OPINION OF THE JUSTICES TO THE SENATE, 413 Mass. 1201 (1992)

595 N.E.2d 292

Supreme Judicial Court of Massachusetts.
July 7, 1992.

Constitutional Law, Initiative petition, Amendment of the Constitution, Elections, Opinions of the Justices Initiative. Elections, Term limitation. Supreme Judicial Court, Opinions of the Justices.

A proposed initiative petition seeking to amend the Constitution of the Commonwealth by adding a constitutional term limitation provision for certain elected offices would not be inconsistent with the rights of individuals as presently declared in the Declaration of Rights, and is not, therefore, excluded from the initiative petition process by § 2 of art. 48, The Initiative, II, of the Amendments to the Massachusetts Constitution. [1204-1215] Provisions of a proposed initiative petition seeking to amend the Constitution of the Commonwealth by adding a constitutional term limitation for certain elected officials contain only related matters, consistent with art. 48, The Initiative, II, of the Amendments to the Massachusetts Constitution. [1215-1216] The Justices declined to respond further to the Senate on questions regarding the constitutionality of a proposed initiative petition under the United States Constitution, where the Federal constitutional issues presented, in addition to being highly complex, are ones which have not yet been considered, in any respect, by the United States Supreme Court or by Federal trial or appellate courts. [1216-1217]

On July 7, 1992, 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 undersigned Justices of the Supreme Judicial Court respectfully submit their responses to the questions set forth in an order adopted by the Senate on May 13, 1992, and transmitted to this court on May 19, 1992. The order recites that House No. 4000, an initiative petition entitled “Initiative

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Amendment to the Massachusetts Constitution limiting the terms of office of governor, lieutenant governor, secretary, treasurer, attorney general, auditor, councillor, state senator, state representative, United States senator and representative in congress,” is an amendment to the Constitution of the Commonwealth pending before the General Court which seeks to add an additional qualification for persons seeking election to particular public offices, and that grave doubt exists as to the constitutionality of the initiative amendment, if finally approved. The initiative petition proposes amendments to Part II, c. 2, § 1, art. 2; Part II, c. 2, § 2, art. 1; Part II, c. 1, § 2, art. 5, of the Massachusetts Constitution; and arts. 101, 16, and 17 of the Amendments to the Massachusetts Constitution, adding the following additional sentences to the specified sections, as appropriately revised:

“No person shall be qualified to be elected as [Governor], [Lieutenant Governor], [Secretary, Treasurer, Auditor, or Attorney General], [Councillor], [Senator or Representative] who has held that office for [two] [four] consecutive terms within the [nine] [eleven] year period immediately preceding the election, provided that such terms of office began on or after January 1, 1995. For the purpose of this Article, any person [who succeeds to the office of Governor] [appointed or elected to such office] [appointed or elected to such offices], and who serves more than one-half of a term of that office, shall be considered to have served a term of that office.”

The initiative petition further amends the Amendments to the Massachusetts Constitution by adding the following new article, to be numbered sequentially:

“ARTICLE ____. No United States Senator from Massachusetts shall serve more than two consecutive terms in the United States Senate and no Representative in Congress from Massachusetts shall serve more than four consecutive terms in the United States House of Representatives. Any person appointed or elected to the United States Congress, and who serves more than

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one-half of a term of such office, shall be considered to have served a term of that office for the purposes of this Article. The requirements of this Article shall apply to terms of office beginning on or after January 1, 1995.”

The order presents this court with the following questions:

“1. Is the subject matter of House No. 4000 which adds certain new qualifications for persons seeking certain elected offices `inconsistent with the rights of individuals, as presently declared in the declaration of rights,’ in particular, Art. IX of said declaration of rights and is therefore excluded from initiative petition under section 2 of Art. XLVIII of the Constitution of the Commonwealth?

“2. Would the provisions of House No. 4000 which establishes a qualification for the office of senator and representative in the congress of the United States, if finally approved, be in conflict with, and therefore in violation of, Article I of the Constitution of the United States which specifies the qualifications for such office?

“3. Would the provisions of House No. 4000, if finally approved, exceed the power given to the states in Section 4 of said Article I of the Constitution of the United States which provides that the state legislature shall set the `time, places and manner of holding elections for senators and representatives’ in congress, but reserves to the congress the power to `make or alter such regulations’?

“4. Would the provisions of House No. 4000, if finally approved, violate the provisions of section 5 of said Article I of the Constitution of the United States which, in part, states that Congress `shall be the judge of the elections, returns and qualifications of its own members’?

“5. Do the provisions of House No. 4000 violate the provisions and intent of Art. XLVIII of the Amendments to the Constitution of the Commonwealth in that Part VII of said House No. 4000 contains matters that are not related to or mutually dependent on the other parts of said House No. 4000?”

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We invited interested parties to submit briefs. In response, we received briefs from the Attorney General and an amicus curiae, Term Limits Legal Institute and Term Limits Proponents, both of which support the initiative measures. The Governor filed a letter supporting House No. 4000 and joining in the arguments presented in the briefs. No brief was filed against the initiative measures.

1. The Massachusetts Constitution and term limitations. The right of the people to amend the Massachusetts Constitution through the initiative process is not absolute. Article 48, the Initiative, II, § 2, of the Amendments to the Massachusetts Constitution, precludes the use of the initiative procedure to enact any statute or constitutional amendment that is inconsistent with the freedom of elections provision of the Declaration of Rights.[1] We must interpret the language of art. 48 “in `a sense most obvious to the common understanding at the time of its adoption,’ because it is proposed for public adoption and must be understood by all entitled to vote.”Attorney Gen. v. Methuen, 236 Mass. 564, 573 (1921), quotin Bishop v. State, 149 Ind. 223, 230 (1898). See Cohen v Attorney Gen., 357 Mass. 564, 571 (1970). An examination of the records of the debates and proceedings of the Constitutional Convention of 1917-1918, from which art. 48 emerged, helps to clarify the conditions under which it came into existence, how it was received and understood by that convention, and, consequently, how it was commonly understood at the time of its adoption. See Cohen v. Attorney Gen., supra at 571-572 Loring v. Young, 239 Mass. 349, 368 (1921); Opinion of the Justices, 233 Mass. 603, 604-605 (1920).

“We note that one of the main issues in the campaign for the election of delegates to the Constitutional Convention of 1917-1918 was whether the Constitution should be amended

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by adding provisions for the Initiative and Referendum. The issue received considerable newspaper coverage before as well as during the convention. Groups and committees on both sides of the issue sought commitments from candidates during the campaign.” Cohen
v. Attorney Gen., supra at 572. The initiative and referendum issue also became the major issue at the convention itself. “If a convenient, correct and historic name is wanted for the Massachusetts constitutional convention which met first in 1917, the name of `the I. R. Convention’ would have high claim for preference. From the beginning of the convention the element which wanted the initiative and referendum amendment was the controlling factor, or their subject was the dominating subject. After the matter was disposed of, the hiatus left by its omission from the program had its influence upon all subsequent proceedings in way of reduced attendance and comparative want of interest, accompanied by lack of devotion to duty.” R.L. Bridgman, Massachusetts Constitutional Convention of 1917, 41 (1923). “The debate and proceedings on the Initiative and Referendum provisions which we now find in art. 48 took more time of the convention than any other subject or proposal before it. The debates on the proposal, and on suggested amendments thereto, consumed most of the time of the convention from August 7, 1917, to November 28, 1917. It took the entire 1,086 pages of Volume 2 Debates in the Massachusetts Constitutional Convention of 1917-1918 to record the debates and proceedings on the Initiative and Referendum amendment.” Cohen v. Attorney Gen., supra at 572-573.

Joseph Walker of Brookline was the floor leader for the initiative and referendum amendment throughout the constitutional convention, and George B. Churchill of Amherst eventually became the recognized floor leader of the opponents of the initiative and referendum. R.L. Bridgman, supra at 48. After the opponents of the initiative and referendum were unable to prevent the amendment to the Constitution through the initiative process, Churchill proposed excluding only the provisions of the Declaration of Rights from the initiative

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petition process, and his motion succeeded by a vote of 127 to 126 on October 17, 1917. 2 Debates in the Constitutional Convention 1917-1918, 737-739 (1918). Concerned that, if social welfare legislation should be found unconstitutional as had happened with mandatory workers’ compensation legislation in New York, the people would not be able to amend the Declaration of Rights through the initiative process to make this type of legislation constitutional, Walker sought reconsideration which failed by a 117-to-124 vote. Id. at 739-740. After further debate on the relationship between social welfare legislation and the Declaration of Rights, Walker’s motion to strike out the previously adopted Churchill amendment passed by a 147-to-137 vote in mid-November, 1917. Id. at 948. Churchill’s subsequent attempt to reinstitute his initial amendment failed, and the convention eventually adopted, by a vote of 107 to sixty-six, a motion by John Merriam of Framingham which became the present language of art. 48, The Initiative, II, § 2, which now concerns us. Id. at 1000-1003. Merriam’s amendment, while opposed by Walker and other proponents of the initiative and referendum, excluded the major individual rights provisions, but not the property rights provisions, of the Declaration of Rights from the initiative process in order to win over those delegates concerned about social welfare legislation.

The same constitutional convention, while excluding amendments inconsistent with freedom of elections from the initiative process, adopted art. 64 of the Amendments to the Massachusetts Constitution which, in § 2, limited the terms of the office of the Treasurer and Receiver General (Treasurer) to three successive terms. See 3 Debates in the Constitutional Convention 1917-1918, 89-151 (1920). The primary purpose of art. 64, which engendered the most debate, was the provision for biennial terms for elected State offices. There was no recorded debate concerning the merits of the limitation on the term of office of Treasurer within § 2 of art. 64.

The lack of debate over this issue probably stems from the historical limitation on the terms of the office of Treasurer.

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As initially provided in Part II, c. 2, § 4, art. 1, of the Massachusetts Constitution, the Treasurer was chosen annually by joint ballot of the senators and representatives, and “that the citizens of this Commonwealth may be assured, from time to time, that the moneys remaining in the public treasury . . . are their property,” no individual could serve more than five successive years in the office of Treasurer. Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay 241-242 (1832) (hereinafter, Journal of the Convention). Article 64 was similar to an unratified amendment of the Constitutional Convention of 1853, except that the 1853 amendment provided for annual rather than biennial elections. See 3 Debates and Proceedings in the State Convention 1853, 683-684 (1853). After the voters failed to ratify the 1853 amendments, the Legislature during the 1854 and 1855 sessions adopted, and the voters ratified on May 23, 1855, art. 17 of the Amendments to the Massachusetts Constitution, which provided for the direct election of Treasurer. There was, however, no stated limitation on the term of office of Treasurer in art. 17 as there had been in the unratified 1853 amendment.

According to Opinion of the Justices, 243 Mass. 605 (1923), however, because there was nothing in art. 17 concerning the terms of office of Treasurer, the original prohibition against more than five successive years in office remained in effect Id. at 607. According to the Justices, the new provision in art. 64 concerning the limitation on the office of Treasurer to three successive terms rendered nugatory the inconsistent preexisting provisions of Part II, c. 2, § 4, art. 1. Id. at 607-608. Article 64 was later amended by art. 82, which was adopted by the Legislature in the 1961 and 1963 sessions and ratified by the voters on November 3, 1964. This article eliminated the term limitation on the office of Treasurer and provided for quadrennial terms for Statewide elected offices.

That the delegates to the 1917-1918 constitutional convention, who not only approved the initiative and referendum amendment but also excluded various individual rights, including

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the freedom of elections provision, within the Declaration of Rights from the initiative process, adopted the relevant language in § 2 of art. 48, The Initiative, II, while specifically limiting the terms of office of Treasurer is persuasive evidence that limiting the terms of elected State offices is not inconsistent with the freedom of elections in the Declaration of Rights. That the term of Treasurer, after it became subject to popular election, was limited for over one hundred years also lends support to this position. See Colo v. Treasurer Receiver Gen., 378 Mass. 550, 557 (1979) (“The long history of a certain practice . . . and its acceptance as an uncontroversial part of our national and State tradition do suggest that we should reflect carefully before striking it down”). These various limitations on the office of Treasurer, however, were accomplished through amendment processes that were not subject to the restrictions on the initiative petition process within § 2 of art. 48, The Initiative, II.[2] One could still argue, therefore, that these limitations, although constitutional, would be unconstitutional if enacted through the initiative petition process because they are inconsistent with the freedom of elections provision of the Declaration of Rights.[3] See id.
(“mere fact that a certain practice has gone unchallenged for a long period of time cannot alone immunize

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it from constitutional invalidity”). See also 1 Op. Att’y Gen. 453 (1897) (“an act which should attempt to limit the number of times to which a citizen could be elected to the Office of Governor . . . would be in violation of the spirit if not the letter of art. IX of the Declaration of Rights”). It is necessary, therefore, to examine the Declaration of Rights itself to determine if there is any inconsistency between term limitations and the freedom of elections.

The Senate, which requested this opinion, has indicated, through Question 1, that its major concern is with any potential inconsistency between term limitations and art. 9 of the Declaration of Rights, which reads as follows: “All elections ought to be free; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.” The language of art. 9 itself does not clearly answer the question. Since “[w]e recognize that each Legislature elected for a two year term is a unique body,”Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 273 (1960), it may be asked how the inhabitants of the Commonwealth can be said to have “an equal right” to be elected to that “unique body” if some of them are absolutely barred because of their election to prior Legislatures? At the same time, art. 9 clearly envisions some limitations on the right to be elected to office through the establishment of qualifications for elected offices.

Our prior decisions construing art. 9 also do not provide us with clear guidance for approaching this task. On several occasions this court has stated that the right to be elected, preserved in art. 9, is not absolute but “is subject to legislation reasonably necessary to achieve legitimate public objectives.”[4] Opinion of the Justices, 375 Mass. 795, 811 (1978).

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See Opinion of the Justices, 368 Mass. 819, 823 (1975). On the other hand, we have also characterized the right to be elected under art. 9 as “of fundamental importance in our form of government” and a “basic right.” Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83, 91, 93 (1983).

Cases decided in other jurisdictions and under Federal law are unhelpful, because we are aware of no decision dealing directly with the issue that we must decide under the language of our own Massachusetts Constitution — whether the proposed term limitations amendment, if enacted, would be inconsistent with the fundamental right to be elected to public offices under art. 9. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 249-250 (1946). To answer this question, therefore, we must look to the framers of our Constitution, and to art. 9 in particular, to interpret its language “in a sense most obvious to the common understanding at the time of its adoption.” Attorney Gen. v Methuen, 236 Mass. 564, 573 (1921), quoting Bishop v State, 149 Ind. 223, 230 (1898).

The author of art. 9 was John Adams. See Bacon, The State Constitution, 3 Commonwealth History of Massachusetts 189-190 (A. Hart ed. 1929). The Constitutional Convention of 1779-1780 made only minor changes in Adams’s

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initial draft of art. 9.[5] Adams, who was in Philadelphia when Pennsylvania’s Constitution was adopted in August, 1776, took art. 9 almost verbatim from art. 7 of the Declaration of Rights of the Pennsylvania Constitution.[6] See R. Taylor, Construction of the Massachusetts Constitution, reprinted from 90 Proceedings of the American Antiquarian Society (pt. 2), 330-331 (Oct., 1980). Pennsylvania’s Constitution, in spite of art. 7, also provided for term limitations for certain elected officials, as did all the early State Constitutions except for those of the New England States.[7] W.P. Adams, The

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First American Constitutions 308-311 (1980). John Adams himself expressed at least lukewarm support for the notion of term limitations during the development of many of these first State Constitutions.[8] It is interesting to note, however,

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that Adams’s initial lukewarm support of term limitations eventually turned into outright opposition.[9]

Whatever the personal views of John Adams at the time of the drafting of the Massachusetts Constitution, it is noteworthy that his own initial draft of the Constitution contained a term limitation on the office of Governor.[10] Adams apparently believed that a term limitation for this office was a necessary trade-off for the other extraordinary powers he would have granted to the Governor, such as an absolute veto.[11]

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The delegates to the convention, apparently recognizing this trade-off, decided to dilute the powers of the Governor by allowing the Legislature to override a Governor’s veto, and the delegates then voted against the initial draft’s limitation on the terms of the office of Governor.[12] Although there is no record of the specific debates that took place during the convention concerning the term limits on the office of Governor, the Journal of the Convention, supra, indicates that the vote against term limits had more to do with political compromises over the powers of the office of Governor rather than with any concern with the fundamental individual rights within the Declaration of Rights. Consequently, we find nothing in the record of the convention to indicate that term limitations for elected offices are inconsistent with the freedom of elections.

Article 8 of the Declaration of Rights provides additional support for this conclusion.[13] See Opinion of the Justices,

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291 Mass. 578, 586 (1935) (provisions of the Constitution “are to be construed and interpreted in combination with each other”). Article 8 reads as follows: “In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.” A constitutional term limitation provision, established by the voters through the initiative process, that causes elected officials to return to private life for two years can hardly be said to be inconsistent with art. 8.

Therefore, we conclude that House Bill No. 4000 is not inconsistent with the rights of individuals as presently declared in the Declaration of Rights, and is not, therefore, excluded from the initiative petition process by § 2 of art. 48, The Initiative, II. We answer Question 1, “No.”

2. Related subjects under art. 48. “Article 48 requires that an initiative measure contain only subjects `which are related or which are mutually dependent.'” Massachusetts Teachers Ass’n v Secretary of the Commonwealth, 384 Mass. 209, 216-217 (1981), quoting art. 48, The Initiative, II, § 3, as amended by art. 74 of the Amendments. This constitutional requirement directs that the subjects of the initiative petition be related; it does not limit the initiative petition to a single subject. Massachusetts Teachers Ass’n, supra at 218-219. In determining whether the subjects dealt with in an initiative petition are “related subjects” for purposes of compliance with the art. 48 limitation, this court inquires as to whether “one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane.” Id. at 219-220. Where such a common purpose can be identified, the relatedness requirement is deemed to have been fulfilled. Id.

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The specific subjects of the several provisions of House No. 4000 deal directly and exclusively with the general subject of political term limitations. That each of the provisions of House No. 4000 refers to distinct political offices in different branches and levels of government is not a justification for concluding that the initiative petition contains unrelated subjects in violation of art. 48. House No. 4000, in our opinion, contains only related matters, consistent with art. 48, and, therefore, we answer Question 5, “No.”

3. Constitutionality of term limits for Federal offices. “The right of the Legislature, Governor, or Council to require the opinions of the Justices is set forth and limited in the Massachusetts Constitution by Part II, c. 3, art. 2, as amended by art. 85 of the Amendments, which states: `Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.'” Answer of the Justices, 373 Mass. 898, 900-901 (1977). Article 85 authorizes the Justices of the Supreme Judicial Court to advise the members of the State’s executive and legislative branches on matters involving the performance of their duties, consistent with the Constitution of the Commonwealth. Id. at 901. Where the opinion of the Justices on a particular issue would not assist the requesting body in carrying out its duties, however, the Justices will refrain from rendering such an opinion. Answer of the Justices, 364 Mass. 838, 844 (1973). Accordingly, the Justices have in the past “beg[ged] to be excused” from opining as to the constitutionality of certain initiative measures under the United States Constitution, where to do so would have them speculate as to the decision the United States Supreme Court likely would reach if confronted with the same issue. Opinions of the Justices, 357 Mass. 787, 798 (1970).

The United States constitutional issues presented in the subject order, in addition to being highly complex, are ones which have not as yet been considered, in any respect, by the United States Supreme Court or by Federal trial or appellate

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courts. In fact, only one State appellate court has reported a decision regarding the question of political term limitations, and that court declined to formulate an opinion on the Federal issues involved. See Advisory Opinion to the Attorney Gen., 592 So.2d 225 (Fla. 1991).[14] Therefore, for this court to address the questions posed by the Senate regarding the constitutionality of the initiative under the United States Constitution, we would have to predict the view the Supreme Court ultimately would take on the issue of Federal term limitations, speculating as well as to the basis on which the Justices would rely to support that view. We are not inclined to engage in such forecasting, primarily because any view we might take on this issue would not serve the purpose for which our advice is properly given under art. 85; i.e., to assist the Legislature in performing its present duties. Answer of the Justices, 373 Mass. at 901. Regardless of our opinion on these issues, the Supreme Court may ultimately decide otherwise, so “[o]ur advice would be at best tentative and dependent on factors over which we have little control.” Answer of the Justices, 373 Mass. at 903. In similar circumstances, we have concluded that “it is a question of policy for the General Court whether to adhere to proposed legislation and run the risk of a declaration of invalidity from the highest judicial tribunal.” Id., and cases cited. On this basis, we have in the past excused ourselves from answering questions of first impression under the United States Constitution. Since we cannot confidently and properly proceed to respond to the questions placed before us, we again respectfully

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request that the Senate excuse this court from further responding to Questions 2, 3, and 4 of the order.

4. Summary. We answer Questions 1 and 5 in the negative. We decline to answer Questions 2, 3, and 4 for the reasons advanced above.

The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices, subscribing hereto on the seventh day of July, 1992.

PAUL J. LIACOS

HERBERT P. WILKINS

RUTH I. ABRAMS

JOSEPH R. NOLAN

NEIL L. LYNCH

FRANCIS P. O’CONNOR

JOHN M. GREANEY

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