Schulman v. Attorney General

• Decision Date: 10 July 2006
• Citation: 447 Mass. 189,850 N.E.2d 505
• Parties: Johanna SCHULMAN v. ATTORNEY GENERAL & another;<SMALL><SUP>1</SUP></SMALL> Raymond Flynn & others,<SMALL><SUP>2</SUP></SMALL> interveners.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 505

850 N.E.2d 505

447 Mass. 189

Johanna SCHULMAN v. ATTORNEY GENERAL & another;¹ Raymond Flynn & others,² interveners.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 2006.

Decided July 10, 2006.

Gary D. Buseck, Boston (Jennifer L. Levi & Mary L. Bonauto with him) for the plaintiff.

Peter Sacks, Assistant Attorney General, for the defendants.

Jordan W. Lorence, of Minnesota (Dale Schowengerdt, of Arizona, & David R. Langdon, of Ohio, with him) for the interveners.

The following submitted briefs for amici curiae:

Martin M. Fantozzi & Kevin P. O'Flaherty, Boston, for MassEquality & others.

Luke Stanton, Waltham, for Robert H. Quinn & others.

Robert D. Carroll, Christopher C. Nee, & Anna-Marie L. Tabor, Boston, for Scott Harshbarger & others.

C. Francis Tynan, pro se.

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, 798 N.E.2d 941 (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.³ 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.⁴

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, 479 N.E.2d 649 (1985), quoting Commonwealth v. Lightfoot, 391 Mass. 718, 720, 463 N.E.2d 545 (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, 736 N.E.2d 358 (2000), quoting General Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 158, 193 N.E. 799, appeals dismissed, 296 U.S. 543, 56 S.Ct. 95, 80 L.Ed. 385 (1935), and sub nom. Brink v. Callahan, 297 U.S. 725, 56 S.Ct. 496, 80 L.Ed. 1008 (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, 103 N.E. 473 (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, 636 N.E.2d 1293 (1994), rev'd sub nom. Hurley v. Irish-American, Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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,⁵ a statute,⁶ or a common-law principle.⁷ 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.⁸ 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.⁹

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.¹⁰

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, 736 N.E.2d 358, 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, 736 N.E.2d 358.

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, 736 N.E.2d 358. 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, 736 N.E.2d 358 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, 736 N.E.2d 358. "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, 736 N.E.2d 358.¹¹

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, 736 N.E.2d 358. "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.¹²

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...