measure appeal rejected"
Del Gallo III, the spokesman of the Berkshire Fatherhood Coalition and an
attorney, had asked for an injunction to order the secretary of the
commonwealth and the state attorney general to return his ballot question to
its original form.
passed, the nonbinding question would ask legislators to rewrite the laws so
that courts would order joint custody of children after a divorce unless there
is evidence that one of the parents is unfit or unable to share custody.
state had removed the phrase "shared parenting" because officials
felt it carried a positive connotation that could unduly sway voters.
John A. Agostini heard arguments from Del Gallo and an assistant attorney
general on Friday. Yesterday, he denied Del Gallo's motion, dismissing his
claims that the state had exceeded its authority and had violated Del Gallo's
free speech rights.
a short, five-paragraph decision, Agostini sided with the state, which had
argued "shared parenting" was "unnecessary, equivocal and
loaded," and said it was within its rights to strike it from the ballot.
Gallo] does not dispute that the language has positive connotations for his
position and, perforce, would assist his cause," Agostini wrote.
"This slanted language may have a place in the marketplace of political
persuasion, but not on a ballot question. A ballot question needs to be free
from advocacy and it is incumbent on the attorney general and the secretary to
monitor and enforce this neutrality."
rewritten, Agostini ruled, the question "clearly and fairly describes the
Del Gallo's argument that removing "shared parenting" was a
violation of his First Amendment rights, Agostini said it was without merit:
"There is no First Amendment right to place particular language or allow
sloganeering on a ballot."
a telephone interview yesterday, Del Gallo said, "I fought the law and
the law won."
reiterated his argument that the state's action was robbing the debate of a
catch-phrase that would facilitate public discussion.
think it is a bad idea to rob something of the proper noun to describe it,
even when it is a term generally understood by the public," Del Gallo
gathering more than 1,000 signatures from registered votes, Del Gallo and
other advocates secured the nonbinding question on
the state representative from this district be instructed to vote for shared
parenting legislation, consisting of legislation to create a strong
presumption in child custody cases in favor of joint physical and legal
custody, so that courts will order that the children have equal access to both
parents as much as possible, except where there is clear and convincing
evidence that one of the parents is unfit, or that joint physical custody is
not possible through no fault of one of the parents?"
state has proposed to strike the words "shared parenting legislation,
consisting of" from the beginning of the question.
consultation with Del Gallo, the last line has been rewritten to read "or
that joint physical custody is not possible due to the fault of one of the
parents," eliminating a double negative that the state had found
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