Opinion of the Justices to the Senate

• Citation: 595 N.E.2d 292,413 Mass. 1201
• Parties: OPINION OF THE JUSTICES TO THE SENATE.
• Decision Date: 07 July 1992
• Court: United States State Supreme Judicial Court of Massachusetts

Page 292

595 N.E.2d 292

413 Mass. 1201

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts.

July 7, 1992.

On July 7, 1992, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their responses to the questions set forth in an order adopted by the Senate on May 13, 1992, and transmitted to this court on May 19, 1992. The order recites that House No. 4000, an initiative petition entitled "Initiative Amendment to the Massachusetts Constitution limiting the terms of office of governor, lieutenant governor, secretary, treasurer, attorney general, auditor, councillor, state senator, state representative, United States senator and representative in congress," is an amendment to the Constitution of the Commonwealth pending before the General Court which seeks to add an additional qualification for persons seeking election to particular public offices, and that grave doubt exists as to the constitutionality of the initiative amendment, if finally approved. The initiative petition proposes amendments to Part II, c. 2, § 1, art. 2; Part II, c. 2, § 2, art. 1; Part II, c. 1, § 2, art. 5, of the Massachusetts Constitution; and arts. 101, 16, and 17, of the Amendments to the Massachusetts Constitution, adding the following additional sentences to the specified sections, as appropriately revised:

"No person shall be qualified to be elected as [Governor], [Lieutenant Governor], [Secretary, Treasurer, Auditor, or Attorney General], [Councillor], [Senator or Representative] who has held that office for [two] [four] consecutive terms within the [nine] [eleven] year period immediately preceding the election, provided that such terms of office began on or after January 1, 1995. For the purpose of this Article, any person [who succeeds to the office of Governor] [appointed or elected to such office] [appointed or elected to such offices], and who serves more than one-half of a term of that office, shall be considered to have served a term of that office."

The initiative petition further amends the Amendments to the Massachusetts Constitution by adding the following new article, to be numbered sequentially:

"ARTICLE _____. No United States Senator from Massachusetts shall serve more than two consecutive terms in the United States Senate and no Representative in Congress from Massachusetts shall serve more than four consecutive terms in the United States House of Representatives. Any person appointed or elected to the United States Congress, and who serves more than one-half of a term of such office, shall be considered to have served a term of that office for the purposes of this Article. The requirements of this Article shall apply to terms of office beginning on or after January 1, 1995."

The order presents this court with the following questions:

"1. Is the subject matter of House No. 4000 which adds certain new qualifications for persons seeking certain elected offices 'inconsistent with the rights of individuals, as presently declared in the declaration of rights,' in particular, Art. IX of said declaration of rights and is therefore excluded from initiative petition under section 2 of Art. XLVIII of the Constitution of the Commonwealth?

"2. Would the provisions of House No. 4000 which establishes a qualification for the office of senator and representative in the congress of the United States, if finally approved, be in conflict with, and therefore in violation of, Article I of the Constitution of the United States which specifies the qualifications for such office?

"3. Would the provisions of House No. 4000, if finally approved, exceed the power given to the states in Section 4 of said Article I of the Constitution of the United States which provides that the state legislature shall set the 'time, places and manner of holding elections for senators and representatives' in congress, but reserves to the congress the power to 'make or alter such regulations'?

"4. Would the provisions of House No. 4000, if finally approved, violate the provisions of section 5 of said Article I of the Constitution of the United States which, in part, states that Congress 'shall be the judge of the elections, returns and qualifications of its own members'?

"5. Do the provisions of House No. 4000 violate the provisions and intent of Art. XLVIII of the Amendments to the Constitution of the Commonwealth in that Part VII of said House No. 4000 contains matters that are not related to or mutually dependent on the other parts of said House No. 4000?"

We invited interested parties to submit briefs. In response, we received briefs from the Attorney General and an amicus curiae, Term Limits Legal Institute and Term Limits Proponents, both of which support the initiative measures. The Governor filed a letter supporting House No. 4000 and joining in the arguments presented in the briefs. No brief was filed against the initiative measures.

1. The Massachusetts Constitution and term limitations. The right of the people to amend the Massachusetts Constitution through the initiative process is not absolute. Article 48, the Initiative, II, § 2, of the Amendments to the Massachusetts Constitution, precludes the use of the initiative procedure to enact any statute or constitutional amendment that is inconsistent with the freedom of elections provision of the Declaration of Rights. ¹ We must interpret the language of art. 48 "in 'a sense most obvious to the common understanding at the time of its adoption,' because it is proposed for public adoption and must be understood by all entitled to vote." Attorney Gen. v. Methuen, 236 Mass. 564, 573, 129 N.E. 662 (1921), quoting Bishop v. State, 149 Ind. 223, 230, 48 N.E. 1038 (1898). See Cohen v. Attorney Gen., 357 Mass. 564, 571, 259 N.E.2d 539 (1970). An examination of the records of the debates and proceedings of the Constitutional Convention of 1917-1918, from which art. 48 emerged, helps to clarify the conditions under which it came into existence, how it was received and understood by that convention, and, consequently, how it was commonly understood at the time of its adoption. See Cohen v. Attorney Gen., supra at 571-572, 259 N.E.2d 539; Loring v. Young, 239 Mass. 349, 368, 132 N.E. 65 (1921); Opinion of the Justices, 233 Mass. 603, 604-605, 125 N.E. 849 (1920).

"We note that one of the main issues in the campaign for the election of delegates to the Constitutional Convention of 1917-1918 was whether the Constitution should be amended by adding provisions for the Initiative and Referendum. The issue received considerable newspaper coverage before as well as during the convention. Groups and committees on both sides of the issue sought commitments from candidates during the campaign." Cohen v. Attorney Gen., supra 357 Mass. at 572, 259 N.E.2d 539. The initiative and referendum issue also became the major issue at the convention itself. "If a convenient, correct and historic name is wanted for the Massachusetts constitutional convention which met first in 1917, the name of 'the I. & R. Convention' would have high claim for preference. From the beginning of the convention the element which wanted the initiative and referendum amendment was the controlling factor, or their subject was the dominating subject. After the matter was disposed of, the hiatus left by its omission from the program had its influence upon all subsequent proceedings in way of reduced attendance and comparative want of interest, accompanied by lack of devotion to duty." R.L. Bridgman, Massachusetts Constitutional Convention of 1917, 41 (1923). "The debate and proceedings on the Initiative and Referendum provisions which we now find in art. 48 took more time of the convention than any other subject or proposal before it. The debates on the proposal, and on suggested amendments thereto, consumed most of the time of the convention from August 7, 1917, to November 28, 1917. It took the entire 1,086 pages of Volume 2 Debates in the Massachusetts Constitutional Convention of 1917-1918 to record the debates and proceedings on the Initiative and Referendum amendment." Cohen v. Attorney Gen., supra at 572-573, 259 N.E.2d 539.

Joseph Walker of Brookline was the floor leader for the initiative and referendum amendment throughout the constitutional convention, and George B. Churchill of Amherst eventually became the recognized floor leader of the opponents of the initiative and referendum. R.L. Bridgman, supra at 48. After the opponents of the initiative and referendum were unable to prevent the amendment to the Constitution through the initiative process, Churchill proposed excluding only the provisions of the Declaration of Rights from the initiative petition process, and his motion succeeded by a vote of 127 to 126 on October 17, 1917. 2 Debates in the Constitutional Convention 1917-1918, 737-739 (1918). Concerned that, if social welfare legislation should be found unconstitutional as had happened with mandatory workers' compensation legislation in New York, the people would not be able to amend the Declaration of Rights through the initiative process to make this type of legislation constitutional, Walker sought reconsideration which failed by a 117-to-124 vote. Id. at 739-740. After further debate on the relationship between social welfare legislation and the Declaration of Rights, Walker's motion to strike out the previously adopted Churchill amendment passed by a 147-to-137 vote in mid-November, 1917. Id. at 948. Churchill's subsequent attempt to reinstitute his initial amendment failed, and the convention eventually adopted, by a vote of 107 to sixty-six, a motion by John Merriam of Framingham which became the present language of art. 48, The Initiative, II, § 2, which now concerns us. Id. at 1000-1003. Merriam's amendmen...