The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
Part III - Changing Common Law Did Not Change Chapter 207
Because common law is the lowest, not the highest, order of law in our legal system, it cannot strike down positive, legislated law. Therefore, the SJC’s act of reformulating the common law meaning of marriage did not and could not change the meaning of the term “marriage” contained within the marriage statute, Chapter 207.
“Whether a statute is wise or effective is not within the province of courts. Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). "It is not for [a] court to judge the wisdom of legislation or to seek to rewrite the clear intention expressed by the statute.”[43] Mellor v. Berman, 390 Mass. 275, 283 (1983). "[D]eference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the 'undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.'" Lammi, supra at 300, quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Commonwealth v. Leno, 415 Mass. 835 (1993). As Mr. Chief Justice Burger of the Supreme Court of the United States explained in his dissent in Furman v. Georgia, "in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."[44]
"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the court is to enforce it according to its terms."[45] The goal in statutory construction, therefore, is to ascertain the legislative intent.[46] The duty of the court is to give the statute a reasonable construction.[47] “[S]tatutory language is the principal source of the insight into legislative purpose.” Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415 (1984); see Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). “When the words of a statute are clear, they are to be given their ordinary and natural meanings. If the meanings are unclear, the statute must be interpreted 'according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'”[48] [In addition,] ‘a statute should be read as a whole to produce an internal consistency.'[49] [Id. at 873.].”
In interpreting the legislative intent behind the marriage statute, the Goodridge Court adhered to these principles of jurisprudence regarding the construction of the meaning of Chapter 207.[50] Indeed, the Goodridge opinion accurately gleaned the legislative intent behind the enactment of the marriage statute. Very clearly the Court acknowledged that “the Legislature did not intend that same-sex couples be licensed to marry.” The Court essentially decided that the current and traditional statutory “meaning of ‘marriage’ is ‘[t]he legal union of a man and woman as husband and wife,’ Black's Law Dictionary 986 (7th ed. 1999).”[51] The court had a duty not to negate the actual legislative intent and the Goodridge Court complied with that duty (but only regarding the construction of the statute not the Constitution, as discussed below).[52] The Court found that the marriage statute does not authorize same-sex marriage stating: “We conclude . . . that G. L. c. 207 may not be construed to permit same-sex couples to marry.”
After coming to this conclusion, the Court did not attempt to change the statute.[53] Indeed, the Court could not have done so because it does not possess that authority from the Constitution.[54] The Massachusetts Constitution explicitly prohibits the judiciary from performing a legislative function.[55] The SJC does not possess the authority to change the plain meaning of a statute’s language.[56] The SJC repeatedly has acknowledged it has “no right to read into [a] . . . statute 'a provision [extending a definition] which the Legislature did not see fit to put there."[57] Similarly, the Court has stated it will not “add words to a statute that the Legislature did not put there . . ."[58] It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions.[59] These principals recognize and honor our system of separation of powers.[60] .
Abiding by their constitutionally limited powers, the four justices declared that they would “reformulate the common law meaning of marriage” in Massachusetts.[61] That action, however brazen, was legally insignificant in terms of its effect on the power granted pursuant to the statute. The act of reformulating the common law meaning did not and could not change the meaning of the term “marriage” contained within the statute.[62] The common law is not the highest but the lowest form of law and, therefore, is subordinate to legislation enacted by the representatives of the people.[63]. Clearly, then, the SJC could not enlarge the statutory language in the marriage laws to include situations never contemplated by and indeed, actions considered abhorrent behavior by the original drafters of the legislation merely by changing the “common law.”[64] Their reformulation of the definition of “marriage” under the common law could not and did not change the statute.[65] The SJC acknowledged this limitation by clearly and carefully stating that they were simply doing what they had been asked to do; which was to declare the statute unconstitutional.[66]
ENDNOTES
[43] In re Gault, 387 U.S. 1 (1967) (“[C]ourts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected. See, e. g., McLean v. Arkansas, 211 U.S. 539, 547 ; Olsen v. Nebraska, 313 U.S. 236, 246 -247.”); See also Liability Investigative Fund Effort Inc. v. Mass. Medical Professional Ins. Assoc., 418 Mass. 436 (1994) (“We conclude that the better reading of the statute is that deficit recoupment is to be governed by the plan of operation in place at the time of the recoupment. This construction effectuates the Legislature's intent. . . . Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring) ("’Every presumption is indulged in favor of the validity of a statute.’)”); Baker v. State, 744 A.2d 864, 886-88 (Vt. 1999) (“We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate . . . .”); Compare Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763, 772 (2002) (“In reviewing a regulation, a court cannot "substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals." American Family Life Assur. Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied, 464 U.S. 850 (1983). "It is not our function to consider the expediency of an enactment or the wisdom of its provisions." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 544 (1974). See Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464, 467 (1987) (where question whether any conceivable ground exists to uphold regulation is fairly debatable, court cannot substitute its judgment for that of agency).
This deferential approach "is necessary to maintain the separation between the powers of the Legislature and administrative agencies and the powers of the judiciary." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. Plenary review of administrative regulations "would have an unhealthy tendency to substitute the court for the agency as policymaker." Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 491 (1973). Administrative agencies possess expertise in their areas of specialization, and "[r]egulations are good indicators of an agency's interpretation of a statute it is charged with administering." American Family Life Assur. Co. v. Commissioner of Ins., supra at 475. Judicial deference "also precludes the possibility that a plaintiff may frustrate administrative policy merely by amassing facts, statistics, and testimony before a judge, all of which may have little or nothing to do with the legislative facts which the administrative agency relied upon in making its regulation." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. "[R]espect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment." Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”).
This article does not attempt to analyze how the SJC could come to the conclusion that there was no rational basis for this statute because, while baffling, it is simply not essential to the proof which I am arguing.
[44] Furman v. Georgia, 408 U.S. 238, 383--384 (1972) (Burger, C.J., dissenting); see Mass. Const. Part I, Art. XX. (“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”); Mass. Const. Part I, Art. XXI. (“The freedom of deliberation, speech and debate, in either house of the legislature (is) essential to the rights of the people.”).
[45] Massachusetts Community College Council v. Labor Relations Commn., 402 Mass. 352, 354 (1988). See also Singer, Sutherland Statutory Construction § 46.01, at 81 (5th ed. 1992), quoting from Caminetti v. United States, 242 U.S. 470, 485 (1917).
[46] Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The plaintiffs have asked us to interpret a statute, G. L. c. 207, § 12, and we are obliged to do so in the way our Legislature intended.”); Devine v. Board of Health of Westport, No. 05-P-428 (April 14, 2006) (“We interpret a statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated ... [and] the statutory language itself is the principal source of insight into the legislative purpose." Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983). We attempt to construe the language such that all provisions will be given effect and no part rendered inoperative or superfluous. Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).”).
[47] Massachusetts Assn. of Cosmetology Schools Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706 (1996) (“Properly promulgated regulations such as the manicuring regulations are presumptively valid and are not to be declared void unless their provisions cannot by any reasonable construction be interpreted as in harmony with legislative mandate. Berrios v. Department of Pub. Welfare, 411 Mass. 587, 594--595 (1992), S.C., 414 Mass. 1004 (1993).”); Fifty-One Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 606 (1996) ("Constitutional analysis begins with a presumption of statutory validity.").
[48] Telesetsky v. Wight, 395 Mass. 868, 872 (1985); Commonwealth v. Rahim, 441 Mass. 273 (2004) (“In particular, absent clear indication to the contrary, statutory language is to be given its "ordinary lexical meaning." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Randall's Case, 331 Mass. 383, 385 (1954).”); see Goodridge v. Dept. of Public Health, SJC-08860, November 18, 2003 (“We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934)”).
[49] Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The provisions of G. L. c. 207 "must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose." Labor Relations Comm'n v. Selectmen of Dracut, 374 Mass. 619, 624 (1978), quoting Chief of Police of Dracut v. Dracut, 357 Mass. 492, 499 (1970). See Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984) ("words of a statute must be construed in association with other statutory language and the general statutory plan"). Thus, harmony and consistency within the statutory scheme set forth in G. L. c. 207 necessitate reading §§ 11 and 12 together. See LeClair v. Norwell, 430 Mass. 328, 333 (1999) (statutory language not read in isolation).”); Telesetsky v. Wight, 395 Mass. 868, 872, 873 (1985). See also Commonwealth v. Welch, SJC-09342 (2005) (“This apparent ambiguity in the statutory language is resolved by reference to the remaining portions of the statute. See Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ("None of the words of a statute is to be regarded as superfluous ... so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature"). See also Kargman v. Commissioner of Revenue, 389 Mass. 784, 788 (1983) ("statutes should be interpreted as a whole to constitute a consistent and harmonious provision"); Commonwealth v. Adams, 389 Mass. 265, 273 (1983) (following "basic principle of statutory construction that a statute must be read as a whole").); Kobrin v. Gastfriend, SJC-09251 (2005) (“’[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' ‘ (Citations omitted.) Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253- 254 (1992), quoting Rubin v. United States, 449 U.S. 424, 430 (1981). ‘Courts are not free to read unwarranted meanings into an unambiguous statute even to support a supposedly desirable policy not effectuated by the act as written.’ 2A N.J. Singer, Sutherland Statutory Construction § 46:1, at 129 (6th ed.2000).”).
[50] Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (“The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law.”); but see Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[51] Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)
[52] See Adoption of Marlene, 443 Mass. 494, 497-498 (2005) (additional citations omitted). Moreover, "[w]here the draftsmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction." Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983), quoting from School Comm. of Greenfield v. Greenfield Educ. Assn., 385 Mass. 70, 79-80 (1982). Courts also have a duty to "view[ ] the statutory scheme as a whole; and [to] avoid[ ] a construction which would negate legislative intent or defeat its intended utility." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. at 116-117 (citations omitted). See generally Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.App.Ct. 282, 286 (1996).
[53] Commonwealth v. Sires, 413 Mass. 292 (1992) (Fn12) (“We did not, however, redefine involuntary manslaughter.”); Gilligan v. Attorney General, 413 Mass. 14 (1992) (“[W]e did not redefine the concept of appropriation or suggest that an appropriation occurs in every situation where public monies are designated to be devoted to a specific purpose.”).
ALSO SEE DISSENTING OPINIONS THAT DON’T SEEM TO GRASP THE FACT THAT THE SJC COULD NOT LEGISLATE AND IN FACT WAS NOT DOING SO.
[54] See art. 30 of the Massachusetts Declaration of Rights ("the judicial shall never exercise the legislative and executive powers, or either of them"); see also Mitchell v. Mitchell, 312 Mass. 154 (1942) (“If the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it by including the omitted case would be tantamount to adding to a statute a meaning not intended by the Legislature.”); Taunton Greyhound Assoc. Inc. v. State Racing Commission, 10 Mass. App. Ct. 297 (1980) (“We cannot substitute our views and judgment for those of the Legislature . . ..”); Druzik v. Bd. of Health of Haverhill, 324 Mass. 129, 138-39 (1949) (“It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189. If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.”); Hancock v. Commissioner of Education & Others SJC-09267 February 15, 2005 (Indeed, Chief Justice Marshall knows that “policy choices . . . are properly the Legislature's domain.” . . . The education clause itself explicitly leaves to the legislative and executive branches responsibility for determining the form and scope of its obligations. See Part II, c. 5, § 2. Where the drafters explicitly conferred authority on only two of the branches of government, we cannot ordain the third branch "overseer."); see also Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (1939) (Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the law-making department.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) (“’respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment.’ Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”); ROGERS v. TENNESSEE, ___ U.S. ___ (2001) (Scalia, J. dissenting) (“It may well be that some common-law decisions of the era in fact changed the law while purporting not to. But that is beside the point. What is important here is that it was an undoubted point of principle, at the time the Due Process Clause was adopted, that courts could not "change" the law.).
[55] CITE Massachusetts Constitution
[56] See Bratcher v. Galusha, 417 Mass. 28 (1994) (The plaintiff's request for a liberal interpretation of the statute is essentially a request that this court rewrite or ignore the plain language of the statute. We decline to intrude on the Legislature's function or to disregard the plain meaning of the statute). Such an act would be beyond the province of the Court and therefore a violation of the separation of powers doctrine. See Commissioner of Mental Health v. Gagne, 19 Mass. App. Ct. 545 (1985) (“We recognize, however, that it is beyond our province to rewrite the statute.”); Cahill v. Commonwealth, 15 Mass. App. Ct. 914. (It is not for us to assume a legislative role and rewrite the statute. [citing] Rosenbloom v. Kokofsky, 373 Mass. 778, 780 (1977)).
[57] Commonwealth v. Santos, 58 Mass. App. Ct. 701 (2003); Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999), S.C., 431 Mass. 417, 425 (2000), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).(The Court cannot disregard the legislature’s decisions in enacting statutes.); Commonwealth v. Rahim, 441 Mass. 273 (2004) (The Legislature's choice to include only "consanguinity" cannot be disregarded.); Commonwealth v. Smith, 46 Mass. App. Ct. 822 (1999) ("The scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997). We have no right to read into the incest statute "a provision which the Legislature did not see fit to put there. ..." King v. Viscoloid Co., 219 Mass. 420, 425 (1914). To do so would amount to judicial legislation, which is forbidden by art. 30 of the Massachusetts Declaration of Rights. See Justice Qua's comments in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945); Bronstein v. Prudentials Ins. Co. of America, 390 Mass. 701 (1984) (There is “no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less can [it] read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.”); General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999); King v. Viscoloid Co., 219 Mass. 420, 425 (1914).
[58] Commonwealth v. Poissant, SJC-09355 (2005) citing Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. See Civitarese v. Middleborough, 412 Mass. 695, 700 (1992) ("We will not read into the plain words of a statute a legislative intent that is not expressed by those words").
[59] Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945). (“We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with vehemence, over so called "literary censorship." With this background in mind it may not be out of place to recall that it is not our function to assume a "liberal" attitude or a "conservative" attitude. As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions. . . . . If it is thought that modern conditions require that such an exception be made, the Legislature and not this court should make it.”); Rogers v. Tennessee, ___ U.S. ___ (2001) (Scalia, J. dissenting) ("Massachusetts Chief Justice Hutchison could declare in 1767 that `laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.' It was also imperative `that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " Or, as Judge Swift put it, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion." 2 Swift 366.” quoting 1 M. Horwitz, The Transformation of American Law 1780-1860, p. 5 (1977).).
[60] Shell Oil Co. v. Revere, 383 Mass. 682 (1981) (“Our deference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature." Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring); Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”).
[61] find citation
[62] See Commonwealth v. Starling, 382 Mass. 423 (1981) (“Each of those proposals would redefine the elements of murder, eliminating the expression "malice aforethought." But that expression is embedded in our statutes. G. L. c. 265, § 1. G. L. c. 277,§ 39. See Commonwealth v. Desmarteau, 16 Gray 1, 9 (1860). Modernization of jury instructions on the subject, however desirable, would savor of statutory revision, a Legislative prerogative.”).
[63] See School Committee of Lowell v. Mayor, 265 Mass. 353 ("There is, however, a slightly different but closely analogous principle which in our opinion is a bar to the maintenance of this petition. That principle is that, where a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded. Many of our decisions illustrate the application of that principle."); Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) ("[C]hanges in prior law are necessary in any ordered society, and to argue that art. 11 prohibits alterations of common law rights as such, especially in the face of the specific provision to the contrary in art. 6,(fn10) . . .fn10 Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature;” To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 47 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”).
[64] Dalli v. Board of Educ., 358 Mass. 753 (1971), ("To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Id. at 759.)
[65] Cf. Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a superbly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He tries to explain: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[66] See Goodridge, supra
“Whether a statute is wise or effective is not within the province of courts. Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). "It is not for [a] court to judge the wisdom of legislation or to seek to rewrite the clear intention expressed by the statute.”[43] Mellor v. Berman, 390 Mass. 275, 283 (1983). "[D]eference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the 'undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.'" Lammi, supra at 300, quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977).” Commonwealth v. Leno, 415 Mass. 835 (1993). As Mr. Chief Justice Burger of the Supreme Court of the United States explained in his dissent in Furman v. Georgia, "in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."[44]
"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the court is to enforce it according to its terms."[45] The goal in statutory construction, therefore, is to ascertain the legislative intent.[46] The duty of the court is to give the statute a reasonable construction.[47] “[S]tatutory language is the principal source of the insight into legislative purpose.” Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415 (1984); see Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003). “When the words of a statute are clear, they are to be given their ordinary and natural meanings. If the meanings are unclear, the statute must be interpreted 'according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'”[48] [In addition,] ‘a statute should be read as a whole to produce an internal consistency.'[49] [Id. at 873.].”
In interpreting the legislative intent behind the marriage statute, the Goodridge Court adhered to these principles of jurisprudence regarding the construction of the meaning of Chapter 207.[50] Indeed, the Goodridge opinion accurately gleaned the legislative intent behind the enactment of the marriage statute. Very clearly the Court acknowledged that “the Legislature did not intend that same-sex couples be licensed to marry.” The Court essentially decided that the current and traditional statutory “meaning of ‘marriage’ is ‘[t]he legal union of a man and woman as husband and wife,’ Black's Law Dictionary 986 (7th ed. 1999).”[51] The court had a duty not to negate the actual legislative intent and the Goodridge Court complied with that duty (but only regarding the construction of the statute not the Constitution, as discussed below).[52] The Court found that the marriage statute does not authorize same-sex marriage stating: “We conclude . . . that G. L. c. 207 may not be construed to permit same-sex couples to marry.”
After coming to this conclusion, the Court did not attempt to change the statute.[53] Indeed, the Court could not have done so because it does not possess that authority from the Constitution.[54] The Massachusetts Constitution explicitly prohibits the judiciary from performing a legislative function.[55] The SJC does not possess the authority to change the plain meaning of a statute’s language.[56] The SJC repeatedly has acknowledged it has “no right to read into [a] . . . statute 'a provision [extending a definition] which the Legislature did not see fit to put there."[57] Similarly, the Court has stated it will not “add words to a statute that the Legislature did not put there . . ."[58] It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions.[59] These principals recognize and honor our system of separation of powers.[60] .
Abiding by their constitutionally limited powers, the four justices declared that they would “reformulate the common law meaning of marriage” in Massachusetts.[61] That action, however brazen, was legally insignificant in terms of its effect on the power granted pursuant to the statute. The act of reformulating the common law meaning did not and could not change the meaning of the term “marriage” contained within the statute.[62] The common law is not the highest but the lowest form of law and, therefore, is subordinate to legislation enacted by the representatives of the people.[63]. Clearly, then, the SJC could not enlarge the statutory language in the marriage laws to include situations never contemplated by and indeed, actions considered abhorrent behavior by the original drafters of the legislation merely by changing the “common law.”[64] Their reformulation of the definition of “marriage” under the common law could not and did not change the statute.[65] The SJC acknowledged this limitation by clearly and carefully stating that they were simply doing what they had been asked to do; which was to declare the statute unconstitutional.[66]
ENDNOTES
[43] In re Gault, 387 U.S. 1 (1967) (“[C]ourts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected. See, e. g., McLean v. Arkansas, 211 U.S. 539, 547 ; Olsen v. Nebraska, 313 U.S. 236, 246 -247.”); See also Liability Investigative Fund Effort Inc. v. Mass. Medical Professional Ins. Assoc., 418 Mass. 436 (1994) (“We conclude that the better reading of the statute is that deficit recoupment is to be governed by the plan of operation in place at the time of the recoupment. This construction effectuates the Legislature's intent. . . . Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring) ("’Every presumption is indulged in favor of the validity of a statute.’)”); Baker v. State, 744 A.2d 864, 886-88 (Vt. 1999) (“We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate . . . .”); Compare Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763, 772 (2002) (“In reviewing a regulation, a court cannot "substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals." American Family Life Assur. Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied, 464 U.S. 850 (1983). "It is not our function to consider the expediency of an enactment or the wisdom of its provisions." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 544 (1974). See Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464, 467 (1987) (where question whether any conceivable ground exists to uphold regulation is fairly debatable, court cannot substitute its judgment for that of agency).
This deferential approach "is necessary to maintain the separation between the powers of the Legislature and administrative agencies and the powers of the judiciary." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. Plenary review of administrative regulations "would have an unhealthy tendency to substitute the court for the agency as policymaker." Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 491 (1973). Administrative agencies possess expertise in their areas of specialization, and "[r]egulations are good indicators of an agency's interpretation of a statute it is charged with administering." American Family Life Assur. Co. v. Commissioner of Ins., supra at 475. Judicial deference "also precludes the possibility that a plaintiff may frustrate administrative policy merely by amassing facts, statistics, and testimony before a judge, all of which may have little or nothing to do with the legislative facts which the administrative agency relied upon in making its regulation." Borden, Inc. v. Commissioner of Pub. Health, supra at 723. "[R]espect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment." Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”).
This article does not attempt to analyze how the SJC could come to the conclusion that there was no rational basis for this statute because, while baffling, it is simply not essential to the proof which I am arguing.
[44] Furman v. Georgia, 408 U.S. 238, 383--384 (1972) (Burger, C.J., dissenting); see Mass. Const. Part I, Art. XX. (“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”); Mass. Const. Part I, Art. XXI. (“The freedom of deliberation, speech and debate, in either house of the legislature (is) essential to the rights of the people.”).
[45] Massachusetts Community College Council v. Labor Relations Commn., 402 Mass. 352, 354 (1988). See also Singer, Sutherland Statutory Construction § 46.01, at 81 (5th ed. 1992), quoting from Caminetti v. United States, 242 U.S. 470, 485 (1917).
[46] Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The plaintiffs have asked us to interpret a statute, G. L. c. 207, § 12, and we are obliged to do so in the way our Legislature intended.”); Devine v. Board of Health of Westport, No. 05-P-428 (April 14, 2006) (“We interpret a statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated ... [and] the statutory language itself is the principal source of insight into the legislative purpose." Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983). We attempt to construe the language such that all provisions will be given effect and no part rendered inoperative or superfluous. Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).”).
[47] Massachusetts Assn. of Cosmetology Schools Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706 (1996) (“Properly promulgated regulations such as the manicuring regulations are presumptively valid and are not to be declared void unless their provisions cannot by any reasonable construction be interpreted as in harmony with legislative mandate. Berrios v. Department of Pub. Welfare, 411 Mass. 587, 594--595 (1992), S.C., 414 Mass. 1004 (1993).”); Fifty-One Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 606 (1996) ("Constitutional analysis begins with a presumption of statutory validity.").
[48] Telesetsky v. Wight, 395 Mass. 868, 872 (1985); Commonwealth v. Rahim, 441 Mass. 273 (2004) (“In particular, absent clear indication to the contrary, statutory language is to be given its "ordinary lexical meaning." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Randall's Case, 331 Mass. 383, 385 (1954).”); see Goodridge v. Dept. of Public Health, SJC-08860, November 18, 2003 (“We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934)”).
[49] Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“The provisions of G. L. c. 207 "must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose." Labor Relations Comm'n v. Selectmen of Dracut, 374 Mass. 619, 624 (1978), quoting Chief of Police of Dracut v. Dracut, 357 Mass. 492, 499 (1970). See Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984) ("words of a statute must be construed in association with other statutory language and the general statutory plan"). Thus, harmony and consistency within the statutory scheme set forth in G. L. c. 207 necessitate reading §§ 11 and 12 together. See LeClair v. Norwell, 430 Mass. 328, 333 (1999) (statutory language not read in isolation).”); Telesetsky v. Wight, 395 Mass. 868, 872, 873 (1985). See also Commonwealth v. Welch, SJC-09342 (2005) (“This apparent ambiguity in the statutory language is resolved by reference to the remaining portions of the statute. See Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ("None of the words of a statute is to be regarded as superfluous ... so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature"). See also Kargman v. Commissioner of Revenue, 389 Mass. 784, 788 (1983) ("statutes should be interpreted as a whole to constitute a consistent and harmonious provision"); Commonwealth v. Adams, 389 Mass. 265, 273 (1983) (following "basic principle of statutory construction that a statute must be read as a whole").); Kobrin v. Gastfriend, SJC-09251 (2005) (“’[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' ‘ (Citations omitted.) Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253- 254 (1992), quoting Rubin v. United States, 449 U.S. 424, 430 (1981). ‘Courts are not free to read unwarranted meanings into an unambiguous statute even to support a supposedly desirable policy not effectuated by the act as written.’ 2A N.J. Singer, Sutherland Statutory Construction § 46:1, at 129 (6th ed.2000).”).
[50] Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (“The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law.”); but see Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (“Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[51] Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003)
[52] See Adoption of Marlene, 443 Mass. 494, 497-498 (2005) (additional citations omitted). Moreover, "[w]here the draftsmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction." Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983), quoting from School Comm. of Greenfield v. Greenfield Educ. Assn., 385 Mass. 70, 79-80 (1982). Courts also have a duty to "view[ ] the statutory scheme as a whole; and [to] avoid[ ] a construction which would negate legislative intent or defeat its intended utility." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. at 116-117 (citations omitted). See generally Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.App.Ct. 282, 286 (1996).
[53] Commonwealth v. Sires, 413 Mass. 292 (1992) (Fn12) (“We did not, however, redefine involuntary manslaughter.”); Gilligan v. Attorney General, 413 Mass. 14 (1992) (“[W]e did not redefine the concept of appropriation or suggest that an appropriation occurs in every situation where public monies are designated to be devoted to a specific purpose.”).
ALSO SEE DISSENTING OPINIONS THAT DON’T SEEM TO GRASP THE FACT THAT THE SJC COULD NOT LEGISLATE AND IN FACT WAS NOT DOING SO.
[54] See art. 30 of the Massachusetts Declaration of Rights ("the judicial shall never exercise the legislative and executive powers, or either of them"); see also Mitchell v. Mitchell, 312 Mass. 154 (1942) (“If the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it by including the omitted case would be tantamount to adding to a statute a meaning not intended by the Legislature.”); Taunton Greyhound Assoc. Inc. v. State Racing Commission, 10 Mass. App. Ct. 297 (1980) (“We cannot substitute our views and judgment for those of the Legislature . . ..”); Druzik v. Bd. of Health of Haverhill, 324 Mass. 129, 138-39 (1949) (“It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189. If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.”); Hancock v. Commissioner of Education & Others SJC-09267 February 15, 2005 (Indeed, Chief Justice Marshall knows that “policy choices . . . are properly the Legislature's domain.” . . . The education clause itself explicitly leaves to the legislative and executive branches responsibility for determining the form and scope of its obligations. See Part II, c. 5, § 2. Where the drafters explicitly conferred authority on only two of the branches of government, we cannot ordain the third branch "overseer."); see also Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (1939) (Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the law-making department.”); Mass. Federation of Teachers v. Bd. of Education, 436 Mass. 763 (2002) (“’respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment.’ Id., quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).”); ROGERS v. TENNESSEE, ___ U.S. ___ (2001) (Scalia, J. dissenting) (“It may well be that some common-law decisions of the era in fact changed the law while purporting not to. But that is beside the point. What is important here is that it was an undoubted point of principle, at the time the Due Process Clause was adopted, that courts could not "change" the law.).
[55] CITE Massachusetts Constitution
[56] See Bratcher v. Galusha, 417 Mass. 28 (1994) (The plaintiff's request for a liberal interpretation of the statute is essentially a request that this court rewrite or ignore the plain language of the statute. We decline to intrude on the Legislature's function or to disregard the plain meaning of the statute). Such an act would be beyond the province of the Court and therefore a violation of the separation of powers doctrine. See Commissioner of Mental Health v. Gagne, 19 Mass. App. Ct. 545 (1985) (“We recognize, however, that it is beyond our province to rewrite the statute.”); Cahill v. Commonwealth, 15 Mass. App. Ct. 914. (It is not for us to assume a legislative role and rewrite the statute. [citing] Rosenbloom v. Kokofsky, 373 Mass. 778, 780 (1977)).
[57] Commonwealth v. Santos, 58 Mass. App. Ct. 701 (2003); Commonwealth v. Smith, 46 Mass. App. Ct. 822, 826 (1999), S.C., 431 Mass. 417, 425 (2000), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).(The Court cannot disregard the legislature’s decisions in enacting statutes.); Commonwealth v. Rahim, 441 Mass. 273 (2004) (The Legislature's choice to include only "consanguinity" cannot be disregarded.); Commonwealth v. Smith, 46 Mass. App. Ct. 822 (1999) ("The scope of the authority of [an appellate] court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S. 1131 (1997). We have no right to read into the incest statute "a provision which the Legislature did not see fit to put there. ..." King v. Viscoloid Co., 219 Mass. 420, 425 (1914). To do so would amount to judicial legislation, which is forbidden by art. 30 of the Massachusetts Declaration of Rights. See Justice Qua's comments in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945); Bronstein v. Prudentials Ins. Co. of America, 390 Mass. 701 (1984) (There is “no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less can [it] read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.”); General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999); King v. Viscoloid Co., 219 Mass. 420, 425 (1914).
[58] Commonwealth v. Poissant, SJC-09355 (2005) citing Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. See Civitarese v. Middleborough, 412 Mass. 695, 700 (1992) ("We will not read into the plain words of a statute a legislative intent that is not expressed by those words").
[59] Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945). (“We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with vehemence, over so called "literary censorship." With this background in mind it may not be out of place to recall that it is not our function to assume a "liberal" attitude or a "conservative" attitude. As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions. . . . . If it is thought that modern conditions require that such an exception be made, the Legislature and not this court should make it.”); Rogers v. Tennessee, ___ U.S. ___ (2001) (Scalia, J. dissenting) ("Massachusetts Chief Justice Hutchison could declare in 1767 that `laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.' It was also imperative `that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " Or, as Judge Swift put it, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion." 2 Swift 366.” quoting 1 M. Horwitz, The Transformation of American Law 1780-1860, p. 5 (1977).).
[60] Shell Oil Co. v. Revere, 383 Mass. 682 (1981) (“Our deference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature." Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring); Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (“An act of one branch of government does not violate art. 30 unless the act "unduly restrict[s]" a core function of a coordinate branch. See id. "The essence of what cannot be tolerated is the creation of interference by one department with the power of another department." New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).”).
[61] find citation
[62] See Commonwealth v. Starling, 382 Mass. 423 (1981) (“Each of those proposals would redefine the elements of murder, eliminating the expression "malice aforethought." But that expression is embedded in our statutes. G. L. c. 265, § 1. G. L. c. 277,§ 39. See Commonwealth v. Desmarteau, 16 Gray 1, 9 (1860). Modernization of jury instructions on the subject, however desirable, would savor of statutory revision, a Legislative prerogative.”).
[63] See School Committee of Lowell v. Mayor, 265 Mass. 353 ("There is, however, a slightly different but closely analogous principle which in our opinion is a bar to the maintenance of this petition. That principle is that, where a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded. Many of our decisions illustrate the application of that principle."); Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) ("[C]hanges in prior law are necessary in any ordered society, and to argue that art. 11 prohibits alterations of common law rights as such, especially in the face of the specific provision to the contrary in art. 6,(fn10) . . .fn10 Part II, c. 6, art. 6, of the Massachusetts Constitution provides: "All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature;” To uphold the third-party plaintiffs' argument would be tantamount to placing "certain rules of the 'common law' ... above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law." Freezer Storage, Inc. v. Armstrong Cork Co., 47 Pa. 270, 281 (1978), quoted with approbation in Klein v. Catalano, 386 Mass. 701, 713 (1982).”).
[64] Dalli v. Board of Educ., 358 Mass. 753 (1971), ("To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Id. at 759.)
[65] Cf. Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006) (With a superbly ignorant understanding of the separation of powers, Judge Ireland explains that even though the SJC did not construe Chapter 207 to permit same-sex marriage, the SJC reformulated the meaning of that word, thus, changing the marriage statute. He tries to explain: “Rather than strike down the marriage laws, however, we redefined the common law and "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. . . . We did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be "construed to permit same-sex couples to marry. . . . Moreover, because Goodridge's discussion of marriage was based on ‘the undefined word 'marriage' as used in G. L. c. 207,’ id. at 319, it logically follows that Goodridge's redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207).”).
[66] See Goodridge, supra
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