senate no. 2500 - new england school of law general (see senate, no. 1959 of 1984) • adopted by...

SENATE

_/

SPECIAL REPORT OF THE

SENATE COMMITTEE ON RULES

Relative to the

Rule-Making Powers of the Two Branches of the General Court

An Anthology of Legal and Research Documents Relating to the Case of Paisner v. Attorney General

Compiled Pursuant to the Senate Order, Senate No. 1959, Adopted on Feb 23, 1984

JULY 23, 1984

No. 2500

AUTHORIZING ORDER

SENATE • No. 1959

[Senate, February 23, 1984 - Offered by Senator William M. Bulger.]

THE COM>iONWEALTH OF MASSACHUSETTS

Senate, February 23, 1984.

Ordered, That the committee on rules on the part of the senate is hereby authorized and directed to prepare an anthology of the legal and research documents which were compiled in relation to the case of Paisner v. Bellotti regarding the rule-making powers of the two branches of the general court, the constitutional status of legislative rules, and the use of conventional and initiative statutes to mandate legislative organizations and procedures; that such anthology be assembled for said committee by the Legislative Research Bureau, under the supervision of the Counsel to the Senate; that the report of the committee containing said anthology, as approved by said committee, shall be filed by the committee with the clerk of the senate not later than the first Wednesday in April in the year nineteen hundred and eighty-four, to be printed for the information of members of the general court, and for the National Conference of State Legislatures to be held in the city of Boston, in that year; and that the number of such reports to be so printed shall be determined by said committee.

Adopted by the Senate, February 23, 1984.

(Unnumbered~Order Extending Due Date)

Ordered, That the time be extended to the fourth Wednesday in July in the current year when the committee on Rules on the part of the Senate is required to report on an anthology of the legal and research documents pertaining to the case of Paisner v. Attorney General (see Senate, No. 1959 of 1984) •

Adopted by the Senate, July 9. 1984.

. SC· HOOl OF LAW ltBRARY "·'C\~' ~~tGtANO ·

1' I I'\

.~9 m ~-t 10.vLJ t l \J ·,

SPECIAL REPORT OF THE

SENATE COMMITTEE ON RULES

Relative to the

Rule-Making Powers of the Two Branches of the General Court

NEW ENGL~ND SCHOOL OF LAW lf9RARY

Received :tq~ (/Y5

Source_---"--~-------'

Accession f --'-LioQo~.L-------1

Initial

An Anthology of Legal and Research Documents Relating to the Case of Paisner v. Attorney General

Compiled Pursuant to the Senate Order, Senate No. 1959, Adopted on Feb 23, 1984

JULY 23, 1984

HONORABLE WILLIAM M. BULGER President of the Massachusetts Senate

CONTENTS

Page Order Authorizing Study Message of the Senate President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . Letter of Transmittal to the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . u Letter of Transmittal to the Senate Rules Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

* * * * * * * * A Narrative Summary of Issues and Arguments

The Controversy: Legislative Rules - May The People Revise Them? ....................... . The Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... .

1 5

The Attorney General Declines To Certify; The Issue Is Joined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Plaintiff - Coalition Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Defendant - Attorney General's Argument ........... : • . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Intervener - Senate President's Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . • . . . 12 The Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . 14 Reflections ............................................................. . 19

Paisner v. Attorney General. Official Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . 23

Attorney General's Summary oflnitiative Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Complete Text of Initiative Petition 83-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Attorney General's Letter Declining to Certify Petition . . . . . . . . . . . . . . . . • • . . • . . . . . . . . . . . . . . 63

Complaint Filed in Supreme Judicial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 65

Brief for the Plaintiffs (Coalition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Brief of the Defendants (Attorney General) .....•......................•.•.....••..... 145

Brief for the Defendant-Intervener (Senate President) ..........•...•..............•...... 235

Supplemental Information ...............................................••..... 305

Selected Supplementary Material (Index List) ......................................... 306

Letter of August 18, 1983 from Senate President to Attorney General .•........................ 307

Letter of August 31, 1983 from Senate President to Attorney General .......................••• 311

Letter of September 7, 1983 from Senate President to Attorney General .............•.•....•... 321

Letter of August 26, 1983 from Research Director to Senate President and House Majority Leader •......................••...................•...... 324

Memorandum of November 8, 1983 from Research Director to Special Counsel to the Senate President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327

Letter of August 26, 1983 from Research Director to House Majority Leader ..................................................•...•.....•.... 332

List of Citations of Rulings by Speakers of the U. S. House of Representatives ..........................................................• 344

WILLIAM M. BULGER PRESIDENT

My fellow legislators:

OFFICE OF THE PRESIDENT

MASSACHUSETTS SENATE STATE HOUSE, BOSTON 02133

July 23, 1984

In 1983, a coalition of advocacy groups undertook to seek the enactment, by way of the popular initiative, of statutes that would regulate important aspects of the legislative process. The proposed r~gulations, if enacted as laws, would have usurped the inherent power, buttressed by the Constitution, of each branch of each General Court to determine, apply and interp·ret its own rules of procedure. By requiriAg presentment of these legislative enactments to the governor and their interp.retation by the judiciary, the proposed measures would have impermissibly entangled the executive and judicial departments of the Commonwealth in the affairs of each branch of the legislative department.

I had no doubt of the ability of the Attorney General to analyze the harmful impact of the proposed enactments and to make the appropriate distinction between laws enacted by the General Court and the rules of each branch of the General Court. At the same time, I deemed it of importance that the legislature be directly represented in challenging the coalition's proposals. These proposals would have the effect not of reforming but of crippling the operation of the legislature.

Legislative experience yields a unique insight into the practical consequences that flow from measures, however well-intentioned, that could strangle the orderly functioning of each branch of the legislature. My substantial service, first in the House of Representatives and later in the Senate and as President of the Senate, persuaded me that I had a clear responsibility to support the Attorney General's arguments against certification of the proposed initiative.

My motion to intervene was granted by the court. I was thereby given the opportunity to bririg into focus the historical concepts underlying the powers of our legislative bodies and the extent of the authority vested by our Constitution in each branch of the legislature.

Examination of the materials contained in this presentation will illuminate the importance of respecting and protecting the integrity of the legislative process. The legal bases supporting the positions advocated by the participants in the controversy are set forth. The decision of the Supreme Judicial Court is a landmark in constitutional law. It confirms the exclusive power of each branch of each General Court to establish, apply and interpret its own rules of procedure·.

SENATE RULES COMMITTEE ROOM 431. STATE HOUSE

BOSTON. MA 02133 TEL. 722-1520

[email protected] ~mulµts~tts

~tmth

~Ude ~mn;e • ~nshnt

July 23, 1984

To the Honorable Senate:

FELLOW SENATORS: - In conformity with the order, Senate, No. 1959 of 1984, your Committee on Rules is pleased to submit its report containing an anthology of selected legal and research documents pertaining to the landmark decision of the Supreme Judicial Court in Paisner v. Attorney General, rendered on December 14, 1983 (390 Mass. 593).

The first such judicial case in the country, Paisner v. Attorney General involved a grave challenge to the constitutional freedom of each branch of the General Court to adopt its own rules of procedure and organization, posed by Initiative Petition 83-14 of the Citizens 'for Limited Taxation, Common Cause, Citizens for Participation in Political Action, and others. That petition, invalidated by the Court, in Paisner, proposed to establish such rules by means of an initiative law.

As Paisner v. Attorney General raised previously unadjudicated questions as to the constitutional and legal status of legislative rules, and constitutional questions as to the rule making powers of our Senate and House of Representatives, a massive research effort was undertaken on behalf of the General Court by regular and special counsel to the two branches, the staff of the Senate Committee on Rules, and the Legislative Research Bureau. The result of their research, compiled with the assistance of staff of the two branches of Congress, legislative research agencies of other states, and constitutional experts across the nation, are incorporated in the documents reproduced in this anthology. Also included are the opinion of the Supreme Judicial Court in Paisner, and texts of selected briefs filed with the Court.

The contents of this anthology thus comprise an invaluable source of information for the members and leadership of the General Court, legislative leaders across the nation, and constitutional scholars concerned with the legislative process. Its publication this year is especially appropriate in view of the forthcoming meeting of the National Conference of State Legislatures here in Boston from July 23 to July 27, 1984.

The Committee expresses its appreciation to the late Hon. James R. Mcintyre, Counsel to the Senate, and Mr. Daniel M. O'Sullivan, Director of the Legislative Research Bureau, for their assistance in preparing this document.

~.;;ctfully submitted,

~z&~,,~~.er William M. Bulger - ~

ii FOR COMMITTEE ON RULES

Members of Council

SEN. ANNA P. Bucra.EY of Plymouth, Chairman SEN.eSEPHB. WALSH of Suffolk SEN. OHN F. PARUR of Bristol, Minority Leader SEN. RC. WEBBER of Berkshire REP. ROBERTO. MCNEIL of Leicester, HoweChainnan REP. WILLIAM]. FLYNN.JR. of Hanover REP. WILLIAM P. NAGLE,/R. of Northampton REP. JOSEPH M. NAVIN o Marlborough REP. IRIS K. HOLLAND of Longmeadow REP. SHERMAN w. SALTMARSH. )R. of Winchester REP. BRUCE N. FREEMAN of Chelmsford REP. CHARLES N:DECAS of Wareham

Legislative Research Bureau DANIEL M. O'SULLIVAN. Director ROBERT D. WEBB, Assistat1t Director

LEGISLATIVE RESEARCH COUNCIL LEGISLATIVE RESEARCH BUREAU

11 BEACON STREET, BoSTON, MASSACHUSE'ITS 02108 Sum: 1212

TELEPHONES: 722-2345 722-2028

July 23, 1984

To the Honorable Senate Committee on Rules:

MR. PRESIDENT, LADIES AND GENTLEMEN: In compliance with your instructions, the Legislative Research Bureau respectfUlly submits herewith a compilation or anthology of legal and research documents bearing on the case of Paisner v. Attorney General, 390 Mass. 593 (1983), regarding the constitutional status of legislative rules, the rule-making powers of the two branches of the General Court, and the attempted use of initiative petition procedures to establish legislative rules by means of an initiative law.

This anthology includes reprints of selected briefs and certain other documents of major importance in fUll, while presenting only excerpts from other documents prepared or assembled in relation to the above case. Documents of minor significance have been omitted. We are confident that the resulting anthology will serve the purposes which your Honorable Committee has in mind, and thus it will be a major contribution to the literature on the legislative process in the United States.

Rtt:-submi Dani~Van, _..1---.,..-Legislative Research

111

A NARRATIVE SUMMARY

of the

ISSUES AND ARGUMENTS

in

PAIBNm V. A'r!ORNEY GENERAL

390 Maas. 593 (1983)

stemming from the

1983 INITIATIVE PF.'.rlTION TO REFORM LIDISLATIVE RULES

******

I. The Controversy: Legislative Rules - May The People Revise Tbem.?

II. The Petition

III. The Attorney General Declines To Certify; The I&1ue Ia Joined

IV. The Plaintiff - Coalition Argument

V. The Defendant - Attorney General' a Argument

VI. The Intervener - Senate President's Argument

VII. The Court's Decision

VIII. Retlections

I. The Controversy: Legislative Rules - May The People Revise Them?

The collected documents and correspondence that make up this anthology are

about a seemingly dry topic: rules of procedure in a legislative body. As one re

porter put :!t, "It is not a very sexy subject." Still, this deceptively dull theme

became a principal topic of interest in Massachusetts through the sUDlller and fall of

1983. The cause of that sudden flurry of attention was an initiative measure dratted

by an alliance of political activist groups :f'used under the title of Coalition tor

Legislative Reform. Although the proposed statute included brief sections dealing

with legislative pay and independent review of internal legislative papers and

accounts, the gist of the measure was a substantive recasting of the legislative

rules of procedure.

For those who have had little or no contact with the operation of legisla

tive assemblies, the Coalition's rules reform package may not seem to be the stuff'

of great moment. But tor those who are conversant with constitutional law, with

parliamentary history, with legislative procedures, an;r proposal to reform legisla

tive rules originating outside the Legislature is not to be taken lightly. It was

with good reaaon that the right of each House of Parliament to exclude all outside

interference within its own walls was written into the English Bill of Rights in

1688. It was with good reason that the first constitutional convention in Massa

chusetts incorporated that right into its proposed constitution in 1778, a right that

John Adams retained in his dratt ot l78o, and a right that the people of Massachusetts

ratified that same year.l

Indeed, the universality ot this traditional right among legislative aaaea

blies in the Engl.i1h colonies is reflected in language ot the constitutions of

aeveral ot the original states providing that houses of the Legislature detel'lline

1 Ma11. Const. Pt. l, c. 1, S. 2, Art. 7 (Se11&te); Pt. 2, c. 1, s. 3, Art. 10 (House).

1

their own rules of procedure. The Massachusetts Supreme Judicial Court affirmed

that right in Coffin v. Coffin, 4 Mass. 1, 34, an 18o8 decision. When the Supreme

Court of the United States, in a 1983 decision, Inm.igration & Naturalization Service

v. Chadha, 454 U.S. 812, 103 s. Ct. 2764, declared: "Among the unicameral powers (of

Congress) recognized by the Court is the power of each branch to act alone in de

termining its own rules and other internal matters," it was affirming that same

historical right. For three centuries, therefore, in both English and American

jurisprudence, the-prerogative of a legislative assembly to adopt its own rules

free from outside interference has been unquestioned.

Thus, so basic, so fundamental, so cherished and guarded is this venerable

right, one has to ask: what possessed the Coalition to pursue a course in conflict

with the Constitution, and counter to tradition and the privileges of parliamentary

bodies over a period of centuries? The answer lies in what the reformed rules pro

posed. The President of the Senate, the Honorable William M. Bulger, perceived at

once that while the legislative pay cut would serve as a principal decoy, guaran

teed to draw public favor, the rules reform was the real trap for it would net the

primary objective of the petitioners: to capture control of the legislative process

by way of diluting power and authority. If the Legislature were to remain something

more than a debating society or a mere Tower of Babel, its basic structure must be

preserved. A presiding officer, elected by the membership and responsive to it,

would be essential to an effectively functioning body. The fundamental question of

whether the Legislature would remain a coequal, coordinate branch of the government

was at stake.

It was not necessary for the Senate President to comment on the motives

of the petitioners or on the scope and impracticality of the measure. It was enough

to state that because the subject matter of the proposal was legislative rule making,

the proposal on its face was unconstitutional. The Constitution, after all, contains

clear and unambiguous language that reserves to each branch of the General Court the

2

power to choose its own presiding officer and to determine its own rules of pro

ceedings. Given this supreme source of authority, the President intimted that

should the measure ever become law it could provoke a constitutional confrontation

between the Legislature and the Judiciary because it was certain that each branch

of the Legisl&tve would exercise its constitutional prerogative to set its own

rules. Put bluntly, it could be expected that both ~houses ot the Legislature would

ignore such a statute enacted under the popular initiative. That the proposed.

statute would be unconstitutional would be reason enough to ignore it but there

was another reason: the certainty of just how disruptive and impractical the stat

ute would be in its effect on legislative procedure were it to be the governing

procedural cocle tor the two branches.

In tact, in tbe time allotted for arguing before the Supreme Judicial

Court, cOW18el for the President chose to focus on the imprudence of the Coalition' a

proposal. Speaking last, counsel left the Justices with a vivid image of a reign of

con:tuion should the petition become law. At the very least, eoun1el began, there

would be a cataclysmic effect on the operations of the Legialature. Every a1pect

of the legielative branch ot government would fall within the four cornera of the

reform atatute. If the proposed rulea were engraved in law, any meJlber of either

branch, believing that a particular ruling or eoanittee report or other procedural

etep was not ill contol'IUJlCe with the rules, could aeek judicial illtervention to

force compliance with the statutory provision at issue. Worse, a disgruntled mem

ber with sufficient parliamentary skills could raise havoc with the legielative

proceaa. Point• ot order would become a night.are of rulings tor judicial review.

Disastl'O'U8 aa thil effect would be, more important would be the effect on the con

stitutioD&l. prizlciple ot aeparation ot powers. Once forced to enter the thicket

3

of legislative procedure, it could be reasonably expected that the Judiciary would

become inextricably entangled in the web of parliamentary maneuverings, political

by-plays, and otten clever sophistries that are part of daily legislative give and

take. Such involvement by the judicial branch would be a clear violation ot the

doctrine of separation ot powers.

Thus, the reporter who did not think legislative rules to be a very sexy

subject, nevertheless wrote about the measure because his experience and instincts

told him " ••• the power struggle involved, which has the potential to cause a con

stitutional crisis, is the stuff of a good story." Events confirmed that the re-

porter was prophetically correct. Regrettably, space does not permit a complete

narration ot that "good story" here. Indeed, it would require several sub-plots

merely to familiarize the reader with the drama.tis personae, the dynamics of

legislative and political forces, the role the media adopted and, not the least

important, the decision of the Senate leadership that the Legislature's constitutional

rights would be best protected by agressively asserting them. It did this first by

a close liaison with the Attorney General who has the constitutional duty to exaaine

all initiative proposals before certifying that they are in proper form tor submis•

sion to the people. Second, the Senate President decided to file a motion to in-

tervene in the subsequent legal action which was filed by the Coalition in the

Supreme Judicial Court.

So mch for the preJ.illlinaries. Let us now look briefly at the petition:

the response of the Attorney General, who declined to certify the measure; the argu-

ments ot the principals before the Commonwealth's highest court; the Court's deci-

sion and rationale; and some concluding observations.

4

II. The Petition

In easence, the petitioners proposed a statute entitled "An Act Providing

for Refora of the General Court," containing provisions dealing with a number of

aubjecta but which was focused on rule1 of proceeding•. The proposal, for example,

detailed how legillative party caucuses and 1teering committees are formed; how in-

dividal.1 are to be naaed to and removed :from leadership positions, chairmanships

and collldttee 11.emberahip; how committees are to operate; how legislative sessions

are to be conducted; and how legialative resources are to be allocated for legis-

lative functions.

Beyond theae procedural proviaions which comprise most of the text of tbe

proposal, other aectiona of the measure would have aubstantially reduced the aal-

aries ot legislative leaders and of comnittee chairmen; made legislative records

accessible to the State'• Inapector General; and required the State Auditor to per-

fol'll a'Wlita of legialative accounts.

III. The Attorney General Declines To Certify; The I11ue Is Joined

When Attorney General Francis X. Bellotti, in September 1983, informed the

petitioners that he would not certity the measure as being in appropriate form for

aublliasion to the people, the iBSue was joined. In hia letter to petitioners, the

Attorney General stated that the petition did not propose a law or constitutional

amendment within the meaning of Article 48, the Initiative and Referendum. Amendaent

ot the Maaaachuaetta Constitution. Rules of procedure, the Attorney General wrote,

are exercises of the legislative power bestowed exclusively on the branch they pur-

port to govern. !hua, because they do not come within the law-making authority of

5

the General Court, they are not among the powers reserved to the people through

the popular initiative.

Shortly thereafter, plaintiffs tiled a complaint in the Supreme Judicial

Court against the Attorney General and the Secretary of the Commonwealth tor declar

atory and injunctive relief, seeking a declaratory judgment that the Attorney General

improperly retusecl· to certify the initiative petition and seeking an order that the

Attorney General certify aaae to tne Secretary of the Co111110mrealth.

The Pre1ident of the Senate moved to intervene aa a party defendant and

waa allowed by a single Justice to intervene for limited purposes. All parties sub

sequently tiled a Motion for Reservation and Report of the matter without decision

to the Full Bench upon a Statement of Agreed Facts. This motion waa allowed, the

case was entered and the parties were directed to :file briefs.

IV. The Plaintiff - Coalition Argument

In its initial brief the Coalition advanced three arguments in support ot

its complaint. First, it claimed that the Attorney General exceeded his authority

concerning the certification :function. Second, the Coalition contended that the

Attorney General's conclusion that rules of proceedings are not laws was erroneous.

Third, it &Herted the Attorney General' a refusal to certify the petition was f'ully

reviewable by the Court, a claim that was not contested by the Attorney General and

thus waa not an issue.

The Coalition's first argument, concerned with ~he scope ot authority of

the Attorney General, was baaed on language of Article 48 which specifies three

attere to which the Attorney General 11\lSt certi:f'yi (1) the measure and title are

"in proper tora tor aubmiasion to the people," (2) the measure is not substantially

6

the same as any measure appearing on the ballot in the previous two biennial elec

tions, and (3) the measure contains only subjects not excluded from the initiative 1

and which are related or mutually dependent.

To these matters, argued the Coalition, the Attorney General arbitrarily

added a fourth matter, viz., a substantive determination of whether the petition

proposes a proper measure. By adding a substantive ~eview to a function which the

Coalition viewed as clearly intended to deal only with "form," the Attorney General

was portra;red aa having overstepped his constitutionally-defined role. As the

Coalition put it, the Attorney General's "authority begins and ends ••• with matters

of draftsmanship -- assuring that the will of petitioners is expressed in reasonably

competent form. Neither the language of Amendment 48 nor its history suggests any

power to make a jurisprudential analysis of whether the proposed law is in fact a

'law' or a 'rule,' so long as it takes the reasonable technical form of a law."

In the Coalition' a view, the certification process was little more than a pertunc-

tory task. "Form" was to be construed in its most narrow sense, - the Attorney

General could,examine the language of a petition for order and arrangement of words

but he was not to inquire into the substantive content of the proposal.

In the second argument, concerned with whether or not a rule or proceeding

is a law, the Coalition seemed more confident and offered several examples of stat

utes enacted by the General Court which contained procedural matters.2 Further,

convinced that it was on solid ground, it contended that the Court itself had, in

a 1978 opinion, made definitive statements that supported the Coalition's position.

Essentially the aame question before the Court in 1983 had been before it in 1978,

l Mass. Const. Article 48, Init., pt. 2, s. 3. 2 Paianer v. Bellotti, Case No. 3314 (1983), Brief' tor the Plaintiffs, p. 23 et

seq.

7

viz., "May an initiative petition propose to enact measures regulating aspects of

the General Court's proceedings?" In that advisory opinion, the Court had stated,

"[E]:xcept as to matters expressly excluded, the scope of the power of the people

to enact laws directly is as extensive as that of the General Court. The matter of

regulating legislative proceedings is not excluded from the initiative proceaa.

Art. 48, The Initiative, II, S. 2. nl

The Coalition construed that language to mean what it appeared on its face

to state: Because the regulation of legislative proceedings is not expreaaly ex

cluded from the initiative process, it is within the legislative power of the people

to enact such meaaure, because the scope of the enacting power of the people is aa

extensive as that of the General Court. Relying on this quotation 'from the Court,

combined with the illustrations of several enactments of the Legislature that included

rule-making material, the Coalition was confident that it had retuted the defendant's

contention that the people did not have the power to legislate rules refol'll and that

the Coalition's proposed rules reform was not a proper form of a statute.

V. The Defendant - Attorney General's Argument

The Attorney General sought first to establish that not all legislative

powers are law-making powers and those that are not are beyond the scope ot the

people's power to enact laws. The legislative initiative, argued the Attorney

General, waa designed to give.the people the power to enact laws which a re

luctant legislature or governor retuae to approve. What it invests the voters with

is a power which ia the functional equivalent of law-making powers bestowed by the

Constitution on the Legislature and the Governor. But legislative power• aa the

l Opinion ot the Jwaticea, 375 Maas. 795, 817 (1978).

8

term is used throughout the Constitution encompass more than law making. And,

under Article 48, other than the reserved right of the people to enact statutes,

all legislative power remains vested exclusively in the General Court or its

branches.

Thus, rule making is among those legislative powers which remain vested

exclusively in the individual branches of the Legislature. Such authority is de

rived not from the language in the Constitution that "is concerned with law makini

2 but from separate sections addressed specifically to each house of the Legislature.

Inasmuch as the Attorney General based his refusal to certify the petition

on his determination that the petition was concerned with internal rules rather than

law, and that an internal rule in essence is not a law, it was important to set the

distinguishing character of each before the Court.

Rules, the Attorney General suggested, may be distinguished from laws in

a number of ways. They differ at the threshold because rule making is a unicameral

power while law making is bicameral and requires presentment to the Governor. To

make the distinction clearer, the Attorney General offered certain objective cri-

teria separating rules from laws: Laws affect the rights and obligation of persons

external to the Legislature while rules are internal; laws have permanence and a

binding effect while legislative rules are subject to a continuing revision by the

branch they govern. Significantly, the Coalition's petition featured a wide range

ot internal operating procedures for both branches of the Legislature. "Inatead

of suggesting a law the petitioners wish applied to the general public, this peti-

tion purports to tell the general court how to order its internal affairs in pursu-

ing auch a law."

1 The law-making power is found in Part 2, C. 1, S • l - The General Court • 2 The rule-making power is found in Part 2, C. 1, S. 2 - The Senate, at Art. 7 and

Part 2, c. 1, S. 3 - The House of Representatives, at Art. 10.

9

Next, the Attorney General focused on the Coalition's reliance on the

language of the 1978 advisory opinion of the Supreme Judicial Court. Such a

reliance, offered the Attorney General, ia misplaced not only because the opinion

was delivered without benefit of briefs and oral arguments and lacks the force of

stare deciaia but because the text of that opinion, which inters (a) that the

Legislature may use its law-making powers to promulgate rules and (b) that the

people too may exercise that authority, is at odds with the Court's position in

previous deci1iona. For example, in Dinan v. Swig, a 1916 decision, the Court

declared unconstitutional a law which permitted voters to petition the Superior

Court to investigate allegations of corruption in connection with the election of

legislators.1 Such a law, the Court asserted, was in contlict with the constitu

tional grant of power vested exclusively in each branch of the General Court to

judge the election and qualification of its members. The ruling in~ was re

lied upon by the Attorney General to support his contention that where the Consti·

tution gives a power exclusively to one or the other branches of the Legislature

it is unicameral in nature and cannot be categorized as a law-making power, the

only legislative power the people may exercise. Thus, whether the exclusive power

vested in the branches of the Legislature is one of judging the election and quali

fication of its members or one ot setting its own rules of proceedings the result

should be the same: such power should not be placed in the hands of voters un4er

Article 48.

Finally, the Attorney General argued that he cannot be compelled to cer

tify an initiative petition which is beyond the scope of Article 48. At the outset

the Attorney General conceded he baa no authority to pass on the constitutional

1 223 Maaa. 516.

10

validity of a submitted petition and disavowed any intentions to contend that his

decision declining to certif'y the petition is unreviewable. The Attorney General

stated that his refusal to certify the petition was not based on any perceived con-

stitutional infirmities. Rather, the decision rested on the fact that the petition

did not propose a law or a constitutional amendment as required by Article 48. But .

he did claim a right to make that determination and though his decision is review-

able, it is entitled to deference by the Court.

Of all the matters the Attorney General is responsible for in the initia-

tive process, perhaps the most significant function is his inquiry into the certi-

fiability of the initiative petition. Each matter that the Attorney General must

certify to requires either a substantive inquiry or the exercise of professional

judgment and discretion prior to a decision. Thus, in arguing that when the

Attorney General certifies that a measure and title are in proper form for submis-

sion to the people, his role is purely ministerial, the Coalition failed to take

stock of the nature of the Attorney General's inquiry. That, the Attorney General {

countered, cannot be restricted "to whether the initiative looks like a law."

Rather, it encompasses the fundamental question of whether the petition proposes

the type of law or constitutional amendment which has been reserved to the people

through the popular initiative. When this basic question is answered in the nega

tive, then the petition is not certifiable for submission to the people. Nating

that the Court had already settled the question, the Attorney General cited case

law wherein the Court determined that "measures" which are not "law" may nat be

certitied. and submitted to the people. 1

l Cohen v. Attorney Gen., 357 Mass. 564, 578-579 (1970). See Opinion of the Justices, 262 Ma11. 603 (1928).

11

L

VI. The Intervener - Senate President's Argument

Senate President William M. Bulger approached the issue as the watchman

of the Legislature's constitutional rights and its status as a separate and co

equal branch of government. In that role he advanced three points of law which he

saw as irref'Utable: (1) the Constitution restricts the power to establish legisla

tive rules of procedure to each branch of the General Court, separately and exclu

sively, (2) a legislative rule of proceeding is not a law and Article 48, the

Initiative, requires an initiative measure to propose a law or a constitutional

amendment, and (3) the measure, if enacted by the people, would impinge upon the

constitutional right of each branch of the Legislature to set its own rules. This

is a right that the Legislature would be expected to exercise with tqe consequence

that any recourse to the Judiciary by an aggrieved. party would set in motion a

potential confrontation between the legislative and judicial departments.

The President was hardly alone in his view that what the petition pro

posed was unconstitutional but because few lawyers ever get involved with the in

tricacies of internal legislative proceedings, only the few seemed to grasp the

fine points. As the President patiently instructed, the power that the Coalition

sought to exercise under the veil of the people is a power reserved by the Consti

tution to the individual branches of the General Court. It is a power not provided.

to the General Court and thus not reserved to the people.

These constitutional limitations are found in Part 2, c. 1, at s. 2,

Art. 7, and s. 3, Art. 10, where the language is unmistakingly clear that ~

branch has sole control of its internal procedures: "The Senate shall choose its

own president, appoint its own officers and determine its own rules of proceedings."

''The House of Representatives shall choose their own speaker, appoint their own

officers and settle the rules and orders of proceedings in their own house." Thus,

the Constitution empowers only the House of Representatives and the Senate, in the

12

capacity of the House and Senate respectively, to make their own rules of proceed ..

ings. It does not empower the General Court in the capacity of the General Court

to make rules which govern the internal proceedings of both branches. This power

ot each legislative branch must be exclusive because the Constitution contains no

words permitting either branch of the Legislature to delegate or share that power.

It is a prerogative belonging to each house which each house alone can exercise and

one not susceptible of being deputed.

Next, the Senate President argued, each General Court is a unique body and

the rules adopted by each branch expire with the dissolution of each General Court

at the end of its two year term as prescribed by the Constitution. Thus, while a

statute enacted under the law-making power of the General Court is of a permanent

character, legislative rules of procedure are transitory and ephemeral. They go

out of existence with the expiring General Court. They cannot have any binding

effect on a house of a newly-elected Legislature which, when it organizes, is with ..

out rules and generally adopts the rules of the preceding houses as temporary rules.

The 'President cited authorities in support of his contention that the

houses of both the Congress and the General Court have consistently taken the posi

tion that the houses by statute or joint resolution cannot bind or restrict them

selves or their successor as to the procedure to be followed in the passage of

legislation. The Courts also have recognized that the manner in which a house

chooses to run its business ordinarily raises no justiciable controversy.

That the Coalition's petition woul.d make rules of procedure for all tuture

Senates and Houses of Representatives also ignored the distinctive nature of each

branch and the distinctive nature of each successive Legislature. The Senate and

House are not mirror images; they have distinct DB.tures, are constructed differently

13

and perform separate functions, - differences which are reflected in their sepa-

rately adopted rules of proceedings. Further, each Legislature is different in

character than a preceding or subsequent legislature. Rules which work well for

a 1981-82 Legislature may be unsuitable for a 1987-88 Legislature.

Among 1everal other points discussed by the President was the likely sub-

version of the enrolled bill rule, i.e., the rule which holds there is a conclusive

presumption that the two houses of the Legislature have complied with their own

rules of procedure on the bill between its introduction and final passage. Were

the purported statute proposed by the Coalition enacted, endless uncertainty would

be created concerning the validity of statutes enacted by the General Court. It

was this last probability that set the theme for the closing remarks of counsel in

the oral arguments discussed earlier.

VII. The Court's Decision

Precis of Holdings

In deciding the dispute, the Supreme Judicial Court made the following

declarations:

1. The Constitution imposes, as to the initiative process, several responsibilities upon the Attorney General which require the exercise of his discretion and legal judgment.

2. The Attorney General has the prerogative, indeed the duty, pursuant to his review of the "form" of the initiative petition, to apply bis legal judgment to the issue whether a law is proposed.

3. The popular initiative is confined to laws and constitutional amendments.

~. Not all legislative products are laws.

14

Rationale

5. Legislative rule-making authority is a continuous power absolute and beyond the challenge of any other tribunal.

6. The power over procedures rests not in the "General Court," but in the separate houses of the Legislature.

7. Each branch of each successive Legislature may proceed to make rules without seeking concurrence or approval of the other branch, or· of the executive, and without being bound by action taken by an earlier Leg_islature.

8. Procedural statutes are not binding upon the Houses; consequently, they are not laws in the sense contemplated in Art. 48. Either branch, under its exclusive rule-making constitutional prerogatives, is tree to disregard or supersede such statutes by unicameral action.

9. Rules ot tuture sessions of the House or the Senate cannot under the Constitution be controlled by vote ot the General Court or by vote of the people, or even by vote of the respective legislative branches.

In the Court• s own words, the two issues before the Court were:

, 1. Whether the Attorney General has authority under Article 48 to refuse to certify a proposed initiative as not in proper "form" because it does not propose a "law," and

2. It the Attorney General has such authority, whether his ruling was correct that the petition here does not propose a law.

The Court, in a unanimous decision, held that the Attorney General has

such authority and that his ruling was correct because the petition was not in

proper form as it did not propose a law.1

On the issue of the Attorney General's authority, the Court stated that

Article 48 imposes several responsibilities upon the Attorney General which require

1 Paisner v. Attorney General, 390 Mass. 593, 595 (1983).

15

the exercise of his discretion and legal judgment. Rejecting the Coalition's open

ing argument that the word ":form" should be construed in a narrow and technical

sense, the Court asserted that pursuant to his review ot the "form" of the initia-

tive petition, it is the duty of the Attorney General to apply his legal judgment

to the issue whether a law is proposed. Indeed, the Court has quashed certifica

tions by the Attorney General of petitions which did not propose a law. And

because any decision of the Attorney General as to certification is subject to

judicial review, the will o:f the people is safeguarded against errors of law or

arbitrary action.

Having established that the Attorney General has the authority to look

behind the shell and examine the content of a proposal, the Court then took up the

question of whether the content of the Coalition's proposal was a law.

The Court, reviewing key constitutional articles observed that the legis

lative power established by the Constitution includes prerogatives other than law

making. Law making, of course, is a bicameral action involving both houses and

presentment to the Governor. But there are also unicameral powers bestowed upon

each branch of the General Court. The Court cites a number of these unicameral

powers but the one most important to this case is the power of each branch to se-

lect its own presiding officer and to establish its own internal rules.

Thus, having determined that not all legislative products are laws, the

Court examined the proposed initiative to decide in which category of legislative

power it resides, law or rules. It can be logically argued, wrote the Court, that

the unicameral/bicameral distinction favors a conclusion that the proposed initia-

tive does not concern a law. But there was further evidence to support this con-

clusion. The Attorney General had presented a detailed argument in support ot

16

I I

I I

i

what he considered "critical distinctions between laws and rules": (1) laws govern

conduct external to the legislative body' while rules govern internal procedure;

(2) a law is binding, a rule is not. The Court agreed with these distinctions and

because "it is clear beyond dispute," in the instant case that the petition is aimed

at the internal procedures of the branches of the Legislature, the Court concluded

that the petition proposed rules rather than laws.

Next, the Court turned to the nonbinding nature of a rule for the purpose

of demonstrating the MUity of enacting such a measure. Citing a United Statea

Supreme Court decision'lin which it was held that legislative rule-making authority

is a continuous power absolute and beyond the challenge of any other tribunal, the

Massachusetts Court stated that "(e)ven if the proposed initiative were to be

enacted, the continuing power of the individual branches to ignore its provisions

and to determine their own procedures would render the proposal a nullity." This

power of procedures, the Court stressed, rests in the separate houses of the Legis

lature and not in the General Court. Thus, the initiative petition, if enacted by

the people, would conflict with the constitutional authority of the Senate and House

to order their own internal procedures. Such a proposal cannot be a law because it

would be nonbinding and tbu.s is not an appropriate subject for the popular initia

tive. Answering the Coalition's argument that JD&DY existing statutes relate to in

ternal procedures, the Court stated that in those instances, each house voluntarily

exercised its exclusive rule-making constitutional prerogative but it does not

:follow that others, lacking that authority, may introduce rules under the guise of

an initiative law. "Either branch is tree to disregard or supersede such statutes

by unicameral action."

1 United States v. Ballin, 14~ u.s. l (1892).

17

Perhaps both sidea to the dispute were surprised by the Court's rather

abrupt dismissal of the Coalition's arguments based on language of the Court in a

1978 advisory opinion. As noted earlier, in Opinion of the Justices, the Court

stated:

[E]xcept as to matters expressly excluded, the scope of the power of the people to enact laws directly is as extensive as that of the General Court. The matter of regulating legislative proceedings is not exclr"ed from the initiative process. Art. 48, The Initiative, II, S.2.

The Court, after setting forth the passage quoted above, disposed of the

latter part with an adroit explanation; it added the word "explicitly" to modify

"excluded": "The second of the two sentences, whether read alone or in context with

the first sentence, does not assist the plaintiffs, because it merely states the in-

disputable fact that internal proceedings are not matters explicitly excluded in

Art. 48, The Initiative, II,S.2, from the initiative process."

As to the scope of the power of the people to enact laws, the Court de

fended its statement in the 1978 opinion as correct and ·not inconsistent with its

holding in this case. The Court had already stressed earlier in its decision that

it is not the General Court that has the exclusive power to make internal rules,

rather, it is each branch of the General Court. It went turther here, adopting

arguments ot the defendant and intervener that only the respective branches have the

rule •king power and then only tor the lite of each separately-elected Legislature:

In aum, the rules of future sessions of the House or the Senate cannot under the Constitution be controlled by vote of the General Court or by vote of the people, or even by vote of the respective bran~hes. The people through the popular initiative do indeed, aa we stated in the 1978 Opinion, have a power to enact legislation which is coextensive with the power of the General Court. However, the plaintiffs, in their initiative petition which seeks to establish rules for future legislative sessions, claim for the people a power greater than that of the General Court. In this the plaintiffs are clearly wrong.

1 375 Mass. 795, 817 (1978).

18

VIII. Refiections

One has to ask if the Coalition ever understood the nature ot a legis

lative assembly. The Coalition's failure to can:prehend (or its unwillingness to

accept) the distinction between a rule and a law was obviously fatal to its case.

If' the Coalition could not distinguish a rule f'ran ~ law, it may explain why it

totally ignored the constitutional provisions which reserved to each branch ot the

General Court the right to set its own rules of' proceedings. The Coalition had

continued in its persistent claim that it had "the power to enact laws which in

part may govern procedures of the legislative branches of the government" while

simultaneously disclaiming power to enact nonbinding and ephemeral rules ot pro-

ceedings.

If the Coalition did not know what its proposal contained, the Supreme

Judicial Court, early in its opinion, put all doubts to rest: "It is clear beyond

dispute that the initiative petition here concerns the internal proceedings of the

Houses of the Legillature" (390 Mass. 396) • But the Coalition, by refusing to (

acknowledge the separate characteristics of a "rule" via-a-vis a "law" had clung

to the :fiction that its proposal contained not rules but something akin to a regu-

latory code. Thus, it could rationalize that because its propoaa.l was not con-

cerned with the everyday minutiae of parliamentary procedure it could not be de-

tined as a rules proposal. Having taken this tack, the Coalition in ettect per

mitted itself to be outmaneuvered by the Attorney Genera1 and the Senate President

who bad chosen the opposite tack. They did this by predicat1ng their argument on

the separate nature of' a rule aDd a law and then followed with a series of logical

inference• and conclusions.

19

For example, once it bad been demonstrated that what the Coa.lition had

proposed concerned the internal proceedings of each branch or the General Court,

the next step was to establish turther crucial distinctions between a rule and a

law. Hence, rule making is a unicameral power while law making is a bicameral

power. With that difference determined, the current began to run stronger against

the Coalition for if the making of rules could be exercised only as a unicameral

act, it precluded the bicameral body, the General Court, trom enacting internal

rules {except in the case where each branch voluntarily exercises its exclusive

power to set rules) • And if the General Court does not have the rule-making power,

neither do the people because the latter's legislative power is only as broad as

that of the General Court.

Constitutional provisions, of course, always take precedence over statutes.

In this dispute, the Coalition was aware that each branch of the General Court had an

exclusive constitutional right to set its own rules of proceedings. Thus, any statute

the people might enact that would be in conflict with the constitutional· privilege of

each branch to establish its internal rulea would be a nullity. The last hope of the

Coalition then, was that the Court would interpret Article 48 as permitting the peo

ple to set rules of the General Court by popular statute. It gambled that this is

what the Court had said in its 1978 opinion. To do this, however, the Court would

have bad to agree with the Coalition's premise and then decide which of the two con

stitutional articles had priority. But the winds never carried the Coalition's case

that far. For the Court it was an opportunity to elucidate the obscurities that

were part of the 1978 advisory opinion. Whether or not it satisfied those seeking

a clarification it did put to rest the concern over a possible constitutional crisis.

The Coalition had misread what the Court stated in 1978, so said the Court. The

20

Court had merely to point out that the language relied upon by the Coalition, viz.,

"The matter of regulating legislative proceedings is not excluded from the initia

tive process," is nothing more than a statement of "the indisputable fact that in

ternal proceedings are not matters explicitly excluded in Art. 48, The Initiative,

S.2, from the initiative process." (emphasis added). So sayeth the Court. Put

another way, the l!:ourt was telling the Coalition: L'Oolt, there are some matters

expressly excluded trom being the subject of an initiative petition. All that was

said in 1978 is that regulating legislative proceedings is not one of those matters

explicitly excluded in Article 48. It does not follow, though, because it is not

expressly excluded it must therefore be permitted.

Finally, it is important to emphasize the significance of Paisner v. Atty.

f!eReral to legislative assemblies not only for what was actually adjudicated but

also for the precious lode of law upholding legislative rights expounded in the

opinion. It is a case of first impression in which important constitutional ques

tions affecting the legislative process and internal legislative proceedings were

raised, thorOughl.y discussed and decided. But it is more. Issues of law aside, the

case served to instruct all who took notice, that the proposal of the Coalition for

Legislative Reform was less a reform. measure than a disabling one, for it would

have crippled the legislative process and drawn the judicial branch into a quagmire

of rules interpretation.

It was this potential for abuse of the legislative process that caused an

undercurrent of uneasiness among those who could discern the likely consequences.

The opinion does not give an;y hint as to what effect this argument may have had on

the outcome of the case but there is no doubt that it was on the minds of everyone

in the courtroom wbea oral arguments were closed.

21

Anticipating what an appellate court will do with a case involving issues

ot constitutional law is always a risky, o:f'ten disappointing, and a sometimes hum

bling exercise. Nevertheless, in this case, prediction was not a venturesome act;

the outcome was foreshadowed by the untenable, it not preposterous, position the

Coalition chose to assume. The Coalition ignored plain, simple and precise language

ot the Constitution which clearly precluded the Coalition lawtully doing what it set

out to do. Instead, the Coalition structured its case on imprecise language in the

Initiative Article, language that lends itself to various interpretations. The

Coalition, it may be said, had chosen to sail in waters not clearly charted,

failed to take precautionary soundings and ultimately went aground on a shoal of

its own making.

There are valuable lessons to be learned trom this experience and tor that

re11on we are pleased to share with other legislative bodies the documentary mate

rials which contain the fruits of long hours ot research and analysis on both sides

of the issue and which are the bases ot the Court's rationale in Paianer v. Attorney

General.

22

Palmer v. Attorney General.

MILTON PAISNER & others vs. ATTORNEY GENERAL & others. 1

Suffolk. November 9, 1983. - December 14, 1983.

Present: HENNESSEY, C.J., W1L1t.1Ns, LIACOS, ABRAMS, NOLAN, LYNCH,&: O'CONNOR, JJ.

Attorney General. General Court. Constitutional Law, Initiative. Words, "Law."

The Attorney General has authority, under pertinent parts of art. 48, as amended by art. 74, of the Amendments to the Mas.uchusetts Constitution to decline to certify a popular initiative petition as not in proper form for submmion to the people, on the ground that it does not pro-pose a "law." [ ]

A popular initiative proposal intended to govern the internal organization and procedures of the two branches of the Legislature in matters respecting the selection of presiding officers, the appointment of members to leadership and committee positions, and the b~ of legislative committees, and to limit the salaries of members holding leadership positions, infringed upon the unicameral powers residing in each branch of the Legislature acting alone and thus was not a constitutionally permimble subject for a statute enacted by the people through the initiative process. [ ]

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on September 14, 1983.

The case was reported by Liacos, J. Robert G. Stewart (Paul]. Hartnett, Jr., with him) for

the plaintiffs. Thomas R. Kiley, Assistant Attorney General (Francis X.

Bellotti, Attorney General, with him) for the defendants. -John M. Mullen for· the intervener.

1 The Secretary of the Commonwealth is also named as a defendant. The President of the Senate, William M. Bulger, was permitted to intervene. His presentation was generally supportive of the position and reasoning of the Attorney General.

We also acknowledge the assistance of amicus briefs submitted by the Counsel to the Massachusetts House of Representatives, the Counsel to the Massachusetts Senate, and Mr. Paul G. Keough.

23

Paisner o. Attorney General.

John J. Curtin, Jr., E. Susan Garsh, Susan A. Sliepard, John F. Donovan, Jr., & Paul C. Menton, for the House of Representatives, amicus curiae, submitted a brief.

James R. Mcintyre & Irene R. Comeau, for the Senate, amicus curiae, submitted a brief.

Paul G. Keough, John M. McKelway, Jr., Mark A. Lowery & Robert P. Keough, for Paul G. Keough, amicus curiae, submitted a brief.

HENNESSEY, C. J. This is an action for declaratory and injunctive relief challenging a decision of the Attorney General, who declined to certify an initiative petition on the ground that it was not in proper form for submission to the people. Art. 48, The Initiative, II, § 3, of the Massachusetts Constitution. 2 The Attorney General ruled in substance

2 Pertinent parts of art. 48, as amended by art. 7 4 of the Amendments to the M~achusetts Constitution, are as follows:

I. Definition.

"Legislative power shall continue to be vested in the general court; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection; and the popular referendum, which is the power of a specified number of voters to submit laws, enacted by the general court, to the people for their ratification or rejection.

THE INITIATIVE.

II. Initiative Petitions.

"SECTION 1. Contents. - An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure which is proposed by the petition.

''SECTION 2. Excluded Matters. - No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular disbicts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.

"Neither the eighteenth amendment of the constitution, as approved and ratified to take effect on the first day of October in the year nineteen

24 . '

Paisner v. Attorney General.

that the initiative petition did not propose enactment of a "law" as required by·art. 48. We conclude that the Attorney General was correct both in his determination that he had the authority to decline to certify the petition, and in his ruling that the petition does not propose a proper subject for the popular initiative.

The case comes to the.full court by way of reservation and report without decision by a single justice of this court, and on a statement of agreed facts. One week after the Attorney General informed the plaintiffs that he was unable to certify their petition, they commenced this action by filing their complaint in the Supreme Judicial Court for Suffolk County. At that time they requested a preliminary injunction designed to permit them to gather signatures during the pendency of the case. The Attorney General did not oppose issu-

hundred and eighteen, nor this provision for its protection, shall be the subject of an initiative amendment.

"No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to 'public use; the right of access to ~nd protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; fr~om of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.

"No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition.

"The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder.

"SECTION 3. Mode of Originating. - Such petition shall first be signed by ten qualified voters of the commonwealth and shall be submitted to the attorney-general not later than the first Wednesday of the August before the assembling of the general court into which it is to be introduced, and if he shall certify that the measure and the title thereof are in proper form for submission to the people, and that the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections, and that it contains only subjects not excluded from the popular initiative and which are related or which are mutually dependent, it may then be filed with the secretary of the commonwealth .... "

25


ance of the requested preliminary injunction and it was entered on September 19, 1983. The single justice also permitted the President of the Senate to intervene.

It is clear beyond dispute that the initiative petition here concerns the internal proceedings of the two Houses of the Legislature. Thus, the plaintiffs in their brief state: "Plaintiffs have proposed important changes to discrete aspects of the procedures in the Legislature.'' Many of the measure's proposals relate to the organization and operation of the ·House and Senate in the form of proposed additional sections of G. L. c. 3 (see§ 1 of the proposed initiative measure). Procedures are prescribed for the nomination of presiding officers (§ 71), the appointment to majority and minority floor leadership positions ( § 72), the nomination, approval, and election of "chairs of legislative committees" (§§ 73, 74), and the selection of committee members(§ 75). Procedures are prescribed for final reporting of matters by committees ( § 78), for the discharge of legislative matters by petition (§ 79), for the approval and signing of favorable reports of a committee (§ 80), for the recording of committee votes in certain circumstances (§ 81), for notice of committee sessions (§ 82), and for a public hearing on every bill (§ 83). There are provisions concerning legislative procedures, such as daily calendars, the printing of bills, and roll calls(§§ 84-87), and for a committee on legislative administration and budget (§§ 90-91). The proposal contains other matters such as limitations of the salary differentials of legislative leaders (see § 4 of the proposed initiative measure). The proposal is to be effective, if adopted, "on the first Wednesday of January next following its passage." See § 6 of the proposed initiative measure.

There are two issues before us: (1) Whether the Attorney General has authority under art. 48 to refuse to certify a proposed initiative as not in proper "form" because it does not propose a "law," and (2) if the Attorney General has such authority, whether his ruling was correct that the petition here does not propose a law. The Attorney General, in concurring that our consideration is limited to these two

26


issues, disclaims any general authority under art. 48 to pass on other aspects of the constitutional validity of a submitted initiative petition. In this disclaimer he is correct. Indeed, the courts are similarly limited: "The people acting by means of the initiative, like the General Court, can enact measures that violate the fundamental and supreme law of the Constitution and that consequently have no force or effect. But no court can interfere with the process of legislation, either by the General Court or by 'the people, before it is completed, to prevent the possible enactment of an unconstitutional measure. . . . The judiciary is barred from the legislative field just as it is from the executive.,, Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 246-247 (1946). Opinion of the Justices, 309 Mass. 571, 580-581 (1941).

We turn now to the two issues before us. 1. The Attorney General's Review of the Form of Petition.

The plaintiffs assert that the Attorney General has no authority under art. 48 to refuse to certify an initiative petition on the ground that he is of opinion that it does not propose a law as required by art. 48. 3 The Attorney General counters that he has such authority because his function includes a certification that the petition is "in the proper form for submission to the people," and this requires him to determine whether the petition is within the scope permitted by art. 48. We agree with the Attorney General.

The Constitution imposes, as to the initiative process, several responsibilities upon the Attorney General which require the exercise of his discretion and legal judgment. For example, he prepares summaries and attests that amendments to the petitions are "perfecting." Despite this grant

3 The pertinent part of art. 48, The Initiative, II, § 3, requires the Attorney General to: "[C]ertify that the measure and the title thereof are in the proper form for submission to the people, and that the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections, and that it contains only subjects which are not excluded from the popular initiative and which are related.or which are mutually dependent .... ••

27


of significant responsibilities, despite the fact that the Attorney General is the chief law officer of the Commonwealth, and despite the fact that no other State officer or official has been given explicit authority to rule upon the basic question related to the scope of art. 48, the plaintiffs would have us construe the word "form" in a narrow and technical sense.

This court has quashed certification by the Attorney General of initiative petitions which did not propose a law and thus were beyond the scope of art. 48. Cohen v. Attorney Gen., 357 Mass. 564, 578-579 (1970). See Opinion of the Justices, 262 Mass. 603 (1928). It follows that the Attorney General has the prerogative, indeed the duty, pursuant to his review of the "form" of the initiative petition, to apply his legal judgment to the issue whether a law is proposed. 4

Finally, in response to an argument of the plaintiffs that the Attorney General must not be permitted, in the certification process, to thwart the will of the people, we observe that, as in the instant case, the decision of the Attorney General as to certification is subject to judicial review. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230 ( 1946). This is a safeguard against errors of law or arbitrary action by the Attorney General. 2. Does This Petition Propose a LawP

It is clear to us that the popular initiative is confined to laws and constitutional amendments. This conclusion derives from the plain meaning of the words of art. 48: "Legislative power shall continue to be vested in the general court; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection." Art. 48, The Initiative, I. "An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the

•Although the Attorney General does not rely upon the point, we think a persuasive argument might be made that the Attorney General could also decline to certify the initiative petition on the ground that it contaim a subject "excluded from the popular initiative." See the quoted language from art. 48, in note 3 supra.

28


measure, which is proposed by the petition.,, Art. 48, The Initiative, II, § 1. Since this case does not concern constitutional amendments, we must examine whether the proposed initiative relates to a law. We conclude that it does not.

The first chapter of Part 2 of the Constitution of the Commonwealth establishes "The Legislative Power" as including prerogatives other than law-making. The first section of that chapter provides that laws may be enacted by bicameral action of the two Houses and presentment to the Governor. However, in addition to these law-making powers, the respective branches of the General Court possess many unicameral powers, most of which are bestowed on them by Part II, c. 1, §§ 2 and 3. The Attorney General fairly summarizes some examples of these powers: "The House alone, for instance, may originate a money bill, Pt. II, c. 1, § 3, Art. 7, or make an impeachment, Pt. II, c. 1, § 3, Art. 6, while the Senate alone may hear and determine those impeachments, Pt. II, c. 1, § 2, Art. 8. The power to 'choose its own President, appoint its own officers, and determine its own rules of proceed.in~' is conferred exclusively on the Senate by Pt. II, c. 1, § 2, .. Art. 7, while the members of the House of Representatives possess the corollary power to 'choose their own Speaker, appoint their own officers, and settle the rules and orders of proceeding in their own House . . . ' by virtue of Pt. II, c. l, § 3, Art. 10."

The Supreme Court of the United States has recognized the similar dual power of Congress in its bicameral lawmaking acts ·and its unicameral acts. Immigration & Naturalization Serv. v. Chadha, 103 S. Ct. 2764, 2786 (1983). Among the unicameral powers recognized by the Court is the power of each branch to act alone in determining its own rules and other internal matters. Id. at 2786 n.20.

Thus not all legislative products are laws and we examine the proposed initiative to decide in which category of legislative power it resides, laws or rules. Since the proposal concededly relates to internal legislative procedures, which are within the constitutional unicameral powers of the respective Houses, it can logically be argued that the uni-

29

-----------------Paisner v. Attorney General.

cameral/bicameral distinction favors a conclusion that the proposed initiative does not concern a law. The Attorney General, however, submits what he believes are other critical distinctions between laws and rules. We consider them below, and we find them supportive of the conclusion that the proposed initiative does not relate to a law.

First, laws govern conduct external to the legislative body, while rules govern internal procedures. Immigration & Naturalization Serv. v. Chadha, supra at 2784. As we have seen, it is clear in this case that the initiative petition is aimed at the internal procedures of the branches of the Legislature, and this indicates that this petition establishes rules rather than laws because its principal purpose is to order the internal operations of the Senate and the House rather than to alter the legal duties of persons outside the Legislature.

~econd, a law is binding; a rule is not. See Opinions of the Justices, 126 Mass. 547, 550 (1781); Opinion of the Justices, 66 N.H. 629, 632 (1891). Legislative rule-making authority is a continuous power absolute and beyond the challenge of any other tribunal. United States v. Ballin, 144 U.S. 1 (1892). Even if the proposed initiative were to be enacted, the continuing power of the individual branches to ignore its provisions and to determine their own procedures would render the proposal a nullity. This is in sharp contrast to the methods permitted by the Constitution for rescinding or amending laws. It cannot be emphasized too strongly that this power over procedures rests, not in the "General Court," but in the separate Houses of the Legislature. Part II, c. l, §§ 2 and 3, of the Massachusetts Constitution. See Dinan v. Swig, 223 Mass. 516, 517 (1916). Thus each branch of each successive Legislature may proceed to make rules without seeking concurrence or approval of the other branch, or of the executive, and without being bound by action taken by an earlier Legislature. Id. at 517, 519. The plaintiffs argued before us that if their initiative were enacted, the Houses of the Legislature would not have unicameral power to nullify its content. In this they are mistaken, because such a result would effectively vacate the

30

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constitutional authority of the Senate and House to order their own internal procedures. This cannot be brought about by an initiative petition unless that petition, unlike the one before us, seeks and accomplishes a constitutional amendment to that end. Thus the initiative proposed here should not be characterized as a law because it is not binding. If enacted, it would be no more than a nonbinding expression of opinion, and we have held that such a plebiscite or declaration is not a law and is not an· appropriate subject for the popular initiative. Cohen v. Attorney Gen., 357 Mass. 564, 578 (1970). See Opinion of the Justices, 262 Mass. 603, 604-605 (1928).

One of the plaintiffs' arguments derives from the undisputed fact that the Commonwealth has statutes which directly relate to the internal proceedings of the two Houses. See G. L. c. 3. As we view their argument, the plaintiffs construct a syllogism: the Legislature has enacted such statutes; the popular initiative is as broad as the Legislature's law-malting power; the initiative therefore can encompass the internal proceedings of the Houses of the Legislature.

The flaw in the plaintiffs' argument is in their minor premise. We agree that the popular initiative is coextensive with the Legislature's law-making power under Part II, c. 1, § l, but, as we have seen above, the power to determine their own rules of proceedings is exclusively granted to the Senate and the House respectively by virtue of Pt. II, c. 1, § 2, art. 7, and Pt. II, c. 1, § 3, art. 10. The enactment of statutes relating to internal proceedings was obviously accomplished by the voluntary participation of each of the two Houses. Thus each House was essentially engaged in its rule-malting function. It does not follow, from this voluntary exercise by the Houses, that others, through the popular initiative, may introduce rules under the guise of laws. The analogy urged by the plaintiffs is nonexistent. Such procedural statutes are not binding upon the Houses; consequently they are not laws in the sense contemplated in art. 48. Either branch, under its exclusive rule-making constitutional prerogatives, is free to disregard or supersede such statutes by

31


unicameral action. See Dinan v. Swig, 223 Mass. 516, 517, 519 (1916).

The plaintiffs also fail in their final argument, in which they rely upon the language in Opinion of the Justices, 375 Mass. 795, 817 (1978), as follows: "[E]xcept as to matters expressly excluded, the scope of the power of the people to enact laws directly is as extensive as that of the General Court. The matter of regulating legislative proceedings is not excluded from the initiative process. Art. 48, The Initiative, II, § 2." The second of the two sentences, whether read alone or in context with the first sent~nce, does not assist the plaintiffs, because it merely states the indisputable fact that internal proceedings are not matters explicitly excluded in art. 48, The Initiative, II, § 2, from the initiative process.

Further, the statement that "the scope of the power of the people to enact laws directly is as extensive as that -of the General Court," is correct and is not inconsistent with the conclusions we have reached in this case. 5 Where internal proceedings are concerned, future legislative sessions cannot be bound by an action of the General Court. "This discretion to determine the method of procedure cannot under the Constitution [Part II, c. 1, § 2, art. 7, and Part II, c. 1, § 3, art. 10] be abrogated by action taken by an earlier Legislature." Dinan v. Swig, supra at 519. In sum, the rules of future sessions of the House or the Senate cannot under the Constitution be controlled by vote of the General Court or by vote of the people, or even by vote of the respective legis-

11 The Attorney Gene}'al observes that the 1978 Opinion, like all Opinions of the Justices, is not a binding adjudication by this court and does not have a stare decisis effect. Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 314 (1950). "It has been uniformly and many times held that such opinions, although necessarily the result of judicial examination and deliberation, are advisory in nature, given by the justices as individuals in their capacity as constitutional advisers of the other departments of government and without the aid of arguments, are not adjudications by the court and do not fall within the doctrine of stare decisis." Commonwealth v. Welosky, 276 Mass. 398, 400 (1931). We, of course, have no recourse to these principles in this case, because of our above conclusions.

32

Pai.mer v. Attorney General.

lative branches. The people through the popular initiative do indeed, as we stated in the 1978 Opinion, have a power to enact legislation which is coextensive with the power of the General Court. However, the plaintiffs, in their initiative petition which seeks to establish rules for future legislative sessions, claim for the people a power greater than that of the General Court. In this the plaintiffs are clearly wrong.

Judgment shall enter vacating the preliminary injunction and declaring that the Attorney General was within his authority under art. 48 in declining to certify the proposed initiative, and further declaring that the petition here does not propose a law and consequently is not a proper subject for the popular initiative.

So ordered.

33

ATTORNEY GENERAL'S SUMMARY OF INITIATIVE PETITION

The proposed law establishes procedures for the operation

of the state legislature.

First, it details procedures to be followed in naming

individuals to leadership positions. It would establish a

majority and minority party caucus in each branch of the

General Court. Each party caucus could nominate a candidate

for presiding officer of its respective branch. The President

and Speaker could appoint up to three persons to majority party

floor leadership positions. In each branch, the minority

party caucus would elect a minority floor leader, who could

appoint up to three persons to minority party floor leadership

positions. Appoint..~ents to floor leadership positions would

be subject to ratification by the appropriate party caucus.

Each caucus would establish a Steering and Policy Committee . • The caucus chair would also serve as chair of the committee,

but none of t..,e committee mer.tbers could ordinarily hold

another legislative leadership position.

The Steering and Policy Committee of the majority caucus

in each branch would nominate a candidate for the position of

chair of each legislative committee, subject to approval by

a party caucus. Candidates would have to be approved by the

respective branch. The Steering and Policy Committees of each

caucus would nominate candidates for membership on committees

in proportion to the political composition of its respective

branch, subject to the approval of the party caucus. The

minority party would be guaranteed at least one member on each

leg is la ti ve com .. .,,i ttee.

35

The presiding officer and committee chairs of each branch

could be removed by a majority vote of the members of the

branch that appointed them. Other legislative floor leaders,

caucus chairs, members of Steering and Policy Committees, and

legislative committee members could be removed by a majority

vote of the respective party caucus. Votes in party caucuses

to select or remove legislative floor leaders, caucus chairs,

members of Steering and Policy Committees, committee chairs,

and committee members would be by secret ballot.

The proposed law would establish a three-member Conunittee

on Administration and Budget in each branch, no member of

which could hold another legislative leadership position.

Each committee, subject to ratification by the members of that

branch would be required to prepare a budget for its branch

and to jointly prepare a budget for both branches, subject to

ratification by both branches. The budget? would be based on

and subject to appropriations by the General Court. These

committees would allocate the resources of the General Court

among all the members.

The proposed la~ would also establish methods and time

limits for committees to consider bills. It would require,

except in an emergency, that each legislative committee post

an agenda for any upcoming committee hearing, meeting, or

executive session in the clerk's office of the appropriate

branch. Public hearings would be required on every bill

assigned to a committee. A favorable report by a committee

36

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would have to include the complete text of the matter and be

signed by a majority of the members. Twenty-five percent of

the committee members could require that the committee vote

be recorded, and that record would be public.

The placing of legislative matters before either the .

entire House or Senate would be under the control of the

Committee on Rules for that branch. Twenty-five percent

of the members of a branch could require that a matter be

released from certain committees and be considered by the

entire chamber. A calendar of legislative matters would be

printed each day for each of the chambers unless dispensed

with by a two-thirds roll call vote of that branch. All

legislative matters and all reports of legislative committees

which alter a previously printed legislative matter would

have to be printed and available to all legislators and <

members of the public prior to being considered, unless dis-

pensed with by four-fifths roll call vote.

The proposed law would also require the General Court to

meet in a joint session for the purpose of considering amend

ments to the state constitution proposed by initiative petition

no later than the second Wednesday in May of each year in which

such amendments are pending and would require that final

action be taken on such amendments by June 15th of the second

year of the term of the General Court. Initiative amendments

would be given priority over all other proposed amendments.

37

The proposed law would limit the salaries of the legis

lative leadership. The presiding officers would be paid no

more than 1-1/2 times the amount paid to regular members of their

respective branches, and the floor leaders and the chairman

of the Ways and Means Committee in each branch would be paid

no more than 1-1/4 times the amount paid to regular members

of their respective branches. All other committee chairmen

would be paid no more than $1,000 ~ore than the amount paid

to the regular members of their respective branches. Legis

lative compensation could be changed only on a roll call vote

of each branch, enacted at least four weeks before the date

when nomination papers for the legislature must be submitted,

and the changes would not be effective until the January after

the next state election.

The proposed law would grant the Inspector General access

to the records of- the legislature and require the State Auditor

to perform audits of legislative accounts. It contains a

section providing that the proposed law could not be amended,

repealed, or otherwise altered except by a roll call vote of

each branch of the General Court. 'It also contains a provision .

that if any of its sections are held to be unconstitutional

all other sections are to stay in effect.

38

'

l

COMPLETE TEXT OF INITIATIVE PETITION 83-14

Filed by Coalition for Legislative Reform

AN ACT PROVIDING FOR REFORM OF THE GENERAL COURT

Be it enacted by the People, and by their Authority:

SECTION 1. Chapter 3 of the General Laws is hereby amended by

inserting after Section 65, the following:

Section 66. Definitions.

As used in Sections 66 through 91 of this chapter, the following

words shall have the following meanings:

(a) *legislative committees" shall mean all committees of the

General Court including without limitation joint committees of

both branches; standing committees of each branch, both acting

separately and acting concurrently; special committees of each

branch; joint special committees; and committees of conference;

(b) "legislative matter" shall mean bills, orders, resolves,

resolutions and any other matter which may be the subject of

legislative action. "Legislative matter" shall not include

amendments offered on the floor of either branch, or resolutions

of congratulations.

( c) "written ballot" shall mean a written secret ballot.

39

...

Caucuses

Section 67. Legislative Party Caucuses.

(a) In each branch of the General Court there shall be a

legislative caucus of the majority party, consisting of all of

the legislators of that branch who are members of the majority

party, and there shall be a legislative caucus of the minority

party, consisting of all of the legislators of that branch who

are members of the minority party. The •majority party• shall be

that party which has the largest number of members; and the

•minority party• shall be that party which has the second largest

number of members.

(b) Any legislator who is not a member of either the majority or

minority party may choose to become a member of either

legislative party caucus of the respective branch.

Section 68. Caucus Chair.

(a) Each legislative party caucus shall, as its first order of

business, elect a chair to preside over the caucus.

(b) The oldest senior member of each party shall convene the

respective caucus, call it to order and act as its presiding

officer until the chair is elected.

(c) The person receiving a majority vote upon a written ballot

shall be elected chair.

40

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(d) The Caucus Chair shall not hold or be eligible to hold any

of the following positions:

(i) presiding officer of the respective branch;

(ii) majority or minority floor leader of the respective

party of that branch;

(iii) any other legislative party leadership position,

including without limitation, all assistant floor

leader positions;

(iv) chair of any legislative committee;

(v) membership on the Committee on Rules, the Committee

on Ways and Means, the Committee on Bills in the

Third Reading, or the Committee on Legislative

Administration and Budget of the respective branch.

If the total membership of the majority party caucus in a

branch is insufficient to satisfy the five (5) limitations, then

limitation (v) shall not apply to that caucus chair. If the

total membership of said caucus is still insufficient to satisfy

the remaining four (4) limitations, then limitation (iv) shall (

also not apply to that caucus chair.

If the total membership of the minority party caucus in a

branch is insufficient to satisfy limitations (ii), (iii) and

(v), then limitation (v) shall not apply to that caucus chair.

If the total membership of said caucus is still insufficient to

satisfy limitations (ii) and (iii), then only limitation (ii)

shall apply to that caucus chair.

41

Section 69. Steering and Policy Committee.

(a} Within each legislative party caucus there shall be a

Steering and Policy Committee.

(b) The Steering and Policy Committee shall consist of seven (7)

members.

(c) The Caucus Chair shall be a member of the Steering and

Policy Committee and shall serve as its chair.

(d) The remaining six (6) members of the Steering and Policy

Committee shall be elected by the legislative party caucus on a

written ballot by the following procedure:

(i) nominations shall be made from the floor of the caucus;

(ii) nominations may only "be ·.closed by a vote of not less

than four-fifths (4/5) of the members present and

voting;

(iii)each member elected to the Steering and Policy

Committee must receive a vote of a majority of the

members present and voting.

(e) Members of the Steering and Policy Committee shall not hold

or be eligible to hold any of the following positions:


(ii)majority or minority floor leader of the respective

party of that branch;

42

(iii}any other legislative party leadership position


leader positions:

(iv} chair of the Committee -on Rules, the Committee on Ways

and Means, or the Committee on Bills in the Third

Reading of the respective branch:

(v}membership on the Committee on Legislative

Administration and Budget of the respective branch.

If the total membership of the minority party caucus in a branch

is insufficient to satisfy limitations (ii}, (iii} and (v}, then

only limitation (ii} shall apply, unless the number of members is

still insufficient, in which case none of the limitations shall

apply to that caucus. If the total membership of the minority

party caucus in a branch is less than seven {7} members, then the

Steering and Policy Committee of that caucus shall be comprised

of all the members of that caucus.

Section 70. Procedures to Call a Legislative Party Caucus.

A meeting of a legislative party caucus may be called by any of

the following:

{i} the presiding officer of the respective branch may call

a meeting of the majority party caucus, and the

minority floo,r leader of the respective branch may call

a meeting of the minority party caucus;

{ii} the chair of the respective caucus;

{iii}a majority of the members of the Steering and Policy

Committee of the respective caucus;

43

(iv) twenty per cent ( 2 0 % ) of a 1 1 th .e member s of the

respective caucus.

Selection of Leadership Positions

Section 71. Nominations for Presiding Officers of Each Branch.

(a) A nomination for the presiding officer of each branch may be

made by each legislative party caucus in the respective branch.

(b) Any nomination for presiding officer by a legislative party

caucus shall be by a majority vote of the caucus on a written

ballot, and shall be reported to the floor of the respective

branch.

Section 72. Party Leadership Positions.

(a) In each branch, the presiding officer may appoint persons to

majority party floor leadership positions. The total number of

such positions shall not exceed three positions for the majority

party in each branch.

(b) In each branch, the minority party caucus shall elect a

minority floor leader by a majority vote of the caucus upon a

written bal 1 ot.

44

~c) In each branch, the minority floor leader may appoint

persons to minority party floor leadership positions. The total

number of such positions shall not exceed three positions for the

minority party in each branch.

{d) Each appointment under paragraphs (a) and (c) of this

section must be ratified by a separate majority vote on a written

ballot by the respective legislative party caucus. In the event

that an appointment is rejected by such caucus, another

appointment may be made by the person designated in this section

to make the initial appointment, which shall also be subject to

ratification in the same manner.

Selection of Committee Chairs and Committee Members

Section 73. Candidates for Committee Chairs.

{a) Candidates for chairs of legislative committees shall be

nominated by the majority party caucus in each branch under the

procedure provided in this section.

{b) The Steering and Policy Committee of the majority party

caucus in each branch shall nominate a candidate for chair of

each legislative committee. Nominations from the floor of the

caucus shall not be in order.

45

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~c~ The full caucus shall approve each such nomination by a

separate majority vote on a written ballot for each committee

chair.

(d) In the event that any such nomination is rejected by the

caucus, the Steering and Policy Committee shall nominate a new

candidate for the chair of that committee. Nominations may also

be made from the floor of the caucus. The procedure of this

paragraph shall be repeated until a nomination for a candidate

for chair of that committee has been approved by the caucus.

(e) The chair of every legislative committee shall be subject to

nomination and approval as provided in this chapter. No rule of '

either or both branches may provide that a specific person or

person holding a specifically named position shall be chair of

any legislative committee.

Section 74. Selection of Committee Chairs.

Candidates for chairs of legislative committees shall be approved

by vote of the respective branch. Each such chair must receive a

majority vote of that branch.

Section 75. Selection of Committee Members.

(a) In each branch, the presiding officer shall meet with the

minority floor leader to determine the apportionment of majority

party and minority party members on each committee. Such

apportionment shall be determined, as close as possible, by the

percentage of the total membership of the branch each legislative

party caucus represents except that on al 1 committees the

minority party shall be guaranteed at least one member. Where

such a percentage results in a fraction of a member, said

fraction shall be rounded to the nearest whole number.

(b) In each branch, the legislative caucus of each party shall

select the members of its caucus to be assigned to each committee

under the procedure provided in this section.

(c) The Steering and Policy Committee of each legislative party

caucus shall nominate the members of its caucus to be assigned to

each committee. The nominations shall be subject to ratification

by majority vote of the entire caucus on a written ballot. All

such nominations shall be voted upon together and no nominations

or amendments from the f 1 oor of the caucus sh al 1 be in order.

Vacancies and Removal

Section 76. Vacancies.

A vacancy in any office or position which is either created or

regulated in any way by the provisions of sections 66 through 75

of this chapter, shall be filled in the same manner as provided

in said sections for the original appointment.

47

Section 77. Removal.

(a) The presiding officer of each branch and committee chairs

shall be subject to removal by majority vote of the entire branch

which appointed said person.

(b) Legislative party floor leadership positions, legislative

caucus chairs, members of Steering and Policy Committees of the

legislative party caucuses and legislative committee members

shall be subject to removal by majority vote of the respective

legislative party caucus on a written ballot.

Committee Procedures

Section 78. Limit of Time Allowed for Reports of Committees.

(a) Joint committees and the committees on Rules of the two

branches, acting concurrently, shall make final report not later

than the fourth Wednesday of April on all matters referred to

them previously to the fifteenth day of April, and within ten

days on all matters ref erred to them on and after the fifteenth

day of April. When the time within which said committees are

required to report has expired, all matters upon which no report

has then been made shall forthwith be reported by the chairman of

the committee on the part of the branch in which they were

respectively introduced, with an adverse recommendation under

this section. If the chairman fails to make such report by the

end of the legislative day next following the expiration date,

48

all matters remaining unreported shall be placed in the Orders of

the Day by the Clerk of the branch in which the matter was

origin~lly filed with an adverse report under this section.

(b) The Cammi ttee on Bil ls in the Third Reading of each branch

shall report on a legislative matter not later than thirty (30)

calendar days following the day the matter was referred to it.

If the committee fails to report on the matter within said time,

the matter shall be automatically discharged from said committee

and the Clerk of that branch shall place the matter on the Orders

of the Day for the next calendar day that the branch is meeting.

In addition to the requirements of this paragraph, the Committees

on Bills in the Third Reading of each branch shall also be

subject to discharge by petition as provided in section 79 of

this chapter.

Section 79. Discharge by Petition.

(a) Members of either branch may, by filing a petition signed by

twenty-five percent (25%) of the members of the respective

branch, discharge certain committees from further consideration

of a legislative matter.

(b) Any committee not subject to paragraph (a) of section 78 of

this chapter sh al 1 be subject to discharge by petition as

provided in this section, including, without limitation, the

following committees of each branch: The Committee on Rules, the

Committee on Ways and Means, and the Committee on Bills in the

Third Reading. Members of a branch may not discharge legislative

matters from committees of the other branch.

NEW ENGlAND SCHOOL OF LAW llSRARY 49

( c) Upon the filing of the petition with the Cl erk of the

branch whose members signed the petition, the committee shall be

discharged from further consideration of the legislative matter

specified in the petition and the Clerk shall place the matter in

the Orders of the Day for the next calendar day that the branch

is meeting. Said matter shall be given preference over all other

new business.

Section 80. Reports of Committees.

(a) A favorable report of a legislative committee on a

legislative matter, shall be approved and signed by not less than

a majority of all the members of the committee. The report shall

contain the complete text including all amendments prior to being

signed by any member.

(b) Nothing in this section shall be construed as affecting a

legislator's right to dissent from a report of a legislative

committee.

Section 81. Recorded Votes in Committees.

(a) Upon the request of twenty-five percent (25%) of all the

members of a legislative committee, the vote of each member of

said committee in regard to a legislative matter pending before

the committee shall be recorded.

(b) The record of any such vote shall be a public record and

50

sh~ll be subject to the provisions of chapter 66 of the General

Laws, including without limitation section 10 of said chapter.

Said record shall be maintained by the Clerk of the respective

branch and, in the case of joint committees, by the Clerks of

both branches. The chair or chairs of a legislative committee

shall promptly cause the record of any such vote taken in their

committee to be filed with the appropriate clerk or clerks •

. (c) The provisions of this section shall not prevent a

committee or either branch from adopting a rule which would

require recorded votes in committees upon the request of less

members than required by paragraph (a) of this section.

Section 82. Notice of Committee Sessions.

(a) Every legislative committee shall give notice of every

session, including without limitation, every hearing, meeting and

executive session. Such notice shall be filed and posted not

less than forty-eight (48) hours in advance of said session.

Said forty-eight (48) hours shall not include Saturdays, Sundays,

or legal holidays.

(b) Notice required in paragraph (a) shall be filed with and

posted in the appropriate clerk's office. In the case of a joint

legislative committee, notice shall be filed with and posted in

the clerk's office of each branch.

(c) Said notice shall state the agenda for said session including

a statement as to the subjects to be covered and specifying the

bills or other legislative matters to be acted upon.

51

(d) A legislative committee may convene a session without giving

notice as required by this section only in an emergency upon a

recorded vote of four-fifths (4/5) of the committee members. The

committee may meet upon less than forty-eight (48) hours notice

for the sole purpose of taking such a vote

provided that no other matters are discussed or acted upon unless

and until there is a vote as provided in this paragraph.

Section 83. Requirement of Hearings.

Every bill shall receive a public hearing from the committee to

which it is assigned. Nothing in this section shall be

construed as guaranteeing more than one hearing a year for each

bill.

Legislative Procedures

Section 84. Control of Consideration of Legislative Matters.

(a) Legislative matters shall be placed on the calendar and

considered by each branch at the direction and urider the control

of the Committee on Rul~s of the respective branch, subject to

any further direction by the entire body of the respective

branch.

(b) A legislative matter which has been reported by a

legislative committee and which has not been referred to another

legislative committee or placed in the Orders of the Day for the

52

respective branch shall be subject to the jurisdiction of the

Committee on Rules of the respective branch, and shall be subject

to discharge by petition from said Committee on Rules as provided

in section 79 of this chapter.

Section 85. Calendars.

(a) The clerk of each branch shall prepare and cause to be

printed each day a calendar of legislative matters in order for

consideration and such other memoranda as the branch or its

Committee on Rules may direct.

(b) The clerk of the respective branch shall be authorized to

dispense with the printing of a calendar for one designated

session of that branch only after two-thirds of the members of

the respective branch present and voting consent thereto on a

recorded roll call vote.

Section 86. Bills in Print.

(a) All legislative matters shall be in print and available to

all legislators and members of the public at least twenty-four

hours in advance of consideration by either branch.

(b) The report of any legislative committee on a legislative

matter which amends, rewrites or otherwise alters a previously

printed form of a legislative matter shall also be subject to

paragraph (a) of this section.

53

( ~) In either bran ch, members may consider one par ti cu 1 ar

legislative matter not in print as required by paragraph (a) of

this section, only upon a roll dall vote of four-fifths (4/5) of

the members of that branch present and voting.

Section 87. Roll Calls.

(a) In the House, a vote shall be by a recorded roll call vote

upon the request of twenty (20) of the members present, except

where required by this chapter or other provisions of law.

(b) In the Senate, a vote shall be by a recorded roll call vote

upon the request of five (5) of the members present, except where

required by this chapter or other provisions of law.

Section 88. Constitutional Conventions.

(a) The General Court shall meet in a joint session of the two

branches for the purpose of considering initiative amendments not

later than the second Wednesday in May of each year that

initiative amendments are pending.

(b) At such joint sessions, initiative amendments shall be given

priority for consideration over all other proposals for

amendments to the constitution. No other proposed amendment

shall be considered until all initiative amendments shall have

received final legislative action by the General Court to the

extent permitted by the constitution in that session and such

final action on such amendments shall be taken not later than the

fifteenth day of June of the second year of the general court.

54

(e,) All initiative amendments approved by a General Court a.nd

referred to the next General Court shall be considered by said

next General Court and shall receive final legislative action not

later than the fifteenth day of June of the second year of the

General Court.

(d) As used herein, "initiative amendment" shall refer to a

proposal for amendment to the constitution introduced into the

General Court by initiative petition.

Section 89. Limitations on Legislation Affecting Legislative

Compensation.

(a) Any legislative matter affecting legislative compensation

shall not be enacted unless approved on a roll call vote of each

branch.

(b) Any legislative matter affecting legislative compensation

shall not'be enacted unless final legislative action shall have

been taken no later than four (4) weeks prior to the date that

nomination papers for members of the General Court are required

to be submitted to the registrars of voters of the cities and

towns.

(c) Any legislative matter affecting legislative compensation

shall not take effect any earlier than the first Wednesday of

January following the next biennial election for members of the

General Court.

L 55

(¢!) As used herein, "legislative matter affecting legislative

compensation" shall mean any proposed· law, except an

appropriation which in any way affects the compensation

paid to members of the General Court, including without

limitation salaries, allowances for expenses and any per diem

payments but not including any payments to particular members for

particular travel on behalf of and authorized by the General

Court.

Legislative Administration and Budget

Section 90. Committee on Legislative Administration and Budget.

(a) In each branch there shall be a standing Committee on

Legislative Administration and Budget. Each Committee shall

consist of three (3) members: two (2) members of the majority

party caucus and one (1) member of the minority party caucus of

the respective branch. Said members shall be selected in the

same manner as provided for the selection of members to other

legislative committees.

(b) The Committee on Legislative Administration and Budget of

each branch shall meet and act separately concerning matters

which affect their respective branches, and shall meet and act

jointly concerning matters which affect both branches in order to

perform their duties and responsibilities.

56

! ~

The Committee on Legislative Administration and Budget for

each branch shall prepare a budget for their respective branches,

subject to ratification by their respective branches, and shall

act jointly to prepare a budget for both branches subject to

ratifications by both branches. All such budgets shall be based

upon and subject to the appropriations for the General Court.

(d) The resources of the General Court shall be subject to the

control and jurisdiction of the Committee on Legislative

Administration and Budget of each branch. As used in this

section, the resources of the General Court shall include,

without limitation, all appropriations for the General Court,

personnel, physical property, supplies, equipment and assignment

of off ice space controlled by or available to the General Court.

(e) The Committee on Legislative Administration and Budget of

each branch shall promulgate rules and regulations governing use

of the resources of the General Court and in particular covering

the following subjects:

(i) legislative expenses and reimbursements not otherwise

covered by law;

(ii) personnel, including staffing of .committees and

offices;

(iii)assignment of rooms, office space, equipment and

supplies.

(f) Said rules and regulations shall ensure that, subject to

appropriation, the resources of the General Court are distributed

equitably and that, in each branch, every member who is not a

committee chair and is not a member of leadership shall be

57

er.ititled to and can expect to receive an amount of resources at a

level reasonably calculated to provide for the needs of a member

and which shall be substantially the same as other members

similarly situated.

(g) The records of the Committee on Legislative Administration

and Budget of each branch, including without limitation all

budgets, budget requests, and rules and regulations, shall be

public records and subject to the provisions of chapter 66 of the

general laws, including without limitation, section 10 of said

chapter.

Section 91. Limitations on Membership on the Committee on

Legislative Administration and Budget.

(a) No member of the Committee on Legislative Administration and

Budget of each branch shall hold or be eligible to hold any of

the following positions:


(ii) majority or minority floor leader of the respective

party;

(iii)any other legislative party floor leadership position,


leader positions;

(iv) chair of any legislative committee;

(v) chair of the respective legislative party caucus;

(vi) membership on the Steering and Policy Committee of the

respective legislative party caucus;

58

~· f'

(vii)membership on the Committee on Rules, the Committee on

Ways and Means, or the Committee on Bills in the Third

Reading of the respective branch.

(b) If the total membership of the majority party caucus in a

branch is insufficient to satisfy the seven (7) limitations, then

limitation (vii) shall not apply to members of that legislative

party caucus of that branch. If the t~tal membership of said

caucus is still insufficient to satisfy the remaining six (6)

limitations, then limitation (iv) shall also not apply to members

of that legislative party caucus of that branch.

If the total membership of the minority party caucus in a

branch is insufficient to satisfy the seven (7) limitations, then

limitations (vi) and (vii) shall not apply to members of that

legislative party caucus of that branch. If the total membership

of said caucus is still insufficient to satisfy the remaining

five (5) limitations, then limitation (iii) shall also not apply

to members of that legislative party caucus of that branch.

SECTION 2. Section 12 of chapter 11 of the General Laws, as most

recently amended by chapter 556 of the acts of nineteen hundred

and eighty-one, is hereby further amended by striking out in

lines five (5) and six (6), as appearing in chapter 270 of the

acts of 1975, the words, "including those of districts and

authorities created by the general court", and inserting in place

thereof the words:--"including those of the general court and

districts and authorities created by the general court."

59

SECTION 3. Section 9 of chapter 12A of the General Laws, as

appearing in section 1 of chapter 388 of the Acts of 1980 is

hereby amended by striking from the first sentence of the first

paragraph of that section the words, "except records under the

provisions of section eighteen in chapter sixty-six" and

inserting in their place the words, "under this chapter"; and by

striking from the second sentence of the second paragraph of said

section 9 the words, "except records under the provisions of

section eighteen of chapter sixty-six" and inserting in their

place the words, "as is not in contravention of any law"; and by

striking from the first sentence of the sixth paragraph of said

section nine the words, "except records under the prov is ions of

section eighteen of chapter sixty-six as defined by section three

of said chapter sixty-six".

SECTION 4. Notwithstanding the provisions of section 9 of

chapter 3 of the General Laws, as most recently amended by

section 1 of chapter 519 of the Acts of 1982:

(i) the salary of the President of the Senate and the

Speaker of the House of Representatives shall not

exceed fifty percent (50%) more than base pay;

(ii) the salary of the floor leaders of each of the major

political parties in the Senate and House of

Representatives, and the chair of the Senate Committee

on Ways and Means and the chair of the House Committee

on Ways and Means shall not exceed twenty-five percent

(25%) more than base pay;

60

l ~

(iii)the salary of all committee chairs specified in section

9 of said chapter 3, except the commit tee chairs

specified in paragraph (ii) of this section, and the

salary of all assistant floor leaders of each of the

major political parties in the Senate and the House of

Representatives specified in section 9 of said chapter

3 shall not exceed one thousand dollars ($1,000) more

than base pay;

(iv) the salary of all other positions specified in section

9 of said chapter 3 shall not exceed base pay.

As used in this section, "base pay" shall mean the salary

provided in section 9 of said chapter 3 or any other 1 aw for each

member of the General Court for each regular annual session.

SECTION 5. Any bill which seeks to amend, repeal, or otherwise

alter any provisions of this act shall not be enacted except upon

a roll call vote of each branch of the General Court.

SECTION 6. This act shall take effect on the first Wednesday of

January next following its passage.

SECTION 7. If any prov is ion or clause of this act or application

thereof to any person or circumstances is held invalid, such

invalidity shall not affect other provisions or applications of

this act which can be given effect without the invalid provision

or application, and to this end the provisions of this act are

declared to be separable.

61

' l

l

THE COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF' THE ATTORNEY GENERAL

,..A.NCI• X. •E1..L.OTT1 AT"Ta•NCT D&~K•A~

Milton Paisner 9 Royal Crest Drive

.JOHN W, Mc COAM.A.CIC 8TATE OFFICE 8UILOINO

ONE .A.81-iaURTON .. I.ACE, 808TCN o:z1ca

September 7, 1983

Nci"rth Andover, Massachusetts

Dear Mr. Paisner:

By this letter I inform you that I am not currently able to certify the Initiative Petition entitled "An Act Providing For Refor.n Of The General Court."

As you know, Article 48 of the Amendments to the Constitution requires me to examine each initiative petition submitted to me and to certify, as one of several preconditions to the gathering of further signatures, that the "measure" proposed is in appropriate form for submission to the people.

Pursuant to Amendments, Article 48, Pt. 1, legislative :i;'ower continues to be vested in the General Court, but the people 'have reserved to themselves the power to enact constitutional amendments and laws via the initiative process. The proposal that you have submitted is essentially an attempt to provide rules of procedure for both branches of the state legislature. Rules of legislative procedure are exercises of legislative power bestowed exclusively on the branch they purport to govern and do not come within the law-making authority of the General Court and hence are not among the powers reserved to the people through the popular initiative.

Because the petition you submitted does not propose a law or constitutional amendment within the meaning of Article 48, I cannot now certify that it is a "measure" in appropriate form for submission to the people.

63

Milton Paisner September 7, 1983

Page Two

If you desire to submit material to me demonstrating that your petition is a measure or law as those terms are used in Article 48, I will of course review it. However, at least for the moment, I must respectfully decline to certify your petition.

FXB/sg

64

COMMONWEALTH of MASSACHUSETTS

SUFFOLK, ss SUPREME JUDICIAL COURT. EQUITY NO. 83-322

MILTON PAISNER of North Andover I Massachusetts; CAROL WOLFE of Boston, Massachusetts; PAUL POTTER NICOLAS of Springfield, Massachusetts; JOHN P. MCGUINNESS of Grafton., Massachusetts; KENNETH G. WARREN, JR., of Pittsfield, Massachusetts; MARGARET M. HANDRAHAN of Plymouth, Massachusetts; ROGER A. SMITH of Barnstable, Massachusetts; PAULINE A. ZYWASKI of Boston, Massachusetts; DONALD L. CASSIDY of Holliston, Massachusetts; ROBERT J. MAHER of Arlington, Massachusetts; EDWARD N. TRACHENBERG of Worcester, Massachuset.tsi KEN REINE of Billerica, Massachusetts; ANNE H. SMART of Cambridge, Massachusetts; CATHERINE CRAMBERS of Arlington, Massachusetts; and SAMUEL M. ROBBINS of NEWTON, Massachusetts,

Plaintiffs v.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

FRANCIS X. BELLOTTI. as he is Attorney ) General of the Commonweal th of ) Massachusetts and MICHAE'.L JOSEPH ) CONNOLLY as he is Secretary of the Common- ) wea·1 th of Massachusetts, )

Defendants )

COMPLAINT

1. This is an action for declaratory and inj~nctive relief

brought by the first signers of an initiative petiti n against the

Attorney General of the Commonwealth for his refusal to certify

the petition as required. by Amendment XLVIII of the Massachusetts

Constitution and against the Secretary of the Commonwealth for his

refusal to issue. signature forms to plaintiffs for gathering

signatures for their petition.

65

2. This Honorable Court has jurisdiction over this matter

pursuant to one or more of G.L. c. 249 1 §4 (civil action in the

nature of certiorari);G.L. c. 249, §5 (civil action in the nature of

mandamus), G.L. c. 231A (declaratory judgment) and G.L. c. ·56, §59

(general equity jurisdiction over election matters).

3. Plaintiffs are residents of ~he Commonwealth, registered

voters of the cities or towns appended to their names and the first

fifteen signers of an initiative petition entitled "An Act Provid-

ing for Reform of the General Court 11 which has been designated by

the Attorney General of the Commonwealth as Initiative Petition

83/14, a copy of which is attached hereto as Exhibit A.

4. Defendant Francis X. Bellotti is the Attorney General

of the Commonwealth of Massachusetts and will be hereinafter

referred to simply as the "Attorney General." •

5. Defendant James Michael Connolly is the Secretary of

the Commonwealth of Massachusetts and will hereinafter be referred

to simply as the "Se~retary,"

6. Plaintiffs, pursuant to and in compliance with all

requirements of Mass. Const. Amend. XI.VIII, submitted Initiative

Petition 83/lt to the Attorney General for certification pursuant

to Init., Pt. 2 1 Section 3 thereof, that, inter alia, the measure

proposed thereby is in proper form for submission to the people.

7. By letter dated September 7, 1983, (Exhibit B), the

Attorney General declared that he declined to certify the petition,

asserting that the petition "does not propose a law or constitutional

amendment within the meaning of [Mass. Const. Amend. XLVIII1" and

66

' '-"

I

lt

accordingly that it was "not a measure in app~opriate fonn for

submission to the people."

8. Initiative Petition 83/14 is in all respects in conformity

with the requirements of Amendment XLVIII, and the Attorney General's

refusal to certify same is in error.

9. If the Attorney General's action is allowed to stand,

plaintiffs will be foreclosed. from their constitutional. right to

have their petition circulated for signatures and then presented

to the legislature and ultimately to the people for enactment.

Accordingly an actual controversy exists between plaintiffs and the

Attorney General and the plaintiffs as proponents of the petition

have been or stand to be irreparably injured by the Attorney

General's ~rror.

10. The Secretary 1 by letter dated September 8, 1983 (Exhibit

C), has declared that he will not release signature sheets to

plaintiffs for their petition because the Attorney General has not

certified same. Accordingly an actual controversy exists between

plaintiffs and the Secretary, and any delay or refusal by the

Secretary to prepare and to timely release to plaintiffs. appropri

ate printed signature sheets for their petition will irreparably

hann plaintiffs by preventing them, or by effectively preventing

them through delay, from gathering the signatures necessary for

qualifying their petition for submission to the General Court and

ultimately to the people pursuant to Amend.~ent XI.VIII.

11. The Attorney General has provided the Secretary with a

document purporting to be a "fair and concise summary" of Initiative

67

Petition 83/14 for use by the Secretary (pursuant to Amendment

XLVIII, Init., Pt. 2, §3) in preparing appropriate signature forms.

in the event plaintiffs prevail here. This Summary is attached

as Exhibit D.

WHEREFORE plaintiffs respectfully pray:

l. That this Honorable Court issue a preliminary injunction

restraining and enjoining the Secretary and his agents, servants

and employees from. refusing to prepare the signature sheets

required by Mass. Const. Amend. XLVIII for Initiative Petition 83/14

utilizing the Summary prepared by the Attorney General, in the

same numbers, manner and time frame as if the same had been

certified by the Attorney General or. from refusing to. release such

prepared signature sheets to plaintiffs for signature-gathering in

the same n1lillhers, manner. and time frame as if Initiative Petition

83/14 had. been certified. by the Attorney General:

2. That this Honorable Court grant expedited consideration

to the matters presented by the Complaint:

3. That this Bonorab1e Court determine, declare and order

that Initiative Petition 83]14 is a measure. which is in proper

form for submission to tlle people pursuant to the requirements

of Mass. Const. Amend. XI.VIII. and order the Attorney General to

certify same to the Secretary and further issue. a permanent

injunction incorporating the provisions of the preliminary injunc

tion described in Prayer 1.

68

4. For such other relief as this Honorable Court shall de~~

meet and proper.

By their Attorneys: . . I ~·~ :---------

/ '

Robert G~ Stewar~, P.C. I

One Boston Place Boston, MA 02108

725-1500/1579

69

COMMONWEALTH OF MASSACHUSETTS.

Supreme Judicial Court FOR THE COMMONWEALTH.

No. 3314.

SUFFOLK COUNTY.

MILTON PAISNER, ET AL., PLAINTIFFS,

v.

FRANCIS X. BELLOTTI, ET AL., DEFENDANTS.

ON RESERVATION AND REPORT FROM A SINGLE JUSTICE OF THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY.

Brief for the Plaintiffs.

On the Brief:

JoEL R. LEEMAN MARK V. TREMALLO

ROBERT G. STEW ART' PAUL J. HARTNE'IT, JR., HUTCHINS & WHEELER,

One Boston Place, Boston, Massachusetts 02108.

(617) 725-1500

71

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE ISSUE

STATEMEN'I' OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

I.

II.

THE ATTORNEY GENERAL EXCEEDED HIS CONSTITUTIONAL AUTHORITY IN REFUSING TO CERTIFY THE PETITION ON THE GROUND THAT IT WAS NOT A MEASURE WHICH MAY PROPERLY BE PROPOSED BY INITIATIVE.

THE ATTORNEY GENERAL'S CONCLUSION THAT PLAINTIFF'S INITIATIVE PETITION DOES NOT PROPOSE A LAW BECAUSE IT CONTAINS RULES OF PROCEEDING FOR THE GENERAL COURT IS ERRONEOUS.

A. It is universally acknowledged that measures governing legislative proceedings may be enacted through the legislative

Page

iii

2

2

4

6

6

18

process. 21

1. The law of Massachusetts, as pronounced by this Court, and as reflected in the historical practice of the General Court, is that the regulation of procedure is within the proper exercise of legislative power. 21

73

III.

2. The law of other states confirms that legislative procedural matters may appear in statutes. 25

3. Federal law likewise features the regulation of legislative proceedings by statute. 30

B. The power of the people to enact law by initiative petition is coextensive with that of the General Court and therefore includes the power to propose laws which affect proceedings in the General Court. 33

THE ATTORNEY GENERAL'S REFUSAL TO CERTIFY THE INITIATIVE PETITION IS FULLY REVIEWABLE BY THIS COURT. 41

CONCLUSION 45

ADDENDUM

74

l j I

j

L


CASES .

Anderson v. Secretary of the Commonwealth, 255 Mass. 366 ( 1926) 43

Answer of the Justices, 214 Mass. 602 ( 1913) 16

Bowe v. Secretary of the Commonwealth, 3 2 0 Mass • 2 3 0 ( 19 4 6 } 4 3

Buckley v. Attorney General, 371 Mass. 195 (1976} 19

Chapman v. United States, 8 App. D.C. 302 (1896} 31

Cohen v. Attorney General, 357 Mass. 564 (1970} 17n, 43

Dawson v. Tobin, 74 N.D. 713 (1946) 37

Horton v. Attorney General, 269 Mass. 503 (1929}

Klosterman v. Marsh, 180 Neb. 506 (1966)

Legislature of the State of California v. Deukmejian, No. S.F. 24589

41,42,43,44

37

(Sup. Ct. Calif., filed Sept. 15, 1983} 36

Massachusetts Teachers Association v. Secretary of the Commonwealth, Mass. Adv. Sh. (1981) 1764 43

75

Opinion of the Justices, 37S Mass. 79S (1978)

Slama v. Attorney General, Mass. Adv. Sh. (1981) 2246

State ex rel. Schrader v. Polley, 26 S.D. S (1910)

S'I'ATUTES

Massachusetts General Laws

c. 3, §3, §23, §30, §3S

c. 3, §31, §32

c. 3, §32A

c. 3, §38A

c. 3, §SSA

c. 3, §S6

c. 3, §6SA

Connecticut General Statutes

§2-lc

§2-4

§2-3S

§2-40

76

passim

43

37

23

34n

24

2S

3Sn

24,3Sn

32n

27

27

27,32n

28,32n

-

Maine Revised Statutes

tit. 3, §151

tit. 3, §§21, 41

tit. 3, §§421, 425

New Hampshire Revised Statutes Annotated

Sl4:2-a

New York Consolidated Laws (McKinney)

Leg is., S63

Pennsylvania Consolidated Statutes

46 Pa. Cons. Stat. S42.146

46 Pa. Cons. Stat. S70.l

Rhode Island General Laws

§22-3-3

§22-5-2

§22-5-3

United States Code

2 u.s.c. S29a

2 u.s.c. §194

2 u.s.c. S411

2 u.s.c. §§636, 688

77

28,32n

28

27,32n

28,32n

27

28,32n

27,32n

29,32n

27

28,32n

30

30

31,32n

31

CONSTITUTIONAL PROVISIONS

Massachusetts Constitution

Mass. Const., Amend. Art. 48

Mass. Const., Amend. Art. 48, !nit., Part II, §3

Mass. Const., Part II, c. 1, §1, art. 4

Mass. Const., Part II, c. 1, S2, art. 7

Mass. Const., Part II, c. 1, §3, art. 10

Connecticut Constitution

Conn. Const., art. 3, Sl

Maine Constitution

Me. Const., Art. IV, Part 3, §4

New Hampshire Constitution

N.H. Const., Part II, arts. 22, 23

New York Constitution

N.Y. Const., art. 3, §9

Pennsylvania Constitution

Pa. Const., art. 2, Sll

- vi -

78

passim

7,12

23

22

22

26

26

26

26

26

Rhode Island Constitution

R.I. Const., art. 4, §7

United States Constitution

U.S. Const. art. I, §5, cl. 2

MISCELLANEOUS

Debates in the Massachusetts Constitutional Convention, 1917-1918 (Volume II:

26

30

The Initiative and Referendum) (1918) passim

1965-1966 Op. Att'y Gen. 83 13n

Manual for the General Court, 1983-1984 22

Joint Rule 3 24

Joint Rule 4A 25

Senate Rule 27, §13 25

House Rule 33, §4 25

Massachusetts Acts and Resolves

1963 Mass Acts, c. 506 34n

1972 Mass Acts, c. 349 34n

79

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COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

No. 3314

SUFFOLK COUNTY NOVEMBER SITTING, 1983

MILTON PAISNER, ET AL.,

Plaintiffs,

v.

FRANCIS X. BELLOTTI, ET AL.,

Defendants.

ON RESERVATION AND REPORT FROM A SINGLE JUSTICE OF THE SUPREME JUDICIAL COUR~ FOR SUFFOLK COUNTY

BRIEF FOR THE PLAINTIFFS

81

STATEMENT OF THE ISSUE

Whether the Attorney General properly refused

to certify Initiative Petition 83/14, pursuant to

Massachusetts Constitutional Amendment 48, on the

ground that the matter proposed therein did not

constitute a measure in appropriate form for

submission to the people because it did not pro

pose a law or constitutional amendment.

STATEMENT OF THE CASE

This matter is before the Court on a reserva

tion and report without decision from a Single

Justice of the Supreme Judicial Court of Suffolk

County. The plaintiffs are the first signers of

an initiative petition entitled "An Act Providing

for Reform of the General Court" which has been

designated by the Attorney General as Initiative

Petition 83/14 (her~inafter the "initiative peti

tion"). The initiative petition was timely sub

mitted to the Attorney General pursuant to Amend

ment XLVIII of the Massachusetts Constitution

82

(hereinafter "Amendment 48") for his certification

that, inter alia, the measure and the title there

of were in proper form for submission to the

people. On September 7, 1983 the Attorney General

advised plaintiffs by letter that he declined to

certify the initiative petition, asserting that it

was "not a measure in proper form for submission

to the people" because it did not purport to

propose a law or constitutional amendment.

On or about September 14, 1983, plaintiffs

instituted this action against the Attorney

General and the Secretary of the Commonwealth for

declaratory and injunctive relief, seeking a

, declaratory judgment that the Attorney General

improperly refused to certify the initiative

petition and seeking an order that the Attorney

General certify same to the Secretary of the

Commonwealth.

Defendant-Intervenor William M. Bulger moved

to intervene as a party defendant and was allowed

by the Single Justice to intervene for limited

83

purposes. All parties subsequently filed a Motion

for Reservation and Report of the matter without

decision to the Full Bench upon a Statement of

Agreed Facts. This motion was allowed on or about

September 19, 1983 and the case was entered in

this Court.

SUMMARY OF THE ARGUMENT

The Attorney General erred in refusing to

certify that the initiative petition was in proper

form based on his belief that the petition in

substance does not propose what he considers to be

a "law," that is to say, a "measure" which may

properly be proposed by initiative petition.

Whether a petition in substance is a measure

appropriate for initiatives is an issue beyond the

certification authority of the Attorney General

which is restricted to matters of form. (pp.

6-18). 'I'he language·of Amendment 48 and its

legislative history state unequivocally that the

Attorney General's authority as to matters of form

84

I I I i ( \

is one involving matters of technical draftsman

ship only, and was never intended to give the

Attorney General any authority to assert a sub-

stantive objection to the petit·ion. (pp. 9-14).

The policies of Amendment 48 dictate that no

constitutional officer should be permitted to

exceed his defined role in the process and thereby

block an initiative petition. (pp. 14-18).

Moreover, the Attorney General's conclusion

that the petition does not propose a "law" because

it affects procedures of houses of the General

Court is itself error. (pp. 18-32). The Justices

of this Court opined in 1978 that matters which

·may be deemed "rules of procedure" of houses of

the legislature are within the proper exercise of

the legislative power of the General Court, and

that they are accordingly within the proper exer

cise of the legislative power of the people

through the initiative. They stated that the two

legislative powers are coextensive except as to

matters specifically excluded from the initiative,

85

and that matters relating to "rules of procedure"

are not excluded. (p. 33). This conclusion of

the Justices and the reasoning behind it are

supported by the overwhelming weight of authority,

and there is no suggestion either in the body of

Amendment 48 or its history which would cast any

doubt upon this conclusion. (pp. 33-41). Thus,

the Justices' analysis in 1978, not the Attorney

General's view, accurately sets forth the law of

the Commonwealth.

The Attorney General's errors are also fully

reviewable and reversible by this Court. (pp.

41-44).

ARGUMENT

I. 'I'HE ATTORNEY GENERAL EXCEEDED HIS CONSTITUTIONAL AUTHORITY IN REFUSING TO CERTIFY THE PETITION ON 'I;HE GROUND THAT IT WAS NOT A_ MEASURE WHICH MAY PROPERLY BE PROPOSED BY INITIATIVE.

The Massachusetts Constitution is specific in .

setting forth the Attorney General's authority

regarding certification of an initiative petition.

He is to certify as to three matters:

86

I I (

•

,. ~

[l] that the measure and the title thereof are in proper form for submission to the people, [2] and that the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections, [3] and that it contains only subjects not excluded from the popular initiative and which are related or which are mutually dependent • • • •

Amend. Art. 48, Init., Part II, §3.

Without any apparent constitutional authority

to do so, the Attorney General has redefined his

function of certifying as to form to include a

fourth, substantive, matter for certification --

whether the petition has proposed what he con-

siders to be a "law," i.e., a "measure" which may

properly be proposed by initiative petition. In

doing so, and in refusing to certify the petition

because of this fourth matter, the Attorney

General went beyond the scope of his constitu

tional authority and thereby committed reversible

error. The Court need not even address the merits

of his position.

The Attorney General's refusal to certify the

petition is phrased to suggest that it is not in

87

"proper form for submission to the people." His

reasoning is that if the petition substantively is

not a proper measure for an initiative petition,

then it cannot be in "proper form." But the

constitution, not the Attorney General, defines

the scope of his power to certify as to matters of

form. The constitution does not authorize a two

fold test, a substantive determination of whether

the petition proposes a proper measure, and a

determination of whether the petition is in proper

form. It authorizes only the latter test. The

Attorney General's power as to matters of form was

never intended to encompass a far-reaching sub

stantive authority to defeat initiative petitions.

His authority begins and ends, instead, with

matters of draftsmanship assuring that the will

of petitioners is expressed in reasonably compe

tent form. Neither the language of Amendment 48

nor its history suggests any power to make a

jurisprudential analysis of whether the proposed

law is in fact a "law" or a "rule," so long as it

takes the reasonable technical form of a law.

88

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The Attorney General's duty to certify as to

matters of form was the subject of an amendment to

the Initiative-Referendum at the Constitutional

Convention of 1917-1918 proposed by Mr. Josiah

Quincy of Boston, a leading proponent of the

initiative. Mr. Quincy moved to add a proviso

that no initiative petition shall be so filed until it has been submitted to the Attorney General • • • or to • • • an officer whose duty it is to assist members or committees of the General Court in the drafting of bills, and the constitutional amendment or law which is the subject of the petition has been certified ••• either by the Attorney General • • • or by such officer • • • to be in proper form for submission to the people.

Debates in the Massachusetts Constitutional

Convention, 1917-1918, Volume II, The Initiative

and Referendum (hereinafter "Debates") at 723.

The debate on the Quincy amendment (Debates,

723-728), which focused primarily on who should

have the form-certification function, reveals that

the delegates shared the unmistakeable under-

standing that the amendment's purpose was only to

ensure competent technical draftsmanship of a

petition.

89

""

In describing the officer of the General Court

he had in mind in his amendment, Mr. Quincy refer-

red to one who was the "bill drafter" or one

designated for "assisting members to draft bills."

Debates, 723-724. Mr. Churchill of Amherst, who

proposed to strike from the Quincy amendment the

option of submitting the measure to an officer of

the General Court, described the purpose of the

Quincy amendment as providing a responsible off i-

cer to ascertain that the measure "has no mis-

takes." Debates at 724. Each of the subsequent ' . \

' I speakers on the matter voiced the same intent.

. I Mr. Clapp of Lexington used the term "bill clerk;"

Mr. Walker of Brookline used the terms "bill

drafter," and "bill drafting department;" Mr.

Balch of Boston used the expression "checking up

on form." Debates, 725-727.

Perhaps the most definitive explanations came

from Mr. Parker of Lancaster and then from Mr.

Quincy himself in response to the debate on his

proposal. Mr. Parker stated:

90

As I read the amendment originally proposed by Mr. Quincy, it was to make provision for verbal correction, possibly for verbal transposition, possibly improvement in the phrase and text of the initiative measure assumed to have come directly from the people ~nd to express the desire or affirmation of the people.

Debates at 727. Mr. Parker then went on to

express his views on who should have such a func-

tion, observing:

I see no reason, if there be need to have the spontaneous wish of the people revised and put in intelligent form before it may hope to have any further life, why that proposal should not be submitted first, and submitted only, to the most competent and trustworthy off ic ial or tribunal that may be provided.

Id. He then went on to argue in support of having

the Attorney General perform this function, obser-

ving that in this role the Attorney General would

be "not the censor, but the aide and interpreter

of the people's will in the phraseology of initia

tive petitions." Debates at 727, 728.

After another brief round of remarks as to who

should be given this task, Mr. Quincy replied:

91

Perhaps we are giving to this matter more time than it really deserves. My whole effort in originating this suggestion and urging it upon the majority of the committee, and then offering it as it appears in the calendar, was to provide some competent legal revision of an initiative petition before it started.

Debates at 729. The Convention proceeded to adopt

the Quincy amendment but modified it to accept the

Churchill/Parker proposal to assign the function

solely to the Attorney General rather than to an

officer of the General Court.

Rarely is legislative history so clear as to

the intent embodied in a provision. Further, the

language of Amendment 48 itself is perfectly

consistent with this unambiguous intent, speaking

as it does only of a certification that the mea-

sure is "in proper form."

The substantive inquiries to be made by the

Attorney General were debated at the Constitu

tional Convention, and each was set forth speci-

fically in Amend. Art. 48, Init., Part II, §3.

These are the determinations as to excluded mat-

ters and as to the relatedness of the subjects of

the petition and as to the similarity of the

92

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petition to past petitions. Had the draftsmen of

Amendment 48 intended a determination to be made

on whether the petition proposed a proper "mea-

sure," they would have added· it to the list. It

is insupportable to construe the Attorney Gen-

eral's ministerial role of certifying form as

importing another, substantive, power to reject a

petition, in view of the constitutional language

defining his function, and in view of the

expressed will of the Convention delegates

adopting that language.

Accordingly, by adding a substantive review to

a function clearly intended to deal only with

form, the Attorney General exceeded his constitu-

tionally defined role within the initiative pro

cess.1 He may not, therefore, properly refuse to

l At least one Attorney General has formally recognized that the certification role is indeed one of form and phraseology, and not one of substance. 1965-1966 Op. Att'y Gen. 83. While Attorney General Brooke's opinion dealt with matters of substantive constitutionality, his recognition of his limited role is instructive and consistent with the history of the Attorney General's power.

93

certify the petition on the substantive ground

that matters relating to "rules of proceeding" may

not be proposed by initiative.

Important policy reasons support this conclu-

sion as well. Allowing a constitutional officer

to become an arbiter of the propriety of submit-

ting a matter by initiative petition, beyond those

areas specifically assigned to him, adds an ele-

ment of dangerous unpredictability to the initia-

tive process. A constitutional officer's role is

not to make law but to make rational applications

of existing law within a circumscribed scope of

authority. Courts define and express the law (

through reasoned decisions and opinions which give

guidance to those affected. Citizen legislators,

in exercising their fundamental initiative rights,

are entitled to rely to some degree on the words

of the constitution and the law as set forth by

courts and Justices. Initiative petitions are not

properly to be subject to unforeseeable objections

94

by the Attorney General such as that posed here-

an objection based on a putative jurisprudential

distinction between a "law" and a "rule of

proceeding."

In the instant case, for example, the Attorney

General's substantive objections to the initiative

petition are directly contrary to a pronouncement

of the law by the Justices of this Court in 1978.

Where the Justices stated that matters which might

be viewed as "rules of proceeding" of houses of

the legislature were within the proper exercise of

the legislative power of the General Court and

that of the people, Opinion of the Justices, 375

Mass. 795, 817 (1978), the Attorney General rules,

to the contrary, that matters which he determines

to be "rules of proceeding" are not within the

proper exercise of the legislative power of the

people. An Opinion of the Justices is "accorded

weight by the public and the profession as indi

cating what the law is." Answer of the Justices,

95

214 Mass. 602, 603 (1913). There can be no

rational planning in the people's legislative

process if a constitutional officer has the right

to disapprove an initiative petition under the

guise of "form" because he disagrees with the law

as set forth by the Justices of the Supreme

Judicial Court. As a further illustration of the

problem, it may be noted that the Attorney

General's refusal to certify Initiative Petition

83/14 comes just two years after he certified a

materially identical petition (A. 62, para. 13)

even though no authority in the intervening period

called into question the Justices' conclusion in

1978. The initiative process is difficult enough

within the framework created by the people.

Putting the people also through a constitutional

guessing game in order to exercise their rights is

an unwarranted interference with the process.

It is submitted, therefore, that the language

of Amendment 48, its intent as expressed unambigu-

96

ously in its legislative history, and the impor-

tant policy of allowing the people a reasonably

predictable course in exercising their rights

under Amendment 48, all lead to the conclusion

that the Attorney General has no constitutional

authority to refuse to certify an initiative

petition on the substantive ground that matters

dealing with so-called "rules of proceeding" of

the legislature may not be proposed by

initiative. 2

2 This is of course not to argue that an aggrieved person in a proper case at the proper time has no right to contest the validity of a proposed law or its general propriety as an initiative measure. See, ~' Cohen v. Attorney General, 357 Mass. 564 (1970). Such objections are an inevitable eventuality in the context of any public or electoral matter. But such is an issue for a court to decide. The constitutional officer who has a limited and defined function in the process is not entitled to put himself forth as the adversary to initiative petitioners.

97

Accordingly, the Attorney General's decision

should be reversed on the ground that he exceeded

his constitutional authority. Since he has

asserted no proper ground for refusing to certify

the petition, he should be directed to certify it.

II. THE ATTORNEY GENERAL ERRED WHEN HE DETERMINED THAT 'I'HE INITIATIVE PETITION DOES NOT PROPOSE A LAW APPROPRIATE FOR THE INITIATIVE.

The Attorney General cites as his ground for

refusing to certify the initiative petition that

it is "essentially an attempt to provide rules of

procedure for both branches of the state legisla-

ture" and thus does not possess the critical

characteristic of submitting a law. 3 (A.67).

3 The Attorney General also wrong!~ character-

izes the content of the initiative petition. Plaintiffs would not attempt to understate the significance of the changes their proposal would produce in certain details of the procedures of the legislative branch of the government. However, the description by the Attorney General of the measure, together with the various materials submitted by the intervenor, amount to an effort to portray the petition as a comprehensive set of procedural rules governing the day-to-day conduct of the legislature, akin to a new Manual of the General Court. A review of the petition

98

L

A constitutional officer's attempt to prevent sub-

mission of an initiative petition by positing a

distinction between a "rule of procedure" regula-

ting a branch of government and a "law" regulating

the procedure of the same branch is contrary to

the well settled judicial doctrine that terms in

Amendment 48 are to be given meanings "most obvi-

ous to the common intelligence" of the voters who

enacted it. Buckley v. Attorney General, 371

Mass. 195, 199 (1976). Common intelligence does

not discern such jurisprudential subtleties. That

which regulates individuals and their institutions

and is formulated through the legislative process

is, to the common intelligence, a law.

belies this characterization as well as any implication made by the intervenor that the initiative petition would hamstring the officers of the General Court in overseeing the operation of their houses. Plaintiffs have proposed important changes to discrete aspects of the procedures in the legislature. These include matters such as the election of certain officers and the selection of committee members and chairmen; certain time deadlines for reporting measures to the floor; various procedures designed to give legislators notice of pending business; changes in the present compensation structure for legislative officers, and others.

99

Matters respecting procedures of houses of the

legislature, individually or jointly, are univer-

sally deemed proper subjects of legislative enact-

ment as evidenced by abundant examples in Massa-

chusetts law, in the law of other states and in

federal law. Moreover, nowhere is there authority

for adjudging such laws beyond the reach of the

popular initiative. To the contrary, the initia-

tive is everywhere deemed coextensive with the

lawmaking power of the legislature, except where

the initiative provision itself makes exceptions.

The carefully drawn list in Amendment 48 of mat-

ters to be excluded from the initiative does not

mention matters governing procedure of the legis

lative branch.

The Justices of this Court in 1978 considered

essentially the same question that the Court

addresses today: May an initiative petition

propose to enact measures regulating aspects of

the General Court's proceedings? The Justices

correctly asserted in a unanimous opinion that the

100

General Court can exercise its rulemaking power

through the legislative process, and that the

people through the initiative petition may do the

same because "except as to matters expressly

excluded, the scope of the power of the people to

enact laws directly is as extensive as that of the

General Court. The matter of regulating legisla-

tive proceedings is not excluded from the initia-

tive process." Opinion of the Justices, 375 Mass.

795, 817 (1978). The Attorney General's reasoning

for denying certification of the initiative peti

tion is wholly at odds with this pronouncement of

the Justices of the Commonwealth's highest court,

a pronouncement that is supported in all respects

by the overwhelming weight of authority.

A. It is universally accepted that measures governing legislative proceedings may be enacted as laws.

1. The law of Massachusetts, as pronounced by the Justices of this Court and as reflected in the historical practice of the General Court, is that the regulation of procedure is within the proper exercise of legislative power.

101

The Attorney General's distinction between

"rules of procedure" and "law" is more imagined

than real. The Justices of this Court rightly

declared that the General Court's rule-making

power may be exercised both by the adoption of

rules and the passing of laws. Opinion of the

Justices, ~75 Mass. 795, 817 (1978). Indeed, the

authority granted to the Senate (Mass. Const.,

Part II, c. 1, §2, art. 7) and to the House of

Representatives (Mass. Const., Part II, c. 1, §3,

art. 10) to establish rules of proceeding has

never been exercised solely by passing internal

sets of rules. To be sure, the Manual for the

General Court, 1983-84, contains Rules of the

Senate (pp. 535-576) and Rules of the House of

Representatives (577-615), which regulate most of

the day-to-day proceedings in the respective

houses, as well as Joint Rules (617-650) which

provide most rules of-proceeding for both houses.

However, the General Court has also long regulated

aspects of the proceedings of either or both

102

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houses through law, that is, through its legis-

lative power as granted by Mass. Const., Part II,

c. 1, §1, art. 4, which power extends not only to

regulation of the conduct of the public but to the

conduct of their governmental institutions as

well.

There are many examples of laws governing

legislative procedures. The procedure for calling

the House of Representatives to order is detailed

in G.L. c. 3, §3. The proper manner for engross-

ing legislative acts and resolves under the

direction of the committees on rules of the two

branches is prescribed in G.L. c. 3, §23. G.L.

c.3, §30 authorizes the President of the Senate,

the Speaker of the House and others in appropriate

supervisory ~ositions to approve accounts for

expenditures made or services rendered pursuant to

a legislative order. G.L. c. 3, §35 directs

committee chairmen to take out newspaper adver-

tisements of hearings subject to the approval of

103

the committee on rules. G.L. c. 3, §56 estab

lishes the legislative research bureau and man

dates its composition and duties.

The substance of these statutes leaves no

question that measures which are perfectly proce

dural in nature have long been enacted as laws as

well as by internal rules. All of the above-cited

laws, save the last, originate in the nineteenth

century and thus predate Amendment 48.

That the Attorney General's distinction

between "laws" and "rules" is at best semantic is

further illustrated by several statutes which

address subject matter identical to that in a

rule. G.L. c. 3, §32A requires legislative

approval of travel plans of House or Senate com-

mittee members and imposes duties on the sergeant

at-arms of arranging transportation and accommoda

tions. Joint Rule 3 speaks to the very same

issue. Another example is the statutory require

ment that legislative committees include fiscal

notes when reporting favorably on bills that will

104

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cost over one hundred thousand dollars. G.L. c.

3, §38A. Similar provisions appear in Senate Rule

27, §13, in House Rule 33, §4, and in Joint Rule

4A.

To conceive of "rules of procedure" and laws

as existing on opposite sides of an impassable

wall is, then, to create a highly artificial

construct that has no apparent basis in the his-

tory of Massachusetts law, certainly not as of the

time Article 48 was adopted in 1918. Accordingly,

the Attorney General's refusal to certify the

initiative petition, based on his observation that

"[r]ules of legislative procedure do not

come within the law-making authority of the

General Court," finds no support in the law of

Massachusetts. Nor is his position supported by

the example of other states.

2. The statutes of other states confirm that legislative procedural matters are properly enacted by law as well as by rule.

The inclusion of measures affecting legisla-

tive procedure in laws is by no means unique to

the Commonwealth, notwithstanding that most, if

105

not all, states have constitutional provisions

like those of Massachusetts giving the houses of

the legislature power to determine their own

rules. Plaintiffs have not attempted to burden

the Court with an examination of the codes of all

fifty states. A review of our neighboring states

alone offers sufficiently striking parallels to

the Massachusetts model and suggests universal

practice.

The state constitutions of Connecticut (art.

3, §1), Rhode Island (art. 4, §7), New Hampshire

(Part II, arts. 22, 23), Maine (Art. IV, Part 3,

§4), Pennsylvania (art. 2, §11) and New York (art.

3, §9) all provide that the respective houses of

their legislatures shall determine their own

"rules of proceeding(s)". Yet the laws of each

state contain statutes of the purest procedural

character governing the houses of their legisla

tures. One finds, for example, statutes requiring

appropriations bills to be referred to a joint

106

standing committee unless such reference is dis

pensed with by a two-thirds vote in each house,

Conn. Gen. Stat. §2-35; prescribing that, at

certain joint sessions, the clerk will call the

rolls and each member shall answer to his name,

R.I. Gen. Laws §22-5-2, Conn. Gen. Stat. §2-4;

providing that actions by any legislative inves

tigative committee be approved by a majority of

the members and that notice of the date and time

of any meeting or hearing be given to all commit

tee members at least three days in advance, Me.

Rev. Stat. tit. 3, §§421, 425; and specifying the

composition of a budget committee as well as the

terms of members and their manner of appointment,

46 Pa. Cons. Stat. §70.1.

Similarly, the procedures by which persons are

adjudged in contempt of the legislature after a

hearing before the appropriate committee, Conn.

Gen. Stat. §2-lc; by which chairmen of investi

gative committees secure payment for committee

expenses, N.Y. [Legis.] Law (McKinney) §63; by

107

which vacancies in the off ices of president of the

senate or speaker of the house are to be filled,

N.H. Rev. Stat. Ann. §14:2-a, 46 Pa. Cons. Stat.

§42.146, are the subject matter of statutes.

Numerous other procedural details are taken up

in statutes, such as the limiting of business in

joint committees to acts and topics specified in

the "invitation" that called the assembly

together, R.I. Gen. Laws §22-5-3; ordering that

detailed procedures be followed in reviewing the

governor's judicial nominations, including giving

notice of public hearing, limiting committee

debate, requiring that the committee vote only

upon a motion to recommend confirmation and speci-

fying a deadline for final recommendation by the

full senate, Me. Rev. Stat. tit. 3, §151, simi-

larly, Conn. Gen. Stat. §2-40; the time and manner

of calling the senate or house of representatives

to order and electing secretaries and clerks, Me.

Rev. Stat. tit. 3, §§21, 41; and a procedure in

the house for electing a speaker and notifying the

108

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senate of its readiness to proceed, R.I. Gen. Laws

§22-3-3.

While day-to-day legislative rules of pro

ceeding generally appear in manuals or rulebooks,

the statutory codes of Massachusetts and of the

states surveyed above take for granted that laws

may govern such matters as well. Surely these are

not all improper exercises of legislative power.

These laws contain rules of proceeding freely

running the gamut from the calling to order of one

branch of the legislature to the more complex

procedural interrelationships of the two houses in

joint committees. In each of the provisions lies

the implicit belief that matters pertaining to

legislative proceedings are an entirely natural

subject for statutes. A search by plaintiffs in

all states for judicial comment on the subject has

revealed not a single case contravening this view.

This position is reflected as well in federal law.

109

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3. Federal law likewise features the regulation of legislative proceedings by statute.

The indistinguishability of "rules of proceed

ing" from law is further evidenced in the federal

context. The Constitution of the United States

entitles each house to determine its own rules of

proceeding. Art. I, §5, cl. 2. As with the state

legislatures, Congress has exercised this power on

many occasions through the legislative process.

The laws governing Congress provide, for example,

that the majority or minority leader of the House

of Representatives may, after consultation with

the Speaker, call a caucus in any even-numbered

year, 2 U.S.C. §29a; require that a witness's

failure to testify before either house or before a

joint committee be reported to the President of

the Senate or the Speaker of the House who will,

in turn, certify the matter to the United States

Attorney, 2 U.S.C •. §194; describe the composition

of the Joint Committee on Congressional Opera-

tions, state that vacancies will not impair its

110

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power to function and prescribe that the chair-

manship and vice chairmanship alternate with each

Congress between the Senate and the House, 2

u.s.c. §411; and, in the context of considering

resolutions, impose precise limitations on the

length of debates, specify what topics may be

debated, who may make certain motions and which

motions shall be decided without debate, 2 u.s.c.

§§636, 688. The Court of Appeals for the District

of Columbia long ago stated that Congress's

authority to determine its rules of proceeding may

constitutionally be exercised through legislation.

"[I]t is not apparent that a rule is any the less

•a rule because it takes the form of a statute."

Chapman v. United States, 8 App. D.C. 302, 310

(1896).

The statutory codes of Massachusetts, other

states and the United States speak then with one

voice: measures governing legislative proceedings

may be enacted by law as well as by internal rule;

the regulation of proceedings recurrently form the

111

content of laws. It emerges from this survey4

that the Justices' unanimous view expressed in

Opinion of the Justices, 375 Mass. 795, 817

(1978)--that rules of proceeding are a proper

subject for the legislative process--is

unassailable.

4 It is noteworthy that most of the prov1s1ons in the initiative petition have direct parallels , in the statutes of the United States and the states surveyed. For example, proposed G.L. c. 3, §§71-73 and 76 set forth procedures for selection of a presiding officer and filling vacancies as do R.I. Gen. Laws, §22-3-3, N.H. Rev. Stat. Ann. §14:2-a and 46 Pa. Cons. Stat. §42.146. Proposed laws G.L. c. 3, §§73-75 deal with the selection of membership of, and certain procedures for, committees as do R.I. Gen. Laws §22-5-3, 46 Pa. Cons. Stat. §70.1, Me. Rev. Stat. tit. 3, §151, Conn. Gen. Stat. §2-40 and 2 u.s.c. §411. Indeed, G.L. c. 3, S65A is an example of a statute dealing with the membership of a legislative committee. Proposed G.L. c. 3, §§84-86 set forth procedures for establishing calendars and notice as to pending business as does Me. Rev. Stat. tit. 3, §425 respecting investigative committee business. Voting requirements as to procedural matters contained in the petition find ,precedent in Conn. Gen. Stat. §2-35 •. No one could seriously argue that matters regarding compensation of legislative leaders are not proper subjects for statutes.

112

B. The power of the people to enact law by initiative petition is coextensive with that of the General Court and therefore includes the power to propose laws which affect proceedings in the General Court.

As observed in Opinion of the Justices, 375

Mass. 795, 817 (1978), the legislative power of

the people is coextensive with that of the General

Court. Amendment 48 stems from the democratic

axiom that the people have ceded power to the

legislature - not vice versa - and have reserved

their own inherent legislative power. The legis-

lative equality of the people and the General

Court is the inescapable inference from the

debates of the Massachusetts Constitutional Con-

vention of 1917-1918 as well. In 1,044 pages of

verbatim transcription of the convention, not a

single statement was made wherein a delegate

suggested that the initiative carried any lesser

role for the people than for the General Court

(except in the context of specific excluded mat

ters). Indeed, in what is apparently the only

passage dealing with relative powers, Mr. Walker

113

of Brookline moved to add what is now the final

sentence of Art. 48, The Initiative, Part II, §2:

"The limitations on the legislative power of the

General Court in the constitution shall extend to

the legislative power of the people as exercised

hereunder." Mr. Walker's amendment was intended

to rectify a possible misimpression that the

people's legislative power might actually exceed

that of the General Court, i.e., that the people's,

enactments might be insulated from constitutional

scrutiny. Debates at 648-49. Where care was

deemed necessary to assure that the people's

legislative power not be viewed as beyond the

scope of the General Court's power, it cannot now

be cogently argued that the power of the people

was intended to be less than that of the General

Court, except in the context of specific excluded

matters. 5

5 The General Court itself on at least four occasions has implicitly recognized that laws governing legislative procedures are subject to referendum. G.L. c. 3, §§31 and 32 have each been amended by acts with emergency preambles. (Acts 1963, c. 506 and Acts 1972, c. 349). G.L. c. 3,

114

The Attorney General himself appears to recog-

nize the coextensive nature of the people's and

the General Court's legislative power when he

writes, in his letter refusing certification of

plaintiffs' initiative petition: "Rules of legis-

lative procedure ••• do not come within the

law-making authority of the General Court and

hence are not among the powers reserved to the

people through the popular initiative." (emphasis

added). (A.67). He implies correctly that

whatever is within the law-making authority of the

General Court is within the law-making authority

of the people. (He erred of course in his belief

~hat rules of procedure do not come within the

law-making authority of the General Court.)

§55a, establishing the office and duties of the recodification council, and §56, establishing the legislative research bureau, referred to supra, p. 24, were enacted with emergency preambles. The purpose of an emergency preamble is to prevent the suspension of a law which is subject to referendum. The same meaning of "law" clearly applies to both the initiative and the referendum as both are part and parcel of Amendment 48.

115

When the Justices, in 1978, enunciated the

principle that, except as to excluded matters, the

popular initiative confers equivalent legislative

power upon the people, they were following the

universal rule adopted by courts in other initia

tive jurisdictions. As recently as September, the

California Supreme Court reiterated the proposi

tion that "the power of the people through the

statutory initiative is coextensive with the power

of the Legislature." Legislature of the State of

California v. Deukmejian, No. S.F. 24589 (Sup. Ct.

Calif., filed Sept. 15, 1983), at 24. The Supreme

Court of South Dakota, where the initiative pro

cess was first established, interpreted a statute

empowering "the legislature" to act in a particu

lar context as authorization for the people to act

as well. "The 'Legislature' of the state, in its

fullest and broadest sense, signifies that body in

which all the legislative power of a state reside

[sic], and that body is the people themselves, who

exercise the elective franchise, and upon their

116

-

power of legislation there is no limitation or

restriction, except such as may be found in the

federal Constitution, or such as they themselves

may provide by the organic law of the State."

State ex rel. Schrader v. Polley, 26 S.D. 5, 11-12

(1910).

"The initiative extends to all types of legis

lation. It is as broad as the law-making power of

the legislature," Dawson v. Tobin, 74 N.D. 713,

736 (1946). The initiative power makes of the

electorate and the legislature "coordinate legis

lative bodies and there is no superiority of power

between the two." Klosterman v. Marsh, 180 Neb.

506, 511 (1966). Thus, while each state's initia

tive process presents its own peculiarities, one

prevailing similarity is that the people's

reserved power is coextensive with that of their

government's legislative branch, with only such

exceptions as they themselves set forth in their

initiative provision.

117

Specific restrictions were placed on the

people's coextensive legislative power in Amend

ment 48, in the form of excluded matters which

initiatives cannot affect. These represent the

only subjects meant to be outside the operation of

the popular initiative. At the Constitutional

Convention of 1917-1918, the Initiative and Refer

endum was the single most debated proposal. A

reading of the Debates demonstrates that the

subject of excluded matters engendered the most

intensive deliberations. The discussion of what

matters should and should not be within the reach

of the initiative petition runs, in the transcrip

tion, to the scores of pages. Debates at 623-

1044, passim. Ultimately, religious freedoms,

certain other individual rights, the jurisdiction

of the courts and enactments affecting only par

ticular localities were all considered, debated

and excluded from the initiative.

The delegates to the 1917-1918 convention were

not oblivious to the processes of the legislature.

118

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Indeed, they determined that one legislative

process should be left exclusively to the General

Court - the making of specific appropriations from

the treasury of the Commonwealth. Never did a

delegate suggest, however, that the authority to

legislate matters affecting the General Court's

proceedings - which authority had, long before

1917, been exercised through the legislative

process - be excluded from the scope of the initi-

ative power, nor did any such exclusion find its

way into the language of Amendment 48.

The delegates to the constitutional convention

deliberately fashioned the initiative such that

v,ery few distinctions could be made between the

scope of the General Court's power and that of the

people's legislative power, and those distinctions

are spelled out in Amendment 48. Rules of pro

ceeding were not among the subjects as to which

only the General Court could make enactments.

Accordingly, the Justices' observation that "(t]he

matter of regulating legislative proceedings is

119

not excluded from the initiative process," Opinion

of the Justices, 375 Mass. 795, 817 (1978), cannot

be subjected to serious challenge.

It is respectfully submitted that the conclu

sion of Opinion of the Justices, 375 Mass. 795

(1978), that matters which could be viewed as

"rules of proceeding" of houses of the legislature

are proper exercises of the initiative, is correct

and fully in accord with the language of Amendment '

48, its history and the overwhelming weight of

authority. The reasoning in the opinion which

produced that conclusion has likewise been shown

to be sound, as it is supported by all known

authority in this and all other jurisdictions. It

follows that, even if he had the authority to make

a determination as to the propriety of the initia

tive petition, the Attorney General committed a

reversible error in refusing to certify it on the

asserted ground that it seeks to regulate legisla

tive proceedings.

120

Opinion of the Justices, 375 Mass. 795, 817

(1978), should be accepted as the law of the

Commonwealth and reaffirmed. The Attorney General

should therefore be ordered to certify the initia-

tive petition.

III. THE ATTORNEY GENERAL'S REFUSAL TO CERTIFY THE INITIATIVE PETITION IS FULLY REVIEWABLE BY THIS COURT.

As a final matter, the Attorney General sug

gests that his refusal to certify the initiative

petition was a discretionary act which may be set

aside only upon a showing of bad faith or an abuse

of his discretion. (A.56, para. 13). Such a

proposition has, however, been clearly rejected by

this Court.

In Horton v. Attorney General, 269 Mass. 503

(1929) this Court repudiated any suggestion that

certification decisions of the Attorney General

were final or could be set aside only upon evi

dence of bad faith or an abuse of discretion. To

the contrary, in Horton, this Court made clear

that it has broad powers of judicial review in

121

such matters. The Court observed that

It is elementary in constitutional law under the Constitution of this Commonwealth that a duty is cast upon the judicial department of government • • • to determine whether a public officer is overstepping constitutional bounds •••• The words defining the authority and obligation resting on the Attorney General under "The Initiative," Part II, Section 3 of art. 48 of the Amendments to the Constitution, import no more of unreviewable finality than do those of c.l, Section 1, arts. 3 and 4 of the Constitution and of art. 2 of its Amendments creating the legislative powers of the General Court, or those of art. 21 of the Amendments conferring upon commissioners power to divide the territory of several counties into representative districts.

269 Mass. 503, 507-508.

The Court reasoned that it follows "irresisti-

bly from these indisputable premises" that actions

taken by the Attorney General pursuant to his

authority to certify initiative petition matters

under Amendment 48 are open to judicial review for

determination whether those actions conformed to

the Constitution: 269 Mass. 503, 508.

The principles established by this Court in

Horton for review of actions of the Attorney

122

j ..........___

General in the initiative process have been reaf-

firmed on numerous occasions. See, Bowe v.

Secretary of the Commonwealth, 320 Mass. 230

(1946); Cohen v. Attorney General, 357 Mass. 564

(1970) and Slama v. Attorney General, Mass Adv.

Sh. (1981) 2246. Indeed the only case known to

apply the bad faith or abuse standards, Anderson

v. Secretary of the Commonwealth, 255 Mass. 366

(1926), was implicitly overruled in Horton and

expressly repudiated in Massachusetts Teachers

Association v. Secretary of the Commonwealth,

Mass. Adv. Sh. (1981) 1764, 1785.

The basis upon which the plaintiffs challenge (

the Attorney General's refusal to certify their

initiative petition is, under Horton, clearly

within the scope of this Court's inquiry. The

plaintiffs assert that the refusal of the Attorney

General to certify the initiative petition on the

ground that it failed to propose a "law" within

the meaning of Amendment 48 was both erroneous as

a matter of law and a determination which was

123

beyond the scope of his authority under Amendment

48.

When the Attorney General makes a determina

tion which is both erroneous as a matter of law

and is beyond the scope of his authority under the

Constitution of this Commonwealth, this Court,

following the clear statement of the law in Horton

and its progeny, should set aside that

determination.

124

CONCLUSION

For all of the reasons set forth above, this

Court should declare that, in refusing to certify

the initiative petition, the Attorney General both

exceeded his authority under the Constitution and

erred as a matter of law. This Court should

order the Attorney General to certify the initia-

tive petition forthwith.

On the Brief:

Joel R. Leeman Mark v. Tremallo

Respectfully submitted,

MILTON PAISNER et al.

Robert G. Stewart Paul J. Hartnett, Jr. HUTCHINS & WHEELER One Boston Place Boston, MA 02108 (617) 725-1500

DATED: October 14, 1983

125

r r

STATUTORY ADDENDUM

127

,. '

STATUTORY ADDENDUM

Connecticut

Conn. Gen. Stat. §2-lc

.§ 2-lc.··.,Cori~pt'of the genenl usembly; 0 penalty i • ~ . •. ' : . '•. . \ ,. I. . .~ ; " . . • • . • • : ". • . '. . : . , . . . ·": •. ' ' . , • . •

·. ~'.EitherJ1ousel>f the' general.~tnbly may deterinine·by'majority vote that,a,person1·. guilty of eonteinpt·· of· the general= wembly/ after. a hearing be! ore· an appropria committee appointed by· the presidh.1g officer at which the person-•hall'be entitled to giv\

·.evidence;and:.be1:represented by counsel.-· Said house'may·refer:-aoch:matter to the chi . state's attomey;<;~.COnte~vt'·of,;the rne~··~bly·ahalhbe·.,Wishab!e·by.•a' fine of·no . mo~:· than oile'.0hundred•!dollarscor :1mpnsonment~for:.not .. m~~tban~atx-. months or. bo

Conn. Gen. Stat. §2-4

§ 2-4. Joint convention to elect state officers When the senate and house of representatives join in con

vention for the election of any state officer, the roll of each ' house shall, before any ballot is taken, be called by its clerk, and

each member shall rise and answer to his name; and the names of those absent shall be entered on the journal of the house to which they belong. If, on any ballot, the whole number of votes exceeds the number of persons who have answered to their names, the president shall, before declaring the ballot, cause the names of absentees to be called and, if any answer, shall inquire if they have voted; and if the number of votes still exceeds the number of persons who have answered to their names, and if· such excess of votes, subtracted from the highest number given for either candidate, is sufficient to change the result, the convention shall order another ballot.

129


§ 2-35. . Requlr~ine'nta· fo{_appropriation. bilk .. arid. •ct&:.;· Repor{''ot: tevistid rev~nue .· eatima~ .. ~~ir~;:·"." .. ·;,:·'.~:.·.:.;"·::·! ·.::·:.'·":,·.:· .. _~:; ·~·. :'.:;, •. ··.~:·; , ..

All bills carrying or requiring • appropriationa ·and ~favorably · reported by ·any other committee, except ·for payment .of claim.s-.against· the .state, .. shall, before passage, be referred to the joint standing committee of the general assembly having cognizance of

. matters relating to appropriations and the budgets o! state agencies,• unless such reference is dispensed with by a vote.of at le~t two-thirds of each branch of the general 'BSSembly. Resolutions paying_ the. contingent. expenses ol, the,senate .. ~nd bo~.of represen~tives sha_ll ~ ·ref erred . to sai!i .. ~m.mit~. " $ai~ ~ritjh~.~ ;rqay' .(>riginate ,and ;l'ep<>;rt · ~ny)>~ll which 1t deems necessacy and shall, from t1me·to time,.report.such appropnat1on bills as it · deems nec~ry for.carrying Qn:,.llle • .departinents.bf the state government and·for providing for .su~ .. institutions· or :persons as &re .. p..,:>per. subjects ··for· state aid under. the provisions of the statutes, for--one•:yeari.from the following thirtieth day of June. · Each appropria~ion _bill shall specify• the.·:pa-~~~lar ... putj>ose fo_r·;w~ic~ a~proI?ri~ticln is made, shall be itemized as far·•as practicable-and .·may •. :contain :_.any: legislation necessary ·to implem~nt its' appropriationii'·pro'(isiOri~;·:provided .rio other· general legislation shall be made a parf 0.f su.ch _apprpp_rjati~n bi!k.:-'.rhe .appropriations'.·~~ •passed bythe legislature for .funding. t.he expeii~'-~f ope~~iioll1'. p(the state ·g0~emineilt in the ensuing fuscal ·year sh11:lLcontain',a .. 8tatenient:. of~.;estir~a~ ~revenue, "'itemized' tiy ·major' source,· for··.each appi9p,tja~,:.f\!.J'.\d,::<Such.:.sta~men~;,of ~tjmated. reve.nue.11hall be supplied.by·.the joint standing committee ofthe general .assembly having.«:agilizance ,of.matters relating .to state finance, revenue -and bonding.' ;',The: total estimated :reve,n:ue !oroeacll'-fund:shall not. be less than the total net.appropriations made from each furid:~;;OJi.or:before JttJy·fll'St··ofeach fiscal year said committee, through'its ·c0chairpersons, ·shall report to the ~111ptri:>llq: ~DY revisions in··such. esti~atei '~ired.:.by•virtu~_pf.J~Jative amend~ents. ·'-°·:t.&e·;re~~iie nieastires•propOsed·by"Said·'Cdmmit~:· · · .... · , .. · ... -.~·;· · ._.~ ·: '.· . ·-- -• · ...... ·


§ 2-40. Nomination of judges

·'Eacli noniination'inade by' the ·governor t0 the.gerierai"assemblffor. the chi~f justi~ or a judge of the supreme court or superior court shall be-'referred, without debate, to the committee~on the judiciary, which shall .report· thereon within thirty legislative days· from the•time of.reference,· but.,no later than seven legislati~e days before the adjourning of the generaJ;U.Sem~l~J:'1f·,·:·:·1: i.'. y;-. ,~_;:'·"'.' < .· •:/i•:; "/'. · , .. .__..: ;' ( : .· : .: _,: • _... .. · · ,. · : (197~ •. PK,~;~6-74,'P,~. '14-188;§"3; 'eff. ¥ay24;1~4;').~~; J>~. '1.~6, _§,:35Z eff:;July 1, _1978.)

' • •-. • ..... ,. 1 • -. •_.- ' ' '-'-• ~· .•,,';. .--: - I '1.~·- 0~. •-"••\•.' •"' • •• ••· • .. 1 ,.· '• • ·

130

Maine

Me. Rev. Stat. tit. 3, §21

§ 21. Organization

The Secretary of the preceding Senate, at the time and place appointed for the meeting of the Legislature, shall call the Senators-elect present to order, and from the certified roll fur-· nished him call their names, and if a quorum respond, he shall preside until they are qualified and a President is elected. it no quorum appear he shall preside, and the Sena'.tors-elect present shall adjourn from day to day, but shall transact no business, except to go into convention to fill vacancies, until a quorum appear and are qualified and a President is elected. After the election of the President, the Senate shall proceed to elect by ballot a secretary and an assistant secretary.

In case of vacancy in the office of such secretary or his absence or inability to perform the duties, the said duties shall be performed by his assistant.

If the Secretary of the Senate and his assistant are absent at the time set for convening the Senate, their duties shall be performed by the Secretary of State or his deputy.


§ 41. Organization The Clerk of the preceding House of Representatives in the

' same manner as provided for the Senate shall call the Representatives-elect to order and preside until they are qualified and elect a Speaker. If no quorum appear he shall preside, and the . Representatives-elect present shall adjourn from day to day until a quorum appear and are qualified and a Speaker is elected. After the election of the Speaker, the House of Representatives shall proceed to elect by ballot a clerk and an assistant clerk. All revenues received by the document clerk in the performance of his duties shall be credited to the General Fund. · ,

In case of vacancy in the office of such clerk," or his absence · or inability to perform the duties aforesaid, the said duties shall be performed by his assistant.

If the Clerk of the House and his assistant are absent at the time set for convening the House, their duties shall be per ... formed by the Secretary of State or his deputy.

131


§ 151. Confirmation procedure The nomination and confirmation of alI judicial officers

whose confirmation by the Legislature is required by the Constitution and of all other civil and military officers whose confirmation by the Legislature is required by law shall be according to the procedure provided in this section.

The procedure shall be as follows. The Governor shall send to both the President of the Senate

and the Speaker of the House of Representatives a written notice of the name of the nominee and of the office to which that person is nominated. The President of the Senate shall forward such notice to the chairman of the Joint Standing Committee which is charged by law with reviewing nominations to that office.

For the purposes of reviewing nominations pursuant to this section, the joint standing con1mittee shall have the power to administer oaths and to take testimony under oath. Notwithstanding the provisions of section 165, subsection 7, the Legislature or the Legislative Council during any time when the Legislature is not in session, may grant to any joint standing committee reviewing a nomination any of the powers set out in section 165, subsection 7.

The Joint Standing Committee shall hold a public hearing on the noimination in Augusta at a time convenient to the public. Notice of the hearing shall be published in the state paper at least 7 days before the hearing. The notice shall contain the time and place of the hearing, the name of the nominee, the office to which such person has been nominated and a general description of the duties of that office. At the hearing, the committee shall take written or oral testimony which shall be limit-ed to relevant comments and questions regarding the qualifications of the nominee to carry out the duties of the office.

The committee shall recommend confirmation or denial by majority vote of committee members present and voting. The vote of the committee shall be taken only upon an affirmative motion to recommend confirmation of the nominee. A tie vote of the committee shall be considered a recommendation of denial. Such vote shall be taken no later than 20 days from the date of the Governor's written notice of the nomination to the President of the Senate and the Speaker of the House of Representatives. The committee vote shall be by the yeas and nays.

132

l

The chairman of the committee shall send written notice of the committee's recommendation to the President of the Senate. The committee's recommendation shall be reviewed by the Senate, which shall vote by the yeas and nays on every such recommendation. Upon review and vote by the Senate, the committee's recommendation shall become final actiofl of confirmation or denial unless the Senate by vote of % of those members present and voting overrides the committee's recommendation. The vote of the Senate shall be taken no later than 45 days from the date of the Governor's written notice of the nomination to the President of the Senate and the Speaker of the House of Representatives.

The Governor may withdraw a nomination at any time prior to the Senate vote by sending a written notice of withdrawal to the President of the Senate.


§ 421. Investigating committee action . ' Any investigating committee actio? shaµ reqwre

firmative votes of a majority of the committee members.

the af-


§ 425. Notice to members Notice of the date and time of any meeting of the commit

tee and of any hearing to be held by the committee shall be given to all members of the investigating committee at least 3 days in advance.

133

New Hampshire

N.H. Rev. Stat. Ann. §14:2-a

14: 2-a Presiding Officer; Vacancy. Within thirty days after a vacancy occurs· in t~e office of president of the senate or speaker of the b.ouse of representatives, the senate or house of representatives, as the case may be. shall select a successor from among its members. If the senate or house is not in session when such a vacancy occurs, the branch concerned shall assemble at the state house not sooner than seven days nor later than thirty days after the vacancy occurs on a date determined by th-a second ranking officer of the branch concerned. The clerk of that branch shall notify the members of the branch of the vacancy and the date on which selection of a successor is to take place.

N.H. Rev. Stat. Ann. '.§63

§ 63. Expenses of committees Whenever by resolution of either house, a committee or joint commit

tee duly appointed pursuant thereto shall be directed to conduct au investigation or take testimony, the comptroller shall draw his warrant for the payment of the actual and necessary expenses of the com111ittce or subcommittee having in charge such investigation, inquiry or taking of testimony, and of the officers and employee~ authorized to accompany them, upon the rendition of an itemized bill of such expenses certified by the chairman of the committee, and approved by the, temporary president of th!! senate in the case of a senate committee, or the speaker of the assembly in the case of an assembly committee, or by both such officers in the case of a joint committee, or by his or their designee or designees, respectively, and upon proof by affidavit or otherwise that the same is due.

Such designation shall be in writing and filed in the office of such officer or officers and in the office of the comptroller and shall remain in effect during the term of office of such officer or officers unless sooner revoked. The approval of any such designee shall be for expenses other than per.ional se.rvice and in amounts not to exceed the sum fixed in such desiguaEion for, any s11~h _i~~l'.11·

134

1 ii I J

Pennsylvania

Pa. Cons. Stat. §70.1

§ 70.1 Creation of committee; membership; meetings There is hereby created the Legislative Budget and Finance Commit

tee which shall consist of the President pro Tempore of the Senate an<l five other members of the Senate, the Speaker of the House of Representatives and five other members of the House. The President Pro Tempore of the Senate shall appoint the Majority Leader of the Senate,'

·the Minority Leader of the Senate and three additional members of the Senate. Two of the three additional members sl_iall be members of the Minority Party. The President Pro Tempore of the Senate, the Majority Leader and the Minority Leader may designate other members of the Senate to be appointed in their stead. The Speaker of the House of Representatives shall appoint the Majority Leader of the House of Representatives,1 the MinoFity Leader of the !louse of Representatives and three additional members of the House. Two of the three additional members shall be members of the Minority Party. The Speaker of the House, the Majority Leader and the Minority Leader may designate other members of the House to be appointed in their stead. Members of the committee shall be appointed or reappointed during each regular session of the General Assembly, and shall continue as members until the first Tuesday in January of the next odd-numbered year and until their respective successors shall be appointed, provided they continue to be members of the Senate or the House of Representatives. The term of office of such committee members as-shall not continue to be members of the Senate or the House of Representatives shall cease upon the convening of the next regular session of the Legislature after their appointment. The committee has a continuing existence and may meet and conduct its business at any place within the Commonwealth during the sessions of Legislature or any recess thereof and in the interim between sessions.

Pa. Cons. Stat. §42.146

§ 42.146 Vacancies All vacancies that may occur or exist by death, resignation or other

wise, of any of the officers or employes provided for by this act during any regular, special or extraordinary session of the Legislature shall be filled by election or appointment as provided for in this act. If any vacancy shall occur during the recess of the Legislature in the Office of President pro tempore of the Senate or of the Speaker of the House of Representatives, the duties of said office shall be performed by th~ Majority Leader of the Senate or of the House of Representatives, as the case may be.

All other vacancies that may occur during the recess among the elective officers or employes of the Senate or of the House of Representatives shall be filled by appointment by the President pro tempore of the Senate or by the Speaker of the House of Representatives until the next regular, special or extraordinary session of the Legislature. Vacancies occurring at any time among appointive officers and employes shall be filled by the respective officers authorized to appoint said officers or employes.

· § 42.14.6 Vacan..:ies

Repeal In Part Thi• 1ectitm i• rr.1walr.d b11 Ac:t .1979, /Jee. 10, l'.L. 488, No. 104, I 4,

inaofar a11 it applie11 to the /l(Ju11e of Rt:pre.•entalives.

135

Rhode Island

R.I. Gen. Laws §22-3-3

22-3-3. Organization of house of representatives - Speaker -Clerks. - At the time specified in § 22-3-17, the house of representatives shall be called to order by the senior member in continuous service present from Newport, and if there be two (2) or more members from Newport of equal seniority of service then by that one (1) of them that shall be senior in age, and if there is no member present from Newport, by the senior member of said house in continuous service present, and, if there be two (2) or more members of equal seniority of service, then by that one (1) of them who shall be senior in age. The roll of members as appears by said list of representatives shall then be called by the reading clerk, as hereinbefore provided. If it shall appear that fifty-one (51) of the members whose names are upon said list are present, but not otherwise, the member calling the house of representatives to order as hereinbefore provided shall call for nominations for the office of speaker, and shall receive the ballots of the members whose names are on said list for that office, and after said ballots have been counted by him and by the clerks of said house, he shall declare the result, and tlie balloting shall continue until some person shall receive a majority of all the ballots, and the person receiving such majority shall be the speaker of said house for the ensuing term of two (2) years. The member so calling said house to order shall not receive, entertain, or put to vote, any motion or question whatever, or point of order, while acting as presiding officer, and any such member violating any of the foregoing provisions of this section, or allowing any person whose name is not upon said list, to participate in the organization of said house or to cast any ballot for speaker, or who shall allow to be used in the organization of said house any list of members not prepared and corrected as provided in this chapter, shall be imprisoned not less than one (1) year nor more than three (3) years; and any clerk or other person who shall use any such list in the organization of such house, or who shall fraudulently alter, secrete or destroy any list of members, prepared or prepared and corrected, as hereinbefore provided, shall be punished by like imprisonment. Immediately upon the election of a speaker, the house of representatives shall proceed to elect by ballot a reading clerk and ~ recording clerk, and upon the election of a speaker and clerks as herein provided, said house of representatives shall be deemed to be organized and shall forthwith notify the senate that it is duly organized and ready to proceed with the business of the session. Said clerks shall hold office for two (2) years, and until their successors are elected and qualified.

136

L


22-5-2. Roll call and quorum - Reading of invitation -Declaration of assembly. - When the senate and house of representatives are assembled pursuant to such invitation, the presiding officer shall order the roll of the senate to be called by the clerk of the senate, and if a majority of all the members of the senate answer to their names, he shall order the roll. of the house of representatives to be called by the reading clerk thereof, and if a majority of all the members of said house answer to their names, the presiding officer shall declare that there is a quorum of the senate present, a quorum of the house present, and therefore a quorum of the grand committee present; he shall then cause the invitation to meet in grand committee to be read, and shall declare the grand committee to . be assembled and ready to transact the business specified in the invitation; and no business shall be proceeded with until all of the provisions of this section have been complied with.


22-5-3. Business limited by invitation - Subcommittee to count ballots. - No act or business of any kind shall be done in grand committee other than that which is distinctly specified in the invitation by virtue of which such grand committee is assembl~d, except to ta_ke a recess or to dissolve; provided, that the grand committee may appomt a subcommittee of its own members to count any ballots delivered to it and report the result of such count.

137

United States Code

2 u.s.c. §29a § 29a. Early organization of House of Representatives-Caucus or

conference for incumbent Members reelected to and Members-elect of ensuing Congress; time and procedure fo1· calling

(a) (I) The majority leader or minority leader of the Hou.se of R:presentatives after consultation with the Speaker may at any time durrng any even-numbered year call a caucus or conference, to begin on or after the first day of December and conclude on or before the twentieth day of December in such year and to be attended by all incumbent Members of his or her political party who have been reelected to the ensuing Congress and all other Members-elect of such party, for the purpose of taking all steps necessary to achieve the prompt organization of the Members and Members-elect of such party for the ensuing Con-l:'ress.

( 2) If the majority leader or minority leader calls an organizational caucus or conference under paragraph ( 1), he or she shall file with the Clerk of the House a written notice designating the date upon which the caucus or conference is to convene. As soon as possible after the election of Members to the ensuing Congress, the Clerk shall furnish each Member-elect of the party involved with appropriate written notification of the caucus or conference.

( 3) If a vacancy occurs in the office of majority leader or minority leader during any even-numbered year (and has not Leen filled), the chairman of the caucus or conference of the party involved for the current Congress may call an organizational caucus or conference under paragraph { 1) by filing written notice thereof as provided by paragraph ( 2).

Payment and reimbursement for travel and per diem expenses for Jllember" nttending eaueus or eonfe-renee; e::a::eeptlonii1; regulntlons ,;-o,·ernlng

pn,,.menta and reimbursements; reimbursement vouchers

(b) (l} {A) Each Member-elect (other than an incumbent Member reelected to the ensuing Congress) who attends a caucus or conference called under subsection (a) of this section, and each incumbent Member reelected to the ensuing Congress who attends any such caucus or conference convening after the adjournment sine die of the Congress in the year involved, shall be paid for one round trip between his or her place of residence in the district which he or she represents and ·washington, District of Columbia, for the purpose of attending such caucus or conference. Payment shall be made through the issuance of a transportation request form to each such Member-elect or incumbent Member by the Finance Office of the House before such caucus or conference.

(B) Each Member-elect (other than an incumbent Member reelected to the ensuing Congress) who attends a caucus or conference called under subsection {a) of this section shall in addition be reimbursed on a per diem or other basis for expenses incurred in connection with his or her attendance at such caucus or conference for a period not to exceed the shorter of the following-

(i) the period beginning with the day before the designated date upon which such caucus or conference is to convene and ending with the day aft _c the date of the final adjournment of such caucus or conference; or

(ii) fourteen days. ( 2) Payments and reimbursements to Members-elect under paragraph

(1) shall be made as provided (with respect to Members) in the regulations prescribed by the Committee on House Administration with respect to travel and other expenses of committees and Members. Reimbursements shall be paid on special ,·oucher forms prescribe<! uy the Committee on House Administration.

Availability of eontlngent fund of House

(c) The contingent fund of the House is made available to carry out the purposes of this section.

138

2 u.s.c. §194

~ 194. Certification or failure to testify; grand Jury action tailing to testify or produce records

Whenever a witness summoned as mentioned In section 192 falls to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject ijnder inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee- or subcommittee of either House of Congress, and the fact of such fallul"e or failures Is reported to either House while Congress Is In session, or when Congress Is not In session, a statement of fact constituting such failure Is re-ported to and fl.led with the President of the Senate or the Speaker of the House, It shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

2 u.s.c. §411

§ 411. Joint Committee on Congressional Operations-Creation

(a) There is hereby created a Joint Committee on Congressional Operations (hereafter in this chapter referred to as the "Joint Committee").

l'lemberahlp

(b) The Joint Committee shall be composed of ten members as follows: ( 1) five :Members of the Senate, appointed by the President pro

tempore of the Senate, three from the majority party and two from the minority party; and

( 2) five Members of the House of Representatives appointed by the Speaker of the House of Representatives, three from the majority party and two from the minority party.

Vacnncle•

(c) Vacancies in the membership of the Joint Committee shall not affect the power of the remaining members to execute the functions of the Joint Committee and shall be filled in the same manner as in the case of the original appointment.

Chnlrman and , . ..,., ehalrruan1 aeleetlon

(d) The Joint Committee shall select a chairman and a vice chairman from among its members at the beginning of each Congress. The vice chairman shall act in the place and stead of the chairman in the absence of the chairman. The chairmanship and the vice chairmanship shall alternate between the Senate and the House of Representatives with each Congress. The chairman during each even-numbered Congress shall be selected by the Members of the House of Representatives on the Joint Committee from among their number and the chairman during each odd-numbered Congress shall be selected by the Members of the Senate on the Joint Committee from among their number. The vice chairman during each Congress shall be chosen in the same manner from that House of Congress other than the House of Congress of which the chairman is a Member. -

139

2 u.s.c. §636

§ 636. Consideration of concWTent resolutions on budget . Proeedure In Houae of Representatives after report of C~mmlttee1 debate

(a) ( 1) When the Committee on the Budget of the House has reported' any concurrent resolution on the budget, it is in order at any time after the tenth day (excluding Saturdays, Sundays, and legal holidays) following the day on which the report upon such resolution has been available to Members of the House (even though a previous motion to the same effe.ct has been disagreed to) to move to proceed to the consideration of the concurrent resolution. The motion is highly privileged and is not debatable. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disa-greed to. ·

( 2) General debate on any concurrent resolution on the budget in the · House of Representatives shall be limited to not more than 10 hours,

which shall be divided equally between the majority and minority parties, plus such additional hours of debate as are consumed pursuant to paragraph ( 3). A motion further to limit debate is not debatable. A motion to recommit the concurrent res.olutlon is not in order, and it is not in order to move to reconsider the vote by which the concurrent resolution is agreed to or disagreed to.

( 3) Following the presentation of opening statements on the first concurrent resolution on the budget for a fiscal year by the chairman and ranking minority member of the Committee on the Budget of the House, there shall be a period of up to four hours for debate on economic goals and policies. ·

(4) Only if a concurrent resolution on the budget reported by the Committee on the Budget of the House sets forth the economic goals (as

described In sections 1022(a) (2) and 1022a(b) of Title 15) which the estimates, amounts, and levels {as described In s'ection 632 {a) ·of this title) set forth such resolution are designed to achieve, shall It be In order to offer to such resolution an amendment relating to such goals; and .such' amendment shall be in order only if it also proposes to alter such ·estl- · mates, amounts, and levels In germane fashion.in order to be consistent' with the goals proposed in such amendment. · · ·.: · : . · · · '· · ·

. {5} Consideration of any concurrent resolutio~ o.n the budget by th~ House of· Representatives shall be in the Committee of the Whole, and· the resolution shall be read for amendment under the· five-minute rule in accordance with the applicable provisions of rule XXIII. of the Rules. of the House of Representatives. After the Committee rises and reports the resolution back to the House, the previous question shall be considered as : ordered on. the resolution. and any amendments thereto to final passage without intervening motion; except that it shall be in order at any time· prior to final passage {notwithstanding any other rule or· provlsfon of·. law} to adopt an amendment {or a series of amendments) changing any. figure or figures In the resolution as so reported to the extent necessary to achieve mathematical consistency. ' · · · · ·

{ 6) Debate in the House of Representatives on the conference rep.:.rt on any concurrent resolution on the budget shall be limited to not more than 5 hours, which shall be divided equally between the majority and· minority parties. A motion further to limit debate is not debatable. A motion to recommit. the conference report ls not in order, and it ls not in order to move to reconsider the .vote by which the conference report is · agreed to or disagreed to.

{ 7) Motions to postpone, made with respect to the consideration of any concurrent resolution on the budget, and motions to proceed to the con-· slderatlon of other business, shall be decided without debate.

( 8) Appeals from the decisions of the Chair relating to the application. of the Rules of the House of Representatives to the procedure relating to any concurrent resolution on the budget shall be decided without debate.

140

I I I I

Proeedare In Senate after report of Commlttee1 debate1 amendmenta

(b) (1) Debate in the Senate on any concurrent resolution on the budget, and all amendments thereto and debatable motions and appeals In connection therewitli, shall be limited to not more than 50 hours, except that, with respect to the second required concurrent resolution referred to In section 641 (a) of this title, all such debate shall be llmlted to not more than 15 hours. The time shall be equally divided between, and con-: trolled by, the majority leader and the minority leader or their deslgnees.

( 2) Debate in the Senate on any amendment to a concurrent resolution · on the budget shall be limited to 2 hours, to be equally divided between, and controlled by, the mover and the manager of the concurrent resolu- · Hon, and debate on any amendment to an amendment, debatable motion, or appeal shall be limited to 1 hour, to be equally divided between, and . controlled by, the mover and the manager of the concurrent resolution, except that In the event the manager of the concur.rent resolution ls In fa-· vor of any such amendment, motion, or appeal, the time in opposltlon · ·thereto shall be controlled by the minority leader or his deslgnee. No amendment that ls not germane to the provisions of such concurrent resolution shall be received. Such leaders, or either of them, may, from the · time under their control on the passage of the concurrent resolution, allot additional time to any Senator during the consideration of any amend-ment, debatable m.otion, or appeal. ·

( 3) Following the presentation of opening statements on the first con- ' current resolution on the budget for a fiscal year by the chairman and ranking minority member of the Committee on the Budget of the Senate, there shall be a period of up to four hours for debate on economic goals and policies.

( 4) Only ii a concurrent re~olutton on .tlie. budget re°ported by· ihe' Committee on the Budget of the Senate ·sets forth the economic goals (as described In sections 1022(a) (2) and 1022a(b) of Title 15);· which the estimates, amounts, and levels (as described in section 632(a) of this title) set forth In such resolution are designed to achieve, shall it be in order to offer to such resolution an amendment relating to such goals, and such amendment shall be in order only if it also· proposes to alter such estimates, amounts, and levels in germane fashion. in ·order to be consist-ent with. the goals proposed in such amendment;·-· ..... , .• ,

( 5) A motion to further limit debate is· not debatable. · A motion to recommit (except a motion to recommit with instructions to. report back within a specified number of days, not to exceed 3, not counting any day on which the Senate ls not in session) ls not in order. ·Debate on any such motion to recommit shall be limited to 1 hour, to be equally divided between, and controlled by, the mover and the manager of the concurrent resolution. ·

( 6) Notwithstanding any .other rule, an aine~dment, · or series of amendments, to a concurrent resolution on the budget proposed in the Senate shall always be ln order if such amendment or series of amendments proposes to change any figure or figures then contained in such concurrent resolution so as to make such concurrent resolution mathe-matically consistent or so as to maintain such consistency. · · ·

Aetlon on eonferenee report• In Senate ( c) ( 1) The conference report on any concurrent resolution on the

budget shall be in order in the Senate at any time after the third day (excluding Saturdays, Sundays, and legal holidays) following the day on which such a conference report is reported and is available to Members of the Senate. A motion to proceed to the consideration of the conference report may be made even though a previous motion to the . same effect has been disagreed to.

( 2) During the consideration in the Senate of the conference report' on any concurrent resolution on the budget, debate shall be limited to 10 hours, to be equally divided between, and controlled by, the majority leader and minority leader or their designees. Debate on any debatable motion or appeal related to the conference report shall be limited to 1 · hour, to be equally divided between, and controlled by, the mover and the ·manager of the conference report.

141

·'

ii

( 3) Should the conference report be defeated, debate on any .request for a new conference and the appointment of conferees shall be limited to 1 hour, to be equally divided between, and controlled by, the manager of the conference report and the minority leader or his designee, and should any motion be made to instruct the conferees before the conferees are named, debate on such motion shall be limited to one-half. hour, to be equally divided between, and controlled by, the mover and the iµanager. of the conference report. Debate on any amendment to any such instructions shall be limited to 20 minutes, to be equally divided between and controlled by the mover and the manager of the conference report. In all cases when the manager of the conference report is in favor of any motion, appeal, or amendment, the time in opposition shall be under the control of the minority leader or his designee.

( 4) In any case in which there are amendments in disagreement, time on each amendment shall be limited to 30 minutes, to be equally divided between, and controlled by, the manager of the conference report and the minority leader or his designee. No amendment that is not germane to

. the provisions of such amendments shall be received.

Required action b7 conference committee ( d) If, at the end of 7 days (excluding Saturdays, Sundays·, ant'· legal

holidays) after the conferees of both Houses have been appointed to a committee of conference on a concurrent resolution on the budget,· the conferees are unable to reach agreement wlth respect to all matters in disagreement between the two Houses, then the' conferees shall submit to

· their respective Houses, on the first day. thereafter on whii:h their House ls in session_:_ · · ·' ' · ·. · _ . · ·

(1) a conference report .recommending those. matters on which they have agreed and reporting in disagreement those matters on which they have no.t agreed; ~r . · ..

( 2) a conference report in disagreement, If the matter in disagreement ls an amendment which strikes out the entire text of- the concurrent resolution and inserts a substitute text ..

. Concurrent reaolutlon mn•t be con•l.tent In Senate (e) It shall not be in order in the Senate to vote on the ciuestion of

agreeing to-:- . . ' . · ( 1) a concurrent resolution o~ 'the budget unless the figures then

contained in such resolution are mathematically consistent; ·or ( 2) a conference report on a concurrent resolution on the budget

unless the figures contained in· such resolution, as recommended in such conference report, are mathematically consistent.

142

2 u.s.c. §688

§ 688. Procedure in House of Representatives an<! Senate

Referral (a) Any rescission blll introduced with respect to a special me~sage or

lmpoundment resolution introduced with respect to a proposed deferral of budget authority shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be.

Dl•eharse of eommlttee (b) (1) It the committee to which a rescission blll or lmpoundment

resolution has been referred has not reported lt at the end of 25 calendar days of continuous session of the Congress after its introduction, lt ls ln order to move either to discharge the committee from further consideration of the blll or resolution or to discharge the committee from further consideration of any other rescission bill with respect to the same special message or lmpoundment resolution with respect to the same proposed deferral, as the case may be, which has been referred to the committee.

( 2) A motion to discharge may be made only by an individual favoring the bill or resolution, may be made only If supported by one-fifth of ·the Members of the House Involved (a quorum being present), and Is highly privileged ln the House and privileged In the Senate (except that It may not be made after the committee has reported a bill or resolution with respect to the same special message or the same proposed deferral, as the case may be); and debate thereon shall be limited to not more than 1 hour, the time to be divided In the House equally between those favoring and those opposing the blll or resolution, and to be divided In the Senate equally between, and controlled by, the majority leader and the minority leader or their deslgnees. An amendment to the motion Is not in order, and It ls not in order to move to reconsider the vote by which the motion ls agreed to or disagreed to.

Floor eoa•lderatloa ID Ho-e

(c) (1) ·when the committee of the House of Representatives has reported, or has been discharged from further consideration of, a rescissioJl b111 or impoundment resolution, It shall at any time thereafter be in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the bill or resolution. The motion shall be highly privileged and not debatable. An amendment to the motion shall not be In order, nor shall It be in order to move to re-

' consider the vote by which the motion ls agreed to or disagreed to .. (2) Debate on a rescission b11l or lmpoundment resolution· shall be

limited to not more than 2 hours, which shall be divided equally between those favoring and those opposing the blll or resolution. A motion fur-· ther to limit debate shall not be debatable. In the case of an lmpoundment resolution, no amendment to, or motion to recommit, the resolution shall be In order. It shall not be In order to move to reconsider the vote by which a rescission blll or lmpoundment resolution Is agreed to or disa-greed to. · ·

(3) Motions to postpone, made with respect to the consideration of a rescission blll or lmpoundment resolution, and motions to proceed to the consideration of other business, shall be decided without debate.

( 4) All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to any rescission blll or lmpoundment resolution shall be decided without debate.

( 5) Except to the extent speclflcally provided In the preceding provisions of this subsection, consideration of any rescission b111 or impoundment resolution and amendments thereto (or any conference report thereon) shall be governed by the Rules of the House of Representatives applicable to other bills and resolutions, amendments, and conference reports In similar circumstances.

143

II

II ,,

Ii ii

Floor consideration ln Senate

( d) ( 1) Debate in the Senate on any rescission bill or impoundment resolution, and all amendments thereto (In the case o_f a rescission bill) and debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees.

(2) Debate in the Senate on any amendment to a rescission bill shall be limited to 2 hours, to be equally divided between, and controlled by, the mover and the manager of the bill. Debate on any amendment to an amendment, to such a bill, and debate on any debatable motion or appeal in connection with such a bill or an impoundment resolution shall be limited to 1 hour, to be equally divided between, and controlled by, the mover and the manager of the bill or resolution, except that in the event the manager of the bill or resolution is in favor of any such amendment, motion, or appeal, the time in opposition thereto, shall be controlled by the minority leader or his designee. No amendment that is not germane to the provisions of a rescission bill shall be received. Such leaders, or either of them, may, from the time under their control on the passage of a rescission bill or impoundment resolution, allot additional time to any Senator during the consideration of any amendment, debatable motion, or appeal.

( 3) A motion to further limit debate ls not debatable. In the case of a rescission bill, a motion to recommit (except a motion to recommit with Instructions to report back within a specified number of days, not to exceed 3, not counting any day on which the Senate is not In session) ls not in order. Debate on any such motion to recommit shall be limited to one ' hour, to be equally divided between, and controlled by, the mover and the manager of the concurrent resolution. In the case of an impoundment resolution, no amendment or motion to recommit is in order.

( 4) The conference report on any rescission bill shall be in order In the Senate at any time after the third day (excluding Saturdays, Sundays, and legal holidays) following the day on which such a conference report Is reported and Is available to Members of the Senate. A motion to proceed to the consideration of the conference report may be made even though a previous motion to the same effect has been disagreed to.

( 5) During the consideration in the Senate of the conference report on any rescission bill, debate shall be limited to 2 hours, to be equally divided between, a.nd controlled by, the majority leader and minority leader or their deslgnees. Debate on any debs.table motion or appeal related to the conference report shall be limited to 30 minutes, to be equally divided between, and controlled by, the mover and the manager of the conference report.

( 6) Should the conference report be defeated, debate on any request for a new conference and the appointment of conferees shall be limited to one hour, to be equally divided between, and controlled by, the manager of the conference report and the minority leader or his deslgnee, and should any motion be made to Instruct the conferees before the conferees are named, d·ebate on such motion shall be limited to 30 minutes, to be equally divided between, and controlled by, the mover and the manager of the conference report. Debate on any amendment to any such instructions shall be limited to 20 minutes, to be equally divided between, and controlled by, the mover and the manager of the conference report. In all cases when the manager of the conference report Is in favor of any motion, appeal, or amendment, the time in opposition shall be under the control of the minority leader or his designee.

( 7) In any case in which there are amendments in disagreement, time on each amendment shall be limited to 30 minutes, to be equally divided between, and controlled by, the manager of the conference report and the minority leader or his designee. No amendment that ls not germane to the provisions of such amendments shall be received.

144

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COMMONWEALTH

No. 3314

SUFFOLK COUNTY.

MILTON P AISNER, ET AL.,

PLAINTIFFS,

v.


DEFENDANTS.

ON RESERVATION AND REPORT FROM A SINGLE JUSTICE OF THE

SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY.

Brief of the Defendants

THOMAS R. KILEY

PAUL R. MATTHEWS

Assistant Attorneys General One Ashburton Place, Rm. 2001 Boston, Massachusetts 02108 ( 617) 727-4538

145

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

ISSUES PRESENTED 1

STATEMENT OF THE CASE 2

I. NATURE OF THE CASE AND PRIOR PROCEEDINGS. 2

II. FACTS RELEVANT TO THE ISSUE PRESENTED FOR REVIEW. 5

A. The Essential Terms Of Article 48. 5

B. The Submission And Rejection Of The Rules Reform Petition. 8

SUM..'.iARY OF THE ARGUMENT 13

ARGUMENT 17

I. THE INITIATIVE PETITION IS NOT A MEASURE WITHIN THE AMBIT OF ARTICLE 48 BECAUSE IT IS AN ATTEMPT TO PRESCRIBE RULES OF PROCEEDINGS FOR THE TWO BRANCHES OF THE GENERAL COURT.

A. The Popular Initiative Reserves To The Peoole A Power Which Is The Functional Equivalent Of The Law-Making Powers Conferred By Part 2, Chapter 1, Section 1 of the Massachusetts Constitution.

1. A fair reading of the Constitution and its history suggests that the popular initiative is confined to law-making.

147

17

17

19

B.

c.

2.

3.

The case law demonstrates that not every exercise of legislative power results in the enactment of law.

Analogous cases dealing with municipal initiative provisions also support the premise that there are implied limits to the scope of Article 48.

The Law Proposed By This Petition Establishes Rules Of Proceedings For The Senate And House Of Representatives, And Hence Would Be An Exercise In The Rule-Making Power Respectively Conferred On The Individual Legislative Branches By Part 2, Chapter 1, Sections 2 And 3 Of The Massachusetts Constitution.

The Plaintiffs Place Undue Reliance On The Fact That Legislative Bodies Have Adopted Statutes Which Arguably Constitute Rules Of Proceedings And On The Precedential Value Of A 1978 Opinion By This Court.

II. THE ATTORNEY GENERAL CANNOT BE COMPELLED TO CERTIFY AN INITIATIVE PETITION WHICH IS BEYOND THE SCOPE

26

35

39

46

OF ARTICLE 48. 62

CONCLUSION 70

ADDENDUM A-1

148


CASES

Anderson v. Secretar of the Commonwealth, 255 Mass. 366 (1926 .••••••••••.•••••...•••••.. 63

Attorne General v. Brissenden, 2 l Mass. l 3 193 .......................... . 59

Bowe v. Secretar of the Commonwealth, 320 Mass. 230 1946 .••.•.•••.••••.•.••••.••••• 63

Buckle v. Secretar of the Commonwealth, 371 Mass. 195 1976 ••.••.•..••••••••..•••••••• 21

Cohen v. Attorne General, 357 Mass. 564 1970 ••..••.•.••.•••.•••••.. passim

Commonwealth v. Welosky, 276 Mass. 398 (1931) •.•••••..•••••••..•..••• 47,48

Coogin v. Davey, 211 S.E. 2d 708 (Ga. 1975) .••. 61

Dinan v. Swig, 223 Mass. 516 (1916) ••••••..•••.•.. 16,52,60,61,62

Doolin v. Cit of Fitchbur , 242 Mass. 599 (1922 ••.••••.•.•.•.. 36,37,38,39,56

Feeney v. Commonwealth, 373 Mass. 359 (1977) .•• 68

Gilet v. City Clerk of Lowell, 306 Mass. 170 (1940) •.•••..••.......••.••.•. 37 ,56

Gorman v. City of Peabody, 312 Mass. 560 (1942) ..................... 37 ,38,56

J.W. Ham ton, Jr. & Co. v. United States, 276 U.S. 394 (1928 ........•..•......•.•.•..... 53

Hawke v. Smith, 253 u.s. 221 (1920) ............ 32

149

--------~-~~--·- ---- ---·

Horton v. Attorne General, 269 Mass. 503 1929 •••.•.•.••••..••••.•••••••. 63

Howe v. Attorney General, 325 Mass. 268 (1950) ........................ 68,69

Immigration and Naturalization Service v. Chadha, u.s. , 103 s.ct. 2764

(1983) ••• :-:-:-••••.•••••••.••••••.••• 27,28,29,37,42

Le islature of California v. Deukme 'ian, 34 Cal. 3d 658 1983 ••••••••••.•.••.•..•...•.. 63

Leser v. Garnett, 258 u.s. 130 (1922) •.••••....• 32

Lincoln v. Secretar of the Commonwealth, 326 Mass. 313 (1950 •••••.••••••.•••.•••••.• 20,47

Malone v. Meekins, 650 P.2d 351 (Ala. 1982) .... 61

Massachusetts Teachers Association v. Secretary of the Commonwealth, Mass. Adv. Sh. (1981) 1764 ••••..•..•••....••••. 65

National Prohibition Cases, 253 U.S. 350 (1920) .•.••.•.•••••..•••.•••.•••.. 32

New Bedford Standard Times Pub. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass. 404 (1979) ..•..•.••.....••....•.•.... 54

Nixon v. G.S.A., 433 U.S. 425 (1975) ........... 54

Opinion Of The Justices, Mass. Adv. Sh. (1981) 1361 .•..••.•...•......... 47

Opinion Of The Justices, Mass. Adv. Sh. (1981) 2439 ••.•...............•. 26

Ooinion Of The Justices, 3 7 5 Mass • 7 9 s. ( l 9 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . pass i m

Opinion Of The Justices, 375 Mass. 827 (1978) ..•.........•....•....•.•.. 26

150

Opinion Of The Justices, 370 Mass. 869 (1976) ••••••••••••••••••• 7,20,34,35

Opinion Of The Justices, 365 Mass. 639 (1974) •.••••••••••••••••••••••••. 54

Opinion Of The Justices, 365 Mass. 655 (1974) •••.•••••••••••••.•••••• 19,20

Opinion Of The Justices, 365 Mass. 665 (1974) •••.•••••.•.••••.•.••••••.. 47

Opinion Of The Justices, . 3 41 Mass • 7 3 8 ( 19 6 0 ) . • • • . • • • . • . • . • • • . . • . • . • • ••• 4 7

Opinion Of The Justices, 291 Mass. 578 ( 1938) .••••••••••••..••..•••••.•• 22

Opinion Of The Justices, 262 Mass. 603 (1928) •••••••••••.• 9,31,33,41,43,66

Opinion Of The Justices, 126 Mass. 547 (1879) ••••.•.••••..••.••••.•.• 42,44

Opinion Of The Justices, 66 N.H. 629 (1891) •.••.•••.•••.•••..••••.••• 41,43

Opinion Of The Justices, 278 A. 2d 475 (N.H. 1971) •..••...•••.•.•.••••.• 61

Schmitz v. Younger, 577 P.2d 652 (Cal. 1978) ••••••••...•.•...•.•... 69

Spector v. Building Inspector of Milton, 250 Mass. 63 (1924) •••.•••.•••.••...•.•••.•.••. 69

State v. A.L.I.V.E., 606 P.2d 769 (Alaska, 1980) .....•.••..•......•. 27

State v. Manchin, 279 S.E. 2d 622 (W.Va. 1981) ..•......•.....•... 27

State ex rel Hatch v. Murray, 5 2 6 P • 2 d 13 6 9 ( Mont . 19 7 4) .•..•.••............. 3 2

151

The 227

Commissioner v. Putnam, Ma s s • 5 2 2 ( 1 91 7 ) • . • • • • • • • . . • • . . • . • • • • . . • • 2 2

United 144 u.s.

States v. Ballin, 1 ( 1892) .•...•• . . . . . . . .43

United States v. Nixon, 418 U.S. 683 (1973) •••. 54

Yant 275

v. Secretary of the Commonwealth, Mass. 365 (1931) ..•••••.•••••••.•.

STATUTES

......... 20

Massachusetts General Laws

G.L. c.3 •• . . . . . . . . . . . . . . . . . . . . . . . . . . .52,59,61

G.L. c.12, §3. . . . . . . . . . . . . . . . . . . . . . . •.• 59,61,68

G.L. c.43, §§37 et seg. . . . . . . . . . . . . . .35,36,37,67

G.L. c.53, § 7 ••• . .......................... ) .... .7

G.L. c.53, §22A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

G.L. c.56, §59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

G.L. c. 231A •••• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 2

G.L. c.249, §4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

G.L. c.249, § 5 •• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • 2

St. 1915, c.267, Pt.l. . 38

United States Code

5 u.s.c. §908 .......................... ~ ....... 55

152

CONSTITUTIONAL PROVISIONS

Massachusetts Constitution

Mass. Const., Preamble •••.• . . . . . . . . . . . . . . . . . .25

Mass. Const., Part l, Art.30. . . . . . . . . . . . . . . . .57

Mass. Const., Pt. 2, C.l, §1. .13,17,18,33,34,42

Mass. Const. Pt. 2, c.1, §1, Art. 4 .•• •••••••••• 21

Mass. Const. Pt. 2, c.1, §2. . ...... .14,18,39,40

Mass. Const. Pt. 2, c.1, §2, Art.7. . . . . . .18,40,52

Mass. Const. Pt. 2, c.1, §2, Art.8. •••••••••• 40

Mass. Const. Pt. 2, c.1, §3. . ...... .14,18,39,40

Mass. Const. Pt. 2, c.1, §3, Art.6. . . . . . . . . . . . .40

Mass. Const. Pt. 2, C.l, §3, Art.7. . . . . . . . . . . . .40

Mass. Const. Pt. 2, c.1, §3, Art.10 •• .18,40,52,60

Article 48 •• . . . . . . . . . . . . . . . . . . . . . . . . . .passim

Ini t., Pt. l. . . . . . . . . . . . . . . . . . . . . . . . . • 5,10,19

Ini t. , Pt. 2, §2. . . . . . . . . . . . . . . . . . . . . . .. 56,63

Ini t., Pt. 2, §2. . . . . . . . . . . . . . . . . . . . . .6,64,67

Ini t., Pt. 2 I §4. . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Ini t. , Pt. 3 I §1. . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Ini t. , i?t. 5, §1. . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Ini t., Pt. 5, §2. . . . . . . . . . . . . .............. .8

Gen. Prov., Pt. 5 . . . ....................... .8

153

United States Constitution

U. S • Const • Art • V •••••.•••••.••••••••• 9, 3 2 , 3 3 , 3 9

California Constitution

Cal. Const. Art. 4, §1 ••••••••••••••.•.•.•.•••. 12

MISCELLANEOUS

42 Am.Jur. 2d., Initiative & Referendum •..••••. 36

Cooley, A Treatise On Constitutional Limitations (1903) •.••••••.•..••.•.•••..•.•.... 58

Debates Of The Constitutional Convention of 1917-18 Volume II: The Initiative And Referendum, (16 Wright & Potter, 1918) ••.•. passim

Hamilton, The Federalist, No. 59 (Menton, 1961) ................................. 57

)

Hamilton, The Federalist, No. 73 (Menton, 1961) ••••••••.•••••.•••••••••••••.•..• 58

Handlin, ed., The Po ular Sources of Political Authority ( 1966 •••••••••..•.•.•.......••••••.• 25

Hart, ed., Commonwealth Histor Of Massachsetts, Vol. III (1929 ............................... . 24

Holcombe, State Government in the United States (1916) .................................. 31

Jefferson's Manual of Parliamentary Practice •.. 43

Journal of the Constitutional Convention 1779 - 1980 (1832) .•..•...•.•••••..•...•....•.• 43

Madison, The Federalist, No. 47 (Menton, 1961J ...•............................• 58

Manual of the Constitutional Convention, (17 Wright & Potter, 1917) .................. 24,57

154

Mason's Legislative Manual ••••••••••••.•.••..•• 43

McQuillin, Municipal Corporations (1981) ••••••• 36

Morrison, History of the Constitution of Massachusetts.(1917) •.••••...•••••.••••••••. 24,57

1965/66 Op. Atty. Gen. No.43, Rep. A.G., Pub. Doc. No.12 (1965) .••••••••••.••••.•••••••• 62

Senate Report No. 1335, 54th Cong. 2d Sess. (1897) .. ~··················29

Taylor, ed., Massachusetts, Colony To Commonwealth: Documents On The Formation Of Its Constitution, 1775 - 1780, (1961) •••..•••...... 25

Walker, The Massachusetts Plan for the Initiative and Referendum (1914) ••••.••..••.••• 63

Wilcox, Government By All The People (1912) •••• 31

155

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH

NO. 3314

SUFFOLK COUNTY


Plaintiffs,

v.


Defendants.

ON RESERVATION AND REPORT FROM A SINGLE JUSTICE OF THE SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

BRIEF OF THE DEFENDANTS

ISSUE PRESENTED

Whether the Attorney General properly

declined to certify an initiative petition which

establishes procedures for the operation of the

state legislature on the ground that the

proposal is an exercise in rule-making power

rather than in law-making and hence does not

fall within the scope of Article 48?

157

STATEMENT OF THE CASE

I. NATURE OF THE CASE AND THE COURSE OF PRIOR PROCEEDINGS.

This is an action challenging a decision of

the Attorney General who declined to certify

that an initiative petition entitled "An Act

Providing for Reform of the General Court"

presented a "measure" in proper form for

submission to the people. Mass. Const. Amend.

Art. 48, Init., Pt. 2, §4. (All subsequent

references to this amendment shall be to

"Article 48"). The case has been described by

the plaintiffs as "an action for declaratory and

injunctive relief brought by the first signers

of an initiative petition against the Attorney

General of the Commonwealth for his refusal to

certify the petition ... and against the

Secretary of the commonwealth for his refusal to

issue signature forms to plaintiffs for

gathering signatures for their petition." (App.

3.) The complaint invokes this court's powers

under G.L. c. 249, §4 (civil action in the

nature of certiorari), G.L. c. 249, §5 (civil

action in the nature of mandamus), G.L. c. 231A

(declaratory judgments) and G.L. c. 56, §59

158

(general equity jurisdiction over ~lection

matters). When all is said and done, however,

it merely presents a claim that the Attorney

General erred when he declined to certify

plaintiffs' petition.

The case comes to the fu~l court by way of

reservation and report and on a statement of

agreed facts. One week after the Attorney

General informed the plaintiffs that he was

unable to certify their petition, they commenced

this action by filing their complaint in the

Supreme Judicial court for Suffolk county. At

that time they requested a preliminary

injunction designed to permit them to gather

signatures during the pendency of the case. The

following day Senate President William M. Bulger

sought leave to intervene as a defendant in the

action. The Single Justice conducted a hearing

on September 19, 1983. At that hearing, neither

the Attorney General nor the applicant for

intervention opposed issuance of the requested

preliminary injunction and it was accordingly

entered on September 19, 1983. (App. 2.) The

Single Justice also entered an order on that day

159

permitting the Senate President to intervene,

albeit for the limited purpose of defending the

Attorney General's declination to certify the

petition. (Id.) Pleadings were promptly

completed when the _original defendants filed

their answer on the nineteenth and the parties

executed an agreed statement of facts the next

day.

On September 23, 1983, the Single Justice

reserved and reported the case without decision

for determination by the full court. As framed

by the parties and the Single Justice, the issue

presented is "(w)hether the Attorney General

properly refused to certify (the) Initiative

Petition ... on the ground that the matter

proposed thereby did not constitute a measure in

appropriate form for submission to the people

because it did not propose a law or

constitutional amendment." (App. 90.) This

court characterized the issue similarly when it

requested br~efs from interested parties in

accordance with the expedited briefing schedule

established by the Single Justice.

160

II. FACTS RELEVANT TO THE ISSUE PRESENTED FOR REVIEW.

This case turns not on any particular fact

or facts but on how one characterizes the

initiative process in general and this

initiative petition in particular. Accordingly,

the Attorney General begins this factual

exegesis by providing an overview of Article 48

and its provisions for enacting laws, then

provides details concerning the submission and

rejection of this petition, describes its

contents, and finally concludes with certain

historical facts concerning application of the

initiative process.

A. The Essential Terms of Article 48.

Under Article 48, legislative powers

continue "to be vested in the general court, but

the people reserve to themselves the popular

initiative, which is the power of a specified

number of voters to submit constitutional

amendments and laws to the people for approval

or rejection." Init., Pt. 1. Such petitions

are first signed by ten registered voters and

are then submitted to the Attorney General by

161

the fir~t Wednesday of August. Init., Pt. 2,

§ 3. The Attorney General then is asked to

"certify that the measure and the title thereof

are in proper form for submission to the people,

and that the measure is not, either

affirmatively or negatively, substantially the

same as any measure which has been qualified for

submission or submitted to the people at either

of the two preceding biennial state elections,

and that it contains only subjects which are

related or which are mutually dependent .. ~·"

Id.

If the Attorney General certifies the

measure, which occurs not earlier than the first

Wednesday in September, he prepares a fair and

concise summary thereof to be used on blank

signature forms and ultimately on the ballot.

Id. The Secretary of the Commonwealth prepares

the blank signature forms for the first signers,

who in turn cause the petitions to be circulated

among the general electorate. A petition

qualifies for introduction into the general

court only if signed by a number of voters equal

to three percent of the entire vote cast for

162

Governor at the preceding biennial state

election. Init., Pt. 5, § 1. (This year that

figure is 61,508. App. 66). All necessary

signatures must be filed with the Secretary not

later than the first Wednesday in December,

Init., Pt. 2, §3, and those &ignatures first

must be certified by local registrars. G.L.

c. 53, §§7 and 22A. (This year signature sheets

are due on or before November 23, except in

Boston where they are due November 28j and must

be filed with the Secretary by December 7. App.

6 5) •

Once a measure is introduced by initiative

petition, it is referred to a committee,

hearings are conducted and a written committee

report on the measure is prepared. Init., Pt.

3, §1. A vote is then to be taken by yeas and

nays in both houses before the first Wednesday

in May upon the enactment of the law in the form

in which it stands in the petition. Init., Pt.

5, §1. If the measure is enacted by both

branches in that form, it is laid before the

Governor for approval or disapproval.

of the Justices, 370 Mass. 869 (1976).

163

Opinion

If the

measure fails to be enacted prior to the first

Wednesday in May, a majority of the first ten

signers may make perfecting amendments to it and

may qualify it for submission to the voters at

the next biennial election by gathering

additional voter signatures equal to one half of

one percent of the entire vote cast for governor

at the preceding biennial election. Init., Pt.

5, §2. The people may then enact the measure at

the next election, substituting their votes not

only for favorable action by the two houses ,of

the general court, but also for gubernatorial

approval. Gen. Prov., Pt. 5.

B. The Submission and Rejection of the -Rules Reform Petition.

On or before Wednesday, August 3, 1983, the

plaintiffs filed with the Attorney General an

initiative petition for "An Act Providing for

Reform of the General court." (App. 6 0) . It

was one of twenty timely petitions filed in

1983, (id.), and like half of those petitions,

it was not certified by the Attorney General.

(App. 62, 81-82). Two of the twenty petitions

were withdrawn, six were rejected because, among

other things, they related to excluded matters,

164

and this petition and one other were rejected

because the Attorney General's review of their

subject matter suggested they were not proper

"measures" as the term is used in Article 48.

(App. 61, 62). The petition sharing a common

ground for rejection with th~ instant petition

was entitled "An Initiative for a Law Relative

to a Federal Balanced Budget." (App. 61). As

its title intimates and a cursory review of its

content illustrates, the petition purports to

call for a limited federal constitutional

convention. (App. 61, 69). That measure was

phrased in terms of a law. Moreover, the

Massachusetts Legislature clearly has the

authority to call for a federal constitutional

convention, so that the measure was an exercise

of legislative power in one sense or another.

See, U.S. Const., Art. 5. Nevertheless, the

Attorney General refused to certify it,

expressly relying on Opinion of the Justices,

262 Mass. 603 (1928), and Cohen v. Attorney

General, 357 Mass. 564 (1970). (App. 81-82).

On September 7, 1983, the Attorney General

informed the lead plaintiff in the case at bar

165

that he was "not currently able to certify" the

rules reform petition. (App. 46, 61, 67). In

his letter of rejection the Attorney General

wrote:

Pursuant to Amendments, Article 48, Pt. 1, legislative power continues to be vested in the General Court, but the people have reserved to themselves the power to enact constitutional amendments and laws via the initiative process. The proposal that you have submitted is essentially an attempt to provide rules of procedure for both branches of the state legislature. Rules of legislative procedure are exercises of legislative power bestowed exclusively on the branch they purport to govern and do not come within the law-making authority of the General court and hence are not among the powers reserved to the people through the popular initiative.

Because the pe~ition you submitted does not propose a law or constitutional amendment within the meaning of Article 48, I cannot now certify that it is a "measure" in appropriate form for submission to the people.

(App . 4 6 , 6 7 ) .

This decision reflects an opinion concernihg

both the scope of Article 48 and the content of

the particulir petition. The full text of the

petition is set forth on pages 8-23 of the

Appendix and a summary prepared by the Attorney

General (but approved by the petitioners)

166

appears on pages 50-53 thereof and begins with

the bald statement that the "proposed law

establishes procedures for the operation of the

state legislature." (App. 50). This statement

reflects the Attorney General's view that this

petition is an inappropriate attempt to regulate

the manner in which each branch of the general

court conducts its business. Neither the

proposed law nor the summary is duplicated here,

but it is submitted as a matter of fact that

this petition is for a "proposed law" which

would detail how legislative party caucuses and

steering committees are formed (App. 9-12), how

individuals are to be named to and removed from

leadership positions, committee chairmanships

and membership (App. 13-17), how committees are

to operate (App. 17-21), how legislative

sessions are conducted (App. 21-25), and how

resources are to be allocated for legislative

functions (App. 25-28).

In declining to certify this petition

because it impermissibly proposes to rewrite

rules of proceedings, the Attorney General did

not act in a vacuum. Of course, he was

167

,',,., •' .. ,,

;'~u

I'~~,

conscious of the fact that he certified a

similar but distinguishable petition in 1981.

(App. 62-63). He also ascertained, however,

that since Article 48 had been adopted in 1918,

its provisions had never successfully been

invoked to place on the state wide ballot an

initiative petition for a law which dealt with

the internal procedures utilized by the

respective branches ot the legislature. (App.

62). Furthermore, he was able to communicate

with the staff of Attorneys General in all

twenty other states which have constitutional

provisions authorizing initiative petitions for

laws and to determine that with the exception of

a rules reform petition being circulated this

year in California,!.! no attempts have been

made to utilize these various powers of popular

initiative to enact a law regulating the

internal procedures of the houses of the state

legislature. (App. 63).

l/ The Cal~fornia Constitution does not authorize any state official to screen petitions prior to circulation. Cal. Const. Art. 4, § 1. West's Ann. Cal. Const. Art. 4, § l (1983).

168

I I I

I

SUMMARY OF ARGUMENT

conceptually, the Attorney General's

argument is broken into three major components.

First, the Attorney General explains the

premises which caused him to reject the

initiative petition entitled "An Act Providing

for Reform of the General Court". (pp 18-39).

He argues that the initiative process was

designed to give the people the power to enact

laws which a reluctant legislature or chief

executive refuse to approve. From this fact, he

suggests that the legislative initiative invests

the voters with a power which is the functional

equivalent of law-making powers bestowed by Part

2, c. 1, § 1 of the constitution on the two

branches of the legislature and the Governor.

(pp 19-22). He notes, however, that

"Legislative Power" as the term is used

throughout the Massachusetts Constitution

encompasses far more than law-making, and that

under Article 48, all legislative power other

than the reserved right of the people to enact

statutes remains vested exclusively in the

General court. (pp 23-26). He bases this

169

r

contention primarily on the language of the

Constitution itself, but supports his position

with the Debates of the Constitutional

Convention of 1917-1918 and with the pertinent

case law. {pp 19-26).

Rule-making, the Attorney General asserts,

is among the legislative powers which remain

vested exclusively in the individual branches of

the legislature. This is because the respective

authority of the Senate and the House to

determine their own rules of proceedings de~ives

not from Part 2, c. 1, § 1 of the Constitution

but from Part 2, c. 1, §§ 2 and 3. This

petition, the Attorney General posits, is an

exercise in rule-making power rather than

law-making. {pp 23-26). Rules may be

distinguished from laws in a number of ways. At

the threshold, they differ because the former

are unicameral powers while the later are

subject to bicameralism and the presentment

clause of the Constitution. (pp 26-32). This

distinction begs the question, however, and so

the Attorney General parses the limited case law

and suggests certain objective criteria

170

I I I !

separating rules from laws: Laws affect the

rights and obligations of persons external to

the legislature while rules are internal. (pp

32-34). Similarly, laws have permanence and a

binding effect while legislative rules adopted

in aid of the law-making function are subject to

continuing revision by the legislative body they

govern. (pp 42-45). The principal feature of

this petition is that it attempts to establish a

wide range of internal operating procedures for

the two branches of the state legislature.

Instead of suggesting a law the petitioners wish

applied to the general public, this petition

purports to tell the general court how to order

its internal affairs in passing such law.

Consequently, it was rejected because it

proposed rules rather than a law appropriate for

submission to the people. (pp 45-46).

The second major portion of the Attorney

General's brief is essentially a reply to the

plaintiffs' arguments on the merits of his

rejection of their petition. Plaintiffs place

primary reliance for their challenge on the

words and logic of an Opinion of the Justices,

171

appearing at 375 Mass. 795 (1978), and therefore

the bulk of this section of the argument also

addresses that opinion. (pp 47-64). The

Attorney General observes that the court

correctly decided that a law imposing certain

financial disclosure requirements on public

officials including legislators did not

interfere with the rule-making authority of the

two houses of the legislature. That law did not

affect the internal operating procedures of the

legislature and had a permanent, binding

effect. (pp 51-52). The text of the Opinion

was not necessarily correct, however, in its

gratuitous assertions (a) that the legislature

may use its law-making powers to promulgate

rules and (b) that the people too may exercise

that authority. cases such as Dinan v. Swig,

223 Mass. 516 (1916) call into question the

accuracy of the court's first assumption and

principles of separation of powers suggest that

the latter proposition is simply wrong. (pp

52-63 ) .

Third and finally, the Attorney General

meets head on the plaintiff's procedural

172

argument that he lacked authority to reject this

petition. (pp 64-71). He points out that under

Article 48 he alone is charged with the

responsibility of examining initiative petitions

and certifying that they preaent laws or

measures in appropriate form for submission to

the people. Relying in part on Cohen v.

Attorney General, 357 Mass. 564 (1970), he

asserts that where a proposal is beyond the

scope of Article 48 either because it does not

seek passage of a "law" or because it relates to

an excluded matter no certificate should issue.

Since this petition did not present a law, he

cannot be compelled to issue a cer tif ica te. (pp

66-71).

ARGUMENT

I. THE INITIATIVE PETITION IS NOT A MEASURE WITHIN THE AMBIT OF ARTICLE 48 BECAUSE IT IS AN ATTEMPT TO PRESCRIBE RULES OF PROCEEDINGS FOR THE TWO BRANCHES OF THE GENERAL COURT.

A. The Popular Initiative Reserves To The People A Power Which Is The Functional Equivalent Of The Law-Making Powers Conferred By Part 2, Chapter 1, Section 1 Of The Massachusetts constitution.

Underlying the Attorney General's refusal to

certify the rules reform petition is his belief

173

that the singular power of the voters under

Article 48 is not coextensive with the myriad

powers of the branches of the Massachusetts

legislature. He contends that the power of the

voters to enact laws is confined to the right to

substitute voter action for law-making powers

otherwise conferred on the Governor and the

General Court by Part 2, Chapter 1, Section 1 of

the Massachusetts constitution; Article 48

extends no further and it may not be used to

exercise powers conferred on the chief executive

or legislature by other sections of the state

Constitution. Thus, the popular initiative may

not be used to enact rules of proceeding for the

Senate or the House of Representatives because

that rule-making power is the exclusive province

of those branches under Part 2, Chapter 1,

Section 2,Y and Part 2, Chapter 1, Section

3l/ respectively. This contention is based

2/ Article VII of Part 2, Chapter 1, Section 2 prov ides: "The Senate shall choose its own president, appoint its own officers, and determine its own rules of proceedings."

3/ Article X of Part 2, Chapter 1, Section 3 prov ides in part: "The house of represen ta ti ves ..• shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceedings in their own house."

174

on the literal language of Article 48 read as

one part of the constitution as a whole and in

light of the debates which led up to its passage

and on the prior opinions of the courts. These

considerations also provide the framework for

the succeeding sub-sections Qf the argument~

1. A fair reading of the constitution and its history suggests that the popular initiative is confined to law-making.

Article 48 begins with a general statememt

too often ignored in litigation over the scope

of the popular initiative. "Legislative power

shall continue to be vested in the general

court; but the people reserve to themselves the

popular initiative, which is the power of a

specified number of voters to submit

constitutional amendments and laws to the people

for approval or rejection " Art. 48,

Init., Pt. 1. These words, because they are a

part of a constitution adopted by the voters,

must be read in accordance with the sense most

obvious to the common intelligence and not in

any hyper-technical manner. Opinion of the ----~~~~~~-

175

Ju s tic es , 3 6 5 Mass . 6 5 5 ( 19 7 4 ) ; Linc o 1 n v •

Secretary of the Commonwealth, 326 Mass. 313

(195G); Yant v. Secretary of the Commonwealth,

275 Mass. 365 (1931). Moreover the Article must

be construed to accomplish its fundamental

purpose, which this court has identified as

creating "a procedure by which the people can

enact legislation by popular vote." Opinion of

the Justices , 3 7 0 Mass • 8 6 9 , 8 7 2 ( 19 7 6 ) •

As Article 48 itself, the debates concerning

the adoption of the popular initiative and

referendum article of amendment open with a

passage critical to an understanding of the

scope of that article. The measure's prime

sponsor, Joseph Walker of Brookline, a former

Speaker of the House and primary drafter of

Article 48, was the first speaker during the

debates and he began by describing the

initiative and referendum as "a simple bit of

political machinery," noting:

"The principle of the initiative and referendum in its purity means that the people of this commonwealth may have such laws and may have such a constitution as they see fit themselves to adopt. This measure simply provides the machinery by which the will of the

176

voters of this commonwealth may be made effective. That is the purpose of it; that is what the initiative and referendum is."

Debates in the Massachusetts consitutional

Convention, 1917-1918, Vol. II, The Initiative

and Referendum, (16 Wright & Potter, 1918)

(hereinafter Debates).!/ HiS thoughts were

reiterated by the second speaker, Sherman L.

Whipple, also of Brookline, who stated that the

"object and purpose (of Article 48) is to give

to the people of the commonwealth a larger

control and domination over legislation,"

Debates at 39, and then echoed throughout the

proceedings . .2/ Speaker after speaker

4/ This passage is quoted approvingly in Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976) •

.2j Perhaps the clearest explanation of the scope of the reserved power of the legislative initiative came in an exchange between Mr. Walker and one of the more vocal opponents of the popular initiative, Lincoln Bryant of Milton. During the course of their discussion, Bryant suggested that the right to initiate laws was more dangerous than the right to initiate amendments, because "after you have taken out those three great paragraphs contained in [Part 2, Chapter 1, section l,] Article 4, I think it is, the police power and the taxing power, there is very little left which the Legislature ever cares to do." Mr. Walker agreed with this equation of the legislative initiative with the legislature's powers under Article 4. Debates at 431.

177

+ --- --- - ----·- -·· --·---·-- -···--·---· ------~---- -··----~- --~--------

described the popular initiative as the people's

right to enact the laws that they wanted

notwithstanding the opposition of their elected

representatives or the Governor. Nowhere in the

nine hundred odd pages of debate, however, is

there the sligh~est intimation that the

initiative process had any applicability to the

non-law making powers of the legislative or

executive branches.

The initiative and referendum, moreover, was

perceived as but "one part of the great sche·me

of government in the commonwealth of

Massachusetts", Debates at 37 (Comments of Mr.

Walker), and so its provisions are to be read in

conjunction with all other parts of the

Constitution so that they form a single,

harmonious instrument for the government of the

commonwealth. Opinion of the Justices, 291

Mass. 578, 586 (1935); The commissioner v.

Putnam, 227 Mass. 522, 524 (1917). The meanings

of the term ~laws" in Article 48 and of the word

"legislation" in the Debates are therefore

shaped in large part by Part the Second of the

Massachusetts constitution, which establishes

178

the "Frame of Government" for the Commonwealth

and which specifies how our laws are, to be

enacted. The words "Legislative Power" and

"laws" are not used synonomously in this part of

the Constitution. Even the cursory review

undertaken in the following paragraph makes it

clear that not every exercise in legislative

power results in the enactment of a law.

The first chapter of Part 2 of the

Constitution was styled "The Legislative Power"

by the framers of our constitution in 1779, and

it in turn was broken into sections they

captioned "The General court", "Senate" and

"House of Representatives". These organization

labels are an integral part of the constitution

and serve to illustrate that the term

"Legislative Power" includes a number of

distinct prerogatives, not just law-making. The

power to enact laws is conferred on "The General

court" as a whole in the first section of the

chapter. Article 1 of that section provides

that the "department of legislation" shall be

formed by a Senate and House, each of which has

a negative on the other with respect to

179

-------·~-----------~-·" ___ -

legislation. Article 2 provides that no bill or

resolve shall become a law until it has been

laid before the Governor for approval or revisal

and specifies procedures to be followed in that

process. Articles 3 and 4 in turn provide the

General Court, which consists of the two houses,

with authority to constitute judicatories and to

enact all manner of reasonable and wholesome

laws.

This grant of a carefully channelled

law-making power reflects the basic principle of

checks and balances which guided John Adams in

drafting the document which became our

Constitution. Drawing from the work of

Theophilius Parsons in the "Essex Result",§_/

§_/ A pamphlet called the "Essex Result" was circulated in April 1778 and is largely credited with influencing the people in rejecting the state constitution presented to them that year. Hart, ed., Commonwealth History of Massachusetts, Vol. III, 183-186 (1929); Morrison,"History of the Constitution of Massachusetts", printed originally in Manual of the constitutional convention, 1~17-1918, 16-18 (1917). It was written by Theophilius Parsons, a young lawyer who later became Chief Justice. He carried the doctrine of separation of powers further than most, arguing "The legislative

(footnote continued)

180

I L

Adams divined that dispersal of power among the

executive, legislative and judicial branches of

government was not enough "to provide for an

equitable mode of making laws." Mass. Const.,

Preamble, par. 2. It was also necessary to

divide the legislature into two branches,

elected in different ways and representing

different constituencies, and to give each of

these two houses a negative over the other in

passing laws. In its final form, therefore, the

Constitution prescribed detailed procedures for

the enactment of statutes which reflect both a

bicameral exercise of legislative power and then

gubernatorial action.


power must not be trusted with one assembly" •.. that it should be divided among two chambers one of which would consist of "members who hold a major part of the property" of the state, the other comprised of members repr es en ting the people. Laws could only ~)e enacted if they obtained the support of both property interests and the people. The Essex Result is reprinted in part in Taylor, ed., Massachusetts, Colony to Commonwealth: Documents On The Formation Of Its constitution, 1775-1780, 73-92 (1961), and in full in Handlin, ed., The Popular Sources of Political Authority, 324-365 (1966).

181

2. The case law demonstrates that not every exercise of legislative power results in the enactment of a law.

In the latter half of the twentieth century

lawyers and judges rather than our nation's

founders have explored the boundaries of that

law-making power. As with the drafting of

constitutions, the states have broken the ground

and have later been followed by the federaJ

government. In varying circumstances over the

past several years, this Court and other state )

tribunals have recognized that law-making power

may be exercised only in accordance with

specific, constitutionally prescribed

procedures. See, ~, Opinion of the Justices,

Mass. Adv. Sh. (1981) 2439, 2445, (proposed

legislation providing that no changes to a public

benefit program occasioned by a change in federal

law could take effect without "approval" by the

General court would violate the pres2ntment

clause of state constitution); Opinion of the

Justices, 375· Mass. 827, 837 (1978) (resolutions

by legislature intended to release the Governor

from the obligation to expend full amount of

appropriation are constitutionally defective

182

;

'

l

because they conflict with gubernatorial veto);

State v. Manchin, 279 S.E.2d. 622, 632-3 (W.Va.

1981) (laws cannot be enacted by joint resolution

ratifying prior executive action); State v.

A.L.I.V.E., 606 P.2d 769, 773-777, n.18 (Alaska,

1980) (legislature cannot annul administrative

regulation except by following constitutionally

required enactment procedures [cases from other

jurisdiction collected]).

This past term the Supreme court built upon

these state precedents and gave this principle

its fullest exposition in the so-called

"legislative veto" case. Immigration and

Naturalization Service v. Chadha, U.S.

103 S.Ct. 2764 (1983). What is particularly

noteworthy about Chadha in the context of this

controversy is its recognition of the critical

"difference between the legislative (i.e.,

law-making) functions of congress and other

unilateral but important and binding one-House

acts provided for in the Constitution." 103

S.Ct. at 2787. The unicameral acts having the

force of law were enumerated as being the

respective powers of the House and Senate to

183

initiate and try impeachments and the Senate's

powers to disapprove presidential appointments

and to ratify treaties. 103 s.ct. at 2786. The

court then explicitly distinguished these four

unicamerial powers from another "exception" to

the bicameralism and presentment requirement -

the power of both branches to act alone in

determining their own rules and other internal

matters. This specific power, which lies at the

heart of this case, did not result in acts having

the unreviewable force of law because those acts )

bind only the congress. Id. at n. 20. As a

formulation of the difference between laws and

legislative rules, the Attorney General commends

this particular passage to the court. See, pp

42-45) , infra.

In contrast to these unicameral acts, the

law-making functions of Congress were deemed to

be sub]ect to the bicameralism and presentment

requirements of the Constitution, and "(w)hether

actions taken by either House are, in law and

fact, an exercise of (law-making) power depends

not on their form but upon 'whether they contain

material which is properly to be regarded as

184

legislative in its character and effect.' s.

Rep. No. 1335, 54th Cong. 2d Sess., 8 (1897)."

103 s.ct. at 2784. This question in turn was

perceived as turning on whether the action has

the "purpose and effect of altering the legal

rights, duties and relation of persons

outside the legislative branch." Id.

In determining whether particular measures

seek the passage of "laws" as that word is used

in Article 48 and/or Part the Second of the

Massachusetts constitution, this Court has also

been guided by the substance of measures rather

than their form. On at least two occasions the

Supreme Judicial court has opined that, based on

their content, particular proposals were not

"laws" or "measures", and hence that they were

not proper subjects for initiative petitions

under Article 48. On several other occasions the

court has rendered opinions dealing with the

analogous statutory provisions covering municipal

initiatives. Again these opinions turn not on

the form of particular proposals, but whether,

based on their content, they are of a law-making

nature.

185

In Cohen v. Attorney General, 357 Mass 564

(1970), the court held that an initiative seeking

to conduct a plebiscite "to ascertain the will of

the people ..• relative to the calling and

holding of a (state) constitutional convention

••• " did not propose a law and should not have

been certified by the Attorney General. The

opinion turned on the Debates and their unusual

focus on amending the state constitution. The

court reasoned that the Initiative and Referendum

gave the people the power to propose particular

amendments, and that was the only power to amend

the state constitution conferred by Article 48 on

the people. The court characterized the use of

the initiative petition as a device to call a

state constitutional convention as "unthinkable."

Because the Cohen opinion is predicated

entirely on negative inferences drawn from the

debates, it would ordinarily be hard to

generalize from it. Nevertheless, the Attorney

Gener al pas its. that it would be equally

"unthinkable" to those who crafted Article 48

that it could be used to amend legislative

rules. That legislative rules could be used to

186

defeat legislation the voters wanted enacted was

not unknown to those draftsmen. The measure's

prime sponsor was a former Speaker of the House

whose views on the ability of law-making bodies

to govern their own internal proceedings was

given voice even during the convention. Debates

at 258, 399. contemporary commentators,

including Professor Holcombe of Harvard, who was

credited with drafting the "I&R" proposal,

Debates at 303, 640, 1032, 1035, acknowledged

that rule-making authority was vested exclusively

in legislative bodies. They saw the popular

initiative as a vehicle to secure desirable laws

notwithstanding the parliamentary maneuvers of

the legislature. See, e.g., Holcombe, State

Government in the United States, 240, 280,

401-446 (1916); Wilcox, Government By All the

People, 13-36 (1912). The popular initiative was

designed to provide a method to circumvent

legislative procedures, not to modify them.

In a 1928 Opinion of the Justices, 262 Mass.

603, the court dealt with a measure proposing a

federal constitutional convention and again ruled

that its subject matter was not such that it

187

could properly be characterized as a law or

measure as the terms are used in Article 48. The

Court started from the twin propositions that the

popular initiative is a reservation of the

legislative power otherwise given by the people

to the General court in the constitution and that

the reserved power is that of a specified number

of voters to submit a law to the voters for their

approval. The petition failed for three closely

related reasons. First, the role of the state

legislature in the process of amending the

federal constitution is conferred by the federal

constitution and cannot be among the powers

reserved under the state constitution. Second,

Article v of the United States constitution vests

this power exclusiyely in the legislature21 and

any state law purporting to alter that

arrangement must give way to the superior

authority of the federal constitution. Third,

7/ cases from around the country to the effect that state initiative and referendum procedures cannot be applied to the process of amending the federal constitution are legion. See Leser v. Garnett, 258 U.S. 130 (1922); Hawke"V". Smith, 253 U.S. 221 (1920); National Prohibition cases, 253 U.S. 350 (1920); State ex rel Hatch v. Murray, 526 P.2d 1369, 165 Mont. 90 (1974).

188

I ...,i.

since the transmission of the results of the

plebescite would not be in accordance with

Article V, it would not be legally effective and

hence would not be a "law".

The proposals considered by the Court in

Cohen and the 1928 Opinion of the Justices were

in the form of proposals for laws. Furthermore,

they called for the exercise of powers possessed

by the Legislature. Nevertheless, they were

rejected, the Attorney General submits, because

they were not exercises in the law-making power

within the ambit of Part 2, chapter 1, section 1

of the Constitution. In other words, they

support his conclusion that acts of the General

Court which are not inherently law-making in

nature may not be the subject of an Article 48

petition • .§! Common sense and Article 48 case

law therefore dictate that the power of the

popular initiative extends no further than the

power of the General court and Governor to enact

.§/ For instance, the people could not propose an impeachment by initiative or submit the action of the Senate sitting as a Court in such a proceeding to referendum vote, nor could election of the Senate President be the subject of a petition.

189

laws under Part 2, chapter 1, section 1 and does

not extend to other legislative or executive

prerogatives conferred by other portions of the

state constitution.

The Attorney General's view that Article 48

provides the people with a ~ower which is the

functional equivalent of the law-making powers

conferred by Part 2, chapter 1, section 1 of the

Massachusetts Constitution is further buttressed

by this Court's reasoning in Opinion of the

Justices, 370 Mass. 869 (1976). There the court

observed that the "fundamental purpose of

Article 48 is to provide a procedure by which

the people can enact legislation by popular

vote." Id. at 872. When a measure is introduced

into the General Court by initiative petition

and it is enacted by both branches, the court

held, it is to be laid before the Governor for

his approval or veto. Id. at 873-876. If the

measure ultimately fails to become law through

the normal law-making process, whether that

failure is caused by legislative or executive

disapproval, the petitioners may gather

additional signatures and place the matter

190

before the voters. An affirmative vote not only

overrides the legislature's rejection of the

measure, it also "bypasses the important

constitutional requirement that the Governor

approve all laws." Id. at 873. voter action

under Article 4 8, therefore, . can be a total

substitute for both bicameral legislative action

and for presentment to the Governor. No one

could reasonably suggest that the initiative

process may be used to exercise gubernatorial

powers disconnected with the law-making

process. How then can they argue that the

process may be used to exercise legislative

powers similarly disassociated with the act of

law-making?

3. Analogous cases dealing with municipal initiative provisions also support the premise that there are implied limits to the scope o f Ar tic le 4 8 •

Support for the proposition that the I&R

provisions are narrowly confined to law-making

rather than all legislative acts may also be

gleaned from cases dealing with municipal

referenda. See G.L. c. 43, §§ 37 et~·

Although the Massachusetts statutes mandate

191

submission of a wide range of votes of the city

council or school committee to the public,

starting in 1922 the court has established and

followed a rule to the effect that

administrative or executive actions by a council

would not be subject to petitions and need not

go to the voters.V In Doolin9 v. Cit:t of

Fitchburg, 242 Mass. 599 (1922)' voters

attempted to veto by referendum the award of

several construction contracts. The Court held

that the award of a contract was not an exercise

in law-making but an executive act, and

therefore not a "measure", as defined in G.L. c.

43, § 37, subject to the initiative process.

Id. at 602. In dicta the court said: "It cannot

have been the purpose of the General Court to

require or to permit the referendum or the

initiative ... touching subjects wholly

outside the field of authorized action by the

city council. Such a futile intention cannot be

imputed to the General court." Id. at 601.

V This basic proposition is reflected in the decisions of other jurisdictions as well. See 42 Am. Jur. 2d., Initiative & Referendum, §ll; 5 McQuillin, Municipal corporations §16.55 at 194 (1981) .

192

Similarly, in the Article 48 context, an intent

to expand the popular initiative into spheres

beyond law-making should not be lightly inferred.

Gilet v. City Clerk of Lowell, 306 Mass. 170

(1940), resembled Dooling in that the Court

again held a referendum not to be a "measure" as

defined by G.L. c. 43, §37. It also resembles

Chadha in its insistence that law-making follow

appropriate procedures. The petition sought

reduction of the city budget "without specific

reference to any items, .•• seeking to bring

about something that the city council itself

could not accomplish directly by any such

general and indefinite method." Id. at 175.

Gorman v. City of Peabody, 312 Mass. 560

(1942), involved a dispute over the proper

amount of a school committee budget. A

referendum petition protesting an overall

increase in teachers' salaries had been

submitted to, but ignored by, the school

committee. Id. at 561. This court held that

the protest was proper for a referendum and the

question should have been submitted to the

voters. The case, like Dooling, turned on the

193

.....

distinction between executive and legislative

action. In the course of the opinion the court

explicated Dooling and removed any possible

misconception about the meaning of its arguably

expansive dicta. Dooling, said the Gorman

court, held that "the passage of these orders

[for construction contracts] was not within the

sphere of action vested in the city council and

that, not being 'measures' within its

jurisdiction, the referendum provisions were not

applicable to them." Id at 563 {emphasis .

supplied). Thus, Gorman read Dooling as the

Attorney General does here, to stand for the

limited proposition that only law-making

proposals are "measures" within the scope of the

initiative or referendum.

To the extent this line of cases is

informative, its link in time with Article 48

makes it doubly so. The municipal initiative

and referendum provisions were inserted into the

General Laws by St. 1915, c. 26i, pt. 1. The

Dooling case itself was decided in 1922. Of

course Article 48 had its genesis in the

Constitutional Convention during 1917-1918 and

194

i ...____

was ratified by the people at the end of 1918.

One can say with more than a passing degree of

certainty both that the statutory provisions for

municipal initiatives and the constitutional

provisions of Article 48 share a common

motivation and that the Dooli~g case provides a

contemporary view of limitations on the process

in both contexts. Notwithstanding the broad

language of both the amendment and the statutes,

there are implied limits to their scope.

B. The Law Proposed By This Petition Establishes Rules Of Proceedings For The Senate And House Of Representatives, And Hence Would Be An Exercise In The Rule-Making Power Respectively Conferred On The Individual Legislative Branches By Part 2, Chapter ~, Sections 2 And 3 Of The Massachusetts Constitution.

In addition to their shared law-making

powers, the respective branches of the General

court prossess a host of other legislative

powers, some of which are derived from extra

constitutional sources,lO/ but most of which

are specifically bestowed on them by Part 2,

!.Q_j Article V of the United States Constitution, for instance, authorizes state legislatures to take certain actions with respect to Amendments to the federal Constitution.

195

c. 1, §§2 and 3 of the Massachusetts

Constitution. The House alone, for instance,

may originate a money bill, Pt. 2, c. 1, §3,

Art. 7, or make an impeachment, Pt. 2, c. 1, §3,

Art. 6, while the Senate alone may hear and

determine those impeachments, Pt. 2, c. 1, §2,

Art. 8. The power to "choose its own president,

appoint its own officers and determine its own

rules of proceedings" is conferred exclusively

on the Senate by Pt. 2, c. 1, §2, Art. 7, while

the members of the House of Representatives )

possess the corollary power to "choose their own

speaker, appoint their own officers, and settle

the rules and orders of proceedings in their own

house ••• " by virtue of Pt. 2, c. 1, §3, Art.

10. This case requires the Court to review the

determination of the Attorney General that the

subject initiative petition presents an exercise

in unicameral rule-making power and not of

bicameral law-making. Hence it places squarely

before the court questions concerning the scope

of the words "laws" and "rules."

This Court has never before been compelled

in the context of Article 48 to articulate a

196

comprehensive definition of the word "law" or

"laws". Cohen v. Attorney General, 357 Mass.

5 6 4 , 5 7 O ( 19 7 0 ) ; Opinion of the Justices , 2 6 2

Mass. 603, 605 (1928). Instead, the Court has

concluded that particular measures are not

within that comprehensive definition, whatever

it might be, while accepting.guidance from

judicial statements construing the words. Id.

These judicial statements are of limited

utility in this case, where the Attorney

General asks the Court to distinguish between

"laws" and "rules", because they define the

word "law" in part by referring to its standard

dictionary synonym "rule". See, ~' Opinion

of the Justices, 66 N'.H. 629, 632 (1981) ("Law"

is a rule: not a transient sudden order from a

superior to or concerning a particular person;

but something permanent, uniform and

universal). As demonstrated in the previous

section of argument, it is clear that in the

context of the Massachusetts Constitution the

two words are not interchangeable, for the

former requires bicameral action and is subject

to executive action, while each branch of the

197

legislature possesses the unicameral authority

to promulgate its own rules.

It would be circular, however, to rely on

this bicameral/unicameral distinction to define

the two terms, and so the Attorney General

submits what he believes are three critical

distinctions between laws and rules. First, • laws govern conduct external to the legislative

body, while rules govern internal procedures.

INS v. Chadha, 103 S. Ct. at 2784. If a

legislative act has "the purpose and effect of

altering the legal duties and relations of

persons ••• outside the legislative branch",

id., it is a law which may be passed only in

accordance with Part -Z, c. 1, §1 of the

Massachusetts Constitution or Article 48.

Second, a law "is binding and has an obligatory

force in it, and the other has not." Opinion

of the Justices, 126 Mass. 547, 550 (1879) (The

date of this opinion is misleading. It was

reprinted in the 1879 volume but was apparently

issued in 1781. The quoted language is from

the opinion of Nathaniel Peaslee Sargeant,

himself a member of the Convention which framed

198

the Constitution of the Commonwealth. Journal

of the Constitutional Convention, 1779-1780, p.

10 [1832]); Opinion of the Justices, 262 Mass.

at 605. If a measure merely invites voter

opinion on a subject over which the people of

Commonwealth possess no part of the sovereign

power, that measure is beyond the scope of

Article 48. Id. Third, a statute or law has a

permanent effect, Opinion of the Justices, 66

N.H. at 692, while legislative rules are by

their nature ephemeral. They are ephemeral

because one legislative body cannot bind

another, and because legislative rule-making

authority is "a continuous power absolute

and beyond the challenge of any other

tribunal." United States v. Ballin, 144 U.S. 1

(1892). Consequently state and federal

legislative bodies are free to alter or waive

their rules at any time. See, ~, Mason's

Legislative Manual and Jefferson's Manual of

Parliamentary Practice, relevant portions of

which are set forth at (Supp. App. 6-7). See,

generally, letter from William M. Bulger to

Francis x. Bellotti, (Supp. App. 5 et~-).

Rules are passed "to assist in legislation,"

199

Opinion of the Justices, 126 Mass. at 550, and

direct how the legislative body is to conduct

its own business, but they are not in

themselves laws.

The plaintiffs in this case do not appear

to contend that their petition is not an

exercise of rule making authority: They

acquiesced to a summary of their petition which

begins with the statement that it "establishes

procedures for the operation of the state

legislation," (App. 50); they titled their

proposal "An Act Providing For Reform of the

General Court", (App. 4, 8); and they have

circulated their petition and gathered

signatures thereon by characterizing it as a

rules reform petition. Nor could they

seriously mount such an argument, because the

proposed law conflicts with the pre-existing

rules of the two branches, and because it

prescribes in minute detail how the House and

Senate are to conduct their business. 111

11/ Rather than examine its provisions in detail here the Attorney General refers to the beginning of the brief, where in the statement of facts he has described the petition, (p. 11)


200

I

L

Following the criteria identified in the

prior paragraphs, the Attorney General suggests

that this petition establishes rules because its

principal purpose is to order the internal

operations of the Senate and House rather than

to alter the legal duties of persons outside the

legislature, and because the proposed law is

neither binding nor permanent. Even if the

petition is enacted into law, the continuin;

power of the individual branches to ignore its

provisions and determine or settle their own

procedures would render the proposal a nullity.

The proposal could have a permanent and binding

effect only if this court read out of existence

the plenary authorit? of the Senate and House to

order their own internal affairs. If the

petitioners desire to accomplish such a result,

they should have filed an initiative seeking

adoption of a constitutional amendment rather

than the enactment of a law.


and to its end, where he has appended charts as addenda to this brief showing which of the proposed sections of the law conflict with pre-existing rules.

201

c. The Plaintiffs Place Undue Reliance On The Fact That Legislative Bodies. Have Adopted Statutes Which Arguably Constitute Rules Of Proceedings And On The Precedential Value Of A 1978 Opinion By This court.

The Attorney General's position on the

merits of this case has essentially been laid

out in the two preceding sections of this

brief. The plaintiffs assail the Attorney

General's position with what amounts t~ a three

wave attack. First, they point out that

Massachusetts, like the United States and

virtually all of the other states in the union,

has historically enacted laws which can be

characterized as rules of proceeding for the

legislature. Plaint~ff 's Brief at 25-32.

Second, they cite cases from other jurisdictions

which support either the proposicion that

legislative bodies may constitutionally exercise

their rule-making powers through legislation or

that the popular initiative is zs broad as the

legislature's law-making power. Plaintiffs'

Brief, at 25-41. Finally, they rely on this

Court's Opinion of the Justices, 375 Mass. 795

(1978), for the premise that "except as to

202

matters expressly excluded, the scope power of

the people to enact laws directly (by initiative

petition) is as extensive as that of the Ge~eral

Court." 375 Mass. at 817. Their argument boils

down to the premise that if the legislature can

enact laws which promulgate rules, so can the

people. In this regard, the "aside" in the 1978

Opinion becomes the key to plaintiffs argument

and accordingly it is address~d first. Frankly,

it is not a strong enough cornerstone to support

even the house of cards the plaintiffs have

constructed.

The obvious retort to the plaintiffs'

reliance on the 1978 Opinion is the oft-stated

principle that such opinions are not binding

adjudications by the court and do not have a

stare decisis effect. Lincoln v. Secretary of

the Commonwealth, 326 Mass. 313, 314 (1950);

Opinion of the Justices, Mass. Adv. Sh. ( 1981)

1361, 1382; Opinion of the Justices, 365 Mass.

665, 679 (1974); Opinion of the Justices, 341

Mass. 738, 748 (1960). As Chief Justice Rugg

put the proposition in Commonwealth v. Weloskv,

276 Mass. 398 (1931):

203

It has been uniformly and many times held that such opinions, although necessarily the result of judicial examination and deliberation, are advisory in nature, given by the justices as individuals in their capacity as constitutional advisers of the other departments of government and without the aid of arguments, are not adjudications by the court, and do not fall within the doctrine of stare decisis. When the same questions are raised in litigation, the justices then composing the court are bound sedulously to guard against any influence flowing from the previous consideration, to e~.:.u1ine the subject anew in the light of arguments presented by parties without reliance upon the views theretofore expressed, and to give the case the most painstaking and impartial study and determination that an adequate appreciation of judicial duty can impel. Id. at 400.

This case presents a perfect illustration of the

wisdom of this gener~l rule. The 1978 Opinion

is now being cited as a precedent dispositive of

the question whether legislative rules may be

adopted by initiative petition. In 1978, that

issue was a matter of first impression raising

fundamental consti~utional questions, yet for

three clearly related reasons, it simply could

not receive extensive consideration. First, the

time frame within which the opinion request was

handled was extremely truncated. The Senate

204

voted to adopt an order requesting an opinion on

March 23, 1978 and transmitted the request to

the Court five days later~ 375 Mass. at

797-798. Briefs were filed on or before April

10, and the opinion itself issued on April 27,

1978.

Second, the issue of the relationship

between the law-making power of the voters under

Article 48 and th2 rule-making power of the

Senate and House of Representatives was hardly

the principal focus of the opinion request. The

Senate posed eight main questions to the

Justices, many of which raised subsidiary

issues. The fifth question may be paraphrased

as whether enactment-of a code of ethics

applicable to members of the Senate and House

would conflict with the Constitutional

prerogatives of these two bran~hes to determine

their own rules. 375 Mass. at 800, 816. The

Court was net asked and did not decide whether

the proposed law would have enacted rules of

proceedings in the two chambers and was not

asked whether such rules could be enacted by

popular initiative.

205

Third and not surprisingly, therefore, that

the issue now before this Court was not

adequately briefed in 1978. Three briefs were

filed in response to the Court's announcement of

the opinion request. The Attorney General filed

a sixty-five (65) page brief which explicitly

declined to address Question 5; Common Cause,

represented by counsel for the current

plaintiffs, [iled a forty-five (45) page brief

devoting just over two pages to the conflict;

and th8 Senate Committee on Ethics, again

represented by lawyers filing briefs in this

case, filed a thirty-six (36) page brief which

also contained but two pages of briefing on the

Constitutional issue;

It is at least worth noting that in

suggesting a "no" answer to question 5 Common

Cause's key contention was that the rule-making

authority of the legislative chambers gives them

the poNer to control their day-to-day

procedures, a power not implicated by the

enactment of a financial disclosure law

establishing "a general law governing individual

conduct by all high level public officials and

206

employees which happens to include

legislators." The Attorney General agrees with

that contention. Indeed, he certified the

proposed law involved in the 1978 opinion for

submission to the people under Article 48, for

he saw no explicit or implic~t limitation in

Article 48 preventing the voters from passing

laws which would affect legislators. Perhaps

more importantly, he agreed with the Court that

the proposed law would not "intrude", 375 Mass.

at 817, on the rule-making prerogatives of the

branches of the General Court. As the Supreme

Judicial Court, then, he would have answered

Question 5 in the negative.

Nevertheless, the Attorney General does take

issue with what one would ordinarily

characterize as the dicta accompanying this

answer. The language in the opinion on which

the plaintiffs now rely reflects intuition

rather than analysis. Without citation to the

language of the Constitution, the debates in the

Constitutional Convention or to any

Massachusetts or extrajurisdictional cases, the

opinion assumes that the filing requirement

207

----------·-- - - --- '

might relate to matters within the rule-making

province of the General Court, 12/ assumes that

the General Court can promulgate rules of

proceedings by enacting statutes, and then

baldly asserts that the voters' law-making

power, because it is coextensive (except for

excluded matters) with that of the legislature,

may also result in the passage of rule-making

laws. The Attorney General does not share the

Court's intuition.

In this case, it is unnecessary to assume

that the proposed law in issue will affect rules

of proceedings of the two branches; the Attorney

General has already demonstrated that the

proposed law is actually an exercise in

rule-making. See Part IB, supra. The

12/ The Constitution vests no rule-making authority in the "General Court" as such. Instead, the power to establish rules for the respective houses of the General court is vested exclusively in the individual legislative chambers. Pt. 2, c. 1, § 2, Art. 7 and Pt. 2, c. 1, § 3, Art. 10. It is a prerogative belonging to· each house, which it alone can exercise. Dinan v. Swig, 223 Mass. 516 (1916). Presumably, the Opinion uses the term "General Court" to refer to the individual branches, as the Court correctly concludes its treatment of the provisions of G.L. c. 3 with the statement that the proposed law "would not intrude on the right of the Senate and House to determine their own rules." 375 Mass. at 817.

208

I

;"J

distinction is critical because in contrast to

the Ethics Commission statute discussed in

Opinion of the Justices, 375 Mass. at 817, this

proposal has as its manifest aim "intrud(ing] on

the right of the Senate and House to determine

their own rules." This intended intrusion

distinguishes the 1978 initiative petition from

the petition involved in this case and is

therefore fatal to the plaintiffs' efforts to

bootstrap their way from the 1978 Opinion of the

Justices to a successful attack on the Attorney

General's refusal to certify this petition in

1983.

The intrusion worked by the rules reform

petition undermines €he Opinion of the Justices

in yet another way. It triggers concerns which

are characterized herein as "separation of

powers" concerns. Separation of powers is a

doctrine enforced at both the national and local

levels according to common sense and the

inherent necessities of governmental

coordination. J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 406 (1928). The doctrine

comes into play not whenever two or more

209

branches of government cooperate in the exercise

of power, but when the challenged action has the

potential to disrupt the proper balance between

coordinate branches of government or to prevent

a branch from accomplishing its constitutionally

assigned functions. United States v. Nixon, 418

U.S. 683, 711-712 (1973); Nixon v. G.S.A., 433

U.S. 425, 443 (1975). In this Court's words,

"[t]he essence of what cannot be tolerated is

the creation of interference by one department

with the power of another department." New

Bedford Standard Times Pub. Co. v. Clerk of the

Third Dist. Ct. of Bristol, 377 Mass. 404, 410

(1979), citing Opinion of the Justices, 365

Mass. 639, 640-642 (f974).

When the normal legislative process is

followed and a law is enacted which in reality

is a rule of proceeding affecting either the

House or Senate, there has not been any

practical interference with the prerogatives of

that chamber. Such a law cannot be passed

without the concurrence of that chamber and

hence there is no interference with its powers.

Moreover, when legislative bodies adopt statutes

210

l I I 1

prescribing rules for their own proceedings, it

is either with the explicit or the implicit

understanding that those statutes must give way

to the superior authority of later adopted or

inconsistent rules. See, e.o., 5 u.s.c. S 908;

(Supp. App. 7). Thus, the doctrine of

separation of powers is entirely consistent with

the statements "nothing in the Constitution

prescribes the manner in which the (houses of

the) General Court must exercise its power" and

"that the (houses of the) General Court are free

to exercise (their) constitutional rule-making

power through the legislative process", 375

Mass. at 817. Where, however, the normal

legislative process gives way to the popular

initiative, a proposed law which establishes

rules of proceeding creates a direct conflict

with the exclusive prerogatives of the two

chambers. Consequently, it does not logically

follow that merely because the people's elected

law-makers may enact statutes which constitute

legislative rules, the people may do so directly

as well.

It is no answer to this argument to suggest

211

that separation of powers analysis applies only

to departments or branches of government and not

to the exercise of power by the voters. First,

such an answer would ignore the language of the

excluded matters section of Article 48 itself,

which provides, "the limitations on the

legislative power of the general court in the

constitution shall extend to the legislative

power of the people as exercised hereunder."

Init., Pt. 2, § 2. The plaintiffs themselves

concede that this is a passage designed to make

it clear that the people's enactments are

subject to constitutional scrutiny. Plaintiffs'

Brief at 34. Second, such an answer ignores the

analogous line of cases cited in part I(A) (3) of

this submission construing the state's broadly

phrased municipal initiative statute in a manner

consistent with separation of executive and

legislative powers at the local level. See,

~, Dooling v. City of Fitchburg, 242 Mass.

599 (1922); Gilet v. City Clerk of Lowell, 306

Mass. 170 (1940); Gorman v. Peabody, 312 Mass.

560 (1942). Third, it fails to recognize the

motivating factors underlying the doctrine of

separation.

212

The concept of separation of powers embodied

in Article 30 of the Declaration of Rights of

the Massachusetts Constitution is a thread which

runs throughout American constitutional theory.

Conventional wisdom has long been that the

drafters of state and federal constitutions

alike were primarily concer~ed with preventing

tyranny as they framed their respective

governments. The universal answer of these

draftsmen was to divide governmental authority

"into a legislative, an executive, and a

judicial power, each to be exercised by a

different set of men, and all three coordinated

by a series of checks and balances." Morrison,

"History of the Constitution of Massachusetts," t

originally prepared for the Manual of the

Constitutional Convention, 17 (Wright & Potter,

1917). Dispersal of power among the branches is

only one of the ingredients in the formula of

checks and balances. It was also a basic

proposition to the framers that "every

government ought to contain in itself the means

of its own preservation," Hamilton, "The

Federalist," No. 59, p. 362 (Mentor, 1961), and

213

that each of the branches ought to be able to

stand alone:

"The rules of just reasoning and theoretic propriety would of themselves teach us that one (branch of government) ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense." Id. at No. 73, p. 442.

At the time Article 48 was adopted, the

ability to formulate internal rules of procedure

was generally acknowledged to be an inherent

power of legislative bodies, protecting them

from unwarranted intrusion by other entities

exercising governmental power. See, ~'

Cooley, A Treatise on Constitutional

Limitations, (1903). Nor can it be said that

because the voting public is exercising that

power, the doctrine is inapplicable. The

guiding genius behind separation of powers is

that dispersal of power prevents the

concentration of power in the hands of either

the few or the many, and the fear of tyranny by

the majority was very real to the philosophers

on whom the founding fathers of our nation and

state relied. ~ Madison, The Federalist, No.

47, pp. 301-304 (discussing Montesquieu's

214

formulation of the doctrine).

The assumption that the General Court may

validly enact legislative rules also makes

reliance on the 1978 Opinion of the Justices

questionable. The Attorney General does not

here contend that the provisions of G.L. c. 3

which arguably erect rules of proceeding for the

respective houses of the General Court are

unconstitutional. "It is a familiar principl~

of constitutional law that every presumption is

made in favor of the validity of an act of the

Legislature, and that the courts will not refuse

to enforce it unless compelled to do so by

provisions of the Constitution so plain in their

bearing as to prevent any other rational

construction." Attorney General v. Brissenden,

271 Mass. 173, 177 (1930). The provisions of

G.L. c. 3 have never been subject to a challenge

grounded in separation of powers and

consequently the presumption is in full force

and effect. Moreover, given his role under G.L.

c. 12, § 3, the Attorney General is among those

least likely to initiate such a challenge.

One could argue, however, that

215

constitutional invalidity of those laws is

presaged by Dinan v. Swig, 223 Mass. 516

(1916). The 1978 Opinion apparently ignored

this important precedent. There, the court

found unconstitutional a law permitting a

specified number of voters to petition the

Superior court to investigate allegations of

corruption in connection with the election of

legislators. The power to determine r~~es of

proceeding, it is submitted, is analogous to the

power to judge the election and qualification of

legislators; in the case of the House of

Representatives, the two are both conferred by

Pt. 2, c. 1, § 3, Art. 10 of the Constitution.

The Court opined in crinan that the act

conflicted with these analogous powers to judge

election and qualifications, noting that "the

grant of power • is vested exclusively in

each branch of the General Court," that it "is a

prerogative belonging to each houie, which it

alone can exercise," and that each branch of

each success1ve Legislature may proceed "without

seeking concurrence or approval of the other

branch, or of the executive • • " and without

216

. ,;_"".· .. -·. ' ·r·;·· i

being bound "by action taken by an earlier

Legislature." 223 Mass. at 517, 519. See also,

Opinion of the Justices, 278 A.2d 475, 476 (N.H.

1971) (House has exclusive right to determine how

Speaker will be elected which prerogative cannot

be impinged by statute subject to action by

Senate and Governor); Malone v. Meekins, 650

P.2d 351, 355 (Ala. 1982) (Each house has the

exclusiv~ ~ewer to remove as well as choose its

own offices without any participation by the

othec House). The difficult question of

constitutionality is avoided, the Attorney

General submits, only by limiting G.L. c. 3 to

internal operating statutes voluntarily enacted

by the branch they affect and by reading into

all such laws the implicit recognition that they

may be superceded by subsequent unicameral

rule-making. See, ~' Coggin v. Davey, 211

S.E.2d 708, 710-711 (Ga. 1975). Under no

cir~umstances, however, should legislative

rule-making power be placed in the hands of the

voters under Article 48.

217

Instead, as Dinan commands,

it must remain where the sovereign authority of the State has placed it. General phrases elsewhere in the Constitution, which in the absence of an explicit imposition of power and duty would permit the enactment of laws to govern the subject, cannot narrow or impair the positive declaration of the people's will that this power is vested soley in the Senate and House respectively. 223 Mass. at 577.

II. THE ATTORNEY GENERAL CANNOT BE COMPELLED TO CERTIFY AN INITIATIVE PETITION WHICH IS BEYOND THE SCOPE OF ARTICLE 48.

Given this exposition of the Attorney

General's view that the initiative petition is

not a "measure" within the scope of Article 48,

the only remaining question is whether he is,

nonetheless, obliged to certify a petition which

fails to meet that threshold of Article 48. A

negative answer would appear self-evident but

for the plaintiffs' protestations. Thus at the

outset, the Attorney General begins this portion

of his argument by stating that he does not

claim authority under Article 48 to pass on the

constitutiona~ validity of a submitted

. . . . . . 131 s. . 1 1 h d. initiative petition.~ imi_ar y e isavows

13/ See, ~, 1965/66 Op. Atty. Gen. No. 43, Rep. A.G., Pub. Doc. No. 12 at 83 (1965). This

(footnote continued) -62-

218

any intention to contend that his decision

declining to certify the petition is

unreviewable. Compare Anderson v. Secretary of

the Commonwealth, 255 Mass. 366 (1926), and Bowe

v. Secretary of the Commonwealth, 320 Mass. 230

(1946), with Horton v. Attorney General, 269

Mass. 503 (1929). The Attorney General's

refusal to certify this petition, however, was

not based on any pe=~eived constitutional

infirmities; rather he declined to certify this

petition because it does not propose a law or

constitutional amendment - a measure - within

the meaning of Article 48. He does claim a

right under Article 48 to make that


is not a concession that a constitutional review would be inappropriate. Textual support for a preliminary examination of a proposed law's constitutionality is provided by the final paragraph of the "Excluded matters" provision of Article 48 Init., Pt. 2, §2: "The limitations on the legislativ~ power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder. The textual inference is buttressed by legislative history, since The Massachusetts Plan for the Initiative and Referendum, presented to the General Court of 1914 by Joseph Walker contained explicit authorization for such review, and by recent case law, Legislature of California v. Deukmejian, 34 Cal. 3d 658 (1983).

219

determination and he contends that his decision,

while reviewable, is entitled to deference by

this Court.

The Constitution places significant

responsibilities on the Attorney General with

respect to certain matters involved in the

initiative process. For instance, he prepares

summaries, certifies that measures had not

already been placed before the electorate, and

attests that amendments to the petitions are

nperfecting.n Perhaps the most significant

function of the Attorney General in this

initiative process is his inquiry into the

certifiability of an initiative petition. Upon

receipt of a proposed initiative petition,

Article 48, Init., Pt. 2, § 3 requires the

Attorney General to:

Certify that the measure and the title thereof are in the proper form for submission to the people, and that the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial ~tate elections, and that it contains only subjects which are related or which are mutually dependent . . . . " Id.

Plaintiffs concede that the Attorney General may

undertake a substantive inquiry in his

220

~m

' i-'

'

l

L

determinations "as to excluded matters and as to

the relatedness of the subjects of the petition

and as to the similarity of the petition to past

petitions." Plaintiffs' Brief, pp. 12-13. They

therefore recognize the significant and

discretionary nature of the Attorney General's

role. Similarly, the discretion vested in the

Attorney General in preparing a fair, concise

summa~y and in passing on the propriety of a

proposed perfecting amendment has been

racognized by this Court. Massachusetts

Teachers Association v. Secretary of the

Commonwealth, Mass. Adv. Sh. (1981) 1764.

Nevertheless, the plaintiffs suggest that this

broad function is somehow transformed into a

purely ministerial role when certifying that

"the measure and title thereof are in proper

form for submission to the people."

The plaintiffs' analysis misses the mark

Lecause it fails to take stock of the nature of

the Attorney General's inquiry. The Attorney

General's inquiry in exercising his Article 48

responsibilities cannot be restricted to whether

the initiative looks like a law and whether it

contains any excluded matter, but necessarily

221

encompasses the fundamental question of whether

the petition submitted proposes the type of law

or constitutional amendment which has been

reserved to the people through the popular

initiative. If, as here, this basic question is

answered in the negative then the petition is

not certifiable for submission to the people.

That certain measures are beyond the scope of

rlrticle 48 was made clear by the opinions issued

in Cohen and in the 1928 Opinion, see Part I (A}

(2) and need not be repeated here. Suffice it

to say that this Court has already determined

that "measures" which are not "laws" may not be

certified and submitted to the people. Only the

Attorney General is in a position to make the

inquiry required by Cohen and the 1928 Opinion.

This year he exercised that authority twice,

rejecting not only this petition but a second,

seeking a limited federal constitutional

convention. (App. 61-620}.

The fact that this important determination

rests with ~he Attorney General is consistent

with both the scope of his authority under

Article 48, as outlined above, as well as the

common law authority as chief law officer of the

222

Commonwealth. The broad scope of the Attorney

General's authority under Article 48 is

highlighted by contrasting it to the purely

ministerial functions performed by the other

state actors involved in the initiative

process. By way of example, the Secretary of

the Commonwealth who with the Attorney General

shares the distinction of being a defendant in

this and most other Article 48 cases, is

required simply to provide blank sheets for the

gathering of signatures. Init., Pt. 2, § 3.

The Attorney General's explicit role also stands

in stark contrast to that of municipal officials

acting under G.L. c. 43, §§ 37 et~., but this

Court has held that fhey have an implicit right

to exclude from the ballot municipal measures

which are executive in nature and therefore

beyond the scope of the statute. See Part I (A)

(3) supra.

It is not surprising that the drafters of

the initiative process would place that

authority exclusively with the Attorney

General. The Legislature through the enactment

of G.L. c. 12, § 3 -- a statute which has

223

remained virtually unchanged since 1896

consolidated the responsibility for all legal

matters involving the Commonwealth, its agencies

and its officers, in the Attorney General. The

power of the Attorney General, however, is far

more expansive than appears by a strict reading

of G.L. c. 12, § 3, or by the blind application

of precepts governing the traditional

attorney-client relationship. The foundation

that supports this discretionary power is the

notion that the broad powers of the off ice are

not exclusively derived from the statutory '

grant, but are also derived from the common law

relative to the protection of the public

interest. Feeney v. -commonwealth, 373 Mass.

359, 365 (1977).

Recognizing the scope of this responsibility

to the public interest, it is illogical to

suggest that the Attorney General can be

compelled to submit to the people a measure that

is clearly beyond the scope of Article 48.

Indeed, the Attorney General not only cannot be

compelled to certify a petition, under any

circumstances, Howe v. Attorney General, 325

224

Mass. 268, 270 (1950), but here he has a duty

under his common law authority not to certify it

because it is beyond Article 48. See, Schmitz

v. Younger, 577 P.2d 652,654 (1978) (Manuel, J.

dissenting) • Mandamus will not lie to compel an

unlawful act. See, ~' Spector v. Building

Inspector of Milton, 250 Mass. 63 (1924).

Therefore, if the Attorney General was correct

in concluding that the rules reform petition was

beyond the scope of Article 48, then he was

equally correct in declining to ca~tify the

petition because it did not present a law or

measure in proper form for submission to the

people. The actions of the Attorney General

were entirely appropriate.

225

CONCLUSION

For all these reasons this Court should

declare that the Attorney General properly

declined to certify "An Act Providing for Reform

of the General Court" because it does not

propose a proper law or measure and hence is

beyond the scope of Article 48.

226


FRANCIS X. BELLOTTI ATTORNEY GENERAL

Paul R. Matthews Assistant Attorneys General One Ashburton Place, Rm. 2001 Boston, Massachusetts 02108 Tel.: 617-727-4538

ADDENDUM

COMPARISON OF INITIATIVE PETITION FOR RULES CHANGES TO PRESENT HOUSE RULES

Section 66. Definitions

No clear conflict.

Section 67. Legislative Party Caucus

There is presently no provision for partycaucuses in the

House Rules. The majority and.minority parties conduct

caucuses from time to time and do so without formal rules.

Section 68. Caucus Chair

No clear conflict.

Section 69. Steering and Policy Committee

Clear conflict with House Rules. House Rule 18 provides

that the Speaker shall make all committee appointments.

Section 70. Procedures to Call a Legislative Party Caucus

No clear conflict with House Rules.

Section 71. Nominations for Presiding Officers of Each Branch

No clear conflict with House Rules. However, precedence

dictates that nomination made in party caucus and then election

by members of House.

Section 72. Party_ Leadership Position

Conflict with House Rule 18 only in that party caucus

approval is not needed under that Rule.

Section 73. Candidates for Committee Chairs


that the chairmen of committees shall be appointed by the

Speaker of the House.

227

Section 74. Selection of Committee Chairs


that the chairmen of committees shall be appointed by the

Speaker of the House.

Section 75. Selection of Committee Members


that the Speaker of the House shall make all committee appoint-

men ts.

Section 76. Vacancies

Clear conflict with House Rules. House Rules 5, 6, 7 and

' 18 provide that the Speaker of the House shall make all appoint-

ments to fill any vacancies.

Section 77. Removal

No clear conflict.

Section 78. Limit of Time Allowed for Reports of Committees

Clear conflict with House Rules. House Rule 28(2) provides

that the House Committee on Bills in the Third Reading shall

not be discharged from consideration of any measure within ten

days of receiving it, unless upon the unanimous consent of

the House, or thereafter by a two-thirds vote of the members.

Section 79. Discharge by Petition

Clear conflict with House Rules. House Rule 28(1)

establishes a discharge procedure for matters referred to the

House Committee on Ways and Means and the Committee on Counties.

House Rule 28(2) establishes a discharge procedure for matters

referred to the House Committee on Bills in Third Reading.

Both provisions would be greatly altered by Section 79.

228

I

I I I

I

I

Section 80. Reports of Committees

No clear conflict with House Rules. However, it would

conflict with Joint Rules 10 and lOA which do not require

committee members to sign reports._

Section 81. Recorded Votes in Committees

No clear conflict with House Rules. There is no require

ment in the rules as to recording committee votes.

Section 82. Notice of Committee Sessions

No clear conflict with House Rules. There are no rules

governing notice.

Section 83. Requirement of Hearings

No clear conflict with House Rules. There are no rules

requiring a hearing on every bill.

Section 84. Control of Consideration of Legislative Matters

Clear conflict with House Rules. House Rules 34 and 41

through 47 outline the procedures utilized in considering

legislative matters. Section 84 conflicts substantially

with those rules.

Section 85. Calendars

Clear conflict with House Rules. Presently House Rule

12 provides that the Speaker shall have the power to order the

clerk to print memoranda, not as in Section 85, the Comrnittee

on Rules. House Rule 12 also limits debate on this question,

while Section 85 does not.

Section 86. Bills in Print

Clear conflict with House Rules. The resuirements of

Section 86 conflict wit~ House Rules 24(5) and 31-35.

229

?resently, there is no requirement of a twenty-four hour

advance printing.

Section 87. Roll Calls

Clear conflict with House Rules. House Rule 52 outlines

when a roll call vote may be taken and the procedure to be

utilized.

Section 88. Constitutional Conventions

Clear conflict with Joint Rules. Joint Rules 23, 24 and

25 govern the convening of a constitutional convention. They

?rovide that a convention will be held only if either branch

calls for such a session.

Section 89. Limitations on Legislation Affecting Legislative Compensation

No clear conflict, except that it appears to conflict

generally with the numerous House Rules dealing with con-

sideration of bills.

Section 90. Committee on Legislative Administration and Budget



Section 91. Limitations on Membership on the Committee on Legislative Administration and Budget



230

I 1

I ~ I I

COMPARISON OF INITIATIVE PETITION FOR RULES CHANGES TO PRESENT SENATE RULES

Section 66. Definitions.

No clear conflict

Section 67. Legislative Party Caucuses

There is presently no provision for party caucuses in the Senate Rules. The majority and minority parties conduct caucuses from time to time and do so without formal guidelines.

Does not conflict with Senate Rules.

Section 68. Caucus Chair.

~o clear ccnflict.

Section 69. Steering and Policy Committee

Clear conflict with Senate Rules. The creation of a committee on Steering and Policy Committee within each legislative party caucus would conflict with Senate Rule 12B, which established a bipartisan Senate Committee on Steering and Policy.

Section 70. Procedure to call a Leqislative Partv Caucus.

No clear conflict with Senate Rules.

Section 71. Nominations for Presiding Officers of Each Branch.

Clear conflict with Senate Rules. Senate Rule 5 prescribes the procedure for the election of the presiding officer.

Section 72. Partv Leadership Positions.

No clear conflict with Senate Rules. *May conflict with General Laws.

Section 73. Candidates for Committee Chairs.

Clear conflict with Senate Rules. Senate Rule 13 provides that the chairmen of committees shall be appointed by the President of the Senate.

Section 75. Selection of Committee Members.

Clear conflict. This section would conflict with Senate Rules l2B and 13.

231

COMPARISON OF INITIATIVE PETITION FOR RULES CHANGES TO PRESENT SENATE RULES.

Senate Rule 12B establishes a Steering and Policy Committee and sets up requirements for its membership.

Senate Rule 13 authorizes the President to appoint the chairman and name members to legislative committees. However, two positions on the Senate Committee on Ways and Means and one position on each other committee of the Senate shall be made by the Senate minority leader.

Section 76. Vacancies.

Clear conflict.

Senate Rule 5 provides for the election of a presiding officer in the case of a vacancy.

Senate Rule 13 provides forvacanciesinchair:nanship and membership o:: legislative committees.

Section 77. Removal.

No clear conflict.

Section 78. Limit of Time Allowed for Reports of Committee.

Clear conflict with Senate Rules.

Section 78(B) has an affect on Senate Rule 33 which deals with matters referred to the Senate Committee on Bills in the Third Reading. Senate Rule 33 specifies which matters are referred to the committee yet does not put a time requirement on the reoorts of said committee. Section 78(B) would recruire the Committee on Bills in Third Reading to report a matter-out within 30 calendar days.

Section 79. Discharoe bv Petition.

Clear conflict.

Senate Rule 27C establishes a discharge procedure for matters referred to the Senate Committee on Ways and Means and the Corr.rni~tee on Counties on the part of the Senate.

*Also Joint Rules on discharge procedure.

Section 80. Reports of Committees.

Clear conflict with Joint Rules. Joint Rules 10 and lOA descri~e form of committee reports. Sec~ion 80 would chanse this ?roced;.i.:-e.

232

Section 81. Recorded·votes in Committees.

This section would conflict with present practices regarding committees. There is no requirement in the rules presently for recorded votes by committees. The practice has been to allow chairmen and members of a committee to decide on its inner workings. Section 81 would conflict with present practice and precedent.

Section 82. Notice of Cormnittee Sessions.

This would conflict with present practice.

Section 83. Requirements of Eearinas.

Would conflict with long-standing practices and procedures governing committees. Nothing in Rules presently governing their internal procedures.

LEGISLATIVE PROCEDURE

Section 84. Control of Consideration of Legislative Matters.

Clear conflict. Senate Rules 26 and 27 explicitly define the course of proceedings of all legislative matters.

This section would also conflict or confuse language in Senate Rules 3, 12B and Joint Rules I, Paragraph 3, 10 and llA.

Section 85. Calendar.

Clear conflict.

Senate Rule 7 provides for the printing of a Senate Calendar and suspension of this rule is governed by Senate Rule 63. Present: there ·is no requirement that a motion to suspend Senate Rule 7 be a recorded roll call vote.

Section 85 mandates a recorded roll call vote and therefore is in conflict with the Senate Rules.

Section 86. Bills in Print.

Conflicts with present rules. This could affect Senate Rule 7 (printing of a calendar). A new draft out of a legislative committee brought into the Senate Clerk's Office at 4:30 p.m. would have to be in print within 24 hours. This would also conflict wit~ the carrying out of Senate Rule 26.

233

Section 87. Roll Calls. Clear conflict with Senate Rule 56.

Section 88. Constitutional Convention. This section appears to conflict with provisions of the Constitution.

Section 89. Limitations on Legislation Affecting Legislative Compensation.

No clear conflict.

Section 90. Committee on Legislative Administration and Budget. Clear conflict. This section would conflict with Senate Rule 12B and 13

which allows the President of the Senate to make appointments to legislative committees. Additionally, Section 90 would conflict with Senate Rule llA which entitles members of the Senate to a minimum staff allocation of three.

Section 91. Limitations on Membership on the Committee on Legisliat.'! Ad.ministration and Bud et.

Clear conflict.

This section would conflict with Senate Rules 12B, 113 .and Joint Rule I which establishes procedures for the appoint.'"D.ent!. to all legislative committees.

I

l

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~~~,.

! . ,'<i ~r~



No. 3314.

SUFFOLK COUNTY.


PLAINTIFFS,

v.


DEFENDANTS.



Brief for the Defendant-Intervenor.

JOHN M. MULLEN,

100 Franklin Street, Boston, Massachusetts 02110. ( 617) 357-9680 Counsel for Defendant-Intervenor, William M. Bulger

235

L

Table of Contents.

Statement of the issues 1

1. Principal issue 1

2. Subsidiary issues 2

Statement of the Case 3

1. Nature of the case 3

2. Course of proceedings 4

3. Statement of the facts 4

Summary of the argument 6

Argument 7

I. The Attorney General is under a constitutional mandate not to certify initiative petition 83/ 14 7

II. Initiative Petition 83/ 14 is not in appropriate form for submission to the people because it does not propose a law 8

III. Parliamentary history confirms the distinction between statute and legislative rule of procedure 11

IV. Statutes are interpreted and applied by the Judi-ciary; legislative rules are interpreted and applied by the legislative body 16

V. The enrolled bill rule 19

VI. Political question doctrine 22

VII. Plaintiffs' reliance on non-precedential state-ments in Opinion of the Justices, 375 Mass. 795, is misplaced 23

VIII. The form of initiative petition 83/14 is not appropriate for submission to the people because it relates to the excluded matter of the powers of the courts 25

237

TABLE OF AUTHORITIES CITED.

IX. It is the intent of Amendment 48 that legislative rules of procedure for each branch of the Gen-eral Court be excluded from the popular initiative 27

X. Initiative Petition 83/ 14 is fatally multiplicitous 29

Conclusion 30

Addendum 31

Table of Authorities Cited.

CASES.

American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) 3

Bakerv. Carr, 369 U.S. 186 (1962) 22, 23

Bane v. Superintendent of Boston State Hospital, 350 Mass. 637 (1966) 19

Baltimore Fidelity Warehouse Co. v. Canton Lumber Co., 118 Md. 135, 84 A. 188 (1912) 19

Brosnahan v. Eu, 31Cal.3d1 (1982) 21

Coffin v. Coffin, 4 Mass. 1 (1808) 25, 26

Davidson Building Co. v. Mullock, 212 Iowa 730, 235 N.W. 45 (1931) 19

DeLoach v. Newton, 134 Ga. 739, 68 S.E. 708 (1910) 20

Dinan v. Swig, 223 Mass. 516 (1916) 18

Ex Parte Wren, 63 Miss. 512 (1886) 20

Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 18

Fair Political Practices Commission v. California State Personnel Board," 77 Cal. App. 3d 52, 143 Cal. Rptr. 393 (1978) 29

238


Field v. Clark, 143 U.S. 649 (1862) 17, 19, 20

Fitzgerald v. Selectmen of Braintree, 296 Mass. 362 (1937) 16

Goodwin v. State Board, 212 Ala. 453, 102 S. 718 (1925) 19

Holmesv. Hunt, 122Mass. 505 (1877) 17

Ingersol v. Rollins Broadcasting of Delaware, Inc., 269A.2d217(Del. Sup. Ct.1970) 19

Kellyv. Marron, 21N.M.239, 153P. 262 (1915) 20

Lafferty v. Huffman, 99 Ky. 80, 35 S. W. 123 (1896) 20

Lamson v. Secretary of the Commonwealth, 341 Mass. 264 (1960) 9

Legislature of the State of California v. Deukmejian, 34 Cal.3d 658 (1983) 21, 22

Leserv. Garnett, 258 U.S. 130 (1922) 17

Malonev. Meekins, 60P.2d351 (Alas.1982) 24

McDonald v. State, 80 Wis. 407, 50 N.W. 185 (1891) 19, 20

Opinion of the Justices, 126 Mass. 547 (1879) 16


Opinion of the Justices, 291 Mass. 578 (1935) 9, 15


Opinion of the Justices, 375 Mass. 795 (1978) 6, 23

Pangborn v. Young, 32 N. J. L. 29 ( 1866) 20

Reilly v. Ozzard, 33 N .J. 529, 166 A.2d 360 (1960) 24, 25

Rex v. Arundal, Hobart 109 (Eng. 1616) 20

Schweizer v. Territory, 5 Okla. 297, 47 P. 1094 (1897) 19

Sears v. Treasurer and Receiver General, 327 Mass. 310 (1951) 19

;

L 239


Sherman v. Story, 30 Cal. 253 ( 1866) 20

State v. Cumberland Club, 136 Tenn. 84, 188 S.W. 583(1916) 19

State v. Brown, 33 S.C. 151, 11 S.E. 641 (1890) 19

State v. Jones, 6 Wash. 452, 34 P. 201 (1893) 20

St. Louis Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18 (1890) 19

United States v. Ballin, 144 U.S. 1 (1892) 17

Weeks v. Smith, 81Maine538 (1889) 19

MASSACHUSE'ITS CONSTITUTIONAL PROVISIONS

Mass. Const., Art. 14 (1778)

Mass. Const., Part 2, c. 1, § 1, Art. 1






Mass. Const., Amend. Art. 48, Init., Pt. II, § 1

Mass. Const., Amend. Art. 48, Init., Pt. II,§ 2

13

8

9

7,9

7,9

9

1,2,3,4

8

7,8,26,27,28 Mass. Const., Amend. Art. 48, Init., Pt. II,§ 3 7, 11, 26, 29

Mass. Declaration of Rights, Part I, Art. 20 21

FEDERAL RULES.

Fed.R.Evid. 201 (b) (2) 17

240


ENGLISH STATUTORY PROVISIONS.

Bill of Rights (1688) 12

Great Britain, The Statutes at Large (London 1761) 14

1 William and Mary, Sess. 2, c. 2 12

MISCELLANEOUS.

W. Blackstone, Commentaries (Oxford 1770) 14, 15

81 C.J.S., States,§ 39 19

C.B. Charlton, Constitutional Regulation of Legisla-tive Procedure, 21 Iowa L. Rev. 538 (1936) 20

E. Coke, Institutes (1628) 14

Common Cause, Amicus curiae brief in S.J.C. No. 1381, In the Matter of the Senate Request for an Advisory Opinion Respecting 1978 House Bill 5151 (1978) 20

Debates in the Massachusetts Constitutional Conven-tion, 1917-1918, Vol. 2, Initiative and Referendum (1918) 27

1 L. Deschler, Deschler's Precedents of the United States House of Representatives (1976) 10

General Court of Massachusetts, Legislative Procedure in the General Court of Massachusetts, revised by N.L. Pidgeon, E.B. O'Neill and W.C. Mills (Boston 1977) 5

General Court of Massachusetts, A Manual for the Use of the General Court for 1983-1984, prepared by E.B. O'Neill and R.E. MacQueen (Boston 1983) 5

General Court of Massachusetts, Rules of the Senate and Joint Rules, 1983 Session (Boston 1983) 5

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J. Hatsell, Precedents and Proceedings in the House of Commons (London 1785) 12, 14

Thomas Hobbes, Moral and Political Works (London 1750) 14

Jefferson's Manual & Rules of the House of Representa-tives of the United States 98th Congress (Washing-ton 1983) 12

John Locke, Works (London 1740) 14

K.R. MacKenzie, The English Parliament (Harmons-worth, Middlesex 1950) 11, 12

P. Mason, Mason's Manual of Legislative Procedure (1973) 15

T.E. May, Treatise on the Law, Privilege, Proceedings and Usage of Parliament 12

C.L. Montesquieu, Oeuvres (Amsterdam 1777) 14

J .R. Nolan and M.J. Connolly, Black's Law Diction-ary, (5th ed. 1979) 9

J.J. Rousseau, Du Contrat Social (Amsterdam 1771) 14

J. Selden, Opera Omnia (including dissertation on Fleta) (London 1776) 14

1 Sutherland, Statutory Construction § 7.04 (4th ed. (C.D. Sands) 1972) 17

R.J. Taylor, Massachusetts Colony to Commonwealth (1961) 13

L. Tribe, American Constitutional Law (1978) 22

Trustees of Boston Public Library, Catalogue of the John Adams Library in the Public Library of the City of Boston (Boston 1917) 14

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No. 3314.

SuFFOLK CouNTY.

MIL TON PAISNER, ET AL.,

PLAINTIFFS,

v.


DEFENDANTS.



Brief for the Defendant-Intervenor.

Statement of the Issues.

1. Principal Issue.

Whether the Attorney General properly refused to certify Initiative Petition 83/ 14 pursuant to Massachusetts Constitutional Amendment 48 on the ground that the matter proposed

243

thereby did not constitute a measure in appropriate form for submission to the people because it did not propose a law or constitutional amendment.

2. Subsidiary Issues.

Whether Initiative Petition 83/ 14 is not in appropriate form for submission to the people because:

I. The sections of the Massachusetts Constitution which provide that the Senate and the House of Representatives shall each determine their own rules of proceedings limit the lawmaking power of the General Court;

2. The sections of the Massachusetts Constitution providing that the Senate and the House of Representatives shall each determine their own rules of proceedings limit the law-making power of the people under the 48th Amendment to the Massachusetts Constitution;

3. An essential distinction exists between the form of a statute and the form of a rule of procedure for one of the branches of a bicameral legislature;

4. Legislative rules of procedure are and must be interpreted and applied by the branch of the Legislature which adopts them whereas statutes, enacted by the General Court or approved by the people, are interpreted and applied by the judiciary;

5. Were the proposals pertaining to legislative procedural rules contained in Initiative Petition 83/ 14 to be approved in the form of a purported statute, they would subvert the enrolled bill rule and would not be enforceable by the judicial department because of, among other things, the political question doctrine;

6. A distinction exists between the internal administration of each branch of the Legislature and the external activities of members of the Legislature;

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7. Statutes relating to the General Court concern activities external to the operation of the General Court whereas legislative rules of procedure determine the internal proceedings of a branch of the General Court from the introduction of a bill until its enactment;

8. A legislative rule of procedure does.not come within Mr. Justice Holmes' definition of a "law" as "a statement of the circumstances in which the public force will be brought to bear upon men through the courts'', American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909), the rule being merely directory to and not mandatory upon a branch of the General Court;

9. The petition relates to the excluded matter of the powers of the courts;

10. The petition is fatally multiplicitous.

Statement of the Case.

1. Nature of the Case.

The plaintiffs seek a declaration that Initiative Petition 83114 is in proper form and ask for an order that the Attorney General certify the petition to the Secretary of the Commonwealth (A. 3-53).

The defendants Attorney General and Secretary of the Commonwealth deny that Initiative Petition 83/ 14 is in all respects in conformity with the requirements of Amendment 48 and that the Attorney General's refusal to certify it is in error. They further answer that mandamus sought by the plaintiffs will not lie to compel the performance of a discretionary act and that the decision of the Attorney General rejecting Initiative Petition 83/ 14 may be set aside only upon a showing of bad faith or for abuse of his discretion. They also assert that

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the complaint fails to state a claim against the Secretary of the Commonwealth upon which relief may be granted (A. 54-56).

The motion of William M. Bulger, a citizen, qualified voter, State Senator for the First Suffolk District and President of the Senate of the l 73rd General Court, to be permitted to intervene was allowed by the single justice. In his answer, the defendant-intervenor denied the allegations in paragraph 8 of the complaint that Initiative Petition 83/ 14 complies with the requirements of Amendment 48 (A. 57-58).

2. Course of Proceedings.

A single justice reserved and reported the case for determination by the full court of all matters raised properly by the complaint (A. 90-91). The reservation and report was made upon the following: (1) the complaint; (2) the answers; (3) the agreed statement of facts and all exhibits attached to the motion to intervene of defendant-intervenor, William M. Bulger; and (4) the entire record of the matter before the single justice. An appendix was filed by the plaintiffs and a supplemental appendix was filed by the defendant-intervenor.

3. Statement of the Facts.

The petition for "An Act Providing for Reform of the General Court" contains twenty-three pages, exclusive of the signature pages (A. 8-30). The petition contains thirty-two sections and relates to such diverse subjects as the rules of proceedings of the Senate, the method of choosing and appointing the officers of the Senate, the rules and orders of proceedings of the House of RepresentatJves, the method of choosing and appointing the officers of the House of Representatives, legislative party caucuses, the duties of legislative committees, limitations on the method of amending the Constitution, the conduct of a

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constitutional convention, legislative compensation, the duties of the State Auditor, the duties of the Inspector General and the legislative power to amend and appeal or alter previously enacted legislation.

In declining to certify the initiative petition, the Attorney General stated that the rules of legislative·procedure are exercises of legislative power bestowed exclusively on the branch of the General Court they purport to govern and do not come within the law-making authority of the General Court and, hence, are not among the powers reserved to the people through the popular initiative (A. 67-68).

The statement of agreed facts (A. 58-59) recites that there are constitutional and statutory provisions dealing with the General Court. Proceedings in the Senate and the House are governed by formally adopted rules, by parliamentary customs and precedents and by rulings from the chair. In making rulings on matters arising in the day-to-day operation of their respective houses, the presiding officers often rely on manuals of parliamentary procedure. Many of these manuals and other material may be found in attachments to the memorandum in support of motion of William M. Bulger to intervene as a defendant submitted to the single justice on September 16, 1983. They are included in the supplemental appendix. This contains three letters from the defendant-intervenor to the Attorney General and documents attached thereto, including copies of rulings of the presiding officers of the United States House of Representatives and the speakers of the General Court, and copies of Legislative Procedure in the General Court of Massachusetts (Supp.A. Ex. 4), Rules of the Senate and Joint Rules, 1983 Session (Supp.A. Ex. 5), and A Manual for the Use of the General Court for 1983-1984 (Supp.A. Ex. 6).

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Summary of the Argument.

The Attorney General is under a constitutional mandate not to certify Initiative Petition 83/ 14. He may not certify a purported measure if it contains any subject excluded from the popular initiative. Legislative procedural rules are excluded by constitutional limitations from the legislative power of the General Court and as a consequence from the popular initiative (pp. 7-8).

Initiative Petition 83/ 14 does not propose either a constitutional amendment or a law (pp. 8-11). The essential distinction between a statute and a legislative rule of procedure is confirmed by parliamentary history (pp. 11-16). Legislative rules are interpreted and applied by the branch of the Legislature which has adopted them. On the other hand, statutes are interpreted and applied by the judiciary department (pp. 16-18).

Were the purported statute proposed by Initiative Petition 83/14 to be adopted, persons aggrieved by its application would seek relief from the courts. The enrolled bill rule would be subverted and endless uncertainty would be created concerning the validity of statutes enacted by the Legislature (pp. 18-21). The purported statute proposed by Initiative Petition 83/ 14 would be unenforceable because of the political question doctrine (pp. 22-23). Because of the essential distinction between rules regulating the internal operation of a branch of the Legislature and statutes pertaining to the external aspects of the Legislature, the reliance by plaintiffs on nonprecedential statements in Opinion of the Justices, 375 Mass. 795 (1978), is misplaced (pp. 23-25).

Since 1808, the Legislature has been considered as a court having final and exclusive cognizance of all matters within its jurisdiction. Initiative Petition 83/ 14 relates to the excluded matter of the powers of the courts.

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Observance of the enrolled bill rule wisely precludes the courts from being required to make inquiry into legislative proceedings between the introduction of a bill and its enactment as a statute. Initiative Petition 83/ 14 purports to enlarge the powers of the courts to make possible judi~ial intrusion into the internal operation of each branch of the Legislature (pp. 25-26).

The framers of Amendment 48 did not intend that the legislative rules of procedure of each branch of the General Court be included in the subject of an initiative petition (pp. 27-29). Initiative Petition 83/ 14 does not contain only subjects which are related. It is obviously the product of "log-rolling" among disparate groups with different and even conflicting objectives. It is fatally multiplicitous (pp. 29-30).

Argument.

I. THE ATTORNEY GENERAL IS UNDER A CONSTITUTIONAL

MANDATE NoT TO CERTIFY INITIATIVE PETITION 83/14.

Before a proposed initiative measure may be filed with the Secretary of the Commonwealth, the Attorney General must certify that it contains only subjects not excluded from the popular initiative. Mass. Const., Am. Art. 48, Init., Pt. 2, § 3 (Supp. A. Ex. 6, p. 117). Otherwise stated, the Attorney General may not certify a purported measure if it contains any subject excluded from the popular initiative.

Any matter concerning which there have been imposed limitations on the legislative power of the General Court is excluded from the legislative power of the popular initiative. Mass. Const., Am. Art. 48, Init., Pt. 2, § 2 (Supp.A. Ex. 6, p. 117).

The Massachusetts Constitution, Pt. 2, c. 1, § 2, Art. 7 (Supp.A. Ex. 6, p. 74) and Pt. 2, c. 1, § 3, Art. 10 (Supp.A. Ex. 6, p. 77), confirms the inherent and exclusive power of

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each branch of the legislative department to determine for itself alone its own procedural rules. These constitutional provisions impose limitations on the legislative power of the bicameral General Court. From this, it follows that the legislative procedural rule-making sections of the Constitution are limitations on the popular initiative.

The Attorney General is under a constitutional mandate not to certify a purported measure if it contains the subject of legislative procedural rules. They are excluded by constitutional limitations from the legislative power of the General Court and as a consequence from the popular initiative.

The Attorney General is under a constitutional mandate not to certify Initiative Petition 83/ 14.

II. INITIATIVE PETITION 83/ 14 IS NoT IN APPROPRIATE FoRM

FOR SUBMISSION To THE PEOPLE BECAUSE IT DOES NoT

PROPOSE A LA w.

An initiative petition must set forth either a constitutional amendment or a law. Mass. Const., Am. Art. 48, Init., Pt. 2, § 1 (Supp.A. Ex. 6, p. 116). Constitutional limitations on the legislative power of the General Court extend to the legislative power of the popular initiative. Mass. Const., Art. 48, Init., Pt. 2, § 2 (Supp.A. Ex. 6, p. 117). The legislative department is formed by two branches, a Senate and a House of Representatives, each of which has a negative on the other. Mass. Const., Pt. 2, c. 1, § 1, Art. 1 (Supp.A. Ex. 6, p. 67). When action by the General Court is required by the Constitution, each branch must act separately. Opinion of the Justices, 303 Mass. 615, 622 (1939).

No bill shall become a law until presented to the governor to approve it, veto it or to return it within ten days with his objections to the body in which it originated. Upon reconsidera-

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tion and a two-thirds vote by both houses, it may be passed over the governor's veto. Mass. Const., Pt. 2, c. 1, § 1, Art. 2 (Supp.A. Ex. 6, pp. 67-68).

The Senate shall choose its own president, appoint its own officers and determine its own rules of proceedings. Mass. Const., Pt. 2, c. 1, § 2, Art. 7 (Supp.A: Ex. 6, p. 74). The House of Representatives shall choose their own speaker, appoint their own officers and settle the rules and orders of proceedings in their own house. Mass. Const., Pt. 2, c. 1, § 3, Art. 10 (Supp.A. Ex. 6, p. 77).

Each General Court, elected for a two-year term, is a unique body which goes out of existence under the Constitution on the next day preceding the first Wednesday in January at the end of its term. Mass. Const., Am. Art. 10 (Supp.A. Ex. 6, p. 99); Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 273 (1960); Opinion of the Justices, 291 Mass. 578, 586 (1935).

A consideration of the foregoing sections of the Massachusetts Constitution leads to the inescapable conclusion that a statute, whether enacted by the legislative branch or adopted under the popular initiative, is completely different from a legislative rule of procedure. A statute has been defined as "the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state." J.R. Nolan and M.J. Connolly, Black's Law Dictionary (5th ed. 1979) at 1264-1265. A rule has been defined as an established guide set up by authority directing action or forbearance as the rules of the legislative body, of a company [or of a] court. Id. at 1195. Actions which relate to subjects of permanent or general character are "legislative." Id. at 810.

A statute enacted by the law-making power of the Legislature is of a permanent character. This is not true of legislative rules of procedure. They are transitory and ephemeral. They go out of existence upon the dissolution of a house of the General Court. They have no binding effect on a house of a

251

subsequent General Court which, at the time of its organization, is without rules. Ordinarily, the newly organized General Court adopts the rules of the preceding General Court as temporary rules. A committee is then appointed to recommend rules for the newly organized house of a new General Court (Supp.A. Ex. 4, p. 11).

The procedure in the United States House of Representatives is comparable.

At the beginning of the first session of a new Congress, the House is without the anchors of rules of procedure, electe j officers, or duly sworn Members. . . . The languag~ of the Constitution in empowering each house to determine the rules of its proceedings and to elect its officers, clearly contemplates the assembly as being a "house" before the adoption of rules or election of officers.

1 L. Deschler, Deschler's Precedents of the United States House of Representatives, at 8-9 (1976). "No specific rules of procedure are technically binding upon the House, except those required by the Constitution." Id. at 51. "The procedural rules of the preceding Congress are no longer in effect at the opening session of the new Congress, and the House proceeds under general parliamentary law until the rules are adopted." Id. at 61. "Congress may not, by rule or statute, prescribe rules of procedure for a future House." Id. at 63. "The House at any time may, by rules, provide new methods of procedure so long as such rules do not conflict with constitutional provisions." Id. at 308. "[T]he manner in which a House ... chooses to run its business ordinarily raises no justiciable controversy." Id. at 309.

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The enactment of a statute requires the concurrent bicameral action of the House and the Senate and presentment to the governor who, in this respect, is sometimes referred to as the third branch of the legislative department. Each branch of the Legislature has a negative on the other and the governor has a veto power subject to being overridClen by a two-thirds vote of the House and the Senate. A legislative rule, on the other hand, is the unicameral act of one house of the Legislature. Neither the other house nor the governor has a negative on a procedural rule adopted by a house of the Legislature.

Initiative Petition 83/ 14 is not in appropriate form for submission to the people because it does not propose a law when it includes rules relating to the internal administration of each house of each General Court.

Attached to this brief as Exhibit "A" in the addendum (pp. 31-34, infra) is a memorandum by Robert D. Webb, Esquire, Assistant Director of the Legislative Research Bureau, rebutting the plaintiffs' contention concerning the word "form" in Mass. Const., Am. Art. 48, Init., Pt. 2, § 3.

III. p ARLIAMENT ARY HISTORY CONFIRMS THE DISTINCTION BETWEEN STATUTE AND LEGISLATIVE RULE OF PROCEDURE.

In matters of procedure, the General Courts of Massachusetts are lineal descendants of the English Parliaments of the seventeenth and eighteenth centuries. The first true Parliament met at Easter, 1258 under King Henry III. K.R. MacKenzie, The English Parliament at 13 (Harmonsworth, Middlesex, 1950). The commons were included in the first General Parliament of King Edward I in 1275. Id. at 17. Over the years, usage, precedents and practice established the rights and privileges of Parliament. For example, the begin-

253

nings of the privilege of speech and debate was asserted in 1523 by the Speaker, Thomas More, later Chancellor and Saint, to whom Mr. MacKenzie dedicated his book. Id. at 35.

In the sixteenth and seventeenth centuries, procedural precedents were collected. An elaborate collection of precedents and proceedings in the House of Commons was made by John Hatsell, Clerk from 1768 to 1820. In recent years, Sir Thomas Erskine May's Treatise on the Law, Privilege, Proceedings and Usage of Parliament has been the authoritative statement of parliamentary rule and practice. Id. at 58.

The precedents of the English Parliament were well-known to the framers of the constitutions of the original states and of the Constitution of the United States. Thomas Jefferson, in compiling his Manual, which is still the basis of the procedure of the United States Congress, expressly recorded his indebtedness to Hatsell's Precedents. Jefferson's Manual & Rules of the House of Representatives of the United States 98th Congress at 111 (Washington 1983).

The English Bill of Rights (1688) confirmed the long-standing claims of each House of Parliament to exclude all outside interference within its own walls. Article 9 thereof provides that "freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." 1 William and Mary, Sess. 2, c. 2 (May supra at 50). This was merely declaratory of the law of Parliament. May, supra at 59.

Sir Thomas May wrote:

Another collective right of the House is to settle its own code of procedure. This is such an obvious right - it has never been directly disputed - that it is unnecessary to enlarge upon it except to say that the House is not responsible to any external authority for following the rules it lays down for itself, but may depart from them at its own

254

discretion. This is equally the case whether a House is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether, like a bill, it is the joint concern of both Houses.

This holds good even where the procedure of a House or the right of its members to take part in its proceedings is dependent on statute. For such purposes, the House can "practically change or practically supersede the law." Id. at 60.

On June 15, 1777, the Massachusetts House of Representatives and the Council resolved themselves into Massachusetts' first Constitutional Convention. On February 28, 1778, the Convention agreed upon a constitution and form of government for the "State of Massachusetts Bay." The Constitution was submitted to universal suffrage on March 4, 1778, but was rejected. Article 14 of the Constitution of 1778 was as follows:

The Senate and House of Representatives shall be two separate and distinct bodies, each to appoint its own officers, and settle its own rules of proceedings; and each shall have an equal right to originate or reject any bill, resolve or order, or to propose amendments in the same, excepting bills and resolves, levying and granting money or other property of the State, which shall originate in the House of Representatives only, and be concurred or nonconcurred in whole by the Senate.

R.J. Taylor, Massachusetts, Colony to Commonwealth at 56 (1961).

255

These provisions were incorporated in the Massachusetts Constitution of 1780, drafted in large part by John Adams. His manuscripts, only now in course of publication, are not expected to provide substantial additional information about his work on the Massachusetts Constitution. Most of what remains of his library is now housed in the Rare Book Room of the Boston Public Library. An examination of it indicates the sources with which he can be assumed to have been familiar. The titles are listed in the Catalogue of the John Adams Library in the Public Library of the City of Boston published by the trustees, 1917.

They include W. Blackstone, Commentaries (Oxford 1770); E. Coke, Institutes (1628); Great Britain, The Statutes at Large (London 1761); Thomas Hobbes, Moral and Political Works (London 1750); John Locke, Works (London 1740); C. L. Montesquieu, Oeuvres (Amsterdam 1777); J .J. Rousseau, Du Contrat Social (Amsterdam 1771); and J. Selden, Opera Omnia (including dissertation on Fleta) (London 1776).

It is a reasonable inference that these works were available to and consulted by John Adams at the time he was giving thought to and working on the draft of the Massachusetts Constitution. Also in the collection is J. Hatsell, Precedents and Proceedings in the House of Commons (London 1785). Although this is the second edition, an earlier work by Hatsell on the subject was published in 1776 and in all likelihood was known to John Adams.

Doubtless he had in mind observations on the "Lex Et Consuetudo Parliamenti'' by Fleta, by Sir Edward Coke, and by Sir William Blackstone, to which the defendant-intervenor referred in his Augu.st 31, 1983, letter to the Attorney General (Supp.A. 5-47).

256

As Blackstone put it:

[T]he whole of the law and custom of parliament, has its original from this one maxim, "that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudgea in that house to which it relates, and not elsewhere."

W. Blackstone, Commentaries, c. II, p. 163 (Supp.A. 16). The constitutions of several of the original states were

adopted prior to the drafting of the United States Constitution. All of them had provisions to the effect that the houses of the legislatures determine their own rules of procedure. This reflected the common understanding that a legislative assembly has an inherent right to determine its own proceedings. P. Mason, Mason's Manual of Legislative Procedure at 30-31 (1973) (Supp.A. 6-7).

In 1935, the Justices of the Supreme Judicial Court, in an opinion to the Senate and the House of Representatives, referred to the "ordinary prerogatives of a deliberative legislative body. One of these is to adopt rules for the regulation of its conduct." Opinion of the Justices, 291 Mass. 578, 583 ( 1935). Each body, a Senate or a House of Representatives, of each General Court is a "deliberative legislative body." For three centuries, in English and American jurisprudence, the prerogatives of a legislative assembly to adopt its own rules free from outside interference has been unquestioned.

Historically, there has been a clear distinction between a statute of a permanent nature with general application enacted by a legislative assembly and a procedural rule of limited and instantly terminable life restricted in its application to only one branch of a legislature.

257

That this was recognized by the framers of the Massachusetts Constitution appears from the February 22, 1781, opinion of Mr. Justice Sargeant of the Supreme Judicial Court. Opinion of the Justices, 126 Mass. 547, 550 (1879). He had been a member of the convention that framed the State Constitution a year before. Opinion of the Justices, 126 Mass. 557, 596 (1879).

In giving an opinion as to whether a settlement of valuation is an act of legislation or not, he wrote:

It appears to me not to be an act of legislation, but the framing of a rule to direct or assist in legislation. The difference between a rule and a law is this: the latter is binding, and has an obligatory force in it, and the other has not. The settlement of a valuation only binds nobody; for, while it rests there, no duty or obligation is laid on the people; and the Legislature cannot be bound by it, for they may alter or destroy it at pleasure. Therefore it appears to me to be only a rule to assist in legislation. 126 Mass. at 550.

Included as Exhibit "B" in the addendum (pp. 35-38, infra) is a table demonstrating the essential attribute of changeability of legislative procedure rules.

IV. STATUTES ARE INTERPRETED AND APPLIED BY THE JUDICIARY;

LEGISLATIVE RULES ARE INTERPRETED AND APPLIED BY THE

LEGISLATIVE Bony.

The long continued interpretation of a constitutional provision by the legislative department may be deemed to be a true construction of the Constitution. Fitzgerald v. Selectmen of

258

r,,,,~,,

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Braintree, 296 Mass. 362, 367 (1937); Holmes v. Hunt, 122 Mass. 505, 516 (1877).

If the Court were to follow the rationale in Rule 20l(b)(2) of the Federal Rules of Evidence, it could take judicial notice of the Journals of the Massachusetts Senate and the Massachusetts House of Representatives. It is apparent from an examination of these journals of each of the houses that from their origins they have interpreted the constitutional provisions pertaining to rules of legislative procedure as giving each house exclusive power to interpret, apply, amend, repeal or suspend the operation of the rules of that house. Examples are to be found in the extracts from the House Journals which appear in the supplemental appendix at 31-32 and 45-47. Examples of rulings by the Chair of the United States House of Representatives appear in the supplemental appendix at 34-45. See also Exhibit "C", infra at 39-52, which contains random pages from the Journal of the Massachusetts Senate of the year 1981. Among other things, these excerpts contain a listing of 99 rulings on points of order made by the chair in the course of only one of the two years of the life of the 1981-1982 Senate.

The houses of both the United States Congress and the General Court have consistently taken the position that the houses by statute or joint resolution cannot bind or restrict themselves or their successors as to the procedure to be followed in the passage of legislation. 1 Sutherland, Statutory Construction § 7.04 at 264 (4th ed. (C.D. Sands) 1972). The manner in which a house chooses to run its business ordinarily raises no justiciable controversy. Field v. Clark, 143 U.S. 649 (1862); United States v. Ballin, 144 U.S. 1 (1892); Leser v. Garnett, 258 U.S. 130, 137 (1922).

In United States v. Ballin, 144 U.S. 1 (1892), the United States Supreme Court stated:

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore con-

259

stitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just .... The power to make rules is . . . within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

More recently, the Circuit Court for the District of Columbia observed:

[W]here constitutional rights are not violated, there is no warrant for the judiciary to interfere with the internal procedures of Congress . . ..

The strong and long standing principle of judicial abstention into the actions of the legislature demands that the courts, "avoid the possibility of unwarranted interference with a coordinate branch of government" . . ..

Courts should refrain from creating "needless friction" with a coordinate branch of government . . ..

Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C. Cir. 1978), cert. denied, 441 U.S. 943.

The language of the Supreme Judicial Court concerning the power of each branch of the Legislature to pass upon the election and qualifications of its members is applicable to the power of each branch to determine its rules of proceedings. "The power ... iS vested exclusively in each branch of the General Court ... the grant of power is comprehensive, full and complete." Dinan v. Swig, 223 Mass. 516, 517 (1916).

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v. THE ENROLLED BILL RULE.

The overriding reason why the proposal for a purported statute determining the conduct of the business of a house of the Legislature is not in form appropriate for submission to the people is the enrolled bill rule. The em:olled bill rule, one of the purposes of which is to provide stability in the law, is the Massachusetts rule. Bane v. Superintendent of Boston State Hospital, 350 Mass. 637, 638 (1966). In that case, the petitioner had contended that a statute was enacted in violation of a senate rule. The Supreme Judicial Court held that "the statute cannot thus be impugned in a court of law. Field v. Clark, 143 U.S. 649, 672. Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 321. Weeks v. Smith, 81 Maine 538, 547. 81 C.J.S., States, § 39."

The reason for the enrolled bill is the "need for having a specific place to which a citizen may turn to find out precisely what the legislative body has done, and upon which he may rely." Ingersol v. Rollins Broadcasting of Delaware, Inc., 269 A.2d 217, 220 (Del. Sup. Ct. 1970).

An enrolled bill which bears the signature of the presiding officers of both houses and the governor and filed in the office of the Secretary of the Commonwealth is the exclusive and conclusive proof and evidence of the text of the law as announced in such bill. This was referred to as the majority rule in Davidson Building Co. v. Mullock, 212 Iowa 730, 235 N.W. 45 (1931), which cited Schweizer v. Territory, 5 Okla. 297, 47 P. 1094 (1897); McDonald v. State, 80 Wis. 407, 50 N.W. 185 (1891); State v. Brown, 33 S.C. 151, 11 S.E. 641 (1890); St. Louis Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18 (1890); Goodwin v. State Board, 212 Ala. 453, 102 S. 718 (1925); Baltimore Fidelity Warehouse Co. v. Canton Lumber Co., 118 Md. 135, 84 A. 188 (1912); State v. Cumberland Club, 136 Tenn. 84, 188 S.W. 583 (1916).

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Clyde B. Charlton stated that wherever courts have been able, without disregarding some express mandate of the Constitution, to weigh the relative evidentiary values of the enrolled bill rule and the journal, the vast majority have chosen to accept the former. C.B. Charlton, Constitutional Regulation of Legislative Procedure, 21 Iowa L. Rev. 543 ( 1936). Rex v. Arundal, Hobart 109 (Eng. 1616); Field v. Clark, 143 U.S. 649 (1862); Pangborn v. Young, 32 N.J.L. 29 (1866); State v. Jones, 6 Wash. 452, 34 P. 201 (1893); Sherman v. Story, 30 Cal. 253 (1866); Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123 (1896); Kelly v. Marron, 21 N.M. 239, 153 P. 262 (1915); DeLoach v. Newton, 134 Ga. 739, 68 S.E. 708 (1910); Ex parte Wren, 63 Miss. 512 (1886).

As was stated in McDonald v. State, 80 Wis. 407, 412, 50 N.W. 185 (1891), when an act has been passed in accordance with constitutional requirements, no inquiry will be permitted to ascertain whether the two houses of the Legislature have or have not complied with their own rules of procedure on the bill between its introduction and final passage. The presumption is conclusive that they have done so. No adjudications have been found where a court has declared an act of the Legislature void for noncompliance with the rules of procedure made by itself or the respective branches thereof and which it or they may change or suspend at will.

Were the purported statute which the plaintiffs seek to have imposed upon the government of Massachusetts to be adopted, persons aggrieved by its application would seek relief from the courts. Were this to occur, endless uncertainty would be created concerning the validity of statutes pertaining to bond issues, criminal offenses, titles to property transferred by action of the Legislature and a host of other matters.

A simplistic solution suggested in Common Cause's amicus curiae brief in S.J .C. No. 1381, In the Matter of the Senate Request for an Advisory Opinion Respecting 1978 House Bill

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5151 (1978) at 34, that such a purported procedural statute could be repealed or amended by another statute enacted by the Legislature would require the presentment of the latter statute to the governor for his action or inaction and involve him in legislative rule-making.

No one can with assurance predict what the reaction of the Senate and House of the l 74th General Court of 1985-1986 would be to the problems presented if the purported statute proposed by Initiative Petition 83/ 14 proves unworkable, as it clearly would. There is precedent for the bodies of the General Court to ignore it. Possibly, the new Legislature would examine its power under the Massachusetts Declaration of Rights, Part I, Article 20, to suspend the operation of such a statute. Of course, this would result in an undesirable state of affairs, the creation of which would be attributable to there having been placed on the ballot a proposal which, all things considered, is not in the form of a "law" as the term was intended by the_l917-1918 Constitutional Convention.

The attention of the Court is respectfully directed to the recent California case of Legislature of the State of California v. Deukmefian, 34 Cal. 3d 658 (1983).

In its opinion, the court referred to the following passage from Brosnahan v. Eu, 31 Cal. 3d 1, 4 (1982):

As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.

34 Cal. 3d at 666. The court then stated that where the requisite showing of invalidity has been made, departure from the general rule is compelled.

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After carefully considering the briefs and oral argument, the court said: "(W]e have concluded that a 'clear showing of invalidity' has been made. There seems little reason in law or in policy for keeping that conclusion a secret." Id. at 667.

For whatever relevance it may have, it should be apparent that in the light of the precedents, little effort would be required to make a "clear showing of invalidity" of this unduly long, complicated and confusing proposal. If the diverse and conflicting purposes of the proponents are to be achieved, they should be accomplished by other well-established means.

VI. POLITICAL QUESTION DOCTRINE.

Although it has been asserted, for example in L. Tribe, American Constitutional Law at 71-79 (1978), that the "political question doctrine is in a state of some confusion," the criteria set forth in Baker v. Carr, 369 U.S. 186, 217 (1962) are helpful in defining the issues in this case. They are the following:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by ':'arious departments on one question.

For three centuries, each branch of a bicameral legislature has had the final say in determining its proceedings. All the

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criteria in the Baker case are applicable to a controversy relating to the interpretation and application of the legislative rules of procedure. There is a constitutional commitment of the question to a coordinate political department; there is a lack of judicially manageable standards for resolving it; the policy determinations are of a kind clearly for non-judicial discretion; an attempt at an independent resolution would be impossible without expressing lack of respect to the Legislature; there is need for adherence to the political decision integrated into a statute; and multifarious pronouncements by different departments of the government would be, to say the least, embarrassing.

VII. PLAINTIFFS' RELIANCE ON NoN-PRECEDENTIAL STATEMENTS

IN THE Opinion of the Justices, 375 MASS. 795 (1978) IS MISPLACED.

In Opinion of the Justices, 375 Mass. 795, 817 (1978), it is asserted that "the General Court is free to exercise its constitutional rule-making power through the legislative process." This Opinion of the Justices was issued on April 27, 1978. The order requiring an opinion of the justices had been transmitted to the court on March 23, 1978. In the amicus curiae brief submitted by Common Cause in connection with the opinion of the justices sought in the spring of 1978, it was stated that the sections of the Massachusetts Constitution pertaining to the power of each branch of the Legislature to establish its own rules of proceeding "plainly apply only to the day-to-day procedures in the two houses." Common Cause Brief, supra at 32. Common Cause's brief went on to assert that the 1978 initiative petition would establish a general law governing individual conduct by all high level public officials and candidates for office, including legislators.

Common Cause's 1978 brief thus made an important distinction between rules regulating the internal operation of a

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branch of the Legislature and statutes pertaining to the external aspects of the Legislature. Two comparatively recent cases illustrate the distinction.

In Malone v. Meekins, 60 P.2d 351 (Alas. 1982), the House of Representatives of the Alaska State Legislature removed the existing Speaker and selected a new one. After a reorganization of the House with respect to leadership and committee assignments, the former Speaker, with other representatives, sought a declaration that the removal and replacement of the former Speaker was illegal and unconstitutional. In response to the claim that the removal of the Speaker violated the Legislature's rules of procedure, the Supreme Court of Alaska ruled that any violation of the Legislature's own rules governing subject-matter notice in connection with the election of a Speaker did not give rise to a justiciable claim.

In response to a contention that a statute providing reasonable public notice be given for meeting of a legislative body required that subject-matter notice of such meetings be given, the court held that this was nonjusticiable. The court said that the statute

relates solely to the internal organization of the legislature, a subject which has been committed by our constitution to each house. Insofar as compliance with such statute is concerned, we believe that a proper recognition of the respective roles of the legislature and the judiciary requires that the latter not intervene.

Id. at 356. In contrast to the Malone case is a 1960 New Jersey case. In

Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360 (1960), the Supreme Court of New Jersey was faced with the question as to whether a state senator was barred from holding the office

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of township attorney because of incompatibility either because of statute or because of common law. With respect to a possible prohibition by statute, the court said that the Senate did not have "exclusive authority to deal with the external activities of its members. . . . [I]t appropriateJy rests within the jurisdiction of the whole Legislature to legislate upon the subject and within the jurisdiction of the Judiciary to enforce such restraints as statutes or the common law may validly prescribe." Id. at 364.

These two cases demonstrate the clear distinction implied in Common Cause's 1978 brief between a rule or even a procedural statute governing the internal organization of a branch of the Legislature and a statute relating to the external activities of members of the legislative body.

Legislative proceedings from the filing of a bill to its enactment are entirely within the control of the houses of the Legislature. Activities having an aspect external to the Legislature may be the subject of a statute enacted concurrently by both branches of the Legislature together with the involvement of the action or inaction of the governor, sometimes described as the third branch of the Legislature. Generally speaking, this is the type of statute to which the plaintiffs made numerous references in their brief.

VIII. THE FoRM OF INITIATIVE PETITION 83/14 IS NoT APPRO

PRIATE FOR SUBMISSION TO THE PEOPLE BECAUSE IT RELATES

TO THE EXCLUDED MATTER OF THE POWERS OF THE COURTS.

In Coffin v. Coffin, 4 Mass. 1, 34 (1808), the Court, through Chief Justice Parsons, said:

I consider the House of Representatives not only as an integral branch of the legislature and as an essential part

267

of the two houses in convention, but also as a court having final and exclusive cognizance of all matters within its jurisdiction, for the purposes for which it was vested with jurisdiction. It has jurisdiction of the election of its members; of the choice of its officers; of its rules of proceeding; and of all contempts against the house, either in its presence, or by violating the constitutional privileges of its members. When the house is proceeding as a court, it has, exclusively, authority to decide whether the matter before it be or be not within its jurisdiction, without the legal control of any other court. As to contempts, the house proceeds against the offender to punish the contempt.

"No measure that relates to ... the powers, ... of courts .. shall be proposed by an initiative petition , ... " Mass.

Const., Art. 48, !nit., Pt. 2, § 2 (Supp.A. Ex. 6, p. 116). The Attorney General may not certify that the measure is in

proper form for submission to the people unless "it contains only subjects not excluded from the popular initiative." Mass. Const., Am. Art. 48, !nit., Pt. 2, § 3. To the extent that the branches of the Legislature or either of them have been determined by the Supreme Judicial Court to be a "court," Initiative Petition 83/ 14 does not contain "only subjects not excluded from the popular initiative." Id.

Under the enrolled bill and other applicable provisions of law, the courts are precluded from making inquiries into the proceedings of a legislative body intermediate the introduction of a biU and its enactment as a statute. In that the purported statute proposed by Initiative Petition 83/ 14 promotes such inquiry, it relates to 'the "powers . . . of courts" Mass. Const., Am. Art. 48, !nit., Pt. 2, § 2, and is a measure that is excluded from being proposed by an initiative petition.

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IX. IT IS THE INTENT OF AMENDMENT 48 THAT LEGISLATIVE

RULES OF PROCEDURE FOR EACH BRANCH OF THE GENERAL

COURT BE EXCLUDED FROM THE POPULAR INITIATIVE.

On July 23, 1917, the committee on the initiative and referendum of the Massachusetts Constitutional Convention 1917-1918 reported a resolution to provide for establishing the initiative and referendum. This resolution provided in part as follows:

[T]he Secretary of the Commonwealth shall submit such proposed law to the people at the next State election; and if it shall be approved by a majority of the qualified voters voting thereon, such proposed law shall, subject to the provisions of the Constitution, become law, and shall take effect in thirty days after such State election or at such time after such election as may be provided in such law.

Debates in the Massachusetts Constitutional Convention, 1917-1918, Vol. 2, Initiative and Referendum at 4 (1918).

On September 14, 1917, a perfecting amendment was adopted which struck from the language quoted above the words "subject to the provisions of the Constitution" and added after the word "law" at the end of the quoted material the words "provided that the limitations of the legislative power of the General Court in the Constitution shall extend to the legislative power of the people as exercised hereunder." (Emphasis added.)

Ultimately, the language adopted by the amendment was included as the last paragraph of Amendment 48, lnit., Pt. 2, § 2, "Excluded Matters," as follows: "The limitations on the legislative power of the General Court in the Constitution

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shall extend to the legislative power of the people as exercised hereunder."

Mr. Joseph Walker of Brookline, who had moved the perfecting amendment, gave as his reason for doing so the following:

It is intended to make the measure explicit on this point. The gentleman from Winchester suggested the limitations of the Constitution applying to the legislative power of the General Court would be removed if we simply allowed the people to pass laws, that those limitations to the power of the General Court would not apply to the people. That was not the original intention in drawing the resolution, and although there are lawyers in the Convention who think that amendment is not necessary, still, in making the matter perfectly explicit I thought it was wise . . . . It simply applies the limitations now on the legislative power of the General Court to the legislative power of the people as exercised under this measure.

Id. at 648-649. The meaning of the last paragraph of Amendment 48, Init.,

Pt. 2, § 2, on "Excluded Matters" is plain. The intent of the framers of Amendment 48 to the Massachusetts Constitution is clear. It was not to be within the scope of the popular initiative to propose a statute on a matter excluded from the lawmaking power of the General Court by constitutional limitations as contained in the provisions relating to the legislative rule-making power .of each branch.

"Powers, obligations and rights bestowed or declared by the Constitution may not be amended, modified, or derogated by statute, whether that statute is adopted by the Legislature or

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the initiative method." Fair Political Practices Commission v. California State Personnel Board, 77 Cal. App. 3d 52, 56, 143 Cal. Rptr. 393, 396 (1978).

X. INITIATIVE PETITION 83114 IS FATALLY MuLTIPLICITous.

The Attorney General is precluded from certifying that an initiative measure is in proper form for submission to the people unless it contains only subjects which are related. Mass. Const., Am. Art. 48, Init., Pt. 2, § 3. The subjects embraced in Initiative Petition 83/ 14 are not all related to the legislative process. They are not all related to the compensation of members of the General Court. They are not all related to the conduct of a political caucus. They are not all related to the duties of the Inspector General. They are not all related to the duties of the State Auditor. There is no single matter to which all the subjects of Initiative Petition 83/ 14 can be said to be germane.

The requirement that the initiative petition contain subjects which are related is directed at the practice of "log rolling." This is the practice of including in one statute unrelated subjects, inducing voters to vote for all, notwithstanding they might not have voted for all if statutes had been submitted separately.

It is apparent from an examination ofthe lengthy and cumbersome statute proposed by Initiative Petition 83/ 14 that it is the product of "log rolling" among disparate groups. Those concerned with spending limitations seek reduction of compensation of members of the branches of the Legislature. Those seeking inordinate representation of minorities in the legislative bodies are concerned with procedural rules. Those aspiring to political party reform have had included provisions relating to party caucuses.

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The act proposed by Initiative Petition 83/ 14 contains unrelated subjects which on the face of it appears to have been proposed by groups with disparate and e\;:-n conflicting objectives. It is fatally multiplkitous.

Conclusim.

A declaration should be entered that the Attorney General properly refused to certify Initiative Petition 83/ 14, pursuant to Massachusetts Constitutional Amendment 48 on the ground that the matter proposed thereby did not constitute a measure in appropriate form for submission to the people because it did not propose a law or constitutional amendment, and the complaint should be dismissed.


JOHN M. MULLEN, 100 Franklin Street,

Boston, Massachusetts 02110. (617) 357-9680

Counsel for Defendant-Intervenor, William M. Bulger

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Addendum.

The Attorney General, before certifying that a measure is in proper form

for submission to the people, must look to the substantive content of the measure.

The word "form," as used in Amendment, Article 48, !nit., Part II, s. 3,

is to be construed not in the common, everyday sense of the word but according to

its peculiar and appropriate meaning in law. General Laws, c. ~' s. 6, paragraph 4

states the rule for construing statutory words and phrases:

Words and phrases shall be construed according to the cOlllllon and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning.

The Supreme Judicial Court cited this statute in a 1943 decision and de-

clared therein that it is a rule binding on the courts:

The statutory rule that words and phrases in a statute shall be construed according to common and approved language, but that technical words and phrases and others which have acquired pecu-1 iar and appropriate meanings in law shall be construed according to such meanings, is binding on the courts. G.L. (Ter. Ed.) c. 4, s. 6. Nichols v. Commissioner of Corporations and Taxation, 314 Mass. 285. See also Opinion of the Justices, 313 Mass. 779 (1943) and Corcoran v. s. s. Kresge Co., 313 Mass. 299 (1943).

That the word "form" has acquired a peculiar and appropriate meaning in

lsw is illustrated by the definition of the term "form" in Black's Law Dictionary

(5th Edition, 1979) as follows:

A model or skeleton of an instrument to be used in a judicial proceeding, or legal transaction, containing the principal necessary matters, the proper technical terms or phrases, and whatever else is necessary to make it formally correct, arranged in proper and methodical order, and capable of being adapted to the circumstances of the specific case. (p. 586)

Although there are nonsubstantive elements in the above definition of

the term. (proper technical language, arrangement, adaptability), those are secon-

dary and tertiary parts of the whole definition. The primary part of the definition

is the language which states that the instrument contains "principal neceuary ltlllt-

ters." To determine if the model of an instrument, i.e., in this case the initiative

measure, is in "proper form," it is necessary to look further than at the mere

273

arrangement of words, or at the order of their presentation, or at their technical

usage. What is most important in the certifying function is to examine the "prin-

cipal necessary matters" of the measure, i.e., the heart or substance of the

measure. Otherwise, it would be impossible to determine whether the measure is

a proposed law within the terms of Amendment 48, or an excluded matter, or some-

thing else altogether. To argue otherwise is to ignore the statutory rule of con-

struction in the General Laws and the court's own acknowledgment that it is bound

by that rule. The Supreme Court of the United States has recognized the distinc-

tion between the legal meaning given to a term and the everyday sense of a term:

The law uses familiar legal expressions in their familiar legal sense rather than in their everyday sense. Bradley v. ) U.S., 410 u.s. 605, 93 s. Ct. 1151, 35 L. Ed. 2d 528 (1977).

The "form of the statute'' has a familiar sense in the lfl'W which differs

from a common interpretation of the phrase. Black's Law Dictionary contains a spe-

cial definition of the te-rm "Form of the Statute" which clearly incorporates sub-

stance and intent:

This expression means the words, language or frame of a statute, and hence the inhibition or command which it may contain; ••• (At p. 586)

The word "form" does not lose its peculiar sense in law simply because it

appears in a constitution rather than a statute. The Constitution is a legal in-

strument, the fundamental law of the Commonwealth. Moreover, there is persuasive

evidence that the Convention which drafted Amendment 48 was fully aware of the pecu-

liar sense of the word "form" as used in the language of the Amendment. The

Honorable Robert Luce, A.M., LLD, an authority on representative government who

served as a member of the Massachusetts General Court, as a member of the Governor's

Council (as Lieutenant Governor), as a delegate to the Constitutional Convention,

and as a member of the Congress of the United States, discusses problems related to

274

the drafting of measures to be submitted by use of the Initiative in his treatise,

Legislative Principles (Houghton Mifflin Company, Boston, 1930). At pp. 577-582,

Luce makes several references to defective dra~smanship, repeatedly using the

word "form" to describe the substantive content of the proposal. For example, at

p. 578, Luce writes, "Mere blemishes in point of form would be no very grave matter.

Serious trouble begins when the form fails to express the intent. Even the most

carefully drafted statutes, a~er all the labor spent on them in the processes of

a legislative assembly, are constantly vexing our courts with problems as to their

meaning. *** More dangerous still is the possibility that the form may express

and yet conceal the intent. A skillful draftsman, perverting his capacities to

base ends, can by the adroit use of language achieve purposes that the words would

never suggest to the ordinary voter, whose ballot may therefore accomplish precisely

the opposite of what he intends." Luce cites specific examples of instances of

Initiative measures so poor in dra~smanship or so irresponsible in preparation

that the resulting proposals submitted to the voters constituted either fraud,

confusion or embarrassment in purposes achieved. (Oregon and Colorado initiative

petitions described on p. 5800)

Mr. Luce's discussion of "form" and the pitfar s that poor form can pro

duce immediately precedes his statement on p. 581 that "the Massachusetts Convention

took another step, commendable though short, by a provision that a measure shall be

submitted to the Attorney General for certification that it is in proper form for

submission to the people." Luce was obviously not referring to the mere arrange

ment of words and phrases in a measure but rather to the substantive content of a

measure that the Attorney General must certify to be in proper form.

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Conclusion

The word "form" as used in the amendment, when scrutinized as a legal term,

is susceptible to a much broader interpretation and application than an everyday sense

of the term. Statutory and case law, as well as historical evidence, support the

argument that the word "form" should be interpreted not in the everyday sense of the

term but in its familiar legal sense which encompasses "substance" as opposed to mere

order and arrangement of language.

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Sources of Massachusett1 Senate Rules in Effect on September 14, 1983, Giving Dates of Original Adoption and of Amendments,

Which Demonstrate llRpermanent Nature of Legislative Procedural Rules•

Date Rule Numbers

1817 2, 11, 18, 28, 29, 30, 32, 33, 34, 37, 39, 41, 42, 43, 44, 45, 52, 53, 54, 56, 63

1821-1826 2, 13, 26, 46, 53

1826 3

1830 35

1831 1, 2' 4-, 5' 12, 13, 18, 34, 39, 40, 42, 46, 54, 55, 58

1836 12, 14, 28, 29, 30, 32, 33, 37

1837 49, 57

1S37 54

1840 12

1841 28, 29, 30, 32, 37, 45, 54, 63

1844 12, 17, 44, 46, 54, 57

1845 3i

1847 12, 59, 62

1848 63

1852 55

1853 31, iO

1857 17

1858 19, 53, 62

li59 28, 2g, 30, 32' 37' 52

1862 4

1863 !2, 14

li64 12

1865 4

*I nforrnation derived from General Court of Massachusetts, Rules of the Senate and Joint Rules, 1913 Session, Boston 1983 (SA S) anaTrom !enate Journals.

277

1870 12, 15, 35, 46, 52, 61

1871 15, 27, 39, 44

1874 52

1875 61

1876 12

1877 54

1878 28, 29' 30' 32, 37

1880 17

1881 23, 28, 29, 30, 32

1882 6, 7, 9, 12, 16, 17' 23, 27' 28, 29, 30, 31, 33, 34, 37, 46, 47, 50, 51, 52, 54, 62, 63

1884 48

1885 5' 12' 15' 16, 17' 24, 26, 28, 29, 30, 32, 37' 38, 46, 52, 53

1886 12, 41, 61

1887 27

1888 1, 2, 4, 5, 6, 7, 12, 13, 14, 16, 17, 18, 19, 23, 27, 31, 33, 34, 36, 40, 44, 45, 46, 48, 53, 55, 56, 60, 63

1889 17

1890 15, 26, 29, 33

1891 12, 16, 19, 20, 24, 26, 33, 36, 53, 58, 61, 63

1893 16, 19, 20, 63

1894 20

1895 61, 62

1896 12, 27, 61

1897 12, 26, 30, 61

1898 61

278

r ;

1899 63

1902 53

1904 13A

1907 61

1909 61

1911 59

1913 13A

1914 33, 34, 59, 61

1916 20, 61

1919 33, 34, 36, 49

1920 12

1921 13A, 15' 20. 27. 30, 46

1925 20, 33, 59, 61

1927 20, 33

1929 33

1931 49

1933 20

1937 12, 52

1939 12, 15, 20, 30, 46

1941 12, 27, 52

1945 7, 12, 15, 20, 26' 30. 33' 46

1946 12, 27, 53

1947 17, 27, 36

1953 13A, 20, 27, 63

1957 12

1960 12

1963 12, 20. 27. 62

279

1965

1967

1968

1969

1971

1972

1973

1974

1975

1976

1977

1978

1982

1983

12' 33' 34' 36

16, 20, 27' 33, 34

27, 36

12

4, 5, 5A, 7, 12, 15, 16, 20, 24, 27, 30, 31, 34, 36, 42, 46, 50, 54, 56

12, 17, 18, 56

5A, 7B, 13, 16, 18, 19, 20, 24, 39, 43A, 63, 64

7, 27A, 27B

7A

9A

10, lOA

12A

12

llA, 12A, 12B, 13, 24, 27C, 33, 34, 38A, 57A

280

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Random Pages From the Journal of the Massachusetts Senate of the Year 1981 1 llustrating Some Aspects of the Legislative Process. (Note 99 Rulings on Points of Order During the First Year of the Two-Year Life of the Senate)

THE

JOURNAL OF THE SENATE

Of THE YEAR

1981

PRINTED BY ORDER OF THE SENATE AND IN ACCORDANCE WITH

THE PkO\llSIOl"S OF SECTION 10 OF CHAPTER S OF THC GENERAL LAWS

BOSTON EAGLE GRAPHICS, INC., LEGISLATIVE PRINTERS

30 LANCASTER STREET

281

SA

President's Address.

President's Address ordered printed.

Mrs. Marv Bulger arid children. etc.

Hon. Paul D. Harold.

Clerk.

Temporary Senate Rules.

JOURNAL OF THE SENATE,

States. In fact. we have recently been informed that ours is the lowest unemployment rate of the Nation's industrial states.

Personal income in Massachusetts has been increasing at a rate faster than the national average. The growth in State spending -which once achieved new highs in real dollars every year - has been below the inflation rate for the past two years. And the tax burden on our citizens actually declined in 1979 and again in 1980.

Much of what has been accomplished has been made possible by an excellent working relationship with the Administration. By working together toward a shared goal of improving the quality of life in Massachusetts, we have curbed spending. cut taxes, and developed an economic climate that has increased income and reduced unemployment. We can take pride and encouragement from that record.

And so we face this new session with confidence. Whatever differences - philosophical or partisan - may exist among us, we all subserve the same fundamental purpose: to do the public's business in the public's interest. In that spirit we shall meet and resolve ,the challenges of 1981.

On motion of Mr. Foley, the address of the President was ordered printed in the Journal of the Senate.

Distinguished Guests.

There being no objection, the President introduced his wife, Mary, and their children Brendan. Christopher, Kathleen. Mary and Sarah Jean; his sister, Jean Holland; former-Senator John H. Fitzpatrick, and Dan Holland, who were seated in the President's gallery.

Qualifiarion of Senator. The Honorable Paul D. Harold did this day, before the Governor

and Council, take and subscribe the oath of office as State Senator from the Norfolk Senatorial District.

Ms. Buckley moved that the Senate proceed to the election of a Clerk and that the President cast one ballot for Edward B. O'Neill of Hanover as Clerk of the Senate; and this motion prevailed.

Accordingly, the ballot was cast and Mr. O'Neill was declared elected, and was then qualified by taking the oaths and affirmation as prescribed by the Constitution and also the following oath. which was administered by the President: -

"Wh<re•1. you. Edward B. O'Neill. arc cho•<en Clerk ol 1hc Senalc ol 1hc Common-.callh ol Massachu~ctts. you do swear tha1 you will truly C'ntC'r all the vote~ and ordC"r~ lhC"reol. and in ;.ill I hong• rcl•tong to your office lh•t you woll •Cl l•ithl ully •nd 1mpart1ally accord in~ to your he't '"ill •nd judgment. So help you. God.-

On motion of Mr. Foley, -Ordered, That the rules of the Senate of last year be observed as the

temporary rules of the Senate for the present General Court.

282 :~

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WEDNESDAY, JANUARY 7, 1981.

Mr. Lewis moved that the Senate proceed to the election of a Sergeant-at-Arms and that the President cast one ballot for Charles M. McGowan of Dedham as Sergeant-at-Arms on the part of the Senate; and this motion prevailed.

Accordingly, the ballot was cast and Mr. McGowan was declared elected on the part of the Senate.

On motion or Mr. Foley. -Ordered. That. until the President may otherwise direct. the provi

sions of Senate Rule 4 as relates to the appointment of a Chaplain shall be suspended, and that the duties of said office shall be performed in such a manner as the President may direct.

On motion of Mr. Foley. -

Sergeant· at· Arma.

Chaplain.

9A

Ordered. That a committee of three be appointed to notify His Exellency the Governor and the Honorable Council of the organization of the Senate; and that the Honorable William M. Bulger of the First Suffolk District has been elected President of the Senate, and Edward B. O'Neill of Hanover has been elected Clerk of the Senate.

Organization uf the Stonate.

Senators Fonseca of Bristol, Parker of Bristol and Pollard of Essex were appointed the committee.

Subsequently. Mrs. Fonseca, for the committee. reported that the committee had performed the duties assigned to it. The report was accepted and the committee was discharged by the President.

On motion of Mr. Folev. -Ordered. That a commit"te~ of six be appointed to notify the House Id.

of Representatives of the organization of the Senate; and that the Honorable William M. Bulger of the First Suffolk District has been elected President of the Senate. and Edward B. O'Neill of Hanover has been elected Clerk of the Senate.

Senators Boverini of Essex. Owens of Suffolk, Maclean of Bristol and Plymouth. Buckley of Plymouth, Buell of Essex and Middlesex and Kirby or Plymouth were appointed the committee.

Subsequently, Mr. Boverini. for the committee, reported that the committee had performed the duties assigned to it. The report was accepted and the committee was then discharged by the President.

On motion ot Mr. Folev. --Ordered, That the Clerk.be directed to notify the House of Repre

sentatives of the election. on the part of the Senate, of Charles M. McGowan of Dedham, as Sergeant-at-Arms or the General Court.

Subsequently. notice w:.is received from the Huu5e that Charles M. McGowan of Dedham had been elected Sergeant-:.it-Arms on the part of the House.

On motion of Mr. Folev. -Ordered, That the Joint Rules of last vear be observed as the

temporary Joint Rules of the two branche!> of the pr.:sent General Court.

Sent to the House for com:urrrnce.

283

Serl(eant· at-Arm•.

Temporar:-i Jo111t Rules.

~·=---~-----~--.,

976

Last week of sessiow.

Supplemental aprropriation bil.


Doane, Paul V. Hall, Roben A. Kirby, Edward P.

Amick. Carol C. Bachrach, George Backman, Jack H. Buckley, Anna P. Burke, John P. D'Amico, Gerard Doris, Francis D. Foley, Daniel J. Harold, Paul D. King, John G. Lewis, Arthur Joseph, Jr.

YEAS.

Bill Owens (present), Peter C. Webber (present), Roben C. Buell (present).

YEAS.

NAYS.

Locke, David H. Parker, John F. - S.

LoPresti, Michael, Jr. Maclean, William Q., Jr. McGovern, Patricia McKenna, Denis L. McKinnon, Allan R. Olver, John W. Pollard, Sharon M. Reilly, Manin T. Sisitsky, Alan D. Timilty, Joseph F. Walsh, Joseph B. - 22.

PAIRED.

NAYS.

Mary L. Fonseca. Louis P. Benonaui. Philip L. Shea - 6.

ABSENT OR NoT VOTING.

Atkins, Chester G. Boverini, Walter J. Brennan, John A., Jr.

Burke, Edward L. Rotondi, Samuel Wetmore, Robert D. - 6.

The yeas and nays hning been completed at u•en minutes before four o'clock P.M., the motion to suspend the rule was negativt!d.

Under the rule, the resolutions were referred to the committeoe on Rules.

Order.

Mr. Locke offered the following order, to wit: -Ordered, That, in respect to procedure under Senate Rutes 24 awd

53, the period commencing forthwith be considered the last week of the session.

At th~ request of Mr. Locke, under the provisions of Senate Rule 24, the order was postponed, without question, 11ntil the nn.t session.

PAPERS FROM THE HOUSE.

A Bill making appropriations for the fiscal year ending June the thirtieth, nineteen hundred and eighty-one to provid~ for s~P.~ menting certain existing appropriations and for certain new act1v1t• and projects (House, No. 7085, - on House, No. 6994, in part) (Representative Switzler of Wellesley dissenting), - was read and. under Senate Rule 27, referred to the committ~ on Ways and Means.

284

r I I

r

(

TUESDAY, JULY 21, 1981.

Subsequently, Ms. Buckley, for the said committee, reported, rccommendin1 that the biU ought to pass [Estimated cost: S 1,994,-714.00].

The rules were suspended, on motion of Ms. Buckley, and the tHll wu read a second time. .

Mr. Locke moved that the bill be amended by inserting after Section 2, the following Section: -

"SECTION 2A. The General Court hereby apologizes to those loyal employees for whom compensation is provided in this Act for the inexcusable delay in effecting passage of legislation providing for their compensation and expresses its appreciation for their dedication to the public good in the performance of their duties without compensation."

After remarks, on motion of Mr. Locke, a call of the yeas and nays was ordered on this question.

Mr. Foley arose to a point of order which, being stated, was that the amendment goes beyond the scope of the bill for the reason that its language would properly be that of a resolution and not that of a measure proposing legislation.

The President ruled that the point of order was well taken; and accordingly, the amendment was laid aside.

The bill was then ordered to a third readin1. The ruin were suspended, on motion of Mr. Foley, ancl the bill was read a third time and passed to be en1rossed, in concurrence.

Ms. Buckley moved that this vote be reconsidered; and, there beint ne objection, on furtller motion of the Hme Senator, the motion to reconsider was considered forthwith and was negativ~d.

, Reports Of the committee on Local Affairs, ought NOT to pass (under

Joint Rule 10), on so much of the message from His Excellency the Governor recommending legislation relative to streamlining and coordinating the regulatory process in the Commonwealth (House, No. 6566) as relates to allowing certain consolidated public Marinas by cities and towns of the Commonwealth (App. H);

Of the same committee, ought NOT to pass (under Joint llt.ule 10), on so much of the message from His Excellency the Governor recommend int legislation relative to streamlining and coordinating the regulatory process in the .Commonwealth (House, No. 6566) as relates to providing for a uniform time period for required local land use action relative to public hearings, decisions, and appeals (App. l); and

Of the same committee, ought NOT to pass (under Joint Rule 10), on so much of the message from His Excellency the Governor recommending legislation relative to streamlining and coordinating the regulatory process in the Commonwealth (House, No. 656(;) as relates to the review authority of the l!luilding Code Commission over related specialized codes (App. J);

Of the committ~ on State Administration, ought NOT to pass (under Joint Ruic 10), on so much of the recommendations of the

285

Point of order.

Well taken.

Motion to reconsider ne6atiued.

Public hearings,con90lidalle.

977

Land uee a<:tion -appeals, et.c.

Building Code CominiHion.review authority.

Division of Regi&tration.-

1146

Re1olve laid before · Governor.


An engrossed Resolve providing for an investigation by the Judicial Council relative to radiation and hazardous wastes (see House, No. 6944) (which originated in the House), having been certified by the Senate Clerk to be rightly and truly prepared for final passage, was passed and, with the above-named bills, was signed by the President and laid before the Governor for his approbation.

Orders of the Day.

The Orders of the Day were considered, as follows:

Trun companiea, The House Bill relative to the authority of trust companies to make - inve1tmenta. certain investments (House, No. 6535), - was considered; and it wu

passed to be engrossed, in concurrence.

AcWlhnet,liq uor lice nae.

Second readin1 bill a.

Credit union employee11,penaion plan.

Educational COii.a,- local appropriation1.

Bevera1e container1,recyclin1 · and reuae.

The House Bill authorizing the town of Acushnet to grant an additional license for the sale of all alcoholic beverages not to be drunk on the premises to Frank E. Harrington and Alfred H. Bonville (House, No. 7051 ), - was considered; and it was ordered to a third read in&. The rules were suspended, on motion of Mn.Fonseca, and the bill was read a third time and passed to be engrossed, in concurrence.

Bills Relative to the deposit of certain public monies in certain banks

(Senate, No. 2156); Extending the school building assistance program (House, No. 63); Further regulating the examination procedure for engineers and

firemen by the Department of Public Safety (House, No. 252); and Authorizing the Department of Environmental Quality Engineer

ing to grant licenses to the Boston Water and Sewer Commission for the construction of a sewer interceptor in Fort Point Channel and Boston Harbor (printed in House, No. 5314);

Were severally read a second time and ordered to a third readins.

The House Bill relative to the Credit Union Employees Retirement Association pension plan (House, No. 462), - was read a third time and passed to be engrossed, in concurrence.

The House Bill prohibiting a city or town from allocating appropriations for educational costs (House, No. 3 706, changed) (title changed - 8.T.R.), - was read a third time and passed to be engrossed, in concurrence, with the amendment previously adopted by the Senate.

Sent to the House for concurrence in the amendment.

The motion that the Senate reconsider the vote by which, at the preceding session, it had ordered to a third reading the House Bill providing for economic incentives for consumers to return u~cd beverage containers and to encourage the conservation of materials and energy through the recycling and reuse thereof (House, No. S 180. amended), - was considered; and, after debate, the question thereon

286

I

' I I I I

MONDAY, SEPTEMBER 28, 1981. .r

was determined by a call of the yeas and nays, at twenty-one minutes before two o'clock P.M., on motion of Mrs. Fonseca, as follows, to wit (yeas I I - nays 19): -

Bcrtonazzi, Louis P. Buckley, Anna P. Burke, John P. Doris, Francis D. Fonseca, Mary L. Kirby, Edward P.

Atkins, Chester G. Bachrach, George Backman, Jack H. Brennan, John A., Jr. Buell, Robert C. Burke, Edward L. Doane, Paul V. Hall, Robert A. Harold, Paul D. King, John G.

YEAS.

John F. Parker, Daniel J. Foley,

YEAS.

NAYS.

Lewis, Arthur Joseph, Jr." McKenna, Denis L. Reilly, Manin T. Shea, Philip L. Walsh, Joseph B. - 11.

LoPresti, Michael, Jr. McGovern, Patricia McKinnon, Allan R. Olver, John W. Owens, Bill Pollard, Sharon M. Rotondi, Samuel Webber, Peter C. Wetmore, Robert D. - 19.

PAIRED.

NAYS.

Walter J. Bovcrini (present), William Q. Maclean, Jr. (present),

David H. Locke (present). Gerard D'Amico (present). Joseph F. Timilty. Carol C. Amick - 8.

ABSENT OR NOT VOTING.

Sisitsky, Alan D. - I.

The yeas and nays having been completed at thirteen minutes before two o'clock P.M., the motion to reconsider was negatived.

The rules were suspended, on motion of Mr. Olver, and the bill was read a third time, its title having been changed (8.T.R.) so as to read as follows: "An Act providing for economic incentives for consumers to return used beverage containers and to encourage the conservation of materials and energy through the recycling and reuse of such containers."

Mr. Doane moved that the bill be amended in section 2, by adding, after the definition of "Reuseable beverage container", contained in lines 29 to 32, inclusive, the following definition: -

"Special Dealer'', any person except a vending machine operator who sells beverages in beverage containers in not more than two stores in the commonwealth, neither of which contains more than twenty-five hundred square feet of floor area, including retail and storage area;" and by adding after the word "returned", in line 47, the following: - "; provided, that a special dealer may accept from any person during business hours any such empty beverage container so sold by him within the past sixty days and shall pay such person the refund value of each beverage container returned. Such special dealer

287

1147

SUPPLEMENT AL INDEX 1919

Points of Order:

Raised by Mr. Brennan, that a matter which hu finally been rejected cannot be admitted under the color of an amendment SJ 63; rulin1 (Well taken and the amendment wu laid aside) SJ 63.

Raised by Mr. Foley, that the motion, to lay on the table the Senate Resolutions urging the retention of the United State District Attorney, wu a dilatory motion SJ 64; ruling (Well taken and the motion

wu laid aside) SJ 64.

Raised by Mr. McKenna, that the amendment, offered by Mr. Locke to the Sen1tc Bill relative to the

appointment of an inspector general, went beyond the scope of the petition SJ 89; ruling (Well taken and the amendment wu laid aside) SJ 90.

Raised by Mr. Hall, that Senator Hall was standing asking to be recognized before the roll call was put on concurring in the reference to the commince on Federal Financial Assistance of the House Resolutions memorializing the President and Congress of the United States to withdraw support for the military junta in El Salvador SJ 240; ruling (NOT well taken) SJ 240.

Raised by Mr. Hall, that the motion, moved by Mr. Sisitsky to lay on the table the Senate Bill opening

certain juvenile court records to inspection by the public, was a dilatory motion SJ 275; ruling (NOT well taken) SJ 275.

Raised by Mrs. Fonseca, that the amendment, offered by Mr. Brennan le. the House Bill relative 10 improvins the economic stability of the alcoholic beverage industry, went beyond the scope of the petition upon which the bill is based SJ 281: ruling (Well taken and the amendment was laid aside) SJ 282.

Raised by Mr. Locke, 1ha1 under the rules, the Senate Resolutions requesting the Governor, the Auditor and the Attorney General 10 reaffirm. by their immediate appointment of an Inspector General, our mutual commitment to the re-establishment ofa healthy climate for the conduct of the public business in Massachusetts, must be reported by the comminee on Rules no later than the fourth legislative day succeedins the day of their deposit with the commillee SJ 366; ruling (Well taken) SJ 367.

Raised by Mr. Bachrach, that the committee on Rules was in violation of the Senate Rules (sec previous entry), and that the Resolutions should be reported by the commincc and laid before the Senate SJ 367; rulin& (Well taken and the President directed the committee on Rules 10 report the resolutions) SJ 367.

Raised by Mr. Boverini, that the proposed amendment, offered by Mr. Kirby to the House Bill relati,·e lo improving the economic stability of the alcoholic beverage industry, would no1 subs1an1ia!ly change the greater part of the pending bill and therefore, Senate Ruic 31 was not applicable SJ 380; ruling

(Well taken and the amendment wu NOT laid over until the next se55ion) SJ 380.

Raised by Mr. Parker. that the amendment. offered by Mr. Sisitsky 10 the Senate Bill making appropriations for the fiscal year nineteen hundred and eighty-one to provide for supplementing

certain existing appropriations and for certain new a<tiv1ties and projects, went beyond the scope of the petition upon which the bill is based SJ ~26; ruling (NOT well taken as it was not seasonably raised) SJ 426.

Raised by Mrs. Fonseca. that the amendment, offerccl by Mr. Olver 10 the Senate report un the petition of Markham H. Lyons for legislation to introduce a new and more effecti' e bud@ctin~ procedure. went beyond the scope of the petition SJ ~H; ruling (Well taken and the amendment was laid aside) SJ 434.

Raised by .'.Ir. Locke, that a motion 10 lay on the table had been negatived and no other business had been transacted since that time, therefore. a further motion to lay on the table was not in order SJ 486; ruling (SOT well taken as new information had come to the auention of the Cha1r) SJ 487.

Raised by \.!rs. Fonseca. that the motion to postpone further action on the Senate Bill permitting judges to impose minimum periods of custody in ju ... emlc cases. ""as improper as it is a sub~1d1ary motion

10 a subS1diary motion SJ SJS; ruling (SOT "-<II taken) SJ 535.

Raised by \.!rs. Fonseca. 1ha11he motion. 10 po.ipune fun her action of the Senate Bill ;iermining judges 10 impose minimum periods of custody in juvenile cases. was Jda1ory1n natur< SJ 535; ruling (SOT

well taken) SJ 535 Raised by '.Ir. Sisitsky, that the motion. muved by Mr. Parker to lay on the table the Scn3te Bill reducing

the time for entry of 1udgemen1 of divorce absolute, was dilatory in nature SJ SS4; ruling (SOT "ell

taken) SJ 554.

Raised by '.Ir. Parker, that the motion. moved by Mr. Sirnsky 10 lay on thc table the Senlle Bill reducing the time for entry of 1udgemcnt of divorce absolute. "'as dilatory in na1ure SJ 56 7; ruling I Wdl ia•cn

and the motion was laid »ide) SJ 567.

288

1920 SUPPLEMENTAL INDEX

Raised by Mn. Fonseca, that the amendment. offered by Mr. Sisitsky to the Senate Bill reducina the time for entry of judgement of divorce absolute, would not substantially change the greater pan of the pending bill and therefore, Senate Rule 31 is not applicable SJ 567; ruling (NOT "Nell taken) SJ

568. Raised by Mr. Sisitsky, that the motion, moved by Mrs. Fonseca to lay on the table the Senate Bill

reducing the time for entry of judgement of divorce absolut~. wu dilatory in nature SJ 587; ruling (NOT well taken) SJ 587.

Raised by Mr. Hall, that the amendment, offered Ms. Pollard to the pending new draft of the Senate report of the committee on Public Safety, ought NOT to pass on the petition to ban certain private handguns. was out of order, u it was not moved at the proper time SJ 588; rulina (NOT well taken) SJ 588.

Raised by Mr. Hall, that the Senate Rule 31 is not applicable to the aforementioned amendment SJ 588; ruling (Well taken and the amendment wu not laid over) SJ 588.

Raised by Mr. Brennan, that the substitute bill, offered by Ms. Pollard to the aforementioned repon, goes beyond the scope of the petition SJ 588; ruling (NOT seasonably raised) SJ 588.

Raised by Mr. Hall, that the amendment, offered by Mr. Backman to the Senate Bill requiring public high schools to provide lists of its graduates to the local armed services recruiting offices, went beyond the scope of the petition upon which the bill is bucd SJ 591; rulina (Well taken and the amendment was laid aside) SJ 592.

Raised by \.fr. Hall, that the amendment, offered by Mr. Backman to the Senate Bill requiring public high schools to provide lists of its graduates of the current year to the local armed services recruiting offices, would not substantially change the greater pan thereof of the pending bill and, therefor. Senate Rule 31 is not applicable SJ 630; ruling (Well taken and the amendment wu not laid over) SJ 630.

Raised by Mr. Hall, that the motion, moved by .. fr. Edward L. Burke to lay on the table the aforementioned Senate Bill, was dilatory in nature SJ 630; rulin1 (NOT well taken) SJ 630.

Raised by Mr. Brennan, that the motion. moved by Mr. Backman to lay on the table the House Bill relative to finance charges on certain balances under open credit plans and revolving credit agreements, was not renewable at this time because it wu dilatory in nature SJ 693; rulina (Well taken) SJ 694.

Raised by Mrs. Fonseca, that the amendment, offered by Mr. Backman to the Senate Bill rcquirin1 public high schools to provide lists of certain graduates of the current year to armed services recruiting offices, would not substantially change the arcater part of the pending bill and therefore, Senate Ruic 31 is not applicable SJ 723; ruling (Well taken and the amendment was not laid over) SJ 723.

Raised by Mr. Hall. that the motion to lay on the table the aforementioned Senate Bill, moved by Mr. Rotondi, was dilatory in nature SJ 723; ruling (Well taken and the motion was laid aside) SJ 723.

Raised by Mrs. Fonseca, that the amendment. offered by Mr. Edward L. Burke to the aforementioned Senate Bill, would not substantially change the greater part of the pend in a bill and therefore, Senate Rule 31 is not applicable SJ 723; ruling (Well taken and the amendment was not laid over) SJ 723.

Raised by Mr. Hall, that the amendment. offered by Mr. Backman to the Senate Bill requiring public high schools to provide lists of certain graduates of the current year to armed services recruitin1 offices, would not substantially change the greater part of the pendina bill and therefore, Senate Rule 31 is not 3pplicablc SJ 725; ruling (NOT well taken) SJ 725.

Raised by Mr. Hall, that the amendment. offered by Mr. Backman to the aforementioned Senate Bill, was dilatory in nature SJ 725; ruling (Well taken and the amendment was laid aside) SJ 725.

Raised by Mr. Hall. that the motion. moved by Mr. Backman to postpone furthrr consideration of the Senate Bill requiring public high schools to provide lists of certain graduates of the current year to the local armed services recruiting offices. was dilatory in nature SJ 758; rulin1 (:-:OT well taken) SJ 758.

Raised by \.fr. Backman. that the amendment, offered by Mr. Doris to the proposed Senate Ways and Means new tnt to the House Bill making appropriations for the fiscal year nineteen hundred and eighty-two, for the maintenance of the departments, boards. commissions, institutions and certain activities of the Commonwealth. for interest, sinking fund and serial bond requirements and for certain permanent impro,·ements. was unconstitutional because it is beyond the power of the Senate to delegate 1ts powers to the committee on Ways and Means SJ 807; ruling (Beyond the province of the Chair and therefore. NOT well taken) SJ 807.

Raised by Mr. Sisitsky. that the amendment. offered by Mr. Locke to the Senate Bill to broaden protections against convictions obtained from uncorroborated testimony of immun1Zcd. accomplice,

289

SUPPLEMENTAL INDEX 1921

and otherwise suspect testimony, would not substantially change the greater part of the pendina bill

and therefore, Senate Rule 31 is not applicable SJ 893; ruling (NOT well taken) SJ 893.

Raised by Mr. Sisitsky, that the motion, moved by Mr. Brennan to lay the aforementioned bill on the

table. was dilatory in nature SJ 893; ruling (NOT well taken) SJ 894.

Raised by Mr. Foley, that the resolutions, offered by Mr. Sisitsky condemning Senator Chester G.

Atkins for his intransigence in refusing to accept a one-twelfth budget, were in violation of Senate Ruic 39 SJ 932; ruling (Well taken and the resolutions were laid aside) SJ 932.

Raised by Mr. Foley, that the resolutions, offered by Mr. Sisitsky deploring the refusal of the Senate

to accept a one-twelfth budget, were not seasonably raised SJ 933; rulin1 (Well taken and the resolutions were laid aside) SJ 933.

Raised by Mr. Backman, that the amendment, offered by Mr. Hall to the House Resolutions

memorializing the Congress of the United States to enact a "jobs with peace" budget, would not

substantially change the greater part of the pending resolutions and therefore Senate Rule 31 may

not be applied to this amendment SJ 969; ruling (NOT well taken) SJ 969.

Raised by Mr. Foley, that the amendment, offered by Mr. Locke to the House Bill makin1

appropriations for the fiscal year cnding June the thirtictlt, nineteen hundred and eighty-one to

provide for supplementing certain existing appropriations and for certain new activities and projects,

goes beyond the scope of the bill for the reason that its langua1e would properly be that of a resolution )

and not thal of a measure proposin1 legislation SJ 977; ruling (Well taken and the amendment was laid aside) SJ 977.

Raised by Mr. Kirby, that Section S of the House Bill increasing certain licensing fees in cities and towns

had been previously considered in this session SJ 995; ruling (Not seasonably raised) SJ 99S.

Raised by Mr. Timilty, that the resolutions, offcred by Mr. Locke calling for a prompt end of the currcnt

session of the Lcgislature, were out of order inasmuch as there is an identical resolution now pending

before the Senate SJ 1033; ruling (Well taken and the resolutions were laid aside) SJ 1033.

Raised by Mr. Backman. that the motion, moved by Mr. Hall to lay on the table the House Resolutions

memorializing the Congress to enact a "jobs with peace" budget, was dilatory in nature SJ I 074; ruling

(NOT well talr.cn) SJ 1074.

Raised by Mr. Brennan. that the motion, moved by Mr. Sisitslr.y to lay on the table the matter of the Senate Bill providing for restricting the conversion of rental housing to condominiums and

"oopcratives, was dilatory in nature SJ 1221; ruling (NOT well taken) SJ 1221.

Raised by Mr. Foley, that thc Senator from Hampden and Hampshire, Mr. Sisitsky, was not spcakin1

on the subject matter under debate SJ 1224; ruling (Well taken) SJ 1224.

Raised by Mr. Foley, that the Senator from Hampden and Hampshire, Mr. Sisitslr.y. was in violation

of Senate Ruic 39. having interjected personalities into the debate SJ 1224; ruling (Well taken) SJ

1224.

Raised by Mr. Foley, that the Senator from Hampden and Hampshire. Mr. Sisitsky, was in violation

of Senate Ruic 39, having interiected personalities into the debate SJ 1224; ruling (Well taken) SJ

1224.

Raised by Mr. Foley. that the Senator from Hampden and Hampshire, '-'Ir. Sisitsky, was not speaking

on the subject matter under debate SJ 1224; ruling (Well taken) SJ 1224.

Raised by Mrs. Fonseca. that the motion, moved by Mr. Sisitsky to lay on the table the matter of the

House Bill relative to the distribution or possession with intent to distribute phencychdine. was

improper at this time SJ 12_28; ruling (Well taken and the motion was laid aside) SJ 1228.

Raised by Mr. Olver. that the motion, movcd by Mrs. Fonseca to lay on the table rhe matter of the House Bill prm.1ding for economic incentives for consumers to return used beverage containers and

to encourage the conservation of materials and energy through the recycling and reuse of such

containers. was dilatory in nature SJ 1229: ruling (Wcll taken and the motion was laid aside) SJ 1229.

Raised by Mrs. Fonseca. that the amendment, olTcred by Mr. Locke ro rhe Senate Bill authorizing the

use of d1agnost1c pharmaceutical agents by certain optometrists, would not substantially change the

greater part thereof of the pending bill and therefore, Senate Ruic 3 I i• not applicable SJ 1244. ruling

(Well taken and the amendment was not laid over) SJ 1244.

Ra1Sed by Mrs. Fonseca. that the amendment. offered by Mr. Locke to the Senate Bill authorizing the

use of diagno5ti" pharma"eutical a~ents by certain optometrists, was frivolous in nature SJ 12 77; ruling

(Well taken and the amendment was laid aside) SJ 1278.

Raised by Mrs. Fonseca, that the amendment, offered by Mr. Locke ro the Senate Bill authorizing the

use of d1agn0St1c pharmaceutical agents by certain optometrists, would not substantially change the

290


greater part thereof of the pending bill and therefore, Senate Rule JI is not applicable SJ 1278; rulin1 (Well taken and the amendment was not laid over) SJ 1278.

Raised by Mr. Sisitsky, that it is the duty of the Chair to maintain order and decorum and that the

Chair is engaged in sublime dialogue and not maintainina order SJ 1291; rulin1 (that the duty of the Chair is 10 maintain order and decorum, and the point of order is NOT well taken) SJ 1291.

Raised by Mr. Foley. that the Senator from Hampden and Hampshire. Mr. Sisitsky, was cnga1in1 in harrassing tactics SJ 1293; ruling (Well taken) SJ 1293. •

Raised by !Vlr. Foley, that the Senator from Hampden and Hampshire, Mr. Sisitsky, was not speakin1

on the subject under debate SJ 1293; ruling (Caution the Senator to confine his remarks to the subject matter under debate) SJ 1293.

Raised by Mr. Edward L. Burke, that the amendment, moved by Mr. Locke to the Senate Bill providina for the use of marihuana in therapeutic research, would not substantially chan1e the areater part thereof of the pending bill and therefore, Senate Ruic 31 is not applicable SJ 1303; ruling (NOT well taken and the amendment wu laid over) SJ I 303.

Raised by Mr. Timilty, that the motion, moved by Mr. Hall to lay on the table the Senate Bill providing for res1rictin1 the conversion of rental housing to condominiums and cooperatives. was dilatory in nature SJ 131~; ruling (NOT well taken) SJ 1314.

Raised by !Vlr. Hall. that the Senator from Hampden and Hampshire. Mr. Sisitsky, was out of order SJ 1334; ruling (:-iOT specific enough and therefore NOT well taken) SJ 1335.

Raised by :loir. Foley, that no new information relative to the conduct of the Presiding Officer has become available which would warrant the renewal of a motion to declare the Chair vacant, and therefore, the motion moved by Mr. Sisitsky to declare the Chair vacant is out of order SJ I JJS; ruling (Well taken and the motion was laid aside) SJ 1335.

Ra1Sed by Mr. Foley, that the motion. moved by Mr. Sisitsky to lay on the table the engrossed Bill further regulating the fee for a license to operate an automatic amusement device, was dilatory in nature SJ 1335; ruling (NOT well taken) SJ 1336.

Raised by Mr. Foley. that the Senator from Hampden and Hampshire, Mr. Sisitsky, had not been recognized to speak SJ I J.13; ruling (Well taken) SJ 1343.

Rai•ed by Mr. Timilty, that the motion, moved by Mr. Owens to lay on the table the Senate Bill providing for restricting the conversion of rental housing lo condominiums and cooperatives. was dilatory in nature SJ 1360; ruling (NOT well taken) SJ 1360.

Raised by Mr. Parker, that the amendment. offered by Mr. Backman to the Senate Bill to limit the

transfer of \lassachusel!s prisoners lo federal prisons, goes beyond the scope of the petition upon ,. hich the bill is based SJ 1397; ruling (NOT well taken) SJ 1397.

Raised by Mr. Wetmore, that the amendment. offered by Mr. Kirby to the House Bill relative to the

transportation of goods on Sunday, goes beyond the scope of the petition upon which the bill is based SJ I J99: ruling (Well taken and the amendment was laid aside) SJ I 397; ruling dppealed and decision

sustained SJ I ~00. Raised by \.fr. Wetmore, that the motion. moved by Mr. Kirby to postpone further action on the House

Bill relative to the transportation of goods on Sunday until November 4, was dilatory in nature SJ 1~00; ruling (SOT well taken) SJ 1.ioo.

Raised by .\fr. Backman. that the motion. moved by Mr. Hall to lay on the table the Senate Bill ending the investment of public pension funds in firms doing business in South Africa. was dilatory in nature SJ 1419; ruling (SOT well taken) SJ 1419.

Raised by \.frs. Fonseca. that the amendment. moved by \.fr. Backman to the Senate Bill to limit the transfer of \lassachusetts prisoners to federal prison•. went beyond the scope of the petition upon which the bill is based SJ l ~ 19; ruling (:-.JOT well taken) SJ I~ I 9

Raised by .\frs. Fon>eca. that the amendment. moved by \Ir. Backman to the Senate Bill to limit the transfer of \la;sachusetts prisoners to federal prisons, would not substantially .:hange the greater part ni the pending bill. and therefore. Senate Rule JI is not applicable SJ l-' 19: ruling (Well taken and

the amendment was not laid o•er) SJ I -'20. Ra"ed by .\Ir BJckman. that the motion. moved by \1rs. Fonseca to lay on the table the Senate Bill

to limit the transfer of \.1as~achusetcs prisoners to federal prisons. was ouc of order since no intervening

business and nu .:hanges m the bill had tJken place since the previous motion to lay on the table SJ 1~55; ruling (\\ell taken and the Inlltiun was laid asido) SJ 1~55.

Ra"ed by \1r. Badman, that the motion. moved by \1rs. Fonseca to lay on the table the Senate Bill to limit the transfer of :\fassachusetts prisoners to federal prisons, was dilatory m nature SJ 1456:

291

•


rulin& (NOT well taken) SJ 1456.

Raised by Mr. Backman, that the motion, moved by Mr. Hall to lay on the table the Senate Bill endin1

the investment of public pension funds in firms doing business in South Africa, was dilatory in nature SJ 1471; rulin1 (NOT well taken) SJ 1471.

Raised by Mr. Edward L. Burke, that the time for debate had expired on the motion to reconsider the vote by which the Senate adopted an amendment to the engrossed Bill funhcr regulatin1 racing days in the Commonwealth SJ 1490; ruling (Well taken) SJ 1490.

Raised by Mr. Backman, that the amendment, offered by Mr. Hall to the proposed new text to the Senate

Bill ending the investment of public pension funds in firms doing business in South Africa, would not substantially change the greater part of the pending bill and therefore, Senate Rule JI is not applicable SJ 1499; ruling (NOT well taken) SJ 1499.

Raised by Mr. Backman. that the amendment, offered by Mr. Hall to the proposed new text to the Senate Bill ending the investment of public pension funds in firm• doing business in South Africa, wu dilatory in nature SJ 1499; ruling (NOT well taken) SJ 1499.

Raised by Mr. Parker, that the amendment. recommended by the Senate committee on Ways and Means to the Senate Bill governing the selection and management of jurors in Middlesex County and authorizing the expansion of the Middlesex County juror system to all counties in the Commonwealth,

wu out of order under Senate Ruic 50, since it had previously been disposed of by the Senate SJ I 544; ruling (NOT well taken) SJ I 544.

Raised by Mr. Edward L. Burke, that the proposed amendment, offered by Mrs. Fonseca to the Senate

Bill to expand medical care for nursing home residents, would not substantially change the greater part of the pending bill and therefore, Senate Rule 31 was not applicable SJ I 563; ruling (NOT well taken) SJ I 563.

Raised by Mr. Shea, that the motion to postpone, moved by Mr. Sisitsky, was dilatory in nature SJ 1571; ruling (NOT well taken) SJ 1571.

Raised by Mr. Lewis, that the motion to postpone, moved by Mr. Sisitsky, was dilatory in nature SJ 1571; ruling (Well taken and the motion was laid aside) SJ 1571.

Raised by Mr. Boverini, that the Senator from Hampden and Hampshire, Mr. Sisitsky, was not speaking on the question under debate SJ 1572; ruling (Well taken) SJ 1572.

Raised by Mrs. Fonseca, that the amendment, offered by Mr. Locke to the House Bill authori%ing chiropractors to perform certain procedures, was frivolous in nature SJ 1616; ruling (NOT well taken) SJ 1616.

Raised by Mr. Foley, that the Senator from Hampden and Hampshire, Mr. Sisitsky. was not speaking on the subject matter currently before the Senate SJ 1626; ruling (Well taken and the Senator was cautioned to confine his remarks to the subject matter currently before the Senate) SJ 1626.

Raised by Mr!. Fonseca, that the amendment. recommended by the Senate committee on Ways and Means to the Senate Bill amending the farmland assessment law, went beyond the scope of the petition upon which the bill is based SJ 1629; ruling (Well taken and the amendment was laid aside) SJ 1629.

Raised by Mrs. Fonseca. that the bill reported by the Senate committee on Ways and Means (in part) making corrective changes in the tax laws, went beyond the scope of the original petition SJ 1630; ruling (Well taken and the bill was laid aside) SJ 1631.

Raised by Ms. Pollard. that the amendment, offered by Mr. Parker to the Senate Bill to promote conservation of electricity and gas and to require economic rates for residential consumers of electricity and gas, would not substantially change the greater part thereof of the pending bill and

therefore. Senate Ruic 31 is not applicable SJ 1650: ruling 1Well taken and the amendment was not laid over) SJ 1650.

R3ised by Ms. Pollard, that the amendment. offered by \.1r. Parker to the Senate Bill to promote ~onservation of electricity and gas and to require economic rltes for residential consumers of

<lectricity and gas. would not substantially change the greater part thereof of the pending bill and therefore, Senate Ruic JI is not applicable SJ 1650; ruling (Well taken and the •mendment \loas not laid over) SJ 1650.

Raised by Mr. Sisitsky. that the Senator from Bristol .. \fr. Parker, was not speaking on the subject matter before the Senate SJ I 651.

Raised by Mr. Sisitsky. that the Senator from Bristol. Mr. Parker. was attacking the civility of a member SJ 1651

Ra1Sed by Mr. Parker. that an amendment Similar to the one offered by \Ir. Le"'"· had prcv10usly been disposed of SJ 1653; ruling (NOT well taken) SJ 1653.

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Raised by Mr. Parker, that the amendment, offered by Mr. Wetmore to the Senate Bill adju.stina the compensation of the Senate and Hou.w chairmen of the committee on Taxation, went beyond the scope of the petition upon which the bill i1 bued SJ 16'3; rulina (Well taken and the amendment wu laid aside) SJ 16Sl.

Raised by Mrs. Fonseca, that the amendment, moved by Mr. Sisittky to the Senate Bill relative to the tax laws of the Commonwealth, went beyond the scope of the bill SJ 1678; rulin1 (Well taken and the amendment wu laid aside) SJ 1678.

Raised by Mrs. Fonseca, that the Senator from Hampden and Hampshire, Mr. Sisiuky, was not spcakina on the subject matter currently before the Senate SJ 1697; rulina (Well taken) SJ 1697.

Raised by Mn. Fonseca, that the Senator from Hampden and Hampshire, Mr. Sisiuky, was not spcakin1 on the subject matter currently before the Senate SJ 1698; rulina (Well taken) SJ 1698.

Raised by Mr. Lewis, that the Senator from Hampden and Hampshire, Mr. Sisittky, was not spcakin1 on the subject matter currently before the Senate SJ 1701; rulina (NOT well taken) SJ 1701.

Raised by Mr. Lewis, that the Senator from Hampden and Hampshire, Mr. Sisitsky, was not spcakina on the subject matter currently before the Senate SJ 1701; rulina (NOT well taken) SJ 1702.

Raised by Mr. Shea. that the remarks of the Senator from Hampden and Hampshire, Mr. Sisiuky, were dilatory in nature SJ 1703; rulina (NOT well taken) SJ 1703.

Raised by Mrs. Fonseca, that the motion, moved by Mr. Sisiuky to discharge the committee on Rules of the two branches. acting concurrently, from the further consideration of the Senate petition of Alan 0. Sisiuky for legislation to repeal proposition two and one-half, so-called, was out of order as the Senate had previously acted on a similar matter SJ 1734; ruling (Well taken and the motion was laid aside) SJ l 7J.4.

Raised by Mr. LoPresti, that the amendment, moved by Mr. Kirby to the House Bill relative to the sale of the Lincoln power station to the San Marco Hou.sina Corporation. went beyond the scope of the petition upon which the bill is based SJ 1771; rulina (Well talr.en and the amendment was laid aside SJ 1771.

Raised by Mrs. Fonseca, that the new draft. recommended by the Senstc committee on Ways and Means rclatina to fiscal reforrn in the cities and towns of the Commonwealth. went beyond the scope of the petitions upon which the bills arc based SJ 1810; rulina (NOT well taken) SJ 1810.

Raised by Mr. Parker, that Section 28 of the report of the committee on conference of the disagrceina votes of the two branches with reference to the Senate amendment to the House Bill making appropriations for the fiscal year endina June thirtieth, nineteen hundred and eighty-two to provide for supplementina certain new activities and projects, contains subject-matter which was not a part of the matters of difference between the two branches SJ 1817; ruling (Where one branch has passed upon a matter and forwarded it to the other. the latter is. as a rule, bound to receive it and act upon it out of courtesy between the branches and therefore, the point of order was NOT well taken) SJ 1817.

Raised by Mr. Locke, that the aforementioned report was in violation of Section 7 of Chapter 29 of the General Laws in that Sections 9 through 36 of the report contained matters other than appropriations and, therefore, these sections should be laid aside SJ 1817; ruling (No point of order has been raised relative to a violation of the rules. and the question was one of legality) SJ 1817.

Points of parliamentary inquiry. Raised by Mr. Hall, asking whether the body can vote to prevent the Senator from Hampden and

Hampshire, Mr. Sisitsky, from harrassing and interrupting members of the s~natc SJ 1293; (that it is the duty of the Chair to maintain order and decorum. and that the Chair can invoke disciplinary measures, and members may use points of order, and that the Chair has and will continue to allow wide latitude) SJ 1293.

Raised by Mr. Owens, asking when it is proper for a motion to print remarks in the Journal of the Senate to be made SJ 1294; (As soon as possible after the remarks arc made) SJ 1294.

Raised by Mr. Sisitsky. inquiring if wide latitude should be allowed on a motion to vacate the Chair SJ IJJS; (~o greater latitude than usual is allowed) SJ I JJS.

Raised by Mr. Sisitsky. asking how much time docs the Senator from Middlesex, Mr. McKenna, have left for debate SJ 1342; (Eight minutes) SJ 1342.

Raised by Mr. Lewis, ask in a if there 1s any way the Senate could contend with a member who constantly disrupts the proceedings of the Senate with unsubstantiated allegations SJ 1343; (sec journal) SJ I 343.

Raised by Mr. Sisitslr.y, inquiring as to the requirements of Senate Ruic S2 SJ I 538. Raised by ~fr. Sisitsky. inquirin& if it is rn order for a member to move suspension of Senate Rule 52

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at this time SJ 1'38; (answered in the ne1ative) SJ I '38.

Raised by Mr. Sisitsky, inquirin1 if it is in order to move adjoumm~nt at this time SJ l '38; (answered in the neptive) SJ I SJ8.

Raised by Mr. Sisitsky, inquirin1 as to when a member may move adjournment SJ I S38; (when the member has the floor) SJ I HS.

Raised by Mr. Sisitsky, askin1 if a motion to lay on the table is in order at this time SJ I S7 l; (Although it was a proper motion, it would be ruled dilatory at this time) SJ I S7 I.

Raised by Mr. Sisitslr.y, ulr.in1 what is the question before the Senate at this time SJ 1'71; (Question on postponement to the next session) SJ I S7 l.

Raised by Mr. Sisitsky, aslr.in1 if there is time left for debate SJ IS71; (Yes) SJ IS71.

Raised by Mr. Sisitsky, askin1 how much time left for debate SJ IS71; (Nine minutes left, two minutes for the Senator speaking) SJ IS71.

Raised by Mr. Sisitsky, asking what wu the question now before the Senate SJ IS71; (Qucstidn on adopting the amendment moved by Senator Lewis) SJ I S1 I.

Raised by Mr. Sisitsky, ukins how much time is allowed for debate on this question SJ I S72; (Unlimited debate) SJ IS 72.

Raised by Mr. Locke, askin1 was there anything to prevent the use of electronic rccordin1 equipment or the use of a stenographer so that an accurate record of the proceedings can be presecved for future use SJ I S72; (An order could be offered to authorize the use of a stenographer) SJ I S72.

R3iscd by Mr. Sisitsky, askin1 if there wu a limit to debate on this question SJ l S72; (No) SJ l S72.

Raised by Mr. Sisitslr.y, aslr.in1 when would a motion to discharge a petition from the committee on Rules be in order SJ 1621; (After completion of the Orders of the Day) SJ 1621.

Raised by Mr. Sisitslr.y, asking how much time for debate is allowed on the question of passing•a bill to be engrossed SJ I 62S; (Unlimited debate) SJ 1625.

Raised by Mr. Sisitslr.y, aslr.in1 whether a motion to suspended Senate Ruic 52 was in order at this time SJ 162S; (Yes) SJ 162S.

Raised by Mr. Sisitsky, asking how much time for debate is allowed on a motion to suspend Senate Rule S2 SJ 162S; (Fifteen minutes, three minutes per Senator) SJ 162S.

Raised by Mr. Sisitsky, asking how much time remained for debate on the motion to reconsider SJ 162S;

(Thirty minutes, five minutes per Senator) SJ 1625.

Raised by Mr. Sisitsky, ultin1 if a quorum was present SJ 1627; (Yes) SJ 1627. Raised by Mr. Sisitsky, asking if there is a time limit for debate on a motion to stnke the enacting clause

of a bill SJ 16SI; (No time limit) SJ 16Sl.

Raised by Mr. Sisitsky, asking how much time is left for debate on the adoption of the amendment moved by Mr. Edward L. Burke SJ l 700; (Debate is unlimited) SJ 1700.

Raised by Mr. Sisitsky, asking how many members arc required to constitute a quorum SJ I 70J; (21 members arc necessary) SJ l 70 l.

Raised by Mr. Sisitsky, asking how much time docs the Senator speaking have left for debate SJ 1701; (One minute) SJ 1701.

Raised by Mr. Sisitsky. asking how much time is allowed for debate on the motion to suspend Senate Ruic S2 SJ I 70 l; ( l S minutes debate, three minutes to each Senator) SJ I 70 l.

Points of personal privilege.

Raised by Mr. Sisitsky, asking for an apology from the Chair SJ 1292; ruling (Not a point of penonal privilege) SJ 1292.

Raised by Mr. Sisitsky, that he had not spoken to the Senator from Middlesex, Mr. Brennan, for eight months SJ I 343. •

Raised by Mr. Sisitsky, that the Senator speaking had threatened Senators fifty times SJ 1343; (NOT a point of personal privilege) SJ I 343.

Raised by Mr. Maclean, concerning the conduct of the Senator from Hampden and Hampshire. Mr. Sisitsky SJ 165 l.

Pope John Paul II, Resolutions extending to His Holiness. best wishes for a speedy and complete recovery (adopted) SJ 623.

Post Audit and Oversight, joint committee on. Senate members appointed SJ I 3a.

Postal Service, Resolutions memoriahzing the Congress of the United States to prohibit the lJnited States, from implementing a system which calls for a nine-digit zip code (offered) SJ 4, (adopted) SJ IS.

Prisoners.

Petition of Samuel Rotondi and Edward F. Henneberry, Jr., sheriff, Middlesex County, for lcgislauon

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MASSACHUSETTS CONSTITUTION.

PART the SECOND.

THE FRAME OF GOVERNMENT.

The people, inhabiting the territory formerly called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent body-politic, or State, by the name of THE COMMONWEALTH OF MASSACHUSETTS.

CHAPTER I.

THE LEGISLATIVE POWER.

Section I.

THE GENERAL COURT.

Art. I. The department of legislation shall be formed by two branches, a Senate and House of Representatives : each of which shall have a negative on the other. The legislative body shall assemble every year [on the last \Vednesday in May, and at such other times as they shall judge necessary : and shall dissolve and be dissolved on the day next preceeding the said last Wednesday in May;] and shall be stiled, THE GENERAL CotJRT OF MASSACHUSETTS'.

II. No bill or resolve of the Senate or House of Representatives shall become a law, and have force as such, until it shall have been laid before the Governor for his revisal; And if he, upon such revision, approve thereof he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the Senate or House of Representatives, in whichsoever the same shall have originated: who shall enter the

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objections sent down hy the Governor, at large, on their records, and proceed to reconsider the said bill or resolve. But if after such reconsideration, two thirds of the said Senate or House of Representatives, shall. notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered. and if approved by two thirds of the members present, shall have the force of a law: but in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the Commonwealth.-

And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the Governor within five days after it shall have been presented, the same shall have the force of a law.-

Part 2, c. 1, § 2.

VII. The Senate shall choose its own President, appoint its own officers, and determine its own rules of proceedings.-

Part 2, c. 1, § 3.

X. The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution; shall chuse their own Speaker; appoint their own officers, and settle the rules and orders of proceeding in their own House: They shall have authority to punish by imprisonment. every person, not a member, who shall be guilty of disrespect to the House, by any disorqerly, or contemptuous behaviour, in its presence; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for anything said or done in the House; or who shall assault any of them therefor; or who shall assault, or arrest, any witness, or other person, ordered to attend the House, in his way in going or returning ; or who shall rescue any person arrested by the order of the House-And no member of the House of Representatives

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shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending the General Assembly.-

ARTICLES OF AMENDMENT.

Art. X. The political year shall begin on the First Wednesday of January instead of the last Wednesday of May, and the General Court shall assemble every year, on the said first Wednesday of January, and shall proceed at that Session to. make all the elections, and do all the other acts which are by the Constitution required to be made and done at the Session which has heretofore commenced on the last \Vednesday of May. And the General Court shall be dissolved on the day next preceding the first Wednesday of January, without any prociamation or other act of the Governor. But nothing herein contained shall prevent the General Court from assembling at such other times as they shall judge necessary, or when called together by the Governor. [The Governor, Lieutenant Governor and Counsellors, shall also hold their respective offices for one year next following the first Wednesday of January, and until others are chosen and qualified in their stead.]

(The meeting for the choice of Governor, Lieutenant Governor, Senators and Representatives shall be held on the second Monday of November in every year; but meetings may be adjourned if necessary, for the choice of Representatives, to the next day, and again to the next succeeding day, but no further. But in case a second meeting shall be necessary for the choice of Representatives, such meetings shall be held on the fourth Monday of the same month of November.]

All the other provisions of the Constitution, respecting the elections and proceedings of the members of the General Court, or of any other officers or persons whatever, that have reference to the last Wednesday of May, as the commencement of the political year, shall be so far altered as to have like reference to the first Wednesday of January.

This article shall go into operation on the first day of October next following the day when the same shall be duly

297

ratified and adopted as an amendment of the Constitution [ ;-and the Governor. Lieutenant Governor, Counsellors, Senators, Representatives and all other State Officers, who are annually chosen, and who shall be chosen for the current year when the same shall go into operation, shall hold their respective offices until the first Wednesday of January then next following, and until others are chosen and qualified in their stead, and no longer-And the first election of the Governor, Lieutenant Governor, Senators and Representatives to be had in virtue of this article shall he had conformably thereunto, in the month of November following the day on which the same shall be in force, and go into operation pursuant to the foregoing provision.)

All the provisions of the existing Constitution inconsistent with the provisions herein cont~ined are hereby wholly annulled.

Art. XL VIII.

I. Definition.

Legislative power shall continue to be vested in the general court ; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection; and the popular referendum, which is the power of a specified number of voters to submit laws, enacted by the general court, to the people for their ratification or rejection.

THE INITrATIVE.

II. Initiative Petitions.

SECTION 1. C ontents.-An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure, which 1s proposed by the petition.

SECTION 2. Excluded Matters.-No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial

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decision ; or to the powers, creation or abolition of courts ; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative p.etition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.

Neither the eighteenth amendment of the constitution, as approved and ratified to take effect on the first day of October in the year nineteen hundred and eighteen, nor this provision for its protection, shall be the subject of an initiative amendment.

No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and th:e law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.

No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition.

The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder.

r SECTION 3. !if ode of Originating.-Such petition shall first bl' signed by ten qualified voters of the commonwealth and shall then be submitted to the attorney-general, and if he shall certify that the measure is in proper form for submission to the people. and that it is not, either affirmatively or negatively. substantially the same as any measure which has lieen qualified for submission or submitted to the people ,~·ithin three years of the succeecling first Wednesday in De-

299

cember :1nd th:1t it contains only subjects not excluded from the pop11lar initi:1tive and which are . ~lated or which are mut11:11ly dependent, it 1my then be filed with the secretary of the commonwealth. The secretary of the commonwealth shall proYide blanks for the use of subsequent signers, and shall print at the top of each blank a description of the proposed measure as such description will appear on the ballot together with the names and residences of the first ten signers. All iniiiative petitions, with the. first ten signatures attached, shall be filed with the secretary of the commonwealth not earlier than the first Wednesday of the September before the assembling of the general court into which they are to be introduced, and the remainder of the required signatures shall be filed not later than the first Wednesday of the following December.]

SECTION 4. Transmission to the General Court. If an initiative petition, signed by the required number of

qualified voters, has been filed as aforesaid, the secretary of the commonwealth shall, upon the assembling of the general court, transmit it to the clerk of the house of representatives, and the proposed measure shall then be deemed to be introduced and pending.

/II. Legislative Action. General Provisions.

SECTION 1. Reference to Committee.-!£ a measure is introduced into the general court by initiative petition, it shall be referred to a committee thereof, and the petitioners and all parties in interest shall be heard, and the measure shall be considered and reported upon to the general court with the committee's recommendations, and the reasons therefor, in writing. Majority and minority reports shall be signed by the members of said committee.

SECTION 2. Legislative Substitutes.-The general court may, by resolution passed by yea and nay vote, either by the two houses separately, or in the case of a constitutional

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amendment hy a majority of those voting- thereon in joint session in each of two years as hereinafter provided, submit to the people a substitute for any measure introduced by initiative petition, such substitute to be designated on the ballot as the legislative substitute for such an initiative measure and to be grouped with it as an alternative therefor.

IV. Legislatii1e Action on Proposed Constit11tional Amendments.

SECTIOS I. Dcfinitio11.-A proposal for amendment to the constitution introduced into the general conrt by initiative petition shall be designated an initiative amendment, and an amendment introduced by a member of either house shall be designated a legislative substitute or a legislative amendment.

[SECTION 2. Joint S essio11.-If a proposal for a specific amendment of the constitution is introduced into the general court by initiative petition signed by not less than twentyfive thousand qualified voters, or if in case of a proposal for amendment introduced into the general court by a member of either house, consideration thereof in joint session is called for by vote of either house, such proposal shall, not later than the second Wednesday in June, be laid before a joint session of the two houses, at which the president of the senate shall preside; and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from. time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.]

SECTION 3. Amendment of Proposed Amendments. A proposal for an amendment to the constitution intro

duced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.

SECTION 4. Legislative Action.-Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner.

At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected,

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or an 1111t1at1\'e amendment rece1v111g the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.

SECTION 5. Submission In the Pcoplr.-If in the next general court a legislative amendment shall again be agreed to in joint session by a majority of all the members elected, or if an initiative amendment or a legislative substitute shall again recei\'e the affirmati\"e votes of at least one-fourth of all the members elected. such fact shall be certified by the clerk of such joint se~sion to the secretary of the commonwealth. who shall submit the amendment to the people at the next state election. Such a111end111cnt shall become part of the constitution if approved, in the case of a legislative amendment. by a majority of the voters voting thereon, or if appro\"ed. in the c:ise of :in initiative amendment or a legislative substitute, by \'Oters equal in numher to at least thirty per cent of the total number of ballots cast at such state election and also by a majority of the voters voting on such amendment.

V. Legislatiz•e Action 011 Proposed Laws.

[SF.CT ION l. Lrgislat ivc Proccdurc.-I f an initiative petition for a law is introduced into the general court, signed by not less than twenty thousand qualified voters, a vote shall be taken by yeas and nays in both houses before the first \Vednesday of June upon the enactment of such law in the form in which it stands in such petition. If the general court fails to enact such law before the first Wednesday of June, and if such petition is completed by filing with the secretary of the commonwealth, not earlier than the first Wednesday of the following July nor later than the first Wednesday of the following August, not less than five thousand signatures of qualified voters. in addition to those signing such initiative petition. which signatures must have been obtained after the first \Vednesday of June aforesaid, then the secretary of the commonwealth shall submit such proposed law to the people at the next state election. If it shall be approved by voters equal in number to at least thirty per cent of the total number of ballots cast at such state election and also by a majority of the voters voting on such law, it shall become law, and shall take effect in thirty days after such state election or

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at such time after such election as may be provided in such law.]

[SECTION 2. Amendment by Petitioners.-!£ the general court fails to pass a proposed law before the first Wednesday of June, a majority of the first ten signers of the initiative petition therefor shall have the right, subject to certification by the attorney-general filed as hereinafter provided, to amend the measure which is the subject of such petition. An amendment so made shall not invalidate any signature attached to the petition. If the measure so amended, signed by a majority of the first ten signers, is filed with the secretary of the commonwealth before the first Wednesday of the following July, together with a certificate signed by the attorney-general to the effect that the amendment made by such proposers is in his opinion perfecting in its nature and does not materially change the substance of the measure, and if such petition is completed by filing with the secretary of the commonwealth, not earlier than the first Wednesday of the following July nor later than the first Wednesday of the following August, not less than five thousand signatures of qualified voters, in addition to those signing such initiative petition, which signatures must have been obtained after the first \Vednesday of June aforesaid, then the secretary of the commonwealth shall submit the measure to the people in its amended form.]

VI. C onfiicting and Alternative Measures.

If in any judicial proceeding, provisions of constitutional amendments or of laws approved by the people at the same election are held to be in conflict, then the provisions contained in the measure that received the largest number _of affirmative votes at such election shall govern.

A constitutional amendment approved at any election shall govern any law approved at the same election.

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The general court, by resolution passed as hereinbefore set forth, may provide for grouping and designating upon the ballot as conflicting measures or as alternative measures, only one of which is to be adopted, any two or more proposed constitutional amendments or laws which have been or may be passed or qualified for submission to the people at any one election: provided, that a proposed constitutional amendment and a proposed law shall not be so grouped, and that the ballot shall afford an opportunity to the voter to vote for each of the measures or for only one of the measures. as may be provided iri said resolution, or against each of the measures so grouped as conflicting or as alternative. In case more than one of the measures so grouped shall receive the vote required for its approval as herein provided, only that one for which the largest affirmative vote was cast shall be deemed to be approved.

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SUPPLEMENTAL INFORMATION

The foregoing briefs of the Plaintiff, Defendant, and Defendant-

Intervener provide the reader with the principal arguments laid before the

Court. There were, however, other briefs containing subsidiary issues and

arguments and other material of relevance but which, in an effort to keep

this anthology within reasonable bounds, we have decided not to reprint.

Those documents are as follows:

Appendix to Brief for the Plaintiffs.

Reply Brief for the Plaintiffs.

Supplemental Appendix to the Brief of the Defendant-Intervener.

Amicus Curiae Brief of Counsel to the Massachusetts House of Representatives.

Amicus Curiae Brief of Senate Counsel.

Amicus Curiae Brief of Paul G. Keough.

In addition, there is a substantial amount of relevant historical

material that cannot be duplicated in this compilation.

To conclude this anthology, we set forth in the remaining pages

correspondence and memoranda that bring into sharp focus the views of the

Senate President as to the destructive impact the Initiative Petition would

have had on our constitutional structure.

305

SELECTED SUPPLEMENTARY MATERIAL

Letter of August J.8, 1983 from Senate President William M. Bulger to Attorney General Francis X. Bellotti. (3 pages and Exhibit A.)

Letter of Au.gust 31, 1983 from Senate President William M. Bulger to Attorney General Francis X. Bellotti. (10 pages.)

Letter of September 7, 1983 from Senate President William M. Bulger to Attorney General Francis X. Bellotti. (3 pages.)

Letter of August 26, 1983 from Research Director Daniel M. O'Sullivan to Senate President William M. Bulger and House Majority Leader, Representative George Keverian. (3 pages.)

Memorandum of November 8, 1983 from Legislative Research Bureau to John M. Mullen, Esq., Special Counsel to the Senate President. (5 pages.)

Letter of August 26, 1983 from Research Director Daniel M. O'Sullivan to House Majority Leader George Keverian. (12 pages.)

Table of Contents, Supplemental Appendix to the Brief of the DefendantIntervener. (3 pages.)

This table of contents is reproduced here because it contains valuable citations of pertinent rulings by various Speakers of the U. S. House of Representatives. The text of the rulings appears in the body of the Supplemental Appendix on file with the Legislative Research Bureau.

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WILLIAM M. BULGER PRESIDINT

Francis X. Bellotti, Esq. Attorney General One Ashburton Place Boston, MA 02108

OFFICE o~· THE PRESIDENT

MASSACHUSETTS SENATE STATF. House:. BOSTON 02133

August 18, 1983

RE: Initiative Petition for "An Act Providing for Reform of the General Court"

D~ar General:

l have reviewed with care the initiative petition for 11 An Act Providing for Reform of the General Court." Attached to this letter as Exhibit A is a list oi the diverse subjects which this lengthy petition purports to address.

Ea<'h branch of the General Court has the inherent right to choose and appoint its own officers and to determine its own rules of proceeding. Neither the Senate nor the House of Representatives may be deprived of this right by the othe1· body or by any other entity. These rights have been confirmed by the Massachusetts Constitution by provisions similar to those found in the Constitution of the United States and in the constitutions of all the other states of the Union, with one possible exception.

Each General Court is a separate assembly, discrete from those that precede it and from those that follow it. Rules adopted by a branch of the legislature to determine its own proceedings are, upon· dissolution of the General Court, without any further force or validity. The proposed statute would seek to preclude each branch of a newly organized General Court from adopting for itself its own rules of procedure, thus denying what Pt. 2, C. 1, §2, Art. 7, and Pt. 2, C. l, §3, Art. 7, of the Constitution confer.

Each branch of the General Court has the inherent right to amend or suspend the operation of rules adopted by it after its organiz.stion. The proposed statute seeks to deprive the Senate and the House of Representatives of these rights.

The members of the Senate and the House of Representatives are elected by the p€Ople every two years. Two years later, they or •my one of them may be recalled and replaced by the people or returned to tt1e next General Court.

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The legislative pro<'ess is carried out under precedents and norms of behavior observed by each body to permit the majority to govern and to protect the rights of the minority under the Constitution. Currently, 9,000 bills are considered and disposed of by each General Court. The pending petition seeks unconstitutionally to interfere with and to obstruct the legislative process of the Commonwealth of Massachusetts.

The enactment of a statute by a General Court can be accomplished only by action of both the Senate and the House of Representatives. Neither body may determine the procedure of the other. The pending petition is not for a "law" as that term is used in Article 48 of the Amendments to the Massachusetts Constitution.

The limitation of the legislative power of the General Court extends to the legislative power exercised by the popular initiative. In the matter•of rules of procedure adopted by either the Senate or the House of Representatives for the governance of each branch the legislative power of the General Court composed of both branches is limited. Neither branch has a negative upon the other. There is, thus, a limitation on the legislative power of the General Court to regulate the procedure of the Senate or the House. This limitation of the legislative power of the General Court extends to the exercise of the popular initiative.

The doctrine of separation of powers precludes judicial inquiry into adoption of or compliance with rules of procedure adopted by either the Senate or the House of Representatives. The statute proposed by the pending petition would, under this principle, be without force or validity. It would not come within the definition of "laws" as the term is used in Article 48 of the Amendments to the Massachusetts Constitution.

Endless confusion would result if the courts were obliged to inquire into legislative proceedings prior to enrollment of statutes. Enrollment of a statute, with the exception of a measure resulting from the popular initiative, is conclusively presumed to embody the action taken by the legislature upon it. Under this principle, the proposed statute would be without force or validity. The petition relates to the· powers of courts and is among measures excluded from being made the subject of an initiative petition.

The Massachusetts Constitution may be amended only by the procedure provided for the adoption of a constitutional amendment. The Constitution may not be amended by a valid statute, much less by an invalid one. The pending petition is for an invalid "law."

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The pending petition does not contain "only subjects not excluded from the popular initiative and which are related or which are mutually dependent," (Amend. Art. 48, lnit., Pt. 2, §3).

During the past ninety years, in 1893, 1911, 1915, 1943, 1965, 1966, 1972, and 1983, studies and reports on the rules of procedure of the Senate and of the House of Representatives have been made and acted upon. Even in the absence of formal reports, changes can be and have been made by the members of each branch to meet changing conditions. They have been made as the Constitution provides by the respective bodies of the legislature.

The legislature operates by group consensus. Points of order questioning the interpretation or application of a rule are decided by the presiding officer. The decision of a presiding officer may be appealed by the members and overruled. The members of each branch may vote to remove and replace their presiding officer.

In January of this year, a special committee of the Senate was appointed for the purpose of considering and recommending any changes in the rules of the Semtte which would improve the process by which the Senate conducts its business. This bipartisan committee solicited recommendations and comments from each member of the Senate and from the Clerk, who is the official parliamentarian of the Senate. The committee conducted three public hearings, one in Springfield and two in Boston. Thereafter it solicited and received written comments from interested parties. It met on a frequent and regularly scheduled basis to consider and discuss the various proposals it had received. Certain amendments which the report of the committee recommended were adopted on March 23, 1983, for this 1983 session of the Senate of the 173rd General Court.

To conclude: the pending initiative petition seeks the adoption of an invalid statute. It is an effort to deprive each branch of the 174th General Court which will come into existence in the 1985-1986 legislative years of their exclusive inherent right, confirmed by the Constitution of the Commonwealth, to determine their own proceedings.

As presiding officer of the Senate, I consider it my duty respectfully to note that the pending petition for "An Act Providing for Reform of the General Court" is defective and shduld not be certified.

Enclosure

~~9#~ ~ William M. Bulger ~ PRESIDENT OF THE SENg

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EXHIBIT A

Initiative Petition for "An Act Providing for Reform of the General Court"

This petitkm is quite lengthy and relates to many diverse subjects. It is exceedingly difficult, if not impossible, to prepare a fair and concise summary. Among other things, the proposed statute would undertake

1. To prescribe the rules of proceedings of the Senate;

2. To determine the method whereby the Senate shall choose its own President and appoint its own officers;

3. For the House of Representatives, to settle the rules and orders of proceeding in their own house;

'I. To determine how the members of the House of Representatives shall choose their own Speaker and appoint their own officers;

5. To establish legislative party caucuses;

6. To restrict the operation of legislative committees in the performance of their duties;

7. To place limitations on the method of amending the Constitution;

8. To limit the powers of the General Court in the matter of legislative compensation;

9. To regulate the duties of the State Auditor;

10. To regulate the duties of the 1 nspector General; and

11. To limit legislative power to amend, r·epea.1 or alter previously enacted legislation.

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NILLIAM M. BULGElt ~llKSIDIPIT


OFl"ICI!: OF TH• PRESIDENT

MASSACHUSETTS SENATE STATE HOUSE, llOSTON 02133

August 31, 1983

Re: Initiative Petition for 'An Act Providing for Reform of the General Court"

Dear General:

My letter of August 18, 1983, , stressed in summary fashion the unconstitutionality of the Initiative· petition 11 An Act to Reform the General Court". I expressed the opinion without elaborating. in det•il the underlying reasons therefor that the initiative petition was fatally· flawed by inherent deficiencies and as a consequence ought not bl certified by you.

In order that you may have the benefit of some of the research that provides convincing support for the opinion, I am setting forth in this letter legislative and judicial history germane to an understanding of the houses of the legislature, their prerogatives, their rules and their separate and independent role in our Commonwealth.

A.. Fleta, Coke, Blackstone

The unique character of legislative rules has been universally recognized by legal commentators and by the courts from the period in the thirteenth century when legislative assemblies, as we now know them, had their remote beginnings up to the present.

For example, Coke, in a marginal note to his discussion of the law and custom of the English parliament, said that "all ask about this law [of parliament], few know it, many do not. 11 (1) As authority for this statement, he referred to the thirteenth century treatise on English law, Fleta, written when parliamentary law was in its embryonic state. (2)ln this century, Winston Churchill said that the laws and customs of the English parliament, to those not familiar with them, can be "an enigma wrapped up in a mystery." ( 3)

Coke said that parliament has its particula~ laws and customs. All matters in parliament, he said, ought to be decided by the course of the parliament and not by civil law or by the common law. Judges ought not to give any opinion on a matter of parliament because it is not to be decided by the common law but according to the law and custom of parliament. ( 4)

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Blackstone, In discussing the law of parliament, said that "the whole of the law and custom of parliament, has its origin from this one maxim, 'that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged In that house to which It relates, and not elsewhere.'"(S)

B. Constitutional Provisions

The Massachusetts Constitution provides,. in Part 2, Chapter 1, Sect. 2, Art. VII, that the "senate shall choose its own president, appoint its own officers, and determine its own rules of proceedings."

Similarly~ it is a part of our organic law, in Part 2, Chapter 1, Sect. 3, Art. X, that the house of representatives "shall choose their own speaker; appoint their own officers, and settle· the rules and orders of proceeding in their own house: • • •11

The United States Constitution, in Article ·1, Sect. 5, states that 11 Each house may determine the Rules of its Proceedings • • • n

Comparable provisions are to be found in the constitutions of all the other states in the Union, with the exception of North Carolina. (6) My office has been informed by the appropriate officials· In North Carolina that although there Is nothing either in the North ·Carolina Constitution or statutes with respect to the right of the General Assembly to determine its own proceedings, they are of the view that the General Assembly has an inherent right to do so. (7}

C. Inherent Right

Mason's Manual of Legislative Procedure is recognized as authoritative for legislative and other governmental bodies. In the foreword, Paul Mason, who for twenty-five years was parliamentarian of the California state Senate, says: "This work has evolved from an exhaustive study of judicial decisions and legislative precedents guided by the knowledge gained from many years' experience with· the legislative procedure and from specialization in constitutional law." ( 8)

In Part 1, Chapter 1, Sect. 2, of Mason's Legislative Manual, the following appears:

n 1. Every governmental body has an inherent right to regulate its own procedure subject to provisions of the constitution, statutes, charters or other controlling authority.

"2. A house of a state legislature has complete authority concerning its procedure so far as it is not limited

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by constitutional provisions. In addition to this Inherent power most state constitutions contain substantially the provision that 'each house shall determine the rule of its proceeding.'

"3. The constitutional right of a state legisfature to control its own procedure· cannot .be withdrawn or restricted by statute, but statutes may control procedure insofar as they do not conflict with the rules of the houses or with the rules contained In the constitution."

D. Jefferson's Manual

Thomas Jefferson, when as Vice President he was presiding officer over the United States Senate, prepared for his own guidance a manual of procedure now entitled n Jefferson's Manual of Parllamsntary Practice". This manual remains the basis of the legislative process in the United States Senate and in the United States House of Representatives.

The rules of the House of Representatives for the 98th Congress, now in session, were adopted on January 3, 1983-. A note to Section 18 of Jefferson's Manual contains the following:

"The House of Representatives has frequently examined its constitutional power to make rules and this power has also been discussed by the Supreme Court. It has been settled that Congress · may not by law interfere with the constitutional right of a future house to make its own rules or to determine for itself the order of proceedings in affecting its organization. It has also been determined, after a long discussion and trial by practice, that one house may not continue its rules in force to and over its successor." ( 9)

E. Procedural Statutes not Mandatory

In 1902, James J. Myers, Speaker of the Massachusetts House of Representatives, had occasion to rule on whether or not certain provisions of Chapter 3 of the Revised Laws (now the General Laws) referred to in Joint Rule 9 were mandatory on the General Court. His ruling was that the provisions of the revised law are mandatory only to the petitioner and that the General Court could hear the petitioner notwithstanding his failure to comply with the law. A similar ruling was made by Michael F. Skerry, Speaker, in 1957. ( 1 O)

These rulings are consistent with the principle that a constitutionally created legislative body cannot be bound by statute as

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to its proceedings within its own four walls.. This prov1s1on is also to be found in Rufe XLI I of the United States House of Representatives which provides:

•The rules of parliamentary practice comprised in Jefferson's Manual and the provisions of the Legislative Reorganization Act of 19116, as amended, shall govern the House in all cases to which they are applicable, in which they are not inconsistent with the standing rules and orders of the House and joint rules of the Senate and House of Representatives." ( 11)

F. U.S. Congress Precedents

On January 22, 1971, at the opening of the 92nd Congress, a point of order was reserved as whether the provisions of the Legislative Reorganization Act, which had been enacted Into law b'y tha 91st Congress, could restrict the authority of the 92nd Congress to adopt its own rules.

In ruling on the power of the House to enact or change any rule of the House at any time in its exercise of its constitutional right to determine the rules of its proceedings, the Speaker stated as follows:

"The Constitution is, of course, superior to any public statute and the Constitution in Article 1, Section 5, gives each house the authority to determine the rules of its proceedings, and it has been repeatedly held that the power of each new house to make its own rules may not be impaired or controHed by the rules or actions of a preceding house.

The Chair overrules the point of order." ( 12)

The principle enunciated by the Speaker at the beginning of the 92nd Congress had had repeated application. Among the rulings included among the footnotes were those made on December 7, 1835 ( 13), December 31, 1849 ( 14), January 27, 1858 ( 15}, February 12, 1858 (16), March 21, .1860 (17), March 2. 1861 (18), December 6, 1902 ( 19), and February 20, 1907 ( 20).

G. Classic Statement by Speaker of U.S. House·

On January 21, 1890, the question was raised as to whether the rules of one House of Representatives were binding on a succeeding House unless adopted by the latter House. The Speaker made the following statement:

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"The Chair has always been unable to see how It was possible for a House which had passed out of existence to bind by rules and regulatlons a House which was to come into existence In the future·. The recent decisions by the Speaker of the House have been to the effect that the rules ·Of the last House did not become the rules of the present House directly. The Chair Is unable · to see how they can become the rules of the present House indirectly~

"The very fact that they have been made as rules shows clearly the necessity for their special enactment. If they became by any indirect.ion the rules of the next House it would not become necessary to reenact them.

"This House, then, is governed by the g~neral parliamentary law such as has been established in the same manner that the common law of England was established, by repeated decisions and the general ·acquiescence of the people in a system which governs all ordinary assemblies • . . .

•The suggestion which has been made during this debate that the matter of the control of the House Is under the exclusive control of the occupant of the chair is ·at this very moment receiving a negative, because an appeal is pending In thf s case, as has been or might be in many others, against the decision of the Chair. All decisions from the Chair by appeals~ which are made under proper circumstances and in good faith, are· subject to revision by the majority of the House. Consequently there is not and can not be any arbitrary control of this body against its will. · The Speaker, for the time being and as a matter of convenience arising from the nature of his office, makes a ruling upon the subject which is before the ·House. That ruling is always subject to revision by the House itself, and no one can take away that right on the part of the House. 11

( 21)

H. Cushing. Law of Legislative Assemblies

Luther Stearns Cushing, at the age of 29, was appointed clerk of the Massachusetts House of Representatives and held that post for twelve years. In 1844, he published his manual of parliamentary practice. In that year, he was elected a representative to the Massachusetts General Court. He resigned to become judge of the Boston Court of Common Pleas and again resigned in order to take the

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post of offlclal reporter for . the Massachusetts Supreme Court. He edited the Massachusetts Law Reports, Volumes 55 to 66, and was a lecturer at the Harvard Law School. He Is the author of a monumental publication called Lex Parllamentarla Americana, better known as Elements of the Law and Practice of L islative Assemblies in the Unite States. In is wor on t e aw an practice o egis at ve assemblies, published in 1856, he anticipated rulings subsequently· made and referred to above.

He stated in Paragraph 674 of his work::

"The principle· that each branch of a legislative assembly has the right to determine its own rules is deemed so important that where it is inserted in the Constitution of a state it has been doubted whether it was competent for the legislature of such state by law to provide rules for the government of its respective branches which should bind them and supersede their authority to make rules for themselves."

He pointed out In Section 613 of his work that "as has been demonstrated in the references given above, each assembly until it adopts rules and orders for itself (and it usually adopts those of its predecessors) it Is without any other rules for its government other than those which result from the common parliamentary law."

I. Judge J. Ci. Sutherland.

This familiar principle was stated by Judge J. Ci. Sutherland as follows: "The legislature, by statute or joint resolution, cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation." (22) He al5o pointed out that an act cannot be declared invalid for failure of a house to observe its own rules and that courts will not inquire whether such rules have been observed in the passage of the act.

J. Justice Holmes

Mr. Justice Holmes, in American Banana Co. v. United Fruit, 213 U.S. 31&7, 356, said that "Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts •11 A legislative rule of procedure does not fit into Justice Holmes' definition of law. It is the branch of the legislature and not the courts that has the exclusive authority to enforce, to amend or to suspend the operation of a legislative rule of procedure.

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K. Absolute Power in Each House

Each of the houses of the General Court has plenary power with respect to the determination of its rules of procedure, both as a matter of inherent right and as a constitutional mandate. It is clear that In the event of a conflict between a sta.tute and a legislative rule of procedure, the rule takes precedence. It may at any time be amended or have its operation suspended by the body.

"The role that the courts play in adjudicating questions involving the rules of either house must of necessity be a limited one, for the manner in which a house • • • chooses to run its business ordinarily raises no justiciable · controversy. Field· v. Clark, 1113 U.S. 649; United States v. Ballin, 144 U.5.1; Leser v. Carnett, 258 U.S. 130, 137.n

"Neither do the advantages or disadvantages, the wisdom or folly; of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by Its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable · relation between the mode or method of proceeding established by the rule · and the result· which Is sought to be attained. But within these limitations all · matters of method are open to the determination of the house, and It Is no impeachment of the rule to say that some other way would be better, more accurate or even more just. It is no objection to the validity of a rule · that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenges of any other body or tribunal." United States v. Ballin, 144 U.S. 1, s.

L. Legislature not Bound by Statute

That a general law seeking to regulate the procedure of the legislature may be disregarded by the legislature was squarely held in the United States Supreme Court case of Manigault v. Springs, 199 U.S. 472, 487, in the following language:

"It is also urged that the act was passed without the formality required by the Revised Statutes of South Carolina

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of 1893, in which it is declared that no bill. for the granting of any privilege or immunity, or for any other private purpose whatsoever, shall ·be introduced or entertained in either house of the general assembly except by petition to be signed by the persons desiring such privileges, of which sixty days• notice shall be given to all persons interested, and be published in the newspaper having the largest circulation at the county where such privilege Is to be enjoyed, once a week for three weeks., etc.

"As this is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended, or disregarded by the legislature which enacted it. This law was doubtless intended as a guide to persons desiring to petition the legislature for special privileges, and it would be a good answer to any petition for the granting of suet) privileges that the required not~ce had not been given; but it Is not binding upon any subsequent legislature, nor does a noncompliance with it impair or nullify the provisions of an act passed without the requirement of such notice. n

M. Enrolled Bill Rule

Professor Jack Davies has been a law school professor and state senator in· Minnesota. He is the author of Legislative Law and Process in a Nutshell.

In · discussing the relationship between the courts and the legislature, he says:

"Judicial inquiry into legislative procedure .. is barred as an intrusion into the internal affairs of the legislature. This ·is the enrolled bill rule. It is based in part on the fact that judicial review or whether or not the legislature followed constitutional mandates in processing legislation does not possess the same claim to legitimacy as substantive judicial review. First, the court does not have greater ability to judge procedural legitimacy, since constitutional rules on procedure are easily mastered. Procedural disputes are over facts -- whether or not the bill had enough votes, or three readings, or whatever -- not over the meaning of the constitution. Legislators, as eyewitnesses, are in a better position than the court to rule on the facts.

"The argument Is also made that if a court can go behind an enrolled bill to check on procedure, the

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legislature can with as much justification go behind a final judgment of a court. The assumption Is that legislature5 are offended If a court examines legislative procedure.

•An additional rationale for the enrolled bill rule Is that ·it gives stability to the law. Citizens reasonably assume that filed acts are valid. To void an act on procedural grounds traps those who in good faith relied on the legislation •••• •(23)

In Bane v. Superintendent of Boston State Hospital, 350 Mass. 637, 638, the Supreme Judicial Court held that the enrolled bill principle prevails · in this Commonwealth in the following language: "The petitioner contends that St. 19611, c. 653, was enacted in violation of Senate Rule 50, but the violation Is not conceded. In any event, the statute cannot thus be impugned In a court of law. Field v. Clark, 143 U.S. 6119, 672; Sears v. Treasurer and Rece'TVer General, 327 Mass •. 310, 321; week$ v. Smith, 81 Maine 538, SU; 81 C.J.S., States, Sect. 39.•

N. Bicameralism and Presentment Requirement

Any law-making action on the part of the General Court must be by bill ·or resolve passed by both branches and signed by the governor or duly passed notwithstanding his objections. A rule of proced'lre adopted by one of the branches of the legislature Is not such a law-making action. A ruling by Speaker John D. Long on January 21, 1878, contained in the footnotes, Is illustrative of this point. (211)

Chapter 1 of the secon~ part of the Constitution of Massachusetts provides that legislation Is to be enacted by bicameral action and presentment to the governor. The legislative power of the General Court extends to and is coterminus with bicamer.al action and presentment to the governor with a possibility of the overriding of a gubernatorial veto.

A rule of procedure Is an action of one branch of the government, a unicameral action. The legislative power of the popular initiative, which does not extend beyond the legislative power of the General Court, does not embrace or extend to unicameral action by one house of the General Court.

O. Misplaced Relianc:e

If the proponents of the initiative petition to reform the General Court· rely on an excerpt from the lengthy opinion of the justices of

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the Supreme Judicial Court, given to the Senate In 1978, Opinion of the Justices, 375 Mass. 795, 817-8181 · such reliance on this opinion without precedential value is entirely misplaced. A rule of legislative procedure appearing among the rules adopted by the Senate or the House at the beginning of the General Court or an amendment made during the life of the General Court or Included in a statute passed by a session of the General Court will not be amended or repealed by the mechanism of bicameral action and presentment to the governor.

If it is truly one of the "rules of proceedings" of the Senate or one of the "rules and orders of proceeding" of the House of Representatives, It will, under both legislative and judicial precedents, including those cited herein, be observed, amended, repealed, or suspended from operation by the unicameral action of the body having the exclusive, plenary, inherent and constitutional right to do so.

I enclose copies of communications from the Legislative Research Bureau dated August 17, 1983, and August 26, 1983, referring to some of the source material contained herein and additional material as well.

The conclusion is inescapable that the initiative petition entitled n An Act to Reform the General Court0 seeks to deprive the Massachusetts Senate and House of Representatives of their inherent rights mandated by the Constitution to determine their own rules of proceedings. It purports to amend the Constitution by an Ineffective "law" which has no force or- validity and could lead to a needless confrontation between coordinate departments of the government. It contains so many unrelated subjects that it makes impossible compliance with the constitutional mandate to prepare a fair and acurate summary of it.

You and I share a common obligation to support· and defend our constitution. It seems absolutely evident to me, as I am sure it will to you, that the initiative petition undermines centuries of tradition and established constitutional principles and ought not be certified.

cmm Enclosures

Very truly yours,

William M. Bulger PRESIDENT OF THE SENATE

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PRESIOl:NT


OFFICE OF THE PRESIDE"'T

MASSACHUSETTS SENATE STATE HOUSE. BOSTON 021 :;3

September 7, 1983

Re: Initiative Petition for "An Act Providing for Reform of the General Court"

Dear General:

After further review of available materials germane to the initiative petition for "An Act Providing for Reform of the General Court", it is still my opinion that the Attorney General is not required to certify it as being in proper form for submission to the people. On the contrary, it is, I believe, his duty not to certify the petition.

1. The Attorney General, under Section 3 of Part 2 of Article 48 of the Amendments to the Massachusetts Constitution is limited to the certification of a "measure". Under Section 1 of Part 2 of Article 48, a "measure" must be either a "constitutional amendment" or a "law. 11 The petition is for an "act" or "law 11 that would determine the rules of proceedings of each house of each General Court.

The legislative rules of proceedings clearly are not 11 laws. 11

Laws require bicameral action by the legislature and pr~sentment to the Governor. Legislative rules of proceedings are unicameral regulations which may be and are amended, repealed and suspended in operation whenever the Senate or the House decides to do so. Unlike laws which have some permanency, legislative rules of procedure are ephemeral. They are short-lived and expire upon the dissolution of each house of each General Court.

The threshold issue as to form to be decided by the Attorney General is whether or not the proposal of the initiative petition is for a "law." It clearly is not.

2. The petition is for a proposal that relates to the powers of the courts, a matter expressly excluded from the popular initiative. It was the clear intent of the framers of our Constitution that each house of each General Court be the sole judge in the adoption, interpretation, repealing and suspending the operation of its rules of proceedings, so

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long as they do not ignore constitutional restraints or violate fundamental rights. Within these limitations, the continuous procedural rule-making power of each house of each General Court Is absolute and beyond challenge by any other tribunal.

The form of the proposal of the initiative petition Is designed to enlarge the powers of the judicial department by permitting judicial challenges in the courts to the exercise of the rule-making power by each house of each General Court. Compliance with the rules is now challenged as the framers of the Constitution intended, by points of order to be decided by the chair subject to appeal to the body. The obvious intent of the petition is to have such determination made not by the legislative body but by the judicial branch.

By the enrolled bill rule and in other ways, the courts have clearly indicated that their powers do not extend and sh9uld not extend to que5tions involving the procedural rules of a legislative house. In that it seeks to embroil the courts in legislative matters which they have stated that they do not wish to get into, the initiaU~·e petition to reform the General Court is defective as to form.

3. The initiative petition for a proposal to "reform the General Court", 3t least to the extent that it relates to the rules of proceedings of each house of each General Court, should have been in the form of a constitutional amendment and not in the form of a law. It purports to be in the form of an "act." For this further reason, it is not in proper form and should not be certified.

li. The initiative petition is defective as to form and should not be certified in that facially it seeks impermissibly to entangle the executive department in affairs exclusively the province of the legislative department. By attempting to cast rules of legislative procedure in tht! form of an "act" which would require a further act to amend or repeal, the proposal will subject the amendment or repeal of legislative rules to the gubernatorial veto.

On its face, ·then, the form of the petition is defective. In addition, on its face it would mandate the intrusion of the Auditor and Inspector General into matters exclusively within the province of the legislative department. The petition is not in proper form for certification.

5. Under Section 2 of Part 2 of Article 48, the legislative power of the popular initiative is subject to the same limitations as exist on the legislative power of the General Court. The legislative power of the General Court does not extend to the adoption of a statute which

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impinges on the power of each house of each General Court to determine its own rules of proceedings.

The proposal of the initiative petition is in the form of an "act" which would intrude on the exclusive power of each house to determine its own rules. The proposal is. not in proper form for submission to the people.

6. The form of the inititative petition which would place limitations on the freedom of deliberation, speech and debate in either house of the legislature, restrictions on the freedom of elections to positions in the legislature and inhibitions on the conduct of constitutional conventions is not proper for submission to the people. These are matters excluded from the popular initiative.

7. The form of the initiative petition is not proper for submission to the people in that it embraces numerous subjects not related and not mutually dependent. These include procedural rules for each house of each General Court, limitations on the right of the legislature to select its leadership, compensation of members of the legislature, duties of the Inspector General, duties of the State Auditor, powers of the court, and powers of the Governor, among others.

To conclude, notwithstanding widespread public comment concerning this initiative petition, a great deal of which is uninformed and a great deal of which is in error, as lawyers you and E realize that th'is petition is poorly conceived, has many deficiencies in form and cannot be certified as a "measure", which must be either a "constitutional amendment" or a "law." The initiative petition does not meet the threshold test of being a proposal for a "law."

cmm

~;zCfi . l/ William M. Bulger 64-PRESIDENT OF THE SE~E

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Members of Council

SE!' ANNA P 8t;Ua.EY of Plymouth, Chat"""'" St:' )mEPH ll W•LSH of SuHOlk Sl' Jrnt"' F P•RU:R nl Bristol. \1inonty ~ad..r ~r.~ Pm.H C Wt:BRER of Berkshire HrP RoBlH D .\ic"t:ll of ~t.,r, Hou.# C""*HFr W1U.IA'4 J Fu""· JR of Hanover Hf p Wll.l.IAM P !';•CU: jR of -.orthampton RH J"'n11 \t SA\I' o( \brlhorough Hf 1· lRi' I.: 1101.1.A'll of Lonirmeadow HtP ~llt.H'4•'W ~" T'4•R\ll )R of Win~h .. ,t..r Htr l\RL< t.\; FHt.F\1" Ill Chdmsford Ht p ( :11AHl.l' \; lh' " ul W.oreham

l.Kji!;l~l.!h' t· He'Jt•.u 1.. h H11rt·d.U

I )"JI I \I () °'l 11.l\\' /)irrctor J(, •Ht !IT IJ \\ r HK .\""'""' f)irtclur

LEGISLATIVE RESEARCH COUNCIL

LEGISLATIVE RESEARCH BUREAU 11 REACUN STRUT, RoSTON, MASSACK\JlrITS 02108

Sum 1212 T.EU:PHONKS; 722-2345

72.Z-2028

August 26, 1983

Hon. Willi8.ll M. Bulger, President of the Senate Representative George Kevsrian, Houae Majority Leader State House Boston, Maasachuaetts 02133

Gentlemen:

Subsequent to the sending ot our earlier research memoranda to yw. relative to the initiative petition ot the Citizens for Limited Taxation and others, we have received pertinent information tram Mr. Peter D. Robinson, Assistant Parliamentarian of the United States House ot Representatives, which may interest you.

Mr. Robinson has advised us that the United States Congress does, indeed, use statutes to regulate aspects of its organization, procedures and management, aa a matter ot legislative convenience only, s.nd conditioned upon a clear reservation ot the constitutional r ht of each branch of Co ess to adopt its own rules fre& of external in er erence U •• Cona ., , s. Congress has taken great c~re to assure that its use of statutes to deal with its own operations sh&ll. not be construed judicially to constitute a.o abdication of its exclusive control over its own proceedings and organization.

•

Indeed, it is the view of the House Parliamentarian that Congressional authority on the subject is so obviously exclusive under the Constitution that there is no real need for Congress to state it; moreover, he advisei us that the nature of the power of Congress over its own rules is such that Congress could not give it ava.,y, or subject it to Presidential control!!! vetoes, etc., even if Congress wanted to, short of an amendment of the Federal Constitution itself. In Mr. Robinson's view, "It is not necessary for Congress to state the obvious where its own clear constitutional powers are involved."

Two devices a.re used by Congres1 to preserve the integrity ot its control over its ovn proceedings.

324

I

I I

Firstly, Mr. Robinson report1, nearly every statute which purporti to regulate aspects ot Congressional organization, management and procedure has inserted into it a standard provision which reatates, in slightly varying form, the power ot the two branches to adopt and amend their own rules. ~, Section 904 ot the Congressional Budget Act ot 1974, u amended, providea that--

(a) The provision. ot this title c~xcept section 905) and ot titles I, III, and r.v and the provisions ot section. 6o6, 701, 703, and 1017 are enacted by th~ Congre11--

(l) as an exercise ot the rulemalti.Dg power ot the Hou.ae ot Repreaentative1 and the Senate, respectively, and aa such they ah&ll be considered as part ot the rules ot each House, respectively, or ot that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are incon1i1tent therewith; and

(2) with .tull recognition ot the constitutional right ot either House to change such rules (10 tar as re1ating to such House) at any time, in the same manner, and to the same extent as in the case ot any other rule of such House.

{b) Any provision ot title III or r.v my be waived 01•

suspended in the Senate by a majority vote of the Members voting, a quorum being present, or by the unanimous consent ot the Senate.

( c) Appeals in the Senate from the decisions ot the Chair relati.Dg to any provision ot title III or 'IV or section 1017 sball, except as otherwise provided therein, be limited to 1 hour, to be equally divideti between, and controlled by, the mover and the .manager ot the resolution, concurrent resolution, reconciliation bill, or rescission bill, as the case ~ be. (88 Stat. 297; 31 USC 1302-1353.)

On March 20, 1975, Speaker Carl Albert ruled that pursuant to this section, and under authority conferred by House Rule XI(a)(b) to report on rules and the order ot budness, the Hou.ae Coamittee on Rules 'llJ4Y report aa privileged a resolution recommending that Section 4o1 of the CongreHional Budget Act be waived during consideration or designated legislation in the House.

Secondly, Mr. Robinson advises ua, Congreaa has asserted its supremacy over its own rule-making procedures in the rule-making process itself.

The House of Representatives takes the position that a newly-elected House is not subject to an;y ot these statutory "rules" provisions, except insofar as it agrees to be subject to the same. Accordingly, the motion offered on the first day ot session of the new bien.'liUlll for the adoption of rulea by the House follows the pattern of the vote taken below by the present House of Representatives in the 98th Congress on January 3, 1983:

325

''Resolved, That the Rules of the Houae ot Representatives of the Ninety-Seventh Congre11, including all applicable prov11ion1 ot law and concurrent resolutions adopted pursuant thereto, which constituted the Rule1 ot the House at the end ot the Ninety-Seventh Congress be, and they are hereby, adopted as .tbe Rules ot the House ot Representatives of the N1nety-!1ghth Congress, with the following amendments included tberein as part thereof, to wit ••• " (Congressional Record, House, January 3, 1983, pp. H5-H6)

The text of the amendments, set forth in the resolution as adopted, we need not quote here.

In addition, House Rule XLII mandates that --

The rules of parliamentary practice compriaed in Jetteraon'a ManuAl and the provision• of the Legislative !eorsanir.ation Act ot 1946, as amended, shall govern the House 1n all cases to which they are applicable, and in which they are not incondstent with the standing rules and orders ot the House and joint rules. ot the Senate and Houae ot Representative1.

The United States Senate baa not deemed it neceaaary to adopt a similar rule. Senate rules are continuing, as the Senate ia a continuing body vhicb does not have to readopt its rules biennially.

I hope that this information ii helptul. It we can be ot &Jl1 turther assistance, please let me know.

DK>/tc

326

LEGISI.ATIVE RESFARCH BUREAU

Memorandum

November 8, 1983

To: Mr. John M. Mullen, Esq., Special Counsel to the Senate President

From: Mr. Daniel M. O'Sullivan, Director

Subject: COMMENTS RE REPLY FOR PLAINTIFFS IN B\ISNER V, BIT.LCfl'TI

On the Merits of a Court O~der or an Advisory Opinion

The issues raised in the opposing briefs will not be resolved by an order to the Attorney General to certify the initiative measure as being in proper form for submission to the people, nor by a compromise whereby the General Court or either branch thereof would submit constitutional issues to the Court for an advisory opinion a~er the.initiative measure is introduced into the 1984 General Court (if not held invalid at this stage of proceedings).

If the Attorney General were ordered to certify the measure as being in proper form and the measure is subsequently approved by the people (as it likely will be), irreparable damage will occur to the constitutional structure of government and to the judicial-legislative relationship.

The Legislature is bound to assert its constitutional rights and prerogatives. The Legislature will not surrender its status as a coequal branch of government. It would be folly to believe that the Legislature would feel bound by a popular enacted statute that intrudes upon its constitutionallyprotected rights. If the Legislature opts to ignore the statute, there would ensue a chamber of horrors scenario, The legislative process would be reduced to continuous conflict of rules challenges at virtually every phase of a bill's progress. Proponents and opponents of a given bill would be in a position to cripple.the legislative process by raising objections during hearings, over committee reports, and to amendments offered on the floor. Points of order would become a nightmare because they, along with other objections, could all become the basis of legal challenges that statutory provisions have been violated requiring court intervention and resolution. Relationships between the legislative and judicial branches of government may be poisoned to the detriment of both •

Such potential turmoil would not only disrupt the conduct of government but virtually bring it to a standstill if such challenges involved major legislation such as a bond issue, a general appropriations measure, or some crucial capital outlay expenditure measure. Rights of individuals and corporations would be in limbo until the Court settled the issue thereby raised. Thus, it is unrealistic to conceive of a Legislature bowing to a popular statute that would in effect not reform the legislative process, but rather cripple it.

Nor would an advisory opinion by the Court provide a long term solution to the issues. Advisory opinions are not binding case law. Once the people enact the measure, the Court would be faced with arguments that the statute is controlling and thus the stage would be set for the potential law suits cited above.

327

The issues before the Court should be addressed now and resolved now by a decision. Delay and further litigation will only foster an unmanageable result and in the end the Court will be faced with the more difficult problem of entanglement with the affairs of another branch of government.

Excluded Matters Question

With respect to arguments presented in opposing briefs concerning the "excluded matters" controversy, it is argued here that the controlling language is in that clause of S. 3 wherein the Attorney General is required to certify that the measure "contains only subjects not excluded from the o ular initiative and which are related or which are mutually dependent... emphasis added ,

1. The choice of words by the dra~sman appear to be a deliberate and clear open-ended expression of intent.

2. The dra~sman did not restrict the scope of exclusionary matters by adding qualifying language such as "under this section" or ''under Section 2 of this article."

3. Being open-ended in expressed intent, it follows that ~ matter, the subject of which is excluded from the popular initiative, whether explicit as in Section 2 or implitit, such as in the subject matter of constitutional provisions reserving certain powers exclusively to each branch of the Legislature, is within the scope of excluded matters to be acted upon by the Attorney General.

4. The Constitution explicitly dictates that certain matters are the exclusive domain of each branch of the General Court. It is preposterous for Plaintiff to argue that because Article 48 does not include an express reference to the subject matter of these constitutional provisions among subjects to be excluded from an initiative measure, they cannot be relied upon by the Attorney General as a reason for refusing to certify an initiative measure. Plaintiff cannot wish away these constitutional dictates by burying his head in the sand. Section 3 recognizes that references to excluded matters ins. 2 are not an all-inclusive recitation of subjects to be excluded from an initiative measure. Section 3 is a clear, open-ended expression of intent which allows flexibility in a rational application of the Attorney General's certil'ication function. The language of S. 3 should be controlling.

Preell!Ption of Statutes by Congressional Rules and Resolutions

It is simply not true to state, as the Plaintiffs' reply brief alleges at Page 22 and elsewhere thereby, that the houses of Congress may adopt rules or resolutions unilaterally which are at odds with legislative procedures set out in statutes only because those statutes expressly allow for these actions to take place. Such an assertion flies in the face of the precedents and practices of Congress, as described at Pages 64-67 of the Supplementary Appendix of the brief of the Defendant-Intervener Senate President.

328

I \

The unilateral authority of either house of Congress to depart from a procedure set out !n statute comes not from that statute, as suggested by the Counsel to the Plaintiff, but from the Constitution itself, which authorizes each house to adopt its own rules. In providing expressly in a statute that some legislative procedure described therein may be departed from by either house through the adoption of rules, resolutions or other motions, Congress does not create such a right of departure, but merely recognizes the existence of that right created by the Constitution, and indicates its role within the statutory scheme. It is not uncommon for Congress or state legislatures to repeat the substance of certain constitutional provisions or of certain recognized constitutional principles in statutes as a matter of convenience.

Jefferson's Manual emphasizes that--

The power of each House of Representatives to make its own rules may not be impaired or controlled by the rules of a preceding House ..• or by a law passed by a prior Congress ••. The House in adopting its rules may, however, incorporate by reference as a part thereof all applicable provisions of law which constituted the Rules of the House at the end of the preceding Congress ••• The ordinary rights and functions of the House under the Constitution are exercised in accordance with the Rules ••• and under later decisions questions of ••• constitutional privilege should also be considered in accordance with the rules. But a law passed by an existing Congress with the concurrence of the House has been recognized by that House as of binding force in matters of procedure .•• (94th Congress, House Doc. No. 94-663, p. 27).

This point is noted also in Deschler's Precedents of the United States House of Representatives:

The House, through the rulings of the Speaker, has interpreted its constitutional power to determine its own procedural rules very broadly. Since the late 1800s, the rulings of the Speaker on the subject have consistently embodied the principle that such power must be exercised by each Congress. The procedural rules of the preceding Congress are no longer in effect at the opening session of the new Congress, and the House proceeds under general parliamentary law until the rules are adopted. Similarly, Congress may not, by rule or statute, provide that the House is to be governed by certain procedural rules during a future Congress. Such provisions must be incorporated into the standing rules by the current House if they are to be in effect. (Vol. I, c. I, s. 10, Page 61.)

The above statement is supported in Deschler by lengthy citations of relevant rulings by Speakers of the United States House of Representatives (Ibid., pp. 63-70).

The Legislative Research Bureau letter to the Senate President and then House Majority Leader, dated August 26, 1983, reprinted at Page 65 of the Supplemental Appendix to the Defendant-Intervener's brief, reports that--

329

••• (We) ••• have received pertinent information from Mr. Peter D. Robinson, Assistant Parliamentarian of the United States House of Representatives, which may interest you.

Mr. Robinson has advised us that the United Sta~es Congress does, indeed, use statutes to regulate aspects of its organization, procedures and management, as a matter of legislative convenience on1y, and conditioned upon a clear reservation of the constitutional ri ht of each branch of Co ress to ad t its own rules free of external interference U.S. Const., Art. I, s. 5 • Congress has taken great care to assure that its use of statutes to deal with its own operations shall not be construed judicially to constitute an abdication of its exclusive control over its own proceedings and organization. ·

Indeed, it is the view of the House Parliamentarian that Congressional authority on the subject is so obviously exclusive under the Constitution that there is no real need for Congress to state it; moreover, he advises us that the nature of the power of Congress over its own rules is such that Congress could not give it away, or subject it to Presidential control via vetoes, etc., even if Congress wanted to, short of an amendment of the Federal Constitution itself. In Mr. Robinson's view, "It is not necessary for Congress to state the obvious where its own clear constitutional powers are involved."

Similar views have been expressed by Mr. Robert B. Dove, Parliamentarian of the United States Senate, which were reported by the Legislative Research Bureau in a letter to John M. Mullen, Esq., dated October 4, 1983:

Mr. Dove emphasized that the United States Senate, as a continuing body, does not adopt new rules biennially. Its present rules were adopted in 1884, and have continued in force since then, being amended from time to time as the Senate has desired.

He informs us, further, that the Senate does not follow the House practice of "accepting" or "readopting" the provisions of federal statutes governing legislative procedure at biennial intervals when a newly-elected Congress opens its proceedings. Like the House, the Senate also takes the position that the rules of each chamber take precedence over these statutes, that such statutes are used only as a matter of public and legislative convenience, and that either branch may set aside a legislative procedural requirement of such a statute by the adoption of a suitable rule or resolution free of inhibition by the other chamber or by the President.

In general, when the Senate wishes to depart from a statutorily-prescribed legislative procedure in a particular instance, it simply adopts a suitably-phrased resolution authorizing such a departure, or otherwise waiving the statutory requirement. The phrasing of the resolution depends on the circumstances, and does not have to follow any uniform format. The adoption of such a resolution represents a unilateral exercise by the Senate of its constitutionally independent rule-making power.

330

Mr. Dove reported that Senate resolutions of this character arise, for example, when the passage of key legislation, such as an appropriation bill, has been delayed by political in-fighting to the point that procedural requirements must be short-cut in order to get the measure enacted in time.

Mr. Dove stated that the Senate as a body, rather than its presiding officer alone, settles points of order raised under statutory provisions regulating legislative procedures.

It is thus evident that the independent authority of either house to depart from any statutorily-enunciated legislative procedural rule flows from the superior document, the Constitution, and not the inferior statute. The obvious legislative intent of 5 u.s.c. s. 908, and like provisions cited in the Plaintiffs' reply brief is to restate, and not to limit, the constitutional principle that each house shall have the authority to determine its own procedures and internal organization.

Hence, it is the Plaintiffs' denial of these principles, and not the Attorney General's assertion of them, which is "startling" and without "authority," to use the language of Plaintiffs' reply brief at Page 18.

331

Members of Council

SEN. ANNA P. BUCKLEY of Plymouth, Chairman SEN. JOSEPH B. WALSH of Suffolk SEN. JOHN F. PARKER of Bristol, Minority Leader SEN. PETER C. WEBBER of Berkshire REP. ROBERTO. McNEIL of Leicester Howe Chairman REP. WILLIAM J. FLYNN. JR of Hanov~r REP. WILLIAM P. NAGLE,/H. of Northampton REP. JOSEPH M. NW!\ o Marlborough REP. IRIS K. Hou~\\D of Longmeadow REP. SHER~!.\'.' \y. S.ALTMARSll. JR of Winchester REP. BRL'CE N. F R~~E~IA'.' of Chelmsford REP. CHARLES:'\. DEl.\S of Wareham

Legislative Rest·arch Rurt>au DANIEi. ~I. O"SL LUI.\\. Dir-ector RoHEHT D. \\'rnH. Assistar;t Directu1·

LEGISLATIVE RESEARCH COUNCIL LEGISLATIVE RESEARCH BUREAU

11 BEACON STREET, BOSTON, MASSACHUSETTS 02108 SUITE 1212

TELEPHONES: 722-2345 722-2028

August 26, 1983

Representative George Keverian, Majority Leader State House Boston, MA. 02133

Dear Representative Keverian:

In response to your request for research and information relative to the constitutional and legal issues associated with the proposed initiative which would, among other things, materially affect the internal roles and procedures of the Massachusetts Legislature, we present the following data.

The issue of whether a statute can be enacted by the initiative process to establish, amend or repeal rules of procedure of the Legislature involves the resolution of an apparent conflict between Articles of the Massachusetts Constitution. Part 2, c. 1, s. 11, art. VI and Part 2, c. 1, ~. 11, art. X gives the power to each branch of the Massachusetts Legislature to determine its own rules and proceedings.

The sena.te shall choose its own president, appoint its own officers and determine its own rules of proceedings (emphasis supplied) (Fart 2, c. 1, s. 11, art. VI).

The house of representatives shall be the judge of the returns, elections and qualification of its own members as pointed out in the constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceedings in their own house. (emphasis supplied) (Part 2, c. I, s. 11, art. X).

Article 48 of the Amendments to the Constitution grants to the people of Massachusetts the right to propose a statute by initiative to the Legislature and if the Legislature fails to enact the statute or a close substitute, to propose the statute to the voters for their approval or disapproval. The Massachusetts Constitution does not expressly prohibit statutes, whether enacted by the initiative or by the Legislature, from dealing with legislative rules. Any prohibition must be found by inference.

332

The Supreme Judicial Court has laid down guidelines on the subject of construing the Massachusetts Constitution. In Tax Commissioner v. Putnam,l the Court stated:

The Constitution of Massachusetts is a frame of government for a sovereign power. It was designed by its framers and accepted by the people as an enduring instrument, so comprehensive and general in its terms that a free, intelligent and moral body of citizens might govern themselves under its beneficent provisions through radical changes in social, economic and industrial conditions. It decla.res only fundamental principles as to the form of government and the mode in which it shall be exercised. Certain great powers are conferred and some limitations as to their exercise are established. The original Constitution and all its Amendments together form one instrument ••• It is a grant from the sovereign people and not the exercise of a delegated power. It is a statement of general principles and not a specification of details. (emphasis supplied)

In Attorney General v. Methuen, 2 the Court reiterated the generalist interpretation of the Constitution and its amendments by stating that its words are chosen to be a "brief and comprehensive statement of a general principle of government" and "its phrases are chosen to express generic ideas and not nice shades of distinction."

Given the Court's view that the Constitution is presumed to state its propositions in the most simplistic terms and is to be construed accordingly, it seems clear that the two relevant sections of the Constitution dealing with the power of the Legislature's two branches to determine their own internal ruies and proceedings are meant to be all-inclusive and not subject to statutory restrictions.

The Constitution of Massachusetts as adopted in 1780 provided that all power to enact law was vested in the Legislature.3 By Article 48 of the Amendments adopted by the people in 1918, provision was made whereby in a carefully prescribed manner and with certain precisely drawn safeguards designed to make certain that there should exist a wide popular demand, to prevent hasty action, to promote wide publicity and to acquaint the voters with the proposed laws and with the arguments for and against them, laws could be enacted by popular vote except in relation to certain excluded matters. Cases have held that the p~o~le are bound by the provisions and conditions that they themselves have placed in the initiative process and when they seek to enact laws by popular vote they must do so in strict compliance with tlnse provisions and conditions, and failure to comply will mean that no valid law has been enacted no matter how great the popular majority may have been in its favor.4

1

2

227 Mass. 522-23 (1917).

236 Mass. 564, 573 (1921).

3 Mass. Con., Part 2, c. 1, art. IV.

4 See Bowe v. Secretary of the Commonwealth

333

320 Mass. 230 (1946).

Under the provisions of Articles 48 and 74 of the Amendments to the Constitution, any ten qualified voters of the Commonwealth may draw up and sign an initiative petition containing the full text of the law proposed by the petition. This petition must be submitted to the Attorney General no later than the first Wedn~sdRy in the August next preceding the asse~bly of the General Court for the session in which it is to be introduced. The Attorney General must certify that the petition is in the proper form, does not contain excluded matter and is not substaintially similar to any measure that has been submitted to the people at either of the preceding two state elections.

It is undisputed that the initiative process was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court. It affords the people an opportunity to enact statutes regardless of legislative opposition. As stated by one delegate to the Constitutional Convention which produced Article 48 of the Amendments: "The principle of the initiative and referendum is it permits means whereby the people of this Commonwealth may have such laws and may have such a Cora titution as they sE=e fit to adopt .1

However, there is nothing to be found in a review of the debates of the M;rnsachusetts Constitutional Convention of 1918 that would suggest that there was the intent to draft what would amount to a direct usurpation of the Legislature 1 s authority to set its own rules.

Pre-Enactment Challenge

The ability to challenge a proposed initiative or a law enact~d by the initiative process on constitutional grounds is limited. The question of whether or not the Supreme Judicial Court would deterrnire the legal or constitutional propriety of an initiative prior to its becoming a law is addressed in a 1978 Opinion of the Justices to the Senate. 2 The Court said:

Supporative 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 •..•

•••. But when we are asked to discharge our constitutional duty to advise a branch of the Legislature regarding the constitutionality of a law proposed by initiative petition, we are obliged to respond as long as our answers will assist the requesting House in the performance of a present duty.

The case makes the furth.:::r· observation that the Court has not hesitated to consider the question of whether the proposed law related to matters excluded from the initiative process by Section 2 of Article 1+8 which reads as rofiows:

l

2

Section 2. Excluded Matters. No law that relates to i:Plig:'._or., religious practices or religious institutions; or t.o the appointment, qualification, tenure, removal or compensation of judges; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular

Joseph Walker, Debates on the Massachusetts Corn titutional Convention 1917-1918 p. 16.

37'.> Mass. 85.

334

town, city or other political division or to particular districts or localities of the commonwealth; or that appropriates money for the current or ordinary expenses of the commonwealth or for any of its departments, boards, commissions or institutions shall be subject of a referendum petition.

Thus, it would appear that the constitutionality of the purpose of a proposed initiative is not open to challenge by a private citizen or an 11 interest'ed party, 11 excepting the Legislature seeking an advisory opinion, before the matter becomes law. But the issue of whetl'Er the subject matter of the ifitiative is excluded from the initiative process may be taken up by the Court.

The SuprP.me .Judicial Court in Bowe v. Secretary of the Commonwealth had also indicated that it is disinclined to volunteer an opinion as to the constitutionality of a proposal or statute before there is a case in controversy:

It is the court's duty and privilege to remain silent and inactive, until some case comes before it in which the rights of the parties depend upon the constitutional validity of the statutes. That only when the impact of a statute upon parti-cular individuals, who have both this incentive to defend their rights by argument, and upon a set of definite facts established after genuine controversy, has been shown, can a court decide a constitutional question with confidence that relevant considerations have not been overlooked.2

Further, the case answers any inquiry that might be addressed to the possibility of the Supreme .Judicial Court voiding an initiative before it becomes law on the basis of apparent unconstitutionality. Citing several previous cases,3 this opinion states:

The people acting by means of the initiative, like the General Court, can enact measures toot violate the fundamental and supreme law of the Constitution and that consequently have no force or effect. But no court can interfere with the pDocess of legislation either by the General Court or by the people before it is completed to prevent the possible enactment of an unconstitutional measure.

I Horton v. Attorney General 269 Mass. 503, 511, 512. Christian v. Secretary of the Commonwealth 283 Mass. 98. Mount Washington v. Cook 2~Mass. 67. 21'.inion of the Justices 294 Mass. 607, 609. Opinion of the Justices 297 Mass. 577. Opinion of the Justices 303 Mass. 615, 626. Evans v. Secretary of the Commonwealth 306 Mass. 296.

2 320 Mass. 230, 246 (1946).

3 Horton v. Attorney General 269 Mass. 503, 514 (1930)~ 0pinion of the Justices

309 Mas~.(571~)58o ,1941); Prentis v. Atlantic Coast Line Company 211 U.S. 210' 22t) i 900 •

335

Post-Enactment Challenge.

The question arises as to who is a party with sufficient interest to bring an action challenging the propriety of an initiative after it becomes law. The answer is clearly found in Sears v. Treasurer and Receiver General. 1 This was a petition for a writ of mandamus brought in 1957 by 11 citiz~ns of the Commonwealth "interested in the execution of laws" against the Treasurer and Receiver General and the Commissioner of Public Welfare to command the respondent to refrain from paying out any money or taking any action whatever under a purported law proposed by the initiative which was voted upon favorably at the state election in November 1950, and which would strike out Chapter 118A of the General Laws in its entirety and substitute a new Chapter 118 containing many provi<>ions s1~bstantially different from those of the existing law. It was alleged that in severa 1 enumsrated particulars the new law was not adopted within the requirements for initiative laws laid down in Articles 48 and 74 of the Amendments to the Constitution. A demurrer in the case charged that the petitioners have no interest in the subject matter of the petition. In deQ.Ying the demurrer, the Supreme Judicial Court referred to Brewster v. Sherman 2 and other decisions.3 In the Brewster case, a single petitioner was allowed to maintain a petition for a writ of mandamus to correct an error of the register of voters of a town in counting a ballot on the issue of whether licenses should be granted for the sale of intoxicating liquors. The petitioner had no private interest in the subject matter and no interest at all different from that of state voters and taxpayers of th= town. He was allowed to maintain the petition on the ground that the question was "one of pub1ic right" and that tre object of the petition was to "procure the enforcement of a legal duty," the people as a whole being "regarded as the real party in interest." It appears therefore that the court would consider any citizen as a party in interest to the current controversy.

Relevancy of 1978 Advisory Opinion.

Undoubtedly, the case that will be relied upon most heavily to justify a statutory intrusion on the rule-making pnwemof the legislative branch is a 1978 advisory opinion of the Supreme Judicial Court4 which was sought by the State Senate in connection with an initiative petition entitled "An Act to Control Conflicts of Interest by Public Officials." 5 The relevant portion of the Court's decision is as follows:

1

2

The Senate is empowered to "determine !.ts own rules of proceedings." Part II c. 1, s. 2, art. 7, of the Massachusetts Constitution. Similarly, the House is authorized to "settle the rules and orders of proceeding in their own house." Part II c. 1, s. 3, art. 10, of the Massachusetts Constitution. Assuming that

327 Mass. 310 (1957).

195 Mass. 224 (1907),

3 Attorney General v. Boston 123 Mass. 460 (1877); Bro·'.)ks v. Secretary of the Commonwe<ilth 257 Mass. 91 (1926); Morrissey v. State Ballot Law Commission 312 Mass. 121 (1942).

4

5

Opinion of the .JUEtices to the Senate 375 Mass. 795 (1978).

rbuse, NJ. 5151 '.)f 1978.

336

-.lr.\

the proposed law relates to matters within the rule-making province of the General Court, we perceive no constitutional violation. Nothing in the Constitution prescribes the manner in which the General Court must exercise its rule-making power. It has exercised this authority through the adoption of separate sets of rules regulating the proceedings in the respective legislative branches, as well as joint rules regulating proceedings in both houses. However, it has also done so through the legislative process. See, for example, G.L. c. 3, s. 32A (regulating travel expenditures incurred by special commissions and by special or standing committees of the General Court); s.38A (requiring joint committees of the General Court and the committees on ways and means to include fiscal note .when reporting favorably on most bills); s.38 B (requiring the committee on ways and means in each branch or the joint committee on ways and means to hold public hearings on certain matters); and s.65 (establishing a Senate art committee). This legislative practice reinforces our view that the General Court is free to exercise its constitutional rule-making power through the legislative process. Thus, even if the proposed law would in some respect affect proceedings in the General Court, it would not intrude on the right of the Senate and the House to determine their own rules.

Our conclusion would be the same whether the measure were passed by vote of the General Court or by vote of the people, for, except as to matters expressly excluded, the scope of the power of the people to enact laws directly is as extensive as that of the General Court. The matter of regulating legislative proceedings is not excluded from the initiative process. Art. 48, The Initiative, II, s. 2. We note that, if the Legislature chooses, it may sub-mit to the people alegislative substitute eliminating or modifying provisions relating to legislative proceedings. Art. 48, The Initiative, III, s. 2. In the event the people adopt the initiative measure rather than a substitute measure, the Legislature retains the right to amend or repeal the measure. Art. 48, General Provisions, VI. 1

However, the difficulty in applying the supposed maxims in this case to the present initiative is that one must assume that a statutory enactment is considered superior in weight and authority to a rule adopted by the Legislature under its co~s~ituticnal authorito-.Nothing could be further from the truth. The fact that the Legislature elected to put certain rules changes in statutory form was probably motivated by an attempt to give these rules a degree of apparent permanence that they would not otherwise have. These attempts must fail in the event there develops a conflict between a rule established by either House and a statute which operates as a de facto rule. The reasoning is as follows:

1

1. Part I, Article XXX of the State Constitution reads:

••• In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them;

Opinbn of the Justices, supra, 816-818.

337

the executive shall never exercise the legislative and judicial powers, or either of them; and judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

This is the classic declaration of the "separation of powers" doctrine seen in the federal and many state constitutions. Its application to the initiative under discussion is that it clearly sets out the proposition that it is constitutionally impermissible for the executive branch to interfere in the operation of the legislative branch. Thus a statute purporting to adopt rules of behavior in its internal operation for the Legislature must fail because the adoption of such a statute, or the repeal thereof, would require the action of the executive branch, that is, the approval of the Governor.

2. Such a statute would allow one House to control the internal operations of the other House, a practice prohibited by the State Constitution. Again, the reason can be seen more particularly in the repeal process of a statute. The process of repealing a statute in place which in some way governs the operation of the Legislature involves the same procedural steps as i:ts enactment. Both branches muGt enact it separately, and one House, if it declined to vote in favor of repeal would effectively impose its own will on the other House by perpetuating the original statute.

3. The statute as envisioned by the initiative would control succeeding legislatures. It is axiomatic that one legislature cannot bind a legislature that follows it. When the Legislature opens its session, it effectively has no rules of procedure. When it adopts its rules of operating procedure, they are, from a legal point of view, new rules. The fact that they are, in most instances, similar to the rules adopted by previous legislatures is irrelevant. There is no mandatory carryover provided for in the authority delegated to the Legislature to adopt its own rules; and any statute that purports to restrict a succeeding legislature's ability to govern its own operating procedure is u¥J.constitutional.

Assuming, arguendo, the above hypothesis to be correct, several conclusions logically follow:

1. Any statute which purports to change the internal operation of the Legislature, if constitutionally permissible, is subordinate to the Legislature's sole and complete power to govern itself.

2. Such a statute· setting rules of the Legislature may be ignored by the Legislature in its exercise of its constitutional power to adopt rules.

3. Such a statute, voidable by unilateral action of the Legislature, and not necessarily by the repeal process, is not a statute at all and is, therefore not subject to the initiative process.

The facts in the 1978 opinion can be differentiated from the present matter in an important way. In the prior case, the Court was called upon to render an opinion on a proposal that, unlike the present proposal, sought to govern conduct far beyond the halls of the Legislature. It purported to set up the body now known as the State Ethics Commission. The purpose of this Commission was to apply

338

responsibilities and standards of behavior to all public officials at every level of government below the federal government. It established rules and penalties for public personnel for activities that had nothing to do with the Legislature. Its effect on internal legislative operation, although present, was minimal. It could be argued that the Court felt comfortable in its 1978 decision because it was making a comparison with the proposed law then before it with more obvious examples of statutes which were designed to have a general effect on the population as a whole but would certainly impose constraints on the actions of legislators as they sa.t in the legislative chamber. Certainly, there is no immunity granted by the Constitution preventing a statute from being enacted that would penalize a legislator from committing murder, mayhem or larceny within the chamber and the proposal may have been seen as another law of similar general application.

On the ofu:r hand, elements of the current proposed initiative contain direct regulations on activity solely within the provinces of the organization and procedures of the Legislature. More flagrant examples are the provisions for the ~lectioL of Speakers by secret ballot and the designation of committee chairmen by caucus. There is not a scintilla of effect of these proposals on any activity outside the Legislature. They would change dramatically the internal operation of the Legislature, its ideological form and its influence and power over the Commonwealth's affairs, an· effect clearly not intended by the dra~ers of the State Constitution or its amendments to be accomplished by statutory enactment through the initiative process.

Finally, the people, by the Constitution, created the legislative branch of government as well as the judicial and the executive branches, and conferred, and at the same time, limited the powersof each of them. 1 Each must act pursuant to the Constitution and within the authority conferred by it. There are, therefore, different levels of authority relative to enactment, statutory authority and the higher constitutional authority, and it is clear that a provision contained in a statute cannot have any force of law if it conflicts with any grant of power contained in the higher laws of the Constitution. 2

R~lated Subjects

It may be argued that the presence of diverse provisions in the initiative violate the requirement of Article 48, The Initiative, Part II, Section 3, that an initiative measure contain "only subjects ••• which are related or which are mutually dependent. 11 The Supreme Judicial Court addressed the issue in a 1981 case3 involving the Proposition 2 1/2 initiative and pointed out, "It is clear ••• that an initiative measure may include more than one subject. The constitutional requirement is only that those subjects be related." The Court in this case referred to an earlier decision concerning a 1941 initiative which sought to permit contraceptive advice to married persons and, addit\onally, allowed the teaching of the subject in chartered medical pchuols as well as the publication and sale of medical treatises on such matters.4 The Justices in that case concluded that "the particular subjects of the

1 Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 245 (1946). 2 Shaffer v. Lemberg, 318 Mass. 396, 400, 401 (1945); Adkus v. Children's Hosyiital,

261 U.S. 525, 544 (1922); United States v. Butler, 297 U.S. 1, 62, 63 (193~ Carter v. Carter Coal Co., 298 U.S. 238, 296, 297 (1935).

3 Massachusetts Teachers Association et al. v. Secretary of the Cow.monwealth et al., 1764 Mass. Adv. Sh. (1981).

4 Opinion of the Justices, 309 Mass. 555 (1941).

339

proposed law appear to be germane to the general subject of prevention of pregnancy or conception, to such an extent, at least, that they cannot rightly be said to be unrelated."1

There has been only limited discussion in reported opinions concerning the 11 related subject" limitation of Article 48. However, the language in the 1981 Propo· sition 2 1/2 decision addresses the point rather directly and would suggest that the Court would apply a rather liberal standard:

Of course, the general subject of an initiative proposal cannot be so broad as to render the "related subjects" limitation meaningless. If, however, one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane, the relatedness test is met. It is not for the courts to say that logically and consistently other matters might have been included or that particular subjects might have been dealt with differently. Unlike the situation in other States, the single subject concept has not been a part of the legislative process in this Commonwealth, and we see no justification for importing that concept into the less restrictive limitation of "related subjects" •••

••• The proper approach, ••• is to assess what a proposed initiative does in its various aspects or subjects and to determine whether there is a common purpose to which each element is germane or, at least, to which it "cannot rightly be said to be unrelated," Opinion of the Justices, 309 Mass. 555, 561 (1941). All the subjects included in Proposition 2 1/2 relate directly or indirectly to the limitation of State and local taxation.

The requisite disparity of purpose in the present initiative, if found at all, would probably be found in the difference between the bulk of the initiative which seeks to change, by statute, the internal organization and procedures of the Legislature which more properly should be done by legislative rule or an Initiative Amendment to the Constitution, and the provision which seeks to reduce the salaries of certain leadership positions in the Legislature, which rrrust be done by statute.

Survey of States With Initiative Provisions

To ascertain the experience of other states with initiative petitions which proposed statutes prescribing the rules of procedure of their Legislatures, the Bureau sent letters to legislative research agencies of the following 20 states which have the initiative process:

Alaska Arizona Arkansas California Colorado

1 Ibid.' 561.

Idaho Maine Michigan Missouri Montana

340

Nebraska Nevada North Dakota Ohio Oklahoma

.Oregon South Dakota Utah Wt:1shington Wybming

To date, responses have been received from 12 states:

Arizona Idaho Nevada Oregon Arkansas Missouri North Dakota Washington Colorado Montana Ohio Wyoming

The responses indicated that such states, in addition to having prov1s1ons for initiative, have constitutional provisions which provide that their legislatures shall establish their own rules of procedure. None of the 12 states reported that an initiative proposal which purported to change legislative procedures had ever been submitted. The respondents from seven of the states (Ark., Colo., Ida., Nev., N.D., Wash., and Wyo.) expressed the opinion that such an initiative would be unconstitutional. The other states expressed no OP.inion.

The North Dakota Legislative Council directs attention to Section 7.04 of Sutherland Statutory Construction which contains the following:

The decisions are nearly unanimous in holding that an act cannot be declared invalid for failure of a house to observe its own rules. Courts will not inquire whether such rules have been observed in the passage of the act. Likewise, the legislature by statute or joint resolution cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation.

The response of the Legislative Council of the State of Idaho is characteristic. It states in part:

While we have never been faced with quite the same situation as you describe for your state, it is a well accepted maxim here in Idaho that the legislature's ability to prescribe its own rules of procedure is a constitutional grant of power, and is not subject to interference by either the executive branch or the judicial branch. Accordingly, rules properly adopted would

' control over law, whether such law was enacted by the legislature itself, or initiated by popular vote. It is our opinion that if an initiative attempted to circumvent strictly legislative processes, we would have such an attempt declared "out of order" by the state supreme court.

A response from the Senate Judiciary Committee of the State of Washington forwarded a more expansive answer:

Our research has not turned up any initiatives which have attempted to establish, amend, or repeal rules of the Washington State Legislature or either house thereof, nor have the courts addressed this issue directly.

The Washington State Constitution in Article II, Section 1, states:

The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the powers to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature •••

341

Courts have interpreted this section to mean that the lawmaking power of the people to enact laws through the initiative process is as broad as the lawmaking power of the legislature -the theory being that the people share equal legislative sovereignty with the legislature. The people, therefore, could legally enact any law not expressly or inferentially prohibited by our State Constitution, the Constitution being a limitation, not a grant of power.

With that background, Article II, Section 9 speaks to establishing rules of procedure: "Each house may determine the rules of its own proceedings ••• " This would appear to constitutionally limit this function to the legislative body.

In addition, our courts have held that a legislature has no right to enact a law which would be binding upon future legislatures. The general rule is that one legislature cannot abridge the power of a succeeding legislature and succeeding legislatures may repeal or modify acts of former legislatures. Gruen v. State Tax Commission, 35 Wn. 2d 1 (1949). Thus, any initiative which would create rules for future legislatures would encounter difficulties.

The Legislative Counsel Committee of the State of Oregon indicated that several Oregon Attorneys General have written opinions interpreting the provisions of the Oregon Constitution, Article IV, Section 11, and all have held that "under this section, the House of Representatives and the Senate have constitutional authority, without limitation, to determine their own rules of proceedings ••• " 27 Op. Atty Gen. 57 (1954-56).

Lastly, telephone inquiries to Political Science academicians and legislative officials in California have revealed that a similar initiative statutory proposal to regulate the operation and administration of the Legislature has been filed. (The Legislative Counsel will send copies.) It has been approved by the Attorney General as valid and the petitioners are currently gathering the required signatures of voters.

Commonly described as the "Gann Initiative" and authored by a group of conservatives, the measrn~e, among other provisions, would:

(1) Decrease (effoctive upon voter approval of the initiative; California hets 1-t~.e direct initiative process) the expenses of the Legislature by 3CP/o;

(2) In succeeding years, limit increases in appropriations for the operation of the Legislature to that percentage authorized for increases in General Fund appropriations, the latter being geared to increases in the State's personal income;

(3) Remove the power of the Senate Majority Leader (the Lt. Governor presides over the Senate) and House Speaker to appoint the membership of legislative committees and transfer authority thereof to the caucuses of the respective parties; .and

342

I ; (

I'

'

~~

(4) Require a two-thirds majority vote for changes in legislative rules.

To date, the legislative leadership has not undertaken any investigation or other action ~ the proposal, preferring to wait until the petitioners file their signatures with the Secretary of State. Moreover, according to the Legislative Counsel, the leadership is more disturbed over an initiative measure re legislative apportionment.

The California Legislative Counsel, Bion Gregory, and myself have agreed to exchange information as developments unfold on this critical issue.

343

s iricere.ly yours, ~-1/ _ .{· I - - --? , I (/ ti \ -- I -- 1 I "--~/,-, .1 '/ . l /I ·. V( //f.f{ (.l

."'\._,,:;-(!-f({e,._,./'/ ~i_ (, -·,--~- --Daniel M. O'Sulliva~--~D_jxector Legislative Research Bureau

1.

2.

From the Brief of Defendant - Intervenor

SUPPLEMENTAL APPENDIX

Table of Contents

Letter dated August 18, 1983, from William M. Bulger to Francis X. Bellotti

lA. Exhibit A attached to August 18, 1983, letter

Letter dated August 31, 1983, from William M. Bulger to Francis X. Bellotti

A. Attachments to August 31, 1983, letter:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

Marginal Note by Coke, E., The Fourth Part of the Institutes of the Laws of England, c. 1, p. 15

Fleta, Seu Commentarius Juris Anglicani s,ic Nuncupatus, sub Edwardo Rege Primo, Anonymo conscriptus, Book 2, C. 2

Galloway, G.B., The Legislative Process in Congress, p. 525

Coke, E., The Fourth Part of the Institutes of the Laws of England, C. 1, p. 15

Blackstone, W., Commentaries on the Laws of England, Vol. 1, C. II, p. 163

Constitutional provisions pertaining to proceedings of houses of legislatures of the United States and of the states in the Union

Communication with Ms. Sylvia Fink, Principal Clerk of the North Carolina Assembly.

Mason, P. Mason's Manual of Legislative Procedure, Part 1, C. 1, §2

Constitution Jefferson's Manual and Rules of the House of Representatives of the United States Ninety-Eighth Congress, Washington 1983, p. 173

(10) a. Ruling by James J. Meyers, Speaker of the Massachusetts House of Representatives.

1

4

5

15

15

16

16

16

17

28

28

28

House Journal of February 6, 1902, p. 268-269 28

344

b. Ruling by Michael F. Skerry, Speaker of the Massachusetts House of Representatives. House Journal of September 20, 1957, p. 2122-2123 32

(11) Constitution Jefferson's Manual and Rules of the House of Representatives of the United States Ninety-Eighth Congress, Washington 1983, p. 658

(12) Ruling by Carl B. Albert,· Speaker of the United States House of Representatives. Congressional Record. 92nd Congress. 1st Session, January 22, 1971, Volume 117, Part I, p. 132.

(13) Ruling by the Chair of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States. Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 119-120, §210. December 7, 1835.

(14) Ruling by Howell Cobb, Speaker of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the united States. Asher C. Hinds, Washington, D.C. 1907. Volume I, p. 138, §242. December 31, 1849.

(15) Ruling by the Chair of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States. Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 937-938, §726. January 27, 1858.

(16) Ruling by the Chair of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States. Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 1084-1085, §833. February 12, 1858.

(17) Ruling by the Chair of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States. Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 776-778, §597. March 21, 1860.

345

33

33

34

35

35

37

38

3.

B.

c.

(18) Ruling by William Pennington, Speaker of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States, Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 63-64, §82. March 2. 1861. 40

(19) Ruling by David B. Henderson, Speaker of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States, Asher C. Hinds, Washington, D.C. 1907. Volume I, pp. 920-922, §713. December 6, 1902. 41

(20) Ruling by Joseph G. Cannon, Speaker of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States, Asher C. Hinds, Washington, D.C. 1907. Volume IV, pp. 385-386, §3579. February 20, 1907. 43

(21) Ruling by Thomas B. Reed, Speaker of the United States House of Representatives. Hinds' Precedents of the House of Representatives of the United States, Asher C. Hinds, Washington, D.C. 1907. Volume V, pp. 528-530, §6002. January 21, 1890. 44

(22) Sutherland, Statutory Construction, Fourth Edition, by Sands, C.D., Vol. 1, §7.04, p. 264 45

(23) Davies, J., Legislative Law and Process in a Nutshell, pp. 233-234 45

(24) Ruling by John D. Long, Speaker of the Massachusetts House of Representatives. Journal of the House of Re~resentatives of the Counnonwealth of Massac usetts. January 21, 1868, pp. 58-61. 45

August 17, 1983, "letter from Daniel M. O'Sullivan, Director, Legislative Research Bureau, to William M. Bulger

August 26, 1983, letter from Daniel M. O'Sullivan, Director, Legislative Research Bureau, to William M. Bulger

48

65

Letter dated September 7, 1983, from William M. Bulger to Francis X. Bellotti 68

346

The following exhibits are enclosed under separate cover:

4. General Court of Massachusetts, Legislative Procedure in the General Court of Massachusetts, revised by Pidgeon, N.L., O'Neill, E.B., and Mills, W.C., Boston 1977

5. General Court of Massachusetts, Rules of the Senate and Joint Rules, 1983 Session, Boston 1983

6. General Court of Massachusetts, A Manual for the Use of the General Court for 1983-1984, prepared by O'Neill, E.B., and MacQueen, R.E., Boston 1983

347

KFM2821 sN•Rw8EnMgland School of Law '

· ··11~11i~1lli~iii~1mi11r ! 3 5177 00014 8606 !

A substantial collection of documents and

correspondence related to the subject matter of

this anthology may be examined at the Legislative

Research Bureau by legislators or scholars who are

interested in exploring the subject in more detail.

Inquiries should be directed to the

Legislative Research Bureau 11 Beacon St., Suite 1212 Boston, MA. 02lo8

Telephone (617) 722-2345

NEW ENGLAND SCHOOL Of LAW LIBRARY