Opinions of the Justices to the House of Representatives

• Decision Date: 15 June 1998
• Citation: 427 Mass. 1211,696 N.E.2d 502
• Parties: OPINIONS OF THE JUSTICES OF THE HOUSE OF REPRESENTATIVES
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 502

696 N.E.2d 502

427 Mass. 1211

OPINIONS OF THE JUSTICES OF THE HOUSE OF REPRESENTATIVES

Supreme Judicial Court of Massachusetts.

June 15, 1998.

On June 15, 1998, the Justices submitted the following reply to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit this reply to the questions set forth in an order adopted by the House on February 26, 1998, and transmitted to us on March 3, 1998. ¹ The order recites the pendency before the General Court of a bill printed as House Bill No. [427 Mass. 1212] 2194, entitled "An Act relative to employee benefits in the city of Boston."

The bill provides as follows:

"Section 1. Notwithstanding the provisions of any other general or special law to the contrary, including, without limiting the generality hereof, the provisions of G.L. c. 32B, § 2(b), the city of Boston is hereby authorized to extend health benefit coverage to 'domestic partners' of city employees and their 'dependents', as said terms shall from time to time be defined by said city or ordinance.

"Section 2. This act shall take effect upon its passage."

The questions are:

"1. May the city of Boston, acting by means of its home rule powers set forth in sections 1 and 6 of Article 2 of the Amendments to the Constitution of the Commonwealth (as amended by Article 89), enact the provisions of House No. 2194 without the approval of the General Court, thereby rendering any legislative action unnecessary, or would such action by the city be inconsistent with existing general laws, including Chapter 32B of the General Laws, in violation of the provisions of said section 6 or be in violation of clause (5) of section 7 of said Article 2, thereby requiring legislative action on this bill?

"2. Does House No. 2194, which allows the city of Boston to define the terms 'domestic partners' and 'dependents,' from time to time, constitute an improper delegation of the powers of the Legislature in violation of the Constitution of the Commonwealth, particularly Part I, Article 10 or Part II, chapter 1, section 1, Article 4?"

Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments, provides that "[e]ach branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the supreme judicial court, upon questions of law, and upon solemn occasions." The Justices' constitutional duty is to render opinions only when they are properly required, and to abstain from answering questions of law not required under this provision. Answer of the Justices, 319 Mass. 731, 733-734, 66 N.E.2d 358 (1946). A solemn occasion exists "when the Governor or either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes." Answer of the Justices, 364 Mass. 838, 844, 302 N.E.2d 565 (1973), quoting Answer of the Justices, 148 Mass. 623, 626, 21 N.E. 439 (1889). When the opinion of the Justices "would not assist the requesting body in carrying out a present duty ... no solemn occasion exists and the Justices are constitutionally restrained from rendering an opinion regardless of the importance of the particular questions." Answer of the Justices, 426 Mass. 1201, 1203-1204, 686 N.E.2d 444, 446 (1997), citing Answer of the Justices, 406 Mass. 1220, 1224, 547 N.E.2d 17 (1989) (declining to answer questions asked by Acting Governor where no question raised concerning Acting Governor's power or authority). We adhere strictly to our authority to render advisory opinions in order to "safeguard the separation of powers embodied in art. 30 of the Massachusetts Declaration of Rights." Id. at 1203, 686 N.E.2d 444, citing Answer of the Justices, 373 Mass. 898, 901, 367 N.E.2d 793 (1977); Answer of the Justices, 362 Mass. 914, 916-917, 291 N.E.2d 598 (1973); Answer of the Justices, 150 Mass. 598, 601, 24 N.E. 1086 (1890); Answer of the Justices, 148 Mass. 623, 624, 21 N.E. 439 (1889).

Question 1. Question 1 asks whether the city of Boston (city) constitutionally may provide health insurance benefits to "domestic partners" and their "dependents" without first obtaining the approval of the Legislature, as provided in House No. 2194. ² We decline to answer the question because no solemn occasion is presented. A solemn occasion is presented when there is serious doubt about the power and authority of the requesting branch to take action without violating the Constitution or existing statutes. Answer of the Justices, 356 Mass. 769, 773-774, 250 N.E.2d 450 (1969). Question 1 concerns the power to act of the city, not of the House, the requesting body. ³ In Answer of the Justices, 356 Mass. 769, 250 N.E.2d 450 (1969), the House requested an opinion regarding a home rule petition that would establish the power of the city to adopt a rent control ordinance in the event of a public emergency. The House asked whether the city had the power under the home rule amendment to adopt the rent control ordinance without a special enabling act passed by the General Court, a question similar in form to the one asked here. The Justices concluded that the bill was "a device to raise a constitutional question as to the power of the city council rather than of the Legislature," id. at 773, 250 N.E.2d 450, and declined to answer the question. Here, Question 1 asks whether legislative action is "unnecessary"; it does not suggest that the House has expressed any "doubt as to the existence of any power of its own." Id. at 773, 250 N.E.2d 450. For the reasons that the Justices explained in 1969, we similarly conclude that no solemn occasion is presented here.

Unlike the question presented by the House in Answer of the Justices, 356 Mass. 769, 771, 250 N.E.2d 450 (1969), Question 1 asks further whether action by the city to extend health benefit coverage to "domestic partners" of city employees and their "dependents" would be "inconsistent" with existing general laws, including G.L. c. 32B. The Attorney General suggests that the Justices should further decline to answer Question 1 because, in this respect, the question asks for an interpretation of an existing law and is, therefore, not a solemn occasion. ⁴ "[A] request for an opinion regarding the effect or construction of a statute is not an 'important question of law' or a 'solemn occasion' within the meaning of the Constitution." Opinion of the Justices, 383 Mass. 895, 915, 424 N.E.2d 1092 (1981). In 1981, the Justices declined to answer a question concerning the effect of proposed legislation and noted that, generally, the Justices decline to answer questions about the interpretation of existing laws because that would not affect the Legislature's power to declare--within constitutional limits--a bill's intended meaning. Id. at 915-916, 424 N.E.2d 1092. Here, however, the constitutional authority of the city to act would depend on whether its actions would be "inconsistent" with existing legislation because § 6 of art. 89, of the Amendments to the Massachusetts Constitution, places precisely that limitation on the exercise of power by a city or town: were we permitted to answer Question 1, we would, of necessity, be required to determine whether the proposed ordinance was "not inconsistent with the constitution or laws enacted by the general court," including G.L. c. 32B. However, because Question 1 concerns the power of the city to act, and does not concern the power of the House to act, we may not consider whether the extension of health care benefits as described in House No. 2194 is inconsistent with G.L. c. 32B, or any other existing general law. See Bloom v. Worcester, 363 Mass. 136, 150, 293 N.E.2d 268 (1973) (describing alternative procedure for determining whether city ordinance "inconsistent" with existing general laws).

Even if Question 1 could be construed to ask whether the House, rather than the city, has the authority to adopt the home rule petition, and we do not suggest that such a construction is possible, it is obvious from the text of Part II, c. 1, § 1, art. 2, of the Massachusetts Constitution that the House has such authority, regardless of whether the adoption of the home rule petition is "necessary" for the city to act, and for this additional reason no solemn occasion is presented. In Answer of the Justices, 406 Mass. 1220, 547 N.E.2d 17 (1989), the Justices were asked by the Senate to consider the effect of proposed legislation on a general appropriation act in light of action taken by the Governor purporting to veto parts of the bill. The Justices concluded that it could not be "seriously doubted" that the Legislature had the power to amend prior legislation, id. at 1225, 547 N.E.2d 17, no matter how the Justices responded concerning the proposed amendments. Because it would not affect the Legislature's ability to amend the legislation, the Justices replied that no solemn occasion was presented. Id. See Opinion of the Justices, 383 Mass. 895, 915-916, 424 N.E.2d 1092 (1981) (no solemn occasion because no question whether doubt exists as to the power of the Legislature to act). Similarly here, it cannot be doubted the Legislature would have the power to adopt House No. 2194, even if we concluded that the home rule petition was "unnecessary."

Question 2. Question 2 asks whether House No. 2194 is an "improper delegation" of the powers of the Legislature to the city of Boston in violation of art. 10 of the Massachusetts Declaration of Rights or Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution. We answer Question 2, "No."

We consider first the requirements of Part II, c. 1, § 1, art. 4. ⁵ If the city has the power to enact the proposed ordinance without the approval of the Legislature, as several...