MEMORANDUM OF LAW In Support of Initiative Petitions 11-2 (Repeal of MGL 209A) and 11-30 (Amendment of MGL 209A)

The purpose of MGL 209A, signed into law in July 1978, was to prevent ‘domestic violence' (Abuse prevention statues were enacted to address the problem of domestic violence through the provision of judicial remedies Corrado . Hedrick (2006) 841 N.E.2d 723, 65 Mass. App Ct 477). Although judicial remedies were promulgated to accomplish this specific goal they were ancillary in purpose. Under MGL 209A statute legislators did not intend to increase or decrease the powers of the courts but to use the courts as a tool to implement the law.

As the legislative intent of MGL 209A was to solely resolve a social problem the exclusionary item of Article 48 of the Massachusetts Constitution relative to the power of the courts’ pertaining to initiative petitions does not apply. Interpretation of a statute must originate in legislative intent. (Our task is to interpret the statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). See Commonwealth v. Galvin, 388 Mass. 326, 328 (1983).)

This focus on the core intent of legislative action in judicial decisions has been reaffirmed by the courts (The role of the judiciary is to construe a statute "so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature." Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375 (2000) ) as has the court’s deference to the legislature when it enacts a law ( Our deference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the `undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.'" Lammi, supra at 300, quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). )

The legislature in 1978 did not enact MGL 209A in order to grant powers to the courts but to prevent what it deemed a social ill. These initiative petitions 11-01 and 10-30 should be held to the standard intended by the legislature and not included under any of the excluded items unintended by the drafters of Article 48 during the Massachusetts Constitutional Convention of 1917. To do so would be to substitute the interests of the courts above those of the public (This principle of judicial restraint includes recognition of the inability and undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature. Ferguson v. Skrupa, 372 U.S. 726 (1963).) The drafters Article 48 of the Massachusetts Constitution also regarded the ’powers of the court’ exclusion to protect the ability of the courts to rule a law unconstitutional, a focus evidenced by the legislative debate record:

(Page 791)“Mr. Dutch of Winchester: May I ask the speaker if he conceives that his amendment would prevent the putting forward by the initiative of a proposition such as Resolution No. 47, a proposition which either would prevent the judges from holding a law unconstitutional or would require four-fifths of the court or what not to do so? That is, does this prevent tampering with the powers of the judges and their standing as guardians of our Constitutional assurances? Mr. Cummings[Chairman of the Committee on Initiative and Referendum, ed.]: In answer to the question of the gentleman from Winchester, it is intended to protect the court and to keep the power in the court to declare acts of the Legislature unconstitutional. It is intended to secure them from any attack, direct or collateral. Mr. Dutch: Does not the gentleman think that he will have to put in some such word as "powers" before the word "creation"? I see nothing here except what refers to the constitution of the court, its personnel, its tenure. I see nothing here as to the powers of the court, and would he object to putting in the word "powers" before the word "creation"? Mr. Cummings: I should not object. I am anxious to have that Right[to declare a law unconstitutional, ed.] secured, not endangered.”

Debate in the Massachusetts Constitutional Convention 1917-01918 Volume II, The Initiative and Referendum, Boston. Wright and Potter Printers, State Printers, 32 Derne St., 1918

The exclusive focus of ‘power of the courts’ to protect the ‘power’ of the courts to declare a law unconstitutional continued in the debate:

(Pg. 794) Mr. McAnarney of Quincy: The adoption of this amendment, in my opinion, is essential to the proper administration of justice in this Commonwealth. If ever there was any doubt in my mind as to that it vanished when the Convention last week exempted the Bill of Rights from the operation of the I. and R. Section 29 of the Bill of Rights deals with our court and refers only to the Supreme Judicial Court, the tenure of office of its judges and their salaries, but not as to their appointment or selection. The provisions of the Constitution providing for the appointment of the judiciary are to be found elsewhere. When we excepted the Bill of Rights from the operation of the I. and R. we put upon the courts a burden which never before has rested upon them, nor, so far as I know, on the courts of any other State. Heretofore our courts from time to time have passed upon the constitutionality of laws and at times have been forced to declare some unconstitutional. Does not every member of this Convention recall how two advocates of the I. and R., one from Brookline in this division (Mr. Anderson), one from Brookline in the fourth division (Mr. Whipple), appealed to the delegates to remember the feeling of unrest which was taking possession of the people of Massachusetts; how it was likely to affect our courts; how the people were beginning to look with disfavor, if not with hostility, upon the courts, because they, in the discharge of their duty, have declared some laws passed by the Legislature to be unconstitutional? Those words still are fresh with us. We remember them. We remember the reasons why, and the force with which they were urged. Now by the exemption of the Bill of Rights we have placed this added burden upon the courts: Not only must they continue to declare laws passed by the Legislature unconstitutional, if they believe them to be so, but they now will be required to pass upon the constitutionality of constitutional amendments. Do you realize the full significance of this further burden you have put upon our courts, and the position in which it may place them? Amendments to the Constitution may be made by popular initiative petition under the I. and R.; the courts may be compelled to declare such amendments unconstitutional because in conflict with some provision of the Bill of Rights, or some right either expressly or by implication reserved thereunder; yet they may be amendments of such character as for the time being have back of them the great force of an overwhelming popular sentiment, — of the masses, if you will. Think what an object of attack our courts would become if they were forced to declare unconstitutional a constitutional amendment the people of the Commonwealth had adopted after years of agitation! Does not that suggest the wisdom of protecting the courts and their decisions from an attack under a popular initiative petition under the L and R.? Can you throw too much protection around our court? Is it not our duty to do our share in making our courts as independent and free from improper influence and clamor as possible? The adoption of this amendment will help materially in securing that end. I am requested to yield for a moment so that the delegate from Winchester (Mr. Dutch) may offer an amendment, and I do so for that purpose. Mr. Charles F. Dutch of Winchester moved that the amendment moved by Mr. Cummings be amended by inserting, at "A", the word "powers,". ….. (Pg. 797)There being no objection, Mr. Cummings was permitted to incorporate as part of his amendment the amendment suggested by Mr, Dutch of Winchester. The amendment moved by Mr. Cummings, as thus modified, was then adopted, by a call of the yeas and nays, by a vote of 142 to 111...... (Page 989)Mr. Cummings: The amendment excluding the judiciary, or, as I stated it at the time it was before the Convention for discussion, the judicial field, from the operation of the initiative and referendum, when offered by me did not have the word "powers" in it. In the course of the debate, in the development of the argument, it seemed necessary to add some word to the amendment that should secure the authority of the courts to declare a law unconstitutional, and I was asked by the gentleman from Winchester in the first division (Mr. Dutch) if I would accept an amendment which should make provision for protecting that authority. He suggested the word "powers" and I accepted his suggestion;

Mr. Cummings (Page 991) summarizes why he added the word ‘powers’-“ Powers relates to the ability or the right to do anything. The thing that was sought by my amendment and that should be secured is the independence and the integrity of the courts, not the scope of their authority.

Debate in the Massachusetts Constitutional Convention 1917-01918 Volume II, The Initiative and Referendum, Boston. Wright and Potter Printers, State Printers, 32 Derne St., 1918

In Mazzone v. Ag 432 Mass. 515, 736 N.E.2d 358 (FN5) the court noted the at times disparate discussion among the debaters regarding the powers-of-exclusion clause. Mr. Cummings, however, sponsor of the clause, made clear that he viewed the exclusion, and presented it as such for a legislative vote, as limited to the independence and integrity of the courts.

Initiative Petitions 11-2 (Repeal of MGL 209A) and 11-30 (Amendment to MGL 209A) provide for the repeal and amendment, respectively of a law targeted to prevent ‘domestic abuse’. They do not relate to the ‘powers’ of the court nor any other excluded item and thus should be certified by the Attorney General.

Joseph Ureneck August 12, 2011