By Lawrence Friedman & Jerold Duquette
The Massachusetts Supreme Judicial Court recently responded to requests from the Senate for advisory opinions regarding two proposed ballot initiatives that directly concern the legislature: the proposal to regulate legislative stipends and the proposal to have the Commonwealth’s public records law apply to the legislature (and the governor). The court’s answers to both questions are unsurprising and reflect long-settled principles of law. On the matters put to them, the SJC offered legal and constitutional clarity where it exists and refused to unnecessarily short-circuit the political process.
The stipend proposal would amend the current statute establishing stipends for legislators by tying some portion of the stipends to leadership of certain committees as well as to the achievement of performance goals, such as holding public hearings on bills and approving committee reports by majority vote at a public meeting. Compliance would be policed by the respective clerks of the Senate and House of Representatives.
The Senate first asked the SJC whether the stipend reform initiative proposed a rule, rather than a law, because it would change “internal legislative procedures that are within the constitutional unicameral powers of the Senate.” The court concluded that it did propose a rule. “A petition proposes a rule rather than a law,” the court explained, “if its principal purpose is to order the internal operations of the Senate and the House.” In Paisner v. Attorney General, for example, the court rejected a proposed initiative petition that would have made substantial changes to the General Court’s internal procedures, such as directing the procedures for nominating presiding officers, selecting committee members, and recording of committee votes.
Applying this understanding of the limits of Article 48 initiatives to the stipend proposal, the court reasoned that it would go beyond the permissible adjustment of legislative pay to direct the internal procedures of each House. As the court noted, the stated purpose of the measure is to “link” legislative compensation to “performance,” which effectively would condition the amount of the stipends on compliance with specific procedural requirements. The measure thus seeks to indirectly regulate how the members of each House carry out their constitutional responsibilities. Further, the proposal would authorize the clerk of each House to certify compliance, notwithstanding that the clerks “are legislative officers whose duties are defined by their respective chambers through unicameral rulemaking.” For these reasons, the measure would function as a rule and not a law and thus falls outside the scope of permissible lawmaking under Article 48.
Proponents of the petition that seeks to have the public records law apply to the legislature (and the governor) cheered the court’s response to the Senate’s questions about that proposal, but whether the decision will count as a victory in the long term is open to question. The Senate first asked of the public records measure, as it did the stipend proposal, whether it qualified as a law subject to the processes of Article 48. In this case, the court concluded that the petition does not propose a rule, because “its principal purpose is to provide the public with a new right of access to the records of the General Court and the office of the Governor.” Accordingly, the measure would not affect the internal procedures of the legislature or the executive but, rather, the legal rights of persons outside of the legislature. The court also rejected the contention that the measure should be struck because it improperly relates to the power of the courts, as any effect on judicial authority would be purely incidental.
The Senate posed additional questions about the public records proposal to the SJC, asking whether it would infringe upon the authority of each House to make its own rules, whether it would violate the separation of powers by granting to the judicial and executive branches power over legislative records, and whether it would violate Article 21 of the state constitution, which protects the legislative freedom of deliberation, speech and debate. The SJC declined to answer these questions, because the public records law embraces a “multifaceted regime” and questions such as these cannot be answered in the abstract. “[T]he better course,” the court concluded, “is to wait and, if the initiative is enacted in its current form and is not amended by the Legislature, to consider any challenge to its constitutionality in the context of a future, concrete dispute.”
Should the voters approve the public records proposal in November, any records request made of a legislator or legislators likely will—and should—be challenged on constitutional grounds. At a minimum, Article 21’s speech and debate privilege is likely broader than any disclosure privileges contained in the public records law itself. Indeed, the targeted legislator or legislators would have a strong basis to resist any records request that threatened the very interference in the legislative process that motivated John Adams and the framers of the Massachusetts Constitution to protect the ability of the people’s representatives to deliberate, seriously and thoughtfully, over the many competing and conflicting policy choices they face. Such deliberation, and the policy that results, is what distinguishes legislative lawmaking from the direct democracy that the initiative process embodies; it remains a feature, not a bug, of the structure of Massachusetts government.
If nothing else, these advisory opinions reflect a commitment on the part of the SJC to respect both the legal and political processes, a commitment similar to that of Attorney General Campbell with respect to her role in the ballot initiative process. The attorney general understood her legal obligation to allow the legislative audit ballot question to proceed to the 2024 state ballot, despite constitutional concerns, because the framers of Article 48 were clear that the only concerns that preclude a proposal’s inclusion on the ballot are those expressly named in the “excluded matters” list in Article 48. Both recent advisory opinions likewise reflect the SJC’s understanding of the relatively limited role of advisory opinions: unless the proposal evinces an obvious defect—like the stipend petition—the court should decline to opine on hypothetical problems. Such circumspect review serves to respect both the constitutional implications of requests for advisory opinions and the process established by Article 48.