Lockhart v. Attorney General

• Decision Date: 18 January 1984
• Citation: 390 Mass. 780,459 N.E.2d 813
• Parties: Jacqueline LOCKHART et al. 1 v. ATTORNEY GENERAL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 813

459 N.E.2d 813

390 Mass. 780

Jacqueline LOCKHART et al. ¹ v. ATTORNEY GENERAL et al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 9, 1983.

Decided Jan. 18, 1984.

Robert G. Stewart, Boston (John F. Fulgoney and Julius B. Levine, Boston, with him), for plaintiffs.

Alexander G. Gray, Jr., Asst. Atty. Gen., for defendants.

Daniel E. Callahan and Brownlow M. Speer, Boston, for Massachusetts Defenders Committee, amicus curiae, submitted a brief.

William E. Bernstein, Worcester, and Peter W. Agnes, Jr., Lexington, for Massachusetts Bar Ass'n, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The plaintiffs, the first fifteen signers of an initiative petition, commenced this action on September 21, 1983, in the Supreme Judicial Court for the county of Suffolk, challenging the refusal of the Attorney General to certify that initiative petition as proper and further challenging the refusal of the Secretary of the Commonwealth to issue forms to the plaintiffs for gathering signatures in support of their initiative measure. On October 3, 1983, a single justice reported the case to this court on the pleadings and on a statement of agreed facts.

The case was argued before the full court on November 9, 1983. At issue was the propriety of the Attorney General's decision, pursuant to art. 48, The Initiative, II, § 3, not to certify as proper the initiative measure which is entitled "[a]n initiative petition for an act providing for certain reforms in the criminal justice system."

An initiative petition must contain only subjects "which are related or which are mutually dependent." Art. 48, The Initiative, II, § 3. Moreover, no measure that relates "to the powers ... of courts" may be the subject of an initiative petition. Art. 48, The Initiative, II, § 2. The Attorney General concluded, on both these grounds, that the petition contained excluded matters and declined to certify the initiative petition. ³

On October 3, 1983, the single justice, without opposition from the defendants, entered a preliminary injunction which directed that the Secretary of the Commonwealth release to the plaintiffs signature sheets containing a summary of the petition provided by the Attorney General. By a letter, received by us on November 29, 1983, counsel for the plaintiffs informed us that his clients had failed to collect sufficient signatures (more than 61,000 were required) to qualify their initiative petition for submission by the Secretary of the Commonwealth to the General Court. Art. 48, The Initiative, II, § 4, and V, § 1.

Although the case is moot because the required number of signatures was not obtained, counsel for the plaintiffs urges us to decide the case. ⁴ He advises us that the plaintiffs have indicated their intention to file the petition again in 1985. He argues that the time limitations of art. 48, The Initiative, II, § 3, are such that a judicial decision cannot readily be obtained early in the approximately nine weeks during which signatures might be obtained and that the pendency of a contest over the validity of a proposed initiative has an adverse effect on efforts to obtain the necessary signatures. He further states that the assistant attorney general who argued the case before us has authorized him to advise this court "that he shares plaintiffs' view that this matter is capable of repetition while evading review." We conclude nevertheless that we should not decide the issues argued in this case.

It is, of course, within our discretion to answer a question which, because of the circumstances, is no longer important to the parties. In Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885 (1975), we explained generally that "[c]ourts decline to hear moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated." On the other hand, we have on occasion answered questions in moot cases where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot. See Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 532-533, 437 N.E.2d 164 (1982) (administrative regulation of general applicability concerning the surrender of drivers' licenses of persons convicted of certain motor vehicle offenses); Grace v. Brookline, 379 Mass. 43, 48 n. 11, 399 N.E.2d 1038 (1979) (municipal by-law concerning certificates of eviction from units subject to rent control); Ghiglione v. School Comm. of Southbridge, 376 Mass. 70, 72 n. 5, 378 N.E.2d 984 (1978) (applicability of open meeting law to employee grievance hearing); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274, 372 N.E.2d 242 (1978) (standard of proof to be applied in statutory commitment proceedings); Geehan v. Trawler Arlington, Inc., 371 Mass. 815, 817, 359 N.E.2d 1276 (1977) (construction of Mass.R.Civ.P. 69); Karchmar v. Worcester, 364 Mass. 124, 136, 301 N.E.2d 570 (1973) (applicability to nonunion employees of statutory agency fee provision in collective bargaining agreement); Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943) (applicability of meal tax to college dining facilities). Cf. Brown v. Guerrier, 390 Mass. 631, 632, 457 N.E.2d 630 (1983) (where issues were of public importance concerning the statutory authority of the Housing Court Department, although not briefed on one side, we stated our views on those issues to which the answers appeared "reasonably clear"). The standard phrase applicable to disputes whose "life expectancy" is short is that the case is "capable of repetition, yet evading review." Wolf v. Commissioner of Pub. Welfare, supra, 367 Mass. at 298 n. 7, 327 N.E.2d 885, quoting Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). ⁵ Where a moot issue has become a "THEORETICAL DISPUTE" (SILVERMAN'S liquor mart, inc. v. licensing bd. for Boston, 348 Mass. 524, 530-531, 204 N.E.2d 712 [1965] ), or is not apt to evade review if it arises again (Blake v. Massachusetts Parole Bd., 369 Mass. 701, 708, 341 N.E.2d 902 [1976] ), or is not likely to recur (Stokes v. Superintendent, Mass. Correctional Inst., Walpole, 389 Mass. 883, 887, 452 N.E.2d 1123 [1983] ), we have declined to decide the issue. Of course, where our decision would be of little or no practical guidance (Commissioner of Correction v. Ferguson, 383 Mass. 651, --- - ---, Mass.Adv.Sh. [1981] 1252, 1254-1255, 421 N.E.2d 444), or the factual underpinnings of the dispute have so changed or are likely to so change as to make an appellate decision "a useless and inappropriate exercise" (Reilly v. School Comm. of Boston, 362 Mass. 689, 693-695, 290 N.E.2d 516 [1972] ), we have declined to decide an issue in a moot case.

We think it is significant that in none of the cited cases, in which we have decided a moot issue, was that issue a constitutional one. ⁶ We are aware of no case in which this court has been willing to answer a constitutional question that was moot. This practice is consistent with the long tradition of not unnecessarily deciding constitutional questions. One value in not deciding moot cases involves the exercise of " 'judicial restraint,' especially...