concerned a motion by the Commonwealth, which is routine in most cases, to summarily dismiss Pawlick's suit because even if everything that was alleged in the suit by the plaintiff were true, they were not entitled to any relief by the Court.

Because he was the one who was requesting that the suit be dismissed and had the burden of proof in that regard, Assistant Attorney General Peter Sacks was the first to address the Justice.

He told Greaney that the framers of the referendum in 1917-1918 had considered the procedure that Pawlick was suggesting and had rejected it. But when Pawlick rose, he said it was misleading to state it that way and what actually happened was much different. He said that those delegates had been unable to believe that any Legislature would violate the Constitution as was done in 2002.

Pawlick quoted the following from page 685 of the record of the 1918 proceedings.

"I do not believe we need to consider seriously that contingency [that the two Houses would fail to agree upon a time to meet or would fail to continue until final action had been taken] or a defiance of the provisions of the amendment by either of these two branches of the General Court. There are a great many provisions in the Constitution where the same question can be asked: 'What is going to happen if the mandate of the Constitution is disregarded and somebody declines to carry it out?' It does not seem to me that such a question suggests any very valid objection, particularly in the case of this amendment."

In other words, Pawlick said, the framers were unable to anticipate a scandal of this magnitude. They did not explicitly prepare for it because it would be impossible to consider every devious scheme that enters the minds of men. That is why we have the Supreme Judicial Court.

The Attorney General also gave examples of the procedure that is followed when the first Legislature passes a proposed Amendment on to the next one. He noted that the Secretary of State is never involved in this procedure.

But Pawlick immediately said upon arising, that those cases were where the law was followed. However, in the instant case, the law was not followed and the framers did not devise a remedy because they were unable to conceive of such a deliberate scandal as this.

He noted that the Commonwealth was arguing that the plaintiffs were free to bring another Constitutional initiative that could be on the ballot in 2006. To this Pawlick replied that meant that they should spend another three years of their lives and another $1.7 million and "hope" that the next Legislature would follow the law. "Anyone would have to be crazy to do that," Pawlick responded.

"If this is the law, then Article 48 [the referendum procedure adopted in 1918] is almost worthless because you never know who the senate leader is going to be and what he is going to do. You'd really be stupid to do it again," he said.

Pawlick also noted that the 1992 case, known as Limits, which is always cited by the opposition, is no longer valid law because the Legislature adopted Rule 12A three years later in 1995. The SJC acknowledged on Dec. 20, 2002, in its advisory to Gov. Swift, that Rule 12A has made the Limits case obsolete.

The lawsuit was brought on Jan. 2, 2003, by the President of Mass. Citizens for Marriage, Sarah McVay Pawlick, the wife of Atty. Pawlick, and is No. SJ-2003-001.