In re Opinion of the Justices to the Governor

• Decision Date: 27 March 2012
• Docket Number: SJC–11114.
• Parties: OPINION OF THE JUSTICES TO THE GOVERNOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 1205
964 N.E.2d 941

OPINION OF THE JUSTICES TO THE GOVERNOR.

SJC–11114.

Supreme Judicial Court of Massachusetts.

March 27, 2012.

[964 N.E.2d 943]

RESCRIPT.

[461 Mass. 1205] On March 27, 2012, the Justices submitted the following answer to a question propounded to them by the Governor.

To His Excellency the Governor of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in the Governor's letter dated December 22, 2011, and transmitted to the Justices on that day:

“Is it constitutionally required that the Governor be physically present at and presiding over an assembly of the Executive Council in order for the Lieutenant Governor to vote on matters before the Council, provided that the chair of the Governor is not vacant by reason of the Governor's death, absence from the Commonwealth, or other incapacity?”

The Governor's letter refers to Part II, c. 2, § 2, art. 2, of the Constitution of the Commonwealth (art. 2), which provides:

“The governor, and in his absence the lieutenant governor, [461 Mass. 1206] shall be president of the council, but shall have no vote in council: and the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant.”

On receiving the request for an advisory opinion, we invited interested persons to file briefs no later than February 13, 2012.¹

1. May the question constitutionally be answered? We first must address whether constitutionally we may answer the question. The Massachusetts Constitution requires the Justices of the Supreme Judicial Court to give opinions to the Governor, the Executive Council, or the Legislature “upon important questions of law, and upon solemn occasions.” Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments. “The constitutional obligation of the Justices is ‘to render opinions only when they are properly required, and to abstain from answering questions of law not required under this provision.’ ” Answer of the Justices, 444 Mass. 1201, 1202, 829 N.E.2d 1111 (2005), quoting Opinion of the Justices, 430 Mass. 1205, 1207, 723 N.E.2d 1 (2000). See generally Answer of the Justices, 461 Mass. 1201, 962 N.E.2d 166 (2012).

We have interpreted this provision to require both that the question of law be important and that it be presented to us in the context of a “solemn occasion.” Answer of the Justices, 444 Mass. at 1202, 829 N.E.2d 1111. Answer of the Justices, 364 Mass. 838, 841, 302 N.E.2d 565 (1973). Because we have no doubt that the question of law presented here is important, we turn immediately to whether it comes to us in the context of a “solemn occasion.” A “solemn occasion” arises when a branch of government, “having some action in view, has serious doubts as to [its] power and authority to take such action, under the Constitution, or under existing statutes.” Answer of the Justices, 461 Mass. at 1202, 962 N.E.2d 166, quoting Answer of the Justices, 373 Mass. 867, 871, 366 N.E.2d 730 (1977). An advisory opinion is appropriate only where there is a pending matter and the opinion of law would assist “in the performance of a present duty.” Answer of the Justices, 461 Mass. at 1202, 962 N.E.2d 166, quoting Answer of the Justices, 444 Mass. at 1202, 829 N.E.2d 1111.

[964 N.E.2d 944]

We “have construed a present duty as an imminent obligation to act [461 Mass. 1207] pursuant to the Constitution or statute.” Answer of the Justices, 444 Mass. at 1206, 829 N.E.2d 1111.

“To safeguard the principle of separation of powers, fundamental in our system of government, we construe the ‘solemn occasion’ provision strictly.” Answer of the Justices, 461 Mass. at 1202, 962 N.E.2d 166. We have noted that our power does not extend to addressing the “usual legal difficulties presenting themselves either to the House of Representatives or to the Senate or to the Governor and Council,” and that the Legislature has provided for the Attorney General to offer advice in those situations. Answer of the Justices, 373 Mass. at 870, 366 N.E.2d 730. See Answer of the Justices, 461 Mass. at 1203, 962 N.E.2d 166; G.L. c. 12, § 9 (Attorney General “shall give [her] opinion upon questions of law submitted to [her] by the governor and council or by either branch of the general court”).

Recognizing the issue to be a close one, we conclude that the question presented comes to us in the context of a “solemn occasion.” The Governor has the constitutional obligation to nominate and appoint all judicial officers, subject to the advice and consent of the Executive Council. Part II, c. 2, § 1, art. 9, of the Constitution of the Commonwealth. Where there is a tie vote in the Executive Council, the Lieutenant Governor may exercise his constitutional authority to vote to break the tie. Art. 2. Because the question for which an advisory opinion has been sought has yet to be resolved, the Governor has chosen to preside over the Executive Council whenever there is a tie. Such ties in the past were unusual and, therefore, did not materially affect the Governor's ability to leave the State House to perform his constitutional function as the “supreme executive magistrate.” Part II, c. 2, § 1, art. 1, of the Constitution of the Commonwealth. However, the Governor and Executive Council agree that tie votes among Councillors are now increasingly common. Seven tie votes occurred in 2011, six of which were resolved by the Lieutenant Governor casting a tie-breaking vote with the Governor presiding over the meeting.²

With so many judicial vacancies in the Commonwealth, the [461 Mass. 1208] Governor has a present duty to act to fill those vacancies with capable judicial nominees, the Executive Council has a present duty to confirm or reject those nominees pursuant to its authority to advise and consent, and where there is a tie, the Lieutenant Governor has the present duty to decide whether he shall vote to break the tie. Pragmatically, the Governor cannot wait for a tie vote to present this question, because any advisory opinion could not be provided before voting on the judicial nominee in the Council is completed. If the Governor were to choose not to preside over the Council and the Lieutenant Governor were nonetheless to cast the vote breaking the tie to confirm the nominee, constitutional questions would be raised after the nominee is sworn as a judge whether the judge lawfully was confirmed, and whether the judge's acts were judicial acts. And if the Governor were to seek to avoid this constitutional cloud by continuing to preside over the Council whenever there were tie votes, and

[964 N.E.2d 945]

if the past is prologue as to the prevalence of tie votes, the Governor would need to remain near the State House during the weekly meetings of the Council. Where the Governor and Council will inevitably face this question again in the near future once the Council casts a tie vote on a judicial nomination, and where there is no practical way for the question timely to be answered once a tie vote is cast, we conclude that the question presents a “solemn occasion” that warrants our advice. Cf. O'Brien v. Borowski, 461 Mass. 415, 417, 961 N.E.2d 547 (2012) (reaching merits of moot dispute where it raised issues of public importance regarding constitutionality of statute that would likely arise again but otherwise evade review).

2. The question presented. The answer to the question presented rests on the interpretation of art. 2, which states:

“The governor, and in his absence the lieutenant governor, shall be president of the council, but shall have no vote in council: and the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant.”

The Governor and the Council have differing interpretations of this provision. The Governor is of the view that, read together, these two clauses allow the Lieutenant Governor to be a voting member of the Council even when he is presiding over it, unless he is acting Governor because the Governor is dead, absent [461 Mass. 1209] from the Commonwealth, or otherwise incapable of serving. The Council, on the other hand, reads these clauses as prohibiting the Lieutenant Governor from voting if he is presiding over the Council in the absence of the Governor.

Our analysis is informed by our traditional principles of constitutional interpretation. We look first to the plain language of the constitutional provision. Schulman v. Attorney Gen., 447 Mass. 189, 191, 850 N.E.2d 505 (2006), and cases cited. “We bear in mind that the Constitution ‘was written to be understood by the voters to whom it was submitted for approval’ and that ‘[i]t 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.’ ” Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 665, 946 N.E.2d 1262 (2011), S.C., 461 Mass. 232, 959 N.E.2d 970 (2012), quoting Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199, 355 N.E.2d 806 (1976).

Second, we construe the language of a provision “in the light of the conditions under which it was framed, the ends designed to be accomplished, the benefits expected to be conferred, and the evils hoped to be remedied.” Carney v. Attorney Gen., 447 Mass. 218, 224, 850 N.E.2d 521 (2006), quoting Loring v. Young, 239 Mass. 349, 372, 132 N.E. 65 (1921). See McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545, 558, 615 N.E.2d 516 (1993), quoting Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317, 93 N.E.2d 744 (1950) (language and structure of provision to be “construed so as to accomplish a reasonable result and to achieve its dominating purpose”).

Third, we recognize “that every word and phrase in the Constitution was intended and has meaning.” Powers v. Secretary of...