“WE WILL NOT tolerate a kangaroo court…” 

That was state Auditor Diana DiZoglio declining, by way of a tweet, to take part in a Senate-sponsored hearing scheduled for Wednesday on the constitutionality of the law passed by the voters in November allowing her office to audit the Legislature.  

The “kangaroo court” she’s referring to is a four-member Senate subcommittee created to guide the Senate in developing its position on the constitutional issues the new law has raised (a picture of four kangaroos wearing English barrister wigs appears below the tweet). The “we” who will not tolerate the kangaroo court are the auditor and her supporters.  

You might ask why the law’s constitutionality is being raised now rather than before the election. Are laws that might be unconstitutional allowed to appear on the ballot anyway?  

Yes, they are.  

A proposed law may be excluded from the ballot only for one (or more) of a narrow set of reasons, and the possible unconstitutionality of the law is not among them, as the decision of Attorney General Andrea Campbell (who has the responsibility to determine which proposed laws may advance to the ballot) approving this question demonstrated.  

If last year’s ballot campaign had failed, of course, there would have been no need for the subcommittee’s work. But it succeeded, in part because lawmakers brought a long-simmering resentment about the Legislature’s secrecy and perceived arrogance to a boil.  

A series of unforced errors, like failing to finish its work on many of the most important bills of the session by its own self-imposed deadline, prompted voters to ratify the ballot question overwhelmingly, by a 72-28 margin. 

The Senate subcommittee will convene on April 2, seeking testimony from invited guests and members of the public on several questions, including whether the new law violates the separation of powers clause of the Massachusetts Constitution, which prohibits the three branches of government — legislative, executive and judicial — from infringing on one another.  

The purpose of the separation of powers doctrine is to “diffuse power the better to secure liberty,” and our state Constitution goes to syntactic extremes to leave no doubt about that objective:   

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” 

The resolution of separation of powers issues can be difficult, presenting the courts with challenges not unlike those the early Church fathers encountered when trying to illuminate the mystery of the Trinity: one God in three persons? One government in three branches?  

A proper analysis requires a “scrupulous” inquiry, the Supreme Judicial Court has ruled. In three recent cases, the court found no separation of powers violation in two (Gov. Baker’s Covid-era orders shutting down the economy for a time did not improperly encroach on the Legislature’s powers; the Legislature did not improperly abdicate its authority when it delegated the power to formulate the details of the MBTA Communities law to the executive branch), but a statute allowing the Department of Correction to decide where a mentally-ill prisoner should be incarcerated did improperly usurp the power of the judicial branch to make that determination.

The separation of powers clause is also the reason why the attorney general may not rely on the possible unconstitutionality of a proposed law to exclude it from the ballot: The authority to determine the constitutionality of a law is reserved for the judicial branch to exercise. 

Whether the auditor, who in this case is the representative of the executive branch, can demand to examine the records of the Legislature over its objection certainly presents a separation of powers issue, which the auditor’s own statements have complicated further.  

At one time, she claimed the authority to obtain not only the usual raw material of an audit (receipts, balance sheets, procurement records) but also information on internal House and Senate rules, which are expressly protected by other constitutional provisions and do not even invoke the separation of powers clause. A more recent statement announced that her audit would “start” with “all relevant financial receipts and information,” a formulation that left open the possibility that more problematic demands would follow.  

She has seemed to wave away any constitutional concerns by citing the approval of 72 percent of voters, but an electoral supermajority has no bearing on their proper resolution. She has claimed that lawmakers have “intentionally misled voters regarding the constitutionality of an audit,” and she has accused the Senate subcommittee itself of violating the separation of powers doctrine by exercising the power of the judiciary (hence the “kangaroo court”), but without further elaboration.  

The attorney general, in responding to the auditor’s request that she respond to the Legislature’s intransigence by filing a lawsuit, commiserated that “the consideration of separation of powers principles may be vexing, frustrating, or insufficiently responsive to the politics of the moment,” a sentiment that the auditor and her supporters would enthusiastically agree with.  

But especially in these precarious times, when the federal government is offering up daily illustrations of the dangers of consolidating power in one branch, it’s unwise to discount the wisdom of diffusing governmental power.

The Senate subcommittee hearing offers the auditor the opportunity to make the case that her demand of the Legislature is consistent with constitutional principles, but it seems that she has declined to take it.   

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area. 

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UNDER THE RULES by which the Legislature governs itself (if “governs” is the right word these days), a legislative session lasts for two years. Within those 24 months, “formal business” may be conducted only in 18. Off limits are the month of December of the first session year (odd-numbered years) and the five months from August through December of the second one (even-numbered years).

The rule in question, Joint Rule 12A, doesn’t define formal business, but the Legislature’s glossary says that a formal session involves considering and acting on “matters that may be controversial in nature and during which roll call votes may be taken” – in other words, legislating.

Lawmakers adopted the new rule in 1995 to lengthen the one-year session then in effect, in which any bill not making it to the finish line was forced to return to the starting line, an obvious and woeful inefficiency. 

The rule was also adopted in part to atone for an act of chicanery by legislative leadership: On a December afternoon in 1994, a bill cutting capital gains taxes was quickly gaveled through both chambers without debate and without the knowledge of the vast majority of legislators. It bore the misleading title “An act providing tax relief for low income families,” and it arrived on Gov. Bill Weld’s desk as an apparent inducement to him to sign another bill, this one doubling the base pay of legislators. He signed them both, though he denied there was any quid pro quo.

When the trick was exposed, the embarrassment the hoodwinked lawmakers suffered was not entirely mollified by the pay raise they were getting. They wanted a few more guardrails, and the idea of eliminating formal sessions from August through December in even-numbered years made sense: It quarantined the November statewide election from lawmaker maneuvering. There would be no occasions for politically opportunistic votes before the election, and there would also be no opportunities for chicanery after the election, as happened with the capital gains tax cut bill, where the legislature’s leadership, having just been returned to office, felt confident that voters would forget about the ruse before the next election.

The few arguments against the new rule came mostly from Republicans, whose minority status puts them especially on guard against legislative mischief.

One of the Republican fears was that the Democratic supermajority would routinely suspend the rule when judging it expedient to do so. Barbara Anderson, the late legendary anti-tax irritant to the General Court accurately observed, “I’ve seen the rules suspended here in seconds.” Rather than a mere rule, which could be easily circumvented, she urged the Legislature to pass a law, which could not be. She was rebuffed.

Another Republican concern was that the purported distinction between a formal session and an informal one would be meaningless unless the power to determine what was not “controversial” and was therefore appropriate to be considered informally was vested in each lawmaker. Even though the guarantee was not expressly stated in the rule itself, Democratic state Rep. Frank Hynes of Marshfield, one of its authors, maintained unequivocally that was the proper interpretation. The Republicans needn’t worry, he explained at the time to the Globe, because “the objection of a single legislator can kill action in an informal session.”

In the three decades since Joint Rule 12A was adopted, the Legislature has rarely voted to suspend it, contrary to Barbara Anderson’s fears. With the exception of the Covid year of 2020, which upended timetables everywhere, the rule has been suspended only three times, and on each occasion (in 1999, 2003 and 2005) the vote to suspend came before the clock ran out on formal sessions, so it came following debate and by a roll-call vote.

But during this most recent legislative session, the line differentiating a formal session from an informal one was erased in the House of Representatives: A single House member can no longer kill a bill during an informal session.

As the end of the first session year approached in November 2023, on the Legislature’s front burner was a supplemental budget that would determine state policy about the emergency family shelter program, under chronic strain because of the housing crisis in the state and under acute strain because of the arrival of migrants fleeing humanitarian crises in other countries. 

Republicans in both chambers voted to restrict eligibility for the program, but they did not prevail. A conference committee was appointed to draft a compromise between the House and Senate versions of the bill, but by the final formal session of the year, the conference committee had failed to produce an agreement, and the Legislature did not vote to suspend Joint Rule 12A to return to a formal session later, as it had done in the past when outstanding and controversial business remained. That seemed to spell the end for the spending bill getting across the finish line before lawmakers reconvened with formal sessions in January. 

In the days following, however, the budget conference committee agreed on a compromise bill, making it ready for final enactment. Because the budget originated as a House bill, the House vote would happen first. House leadership rejected a Republican call to return to a formal session for that vote and instead scheduled an informal session.

Republicans prevented the bill from advancing that day, as they did on the next two days of the standoff, with each side accusing the other of gratuitous obstructionism: Democrats knocked Republicans for insisting on a meaningless formality, and Republicans blasted Democrats for refusing the easy and obvious solution to the problem, a formal session. 

Informal sessions have historically been lightly attended in light of the promise that no controversial measures will be taken up. But on the day of the fourth informal session, 14 Republicans and more than 100 Democrats arrived, easily establishing a quorum, after which the presiding officer inquired whether there was any objection to proceeding with legislative business. The Republicans offered no objection, apparently abandoning their quest for a formal session in the face of the Democrats’ show of strength.

Ironically, it was House Minority Leader Brad Jones who explained to CommonWealth Beacon that the longstanding interpretation of the rule, adopted to assuage Republican fears, was erroneous. As the House now construes it, the rule is much more limited: a single legislator cannot kill action in an informal session, but can only block action temporarily by doubting that a quorum is present. Once there is a quorum, the House can move forward with a vote. Which it did expeditiously that day, passing the budget, without debate and without a roll-call vote and sending it to the Senate.

Republicans and Democrats in the Senate reached an agreement to pass the budget without addressing the new interpretation of Joint Rule 12A in the House. That remains an unresolved difference of opinion between the chambers.

Last month, with a dozen House-Senate conference committees still negotiating final deals on the last day of formal sessions – and with some of those bills requiring roll call votes under the constitution — neither chamber took up the question of extending formal sessions, and in the morning hours of August 1, formal sessions for 2023-2024 appeared to come to an end. But the crescendo of public outrage that followed convinced the Legislature to reconsider its inertia, and both chambers have now endorsed a plan for an additional formal session.

The details about that session remain unresolved. Which bills (some or all of the dozen still in the conference committee process) will be taken up? The House position appears to be that only bills requiring a roll call vote under the constitution, like the multi-billion-dollar economic development bond authorization, require a formal session. Any other legislation, the House seems to be arguing, can be passed by a quorum of legislators meeting in informal session. As Speaker Mariano told State House News Service, informal sessions allow “a path for everything that doesn’t have a roll call.”

What happens during the remaining months of 2024 is still to be determined. There’s a lot at stake, including the fate of major bills on climate change, hospital oversight, and prescription drug pricing. Also at stake is whether or not legislation is passed in a formal session with the opportunity for debate and roll-call votes.

For the past three decades the Legislature has treated “matters that may be controversial in nature” to require the protection of those procedural safeguards, but that era may be at an end.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.

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“IT’S BEEN YEARS since legislative democracy truly flourished at the State House,” the Boston Globe editorial board sighed in exasperation a few weeks ago.

For more than a decade, Globe editorials have been denouncing the Legislature’s m.o., which was fashioned by Democratic supermajorities in both House and Senate: consolidate power within a small group of lawmakers and let them wield it outside of public view.

So far, there’s not much to show for these reprimands. A 2012 editorial, “Beacon Hill leaders stifle debate among legislators,” still sounds pretty familiar in 2023: “the concentration of power in the hands of the House speaker and Senate president has had a strangulating effect on democratic decision-making.”

It’s getting increasingly hard even to imagine an alternative to this buttoned-up way of legislating, which has been the status quo since at least the time of House Speaker Bob DeLeo, who’s described in a Globe editorial as having perfected the art of making it “impossible to know what an individual legislator really said or did.” (DeLeo once disputed the accusation that his leadership style was undemocratic by denying the very premise that lawmaking happens in public. I’m a consensus builder, he said, adding that it’s “not very uncommon that I would have anywhere from two people to 20 people in my office to try to work consensus out.”)

But the Globe isn’t giving up on this fight, and its rebukes are getting sharper. Recent editorials have mocked the lawmakers who lined up behind Ron Mariano for Speaker as “the sheeple” and derided the Legislature’s frequently-unanimous roll call votes as “North Korean-esque.”

Last year, when the House did hold an actual debate before a roll call vote (120-36, in favor of a bill allowing undocumented residents to get drivers’ licenses), the Globe’s reaction came heavily salted with sarcasm: “Something rare is scheduled to occur on Beacon Hill on Wednesday…Shocking, indeed, given that one longstanding tradition on Beacon Hill is a tendency to hammer out policy behind closed doors and then hold pro forma, unanimous votes to approve it.”

In this most recent scolding, the Globe contrasted the barrenness of present-day lawmaking with what it regards as a paragon of legislative democracy: the summer of 1981, when the Legislature was grappling with the budgetary repercussions of Proposition 2½, the tax-cutting law that the voters had approved the previous November.

The editorial is a sentimental journey back in time, starting with its plaintive subtitle — “The older ways were really the better ways.” And it’s a flowery one – the State House was a place of “passionate, sometimes even raucous” debate, where “the sometimes earnest, other times ardent voices of state senators and representatives regularly drew interested observers to the House and Senate visitors’ galleries.”

A legislative democracy, we learn, has drama and suspense (the outcomes are not foreordained – a revolt on the House floor!), and it makes for an engaging and crowd-pleasing spectacle (interested observers in the galleries, and reporters, advocates, and lobbyists, who “mingled in the hallways during the afternoons and evenings – and sometimes late into the night – as legislators debated”).

Alas, the party’s over, for the time being at least: the “marble halls are now empty.” But a return to legislative grandeur is still possible, we’re told: lawmakers can and should take back the power that they’ve surrendered.

Really, the sheeple are capable of that? For that matter, could any institution turn the clock back some 42 years?

The Globe is certainly a different creature now than it was then — the pages and pages of classified ads that used to fatten Sunday editions have decamped to Craigslist, and profits are now tallied in electronic clicks, which “softer” news can encourage. (In the three and a half years since Tom Brady left the Patriots, his name has appeared in 1,677 Globe stories, House Speaker Ron Mariano’s name in 313, Senate President Karen Spilka’s name in 279.)

The 1981 budget drama that the editorial extols made the Globe’s front page nearly every other day in June and July of that year. Seven different reporters filed 32 stories on the subject, with headlines ranging from “Faltering House budget delayed for revision,” to “State Senate panel wields sharp ax,” through “Talks break off,” and “Fallout from the struggle.”

Compare that output to the Globe’s coverage of the Legislature in June and July of last year, which, under rules adopted in 1995, are two of the Legislature’s busiest months. Controversial amendments from the governor’s office prolonged the budget process, a tax cut bill near enactment was suddenly derailed by an obscure law from 36 years before, and US Supreme Court decisions on abortion and guns forced the rethinking of state laws on those subjects. Yet even with all this activity, the Globe ran only half as many front-page State House stories as it did in 1981.

That type of retrenchment can transform how business is done on Beacon Hill. Public institutions and players are much more likely to maintain open and transparent proceedings when lots of eyes are on them.

The Globe is hardly alone in its retreat from State House coverage. The upheavals that have gutted the business model that long supported newspapers have caused similar pullbacks at outlets across the state and country, not to mention the shuttering of hundreds of papers.

But this recent Globe trip on the Wayback Machine suggests a possibility that its editorial melancholy about our degraded legislative democracy hasn’t yet considered: Has the downsized State House coverage by the Globe itself helped to bring about this lamentable state of affairs?

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.

The post Maybe the Globe should take a look at itself appeared first on CommonWealth Beacon.

WHEN THE LEGISLATURE ended its formal business for 2021 on the third Wednesday of November, as its rules require, it left behind one of the year’s biggest bills, a spending measure allocating federal American Rescue Plan (ARPA) money. The bill, which the governor had filed in June with considerable emphasis on the urgency of the needs it would address, was not on its way to the governor’s desk, but instead remained stranded in a legislative conference committee.

The conference committee belatedly finished its work two weeks later, and on December 3 the few legislators in attendance (four in the House and three in the Senate) agreed unanimously, as the rules of informal sessions demand, to send the bill to the governor.

Now, as 2021 passes into 2022, a parliamentary question has lingered – will the Legislature still have the opportunity to override the governor’s vetoes?

Under the Legislature’s rules, most bills carry over from the first to the second year of the two-year session, but, per Rule 12B, budget bills do not. Described more specifically under that rule as measures “making or supplementing an appropriation for a fiscal year,” budget bills “cease to exist” at the end of the first year – a potential obstacle confronting the Legislature when formal sessions resume on January 5.

The Legislature will certainly not want the opportunity to exercise its constitutional right to override vetoes to be thwarted, especially by one of its own rules, especially a rule that calls unwanted attention to its own rather dilatory behavior.

This past Monday, the governor signed nearly all the bill into law, but he did veto provisions concerning a $500 million fund for bonus payments to be awarded to essential employees who worked during the pandemic. The Legislature had specified that payments ranging between $500 and $2000 would go to workers with incomes of 300 percent of the federal poverty level or less (in 2021, about $66,000 annually for a family of three), the details to be sorted out by a 28-member advisory panel charged with imposing any additional eligibility criteria, setting bonus payment amounts within the designated range, and getting the money out the door by the end of March 2022.

Worried that a 28-member advisory panel doing such time-sensitive work “virtually guaranteed” that the disbursement of the funds would be hindered significantly, the governor vetoed all the Legislature’s conditions.

(In support of his argument that advisory panels, like task forces, commissions, working groups and other similarly designated entities, commonly fail to meet their deadlines, the governor might have pointed out that this same bill gave a commission on childhood vision and eye health, whose recommendations were already more than three years late, more time to finish its work.)

Had the Legislature acted during its final day of formal sessions to suspend the rule mandating the end-of-year recess, it might have returned to override the vetoes as soon as the governor issued them, as it did in 2001. In that year, protracted sparring between House Speaker Tom Finneran and Senate President Tom Birmingham left the annual budget unfinished into September, and then the economic collapse after 9/11 complicated the fiscal picture much further.

On the last day of formal sessions that November, the Legislature enacted the annual budget and suspended the end-of-year recess rule so that it could return to conduct the formal business of veto overrides on December 5. This year’s Legislature failed to take that precaution, and Republican members of the Legislature will not provide the required unanimous consent to take any curative action during the recess.

Their options dwindling, legislators turned to the problematic rule itself, seizing upon the language of the rule referring to “an appropriation for a fiscal year.” They noted that this bill makes an appropriation for several fiscal years (in keeping with the federal law requiring the money to be spent by June 2027). If one simply disregards the fact that the rule does not say “a single fiscal year,” a possible escape hatch presents itself.

In an apparent endorsement of this reading, the clerk of the House of Representatives late last week ruled that the vetoed provisions are not “exceptions that are identified” in the rule, and that therefore the Legislature may vote on overrides come January. The Senate Clerk has not yet offered his opinion.

The governor has said that his administration would be able to distribute the funds by the March deadline set in the vetoed provision. If in January he can convince lawmakers that his allocation plans reflect its wishes closely enough, the Legislature might allow the vetoes to stand, a result that would further the interest of conforming to the bill’s title, “An Act relative to immediate COVID-19 recovery needs.”

And the Legislature would still have plenty of pressing issues to consider — mail-in voting and the conditions of hen confinement, for two.

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IN ADDITION to consuming most of the attention of the legislative and executive branches of government, the COVID-19 pandemic is also keeping the judicial branch busy. Twelve times in the last 11 virus-wracked months, the Supreme Judicial Court has issued decisions resolving some legal tangle caused by COVID.

Among the questions the court has answered: are Gov. Charlie Baker’s emergency orders unconstitutional (no); should we adjust our election laws to reduce the number of signatures that candidates for elective office must collect (yes, by half); must the Department of Correction reduce prison populations to help prevent the spread of disease (no, but judges must consider the dangers presented by the pandemic when making sentencing decisions).

On February 5, the court heard arguments in yet another COVID case, concerning the constitutional rights of a person who has been committed to the Massachusetts Treatment Center at Bridgewater under the state’s sexually dangerous persons law.

That person, Robert Lesage, now 80 years of age, has been in state custody for nearly 40 years, the first 20 in prison for the sexual assault and manslaughter of one of his victims, a 14-year old boy, and the remainder in confinement at the Treatment Center. He is one of about 140 persons currently committed there as sexually dangerous persons, whom the law defines as having a mental abnormality predisposing them to the commission of criminal sexual acts to a degree that makes them a menace to the health and safety of others.

As someone who is not serving a criminal sentence but is nevertheless confined, Lesage has a constitutional interest in his liberty and a due process right to challenge the basis of his confinement – that he remains a sexually dangerous person. He has petitioned the Superior Court for a hearing to determine whether he is entitled to be released from the Treatment Center because he is no longer dangerous. He has sought release twice before and was denied both times.

The Department of Correction is opposing his petition. What brings this case to the Supreme Judicial Court is that the department is also insisting on its right under the civil commitment law to have a jury decide whether or not he will be released.

This jury demand has the effect of postponing Lesage’s opportunity to challenge his commitment indefinitely, because there have been no jury trials in the Superior Court since the pandemic began, and there are no present plans to resume them (a limited to resume jury trials in criminal cases in two state courthouses lasted only two weeks before being cut short last month). The SJC will decide whether the COVID-19 pandemic is a compelling constitutional basis to override the department’s jury demand.

The statute giving the Department of Correction the right to jury trials in these cases was enacted in 1993 during the Weld administration, after a man recently released from the Treatment Center assaulted and murdered two women. Investigating the story, the Boston Globe reported that judges had released not only the murderer but also eight other persons committed to the Treatment Center, after finding that none of them was sexually dangerous any longer.

In response to these high-profile crimes and unfavorable press coverage, the governor’s office filed legislation to toughen the law, including a change to allow the question of a petitioner’s dangerousness be decided by a jury if either the department or the petitioner requested one.  Then-Lt. Gov. Paul Cellucci made clear in the filing letter that accompanied the bill that the state intended to exercise this statutory right as a matter of course: the legislation, he wrote, will “provide that a jury and not a judge will hear and decide” these cases.

The waiting list for civil jury trials, even before the COVID era, was two to three years. Lesage filed his current petition in July 2015. The Department of Correction demanded a jury trial, which took place in 2018, but resulted in a mistrial after the jury could not reach a verdict. In March 2019, the court set a new trial date for March 2020, but by that time all jury trials had been suspended because of the pandemic.

In light of this indefinite delay, the Superior Court judge invited the parties to proceed with a jury-waived trial instead. Lesage agreed, but the Department of Correction refused, arguing that its statutory right to insist on a jury trial is unconditional, the only relief to which Lesage is entitled is for his hearing to be held as soon as jury trials resume, and, in the only nod to its responsibility during the pandemic, insisted that the participation of a jury would promote public safety, which itself would promote public health.

Weighing the importance of Lesage’s constitutional right to a hearing against the Department of Correction’s statutory right to a jury trial, the judge ruled in favor of Lesage: “the indefinite suspension of his … jury trial due to the COVID-19 pandemic and the Commonwealth’s blanket insistence on trying his case to a jury, thereby preventing him from having any meaningful access to the courts, have prolonged his trial past what due process permits.”  She stayed the ruling in order to give the Department of Correction the opportunity to appeal.

Lesage awaits the SJC decision while still confined at the Treatment Center, a setting where the virus can spread most readily — one in 10 prisoners there tested positive in December.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.

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HIS ELECTORAL TRIUMPH seemed like a fluke. Just to pursue our highest public office as a first-time candidate was improbable enough. To go on to win it was so flabbergasting as to cause the many pollsters who had predicted his defeat to question their sampling methods. 

But in retrospect, the victory was not entirely surprising.  

A third-party candidate siphoned off votes that might have gone to his opponent, and that opponent was also his ideal foil — competent, certainly, but perhaps too much so, with a demeanor that could seem condescending and a campaign message that was vague and tepid by comparison to his. Disgruntled voters, enough of them anyway, wanted something else. 

His approval rating, once he took office, never came close to a majority. His administration was dogged by charges of incompetence and corruption. The absence of blacks and Hispanics from positions of influence suggested indifference — or worse — to their concerns, and his anti-abortion policies further alienated pro-choice voters.  

His most enduring achievement was the selection of more than one-quarter of the members of the judicial branch, including three justices of the Supreme Court. 

He headed into the re-election campaign as a widely unpopular incumbent, but with the advantage of a deeply loyal base of support. The election set new turnout records, giving him more votes than he had won the first time, but they were not enough. A decisive majority of voters, including many who regretted their decision to sit out the previous election, cast their ballots against him.

The year was 1982, the election was the Democratic gubernatorial primary in Massachusetts, and his name was Ed King. He had defeated incumbent Gov. Mike Dukakis in the 1978 primary and was defeated by him four years later. 

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area. 

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“DON’T YOU HAVE to admit that Governor Baker has done a pretty darn good job here, especially when you compare him to the other states?”

That was a question Supreme Judicial Court Justice Elspeth Cypher posed during oral argument last month in Desrosiers v. Baker, the case brought by 21 individuals and businesses challenging the emergency orders the governor has issued in response to the COVID-19 pandemic. Strictly as a legal matter the question had no relevance — the governor’s actions are either valid or they are not. But it conveyed the trepidation that the justices and many Massachusetts residents may be feeling at the prospect of the utter nullification of the administration’s efforts to contain this unprecedentedly widespread and deadly virus. If those orders are struck down, what happens next?

The first claim in that lawsuit puts the legality of nearly all the governor’s orders at stake. It contends that the broad police powers conferred on the governor under the Civil Defense Act (the basis of his asserted authority) were intended by the Legislature to be strictly limited to circumstances involving foreign invasions or to natural catastrophes such as fires, floods, and earthquakes, and definitely not to outbreaks of disease. The governor’s use of those powers in this pandemic — shuttering businesses he deems non-essential and limiting the size of gatherings in churches and elsewhere — is flatly unlawful.

As a matter of statutory construction, the challengers have a point. The Cold War-era origin of the Civil Defense Act (when it was passed in 1950, Massachusetts, like many states, was preparing for the possibility of a nuclear war) supports their argument. Likewise, the act does not mention disease as a triggering event, and no previous governor has attempted to use it to respond to a public health crisis.

But if the Legislature did not intend the Civil Defense Act to apply to epidemics, what governmental powers are available to counter COVID-19? The challengers point to a set of laws, many of which date back to the eighteenth century, giving primary authority over public health not to the state but to cities and towns, and they argue that those laws should be controlling today. “Hundreds of healthcare professionals and local boards of health across the Commonwealth,” they assert, “stand ready to…craft community-specific solutions to address their communities’ unique needs.”

In fact, contrary to the challengers’ claim, hundreds of healthcare professionals and local boards of health believe that those laws are entirely deficient. In July, 224 of them wrote to the governor expressing concern that local responses to the pandemic were resulting in gaps and inconsistency in messaging, enforcement capacity, and data reporting, and they called for stronger laws and more state assistance. “Because viruses do not respect municipal borders,” they wrote, “the extreme variability of protections provided across municipal health departments pose a risk and harm to all communities.”

The Massachusetts Health & Hospital Association agreed in an amicus brief supporting the governor’s authority, dismissing as “nonsensical” the challengers’ assertion that local boards of health can handle the crisis: “Useful collective action, moreover, could only be taken on a statewide basis…. Without a statewide baseline, the crazy quilt of municipal responses would be ineffective at best, and likely counter-productive.”

Since at least 2001, when terrorists sent letters containing anthrax spores through the nation’s postal system, which in turn prompted fears of a weaponized smallpox attack, public health professionals have warned of the inadequacy of the public health laws the challengers say Massachusetts can safely rely on in this pandemic. Writing in the Massachusetts Law Review in 2002, Warren Kaplan, now a professor at the Boston University School of Public Health, called those laws “hopelessly outdated.”

As just one example of an unworkable law still on the books, he cited General Laws chapter 111, section 106, which gives some towns powers to restrict travel during a disease outbreak. Originally enacted in 1739, when the population of Massachusetts was less than a quarter million, it allows boards of health in towns “near to or bordering upon an adjoining state” to “examine such travelers as the board suspects of bringing any infection dangerous to the public health, and, if necessary, restrain them from traveling until licensed thereto by the board of health of the town to which they may come.”

Antiquated statutes such as this, Kaplan argued, would be irrelevant in event of a fast-moving or highly contagious outbreak in a state of (now) 7 million people. He urged the Legislature to update those laws to allow the statewide response that would be necessary.

Such an update nearly happened during the swine flu epidemic a decade ago. Sen. Richard Moore filed a bill that expressly permitted the governor to use the police powers in the Civil Defense Act to counter a public health emergency. It also imposed some accountability on executive branch authority, requiring the governor to renew any public health emergency declaration every 90 days, and it amended some public health laws and repealed others in an effort to establish greater cooperation between the state and municipalities. The Senate passed a version of that bill unanimously in April 2009.

But by the time the House considered the bill months later, Tea Party groups nationwide were protesting against perceived governmental overreach, with particular anger directed at President Obama’s health care proposal. A likeminded group in Massachusetts launched a campaign against the update effort, which talk radio amplified.

In an effort to blunt that opposition, the House offered up a weaker version of the Senate bill, which still attracted 36 “no” votes, including that of then-Shrewsbury Rep. (and now Lt. Gov.) Karyn Polito. The bill passed the House, but in the face of rising opposition the legislation faltered, no bill ever reached the governor’s desk, and in the decade since, no similar health threat has pressed the Legislature to act.

If state law had been amended to allow the governor to exercise the police powers of the Civil Defense Act in a public health emergency, constitutional challenges to those powers could of course still arise, as they did when a judge overturned the governor’s designation of gun shops as non-essential businesses. But unlike today, the resolution of those challenges would not risk the possibility that the state lacks a legal basis to mount a collective response to this pandemic.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.

The post Legislature punted on emergency powers issue in 2009 appeared first on CommonWealth Beacon.

A RECENT Commonwealth opinion piece by former state senator Ben Downing forcefully criticized “the glacial pace of change on Beacon Hill.” For the past three decades, Downing argued, our political leaders have habitually failed to respond to major challenges with the necessary urgency, contenting themselves instead with “preserving political power rather than using it for the greater good.” This lack of resolve, which has deepened racial and economic divides in the state, “is bad enough in non-pandemic conditions, but it threatens lives under our current reality.”

Exhibit A in Downing’s catalog of damaging governmental inertia is its failure, in this era of Covid-19, to pass emergency sick time benefits for the 1.5 million workers in the state (mostly persons of color) now without them. Those workers must still choose between their jobs and their health – and their choices may implicate the public health as well.

Current Massachusetts law does allow workers to earn up to five sick days per year, one hour for every 30 hours worked, but that modest benefit is no match for the magnitude of this pandemic. And to return to Downing’s point, credit for getting that law on the books goes not to the Legislature, but to advocates who tired of seeing it languish in several legislative sessions prior and decided to put the question on the ballot in 2014 (credit also goes to the voters who approved it by a 57 percent to 39 percent margin).

Lawmakers did agree in 2016 to a broader family and medical leave program — again under the threat of a ballot question — but those protections won’t be available until January.

Perhaps not by coincidence, during the same period that the Legislature has largely been punting the issue of paid sick time to the ballot process, lawmakers have become increasingly keen on passing bills creating a sick leave bank for the benefit specifically-named state employees (usually constituents of the sponsoring lawmaker) into which that employee’s co-workers can deposit one or more of their sick, vacation, or personal days.

Sick banks for public employees aren’t unusual. All of our New England neighbors have established arrangements for government workers to donate sick leave time to each other. An agency within the state with responsibility for human resources operates the system, and it requires no ongoing lawmaker involvement.

Massachusetts has had one of these, too, since 1995. It’s housed in the Executive Office for Administration and Finance and works like an insurance policy, allowing executive branch employees who donate to the bank to draw on it if the need arises.

Over the years, sick bank bills have come to be a bipartisan and bicameral staple of the Legislature’s routine — the 1997-1998 Legislature passed three sick bank bills, the 2007-08 Legislature passed 74, and the 2017-28 Legislature passed 117, a number that represents nearly one in five of the laws it enacted. So far this session even that pace is being exceeded

To respond in this individualized way to an urgent need is understandable (especially for lawmakers, who are ever on the lookout for “hero opportunities,” in the words of lobbyist Judy Meredith). But it’s the job of the Legislature to treat all constituents equally, and this practice fails even to treat all state employees equally. Which state employees know that this possibility exists? Which legislators are willing to file these bills and which are not? More sick leave banks are filed than are enacted, so how are the winners chosen and at the cost of what amount of political capital that might be spent on other issues?

Session after session, it seems, our Legislature spends more of its time running a lottery in which the winners receive GoFundMe pages. It’s avoiding its real responsibilities in the manner of a writer who rearranges the boxes in the garage or the spices in the spice rack rather than finishing that essay. Instead of forging consensus on difficult but pressing issues, lawmakers are simply busying themselves with smaller and happier tasks while waiting to see if consensus arrives — or not, as the case may be.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.

The post Why is Beacon Hill embracing sick bank bills? appeared first on CommonWealth Beacon.