Cohen v. Attorney General

Decision Date31 May 1968
Citation237 N.E.2d 657,354 Mass. 384
PartiesRobert COHEN et al. v. ATTORNEY GENERAL (and a companion case).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Manuel Katz, Boston, for petitioners.

Alan J. Dimond, Asst. Atty. Gen. (James P. Cassidy, Jr., Legal Asst. to Atty. Gen., with him), for respondents.

Lewis H. Weinstein, Boston (Henry P. Monaghan, Boston, with him) for interveners, Harriett M. Bates and others.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

Ten qualified voters bring two petitions, one for a writ of certiorari against the Attorney General, and one for a writ of mandamus against the Secretary of the Commonwealth. Most allegations are common to the petitions, which attack as unconstitutional an initiative petition, purporting to be signed by ten qualified voters, filed with the Secretary on September 6, 1967. This sought the enactment, under art. 48 of the Amendments to the Constitution of the Commonwealth, of an initiative amendment for the purpose of reducing the size of the House from 240 to 160 members and for a decennial division of the Commonwealth into senatorial and representative districts. Filed with the initiative petition is a certificate by the respondent. The Secretary provided blanks for subsequent signers. The requisite number of signatures were filed with the Secretary before the first Wednesday in December, 1967. The Secretary intends to transmit 1 that petition to the clerk of the House upon the assembling of the new General Court as provided in art. 48, The Initiative, II, § 4. The Secretary, it is alleged, has no authority so to transmit the initiative petition. The certiorari petition is substantially similar except that it alleges that the certificate of the respondent which accompanies the initiative a petition was improvidently issued and is erroneous as a matter of law.

Fifteen individuals were granted leave to intervene as parties respondent in each case. Seven are members of the General Court, of whom three were among the first ten signers of the initiative petition. The other interveners are officers or members of the League of Women Voters of Massachusetts, a Statewide civic organization.

Each case is reported without decision by a judge of the Superior Court on the petition, the demurrers of the respondent and the interveners, the statement of agreed facts, and, in the mandamus case the Secretary's answer, and in the certiorari case the Attorney General's return.

Failure to state a cause of action was a ground common to all the demurrers.

The proposed initiative amendment would retain the size of the Senate at forty members but would reduce the House of Representatives from 240 to 160 members, 'each of whom shall represent a single district.' Approtionment is to be made in 1973, in 1981, 'and every tenth year thereafter' by a fifteen member commission which must be appointed after every decennial listing. Five members of this commission are to be appointed by the Chief Justice of the Superior Court, 'who shall name the chairman,' five shall be appointed by the Governor, and five by the General Court. The commission shall divide the Comonwealth into the requisite number of representative and senatorial districts, each to be 'compact and continuous.' Each senatorial district is to contain, as nearly as may be, one fortieth of the legal voters of the Commonwealth and each representative district is, in like manner, to contain one one hundred sixtieth of the legal voters. The apportionment base ('legal voters') is defined to include all persons 'who may claim the right to vote' under art. 3 of the Amendments. 'No precinct of fewer than two thousand five hundred legal voters shall be divided for the purpose of creating a representative or senatorial district. * * *' The districts created by the proposed amendment will take effect on the first Wednesday of January, 1975. Original jurisdiction is vested in the Supreme Judicial Court, 'upon the petition of any voter of the commonwealth,' to review the apportionment plan or any portion thereof and to direct such action as will bring the plan or portion thereof into compliance. The proposed amendment repeals arts. 21 and 22, as amended by art. 71, of the Amendments to the Constitution of the Commonwealth.

1. The petitioners have standing to question whether the proposed initiative amendment contains excluded matter under art. 48, The Initiative, II, § 2. Horton v. Attorney Gen., 269 Mass. 503, 507--508, 169 N.E. 552; Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247--248, 69 N.E.2d 115, 167 A.L.R. 1447. As presently material, § 2 provides: 'No measure that relates * * * to the powers * * * of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth * * * shall be proposed by an initiative petition * * *.'

(a) One allegedly excluded matter is the duty conferred upon the Chief Justice of the Superior Court to name the chairman and to appoint five of the fifteen member commission which is to make a division of the Commonwealth into representative and senatorial districts every thenth year. It is contended that this relates to the powers of the courts.

It should be noted, however, that this duty is but a detail of the project, and is quite apart from, and wholly incidental to, the chief purpose of the amendment, which is to bring about the reduction of the size of the House. As such a detail, it falls within the statement of Chief Justice Rugg in Horton v. Attorney Gen., 269 Mass. 503, 511, 169 N.E. 552, 554: 'The main design (of the proposed law) * * * does not relate either to the general or to the specific powers of the courts. A general law covering a suject disconnected with courts in its main features does not come within the prohibition of * * * article 48 * * * because, in an incidental and subsidiary way, the work of the courts may be increased or diminished or changed.' Performance of this duty, moreover, would make slight claim upon the time of the Chief Justice and even then only at long intervals. To anticipate that there would be any real interference with his judicial duties would be unreasonable. See Opinion of the Justices, 307 Mass. 613, 619--622, 29 N.E.2d 738.

(b) Another allegedly excluded matter is that the provision for review of the plan by the Supreme Judicial Court would add to its powers. This, however, is but a recognition of an existing jurisdiction to review similar questions. Bowe...

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21 cases
  • Opinion of the Justices to the Senate
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 27 Abril 1978
    ...act is not directed at the powers of the courts, the measure is not excluded from the initiative process. Cohen v. Attorney Gen., 354 Mass. 384, 387, 237 N.E.2d 657 (1968). Horton v. Attorney Gen., 269 Mass. 503, 509-511, 169 N.E. 552 (1929). See Commonwealth v. Yee, 361 Mass. 533, 537, 281......
  • Massachusetts Teachers Ass'n v. Secretary of Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 4 Agosto 1981
    ...and qualified voters have standing to argue that Proposition 2 1/2 was not constitutionally adopted. See Cohen v. Attorney Gen., 354 Mass. 384, 387, 237 N.E.2d 657 (1968) (qualified voters); Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 314-315, 98 N.E.2d 621 (1951) (citizens). At leas......
  • Carney v. Attorney General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 15 Julio 2008
    ...593, 596-597, 458 N.E.2d 734 (1983); Horton v. Attorney Gen., 269 Mass. 503, 513, 169 N.E. 552 (1929). See also Cohen v. Attorney Gen., 354 Mass. 384, 389, 237 N.E.2d 657 (1968) (scope of consideration confined "to questions about excluded matters under art. 48. Not now open to contention a......
  • Coalition for Political Honesty v. State Bd. of Elections
    • United States
    • Illinois Supreme Court
    • 3 Diciembre 1976
    ...v. Jordan (1948), 32 Cal.2d 330, 196 P.2d 787; Mathews v. Turner (1931), 212 Iowa 424, 236 N.E. 412; Cohen v. AttorneyGeneral (1968), 354 Mass. 384, 237 N.E.2d 657; Moore v. Brown (1942),350 Mo. 256, 165 S.W.2d 657; Leach v. Brown (1957), 167 Ohio St. 1, 3 Ohio op.2d 346, 145 N.E.2d It appe......
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