Thursday, December 28, 2006

As Good As It Can Get

The Supreme Judicial Court of Massachusetts has rendered an opinion which states that the legislature of the Commonwealth of Massachusetts is in violation of Article 48 of the Massachusetts Constitution if it recesses the current Constitutional Convention on January 2, 2007 without voting on the gay marriage amendment. Unfortunately, it holds as well that there is no defined remedy for the people of Massachusetts other than the ballot box, and that it does not have the constitutional authority to order another branch of government to do something (i.e., vote).

While there are undoubtedly others who (in abject ignorance) assert that the SJC's latest action is "hypocritical," the Court's opinion, rendered unanimously, goes as far as it can and is entirely consistent with all prior precedent on the issue (of which, incidentally, there is far more than ought to be the case -- see below). The question that one must ask himself is, how many times can the legislature spit in the electorate's face before they ascend on the State House with torches and rocks??

The Court's opinion regarding the obligation to vote on the merits of each initiative amendment could not be clearer"

The members of the joint session have a constitutional duty to vote, by the yeas and nays, on the merits of all pending initiative amendments before recessing on January 2, 2007.

No wiggle room in that declaration. And it is well-founded in the historical documents:

The Constitutional Convention of 1917-1918, at which the procedure for the adoption of a constitutional amendment by popular initiative was proposed, confirms the plain meaning and purpose of the above text. See 2 Debates in the Constitutional Convention 1917-1918, at 16, 39 (1918) (quoting two proponents as stating that purpose of art. 48 is to "provide[ ] the machinery by which the will of the voters of this Commonwealth may be made effective" and "enable the people to have some say ... with regard to constitutional amendments"). We have stated that the framers crafted art. 48 as 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 projected a means by which the people could move forward on measures which they deemed necessary without the danger of their will being thwarted by legislative action." Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976). We have also stated that "art. 48 was adopted in the expectation that all officers concerned would perform the duties required of them at the proper times." Opinion of the Justices, 334 Mass. 745, 758-759 (1956).

It is not surprising, therefore, that the records of the drafters' debates indicate that they did not intend a simple majority of the joint session to have the power effectively to block progress of an initiative. See 2 Debates in the Constitutional Convention 1917-1918, supra at 629 (expressly rejecting such a proposal). [FN6] Specifically, words spoken during the debates by one Mr. Quincy of Boston, raised the prospect of what would happen "if the mandate of the Constitution is disregarded and somebody declines to carry it out?" Id. at 685. Mr. Quincy answered himself: "I do not believe we need to consider seriously that contingency or a defiance of the provisions of the amendment by either of these two branches of the General Court." Id. See LIMITS v. President of the Senate, 414 Mass. 31, 35 n. 6 (1992).

Mr. Quincy of Boston must be spinning in his grave. For what would not be "considered seriously" in 1917 -- that a body of elected representatives would blithely ignore their Constitutional obligation -- has become de rigeur with the contemporary body. And it is not just the Democrats, either. Both the former and future Senate Minority Leaders (Brian Lees and Richard Tisei) are in support of the current strategy of ducking the vote.

The legislature's recent history is appalling in this regard:

In 1976, the legislature attempted to subvert an initiative petition with regard to gun control by proposing an "alternative" that gutted the intent of the petitioned law. The Court stated:

In short, we cannot countenance the emasculation of the initiative petition by the attempt to substitute a measure with objectives at variance with those which the plaintiffs have proposed. To do so would be to fly in the face of the evident intent of the distinguished members of the Constitutional Convention who prepared the way for the passage of art. 48 by the people. To allow 1976 House Bill No. 5081 to go on the ballot with the initiative petition here in question would interfere with the ability of the people to declare their position on the basic question originally proposed.
[Buckley v. Sec. of State, 371 Mass. 175]

In 1992, the supporters of an amendment to institute term limits for legislators and constitutional officers were rebuffed in their attempt to force a vote. As is its modus operandi, the Constitutional Convention employed a series of parliamentary maneuvers to duck the issue:

The joint session considered the initiative amendment on Wednesday, May 13, 1992, and voted to place it at the end of its calendar. The joint session has reconvened and recessed on numerous occasions since May 13, 1992, without taking final action on the initiative amendment. Several attempts to bring the initiative amendment forward for further consideration have failed because, under the governing rules, an objection to such action has been successfully raised. The joint session met on December 16 (after the record in this action was prepared), took no final action on the initiative amendment, and recessed until December 21. On December 21 the joint session adjourned without taking final action on the initiative amendment.

Justice Wilkins clearly articulated the legal principles that prohibited the Court then from intervening -- the same principles that apply in this case:

There are more fundamental problems with the plaintiffs' requests for relief. The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties. Mandamus is not available against the Legislature. Lamson v. Secretary of the Commonwealth, supra. Cf. Rice v. The Governor, 207 Mass. 577, 578-580, 93 N.E. 821 (1911) (mandamus does not lie against the Governor). The reason for this rule rests on separation of powers principles expressed in art. 30 of the Declaration of Rights of the Massachusetts Constitution. Those principles call for the judiciary to refrain from intruding into the power and function of another branch of government, in this case, the joint session of the Legislature held under art. 48. See **1310 Babets v. Secretary of Human Servs., 403 Mass. 230, 233, 526 N.E.2d 1261 (1988). It follows that a judicial remedy is not available whenever a joint session fails to perform a duty that the Constitution assigns to it. Restraint is particularly appropriate here where art. 48 gives the Governor a role in seeing that a joint session carries out its constitutional obligations, but gives to the courts no enforcement role. When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.
[LIMITS v. President of The Senate, 414 Mass. 31]

There it is again, that pesky ballot box.

These are only the most obvious examples, because they are the instances where the proponents of a measure had sufficient organization and critical mass to afford taking the matter all the way to the Supreme Court.

In fact, it is typical that the Constitutional Convention doesn't actually convene at all -- except for the purpose of adjourning from time to time. During my six years in the legislature, I cannot think of more than a cople of times in which a vote on the merits was ever afforded the membership.

I recall witnessing my first "ConCon," which always takes place in the House Chamber. The center doors are opened (they are opened only for the ConCon and to admit the Governor), the Senate Sargeant at Arms announces the members of the Senate, they straggle in to the jocular hoopla of the House members. The Senate President ascend to the Speaker's Rostrum, authoritatively slams the gavel and instructs the body the "the Constitutional Convention will come to order!"

Half of the members, milling about, continue to engage in their casual conversation, joking and story telling.

Some time passes without incident.

The Senate President is heard once more:

"Motion is made that the Convention recess until November 17th at 2:00 p.m." The ayes have it. The Convention recesses, the Senators straggle out.

I think I voted on one amendment during six years. It was offered and championed by teh Senate President himself, William Bulger. His amendment made it to the ballot on each instance, and was soundly defeated by the voters (for the record, I was one of its staunchest allies).

So given the sordid history of this process, one must take comfort where it can be had, and in closing, I turn to the final paragraph of Justice Greaney's opinion:

We conclude with these observations. Some members of the General Court may have reasoned, in good faith, that a vote on the merits of the initiative amendment in accordance with the directives of the pertinent provisions of art. 48 was not required by the constitutional text and that their duty could be met by procedural (or other) votes short of a vote by the yeas and nays on the merits. Today's discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them.

Would that such a prospect brought about some concern in the hearts and minds of the Great and General Court.

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