Opinion of the Justices to the Senate

Decision Date27 April 1978
Citation375 Mass. 795,376 N.E.2d 810
PartiesOPINION OF THE JUSTICES TO THE SENATE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

On April 27, 1978, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable 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 23, 1978, and transmitted to the Justices on March 28, 1978. The order recites that there is presently pending before the General Court an initiative petition seeking passage, under the provisions of art. 48 of the Amendments to the Constitution of the Commonwealth, of a proposed law entitled, "An Act to control conflicts of interest by public officials" (House No. 5151). The proposed act, a copy of which was transmitted to us with the order, would require certain State and county public officials and employees, as well as candidates for elective and certain appointive State and county offices, to disclose their financial interests publicly each year. To administer and enforce the provisions of the act, a five-member State Ethics Commission would be established. The requirements of the act would apply in the three branches of government.

The order declares that, in accordance with art. 48, the General Court must vote on the measure before May 3, 1978, and if the General Court fails to enact it, the measure, subject to certain conditions, must be submitted to the people at the next State election. Art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. Instead of enacting the measure, the order further states, the General Court may at any time adopt and submit to the people a legislative substitute as an alternative to the proposed law. Art. 48, The Initiative, III, § 2. Expressing grave doubts as to the constitutionality of the proposed act, the Senate has requested the opinions of the Justices on the following questions:

"1. (a) Would the enactment of section 6 of the bill, imposing upon elected and appointed public officials, public employees and candidates for elective public office an obligation to file a statement of financial interests, violate a right of privacy of the persons required to file and the members of their immediate families, or of others whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Articles I, XIV and XVI thereof?

"(b) If the answer to (a) above is "Yes", does the violation of the right of privacy included in the right of 'protection from unreasonable search,' or in a right of association protected by the right of 'freedom of speech,' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"2. (a) Would Section 6 of the bill, as applied to candidates for and holders of the constitutional public offices of the Commonwealth, impermissibly add to the qualifications for such offices established by the Massachusetts Constitution; or, as applied to any candidate for or holder of elective public office, violate his right to seek public office and the right of the electorate to vote for him, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Article IX thereof?

"(b) If the answer to (a) above is 'Yes', does the violation or (sic ) the right included in the right to 'freedom of elections' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"3. (a) Would the enactment of Sections 6, 8 and 11 of the bill violate Article XXX of the Massachusetts Declaration of Rights insofar as it imposes filing and other requirements on personnel of the judicial department other than judges, (see definitions in subsections (l) and (m) of section 2 of the bill) insofar as section 7(b)(2) of the bill requires disclosure by members of the bar seeking or holding public offices of information concerning their relationships with clients?

"(b) Do any of the provisions of the bill imposing such requirements or requiring such disclosure relate 'to the powers . . . of courts,' result in nullifying said provisions so that they fail to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII because they are excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"4. Would the enactment of Section 6(d) of the bill prohibiting a public official from taking the oath of office or entering or continuing upon his duties unless he has filed a statement of financial interests, as applied to persons elected to the Senate or House of Representatives of the Commonwealth, violates Part 2, Chapter 1, Section 2, Article 4 or Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution, respectively guaranteeing to those branches the right to be the final judge of the elections, returns and qualifications of their members?

"5. Would the enactment of the bill, particularly Sections 6 to 10, inclusive, creating a code of ethics applicable to members of the Senate and the House of Representatives of the Commonwealth, and Section 11 of the bill, affecting the composition of committees or subcommittees of those bodies, conflict with the right of the House of Representatives and the Senate to determine their own rules, as guaranteed respectively by Part 2, Chapter 1, Section 2, Article 7 and Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution?

"6. (a) Would the provisions of the bill empowering a State Ethics Commission, appointed in the manner described in the bill, to impose the sanctions set forth therein for violations thereof and of chapter 268A of the General Laws, in particular, in section 5(d) thereof, the imposition of a 'civil penalty of not more than $1,000' authorized by Section 5(d), violate Article XII or Article XXX of the Massachusetts Declaration of Rights?

"(b) Are such sanctions, or any of them authorized by the bill inconsistent with the 'right of access to and protection in courts of justice' or 'the right of trial by jury' guaranteed by the Massachusetts Declaration of Rights, or do such sanctions relate 'to the powers . . . of courts,' with the result that the provisions providing for such sanctions are nullified and fail to become 'introduced and pending' before the general court in accordance with Section 4, Part 2 of said Article XLVIII because they are excluded as a proper subject of an initiative petition by Section 2, Part 2 of said Article XLVIII?

"7. Are the provisions of section 3 of the bill authorizing the state secretary and the attorney general to appoint and remove members of the State Ethics Commission created by said bill constitutional?

"8. If the answer to question 1(b), 2(b), 3(b) or 6(b) is that any portion of the bill is excluded as not being properly subject to an initiative petition, is such portion, or portions, of the bill severable so that the remainder of the bill, or so much thereof as is not excluded, is 'introduced and pending' before the general court in the meaning of Section 2, Part 2 of said Article XLVIII?"

Upon our invitation for briefs from interested persons, the Attorney General, the Senate Committee on Ethics, and Common Cause of Massachusetts (sponsor of the initiative petition) have submitted briefs.

We have no doubt that a solemn occasion exists authorizing and requiring us to respond to the important questions of law set forth in the order. Part II, c. 3, art. 2 of the Massachusetts Constitution, as appearing in art. 85 of the amendments. Article 48 grants to the people the right, through the use of a special legislative procedure, to enact laws directly without being thwarted by an unresponsive Legislature. Buckley v. Secretary of the Commonwealth, --- Mass. ---, --- - --- a, 355 N.E.2d 806 (1976). However, art. 48 also imposes on the General Court the duty to vote on the enactment of the proposed law. Art. 48, The Initiative, V, § 1. It must vote on the measure only if it is "introduced and pending." Art. 48, The Initiative, II, § 4; V, § 1. Thus the issue whether the proposed act is "introduced and pending," raised by several of the questions, relates to a present duty in the performance of which the Senate may be aided by our opinions. Opinion of the Justices, 309 Mass. 571, 580-581, 34 N.E.2d 527 (1941).

The questions regarding the constitutionality of the measure, or parts of it, relate to a matter pending before the General Court, for the answers may assist the Legislature in deciding whether to vote for the measure and whether to submit to the people a legislative substitute. Id. at 580-581, 34 N.E.2d 527. Sensitive to the fundamental principle of separation of powers and protective of the people's right to enact laws directly, this court has refrained from passing on the constitutionality of laws proposed by initiative petition when suit was brought to prevent the measure from appearing on the ballot. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 243-247, 69 N.E.2d 115 (1946). 1 But when we are asked to discharge our constitutional duty to advise a branch of the Legislature regarding the constitutionality of a law...

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