Richards, In re

• Citation: 223 A.2d 827
• Parties: In the Matter of Robert R. RICHARDS and Gail L. Richards, Debtors.
• Decision Date: 09 November 1966
• Court: Supreme Judicial Court of Maine (US)

Page 827

223 A.2d 827

In the Matter of Robert R. RICHARDS and Gail L. Richards, Debtors.

Supreme Judicial Court of Maine.

Nov. 9, 1966.

George P. Limberis, Bangor, for debtors.

Berman, Berman, Wernick & Flaherty, Portland, by John J. Flaherty, Theodore H. Kurtz, Portland, and Edward L. Caron, Biddeford, for Aetna Finance Co.

Gerald .s. Cope, pro se.

James R. Flaker, Portland, Charles W. Smith, Saco, for trustee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

WEBBER, Justice.

Pursuant to 4 M.R.S.A. Sec. 57 questions have been certified to the Law Court by the United States District Court for the District of Maine. The matters in controversy stem from petitions for wage earner plans now pending in the Federal Court. The debtors and the trustee have seasonably filed a motion in this court to dismiss the certification proceeding on the ground that 4 M.R.S.A. Sec. 57 is violative of the Constitution of the State of Maine. By agreement the merits with respect to the questions certified were briefed and argued together with the motion to dismiss but decision on the motion must be reached before consideration may be given to the merits.

Art. VI, Sec. 1 of the Constitution of Maine provides: 'The judicial power of this State shall be vested in a Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish.' Sec. 3 provides: 'The justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.'

4 M.R.S.A. Sec. 57, dealing with the jurisdiction of the Supreme Judicial Court sitting as a Law Court, provides in pertient part:

'The following cases only come before the court as a court of law: * * * and questions of state law certified by the federal courts.

When it shall appear to the Supreme Court of the United States, or to any court of appeals or district court of the United States, that there are involved in any proceeding before it one or more questions of law of this State, which may be determinative of the cause, and there are no clear controlling precedents in the decisions of the Supreme Judicial Court, such federal court may certify any such questions of law of this State to the Supreme Judicial Court for instructions concerning such questions of state law, which certificate the Supreme Judicial Court sitting as a law court may, by written opinion, answer.'

Although the constitution makes no effort to define 'judicial power', it has been assumed that the Law Court could not render purely advisory opinions. This view may well have stemmed from and been strengthened by the inference to be drawn from the fact that a carefully restricted right to render advisory opinions was conferred upon the individual justices by Art. VI, Sec. 3. In any event, we felt no need to rationalize or elaborate when in LaFleur ex rel. Anderson, Atty. Gen. v. Frost et al. (1951), 146 Me. 270, 276, 80 A.2d 407, we said: 'The plaintiffs do not show there is a controversy between the parties by reason of which they are entitled to a judgment. A judgment would be not a declaratory judgment in the proper sense, but an advisory opinion given without warrant of authority on our part. 'It is essential that a controversy exist; for otherwise the petition would seek only an advisory opinion of the Court.' Maine Broadcasting Co., Inc. v. Eastern Trust & Banking Co. et al., 142 Me. 220, 49 A.2d 224, 225.' (Emphasis supplied.) Accepting the premise that neither the Law Court nor any other constituted court in this state has the constitutional authority to render purely advisory opinions, we turn to the more immediate question and consider what factors determine whether or not an action of the court is a proper exercise of 'judicial power'.

In State v. LeClair (1894), 86 Me. 522, 531, 30 A. 7, 9 (a case involving the issuance of a search warrant by a municipal court clerk) the court had occasion to discuss judicial power in these terms: 'No specific or precise definition of 'judicial power' is found in the constitution or laws for the State; but the phrase is commonly employed to designate that department of government which it was intended should 'interpret and administer the laws and decide private disputes between or concerning persons.' * * * By the 'judicial power' of courts is generally understood 'the power to hear and determine controversies between adverse parties and questions in litigation.' Daniels v. The People, 6 Mich. 381. It is the 'inherent authority, not only to decide but to make binding orders or judgments, which constitutes judicial power'; * * * Underwood v. McDuffee, 15 Mich. 361.' (Emphasis supplied.) It is urged here that the reference to 'binding orders or judgments' states an indispensable factor in the definition of 'judicial power' which is wholly lacking when questions are answered for a court in another jurisdiction. We do not think our court intended that such an inflexible meaning should be given to its borrowed phrase. In Underwood, the Michigan case from which the phrase was quoted, the issue was whether or not the constitution prevented references by consent. It could hardly be supposed that the Michigan court in 1867 or the Maine court in 1894 were effectively reaching into the future to preclude, for example, the use of declaratory judgments after federal abstention-which would after all be one necessary result of a narrow and inflexible interpretation of the phrase used.

In this connection we note with interest the later development of the Michigan law in the field of declaratory judgments where the same challenges with respect to 'judicial power' were proffered. The first enactment of 'An Act to authorize courts of record to make binding declaration of rights' in Michigan came in 1919. A divided Michigan court declared it to be unconstitutional in Anway v. Grand Rapids Ry. Co. (1920), 211 Mich. 592, 179 N.W. 350, 12 A.L.R. 26. This was a 'pioneer case' in this country. In an exhaustive opinion, Mr. Justice Fellows developed the thesis that the statute sought to compel the court to become the 'legal advisers of all seeking such advice * * * in advance of any infringement of their rights * * * and * * * in advance of any existing controversy'; that if proceedings under the statute 'do not square with the technical definition of a 'moot case', they possess all of its objectionable characteristics'; and that what amounts to an advisory opinion is not a proper exercise of 'judicial power', especially for the reason that 'our conclusions could not be made effective by final judgment, decree and process.' Thus the first Michigan act died aborning.

Its resurrection however was not long delayed. The new act was passed in 1929 and in it was inserted a provision that made it applicable only to 'cases of actual controversies.' In Washington-Detroit Theatre Co. v. Moore (1930), 249 Mich. 673, 229 N.W. 618, 68 A.L.R. 105, it met and passed the test of constitutionality without dissent. The court made it clear that 'a case for declaratory judgment must rest upon an actual controversy, be formally presented with proper parties, and is not a substitute for other regular actions.' The opinion carefully distinguishes the situation presented by the grant of powers to the federal courts by the Constitution of the United States limited by Art. III, Sec. 2 to 'cases' and 'controversies' from that presented by a state constitution which transmits the whole judicial power to the state court unless expressly restricted. In this connection the court said: 'This historical argument, however much it may circumscribe a government of granted powers, is not applicable to a sovereign state whose inherent powers enable it to attempt solution of any social problem arising from current conditions, and which may adventure into experiment for the public welfare.' Turning directly to 'judicial power', the court said in part: 'Where an actual controversy exists between parties, it is submitted in formal proceedings to a court, the decision of the court is binding upon the parties and their privies and is res judicata of the issue in any other proceeding in court in which it may be involved, what else can the decision be but the exercise of judicial power?' The court did not regard the granting of consequential relief as an essential factor in determining whether or not an action of the court was an exercise of judicial power. The opinion states: 'In many cases of ordinary actions the mere determination of rights by judgment or decree ends the controversy. An execution or order of enforcement is issued at the instance of a party only where such determination does not suffice. * * * Whether consequential relief be granted upon the original or a subsequent petition, and whether an order of enforcement be had of course or on application, go merely to the practice, not to the power of the court.' (Emphasis ours.) Rauh v. Fletcher Savings & Trust Co. (1935), 207 Ind. 638, 194 N.E. 334.

We are satisfied that our own concept of the relationship between declaratory judgments and 'judicial power' fully accords with that of the Michigan court. Although the constitutionality of our declaratory judgment statute has not been challenged, we had no hesitation in School Administrative Dist. #3 v. Maine School Dist. Comm. et al. (1962), 158 Me. 420, 422, 185 A.2d 744, 745 in declaring rights without granting any consequential relief. We said in part: 'The controversy is of sufficient moment to justify a determination thereof by this court. This proceeding will terminate the controversy and remove the uncertainty which now exists in regard to whether the Town of Brooks can legally initiate proceedings to dissolve the District. We believe that the Declaratory Judgment Act was designed to provide a suitable remedy in cases such as this.' In...