I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]
Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.
I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.
On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.
Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!
Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.
Update 10 minutes later:
Ah, Mass. G.L. ch. 231 sec. 6f, in relevant part:
Chapter 231: Section 6F. Costs, expenses and interest for insubstantial, frivolous or bad faith claims or defenses
Section 6F. … the court may determine … that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature … were wholly insubstantial, frivolous and not advanced in good faith.
The political question doctrine, on the federal level, is basically a way for courts to avoid ruling on questions that fundamentally implicate determining disputes between coequal branches of power. Voters’ remedies with political questions lies in the ballot box: In other words, if people are pissed off at the state legislators failing to vote on the amendment, then they should throw the bums out and vote in people who are interested in voting on the amendment. Hmm. That doesn’t seem to have happened here in Mass., where every election has put more same-sex marriage supporters in the legislature.
So is this applicable to Massachusetts? An admittedly cursory search turns up Backman (1982), which appears to be the most significant recent discussion of the issue, and is still good law. Backman v. Secretary of the Com., 387 Mass. 549, 441 N.E.2d 523 (1982). In Backman, the SJC rejected a challenge to a successfully passed constitutional amendment, basically deferring to the legislature & governor, without invoking the political question doctrine.
The Mass. Governor called a joint session in 1980 to approve a constitutional amendment permitting capital punishment; the subsequent joint session in May 1982 also approved it. The plaintiff, an anti-death penalty state Sen. Jack Backman, argued that the way that the legislature & governor called the joint sessions was procedurally flawed. The defendant Secretary of the Commonwealth argued that specifying constitutional procedure was a political question, and the Court should duck it. The SJC declined to adopt the political question doctrine, but then deferentially reviewed the procedures that the Governor & Legislature had used to call the sessions.
So, the Mass SJC hasn’t adopted the PQ doctrine, but it hasn’t officially spurned it either.
Moreover, while the court appeared to be willing to rule on legislative and special session rules, it actually granted a significant amount of PQ doctrine-like deference to the other branches. The dissent saw this too: “Although the court acknowledges the fact that “we have never explicitly incorporated” the Federal political question doctrine “into our State jurisprudence,” supra at 527, the approach it takes is reminiscent of such an approach.” at 557
The dissent complained, not so much about the the court’s spurning of the PQ doctrine, but of its PQ-like deferential approach, which found that the following the correct procedures, in a loosey-goosey, more or less kinda way, is fine, so long as “the Legislature” (read: the majority of the Legislature) and the Executive (read: the Governor) are in accord.
The dissent preferred a close and careful reading of the procedures rather than a deferential one, and said, contrasting the dissent’s preferred careful evaluation with the disorganized PQ doctrine, that “Under our State law, however, our sole object is to determine whether the Legislature or Chief Executive has acted pursuant to a constitutional grant of authority and has not acted contrary to any constitutional limitation. If so, then it can be said that the act of the Legislature or the Chief Executive is only open to political challenge. [FN4] If the constitutional procedures have not been met, it is our judicial duty to so declare.” (at 558; emphasis added)
So, what does this mean?
First, political question or not, courts don’t look favorably on elected officials coming to the courts to whine about the actions of their fellow elected officials.
Second, this is a lack of action, rather than an action, which gives the court even less room to work with–the Legislature did not act “contrary to any constitutional limitation”. Failure to fulfill a duty is more along the lines of impeachable offenses. Failure of the legislature to take a vote, however, doesn’t even qualify as a failure to fulfill a duty.
Third … I don’t even have a third. This is just stupid. Meanness and hatefulness make me sad but they don’t irritate me the same way that stupidity and inefficiency and waste and hypocrisy do. Mitt Romney, I deem thee a jackass.
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