Buckley v. Secretary of Com.

• Decision Date: 13 October 1976
• Parties: John J. BUCKLEY et al. v. SECRETARY OF the COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 806

355 N.E.2d 806

371 Mass. 195

John J. BUCKLEY et al.

v. SECRETARY OF the COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 13, 1976.

Decided Oct. 13, 1976.

Robert G. Stewart, Boston, for plaintiffs.

Thomas R. Kiley, Asst. Atty. Gen. (Louis A. Rizoli, Milford, with him), for defendant.

Frank T. Wojcik, Boston, for Robert J. Vanni and others, as amici curiae, submitted a brief.

Robert I. Stewart, National Chairman of We, the People, as amicus curiae, submitted a brief.

James R. McIntyre, Counsel to the Senate, Dawn-Marie Keefe, Asst. to the Senate Counsel and John F. Donovan, Counsel to the House of Representatives, Boston, as amici curiae, submitted a brief.

Lewis H. Weinstein, Boston, and Stephen B. Deutsch, Arlington, for the League of Women Voters of Massachusetts, submitted a brief.

Before HENNESSEY, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

REARDON, Justice.

This matter reaches us on reservation and report from a single justice. A declaratory judgment is being sought by the plaintiffs who include the first ten signers of an initiative petition entitled, 'An Act banning the private possession and sale of handguns.' They seek to establish that a measure proposed by the Legislature as a substitute for a qualified initiative petition is not in accordance with the requirements of art. 48 of the Amendments to the Constitution of the Commonwealth. They seek also on order prohibiting the defendant from placing the legislative substitute on the November, 1976, ballot as an alternative to the initiative petition. An initiative petition bearing the title referred to above, signed by the ten individual plaintiffs in this action and certified by the Attorney General as being in proper form for submission to the voters, was presented on December 3, 1975, by the plaintiffs to the Secretary of the Commonwealth, accompanied by forms containing 102,146 certified signatures. The petition was then sent to the clerk of the House of Representatives and the House proceeded to reject formally the law proposed by the petition. Thereafter, in May, 1976, a measure designated as a legislative substitute for the initiative petition was introduced (1976 House Bill No. 5081), and in June, 1976, both the House and the Senate voted to have this substitute appear on the November, 1976, ballot as an alternative to the initiative petition. ¹ In the meantime six of the ten original signers filed with the Attorney General on May 28, 1976, an amendment to their petition, which amendment the Attorney General certified to be perfecting in nature. On July 7, 1976, the initiative petition was completed by filing with the Secretary of the Commonwealth 16,614 certified signatures in support of the petition as amended. The Secretary intends to print summaries of both the initiative petition and the legislative substitute on the general election ballot, and the summaries will be grouped and appear as question 5A and question 5B respectively.

The action which has been brought is a challenge on constitutional grounds to the validity of 1976 House Bill No. 5081 as an alternative. After hearing and following consideration of the arguments presented, this court issued an order, 'That the legislative proposal known as House No. 5081 does not meet the requirements of Amendment XLVIII to the Massachusetts Constitution for a legislative substitute for the Initiative Petition entitled 'An Act banning the private possession and sale of handguns," and restraining the defendant from placing the proposition of 1976 House Bill No. 5081 on the November, 1976, ballot.

This opinion constitutes a statement of the reasons for the issuance of the order. This case is of first impression since it appears that a legislative substitute to a law proposed by initiative petition has never before appeared on a Massachusetts ballot. The 1976 House Bill No. 5081 provides mandatory sentences of imprisonment for use of a firearm in the commission of some fourteen crimes 'for not less than the minimum sentence imposed by the judge for such crime.' It further provides that any such sentence shall not be suspended nor shall the person convicted be eligible for probation, parole or furlough, or receive any deduction from his sentence for good conduct. The initiative petition, on the other hand, provides a comprehensive prohibition on the private ownership, possession or sale of handguns with certain exceptions for museum pieces and the like.

1. We consider first the standing of the plaintiffs to bring their complaint. Although some question has been raised in this regard, we see no problem with the position of these plaintiffs. Traditionally we have considered the first ten signers of an initiative or referendum petition to be proper parties in moving through the courts to protect their petition. See Cohen v. Attorney Gen., 354 Mass. 384, 237 N.E.2d 657 (1968); Compton v. State Ballot Law Comm'n, 311 Mass. 643, 42 N.E.2d 288 (1942); Yont v. Secretary of the Commonwealth, 275 Mass. 365, 176 N.E. 1 (1931). In fact, only through the recognition of this right could the ultimate objectives of art. 48 be attained. It is therein provided: 'Legislative power shall continue to be vested in the general court; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection . . ..' I. Definition. Were the plaintiffs unable to protect their right by judicial review prior to an election, the very heart and spirit of this language might be abrogated. There can be no doubt that they have a right to bring this action for timely declaratory and injunctive relief.

2. We thus find ourselves presented with the important and novel question of the constitutionality of a legislative 'substitute' for an initiative petition within the meaning of art. 48, The Initiative, III, § 2. The relevant part of that section provides, 'The general court may . . . submit to the people a substitute for any measure introduced by initiative petition, such substitute to be designated on the ballot as the legislative substitute for such an initiative measure and to be grouped with it as an alternative therefor.' 'Substitute' and 'alternative' are not defined in art. 48 and, thus, counsel have assisted the court by citation of relevant passages from the more than $1,000 pages of debate, 2 Debates in the Massachusetts Constitutional Convention of 1917--1918 (hereinafter 'Debates'). Legislative history such as this is certainly open for consideration by the court in interpreting the above provision. Barnes v. Secretary of the Commonwealth, 348 Mass. 671, 204 N.E.2d 894 (1965). However, we refer to the Debates as one avenue only for construing the words of the amendment 'in such way as to carry into effect what seems to be the reasonable purpose of the people in adopting (it).' Raymer v. Tax Comm'r, 239 Mass. 410, 412, 132 N.E. 190, 191 (1921). This is particularly so where the language of the Debates is, by itself, less than dispositive of the issue. We consider also that, as Chief Justice Rugg put it succinctly in Yont v. Secretary of the Commonwealth, 275 Mass. 365, 366, 176 N.E. 1, 2 (1931), '(a)n amendment to the Constitution is a solemn and important declaration of fundamental principles of government. It is characterized by terse statements of clear significance. Its words were emploed in a plain meaning to express general ideas. It was written to be understood by the voters to whom it was submitted for approval. It is to be interpreted in the sense most obvious to the common intelligence. Its phrases are to be read and construed according to the familiar and approved usage of the language.' See cases cited at 367, 176 N.E. 1.

Initially we consider the aims of art. 48 in the light of the text and structure of the provision. There can be no doubt that it created a people's process. It was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court. It presented to the people the direct opportunity to enact statutes regardless of legislative opposition. It projected a means by which the people could move forward on measures which they deemed necessary and desirable without the danger of their will being thwarted by legislative action. As Mr. Joseph Walker of Brookline stated in the Constitutional Convention, 'The principle of the initiative and referendum in its purity means that the people of this Commonwealth may have such laws and may have such a Constitution as they see fit themselves to adopt.' Debates at 16. In truth, The Initiative, III, § 2, the legislative substitute clause, was complementary to the people's initiative process and is to be construed in the light of those portions of the amendment to which it clearly relates. To give an overbroad meaning to the word 'substitute' in The Initiative, III, § 2, would allow the central purpose of the initiative process of art. 48 to be easily subverted. To become law an initiative petition must receive not only a majority of votes but also more votes than the legislative substitute with which it is grouped. The Initiative, VI. A 'legislative substitute' which relates only generally to the subject matter of the people's petition might well block the enactment of an initiative proposal supported by a majority of voters. And once defeated the initiative petition could not be presented to the voters again for six more years. The Initiative, II, § 3, as amended by art. 74.

When one looks at...