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01/25/78 OPINION JUSTICES TO COUNCIL

January 25, 1978

OPINION OF THE JUSTICES TO THE COUNCIL


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices. Governor. Council. Boston. Boston Licensing Board. Words, "Executive department."

The Justices gave their opinions to the Council, although it had no duty to act on a pending matter, as to the validity of the recent appointment by the Governor of a member of the Boston licensing board without submitting her nomination to the Council for its advise and consent, an apparent usurpation of the Council's statutory powers. [866-867]

Under St. 1964, c. 740, the Boston licensing board is part of the "executive department" of the Commonwealth, as defined therein, and not an "instrumentality or agency of a city" referred to therein. [867-868]

The appointment of a member of the Boston licensing board by the Governor in 1977 did not require the advice and consent of the Council; a Conclusion that St. 1964, c. 740, repealing certain statutory powers of the Council, repealed so much of St. 1906, c. 291, § 1, as required its advice and consent to appointments to the board by the Governor was mandated by both the legislative history of the 1964 act and of the Council's acquiescence in gubernatorial appointments to the board without its advice and consent. [869]

On January 25, 1978, the Justices submitted the following answers to questions propounded to them by the Council.

To the Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their response to the questions set forth in an order adopted by the Council on September 14, 1977, and submitted to us on September 15, 1977.

We summarize the order of the Council addressed to this court. It recited that on August 4, 1977, Governor Michael S. Dukakis had nominated Andrea W. Gargiulo for appointment as chairman of the Boston licensing board to fill the unexpired term of Charles Byrne and that, without obtaining the advice and consent of the Council as provided by St. 1906, c. 291, § 1, the Governor, on September 12, 1977, administered to her the oath prescribed for public officers by Part II, c. 6, art. 1, of the Constitution, as amended by art. 6 of the Articles of Amendment thereto.

The order further recites that St. 1964, c. 740, repealed certain statutory powers of the Council regarding the giving of advice and consent; that the Boston licensing board is a city body operating locally only in the city of Boston; and that, as such, the board is an instrumentality or agency of the city of Boston and apparently not within those certain statutory powers of the Council to advise and consent to appointments to the executive department of State or county government which were repealed.

The order posits that the Governor's appointment and swearing in of Andrea W. Gargiulo without submitting her nomination to the Council for advice and consent appear to constitute a usurpation of the Council's power by the Governor in violation of St. 1906, c. 291, § 1. The order states that the Council presently entertains grave doubts as to its power and authority in said appointment and the procedures to be employed to prevent the apparent usurpation of its statutory power by the Governor. Moreover, the order states, the apparent usurpation has created a serious and unusual exigency requiring the Council either to resort to the provisions of the Constitution granting it the authority to require opinions of the Justices upon important questions of law and upon solemn occasions or else to "acquiesce supinely in the abandonment and erosion of its statutory power."

With the above preface, the Council addressed to us these two questions:

"1) Does the appointment of Andrea W. Gargiulo as Chairman of the Licensing Board of the City of Boston by His Excellency, Michael S. Dukakis, Governor of the Commonwealth, require the advice and consent of the Executive Council, as set forth in Chapter 291, Section 1 of the Acts of 1906, notwithstanding the subsequent enactment of Chapter 740 of the Acts of 1964 repealing certain statutory powers of the Executive Council to advise and consent on certain appointments?

"2) If the answer to the above question is in the affirmative, what procedures, if any, should be legally and constitutionally undertaken by the Executive Council to exercise its statutory authority to advise and consent to said appointment and to ...


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