Cohen v. Attorney General

• Decision Date: 05 June 1970
• Citation: 357 Mass. 564,259 N.E.2d 539
• Parties: Robert COHEN v. ATTORNEY GENERAL (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 539

259 N.E.2d 539

357 Mass. 564

Robert COHEN v. ATTORNEY GENERAL (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 1970.

Decided June 5, 1970.

Robert Cohen, pro se (Alexander J. Cella, Boston, with him).

William E. Searson, III, Asst. Atty. Gen., for Attorney General and another.

Morris M. Goldings, Boston (Richard B. Olson, Donald P. Quinn, Donald N. Sweeney and Donald F. Winter, Boston, with him), for John M. Quinlan and others, intervening respondents.

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

KIRK, Justice.

The petitioner, a citizen and taxpayer of Massachusetts who is a registered voter of Newton, brings 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. Both petitions challenge as unconstitutional an initiative petition brought pursuant to art. 48 of the Amendments to the Constitution of the Commonwealth, entitled, 'An Act to ascertain and carry out the will of the people in 1970 relative to the calling and holding of a constitutional convention in 1971 to deal with subjects limited to the revision, alteration and amendment of the structure of government and to the rearrangement, simplification and methods of amending the constitution; and to provide for a preparatory commission therefor.'

The petition for a writ of certiorari seeks to quash the Attorney General's certificate which accompanies the initiative petition. The petition for a writ of mandamus seeks to restrain the Secretary of the Commonwealth from placing the question set forth in the initiative petition on the ballot in the biennial State election in 1970.

The question reads: 'Shall there be a convention to revise, alter or amend the constitution of the commonwealth in the year 1971; provided, that the convention shall be limited to considering and proposing revisions, alterations and amendments on * * * (certain specified) subjects * * * and on no others.' The cases were each reserved and reported, without decision, by the single justice on the petition, the respondent's answer, the petition of the ten original signers to intervene as parties respondent, their answer as parties respondent, and a document with the caption, 'Agreement as to all the Material Facts,' self-described as a case stated.

1. The statement of agreed facts recites the several steps which thus far have been taken to advance the proposed measure as an intiative petition for a 'law' under the provisions of art. 48 of the Amendments to the Constitution of the Commonwealth. The process of advancement of such a measure involves a series of justiciable questions 'to be determined in the last analysis by the judicial department of the government whenever the question arises in a proper proceeding in court.' Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 320--323, 98 N.E.2d 621, 629. In so far as the 'Agreement as to all the Materials Facts' would be at all pertinent to the issues before us, we regard it as a convenient calendar of events and actions relating to the proposal without attributing to those events and actions the legal significance which the agreement would seem to imply. We are bound only by 'the Constitution of 1780 and its amendments * * * (which constitute) the fundamental law,' the 'great charter,' 'the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of state and of public officers.' Loring v. Young, 239 Mass. 349, 376, 377, 132 N.e. 65, 67, 74 (1921). Opinion of the Justices, 233 Mass. 603, 611, 125 N.E. 849 (1920).

We deem it unnecessary and unwise, however, to discuss any issue save the one issue which looms large above all others. Its resolution will be decisive of both cases. In terms of the pending litigation the issue is: Does art. 48 of the Amendments to the Constitution authorize 'ten qualified voters' to petition for the enactment of a law requiring that there appear on the official ballot to be used at the State election a question whether a convention be called to amend the Constitution of the Commonwealth?

2. In addressing the basic issue, we quote certain provisions of art. 48 for convenient reference in the discussion which is to follow:

I. Definition.

'(T)he popular initiative * * * is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection.'

THE INITIATIVE.

II. Initiative Petitions.

Section 1. Contents.--'An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure, which is proposed by the petition.'

IV. Legislative Action on Proposed Constitutional Amendments.

Section 1. Definition.--'A proposal for amendment to the constitution introduced into the general court by initiative petition shall be designated an initiative amendment, and an amendment introduced by a member of either house shall be designated a legislative substitute or a legislative amendment.'

Section 2. Joint Session.--'If a proposal for a specific amendment of the constitution is introduced into the general court by initiative petition * * * (it shall be considered in joint session).'

Section 4. Legislative Action.--'(A)n initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.'

Section 5. Submission to the People.--'If in the next general court * * * an initiative amendment * * * shall again receive the affirmative votes of at least one-fourth of all the members elected, * * * the secretary of the commonwealth * * * shall submit the amendment to the people at the next state election.'

V. Legislative Action on Proposed Laws.

Section 1. Legislative Procedure.--'If an initiative petition for a law is introduced into the general court, signed * * * (by a specified number of persons), (and if) the general court fails to enact such law before * * * (a specified date) and if such petition is completed by filing with the secretary of the commonwealth * * * (by a specified date a required number of additional signatures), then the secretary of the commonwealth shall submit such proposed law to the people at the next state election' (emphasis supplied).

GENERAL PROVISIONS.

V. The Veto Power of the Governor.

'The veto power of the governor shall not extend to measures approved by the people.'

VI. The General Court's Power of Repeal.

'Subject to the veto power of the governor and to the right of referendum by petition as herein provided, the general court may amend or repeal a law approved by the people' (emphasis supplied).

3. Some of the significant differences in the requirements of art. 48 for the adoption of constitutional amendments on the one hand, and for the enactment of laws on the other, when they originate by initiative, are:

(a) A constitutional amendment must be considered by the joint conventions of two different General Courts; whereas a law must be considered by a single General Court without joint convention.

(b) A constitutional amendment must receive 'the affirmative votes of not less than one-fourth of all the members elected' at the joint conventions of two General Courts before it can go on the ballot; whereas a law is not required to receive any minimum number of affirmative votes in the General Court. If the General Court fails to enact the proposed law, it automatically goes on the ballot at the next State election.

(c) A constitutional amendment approved by the voters is not subject to repeal by the General Court (other than by another amendment passed through the legislative process and approved by the voters); whereas a law proposed by initiative and approved by the voters may be repealed by the General Court, subject to the veto of the repealing act by the Governor.

4. The nature of the initiative petition before us must be understood. It does not set forth the text of any constitutional amendment. See The Initiative, II, § 1, ante. Rather it sets forth a measure which has as its ultimate goal the holding of a constitutional convention for limited purposes. Excluded from consideration by the prospective convention are such matters as the judiciary power, the Declaration of Rights, and excluded matters enumerated in § 2 of The Initiative, II, Initiative Petitions of art. 48. Included as subjects for consideration are matters relating to the Executive Branch, the General Court, the Executive Council, the government of municipalities and counties, and methods of ammending the Constitution. Our consideration of the dominant issue is not affected by the purported restrictions on the agenda of the proposed convention. ²

5. The intervening respondents, (the ten persons who originally signed and initiated the measure for the convention) contend that the measure which they propose is a 'law' within the meaning of that word as used in art. 48. The petitioner contends that it is not such a 'law.'

Our resolution of the basic issue requires that we decide whether the proposed measure falls within the meaning of the words 'law' or 'laws' as they are used in the initiative provisions of art. 48. ³ For this purpose we need not and we do not formulate or lay down a comprehensive definition of these words for all purposes. We should, and do, consider any judicial statements construing or defining the words. Opinion of the Justices, 262 Mass. 603, 604--605, 160 N.E. 439, 440; ⁴ Opinion of the Justices, 66 N.H. 629, 632, 33 A. 1076, 1078; ⁵ American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 512, 53 L.Ed. 826. ⁶ Giving due consideration to all relevant judicial definitions, it yet remains for us to have due regard to the setting in which the words 'law' and 'laws'...