-: SJC 13071 Salvato F de Macy
B William F Galvin, Secretary of the Commonwealth.
-: Okay. Attorney Green.
-: Good morning, Your Honors.
May it please the court
Assistant Attorney General, Julie Green
for the Secretary Galvin.
Chapter 3, Section 45-M was
enacted as part of a sweeping reform of the public integrity
statutes that was intended to restore public confidence
in the legislative process by strengthening the laws
relating to lobbying ethics and campaign finance.
Section 45-M furthers that purpose by preventing individuals
convicted of certain felonies relating
to the legislative process from acting as paid lobbyists
for a period of 10 years.
But the narrow construction given that statute
by the superior court would undermine that purpose
and deprive the people of Massachusetts
of the substantial benefits provided by that statute
by excluding from the statute, serious criminal convictions
for no other reason
than that, they were prosecuted in a different
jurisdiction.
-: Why shouldn't we just
We just look at the plain meaning of the statute and look
at what the statute says and interpret that?
-: Because the statute is ambiguous as it is
as the superior court itself recognized.
The cannons of statutory construction point
in two opposing directions here;
either interpretation suffers
from sort of unsatisfying elements.
The superior court emphasized
that the narrow reading has a significant problem
which is that it would entirely read out of the statute
the reference to felonies in violation of chapter 55
because there are no felonies under chapter 55.
That was true today.
It's true today.
And it was true also in 2009, when section 45-M was enacted.
In fact, the best illustration of the very serious problem
that reading causes is the superior court's own discussion
at page 10, page 69 of the addendum
where the superior court characterizes that problem
as an even more absurd result
than the result caused by the broader reading
given by the secretary. Where it says...
-: So, I mean, it's clearly an error by the legislature
but does that also mean that
if someone is convicted of bribery in Nebraska
(Interruption in dialogue)
-: Simply due to the happenstance that they were prosecuted
by federal authorities or that the individual was living
in Nebraska at the time that they committed the bribery?
I also want to...
-: Is that really a realistic appraisal of this?
When you read it as a whole, when you read this statute
as a whole, we also have to take into account
the Secretary had discretion previously, right?
and they eliminated that, right?
-: That's correct.
-: And they don't reference the like offense language
and it's sort of consistently protective
of legislators who get in trouble.
It has a narrow reading it's limited to the state statutes.
It doesn't reference statutes in general.
It removes the Secretary's discretion as before.
I mean, it seems to be a pro legislature
a pro-convicted legislature statute rather than broadening.
It's a narrowing.
-: I want to make sure I understood the question.
So correct me if I'm misunderstood.
-: Let me rephrase it a little bit.
This seems to be consistently narrow.
It removes the discretion
of the Secretary that previously exists.
It references only state statutes, not other statutes.
And you can see
that the legislature may be protective of its own here.
-: I would say there's no basis for a conclusion
that the legislature was trying to be protective
of convicted legislators.
I think the opposite is true.
Here's what I think we know from the legislative history.
It was clear the legislature intended to remove discretion
by making disqualification automatic
upon a finding of a predicate conviction.
-: Right? So let me let, just push back.
They also narrowed in the past
the Secretary had almost unlimited discretion.
Here, they referenced three particular state statute.
-: Yes, but what they referenced were felonies
in violation of three state statutes.
And the question is how to make sense of that reference
where the narrow reading...
-: That's even more protective of the legislature
because it's saying I'm only gonna disbar you for 10 years
if you violate the felony provisions
of these particular statues. In certain ways
it's a sheep in wolf's clothing here, isn't it?
-: It's... all that change tells us is that the legislature
was not looking to penalize all felony convictions
regardless of whether they had anything to do
with the legislative process or not.
That was the earlier amendment that was proposed
in the morning and rejected.
Rather, the legislature was looking to penalize felonies
that are related to the legislative process.
And I think that's all that history can tell us.
-: But, they're trying to take discretion
out of the Secretary of State's hands, correct?
Where prior to this had discretion
would you agree with that?
-: I wouldn't agree with it in full.
I think it was discretion as to what to do once
a predicate violation was found, but they weren't...
-: Beforehand.
-: I think there are two steps to the analysis.
Let me try to answer your question.
There are two steps to the analysis
finding the predicate violation conviction
and then what result to impose.
They were clearly trying to remove discretion
at the second step.
Once you find the conviction, you must disqualify
but that doesn't tell us
that they were removing all human interpretation.
-: But now they changed that to say, if there's a violation
of these statutes
it's automatic, you don't get to pick and choose.
-: That's correct.
-: But when we have the situation where it's an out
of state or federal violation, the Secretary
of State in essence gets to pick and choose.
-: I disagree.
-: By making it a like offense
which you read into the statute.
-: I disagree.
-: Right? Tell me why.
-: Two reasons:
There's no picking and choosing as
to what to do once the conviction is found...
-: Okay, let's use my hypothetical Nebraska bribery case.
-: So then in that case, there's also
there's no discretion as to there's no discretion.
What there is, is there's an act
of analysis to compare the Nebraska elements
of the crime with the state elements.
So in this case...
-: But who does that?
-: That that's done by the Secretary.
That's not discretion though.
That's an act of interpretation.
It's a construction of law that is subject
to judicial review and reversal.
If it's an erroneous interpretation of law
very different from discretion.
-: That's certainly different from automatic, isn't it?
-: No, I disagree because automatic refers to what
the Secretary does
upon a legal conclusion that the two crimes are like or
equivalent.
-: Whenever that happens in the rest of the criminal in law
OUI is the prime example with domestic violence.
It's a like offense, right?
Sex offender cases as well to sexual offenses.
That's a process that they make the executive
go through.
Here, we don't have that
or you're reading it into the statute essentially
-: But I think that's implicit in the statute.
And it's the only way honestly, to make it...
-: It's only implicit to the extent that the section
the chapter 55 felony provision is in there.
That's what you're really hanging your hat on.
-: It's it's one of my two central arguments about...
-: What's the other one?
-: And the other one is that it would tend
that the narrow reading tends to defeat the purpose
of the statute by excluding a whole swath of crimes where
there's no evidence, the legislature
intended to exclude them.
-: Have we ever said the legislature just
had a drafting error?
-: I think the court is forced to conclude that under
either the narrow or the broad reading that clearly
the reference, if you give it the narrow reading urged
by the superior court found by the superior court
you have to conclude
that the reference to felony is a drafting error.
If you get the broad reading by
-: or the reference to chapter 55 is the drafting error
because there are no felonies in 55.
-: That's right. That's possible.
Alternatively, there's a drafting error or
at least an imprecision in the reference to only
state statutes and not like convictions
in other jurisdictions.
What you have is two opposing.
I mean, you have cannons of statutory interpretation
each pushing in opposite directions.
You clearly have problems in either construction.
-: Can push back on that a little?
The legislative history is important
and they didn't use the language
about the equivalent federal state crimes.
And there's the issue of chapter 55 in the felonies.
But if we go back to the first question
that Chief Justice Budd asked, what about just the language?
I mean, do we have to go
beyond just the language, the Secretary
of State shall automatically disqualify any person convicted
of... convicted of what?
Convicted of what? What do they say? Convicted
of a felony in violation of chapter three
chapter 55 or chapter 68a. That's it, that's what they say.
Why is it so hard to interpret that?
-: Because the interpretive process doesn't end
with the simple language of the statute.
The court has repeatedly said
and I think most obviously in the Montarbo decision cited
in our reply brief that the determination
of whether a statute is ambiguous looks first looks
at the plain language, but also
at the statute as a whole and at the statutory purpose
-: Probably, we were able to juxtapose another section to
make it absolutely clear that the plain language was wrong.
When you juxtaposed it with another section
it was clear that it wasn't a mandatory minimum.
Here there's nothing to juxtapose this against.
It's just saying violations of these specific felonies.
End of story.
-: Well, let me give you a different answer
which is, I think this court has repeatedly
recognized, implicitly, that language, just
like this is susceptible both of narrow and broad readings
and here I'd point you to Calados
in which the court labored hard to determine
that that statute was penal.
So the opposite of this situation, and from that
it concluded that it had to give similar language
a narrow construction limited only
to the literal listed statutes.
And this court has repeatedly confirmed three times
that what Calados did was it gave a narrow reading
to that statute.
So Bonomo, Gaffney, Bulger.
The court said that was the narrow reading. Implicit though
in the notion of a narrow reading
is that a broader reading was possible.
So that's our position here, here at
both a narrow and a broad reading are possible.
And what pushes in the direction of a broad reading here is
that the purposes reform, not penalty and
that the Secretary was charged in the first instance
the legislature charged the Secretary
as part of this reform package
with interpretive power over the lobbying laws
and the Secretary's interpretation is reasonable
in the face of ambiguity.
-: Okay. Thank you.
-: Thank you very much.
-: Attorney Fierro.
-: Chief justice Budd and
may it please the court Meredith Fierro on behalf
of the appellee.
Your honors section 45-M means what it says.
-: Okay. Let's talk about chapter 55 in the felony.
Does that make it ambiguous?
And is it a drafting error or do we give meaning
to everything a statute says and therefore it's ambiguous
-: Chapter 55 was clearly the reference was clearly
an oversight by the legislature.
That's the only realistic possibility.
-: Have we done that in our statutory interpretation?
There's been..
-: We have lots of cases where we say, well,
we're kind of stuck.
We have to give meaning
to everything the legislature says.
Have we ever said, well this is just
completely wrong and a drafting error.
-: Yes. In Commonwealth vs Brown 431 Mass 772, a 2000 case.
The court said "the problems
with this amendment were simply the result
of a legislative oversight one we cannot remedy.
We interpret that portion of the statute that
applies to the offense before us in accord with
the plain language the legislature used and
accord with similar provisions in other statutes."
And it's important to remember
it's not this court's reading of section 45-M
that makes the reference a chapter 55 superfluous.
It it's just inapplicable because of that
mistake by the legislature.
There's no reason that the legislature would
include that reference
knowing that it contained only misdemeanor.
So it's the only option is that it's an oversight.
So the best reading of the statute that does
not read words out the statute or insert words
into the statute and do violence to it, as the
Secretary seeks to do, is simply to construe it
according to its plain language.
And if the legislature wants automatic
disqualification to apply to misdemeanors in chapter 55,
it can amend the law.
And what the Secretary is really attempting to do here
in this case is to reclaim discretion.
The legislature took away
by injecting ambiguity into an unambiguous statute.
The statute specifically enumerates the three state
laws that automatically trigger, that automatically
trigger disqualification of a lobbyist for 10 years.
And as was discussed with my sister
the statute does not contain the word conduct.
It says nothing about like offenses.
It doesn't reference the United States code.
It doesn't use the phrase "violations
of state or federal laws"
which the legislatures use in other statutes.
And it says nothing about public corruption crimes.
And as this court...
-: I agree with you on that.
The question I have for you relates to the Attorney
General's sort of bigger picture
which is the legislature characterize this as a reform
designing to increase protections
against this type of lobbying by convicted officials.
But it seems like they did the opposite.
They narrowed who's covered.
And to such an extent
it it's actually providing much less protection
than the law before it.
-: Well, I think it makes sense that you can construe it
in two ways.
First, you can construe the legislature's action
that the reason that they made disqualification triggered
by violations of those three statutes is that those were
the three statutes that the law was the 2009 law
legislation was aimed at reforming.
I think it was called an Act to Improve the Laws Related
to Lobbying, Campaign Finance, and Ethics.
And by limiting automatic disqualification
to those three laws, one could argue that they were
encouraging prosecutions to be brought the state
level rather than the federal level.
Another way of looking at it, as I think Your Honor
may have alluded to, is one could look at it
as have an element of political theater
but either way, this court's role is to construe the text
according to according to how it's written
and to effectuate legislative intent.
And you don't look at legislative intent by the kind
of broad in a broad way that the Secretary is
asking you to, do you look at what did the legislature
actually do?
And they did narrow the law. Prior to 2009
the Secretary had broad discretion to disqualify anyone
from registering as lobbyist for cause shown very
similar to conduct and the legislature, when it
reconsidered that law removed that discretion
made disqualification automatic and triggered by convictions
under one of these three state statutes.
So it's clear what the legislature
was intending to do with those
-: So they actually, they essentially create a 10 year ban
that only applies two statutes and only felonies
under those two statutes substantially cutting back
on the prior ban.
I understand that's maybe what they intended
but it is somewhat concerning
that a statute that was meant to protect
against this type of activity actually facilitated it.
-: Sure, your honor, I'm sorry
-: But in context, they also completely overhauled
and tightened the lobbying registration requirements
and restrictions against the lobbying, correct?
-: Correct, your honor.
And they also increase the penalties for violations
of the lobbying law from misdemeanors
to felonies, and same with the ethics law
-: That cuts against the restriction
that the Trojan horse that's being argued here.
-: I mean, there's no requirement
that we agree necessarily with what the legislature did.
That's a policy judgment, that's for the legislature.
It's not for the Secretary.
And if the legislature decides that it's absurd
as a Secretary contends not to include federal convictions
or convictions in other states, it can amend the law.
And in fact, it recently considered doing just
that this past legislative session
Senator Becca Roche filed a bill Senate bill 2110
titled an Act Closing the Loophole in the Lobbying
Law that would've extended automatic disqualification
not just to felony convictions under chapter 3 55 and 268-A
a but also to any person convicted of any other state
or federal felony crime of political corruption
including without limitation violations
of sections 1341, 1343, 1346, 1951
of title 18 of the United States code.
So clearly the legislature knows how to
use this language again, when it intends to do so.
And you know, what happened
to that legislation? It was sent to study.
So I think we know what that means
and that tells us all we need to know
about the legislature's intent in this regard.
And it's not up to the Secretary to reconsider
that it's not to the Secretary to act
as a lawmaker and try to insert words
into the statute regarding conduct that aren't there
and also read out words such as the word automatically
which is not susceptible to multiple interpretations.
It clearly means it emphasizes
that the Secretary's task is ministerial.
Doesn't involve the exercise of his judgment or intent
and is something that frankly can be done by a computer.
When an individual goes to register as a lobbyist
the only requirement is they put in their name, address
pay the filing fee, which is
if you're a sole your sole proprietor
then you have to pay $1,100 and there could be a check box.
Have you been convicted of a felony
under chapter 355 or 268-A
a check the box under pains and penalties of perjury.
It would be complete.
It's not this complicated task that the Secretary is asking.
This is asking is contending today.
And I'll just, if there's no further questions
I'll just conclude by saying that
as this court stated in Jocelyn vs Chang,
"the principle of judicial restraint embodied
in article 30 of the Massachusetts declaration
of rights recognizes the inability and undesirability
of the judiciary, substituting its notions of correct policy
for that of the popularly elected legislature."
If this court were to adopt the Secretary's interpretation
it would be doing exactly that.
So we asked the court to affirm the superior
court's decision.