Ballot measure appeal rejected
By Jack Dew, Berkshire Eagle Staff, Tuesday, October 5, 2004
PITTSFIELD -- A Superior Court judge yesterday denied the request of a fathers' rights advocate to restore the words "shared parenting" to a referendum question that will appear on all Berkshire County ballots on Nov. 2.
Rinaldo 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.
If 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.
The state had removed the phrase "shared parenting" because officials felt it carried a positive connotation that could unduly sway voters.
Judge 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.
In 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.
"[Del 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."
As rewritten, Agostini ruled, the question "clearly and fairly describes the proposal."
Of 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."
In a telephone interview yesterday, Del Gallo said, "I fought the law and the law won."
He reiterated his argument that the state's action was robbing the debate of a catch-phrase that would facilitate public discussion.
"I 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 said.
By gathering more than 1,000 signatures from registered votes, Del Gallo and other advocates secured the nonbinding question on Berkshire ballots. As they drafted it, it reads as follows:
"Shall 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?"
The state has proposed to strike the words "shared parenting legislation, consisting of" from the beginning of the question.
After 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 confusing.