Sunday, January 16, 2011

The Wolf Who Cried, "Specify!"

Even if he'll already be sentenced to federal prison time, Chuck Turner will fight away, at least in state court. U.S. First Circuit Chief Judge Mark L. Wolf is figuring out whether to send the fairly trivial legal issue of whether the Boston City Council had specific enough authority to expel him following his conviction on four federal felonies.

Impugning motives here is easy enough. Turner and his pro-bono attorney Chester Darling are big honking egos floating all around. With a certainty that his sentence of prison time in nine days will trigger the MA law removing him from office, Turner doesn't care. In particular, he's been willing to push out the special election for his replacement, robbing his constituents of full representation while he plays at dotting every i.

Likewise, octogenarian Darling unretired to get a final bath of limelight. He is famous/infamous for winning the U.S. Supreme Court case letting the Southie veterans exclude homosexuals from marching in the St. Patrick's day parade. On the face of it, he and Turner differ markedly in politics, but their egos are comparable.

If this case gets tossed to state court for clarity, that could have a good or very good result. Obviously, it could clarify for municipalities whether they can build on their charters or must continue to crawl to the General Court for each minor procedure tweak. Beyond that, it would be great if a state court, or even the Supreme Judicial Court, told the GC to get its home-rule act together and to stop playing feudal lord. Ideally, a few lawmakers would take this opportunity to make more reasonable home-rule processes, so they could do their real jobs.

It is unreasonable to hope for a larger resolution of the underlying home-rule issues here. Massachusetts has an anachronistic, paternalistic system whereby the legislature treats municipalities like serfs. Each city and town must beseech the General Court for even minor changes in governing themselves.

Anywhere that their previously legislatively approved charters do not specify in simple-minded detail any possible variance is trouble. It's back to the legislature and if there needs to be even the slightest tweak, it's a lengthy and tedious charter revision. That, of course, requires approval of the General Court.

Soviet Style

In theory, this process keeps mayors, city councils and their equivalents from grabbing commonwealth powers, making conflicting regulations, or committing moneys the GC hasn't allocated or approved. Let's get real about it though. This is just about power. Lawmakers enjoy making cities and towns grovel.

We'd suppose the senators and reps would have more pressing legislative concerns. We'd suppose that they might create guidelines for municipalities and then just deal with problems when there is a conflict. We'd suppose wrong.

The Darling Turner (good name for a child movie star) suit is only the latest expression of the silliness here. A good outcome would be if the state clarified whether the Boston City Council's careful groundwork in preparing for just this problem was valid, like they were adults instead of kindergarteners.

We heard the current version of the role of home rule during the special meeting of the Boston Council considering Turner's status. There his friend and sole supporter, Councilor Charles Yancey, invoked the home-rule specter repeatedly. He held for Turner that unless the city charter explicitly reads the Council can expel a member, it can't, regardless of its authority to determine its membership.

That is what we learned in civics classes differentiated the old Soviet regime from ours. In the USSR, everything not specifically permitted is forbidden. Allegedly in America, everything not forbidden is permitted. It looks like we remain on the wrong side.

An even better result of this suit would be if a few lawmakers were sick and a little ashamed of treating mayors, councils and the like as though they were incompetent, ignorant little kids. A bill to turn home rule into guidelines would be one such evidence of wisdom and maturity by the GC.


theszak said...

Ask your favorite Boston City Council candidate...

massmarrier said...

The above is a plug for his own open-records/meeting thingummy. It's not specific to the question at hand, but certainly is a good issue.