Opinion of the Justices to the Council

Decision Date09 September 1975
Citation368 Mass. 866,334 N.E.2d 604
PartiesOPINION OF THE JUSTICES TO THE COUNCIL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

In introductory paragraphs, the Executive Order states, among other things, that 'under the Constitution and laws the Governor is charged with the responsibility of nominating and appointing, with the advice and consent of the Executive Council, all judicial officers,' and that 'the high quality of judicial officer appointments can best be assured by the use of a non-partisan judicial nominating commission composed of outstanding laymen and lawyers in aid of the discretion reposed in the Governor.' The Executive Order provides for a judicial nominating commission of eleven members 'to advice the Governor with respect to all appointments of judges and clerks of court, and the designation of chief justices of all courts.' The Executive Order further provides that '(a) member may be removed by the Governor upon recommendation of the Commission by vote of at least seven of its members that cause exists.' The Executive Order also states that the members of the Commission are not to be compensated 'but shall be reimbursed for customary and usual expenses directly incurred in the performance of their duties.' 'All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the Commission, but shall be available to the Governor and the Governor's representatives.' For each vacancy the Commission is directed to submit to the Governor not less than three names of qualified persons willing to serve. The Governor may refuse to nominate anyone from that list and may require the Commission to submit a second list of not less than three other qualified persons willing to serve. The Executive Order states that the Governor shall nominate a person from either the original or supplementary list and that he shall publicly announce the name of the person he intends to nominate at least fourteen days prior to the date of the nomination. The Executive Order states that it 'shall continue in effect until amended, superseded or terminated by subsequent Executive Order.'

The order of the Council states that the Council has expressed grave doubt, about the constitutionality of the Executive Order; that the Governor has appointed the Commission and has personally administered the oath of office prescribed by Part II, c. 6, art. 1, of the Constitution of the Commonwealth; that each member of the Commission has signed the record book maintained for public officers; that a nominee for each of three vacancies on District Courts has been submitted to the Council, the first nominees to be named in accordance with the terms of the Executive Order; and that because of grave doubts about the constitutionality of the Executive Order, the Council requests the opinion of the Justices of this court on certain questions relative to that order.

The questions propounded are:

'1. Is the Executive Council, in accordance with the oath of office prescribed in Part the Second, Chapter VI, Article I of the Constitution of the Commonwealth of Massachusetts, solemnly subscribed and sworn to by all of its members, constitutionally required to accept and act upon the names of Guy Volterra, Allan McGuane, and Philip J. Murphy as nominees for Justices of The First District Court of Bristol, The District Court of Franklin, and The District Court of Fitchburg, respectively, pursuant to the provisions of Part the Second, Chapter II, Section I, Article IX of the Constitution of the Commonwealth of Massachusetts, such names having been determined by His Excellency, Michael S. Dukakis, Governor of the Commonwealth, in accordance with the provisions and procedures of Executive Order No. 114, whose provisions and procedures the Executive Council believes to be unlawful in whole or in part as violative of Part the First, Article XXX of the Declaration of Rights; Part the Second, Chapter I, Section I, Article IV; Part the Second, Chapter I, Section III, Articles VII, X, and XI; Part the Second, Chapter II, Section I, Articles I, IX, and XI; and Article LXIII of the Articles of Amendment of the Constitution of the Commonwealth of Massachusetts as well as General Laws, Chapter 30, Section 9?

'2. Is it constitutionally competent for the Governor to create civil or public offices not established by the Constitution or duly enacted statutes of the Commonwealth of Massachusetts merely through the execution, promulgation, and implementation of Executive Order No. 114 providing for the creation of an eleven member Judicial Nominating Commission, without violating Part the First, Article XXX of the Declaration of Rights; Part the Second, Chapter I, Section I, Article IV; and Part the Second, Chapter II, Section I, Article I of the Constitution of the Commonwealth of Massachusetts?

'3. If the answer to question 2 is in the affirmative, and the members of the Judicial Nominating Commission are accordingly deemed to be civil or public officers, is it constitutionally competent for the Governor to relinquish any part of the power, to abandon any part of the duty, or to surrender any part of the exercise of discretion exclusively reposed in him under the provisions of Part the Second, Chapter II, Section I, Article IX of the Constitution, with respect to the nomination and appointment of all judges and clerks of court, and the designation of chief justices of all courts, without violating said Article IX, by binding himself in accordance with the provisions of Section 5 of Executive Order No. 114 only to the selection of those individuals for judicial office whose names appear on the list or lists of 'qualified persons willing to accept the office' and transmitted thereunder to him?

'4. If the answer to question 2 is in the negative, and the members of the Judicial Nominating Commission are accordingly not deemed to be civil or public officers, is it constitutionally competent for the Governor to delegate any part of the power, duty, and discretion exclusively reposed in him by Part the Second, Chapter II, Section I, Article IX of the Constitution, with respect to the nomination and appointment of all judges and clerks of court, and the designation of chief justices of all courts, to a private group of citizens by binding himself in accordance with the provisions of Section 5 of Executive Order No. 114 only to the selection of those individuals for judicial office whose names appear on the list or lists determined by the Judicial Nominating Commission to be 'qualified persons willing to accept the office' and transmitted thereunder to him without violating said Article IX and Part the First, Article XXX of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts?

'5. Is it constitutionally competent and otherwise lawful for the Governor to surrender, abdicate or circumscribe his power of removal of members of the Judicial Nominating Commission by requiring in accordance with Section 3 of Executive Order No. 114 as a condition precedent to any such removal the 'recommendation of the Commission by vote of at least seven of its members that cause exists' to warrant or justify such removal without violating Part the First, Article XXX of the Declaration of Rights; Part the Second, Chapter I, Section I, Article IV; and Part the Second, Chapter II, Section I, Article I of the Constitution of the Commonwealth of Massachusetts and the provisions of General Laws, Chapter 30, Section 9?

'6. Is it constitutionally competent for the Governor to order, in accordance with the provisions of Section 3 of Executive Order No. 114, that the members of the Judicial Nominating Commission 'shall be reimbursed for customary and usual expenses directly incurred in the performance of their duties' without violating Part the First, Article XXX of the Declaration of Rights; Part the Second, Chapter I, Section

III, Article VII; Part the Second, Chapter, II, Section I, Article XI; and Article LXIII of the Articles of Amendment of the Constitution of the Commonwealth of Massachusetts?

'7. Is it constitionally competent for the Governor to order, in accordance with the provisions of Section 4 of Executive Order No. 114, that the Judicial Nominating Commission adopt and make public procedures and standards for the conduct of its affairs, without violating Part the First, Article XXX of the Declaration of Rights; Part the Second, Chapter I, Section I, Article IV; and Part the Second, Chapter II, Section I, Article I of the Constitution of the Commonwealth of Massachusetts?

'8. Is it constitutionally competent for the Governor, in accordance with the various provisions of Executive Order No. 114, to alter or vary substantially the constitutional provisions and established procedures with respect to the nomination and appointment of all judicial offices as set forth in Part the Second, Chapter II, Section I, Article IX of the Constitution by ordering the establishment of a Judicial Nominating Commission, empowering it as prescribed therein, and mandating its structure and procedures including the prohibition that no more than six members of the Judicial Nominating Commission shall be members of the same political party at the time of their...

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7 cases
  • Babets v. Secretary of Executive Office of Human Services
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 15, 1988
    ... ... We have previously declined to consider the question in the abstract. Opinion of the Justices, 368 Mass. 866, 880, 334 N.E.2d 604 (1975). This case squarely presents the issue ... ...
  • In re Answer of the Justices to the Council
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 8, 2012
  • Lambert v. Executive Director of Judicial Nominating Council
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 11, 1997
    ... ... c. 4, § 7, Twenty-sixth, 6 governs and that the JNC's questionnaire is a "public record." We do not agree ...         The Justices have said that "the Governor has broad discretion to select the means he will use in executing a constitutional duty." Opinion of the Justices, 368 ... ...
  • Teamsters Local Union No. 404 v. Secretary of Administration
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 7, 2001
    ... ... We conclude that the Governor, as the "supreme executive magistrate," Opinion of the Justices, 302 Mass. 605, 618 (1939), quoting Part II, c. 2, § 1, art. 1, of the ... ...
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