Opinion of Justices to Senate

• Decision Date: 11 June 1982
• Citation: 386 Mass. 1201,436 N.E.2d 935
• Parties: , 4 Ed. Law Rep. 1236 OPINION OF the JUSTICES TO the SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 935

436 N.E.2d 935

386 Mass. 1201, 4 Ed. Law Rep. 1236

OPINION OF the JUSTICES TO the SENATE.

Supreme Judicial Court of Massachusetts.

June 11, 1982.

Constitutional Law, Initiative, General Court, Opinions of the Justices, Equal protection of laws, Separation of powers. Initiative. School and School Committee, Regional school district. Supreme Judicial Court, Opinions of the Justices.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on March 29, 1982, and transmitted to this court on April 13, 1982, respecting a constitutional amendment proposed by initiative petition and subsequently amended by the Legislature. The order is as follows:

"Ordered, That

"Whereas, Under the provisions of Article XLVIII of the amendments to the constitution there was transmitted to the general court by the state secretary on April 24th, 1980, an initiative petition for an amendment to the constitution for limiting taxes in the commonwealth, numbered House No. 6252, a copy of which is attached hereto; and

"Whereas, Said initiative amendment was considered, amended and received final legislative action for the first time in the constitutional convention of the general court under the provisions of sections 2 and 4 of The Initiative, part 4, of said Article XLVIII on September 24th, 1980; and

"Whereas, Said initiative amendment was amended with a substantial new text a copy of which is attached hereto, which included twenty-one new sections replacing the original nine sections and, in accordance with the provisions of section 5 of The Initiative, part 4 of Article XLVIII, said initiative amendment, House No. 6252, as amended, a copy of which is attached hereto, may be considered in the 1982 constitutional convention of the general court; and

"Whereas, Grave doubt exists as to the procedure to be followed relative to House No. 6252, as amended, and as to the constitutionality of said initiative amendment; therefore be it

"Ordered, That the opinion of the honorable justices of the supreme judicial court be required by the senate upon the following important questions of law:

"1. Do the provisions of sections 3 and 20 of said House No. 6252, as amended, which establish certain excess taxes to be credited to a separate fund, involve the establishment of a 'specific appropriation' in violation of section 2 of Part II of The Initiative of said Article XLVIII?

"2. Does the requirement of 'a two-thirds vote of both branches of the general court together with the approval of the governor' in section 4 of House No. 6252, as amended, violate Article XXX of Part the First of the Declaration of Rights of the Constitution of the Commonwealth and the fourteenth amendment of the United States Constitution?

"3. Do the amendments to said House No. 6252 adopted on September 18th, 1980 and referred to the next general court require in the next constitutional convention the affirmative votes of not less than a majority of all members elected to the general court in order to submit said House No. 6252, as amended, to the people at the biennial state election in 1982?

"4. Does section 9, which establishes requirements for increasing the budget limit for public schools in a regional school district which are different from the requirements applicable to a city or town deny equal protection of the law to the students of certain public schools in the commonwealth under the provisions of the fourteenth amendment of the United States constitution?

"5. Would the adoption of said House No. 6252, as amended, render the tax limitation provisions established by chapter 580 of the Acts of 1980 constitutionally incompetent?

"6. Is the phrase 'by any more stringent requirement' as used in sections 4, 8, 9, 10, 11, 12, 13, 14 and 15 of said House No. 6252, as amended, so vague, uncertain and indefinite so as to render said sections constitutionally incompetent and to deny the citizens of the commonwealth equal protection of the law under the provisions of the fourteenth Amendment of the United States constitution?

"7. Is the definition 'seventeen most similar states' in section 2 of said House No. 6252, as amended, so vague, uncertain and indefinite that such definition renders section 18 constitutionally incompetent?"

On December 5, 1979, the Secretary of the Commonwealth received an initiative petition, accompanied by the required number of signatures of qualified voters, for an amendment to the Constitution of the Commonwealth limiting State and local taxes in the Commonwealth (initiative amendment). In accordance with art. 48 of the Amendments to the Constitution of the Commonwealth, the Secretary transmitted this measure to the Clerk of the House of Representatives on April 24, 1980. The initiative amendment, numbered House No. 6252, was sent to a joint committee on taxation, and reported out with an unfavorable recommendation. 1980 Sen.Doc.No.2170. House No. 6252 subsequently was considered by the 1980 constitutional convention, a joint session of the Senate and House of Representatives called to consider pending constitutional amendments. On September 24, 1980, the convention adopted, by a vote of 172 to 9, an amendment to House No. 6252 proposed by Representative Gerald M. Cohen. The Cohen amendment struck out the original nine sections of the initiative amendment and replaced them with twenty-one sections differing substantially from the original in form and effect. The order recites that the Cohen amendment, House No. 6252, as amended, may be considered again by the 1982 constitutional convention.

The Senate, by order transmitted to us on April 13, 1982, asked our opinion regarding seven questions relating to the Cohen amendment. This court issued an announcement that briefs concerning the issues raised by the seven questions would be received up to and including May 5, 1982. Nine parties submitted briefs, ¹ some of which addressed only one of the questions asked.

The Cohen amendment. The Cohen amendment would create a revenue limitation board (board), composed of seven members: the Secretary of Administration of the Commonwealth, the chairmen of the House and Senate committees responsible for reviewing taxation matters, and four members of the public to be appointed by the Governor. § 19. At least two of these appointees are to be experienced in the field of economics and, of the remaining two, one is to be experienced in the field of business management and the other, a member of a recognized labor union. The board is to be responsible for calculating and determining all statistics and other matters necessary to carry out the intent of the Cohen amendment. That intent is, according to § 1, to reduce "the percent of personal income taken for state and local revenues ... to a level that is more competitive with other industrial states." The board's calculations and determinations are to be based upon statistics determined or estimated by the United States Department of Commerce or a successor Federal agency. The board is empowered, however, to "adjust any such statistics or estimates to carry out the intent" of the amendment. § 19.

The board's primary duty is to calculate annually the tax limitation percentage (defined in § 2) applicable to the next year's State and local tax revenue raising efforts. In order to calculate this percentage, the board first must make several other determinations:

(1) The board must select the "(s)eventeen most similar states," i.e., those with which the Commonwealth "is most competitive in attracting and retaining business and jobs." Id.

(2) It must ascertain the "(t)otal state personal income," defined in § 2 as "the total personal income of all residents," for Massachusetts and for each of the seventeen most similar States. Id. § 18.

(3) It must ascertain the "(t)otal state and local revenues" (as defined in § 2) for Massachusetts and for each of the seventeen most similar States. § 18. "Total state and local revenues" include the total amount of taxes, charges and miscellaneous general revenues collected from all State, city, town, district, and regional governmental sources; it excludes, among other things, any amount permitted (by sections of the amendment discussed below) to be raised in excess of the tax limits created by the amendment.

(4) The board must calculate the "(t)ax burden" (defined in § 2) for Massachusetts and for the seventeen most similar States by determining the percentage of "total state personal income" which is accounted for by "total state and local revenues." See § 18.

With these figures, which must be determined for the current fiscal year and for the two fiscal years preceding it (for Massachusetts and for each of the seventeen most similar States), the board must calculate the tax limitation percentage applicable to the next fiscal year. Initially, this percentage is 100%: State and local revenue raising authorities are authorized to collect at least the same amount during the next fiscal year as they did during the current fiscal year. In addition, if total State personal income (as determined by the board) has increased between the last and current fiscal years, the tax limitation percentage increases proportionally: State and local tax revenues may rise to keep pace with the growth in total State personal income.

If, however, the average tax burden in Massachusetts for the three most recent years has exceeded the average tax burden in the seventeen most similar States for the comparable period, the board must reduce the otherwise allowable tax limitation percentage by the lesser of (1) one half of one per cent, or (2) the amount by which the average tax burden in Massachusetts for the three year period exceeded the average tax burden in the seventeen most similar States for that period. § 18. The...