Despite their logo 'Justice for All'....

The Greater Boston Legal Services submitted an opposition to the two initiative petitions on promoting shared parenting and ensuring due process rights under abuse  protection orders. The petitions (#s 18 and 19) can be found here: http://www.mass.gov/ago/government-resources/initiatives-and-other-ballot-questions/current-petitions-filed.html

The main points of the Legal Services' letter in opposition, below, are at the end - following the cut and paste 'Legal Background'. Their absurd argument is that a presumption of shared parenting and ensuring due process would curtail the power of the courts. They also misstate the intent of the petitions. Regarding due process, for example, they claim jury trials are mandated. Instead, as is routine under civil law, the option for a trial by jury would be available. Simlarly, the statement that a presumption of shared parenting will 'hobble' the courts is baseless hyperbole.

If you support shared parenting and due process rights your help is needed. Though the Legal Services'  arguments are flawed the organization's close working relationship with many state government agencies likely means its position on the issues may be given undeserved weight.

Please comment in support of the petitions. It should be submitted to 'William Cowin  of the Mass. Attorney General's office at william.cowin@state.ma.us'. Letting Greater Boston Legal Services know that their opposition is destructive to stable families is also appreciated.

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August 16,2013
Martha Coakley, Attorney General
Office of the Attorney General
One Ashburton Place
Boston, MA 02108-1698

Re: Initiative Petition No. 13-19 Relative to M.G.L. c. 209A; and Initiative Petition No. 13- 18 Relative to Shared Parenting

Dear Attorney General Coakley:
Greater Boston Legal Services submits this letter in response to the invitation by the
Office of the Attorney General to interested parties to comment on whether the above-referenced initiative petitions meet the requirements of Amendment Article 48 of the Massachusetts Constitution. As explained below, we believe that the petitions relate to the powers of courts under Amend. Art. 48, Init., Pt. 2, 5 2, and are therefore matters excluded from the Initiative.

LEGAL BACKGROUND

Article 48 of the Amendments to the Constitution of the Commonwealth ("Article 48")
provides, in relevant part, that the legislative power "shall continue to be vested in the general court; but, the people reserve to themselves the popular initiative, which is the power of the specified number of voters to submit constitutional amendments and laws to the people for approval or rejection." Art. 48, pt. 1, Definition.

However, Article 48 specifically provides: "No measure that relates . . . to the powers,
creation or abolition of courts . . . shall be proposed by an initiative petition." Art. 48, Init., pt. 2,5 2. Thus, such measures are specifically excluded from the initiative process. The provisions of Article 48 are mandatory, and initiative petitions must strictly adhere to the constitutional requirements. Opinion of the Justices to the House of Representatives, 422 Mass. 1212, 1219
(1996).

The Supreme Judicial Court has construed the "powers of courts" exclusion as
"prohibiting petitions whose "main purpose" or "design" is aimed to affect the general or
specific powers of courts," Mazzone v. Attorney General, 432 Mass. 515,520 (2000). Laws1 ruled to be excluded on this basis have "dealt exclusively and explicitly with the power to decide cases or enforce decisions," Albano v. Attorney General, 437 Mass. 156, 159 (2002), such as (1) a statute empowering the Superior Court to grant a motion for a new trial at any time before sentencing, Commonwealth v. Sacco, 255 Mass. 4 10-4 1 1 (1 926); (2) a statute establishing the courts' long-arm jurisdiction, Kanan v. United Vacuum Appliance Corn., 357 Mass. 680,682
(1970); (3) a statute granting the Chief Administrative Justice of the Trial Court the authority to consolidate related custody and adoption actions brought initially in different trial courts, Custody of a Minor (No. 11,391 Mass. 572,578-79 (1984); and (4) a statute broadening the procedural circumstances under which witnesses may be granted immunity, Commonwealth v. Dalrymple, 428 Mass. 1014, 1015 & n.3 (1998).
In contrast, a petition is not an excluded matter if its "main purpose" is not to affect the powers of courts and instead it affects the powers of the courts only "in an incidental or subsidiary way." See, e.g., Horton v. Attorney General, 269 Mass. 503,511 (1929) (petition creating automobile insurance fund not excluded); Cohen v. Attorney General, 354 Mass. 384,
387 (1968) (petition reducing size of House of Representatives not excluded), Commonwealth v. b, 361 Mass. 533,537 (1972) (petition revising state's controlled-substance laws not excluded); Mazzone v. Attorney General, 432 Mass. at 519-522 (2000) (petition expanding scope of state's drug treatment program not excluded); Albano v. Attorney General, 437 at 159-
160 (petitions proposing to change the substantive law that the courts enforce are not excluded matters but petitions dealing with the court's power to decide its cases or enforce its decisions are excluded matters).

PETITION 13- 19
This initiative petition would require a trial by jury in proceedings brought pursuant to G.L. c. 209A (the Abuse Prevention Act). The exclusive purpose of this petition is to entirely divest all Massachusetts state courts' powers to decide any and all cases involving the protection of individuals from abuse and relegate that power to individuals who are not judges. It does not propose a change in the substance of c. 209A. Thus, its effect on the courts is neither "incidental" nor "subsidiary," Mazzone, 432 Mass. at 521. Requiring a jury trial in these proceedings would constrain the court's power to hear cases and direct the proceedings and would impact the court's
exercise of discretion in civil matters. Since this petition aims to restrict the powers of the courts and has no other purpose, certification should be denied.

PETITION 13- 18
This initiative petition would amend all laws regarding custody of children to create a
presumption of joint physical and legal custody in "all court cases concerning child custody." Such a law relates expressly and directly to the powers of courts since it aims to lessen the court's power and discretion and alters court proceedings as to such matters. It is nearly black letter law that the governing principle in custody matters, is the welfare of the child and is a subject that is within the sound discretion of the trial judge. Ardizoni v. Raymond, 40 Mass.App.Ct. 734 (1996). This petition hobbles the authority of the courts to make custody decisions. As such, certification should be denied.

More generally, each of these petitions includes declaratory language, to wit: "The citizens of Massachusetts intend under state law that.. . .". Assuming that this language is intended to be binding and not merely precatory, the petitions do not propose "a law" and should not be certified for that reason. Paisner v. Attorney General, 390 Mass. 593,600-01 (1983).

Finally, unlike the petition at issue in Albano, no governmental agency other than the court has any powers of enforcement under these petitions. These proposals are therefore subsidiary to and merely support the main purpose of both petitions, which is to limit the court's powers to enter abuse prevention orders and to curtail the courts' discretion to make custody decisions.

CONCLUSION
Since both initiative petitions exclusively and explicitly relate to the powers of the court, the Attorney General should reject them as excluded under Amend. Art. 48, Init., Pt. 2, 5 2.

Patricia A. Levesh
Managing Attorney
Family Law Unit
6 17-603- 1550
plevesh @gbls.org