By Dan Kennedy • The press, politics, technology, culture and other passions

An odd decision

So the state’s Supreme Judicial Court has ruled that the Legislature violated Article 48 of the Massachusetts Constitution when it failed to vote up-or-down on an amendment to ban same-sex marriage (and a bunch of other amendments, too) — but there’s nothing anyone can do about it other than elect new legislators.

I have an observation and a question.

Observation: It’s called the separation of powers, folks.

Question: Here’s what has puzzled me from the beginning. Let’s say Senate president Robert Travaglini is presiding over the constitutional convention. A member rises. Travaglini recognizes her. The member then files a motion for a recess. At this point, what is Travaglini supposed to do? Rule the motion out of order?

And what if he lets the motion go forward? Does each individual member have a constitutional duty to vote against the motion?

Regardless of the SJC’s ruling today, Article 48 is deeply flawed if it carries a constitutional obligation for the Legislature to violate its own internal customs and rules.

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  1. Steve

    I would say the SJC’s answer to your question is “Yes.” But the SJC (correctly, IMHO) said they can’t make rules for the legislature.But you also say: “Article 48 is deeply flawed if it carries a constitutional obligation for the Legislature to violate its own internal customs and rules.”The SJC seems to be looking at this from the other direction: the Legislature’s internal customs and rules are deeply flawed if they lead the Legislature to violate the constitution.I believe this all should properly be avoided by amending 48.2.2 (Initiative Petitions – Excluded Matters) to include civil rights (like marriage), which should not be subject to the whim of the majority. Modification of 48.2.2 cannot be the subject of an initiative petition, however, so I’m lobbying my state rep for the change.

  2. Dan Kennedy

    Steve: I would amend Article 48 to require at least a majority, and preferably two-thirds, of the Legislature in order to move along a constitutional amendment, even one submitted by initiative petition. This would accomplish two things: (1) it would eliminate the perverse incentive to move for something that requires only a simple majority, such as a recess; and (2) it would properly recognize that it ought to be hard to amend the state constitution, just as it is with the U.S. Constitution.

  3. Peter Porcupine

    To answer your questions -It is the Senate President who announces when the recess is over. He can certainly allow a member to make a motion ro recess, provided that the time taken does not preclude the possibility of a substantive vote on the matter at hand.And I agree with Steve – it is the rules of order that are flawed if they violate the Constitution!So many were so certain that a procedural vote, which had been gotten away with by Bulger in a similar situation, was legal. It is worth noting that the Term Limits case wasn’t filed until AFTER the illegal procedural vote had been taken – at that time, all the SJC could comment on was that they could not compel a vote as a co-equal branch of government.If a substantive vote is not taken on Jan. 2 one of two things will happen – we can either move to impeach the Legislature for violating the oath taken under pains and penalty of perjury, OR the legislators can face the consequences of the Federal lawsuit claiming violation of 1st and 14th amendment rights of the electorate of Massachusetts by the Legislature – with the SJC ruling to affirm that it is so!

  4. Anonymous

    Call me crazy, but if the Legislature can play parliamentary games then I don’t think they should have anything to do with the citizen petition process. In other words, if the signatures are certified by the Secretary of State, it goes on the ballot. As a safeguard, they could simply increase the number of signatures required to get a question onto the ballot. While certainly not ideal, it’s better than leaving it in the hands of our Legislature, whose track record over the past 15-20 years doesn’t exactly inspire educated voters.

  5. amusedbutinformedobserver

    Clearly the Supreme Judicial Court heard footsteps — perhaps it was the sound of gay marriage opponents; groundswell of support for electing judges or requiring confirmation elections as the result of the decision in Goodridge v. Department of Public Health barring discrimination against a particularlly despised minority. One thing is clear: The political heat is much too much for the court’s majority in the gay marriage decision, the justices are reading the political winds and acting like pols, not members of the state’s highest court.The decision is deeply flawed. Aside from the matter of constitutional interpretation (which I believe to be dead wrong), the SJC should not have taken up the case because the plaintiffs complained about something that hasn’t happened yet — the General Court has not proroged or dissolved and still exists, so it cannot be said that the legislature or a constitutional convention failed to act — only that it hasn’t acted YET in its current term. The constitutional convention, and the legislature itself, is technically in recess, so even though a vote didn’t come when the anti-gay marriage crowd wanted it to come, the legislature has not, as yet, done what the SJC has accused it of doing. It has not abrogated the obligation to take a vote that the court finds that it owed the petitioners. Any commentary from the justices on matters still before the legislature is inappropriate. Logically, a suit to force a vote by a legislature is logistically impossible. As long as the legislature is still in session, and has not adjourned sine die, and it can still vote on the question. Constitutionally, the 10th amendment to the state constitution, provides that as of the day before the first Wednesday in January — the legislature is dissolved, to be replaced by a new legislature. In essence, then, no action against the legislature lies unless and until the legislature or the constitutional convention dissolve without acting on the proposal. But once dissolved, that legislature no longer exists, so it cannot be forced to do anything. The court would be out of bounds finding that a newly-formed legislature is required to take action on something on which its predessor failed to act.There was no justicible controversy before the court. Instead, the justices have issued an advisory opinion at the request of 10 citizens. The state supreme court has a practice that is quite unlike that of the U.S. Supreme Court. Our court will rule on cases that have been resolved on the grounds that the matter may come up again. If the matter hasn;’t been resolved, it can be addressed in an advisory opinion – but only in certain circumstances. The constitution provides for advisory opinions of the justices when asked by a branch of the legislature or by the governor or council. Yes, Willard was one of the plaintiffs in the suit decided this week, acting as a private citizen. But he never used his power as supreme executive magistrate under Part 2, Chapter 3, Article 2 of the state constitution to require an advisory opinion from the SJC. But not only did Willard fail to use his constitutional authority to ask for an advisory opinion, he didn’t use his authority under Part 2, Chapter 2, Section 1 Article V to call the legislature into session “sooner than the time to which it may be adjourned or prorogued” to take up the question. Thus the SJC has crossed a bright line by getting involved in telling a legislature that it ought to act on something that is still technically pending legislatively, without either of the normal prerequisites to purely advisory opinions – a suit that has become moot or a request from another branch of government.The lack of a remedy makes it clear that the justices know they’re on shaky constitutional ground. But it deflects the controversy away from the court to the legislature.So, the Supremes are playing to the cheap seats here with an opinion that is entirely political. The Marshall majority in the Goodridge decision now feels its hands burnt by the firestorm of protest and can’t pull them away fast enough.The decision is wrong in the law, wrong procedurally and was issued to cover the justices political asses. Let’s see the right-wingers complain about ‘activist’ judges now.

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