Letter to Secretary Galvin. Where is the Emergency?

September 24, 2009


FOR IMMEDIATE DELIVERY

The Honorable William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Room 1611
Boston, Massachusetts 02108-1512

Dear Secretary Galvin:

I am writing to urge you to reject Governor Deval Patrick's expected letter attempting to invoke article II of amendment 48, The Referendum, II, declaring an emergency to enact the law allowing for an interim senator to fill a vacant U.S. Senate seat. The General Court rejected an emergency preamble; and, the Governor does not have the Constitutional authority to file with the Secretary of the Commonwealth a letter, in accordance with article 48, The referendum, II, declaring that the preservation of the public convenience requires that the law be immediately effective.

This is not a political opinion, this is a legal decision so issued by the Supreme Judicial Court in an Opinion of the Justices to the Governor (368 Mass 889, October 27, 1975). In following said SJC's 1975 opinion, Governor Patrick is not within his constitutional powers, and accordingly, this letter respectfully request that you do not accept said emergency declaration for filing with your office

The Supreme Judicial Court has set forth that the Governor's letter to the Secretary declaring an emergency law can only be used when a law is subject to a referendum; and further, only when the law could be subject to suspension of its operation under The Referendum, III, Section 3. In such an instance, the Governor's letter declaring an emergency law would have the effect of terminating that suspension. No such suspension of law threat is viable in this case. The law, as signed, cannot be subject to a referendum petition or a request for suspension. According to the Secretary of the Commonwealth's web site, submission of original petitions to Attorney General to originate an initiative petition for a constitutional amendment were due August 5, 2009. That date has passed, and with a special election slated for January 19, 2010 a referendum cannot be had.

In the SJC's opinion referenced herein, the Court explained that the Governor's declaration of emergency can only be used to close the threat of a referendum suspension of the law. As that is not the case in this instance, the people of the Commonwealth do not have The Referendum III, section 3 suspension as an option, as was intended by the authors of our constitutional protections and processes. So, no such threat exists.

According to the SJC: "The gubernatorial authority to forestall or undo the suspensive effect of a referendum petition was imported into article 48 as one of the means of providing some check on the power of a small minority of the voters to nullify adopted legislation until the next eligible Statewide election." As stated, there is no circumstance of such a referendum suspension threat regarding the current matter. As explained, this cannot even be in this case; therefore, the Governor is acting outside of his constitutional authority of protecting the citizen's from a "small minority of the voters." Moreover, the Governor is acting outside his authority to unilaterally overrule the will of the General Court, our Commonwealth's representatives.

Therefore, I respectfully implore you to exercise your Constitutional authority and to not accept the Governor's letter. Or, at the least, please seek an SJC advisory opinion regarding the Constitutionality of your accepting a patently unconstitutional letter from the Governor.

Mr. Secretary, you are our Commonwealth's final line of defense in upholding the Constitution on behalf of its citizens. We are grateful for your service to our state.

Respectfully submitted,


Jennifer A. Nassour
Chairman
Massachusetts Republican Party