The Massachusetts high court, as expected, has rejected a request that they order the state legislature to hold a vote on a proposed gay marriage initiative.
“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,” the court said in its 11-page ruling.
My immediate reaction is that I still think this is the wrong decision, for the reasons I outlined the other day. If it’s true, as the court admits in the statement above, that the legislators have a “lawful obligation” to hold such a vote (and that is clearly true from the text of the Mass. constitution), then it is entirely proper for the court to order compliance. The courts issue such orders, called writs of mandamus routinely around the country.
And the court clearly does interpret the state constitution the way I do, as obligating the legislature to hold a vote on the matter by the end of the session (see ruling here):
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. With respect to legislative action on proposals for constitutional amendments introduced to the General Court by initiative petition, the language of art. 48 is not ambiguous. Section 2 of art. 48, The Initiative, IV, provides:
“If a proposal for a specific amendment to the constitution is introduced into the general court by initiative petition . . . such proposal shall, not later than the second Wednesday in May, be laid before a joint session of the two houses, at which the president of the senate shall preside; and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.”
However, the Court maintains that it has no authority to issue such a ruling for several reasons. First, because they lack the authority to make declaratory judgments:
Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature’s indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter. G. L. c. 231A, § 2 (establishing express exemption from declaratory relief for “the governor and council [and] the legislative and judicial departments”). See Pawlick v. Birmingham, 438 Mass. 1010 (2002) (declaratory relief unavailable with respect to Senate President’s official duties as presiding officer of art. 48 joint session).
They further declare that writs of mandamus cannot be issued against the legislature for failing to implement the constitution, but only against lower courts and administrative officials for their failure to implement legislative acts:
The remedy of mandamus (once sought by the plaintiffs but since abandoned, see note 4, supra) does not lie against the Legislature. See Milton v. Commonwealth, 416 Mass. 471, 475 (1993); LIMITS v. President of the Senate, supra at 35; Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 270-271 (1960), and cases cited.
I haven’t read those state court precedents, nor do I have easy access to them, but this seems odd to me. Yes, writs of mandamus are traditionally issued against lower the executive, particularly against executive agencies or officials, for failing to do the duty that the law requires. But what is the actual difference between issuing such a writ against the legislature and any other judicial ruling on a constitutional question? In either case, the court is telling the legislature that they have violated the constitution and they must cease such violations. I just don’t see any practical distinction between the two exercises of judicial authority; they are substantively identical.
The court further notes that Article 48 does not provide specifically for a judicial remedy:
Our holding in the LIMITS decision is clear: “The only remedy set forth in art. 48 for the failure of a joint session to act is a direction to the Governor to call a joint session or a continuance of a joint session if the joint session fails in its duty. Article 48 provides no judicial remedy.”
But they also note that the legislature has deliberately acted to negate that remedy:
We recognize, as a practical matter, that the Governor’s recall power is unavailable here because the joint session, by recessing until the last afternoon of its existence, has effectively neutralized the Governor’s constitutional power. Nonetheless, the plaintiffs have not set forth any legally tenable judicial enforcement role in ensuring that the members of the joint session comply with their constitutional duties under art. 48, and, as has been pointed out, case law provides no enforcement mechanisms.
It seems to me that the role of the courts is precisely to force the other branches of government to carry out their constitutional duties. When they overturn a legislative act because that act violates the constitution, they are doing the same thing being requested here; they are declaring the other branches of government to be in breach of their constitutional obligations and ordering them to cease doing so in regard to the particular action in question. I just don’t see any principled distinction between them.
Technically, it’s possible that the Court has an out in a footnote, referred to above, where they say that the plaintiffs abandoned their request for a writ of mandamus:
In their complaint, the plaintiffs also requested an order in the nature of mandamus directed to the Senate President to reconvene the joint session, on or before January 2, 2007, and to present the terms of the proposed initiative amendment to the joint session for a vote on its merits as required by art. 48. Failing such a vote, the plaintiffs in their complaint request that this court enter an order directing the Secretary of the Commonwealth to place the initiative amendment on the ballot at the 2008 Statewide election for approval or rejection by the voters. It became apparent, during oral argument, that the plaintiffs have abandoned these requests for relief, which could not be granted in any event.
I don’t have the transcript of oral argument, so I have no way of judging this. But it seems to me that if the papers filed in court make an argument for such a writ to be issued, that is what is binding on the court to decide. And it is their conclusion that such relief could not be granted that is, it seems to me, an incorrect conclusion. Their conclusion sounds as though it is consistent with prior Massachusetts court rulings; I just don’t think it offers a coherent distinction between this case, where they claim no authority, and other cases, where they assert such authority.