Court-Legislative Conflict in Massachusetts

By Miller, Mark C. | Judicature, September/October 2004 | Go to article overview

Court-Legislative Conflict in Massachusetts


Miller, Mark C., Judicature


After decades of maintaining a cooperative relationship, recently the interactions between the Massachusetts Supreme Judicial Court (SJC) and the state legislature have become highly conflictual. Among other controversies, the state supreme court's 2002 decision requiring that the state legislature fund the campaign finance reform initiative known as the Clean Elections Law and the court's 2003 decision that same-sex couples could not be denied marriage licenses under the state constitution have created a great deal of friction between the supreme court and the legislature.

To fund or not to fund

The court-legislative conflict began in November 1998, when the voters approved by a 2-to-l margin a referendum to create the Clean Elections Law, one of the strongest campaign finance reform laws in the country. The new program would have provided public funding to any candidate for any state office who agreed to specific limits on how much he or she would raise and spend for the election. Due mostly to the fierce opposition of conservative Speaker Thomas M. Finneran and other key legislators, the legislature flatly refused to fund the program. In 2000, the legislature did authorize $23 million for the program, but then refused over a period of several years to appropriate any money that candidates could actually tap.

Several candidates sued, and in January 2002 the SJC ruled in their favor, saying that the state constitution required that the legislature either repeal the law or fully fund it. As one journalist exclaimed, "The Supreme Judicial Court has gotten into the business of doing the unthinkable on Beacon Hill: bossing around House Speaker Thomas M. Finneran."1

Clearly thumbing its nose at the court's ruling, the legislature again refused to fund the law, so the Supreme Judicial Court then ruled that the state could be forced to sell surplus state property in order to fund it. Advocates of the Clean Elections Law even suggested selling the office furniture of Speaker Finneran and Representative Joseph Wagner, chair of the legislature's Elections Committee, and tried to get the court to sell the legislators' parking spaces. Refusing to go that far, the SJC did force the sale of some state cars and a vacant state-owned hospital. The legislature then quite reluctantly agreed to appropriate $4 million for the Clean Elections Law for the 2002 election cycle. Twelve clean elections candidates used the public money in the November 2002 elections, but they were outspent by a margin of 23 to 1. In June of 2003, the legislature quietly repealed the law.

The legislative responses to the court's rulings on the clean elections issue, however, were far from quiet. In a speech to the Boston Bar Association after the SJC's initial decision, Speaker Finneran commented, "I think it is well beyond controversial for courts to begin to dictate the results or the outcomes of the budget process."2 Soon after that, he increased his attacks on the SJC and called for the direct election of all judges in the state, which would have ended the life appointments that have allowed Massachusetts judges to retain their judicial independence. (Other members of the legislature suggested the less radical idea of switching to a retention election system for judges.) The Speaker's threats never led to any legislative action, but he clearly floated the idea in retaliation for the court's clean elections decision. A somewhat similar proposal to elect the state's judges was eventually considered by a March 2004 constitutional convention, but that proposal was quickly modified to provide for legislative confirmation of judicial appointees and was referred to committee for further study.

While the legislature has not yet dramatically altered the selection system for judges in Massachusetts, it has used its budget powers to attempt to exert more direct control over the courts. For example, the legislature took away judges' ability to hire their own probation officers, giving that power to the state's commissioner of probation, a key ally of Speaker Finneran. …

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