OPINION OF THE JUSTICES TO THE SENATE.

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

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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, Section 1, as amended by art. 81, Section 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, Section 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?

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"(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

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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, Chapter 1, Section 2, Article 7 and Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution?

"6. (a) Would the provisions of the bill empowering a State Ethics Commission, appointed in the manner described in the bill, to impose the sanctions set forth therein for violations thereof and of chapter 268A of the General Laws, in particular, in Section 5 (d), thereof, the imposition of a `civil penalty of not more

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than $1,000' authorized by Section 5 (d), violate Article XII or Article XXX of the Massachusetts Declaration of Rights?

"(b) Are such sanctions, or any of them authorized by the bill inconsistent with the `right of access to and protection in courts of justice' or `the right of trial by jury' guaranteed by the Massachusetts Declaration of Rights, or do such sanctions relate `to the powers . . . of courts,' with the result that the provisions providing for such sanctions are nullified and fail to become `introduced and pending' before the general court in accordance with Section 4, Part 2 of said Article XLVIII because they are excluded as a proper subject of an initiative petition by Section 2, Part 2 of said Article XLVIII?

"7. Are the provisions of section 3 of the bill authorizing the state secretary and the attorney general to appoint and remove members of the State Ethics Commission created by said bill constitutional?

"8. If the answer to question 1(b), 2(b), 3(b) or 6(b) is that any portion of the bill is excluded as not being properly subject to an initiative petition, is such portion, or portions, of the bill severable so that the remainder of the bill, or so much thereof as is not excluded, is `introduced and pending' before the general court in the meaning of Section 2, Part 2 of said Article XLVIII?"

Upon our invitation for briefs from interested persons, the Attorney General, the Senate Committee on Ethics, and Common Cause of Massachusetts (sponsor of the initiative petition) have submitted briefs.

We have no doubt that a solemn occasion exists authorizing and requiring us to respond to the important questions of law set forth in the order. Part II, c. 3, art. 2, of the Massachusetts Constitution, as appearing in art. 85 of the Amendments. Article 48 grants to the people the right,

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through the use of a special legislative procedure, to enact laws directly without being thwarted by an unresponsive Legislature. Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199-200 (1976). However, art. 48 also imposes on the General Court the duty to vote on the enactment of the proposed law. Art. 48, The Initiative, V, Section 1. It must vote on the measure only if it is "introduced and pending." Art. 48, The Initiative, II, Section 4; V, Section 1. Thus the issue whether the proposed act is "introduced and pending," raised by several of the questions, relates to a present duty in the performance of which the Senate may be aided by our opinions. Opinion of the Justices, 309 Mass. 571, 580-581 (1941).

The questions regarding the constitutionality of the measure, or parts of it, relate to a matter pending before the General Court, for the answers may assist the Legislature in deciding whether to vote for the measure and whether to submit to the people a legislative substitute. Id. at 580-581. Sensitive to the fundamental principle of separation of powers and protective of the people's right to enact laws directly, this court has refrained from passing on the constitutionality of laws proposed by initiative petition when suit was brought to prevent the measure from appearing on the ballot. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 243-247 (1946). [Note 1] But when we are asked to discharge our constitutional duty to advise a branch of the Legislature regarding the constitutionality of a law proposed by initiative petition, we are obligated to respond as long as our answers will assist the requesting House in the performance of a present duty. Since we have determined that our answers would so assist the Senate, we are bound to respond to the questions.

1. Question 1 (a) inquires whether the enactment of Section 6 of the proposed new G. L. c. 268B would violate a right to privacy of those required to file statements of financial interests,

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the members of their immediate families, or others whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the United States Constitution or arts. 1, 14, and 16 of the Declaration of Rights of the Massachusetts Constitution.

We summarize material provisions in Section 6 and related sections. Section 6 would require certain public officials and public employees each year and candidates for public office to file with the State Ethics Commission (commission) statements of financial interests, which, under Section 4 (d), would be open to public inspection. Under Section 6 (e) each affected public official and candidate for public office would have to file a copy of the statement with the clerk of the municipality where he lives, and each affected public employee would have to file a copy with the clerk of the municipality where he works. These copies would be open to public inspection. Public employees who work in the city of Boston, under Section 6 (f), would be exempted from the requirement of filing a copy of the statement with the city clerk. All State and county public officials would be required to file the statement except for judges [Note 2] and members of advisory boards having no authority to expend public funds other than reimbursement for personal expense. Section 2 (m). Public employees required to file would be those receiving an annual salary of $20,000 or more or who exercise official responsibility relating to "(1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or personnel;

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(4) inspecting, licensing, regulating, or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus [sic] nature on the interests of any person." Section 2 (l). Most teachers would not be required to comply with the act. Id.

The information that must be set forth in the statement is specified in Section 7 (b). The declarant must respond as to himself and the members of his immediate family (defined in Section 2 [g] as "a spouse residing in the person's household and dependent children"). He must disclose (1) the nature and amount of interest in any business association (stating whether the entity had done business with or been regulated by the State or a political subdivision thereof); (2) the nature of the business of any entity from which he had received income of $1,000 or more, the nature of the services rendered and the amount; (3) the name and amount of certain securities worth $1,000 or more; [Note 3] (4) a description of certain real property located in the Commonwealth in which he held a direct or indirect financial interest (including certain information regarding the transfer of the real property during the preceding calendar year); and (5) the identity of creditors to whom the value of $1,000 or more was owed, specifying the amount owed and certain other details regarding the debts (retail installment debts and medical expenses excluded). [Note 4] Amounts required by these

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provisions need not be exact nor even close approximations. [Note 5] The declarant also must supply certain information regarding appearances he made before any governmental agency [Note 6] and regarding gifts he received valued at $50 or more in the aggregate. [Note 7] Finally, the declarant would be required by Section 7

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(b) (8) to provide "such other information as the person required to file the statement or the commission deems necessary to carry out the purposes of this act."

The Federal Constitution does not expressly grant to individuals a right to privacy. Nevertheless, the Supreme Court of the United States has recognized the existence of "zones of privacy" into which the government may intrude only on a showing of a compelling State interest and, if shown, then only if the least intrusive means are selected to achieve a legitimate public goal. This right has been extended only to fundamental matters relating to marriage, procreation, contraception, familial relationships and child rearing and education. Paul v. Davis, 424 U.S. 693, 712-713 (1976). Roe v. Wade, 410 U.S. 113, 152-153 (1973). Griswold v. Connecticut, 381 U.S. 479, 483-485 (1965). See Marcoux v. Attorney Gen. ante 63, 66 (1978). This court has recently decided that policemen's constitutional right to privacy was not violated by the public disclosure, mandated by G. L. c. 66, Section 10, of payroll records, which disclosed the name, address, base pay, overtime pay, miscellaneous payments, and gross pay of every municipal employee. Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 813-814, 819-820 (1978). The Court of Appeals for the First Circuit has decided that a Boston policeman's right to privacy was not infringed when he was required to file with the police commissioner answers to a questionnaire disclosing all sources of income for himself and his spouse, all significant assets held by him and members of his household, an estimate of his expenditures, and his State and Federal income

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tax returns. O'Brien v. DiGrazia, 544 F.2d 543 (1st Cir. 1976), cert. denied sub nom. O'Brien v. Jordan, 431 U.S. 914 (1977). Most State courts, passing on the constitutionality of financial disclosure laws, have determined that the privacy of the financial affairs of public officials, public employees, or candidates for public office is not so fundamental a matter as to trigger the application of the strict scrutiny test. Illinois State Employees Ass'n v. Walker, 57 Ill. 2d 512, cert. denied sub nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058 (1974). Montgomery County v. Walsh, 274 Md. 502 (1975), appeal dismissed, 424 U.S. 901 (1976). Evans v. Carey, 40 N.Y.2d 1008 (1976). In re Kading, 70 Wis. 2d 508 (1975). But cf. Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 (1970); County of Nevada v. MacMillen, 11 Cal. 3d 662 (1974); Hays v. Wood, 78 Cal. App. 3d 354 (1978); Advisory Opinion 1975 PA 227, 396 Mich. 465 (1976). We concur in this determination. Section 6 is not otherwise violative of the Fourteenth Amendment, for it would provide means (the filing of financial interest statements by public officials, employees, and candidates) which the Legislature or the people could believe to be rationally related to the achievement of the legitimate goal of assuring the people of "impartiality and honesty of public officials" (Section 1 of the proposed new G. L. c. 268B). See Goldtrap v. Askew, 334 So.2d 20 (Fla. 1976); Klaus v. Minnesota State Ethics Comm'n, 309 Minn. 430 (1976), Fritz v. Gorton, 83 Wash. 2d 275, appeal dismissed, 417 U.S. 902 (1974); In re Kading, supra. Similar measures have been upheld even under the strict scrutiny test. Stein v. Howlett, 52 Ill. 2d 570, 578 (1972), appeal dismissed, 412 U.S. 925 (1973). Montgomery County v. Walsh, supra. Fritz v. Gorton, supra. In re Kading, supra. We are of the opinion that the proposed law, also, would meet the more stringent test.

We conclude that the proposed law would not violate the right to privacy of those required to file financial interest statements nor of the members of their immediate families or of those whose relationships with them must be disclosed,

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in contravention of the Fourteenth Amendment to the United States Constitution.

Like the United States Constitution, the Massachusetts Constitution does not expressly refer to a right to privacy. If the right exists it must be implied in specific provisions of the Constitution. We limit our inquiry to the provisions mentioned in the question.

Assuming that a right to privacy inheres in the right "to be secure from all unreasonable searches" under art. 14 of the Massachusetts Declaration of Rights, [Note 8] we perceive no violation in the disclosure provisions of Section 6 of the proposed act. The compelled disclosure of personal and family financial interests to accomplish a legitimate governmental objective has been determined not to constitute an unreasonable search under the Fourth Amendment to the United States Constitution. See O'Brien v. DiGrazia, supra at 546. Advisory Opinion 1975 PA 227, supra at 509. Nor would the disclosure required by the proposed law constitute an unreasonable search under art. 14.

If a right to privacy is implied in the "right of free speech" preserved in art. 16 of the Massachusetts Declaration of Rights, [Note 9] it is no greater than the right to privacy the Supreme Court of the United States has recognized under the First Amendment to the United States Constitution. See Griswold v. Connecticut, supra at 483-484. See also Roe v. Wade, supra at 152-153. Even if the strict scrutiny test applied,

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we are of the opinion that Section 6 of the bill would pass constitutional muster.

If the right to privacy may be inferred in the broad language of art. 1 of the Massachusetts Declaration of Rights, [Note 10] the protection it affords would not be any greater than that provided by the Fourteenth Amendment to the United States Constitution. Since, as we have determined, Section 6 would not violate the Fourteenth Amendment, it follows that it would not violate art. 1.

Therefore, we conclude that Section 6 would not violate any right to privacy of the declarants, their immediate families, or those whose relationships with them must be disclosed, in contravention of arts. 1, 14, or 16 of the Massachusetts Declaration of Rights.

We answer question 1 (a) in the negative and consequently need not answer question 1 (b).

2. Question 2 (a) asks whether Section 6 of the proposed new G. L. c. 268B would impermissibly add to the qualifications of candidates for and holders of State constitutional public offices. It further asks whether Section 6 would violate the right of a candidate for or holder of elective public office to seek public office and the right of the electorate to vote for him, in contravention of the Fourteenth Amendment to the United States Constitution or art. 9 of the Massachusetts Declaration of Rights.

Section 6 (b) provides that a candidate for elective public office must file his statement of financial interests with the commission "and with the same official and at the same time as he files his legal declaration of candidacy or nomination petition to appear on the ballot for election as a public official . . . ." The election official would be prohibited from accepting the candidate's declaration of candidacy or petition to appear on the ballot if the candidate failed to file

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a proper financial interest statement. Section 6 (b). Furthermore, by virtue of Section 6 (d), no public official would be allowed to take the oath of office or to enter on or continue with his duties, nor receive compensation from public funds unless he had filed with the commission a statement of financial interests.

The proposed law would not add to the qualifications for constitutional public offices. It would simply require that candidates for constitutional public office, like candidates for all other county and State public office, disclose their financial interests. This would in no manner affect the eligibility requirements for constitutional public office. See Conley v. Ipswich, 352 Mass. 201, 205 (1967). See also Labor's Educ. & Political Club-Independent v. Danforth, 561 S.W.2d 339, 343-344 (Mo. 1977).

Included in the grant to the General Court of legislative authority are broad powers to regulate the process of elections. Part II, c. 1, Section 1, art. 4, of the Massachusetts Constitution. Opinion of the Justices, 359 Mass. 775, 777 (1971). Opinion of the Justices, 368 Mass. 819, 821 (1975). This authority, whether exercised by the General Court or by the people directly, must be exercised consistently with the protections of art. 9 of the Massachusetts Declaration of Rights, which provides, "All elections ought to be free; and all 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." Nothing in the act impedes the right of the voter to exercise freely his choice of candidates or measures. To the contrary, the requirement that candidates disclose publicly their financial interests might be thought to foster freedom of elections by giving voters access to information regarding possible conflicts of interest to which candidates may be exposed if elected. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 248-249 (1946); Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 77-78 (1917). The proposed law, therefore, would not violate the right of the electorate to vote.

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Presumably, some would-be candidates for public elective office would forgo the right to run for office if the filing of a financial disclosure statement were made a condition of their candidacy. However, the right "to be elected," preserved in art. 9, is not absolute. It is subject to legislation reasonably necessary to achieve legitimate public objectives. Opinion of the Justices, 368 Mass. 819, 823 (1975). One of the stated purposes of the act is to assure the people that "the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public interest." Section 1. This is a legitimate public objective. The means selected to achieve it, the filing of financial disclosure statements, designed to expose any possible conflict of interest, bears a rational relationship to the goal. Therefore, the proposed act would not violate the right of candidates for or holders of elective public office to seek public office.

Since the standard applied under the Fourteenth Amendment to the United States Constitution is no more stringent than that we have applied under art. 9 of the Massachusetts Declaration of Rights, we find no violation of the Fourteenth Amendment in Section 6 of the proposed law. See Storer v. Brown, 415 U.S. 724 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Socialist Workers Party v. Davoren, 378 F. Supp. 1245 (D. Mass. 1974) (three-judge court); Opinion of the Justices, 368 Mass. 819, 822-823 (1975).

Accordingly, we answer question 2 (a) in the negative and, therefore, need not answer question 2 (b).

3. Question 3 (a) asks whether Sections 6, 8 and 11 of the proposed new G. L. c. 268B would violate art. 30 of the Massachusetts Declaration of Rights because filing and other requirements would be imposed on personnel in the judicial department (other than judges), and whether Section 7 (b) (2) would violate art. 30 because it would require disclosure by lawyers seeking or holding public offices of information regarding their relationships with clients.

Under Section 6 judicial personnel who come within the definition of "public employee" or "public official" under Section 2 (l)

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or Section 2 (m) would be required to file an annual statement of financial interests. Each individual affected also would be required, under Section 8, to give to the commission and to his immediate supervisor, if any, a copy of a sworn statement whenever, in the performance of his official duties, he "would be required to take an action that would affect directly or indirectly a financial interest of himself, a member of his immediate family, or a business with which he is associated . . . ." In the statement he would have to describe the matter requiring action and the nature of the potential conflict. He then would have to take steps through his immediate supervisor or the commission to remove himself from influence over any action or decision on the matter. Section 8 (b) (2) and Section 8 (b) (3). Section 11 would prohibit a majority of the members of a nonelective governmental body, or a committee or subcommittee thereof, from having "a financial interest, either personal or through a member of their immediate family or a business with which they are associated, other than an interest of a de minimus [sic] nature or an interest that is not distinct from that of the general public, in matters subject to the jurisdiction of the body or committee or subcommittee." By definition the term "governmental body" would be applicable to the judicial branch. [Note 11] Attorneys seeking or holding public office would be required to disclose as 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 . . . ." Section 7 (b) (2). [Note 12]

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The legislative and executive departments are prohibited from exercising powers entrusted to the judicial department. This prohibition is part of the principle of separation of powers, recorded and preserved in art. 30. While we recognize the importance of observing scrupulously the division of powers of each branch of government, we also are cognizant of the need for some flexibility in the allocation of functions among the three departments. Each branch, to some extent, exercises executive, legislative, and judicial powers. The critical inquiry here is whether the requirements which the proposed law would impose on attorneys and employees and officials of the judicial department would interfere with the functions of that branch of government. See Opinion of the Justices, 372 Mass. 883, 892 (1977). Opinion of the Justices, 365 Mass. 639, 641-642 (1974) There is nothing in the provisions to which the question refers which would constitute an impermissible interference by the legislative or executive branches with the functions of the judicial branch. Although we have the authority by rule to establish standards of conduct for judicial employees and officials, as we have done for attorneys and judges, [Note 13] this does not preclude legislation establishing complementary standards and providing administration and enforcement through a commission whose decisions would be subject to judicial review. [Note 14] See Burnside v. Bristol County Bd. of Retirement, 352 Mass. 481, 482-483 (1967). As to attorneys admitted to practice before the courts of the Commonwealth, we retain the ultimate authority to control their conduct in the practice of law. Collins v. Godfrey, 324 Mass. 574, 576 (1949). "Legislation," nevertheless, "may be enacted in aid of the judicial department, and doubtless in appropriate instances standards of conduct may be set up by

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statutes . . . ." Id. If the judicial department promulgates a rule imposing standards higher than or in conflict with those imposed by the legislation, the judicial rule would prevail. [Note 15] Id. Accordingly, Sections 6, 8, 11, and 7 (b) (2) would not violate art. 30.

We answer question 3 (a) in the negative.

The issue raised by question 3 (b) is whether any provisions of the proposed new G. L. c. 268B relate to "powers . . . of courts" and are therefore excluded from the initiative petition process. Art. 48, The Initiative, II, Section 2. [Note 16] The principal purpose of the proposed law is to compel candidates for public office and certain public officials and employees in the three branches of county and State government to disclose their financial interests in order to avoid conflicts of interest. Section 5 (f), providing for judicial review of the commission's decisions, is not a principal part of the proposed law. The proposed measure only incidentally concerns the powers of the courts. Even if the authority of the courts relating to the conduct of attorneys and judicial officials and employees comes within the meaning of the

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term "powers . . . of courts" as used in art. 48, those powers are involved in only a subsidiary way. In any event the courts' powers in this particular would not be increased or diminished by the enactment of the measure. Therefore, since the main thrust of the proposed act is not directed at the powers of the courts, the measure is not excluded from the initiative process. Cohen v. Attorney Gen., 354 Mass. 384, 387 (1968). Horton v. Attorney Gen., 269 Mass. 503, 509-511 (1929). See Commonwealth v. Yee, 361 Mass. 533, 537 (1972).

We answer question 3 (b) in the negative.

4. Question 4 inquires whether Section 6 (d) of the proposed new G. L. c. 268B, prohibiting a public official from taking the oath of office or entering on or continuing with his duties unless he has filed a financial interest statement, would, as applied to State senators and representatives, violate the constitutional right of the Senate and the House of Representatives to be the judges of the elections, returns and qualifications of their members. [Note 17] Section 6 (d) would apply to State senators and representatives because "public official" is defined in Section 2 (m) as including any elected official in the State Legislature. The constitutional authority of each branch of the Legislature to judge the elections, returns, and qualifications of its members is exclusive, comprehensive, and final. Dinan v. Swig, 223 Mass. 516 (1916). We are of opinion that the provisions in Section 6 (d) would intrude on an area of concern reserved exclusively to each house of the General Court and would be void as applied to members of the Senate and House of Representatives.

We note, however, that this determination does not prevent the Legislature or the people from voting on the proposed

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law. "The people acting by means of the initiative, like the General Court, can enact measures that violate the fundamental and supreme law of the Constitution and that consequently have no force or effect. But no court can interfere with the process of legislation, either by the General Court or by the people, before it is completed, to prevent the possible enactment of an unconstitutional measure. . . . The judiciary is barred from the legislative field just as it is from the executive." Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 246-247 (1946). Opinion of the Justices, 309 Mass. 571, 580-581 (1941). Moreover, Section 7 of the proposed measure (not part of the proposed new G. L. c. 268B) is a severability clause, providing that invalidity of one provision or application shall not affect the validity of another provision or application.

We answer question 4 in the affirmative.

5. We are asked in question 5 whether the enactment of the proposed new G. L. c. 268B, particularly Sections 6-10 and 11, would conflict with the right of the Senate and the House of Representatives to determine their own rules. We have summarized Sections 6, 7, 8, and 11, in our responses to questions 1 and 3. Section 9 would regulate the value of gifts that could be given by a legislative agent to a public official or employee. [Note 18] Section 10 would restrict appearances by a legislator before State agencies, except when appearing in public court proceedings or acting in an official capacity. [Note 19] The Senate is empowered to "determine its own rules of proceedings." Part II, c. 1, Section 2, art. 7, of the Massachusetts

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Constitution. Similarly, the House is authorized to "settle the rules and orders of proceeding in their own house." Part II, c. 1, Section 3, art. 10, of the Massachusetts Constitution. Assuming that the proposed law relates to matters within the rule-making province of the General Court, we perceive no constitutional violation. Nothing in the Constitution prescribes the manner in which the General Court must exercise its rule-making power. It has exercised this authority through the adoption of separate sets of rules regulating the proceedings in the respective legislative branches, as well as joint rules regulating proceedings in both houses. [Note 20] However, it has also done so through the legislative process. See, for example, G. L. c. 3, Section 32A (regulating travel expenditures incurred by special commissions and by special or standing committees of the General Court); Section 38A (requiring joint committees of the General Court and the committees on ways and means to include fiscal note when reporting favorably on most bills); Section 38B (requiring the committee on ways and means in each branch or the joint committee on ways and means to hold public hearings on certain matters); and Section 65 (establishing a Senate art committee). This legislative practice reinforces our view that the General Court is free to exercise its constitutional rule-making power through the legislative process. Thus, even if the proposed law would in some respect affect proceedings in the General Court, it would not intrude on the right of the Senate and the House to determine their own rules.

Our conclusion would be the same whether the measure were passed by vote of the General Court or by vote of the people, for, except as to matters expressly excluded, the scope of the power of the people to enact laws directly is as extensive as that of the General Court. The matter of regulating legislative proceedings is not excluded from the initiative process. Art. 48, The Initiative, II, Section 2. We note that, if

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the Legislature chooses, it may submit to the people a legislative substitute eliminating or modifying provisions relating to legislative proceedings. Art. 48, The Initiative, III, Section 2. In the event the people adopt the initiative measure rather than a substitute measure, the Legislature retains the right to amend or repeal the measure. Art. 48, General Provisions, VI.

We answer question 5 in the negative.

6. We are asked in question 6 (a) whether the provisions in the proposed new G. L. c. 268B empowering the commission to impose sanctions for violations of the act or of G. L. c. 268A, in particular Section 5 (d) (3), authorizing the imposition of a civil penalty of $1,000, would violate art. 12 or art. 30 of the Massachusetts Declaration of Rights.

Section 5 (d) authorizes the commission, on finding that there has been a violation of G. L. c. 268A or of the proposed new c. 268B, other than a criminal violation, to issue an order requiring the violator to cease and desist; file any report, statement or other information required by G. L. c. 268A or by the proposed act; or "pay a civil penalty of not more than $1,000 for each violation of this act or Chapter 268A . . . ." If the commission makes a finding that there has been a criminal violation of the proposed act or of G. L. c. 268A, it is required to report the finding to the Attorney General for prosecution. Section 5 (c). Any action taken by the commission would be subject to judicial review. Section 5 (f).

Article 12 of the Massachusetts Declaration of Rights preserves the right to trial by jury in criminal cases. [Note 21] The expressed

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intent of the drafters of the proposed measure is not to authorize the commission to act under Section 5 (d) in instances where there has been a criminal violation. They emphasize their purpose by the use of the adjective "civil" preceding the word "penalty" in Section 5 (d) (3). It does not appear that a purpose of the proposed law is to punish the commission of a crime through the imposition of a penalty. Cf. Commonwealth v. United Food Corp., 374 Mass. 765, 781 (1978). We do not think that the imposition of a penalty of not more than $1,000 would amount to "a capital or infamous punishment" which, under art. 12, would require a jury trial. The penalty indicates, to the contrary, that, assuming any criminal offense were involved, it would be petty; consequently, no right to jury trial would arise. See Matter of DeSaulnier (No. 3), 360 Mass. 769, 774-775 (1971); Opinion of the Justices, 360 Mass. 877, 885 (1971). See also Muniz v. Hoffman, 422 U.S. 454 (1975) (no right to jury trial arose under Sixth Amendment where a labor union was fined $10,000 for contempt of court). The penalty provision is a familiar device conferred on administrative bodies to assist them in the performance of their duties. See, for example, G. L. c. 111, Section 127A; G. L. c. 128A, Section 9A. Similar provisions have been upheld by other courts against attacks based on the absence of a right to jury trial. See United States v. Atlantic Richfield Co., 429 F. Supp. 830 (E.D. Pa. 1977); K.C. Davis, Administrative Law of the Seventies Section 2.13 (1976), and cases discussed therein. We conclude that Section 5 (d) would not violate art. 12.

The enactment of the enforcement provisions in Section 5 (d) would not result in a violation of art. 30. Under Section 5 (f) any action by the commission would be subject to judicial review so that it would not improperly be exercising powers committed to the judicial department. Nor would it be exercising legislative powers not properly delegated to it by the General Court. The delegation of power to the commission to impose a civil penalty of not more than $1,000 for each violation is not, by itself, an excessive delegation of legislative power. Commonwealth v. Diaz, 326 Mass. 525, 528-530

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(1950). See Commonwealth v. Racine, 372 Mass. 631 (1977).

We answer question 6 (a) in the negative.

The only issue raised by question 6 (b) and not answered in our response to question 6 (a) is whether the provision authorizing the commission to impose sanctions is related to "the powers . . . of courts" and therefore excluded from the initiative process. Art. 48, The Initiative, II, Section 2. What we said in response to question 3 (b) applies here also.

We answer question 6 (b) in the negative.

7. Question 7 asks whether the provisions of Section 3 of the proposed new G. L. c. 268B, authorizing the Secretary of the Commonwealth and the Attorney General to appoint and remove members of the commission, are constitutional. Section 3 (a) would establish the commission, which would consist of five members. Three members would be appointed by the Governor, one member by the Secretary of the Commonwealth, and one member by the Attorney General. Section 3 (b). By a majority vote of these appointing authorities, a member of the commission could be removed. Section 3 (g).

The question does not refer to a particular constitutional provision. We assume the issue is whether the Legislature may authorize an officer in the executive branch, other than the Governor, to appoint members of a commission. There can be no doubt about the answer in light of the Justices' recent statement, "The Legislature may confer this power of appointment on the Governor or on another public officer or board within the executive branch." Opinion of the Justices, 365 Mass. 639, 643 (1974). See also Sheridan v. Gardner, 347 Mass. 8, 12-13 (1964).

We answer question 7 in the affirmative.

8. Question 8 asks whether, if any part of the proposed measure is excluded from the initiative process, the excluded parts could be severed so that the remainder of the measure would be "introduced and pending" within the meaning of art. 48, The Initiative, II, Section 2. No answer is required because we have determined that none of the provisions

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mentioned in questions 1 (b), 2 (b), 3 (b), and 6 (b) relate to matters excluded from the initiative process.

In summary, we answer:

question 1 (a), "No";

question 1 (b), no answer required;

question 2 (a), "No";

question 2 (b), no answer required;

question 3 (a), "No";

question 3 (b), "No";

question 4, "Yes";

question 5, "No";

question 6 (a), "No";

question 6 (b), "No";

question 7, "Yes";

question 8, no answer required.

The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices, subscribing hereto on the twenty-seventh day of April, 1978.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

ROBERT BRAUCHER

BENJAMIN KAPLAN

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS