375 Mass. 790

April 19, 1978

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, Section 63; and

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"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, Section 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, Section 28, [Note 1] 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, Section 36, the immunity provisions of which are virtually identical to those of M.G.L. c. 3, Section 28, automatically receives the statutory

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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, Section 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 speedy determination of this issue; and

"Whereas, Grave doubt exists whether the language of M.G.L. c. 3, Section 28 or the constitutional privilege against self-incrimination guaranteed by Article XII of the Declaration of Rights requires an interpretation of the immunity provisions of M.G.L. c. 3, Section 28 similar to that of the Attorney General's opinion regarding the immunity provisions of M.G.L. c. 55, Section 36; therefore be it

"ORDERED, That the opinions of The Honorable the Justices of the Supreme Judicial Court be required by the House of Representatives upon the following important question of law:

"Does a witness who testifies under oath, or produces documents, in response to a subpoena issued by the Joint Legislative Committee on Post Audit and Oversight, automatically acquire immunity by virtue of M.G.L. c. 3, Section 28 as to all transactions about which he testifies, or does he acquire immunity only as to his testimony in response to specific questions or his production of specific documents, and then only if he first asserts his constitutional privilege against self-incrimination in response to the specific questions or request for specific documents in response to an order to do so by the Committee despite his assertion of privilege?"

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The requirement of the Constitution is that the Justice of the Supreme Judicial Court give opinions to the House of Representatives "upon important questions of law, and upon solemn occasions." Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Amendments. "This provision has been construed to mean that such opinions may be required only respecting pending matters in order that assistance may be gained in the performance of a present duty." Answer of the Justices, 211 Mass. 630, 631 (1912). See also Answer of the Justices, 373 Mass. 867 (1977).

Although the investigation referred to in the order is a matter pending before the General Courts we have grave doubts as to whether the House, the Senate, or the Joint Legislative Committee on Post Audit and Oversight has any present duty such as would give rise to a "solemn occasion" within the meaning of the Constitution. The present situation resembles instances in the past in which the House requested constructions of existing statutes. Answer of the Justices, 150 Mass. 598 (1890). Answer of the Justices, 148 Mass. 623 (1889). Each time we answered that a solemn occasion did not exist since whatever interpretation we might give would not affect the Legislature's power to amend or clarify the statute, giving it whatever interpretation the General Court might desire.

In Answer of the Justices, 217 Mass. 607, 611 (1914), the Justices said: "A strong desire to respond to questions of the legislative and executive departments of government seeking a definition of their several powers ought not to lead us to be incautious in exceeding the limitations imposed upon our own powers. It is always with a feeling of delicacy that this question is considered, but it is our manifest duty to consider it when the occasion demands it. Numerous instances have arisen where the Justices have not felt justified in giving opinions because beyond the power conferred by the Constitution. As was said in Opinion of the Justices, 150 Mass. 598 [1890], at 601: `It is not the less our duty, in view of the careful separation of the executive, legislative, and judicial

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departments of the government, to abstain from doing so [giving opinions] in any case which does not fall within the constitutional clause relating thereto.' The same thought was expressed in Opinion of the Justices, 214 Mass. 602, 603 [1913], where it was said respecting the giving of advisory opinions by the Justices: `The Constitution not only limits their duty but bounds their right to express opinions. By travelling outside these bounds injustice might be done to private litigants and to public interest.'" See Answer of the Justices, 373 Mass. 867, 871-872 (1977).

The reasons for our exercising restraint in these matters become even more compelling when we observe that, in actual litigation, courts have spoken to issues raised by the question posed. For example, one of the issues -- namely, whether the immunity is available to a witness who testifies in response to a subpoena, but without having invoked his privilege against self-incrimination -- has been considered by the Supreme Judicial Court in Ross v. Crane, 291 Mass. 28 (1935), in which the court construed a statute identical in all material respects to the one here in question. As to a second issue presented herein -- namely, whether a witness may volunteer information unrelated to the committee's inquiry, either by making an unsolicited speech or giving an unresponsive answer, and thereby render himself immune from prosecution on the unrelated matter -- other courts similarly have considered this issue in actual litigation. Cf. In re Connolly, 16 Cal. App. 2d 709 (1936).

We are of the opinion that, under these circumstances, we must ask respectfully to be excused from answering the question.

The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the nineteenth day of April, 1978.









[Note 1] General Laws c. 3, Section 28, provides as follows: "A person shall not be excused from attending and testifying before either branch of the general court or before a committee thereof upon a subject referred to such committee on the ground that his testimony or evidence, documentary or otherwise, may tend to criminate him or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to a penalty or forfeiture for or on account of any action, matter or thing concerning which he may be required to so testify or produce evidence, except for perjury committed in such testimony."