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Massachusetts GOP Seeking Injunction To Stop Senate Appointment
Sen.-designate Paul Kirk (D-MA)
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The Massachusetts Republican Party has gone to court in an attempt to stop the appointment of Paul Kirk to the late Ted Kennedy's Senate seat.
The issue here, the GOP claims, is that Gov. Deval Patrick did not have the constitutional authority to declare the bill empowering him to make an appointment to be an emergency law, thus having it take effect immediately. (For more background on this issue, check out this interview I did a few days ago with a GOP state Senator.)
It's not clear how much chance of success they have. As the Boston Herald points out, Kirk is scheduled to be sworn in tomorrow. The state GOP's filing was made this morning, and so far the courts have not responded. But if the courts do end up taking the case, it could have the effect of delaying the appointment, or perhaps even stopping it altogether.
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JohnMcCSF
September 24, 2009 2:47 PM
Kudos!
Kleefeld kalled it
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mans_best_friend
September 24, 2009 2:49 PM
Do we HAVE to go through all the Art I Sec 5 bit again? Once the Senate accepts his credentials and he's sworn in, it's over. No court is going to touch it.
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Schmed
September 24, 2009 2:54 PM in reply to mans_best_friend
It seems as though there's ample precedent for Patrick's "emergency" declaration, but the Senate has to wait until the appointment is certified. If there's ongoing litigation, I suspect the Attorney General (who's running for the seat herself) will have to hold off until the court issues some kind of ruling.
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Schmed
September 24, 2009 2:55 PM in reply to Schmed
Oops, I meant the Sec. of State, who's not running for anything right now.
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JohnMcCSF
September 24, 2009 2:56 PM in reply to Schmed
No the Secty of State has no power to withhold certification unless the court enjoins him.
Look for a TRO before the day is out.
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Schmed
September 24, 2009 2:58 PM in reply to JohnMcCSF
This should get interesting!
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fpie
September 24, 2009 3:11 PM in reply to Schmed
Aren't we just bloody sick of 'interesting' situations in seating US senators?
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Schmed
September 24, 2009 3:16 PM in reply to fpie
Yup. I'm bloody sick and tired of the whole last 8 months of Republican withdrawl dementia.
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Schmed
September 24, 2009 3:01 PM in reply to JohnMcCSF
Looks like Galvin isn't going to put the brakes on this: "It's very clearly available to the governor under the Constitution," said Secretary of State William F. Galvin. "I don’t know how you suggest this is something novel, it's not."
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shooter242
September 24, 2009 2:52 PM
OMG, make the Democrats follow the rule of law they enacted? What a novel idea.
Keep up the good work.
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Dorn76
September 24, 2009 3:08 PM in reply to shooter242
Which "rule of law" is so cut and dry in this case, in your opinion?
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sagesource
September 24, 2009 3:41 PM in reply to shooter242
Republicans get upset when they think Democrats are cheating not because of ethics, but because they don't want any competition. If it were ethics, they would be a bit cleaner themselves.
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JNagarya
September 28, 2009 1:59 AM in reply to shooter242
That's what they are doing.
But you wouldn't know that: you are a Repbulican, ergo you reject the rule of law, ergo, there's no need for you to know the actual contents of the law.
That leaves you free to be a knee-jerking jerk.
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JohnMcCSF
September 24, 2009 2:52 PM
I should think that if there is any reasonable chance that the challenge to the emergency declaration has merit, that a TRO will issue
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human
September 24, 2009 3:20 PM in reply to JohnMcCSF
not gonna happen, keep dreaming. History indicates that such "emergencies" have been declared in the past.
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Tulkinghorn
September 24, 2009 3:39 PM in reply to human
I think the question has to do with who can claim the emergency. My familiarity with this issue comes from a lot of time reading the MA code - the declaration of emergency is usually written into the text of the law itself. I have not seen a copy of the statute to see if this does this.
Still, the statute does not make sense except to be passed under emergency status, and I don't think there is any case law that restricts the governor from having anything but full discretion for claiming emergency status for a statute that is set up to be valid that way.
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merlot
September 24, 2009 5:00 PM in reply to Tulkinghorn
In MA, the legislature can designate a bill as emergency legislation to avoid the 90-day delay OR the governor can designate an emergency to avoid the 90-day delay. These are two separate powers constitutionally granted to two separate branches of government. There's little case law on the issue of the executive designating an emergency and it would appear that the governor has a pretty free hand in doing so. In addition, there is a serious question as to whether the MA GOP has standing to file suit.
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Tulkinghorn
September 24, 2009 5:28 PM in reply to merlot
Hey- you sound (and look a bit) like my Con Law prof from a few years ago. If so, I hope you are enjoying your sabbatical.
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JNagarya
September 28, 2009 2:03 AM in reply to merlot
The MA Republicans we apparently claiming "irreparable harm" to the Republican party, in violation of the constitution.
The appear to forget -- they actually ignore -- that the constitution protects ALL citizens, not only Republicans; and that the vast majority of the MA electorate is Democratic.
The lawyer arguing the "case" before the court immediately wrapped a shit-eating grin around her face because incapable of pretending she didn't know that the "case" is out-and-out horseshit.
Judge said: "Buh-bye!"
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JohnMcCSF
September 24, 2009 2:54 PM
The cost to the Republicans?
They look pretty shabby. Gee they probably won't win the seat next year
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Schmed
September 24, 2009 2:56 PM in reply to JohnMcCSF
SSDD
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fkaZk0sm0
September 24, 2009 3:06 PM in reply to JohnMcCSF
of course, they never had a chance. so they've really got nothing to lose.
this is just the sequel to quimby's recent adventure in minnesota. that supposed 60th vote in the senate is too important to not sue somebody over.
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Schmed
September 24, 2009 3:14 PM in reply to fkaZk0sm0
Plus they get to thump their chests at election time, noting how they tried to keep the Dems from making a mockery of the law whenever it suited them. They'll keep their seats, the Dems will keep theirs, life (surreal as it is) in the Commonwealth goes on as usual.
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Frog Leg
September 24, 2009 2:58 PM
To have their claim heard, they need to show standing, that they have suffered an injury-in-fact which the courts can remediate. The case will fail on these grounds--they won't reach the merits. They can't prove an injury caused by a 90 day schedule change. No way.
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Schmed
September 24, 2009 3:06 PM in reply to Frog Leg
They lost already: their claim is voter disenfranchisement. The election is still on, so the voters are covered.
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JohnMcCSF
September 24, 2009 3:28 PM in reply to Frog Leg
That's a good point
But I assume there is a real live voter also in the caption
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JohnMcCSF
September 24, 2009 3:33 PM in reply to Frog Leg
prq.sagepub.com/cgi/content/refs/38/1/84 - Similar -
That's ME!
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CT Voter
September 24, 2009 3:39 PM in reply to JohnMcCSF
What's it mean, in non-lawyer speak?
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JohnMcCSF
September 24, 2009 3:48 PM in reply to CT Voter
It means that the court won't even consider the request for a preliminary injunction or TRO if at the hearing tomorrow it concludes that the State GOP is not really injured by the Governor's declaration that the legislature's enactment fell under the emergency provision of the constitution
This is the same doctrine (along with the "political question" rule) that the Courts have used to dump birther suits
Frog Leg has a good point. The Court may throw it out summarily without considering whether the GOP has a chance of prevailing on the merits or is likely to suffer irreparable injury
They can't show they'd suffer ANY injury
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Tulkinghorn
September 24, 2009 3:59 PM in reply to JohnMcCSF
Judge Thomas Connelly is nobody's activist. I once brought a somewhat speculative case in his court and I did not last long. Dismissal was remarkably prompt. I expect we will see that happen tomorrow, too.
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JohnMcCSF
September 24, 2009 4:01 PM in reply to Tulkinghorn
I am pissed I didn't think of standing...cause the more I do, the less they have
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Tulkinghorn
September 24, 2009 4:10 PM in reply to Tulkinghorn
--Now I remember where else I heard of him. Connolly heard the original Superior Court claim on Goodridge, the MA gay marriage case. He issued (surprise) summary dismissal of the plaintiffs, and was overturned by the SJC.
So it is not just my imagination, or resentment over my ill-fated ventures in his court. He will dismiss this case if there is no clear remedy allowed under the law.
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Schmed
September 24, 2009 4:22 PM in reply to Tulkinghorn
He also ruled that RI law didn't prohibit same sex marriage, so RI residents of the same sex could legally marry in MA. He seems very thorough.
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CT Voter
September 24, 2009 4:14 PM in reply to JohnMcCSF
Thank you!
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merlot
September 24, 2009 5:02 PM in reply to Frog Leg
Exactly!
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SP
September 24, 2009 3:06 PM
Halfway to what I predicted- I said that the GOP would file suit, and that the Congressional Republicans would then filibuster seating the replacement on the grounds that there was pending litigation (never mind that they are the cause of that pending litigation.)
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mcc
September 24, 2009 3:07 PM
I still would like to see explained, if there's anything even remotely questionable about the governor writing an emergency letter then what's up with this stuff I'm finding about the governor in 1994 signing "an emergency letter so that principals may be fully authorized to effect school discipline decisions when schools reopen in September 1994"?
I'd be curious to know more about how the MA governors have used this power in the past.
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lamonth
September 24, 2009 3:12 PM
it is amazing how hard the gop is willing to fight for the insurance industry. incredible. i should say it is amazing how hard politicians are willing to fight for the insurance industry because dems are there too. the insurance industry is like the old tobacco lobby before they were defeated by their own greed
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jeffgee
September 24, 2009 3:12 PM
Maybe they can find an activist judge to help them in in another facet of their all-out effort to kill health care reform by any means possible.
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Schmed
September 24, 2009 3:18 PM in reply to jeffgee
Activist judge. Massachusetts. Gay marriage. GOP lawsuit.
Oh, the irony.
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31tudor
September 24, 2009 3:14 PM
Well, it looks like the "Party of NO" is busy again.
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Dorn76
September 24, 2009 3:21 PM
The National GOP could take some real lessons from their Mass. counterparts on how to best achive Rump Party status.
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ivy22
September 24, 2009 3:21 PM
Running the "Let's not seat, Franken" playbook in Massachusetts. If it was good enough for Minnesota, let's deny MA citizens their representation. We are the party of NO.
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JohnMcCSF
September 24, 2009 3:29 PM
Kleefeld is GOD
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human
September 24, 2009 3:45 PM in reply to JohnMcCSF
and you're a loser.
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JohnMcCSF
September 24, 2009 3:50 PM in reply to human
Because Kleefeld is indeed the Alpha and Omega, the Beginning and the End, we are all losers
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JohnMcCSF
September 24, 2009 3:58 PM in reply to JohnMcCSF
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twoviragos
September 24, 2009 4:11 PM in reply to JohnMcCSF
I am not a loser, I am a geek. BIG DIFFERENCE!
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human
September 24, 2009 3:49 PM
regardless of standing, the governor has the authority, Kirk is seated tomorrow, and the GOP can go pound sand--along with any other defeatist losers.
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JohnMcCSF
September 24, 2009 3:54 PM in reply to human
Beck - Loser (Live 2003)
http://www.youtube.com/watch?v=-l3_gwIOTGI
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SP
September 24, 2009 4:14 PM
"Massachusetts GOP Seeking Injunction"
All four of them?
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neesy08
September 24, 2009 8:16 PM
I think Kirk will be sworn in. None of the GOP stall the tactics have worked. Call me an optimist!
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