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04/19/78 ANSWER JUSTICES TO HOUSE REPRESENTATIVES

April 19, 1978

ANSWER OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES


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.

The Justices declined to answer, doubting the existence of a "solemn occasion," a question by the House of Representatives in connection with an investigation pending before the General Court as to the immunity acquired by a witness by virtue of G. L. c. 3, § 63, who testifies under oath, or produces documents, in response to a subpoena issued by the Joint Legislative Committee on Post Audit and Oversight. [793-794]

On April 19, 1978, the Justices submitted the following answer to a question propounded to them by the House of Representatives.

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

The Justices of the Supreme Judicial Court respectfully submit their answer to the question set forth in an order adopted by the House of Representatives on March 22, 1978, and submitted to us in the following form:

" Whereas, There is presently pending before the General Court an investigation into possible improprieties in connection with the negotiation, award, execution, performance and review of contracts between McKee-Berger-Mansueto (MBM) and the Commonwealth of Massachusetts relating to the construction of the University of Massachusetts Boston Campus by the Joint Legislative Committee on Post Audit and Oversight under the authority granted to it by M.G.L. c. 3, § 63; and

" Whereas, This investigation is being conducted with the goal of preparing new legislation relating to the procedures by which contracts are awarded and executed for the Commonwealth's construction projects; and

" Whereas, The Joint Legislative Committee on Post Audit and Oversight has issued a subpoena to William Masiello requiring him to appear and testify under oath, and to produce documents, pursuant to the Committee's authority under M.G.L. c. 3, § 63; and

" Whereas, Mr. Masiello's testimony is crucial to the Committee's investigation; and

" Whereas, an important question of law has arisen as to whether Mr. Masiello, if he appears and testifies under oath in response to the Committee's subpoena, will automatically acquire immunity as to all transactions about which he so testifies by virtue of M.G.L. c. 3, § 28, *fn1 whether or not he first asserts his privilege against self-incrimination in response to a specific question or order to produce documents, and only thereafter so testifies or produces in response to an order to do so by the committee despite his assertion of privilege; and

" Whereas, The Attorney General of the Commonwealth has issued an opinion to the District Attorney for Middlesex County on July 27, 1966 that a witness who testifies in an election inquest pursuant to a subpoena issued under M.G.L. c. 55, § 36, the immunity provisions of which are virtually identical to those of M.G.L. c. 3, § 28, automatically receives the statutory immunity, even though he does not specifically claim his privilege in response to any question; and

" Whereas, The Joint Post Audit and Oversight Committee does not feel it is appropriate to take Mr. Masiello's testimony under oath pursuant to a subpoena while there is any question concerning the scope of immunity which might be acquired by him under M.G.L. c. 3, § 28, by so testifying; and

" Whereas, The crucial importance of Mr. Masiello's testimony to the investigation, and the importance of the investigation to the General Court require a ...


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