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Albano v. Attorney General6/13/2002
Suffolk.
May 9, 2002
Constitutional Law, Initiative petition, Amendment of the Constitution, Judiciary. Initiative. Attorney General. Marriage.
The plaintiffs filed a complaint in the Supreme Judicial Court for Suffolk County seeking relief in the nature of certiorari, mandamus, and declaratory judgment against the Attorney General and the Secretary of the Commonwealth. The plaintiffs challenge the Attorney General's certification of an initiative petition to amend the Constitution to provide that "only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts." The Attorney General certified that the petition is in the proper form; is not the same as any measure qualified for submission to the people at either of the two preceding biennial State elections; includes only subjects that are related and mutually dependent; and does not contain matters that are excluded by art. 48 from the initiative process. See art. 48, The Initiative, Part II, §á3, of the Amendments to the Constitution, as amended by art. 74 of the Amendments. A single justice reserved and reported the case to the full court on a statement of agreed facts.
On appeal, the plaintiffs contend only that the petition was improperly certified because it contains matters excluded from the initiative process under art. 48. The plaintiffs raise two specific objections to the certification: (1) the petition violates the provisions of art. 48 excluding measures that relate to the powers of the courts; and (2) the petition contains subject matter that is not related or mutually dependent, as required by art. 48. We conclude that the Attorney General's certification was proper.
The petition, if adopted, would add to the State Constitution a provision stating that only a marriage between one man and one woman will be valid and recognized in the Commonwealth. In addition, same-sex couples would be ineligible to receive any of the benefits or incidents exclusive to marriage from the Commonwealth or any of its agencies, departments, authorities, commissions, officials, and political subdivisions. The stated purpose of the petition is to protect "the unique relationship of marriage in order to promote . . . the stability and welfare of society and the best interests of children."
1. Affecting the power of the courts. Article 48 expressly excludes from the initiative process any "measure that relates to . . . the powers . . . of courts." Art. 48, The Initiative, Part II, §á2. The same exclusion is contained in the Referendum portion of art. 48. We treat these exclusions similarly. Art. 48, The Referendum, Part III, §á2. Mazzone v. Attorney Gen., 432 Mass. 515, 519 (2000). Before a measure is submitted to the people, the Attorney General must certify that the petition does not cover topics excluded under art. 48. Art. 48, The Initiative, Part II, §á3. We review the Attorney General's certification de novo. Id. at 520. "We must conduct more than a facial inquiry into the involvement of excluded subjects and determine whether the factual impact of the legislation proposed by the petition will involve an excluded subject." Id.
We have specifically stated that a petition is not excluded under art. 48 merely because it changes the law enforced by the courts. Id. at 520. To adopt such an interpretation would be to render the popular initiative virtually useless. Id. at 519-520. Therefore, we have said that an initiative petition is not excluded by art. 48 unless its "main design" or "main purpose" is to affect the powers of the courts. Id. at 520. Cohen v. Attorney Gen., 354 Mass. 384, 387 (1968). Horton v. Attorney Gen., 269 Mass. 503, 511 (1929)
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