Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

04/27/78 OPINION JUSTICES TO SENATE

April 27, 1978

OPINION OF THE JUSTICES TO THE SENATE


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

SYLLABUS BY THE COURT

Public Officer, Disclosure of financial interests. Privacy. Constitutional Law, Initiative, Elective office, Elections, Separation of powers, Judiciary, General Court, Trial by jury, Delegation of powers, Appointment of civil officer. Attorney at Law. General Court.

A solemn occasion existed authorizing and requiring the Justices to respond to important questions of law set forth in an order of the Senate reciting that there is presently pending before the General Court an initiative petition seeking passage of a bill under the provisions of art. 48 of the Amendments to the Massachusetts Constitution, expressing grave doubts as to the constitutionality of the bill, and raising the issue as to whether it is "introduced and pending" before the General Court under art. 48, The Initiative, II, § 4; V, § 1. [801-802]

Pending legislation to require certain public officials and public employees, and candidates for public office, to file each year with the State Ethics Commission and with prescribed municipal officials statements of financial interests open to public inspection, and to file such statements as to the members of the declarant's immediate family as defined, does not violate any constitutional right of privacy [802-807]; the proposed law, designed to assure the people of the "impartiality and honesty of public officials," does not violate the right to privacy of the declarants nor of the members of their immediate families or of those whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the United States Constitution [807-808].

Any right to privacy inherent in the right of every subject of the Commonwealth under art. 14 of the Massachusetts Declaration of Rights "to be secure from all unreasonable searches" would not be violated by the disclosure of financial interests required by pending legislation to be filed by certain public officials and public employees, and candidates for public office [808]; the disclosure required would not constitute an unreasonable search [808]; any right of privacy implied in the "right of free speech" preserved in art. 77 of the Amendments would not be unconstitutionally infringed [808-809]; and any right of privacy inferable under art. 1 of the Declaration of Rights would not be violated by the financial disclosure provisions of the proposed law [809].

Pending legislation requiring each candidate for constitutional elective office to file a statement of his financial interests with the State Ethics Commission, prohibiting the appropriate election official from accepting a non-complying candidate's declaration of candidacy or petition to appear on the ballot and prohibiting any non-complying public official from taking the oath of office or entering on or continuing with his duties, or receiving compensation from public funds, would not add to the qualifications for public offices established by the Massachusetts Constitution [810]; the proposed law would not violate the right of the electorate to vote for a non-complying candidate or the right of candidates for or holders of elective public office to seek public office, in contravention of art. 9 of the Massachusetts Declaration of Rights or of the Fourteenth Amendment to the Constitution of the United States [811].

Article 30 of the Declaration of Rights would not be violated by the enactment of pending legislation to require a member of the judicial branch of government, other than a Judge, to file an annual statement of financial interests, and to file a sworn statement whenever, in the performance of his official duties, he would be required to take an action directly or indirectly affecting a financial interest of the declarant or a member of his immediate family or a business with which he is associated, to describe such action and the nature of the potential conflict, and to take steps to remove himself from influence over any action or decision in the matter. [811-814]

Article 30 of the Declaration of Rights would not be violated by a provision of pending legislation prohibiting a majority of the members of a nonelective governmental body, or a committee or subcommittee thereof, from having certain financial interests in matters subject to their jurisdiction. [811-814]

Article 30 of the Declaration of Rights would not be violated by a provision of pending legislation requiring attorneys seeking or holding public office to disclose to clients and others "the name, address, and nature of business of any person from whom income in the value of $1,000 or more was received, the nature of the services rendered, and the amount". [811-814]

The provision of art. 48, The Initiative, II, § 2, of the Amendments to the Massachusetts Constitution, that no measure which relates to the "powers . . . of courts" shall be proposed by an initiative petition, did not bar from proposal by initiative petition sections of a proposed act pending before the General Court providing for judicial review of decisions of the State Ethics Commission, since such sections are not a principal part of the proposed act, which only incidentally concerns the powers of the courts. [814-815]

Pending legislation containing sections prohibiting a "public official" from taking the oath of office or entering on or continuing with his duties unless he has filed a statement of financial interests with the State Ethics Commission, as applied to State senators and representatives, would be void as in violation of the constitutional rights of the Senate and the House of Representatives to be the Judges of the elections, returns and qualifications of their own members [815]; however, the Legislature or the people may vote on the proposed law, which contains a separate section containing a severability clause [815-816].

No conflict with the constitutional right of the Senate and the House of Representatives to determine their own rules of proceedings is apparent in pending legislation to control conflicts of interest by public officials, including regulation of the value of gifts which can be given by a legislative agent to a public official or employee, and restrictions, with exceptions, on appearances by a legislator before State agencies [816-817]; the Conclusion of no conflict would be the same whether the measure were passed by vote of the General Court or by vote of the people [817-818].

Pending legislation proposing a new chapter to be added to the General Laws c. 268B, empowering the State Ethics Commission appointed thereunder to impose sanctions for violations of that chapter, or of c. 268A, including the imposition of a "civil penalty of not more than $1,000 for each violation," and providing that any action taken by the commission would be subject to judicial review, indicated an intent of the drafters of the proposed measure not to authorize the commission to act in instances where there has been a criminal violation, and would not infringe the right to trial by jury in criminal cases, or impose "a capital or infamous punishment," under art. 12 of the Declaration of Rights [818-819]; the sanction provisions of the proposed act would not result in a violation of art. 30 of the Declaration of Rights [819-820]; and such provisions are not related to "the powers . . . of courts" and therefor excluded from The Initiative under art. 48 of the Amendments to the Constitution, The Initiative, II, § 2 [820].

Provisions of a pending bill in the Legislature authorizing the Secretary of the Commonwealth to appoint one of the five members of the State Ethics Commission, and the Attorney General to appoint one member, and the Governor to appoint three members, and providing that any member of the Commission may be removed by a majority vote of the appointing authorities, are constitutional. [820]

On April 27, 1978, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on March 23, 1978, and transmitted to the Justices on March 28, 1978. The order recites that there is presently pending before the General Court an initiative petition seeking passage, under the provisions of art. 48 of the Amendments to the Constitution of the Commonwealth, of a proposed law entitled, "An Act to control conflicts of interest by public officials" (House No. 5151). The proposed act, a copy of which was transmitted to us with the order, would require certain State and county public officials and employees, as well as candidates for elective and certain appointive State and county offices, to disclose their financial interests publicly each year. To administer and enforce the provisions of the act, a five-member State Ethics Commission would be established. The requirements of the act would apply in the three branches of government.

The order declares that, in accordance with art. 48, the General Court must vote on the measure before May 3, 1978, and if the General Court fails to enact it, the measure, subject to certain conditions, must be submitted to the people at the next State election. Art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. Instead of enacting the measure, the order further states, the General Court may at any time adopt and submit to the people a legislative substitute as an alternative to the proposed law. Art. 48, The Initiative, III, § 2. Expressing grave doubts as to the constitutionality of the proposed act, the Senate has requested the opinions of the Justices on the following questions:

"1. (a) Would the enactment of Section 6 of the bill, imposing upon elected and appointed public officials, public employees and candidates for elective public office an obligation to file a statement of financial interests, violate a right of privacy of the persons required to file and the members of their immediate families, or of others whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Articles I, XIV and XVI thereof?

"(b) If the answer to (a) above is "Yes", does the violation of the right of privacy included in the right of 'protection from unreasonable search,' or in a right of association protected by the right of 'freedom of speech,' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"2. (a) Would Section 6 of the bill, as applied to candidates for and holders of the constitutional public offices of the Commonwealth, impermissibly add to the qualifications for such offices established by the Massachusetts Constitution; or, as applied to any candidate for or holder of elective public office, violate his right to seek public office and the right of the electorate to vote for him, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Article IX thereof?

"(b) If the answer to (a) above is 'Yes', does the violation or [ sic ] the right included in the right to 'freedom of elections' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"3. (a) Would the enactment of Sections 6, 8 and 11 of the bill violate Article XXX of the Massachusetts Declaration of Rights insofar as it imposes filing and other requirements on personnel of the judicial department other than Judges, (see definitions in subsections (1) and (m) of section 2 of the bill) insofar as section 7 (b) (2) of the bill requires disclosure by members of the bar seeking or holding public offices of information concerning their relationships with clients?

"(b) Do any of the provisions of the bill imposing such requirements or requiring such disclosure relate 'to the powers . . . of courts,' result in nullifying said provisions so that they fail to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII because they are excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?

"4. Would the enactment of Section 6(d) of the bill prohibiting a public official from taking the oath of office or entering or continuing upon his duties unless he has filed a statement of financial interests, as applied to persons elected to the Senate or House of Representatives of the Commonwealth, violate Part 2, Chapter 1, Section 2, Article 4 or Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution, respectively guaranteeing to those branches the right to be the final Judge of the elections, returns and qualifications of their members?

"5. Would the enactment of the bill, particularly Sections 6 to 10, inclusive, creating a code of ethics applicable to members of the Senate and the House of Representatives of the Commonwealth, and Section 11 of the bill, affecting the composition of committees or subcommittees of those bodies, conflict with the right of the House of Representatives and the Senate to determine their own rules, as guaranteed respectively by Part 2, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.