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Thursday, September 24, 2009

GOP lawsuit to stop Senate appointment

The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days. A hearing is set for 8 a.m. tomorrow; Patrick's appointee, Paul Kirk, is scheduled to be sworn in tomorrow afternoon.

This is a suit that pretty clearly would fail in federal court on both Article III standing (the state party is not injured by this appointment, other than having lost in the political arena, and certainly not differently injured than anyone else in Massachusetts) and political question doctrine (this seems like a decision vested in the governor's discretion, with which a court will not interfere).

But is anyone out there familiar with the law of Massachusetts and whether its standing rules are so much broader than Article III as to permit the party to bring this lawsuit?

Update, Friday evening:

The court denied the injunction and Kirk was sworn in this afternoon. No mention of standing; the four-page opinion focuses mainly on a state law question of when the governor can declare an emergency.

Posted by Howard Wasserman on September 24, 2009 at 04:37 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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The standing rules are nominally similar to those in federal court but I would suspect that a judge in Massachusetts would be more likely than a federal judge to get to the merits.

In Massachusetts, cases seeking injunctive relief can be brought directly in the state's Supreme Judicial Court. (The SJC has discretion to bounce those cases to the Superior Court, so most plaintiffs in run of the mill cases seeking injunctions just file in Superior Court.) I wonder why that was not done in this case.

Posted by: alkali | Sep 25, 2009 9:32:07 AM

I hope he can be as honest and loyal to the American people as our previous Senator, Kennedy!!!

Posted by: Abbee Lee | Sep 25, 2009 3:10:25 PM

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