Equal Marriage Opponents Use Intimidation and Blackmail

Our old nemesis, Barbara Anderson, of the Citizens for Limited Taxation -- the people who brought us Proposition 2 1/2, the people who think government should do as little as possible and who don't care if municipalities are struggling to pay for schools, police, and other essential services, have jumped aboard the bullying of the legislature. After all, if the legislature loses its independence, just think what wonderful tax initiatives can be put on future ballots. On a holiday weekend, legislators received individual "warnings" -- threats that if they did not vote on the pending initiatives, Barbara Anderson would make a formal complaint to the Bar of Board Overseers. That's right, a complaint to the Bar that considers disciplinary measures for lawyers who steal from escrow funds or who otherwise mistreat their clients.

Legislators who are lawyers are being threatened that the BBO complaint process will be used if they do not vote on the initiatives. What ever happened to "freedom of conscience" for lawmakers?

Since current leadership of the BBO could never respond to potential complaints, the following letter was sent by former bar counsel and assistant bar counsel.

Use of Disciplinary Warning Blackmail

Equal Marriage Opponents Improperly Threaten Disciplinary Action

January 2, 2007

To The General Court:

We write to you as former Bar Counsel and Assistant Bar Counsel at the Board of Bar Overseers ("BBO"), responsible for enforcing the Massachusetts Rules of Professional Conduct Collectively, we have over 35 years of experience assessing, investigating and prosecuting complaints brought to the BBO.

We understand that some legislators who are members of the Massachusetts bar have been threatened with the initiation of bar discipline should they vote to recess on January 2, 2007, without taking an up or down vote on the proposed citizens' ballot initiative to amend the Constitution to redefine marriage and overrule the Supreme Judicial Court's ruling in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). Those making this threat appear to rely on Doyle et al. v. Secretary of the Commonwealth et al., 448 Mass. 114 (2006) (decided

December 27, 2006) as the basis for their action.

Nothing in Doyle provides a legitimate basis for a complaint to the Board of Bar Overseers. The BBO is charged, as an arm of the Supreme Judicial Court, with acting "with respect to the conduct and discipline of lawyers" (SJC Rule 4:01). It is neither the purview of the BBO nor the practice of Bar Counsel to investigate, let alone prosecute, matters in which legislators act in a legislative capacity. Moreover, it would be inconsistent with the BBO's charge to involve itself in matters where there is no ethical violation but a legal and political dispute between the SJC and the Legislature as to the proper scope of legislative duty.

The SJC has long recognized that the Constitution, through Article 30, prohibits the court from interfering with the legislative branch. It reiterated this principle in Doyle. The BBO, as an arm of the SJC, is likewise prohibited from taking action against legislators for votes taken or not taken. Moreover, in our opinion, a legislator's vote to recess or adjourn under the procedural rules of the General Court does not violate any of the Massachusetts Rules of Professional Conduct.

Based on our expertise and experience, the threatened complaint would be summarily dismissed as without merit. Finally, while anyone may file a complaint with the BBO, it is inappropriate for the bar disciplinary process to be invoked in this context.

Daniel Klubock

Cathleen Cavell

Alice Hageman

Equal Marriage Opponents Serve Legislators With Frivolous Federal Lawsuit

On the Constitution's Speech and Debate Provisions

In their zeal to deny fair play to same sex couples, opponents of same sex marriage have brought an action in the United States District Court that asks a Federal judge to order the members of the Massachusetts Legislature to place on the ballot a proposal to amend the state constitution by inserting in it a provision that prohibits same sex marriage.

The lawsuit also demands unspecified damages from the members of the Legislature.

The complaining parties chose the holiday season – this week – to serve legal process on the members of the Legislature. Press reports indicate that the supporters of the amendment are planning to file complaints with the Massachusetts Board of Bar Overseers against legislators who are attorneys charging them with professional misconduct.

This reprehensible conduct by opponents of same sex marriage can have no purpose other than to intimidate the members of the Legislature and their families; i.e., an attempt to bully them.

It is well known that a member of a duly constituted legislature is protected from legal action based on what the legislator does in her or his official capacity. Just as the speech or debate clause in the United States Constitution (Art I, § 6) protects Senators or Representatives from civil suits, Eastland v. United States Servicemen’s Fund, 421 U.S. 401, 502 (1975), the decisions of the United States Supreme Court make it absolutely clear that state legislators enjoy immunity from federal civil rights actions so that they may perform their duties independently, without fear of law suits or interference by the federal courts. Tenney v. Brandhove, 341 U.S. 367 (1951)(state legislators may not be sued for damages); Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980)(immunity from injunctive relief). The principle of legislative immunity appears in the Massachusetts Constitution in Part the First, Art. XXI: "The freedom of deliberation speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." That constitutional provisiion protects a legislator against legal action for anything "said or done as a representative." Coffin v. Coffin, 4 Mass. 27 (1808).

In a nutshell, the lawsuit against the legislators, as it violates specific provisions in both state and federal constitutions as well as the general principle of separation of powers, hasn’t a shred of merit. Also in this very week, the Supreme Judicial Court of Massachusetts ruled unanimously that the separation of powers constrained it from telling the Legislature that it must act in regard to the anti-same sex marriage measure. It is a delicious irony that the same people who lament judicial activism ask a United States Court to tell the Massachusetts Legislature what to do.

The members of the Massachusetts Legislature need not feel intimidated.

Signed:

Rudolph Kass, Esquire
Mr. Kass served as Associate Justice of the Massachusetts Appeals Court from 1979 to 2003.

Edward J. Barshak, Esquire
Attorney Barshak is a former president of the Boston Bar Association.

Renèe Landers, Esquire
Prof. Landers is a former president of the Boston Bar Association.

Joseph L. Kociubes, Esquire
Attorney Kociubes is a former president of the Boston Bar Association.

Joel M. Reck, Esquire
Attorney Reck is a former president of the Boston Bar Association

Mark D Mason, Esquire
Attorney Mason is the president of the Massachusetts Bar Association.

Pamela E. Berman, Esquire
Attorney Berman is a former president of the Women’s Bar Association.

Leigh-Ann Patterson Durant, Esquire
Attorney Durant is a former president of the Women’s Bar Association.

Marianne LeBlanc, Esquire
Attorney LeBlanc is a former president of the Women’s Bar Association.

Myong J.Joun, Esquire
Attorney Joun is a former president of the Asian American Lawyers Association of Massachusetts

Charles P. Wagner, Esquire
Christina Miller, Esquire
Attorneys Wagner and Miller are co-chairs of the Massachusetts Lesbian and Gay Bar Association

Robert W. Harnais, Esquire
Attorney Harnais is the president of the Massachusetts Association of Hispanic Attorneys.