Plaintiff’s Reply to Defendant’s Motion to Dismiss Complaint

Thursday 27 April 2017.
 

Plaintiff’s Reply to Defendant’s Motion to Dismiss Complaint
For Lack of Subject-Matter Jurisdiction

In a motion, Defendants’ Motion to Dismiss Complaint For Lack of Subject-Matter Jurisdiction, being presented to this Honorable Court for dismissal of Houston v. Department of Public Health, a direct legal challenge to Goodridge, the Attorney General’s office has three points in their argument. They are standing, controversy, and jurisdiction. Looking to Goodridge itself, answers to these three points may be found. Standing and controversy both arise from a Constitutional basis, which is allowing same-sex (gay) marriage by judicial decree. Goodridge is unconstitutional and illegal, therefore Goodridge grants standing, controversy arises from Goodridge being unconstitutional and illegal, and Goodridge grants jurisdiction to the Superior Court.

It is requested of this Honorable Court in their consideration of this motion for dismissal of Houston vs. Department of Public Health to give careful consideration to M. G. L. A. c. 231A * 9., Purpose and construction of declaratory judgment provisions.

This chapter is declared to be remedial. Its purpose is to remove, and to afford relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations, and it is to be liberally construed and administered.

ARGUMENT

I. Standing

Standing arises, from Mr. Houston being a resident of Somerville, Massachusetts, a citizen of the Commonwealth of Massachusetts. As this is a Constitutional question any and all citizens of the Commonwealth of Massachusetts have standing to file a direct legal challenge to Goodridge.

The motion for dismissal raises the issue of alleging injury and breach of duty citing Ginter, 427 Mass. at 323 (citations omitted). Where relief is sought against the Commonwealth or its agencies, alleging injury alone is not enough; plaintiff must allege a breach of duty owed to it by the public defendant. The breach of duty occurs whereby the Department of Public Health and the Commissioner of Public Health, Paul Cote, fail to act to uphold their oaths of office they agreed to and swore to uphold. Simply stated that is to support and uphold the Constitution of the Commonwealth of Massachusetts. Under the Constitution and Laws of the Commonwealth and of the United States every person chosen or appointed to any office, civil or military, under the government of this Commonwealth, before he enters on the duties of his office, is required to take and subscribe the following oath or affirmation: (Commonwealth of Massachusetts the Manual for the General Court 1997-1998, pg. 239).

THE OATH OF OFFICE

I,_______________________, do solemnly swear that I will bear true faith and allegiance to the Commonwealth of
Massachusetts and will support the Constitution thereof. So help me, God.

I,_______________________, do solemnly swear and affirm that I will faithfully and impartially discharge and perform all the duties incumbent on me as ___________, according to the best of my abilities and understanding, agreeably, to the rules and regulations of the constitution, and the laws of this Commonwealth - So help me God.

The motion for dismissal raises the issue of a likely benefit citing New England Div. Of the American Soc. V. Commissioner of Admin., 437 Mass. 172, 177 (2002). Moreover, in order to have standing, plaintiffs must show that they will experience a likely benefit should the contested point be resolved in their favor. The likely benefit should this Honorable Court rule in favor of this legal challenge to Goodridge, Houston v. Department of Public Health, will be experienced not only by Mr. Houston but all of the citizens of the Commonwealth of Massachusetts is that the Constitution of the Commonwealth of Massachusetts will be upheld and the laws of the Commonwealth of Massachusetts will be supported.

Goodridge is unconstitutional and illegal, therefore Goodridge grants standing. The personal interest in requested relief, overturning Goodridge, is upholding the Constitution of the Commonwealth of Massachusetts and is supporting the laws of the Commonwealth of Massachusetts.

The motion for dismissal in questioning Mr. Houston’s standing also uses G.L. c. 231A, * 2 for support. The closing paragraph of this Massachusetts General Law is as follows.

The foregoing enumeration shall not limit or restrict the exercise of the general powers conferred in section one in any proceeding where declaratory relief is sought, in which judgment or decree will terminate the controversy or remove uncertainty. (M. G. L. A. c. 231A, * 2)

II. Controversy

There is more than a mere disagreement on the part of Mr. Houston in filing this direct legal challenge to Goodridge. The Goodridge decision itself creates controversy and raises controversy. Goodridge is unconstitutional and illegal. Controversy results from Goodridge and Goodrige raises controversy by placing the Public Department of Health and its Commissioner Paul Cote in a position that is both unconstitutional and illegal in ordering by judicial decree the issuing of marriage certificates to same-sex couples. The Constitution of the Commonwealth of Massachusetts delegates to the legislature the authority to regulate marriage. Consistent in Goodridge, beginning in the written decision by Superior Court Justice Connolly has been the acknowledgement by judges, both in Superior Court and the SJC, that the Constitution of the Commonwealth of Massachusetts delegates to the Legislation, not the judiciary the authority to regulate marriage. The Legislature’s Constitutional authority to regulate marriage was acknowledged by Chief Justice Marshall in the Goodridge decision when in the majority opinion she writes: Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.

The following are Articles from the Constitution of the Commonwealth of Massachusetts.

PART THE FIRST A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. Article XVIII provides in relevant part: and they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

PART THE FIRST A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

PART THE SECOND The Frame of Government. Chapter I. THE LEGISLATIVE POWER. SECTION 1. The General Court. Article IV provides in relevant part: And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, . . . so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth . . ."

PART THE SECOND The Frame of Government. Chapter III. JUDICIARY POWER. Article V. "All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision."

The Goodridge decision itself creates controversy and raises controversy. Goodridge is unconstitutional and illegal. Controversy results from Goodridge and Goodrige raises controversy by placing the Public Department of Health and its Commissioner Paul Cote in a position that is both unconstitutional and illegal in ordering by judicial decree the issuing of marriage certificates to same-sex couples. Goodridge is illegal according to G.L. c.17. The Massachusetts Department of Public Health is charge by statue with promoting, protecting, and safeguarding public health, See G.L. c. 17.

Goodridge that allows same-sex (gay/homosexual) couples to marry may be seen as furthering the continuation of the legitimatization and normalization homosexuality, homosexual behavior, which is detrimental to those who become involved. One behavior among male homosexuals is passive anal intercourse. The United States Center for Disease Control and Prevention (CDC) reports that the highest risk behavior for obtaining HIV/AIDS is passive anal intercourse. The United States Center for Disease Control and Prevention’s (CDC), Morbidity and Mortality Weekly Reports (MMWRs) November 18, 2005 / 54(45);1149-1153 was Trends in HIV/AIDS Diagnoses --- 33 States (who have name-based HIV reporting), 2001-2004. It included the following information. The route of HIV infection for the majority (61%) of males was through male-to-male sexual contact. From 2003 to 2004, the number of HIV/AIDS diagnoses among MSM (men who sex with men) increased 8%; this increase was statistically significant (p<0.05). During this recoding period, all other recorded categories of individuals except MSM (men who sex with men) experienced declining instances and rates of HIV/AIDS diagnoses.

III. Jurisdiction

Goodridge was filed and ruled in Superior Court Department, defendants were the Department of Public Health and the then presiding Commissioner of Public Health. Chief Justice Marshall of the SJC in writing the majority opinion in Goodridge, grants jurisdiction to the Superior Court. She wrote, We remand this case to the Superior Court for entry of judgment consistent with this opinion.

Goodridge is unconstitutional and illegal. Goodridge grants same-sex (gay) marriage by judicial decree. This Honorable Court is being requested to rule in this legal challenge to Goodridge, Houston v. Department of public Health, to overturn Goodridge. See paragraph One of Prayers for Relief. Enter a declaratory judgment that the issuing of a marriage certificate to same-sex couples by judicial decree violates the Constitution of the Commonwealth of Massachusetts. A second request of this Honorable Court is to order the Department of Public Health to cease and refrain from issuing marriage certificates to same-sex (gay) couples, see paragraph Three of Prayers for Relief. The Superior Court has jurisdiction to do so, this is the court in which ordered the issuing of marriage certificates to same-sex (gay) couples.

Should this Honorable Court rule in the plaintiff’s favor in the legal challenge, Houston v. Department of public Health, that the issuing of marriage certificates to same-sex couples is unconstitutional and illegal, a further controversy will arise. This further controversy is the marriage certificates previously issued to same-sex couples. This Honorable Court is being requested to help resolve this further controversy qualified by after all appeals have been completed and this Honorable Court’s decision has been upheld see paragraphs Four, Five, Six and Seven of Prayers for Relief.

This Honorable Court may help resolve this further controversy, not through divorce or annulment rather by ruling that the issuing of marriage certificates to any and all same-couples is and was unconstitutional and illegal. Therefore, all marriage certificates that have been previously issued to same-sex couples are hereby to be declared null and void; lacking any legal standing to have being originally issued. Paragraphs Four, Five, Six, and Seven of Prayers for Relief may help resolve this further controversy that will arise should this Honorable Court rule in favor of the plaintiff in Houston v. Department of Public Health, that the issuing of marriage certificates to same-sex couples is unconstitutional and illegal.

CONCLUSION

For the reasons stated above, the defendants’ Motion to Dismiss Complaint For Lack of Subject-Matter Jurisdiction should be dismissed with prejudice.


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