Massachusetts Supreme Court
Johanna Schulman vs. Attorney General& another [FN1]; Raymond Flynn & others, [FN2] interveners
SJC-09684
May 4, 2006 . - July 10, 2006 .
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
CORDY, J.
The plaintiff challenges the Attorney General's certification of an initiative
petition that, if successful, would amend the Massachusetts Constitution by
providing, prospectively, that "the Commonwealth and its political subdivisions
shall define marriage only as the union of one man and one woman." The
petition was submitted to the Attorney General for certification pursuant
to art. 48, The Initiative, Part II, § 3, of the Amendments to the Massachusetts
Constitution (art. 48), as amended by art. 74 of the Amendments. The plaintiff's
challenge to the certification was filed in the county court, and was reserved
and reported to the full court by a single justice.
The plaintiff's claim is that the proposed amendment, which seeks to overrule
the rule of constitutional law announced in Goodridge v. Department of
Pub. Health, 440 Mass. 309 (2003) (due process and equal protection
clauses of Massachusetts Constitution bar limiting marriage to heterosexual
couples) constitutes the "reversal of a judicial decision" and therefore
is excluded from the initiative process by art. 48, The Initiative, Part II,
§ 2, of the Amendments to the Massachusetts Constitution. [FN3] We disagree.
Neither the plain meaning of the words "reversal of a judicial decision"
nor their intended meaning as understood in the context of the Debates of
the Constitutional Convention of 1917-1918, from which they emerged, supports
the broad interpretation of the exclusion pressed by the plaintiff. [FN4]
1. Discussion. The initiative as set out in art. 48, Part I, empowers
"a specified number of voters to submit constitutional amendments and
laws to the people for approval or rejection," subject to the exclusion
of certain matters. See art. 48, Part II, § 2. Measures that relate to
"the reversal of a judicial decision" are excluded from the initiative
process. Id. In interpreting any statutory or constitutional provision,
including this exclusion, the starting point of our analysis is its plain
language, "the principal source of insight into legislative purpose."
Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985),
quoting Commonwealth v. Lightfoot, 391 Mass. 718, 720 (1984). "'Its
words are to be given their natural and obvious sense according to common
and approved usage at the time of its adoption,' although the historical context
should not 'control[ ] the plain meaning of the language.' "Mazzone
v. Attorney Gen., 432 Mass. 515, 526 (2000), quoting General Outdoor
Advertising Co. v. Department of Pub. Works, 289 Mass. 149,
158, appeals dismissed, 296 U.S. 543 (1935), and sub nom. Brink v. Callahan,
297 U.S. 725 (1936).
The "reversal of a judicial decision" has a specialized meaning
in our jurisprudence. It contemplates a peculiarly judicial function, consisting
principally of the power to vacate or to set aside the decision in a particular
case. See Loanes v. Gast, 216 Mass. 197, 199 (1913). Where the court
vacates or sets aside a decision, the rights of the parties, as previously
determined by the same or another court, are affected. It is, at a minimum,
this judicial function that the plain language of art. 48 declares off limits
to the initiative process, essentially excluding from that process a petition
that would permit the citizens to review a decision of the court, and reverse
its determination of the rights of the parties.
The "overruling" of the prospective application of a court decision,
by amending the Constitution (or by enacting a new statute) is fundamentally
different. Such action does not affect the determination of the rights of
the litigants, or the application of the law, made by the court in a particular
case, nor does it subject the court's decision to a nonjudicial review. Contrast
Irish-American Gay, Lesbian & Bisexual Group of Boston v. Boston,
418 Mass. 238 (1994), rev'd sub nom. Hurley v. Irish-American, Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (judgment
of Supreme Judicial Court affirming entitlement of group of gay, lesbian,
and bisexual descendants of Irish immigrants to march in privately organized
parade reversed by United States Supreme Court on First Amendment grounds).
The underlying substantive law is simply changed to reflect the present intentions
of the people, and that new law will be applied thereafter in any subsequent
case or cases.
While it is not uncommon for this court to "reverse" decisions made
in the lower courts, we have also, on occasion, "overruled" prior
decisions interpreting the Constitution, [FN5] a statute, [FN6] or a common-law
principle. [FN7] When we have done so, however, we have not "reversed"
those decisions, in the sense of stripping from the parties the determinations
made in their cases. [FN8] Rather, we have merely removed or altered the precedential
or prospective effect of the decisions. This power is not peculiarly judicial,
and has been exercised legislatively on many occasions.
From this perspective, it is apparent that the plain language of art. 48 does
not bar the people from using the initiative process to amend the Constitution
prospectively, thereby changing the substantive law to be applied and effectively
"overruling" the precedential effect of a prior court decision interpreting
it, because such an amendment does not constitute the "reversal of a
judicial decision," as we have understood the meaning of those words.
Delving into the historical context from which the language of the exclusion
emerged affords no further assistance to the plaintiff. We previously have
had occasion to consider the meaning of the exclusion in that context. In
Mazzone v. Attorney Gen., supra at 517, the court addressed a number
of challenges to the Attorney General's certification of an initiative petition
that proposed a new law regarding the expansion of "the scope of the
commonwealth's drug treatment program" and "the forfeiture of assets
used in connection with drug offenses." One of those challenges was that
the proposed law fell within the "reversal of a judicial decision"
exclusion, because the petition, as worded, "might have the effect of
reversing a trial judge's 'final order' regarding an asset forfeiture."
Id. at 525.
In ruling that the art. 48 exclusion did not apply, the court turned to the
debates on the constitutional convention of 1917-1918, regarding the Initiative.
2 Debates in the Massachusetts Constitutional Convention 1917- 1918 (1918).
The court noted that the "reversal of a judicial decision" exclusion,
as well as other exclusions relating to "the appointment [and] tenure
... of judges" and "the powers, creation or abolition of courts,"
were intended to secure the continued independence of the judiciary, and,
in particular, the power of the Supreme Judicial Court to declare statutes
unconstitutional, without the fear of reprisals from the people. Mazzone
v. Attorney Gen., supra at 525-528. By further examining the specific
meaning that the word "reversal" was intended to convey, the court
noted that the original language used in the debates was "recall,"
and that the word had been changed to "reversal" during editing,
but that the change did not intend any change in meaning. Id. at
527 n. 12. The court then noted that it was "clear that the delegates
understood the phrase [recall] to refer to Theodore Roosevelt's controversial
1912 proposal by that name." Id. at 527. "As used by Mr.
Roosevelt, the phrase described the situation in which a State court sets
aside a statute as unconstitutional and the people are given the opportunity
to reinstate the same law, notwithstanding the court's declaration of its
unconstitutionality." Id. at 527-528. [FN11]
The Mazzone court concluded that by excluding petitions that relate
to the "reversal of a judicial decision," "the constitutional
convention intended no more than to prevent a statute, declared unconstitutional
by a State court, from being submitted to the people directly and thereby
reenacted notwithstanding the court's decision." Id. at 528.
"Citizens may overrule a decision based on State constitutional grounds,
but may do so only by constitutional amendment." Id. The court
pointed out that an interpretation that would exclude from the initiative
process petitions for amendments related to laws that a court had already
applied, if the enactment of the amendments might result in a different decision
in the future, "would effectively eviscerate the popular initiative"
envisioned in art. 48. Id. [FN12]
The court's conclusion in the Mazzone decision that art. 48, even
with its exclusions, permits the people to petition for a constitutional amendment
overruling a decision based on State constitutional grounds, accurately reflects
the tenor of the debates on this point. In those debates, the chairman of
the Committee on Initiative and Referendum, John W. Cummings, of Fall River,
spoke in favor of the initiative, explaining that the need for the initiative
process was driven by the lack of action on the part of the General Court
in amending laws and the Constitution in the face of decisions of the Supreme
Judicial Court striking down worker protection statutes (as violative of the
Constitution's due process clause), and adopting common-law principles (such
as the "fellow-servants doctrine") that placed extraordinary burdens
on workers and their families. 2 Debates, supra at 595-597 (remarks
of Mr. Cummings). He specifically noted that the distrust among workers engendered
by these decisions was not so much directed to the court, where "they
seemed to take it for granted that they should accept the law as [the court]
found it"; rather, it was directed at the Legislature, which made no
attempt to relieve them of the burdens thereby created. Id. at 597
(remarks of Mr. Cummings). It was the initiative process that would now afford
an alternative avenue for such relief if faced with an recalcitrant Legislature.
Notably, it was also Mr. Cummings who proposed the judicial exclusions to
the initiative, including the exclusion of matters relating to the "recall
[or reversal] of judicial decisions." Id. at 789. As the principal
proponent of these exclusions, Mr. Cummings was called on to answer many questions
about their scope. Id. at 789-795. In doing so, he explained that
the exclusions were intended to protect the independence of the judiciary,
by ensuring that the Justices were not subjected to unjust criticisms and
drawn into political debates "to defend themselves or their decisions."
Id. at 790. Disagreements about what the law should provide could
be accommodated by the initiative process (not the "recall" process),
where "if the courts declare a law unconstitutional we have the power
to expand the Constitution and reenact the law and make it constitutional."
Id. at 791. In this way, public debate would more properly be focused
on whether some laws, or the Constitution, ought to be amended to conform
with the current expectations and wishes of the people, and not on the legal
correctness of previous judicial decisions interpreting them.
In sum, the plain meaning of the words "reversal of a judicial decision"
does not include the concept of "overruling" the prospective or
precedential effect of a decision by an amendment to the Constitution or by
the enactment of a new statute. The debates further confirm that the "reversal
of judicial decision" exclusion was not intended to preclude such an
amendment (or enactment), so long as its subject matter was not barred by
other important exclusions not at issue in this case. See note 10, supra.
2. Conclusion. There was no error in the Attorney General's certification
of the petition. We remand the case to the county court for entry of a judgment
declaring that the Attorney General's certification of the petition is in
compliance with the requirements of art. 48.
So ordered.
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