Opinion of the Justices to the Senate
Citation | 375 Mass. 795,376 N.E.2d 810 |
Parties | OPINION OF THE JUSTICES TO THE SENATE. |
Decision Date | 27 April 1978 |
Court | United States State Supreme Judicial Court of Massachusetts |
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, 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:
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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