ANSWER OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

On May 16, 1978, the Justices submitted the following answer to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit the following answers to the questions set forth in an order adopted by the House of Representatives on April 6, 1978, and transmitted to the Justices on April 10, 1978.

Page 823

The order recites that the Joint Legislative Committee on Post Audit and Oversight (Joint Committee) is conducting "an authorized examination and review," see G. L. c. 3, Section 63, concerning the award and execution of construction contracts at the University of Massachusetts at Boston. The purpose of the committee's review is to determine whether improprieties or crimes have been committed, and to assess the need for legislative action, including but not limited to a consideration of House No. 5330, entitled "An Act relative to the awarding of public construction contracts."

It was further recited in the April 6 order that the Joint Committee had delegated the task of conducting the review to a subcommittee composed of some of its members. This subcommittee had further delegated the power of subpoena to its chairman.

The chairman "has issued a subpoena for the personal records of a member of the General Court." The subcommittee further intends to "interrogate legislators in reference to their deliberations relative to a Special Legislative Committee Report on the performance of the McKee-Berger-Mansueto Firm at the construction site of the University of Massachusetts at Boston."

The House of Representatives inquires:

"1. Is it constitutionally competent for the Joint Legislative Committee on Post Audit and Oversight to delegate by majority vote of the Committee the power to subpoena witnesses and records to a subcommittee of said Committee or to a member of said Committee?

"2. Is it constitutionally competent for the Joint Legislative Post Audit and Oversight Committee to subpoena a member of the General Court, his personal records, or records pertaining to him in possession of a bank, or other institution or person?"

Page 824

We invited the submission of briefs from interested persons, and we express our thanks for the briefs submitted on behalf of the Attorney General and the Joint Committee.

Once more we note the limited nature of the advisory jurisdiction of the Justices. Part II, c. 3, art. 2, of the Massachusetts Constitution, as appearing in art. 85 of the Amendments, reads: "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."

We observed at an early date, "While it is our duty to render opinions in all those cases in which either branch of the Legislature or the Governor and Council may properly require them, it is not the less our duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause relating thereto." Answer of the Justices, 150 Mass. 598, 601 (1890). An advisory opinion may properly be sought when "the Governor or either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action." Answer of the Justices, 148 Mass. 623, 626 (1889). To answer either question here posed would overstep the bounds thus set. The briefs submitted take the same view.

1. As to the delegation of the subpoena function to a subcommittee or a single member, the power of either House of the Legislature to authorize such an arrangement is not in doubt. See Attorney Gen. v. Brissenden, 271 Mass. 172, 180 (1930); Burnham v. Morrissey, 14 Gray 226, 239-240 (1859); Johnson v. McDonald, 269 So. 2d 682 (Fla. 1972); In re Joint Legislative Comm. to Investigate the Educ. Sys. of N.Y., 285 N.Y. 1 (1941); In re Gordon, 141 Misc. 635 (N.Y. Sup. Ct. 1931). Whether the law which confers the subpoena power on the Joint Committee (G. L. c. 3, Section 63), or any legislative rule or resolve, has in fact authorized such delegation is not a question touching the powers and duties of the Legislature. As we recently wrote, "a solemn occasion

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[does] 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." Answer of the Justices, ante 790, 793 (1978). See also Answer of the Justices, 150 Mass. 598, 599-601 (1890); Answer of the Justices, 148 Mass. 623, 625 (1889).

There is a further reason why any substantive answer would be of a purely hypothetical character and therefore beyond the advisory jurisdiction. We are informed and are provided with documentation showing that the Joint Committee has adopted the following rule of procedure: "2. Subpoenas for attendance of witnesses and the production of memoranda, documents and records shall be issued upon motion of the Subcommittee approved by a majority vote of the members present and voting of the full committee." All outstanding subpoenas have been issued by the Joint Committee, not the subcommittee or its chairman, and, should any further subpoenas be issued, the indicated procedure would be followed.

2. Recent events have also made inappropriate any response to the second question as there is no material official "action in view." Answer of the Justices, 148 Mass. 623, 626 (1889). On April 12, 1978, shortly after our advice was requested, the Governor approved a resolution (Res. 1978, c. 5) to establish a special commission to investigate corrupt practices and maladministration concerning contracts awarded from and after January 1, 1968. The members of the special commission were to be appointed not later than May 12, 1978, and it is provided, "The chairman of the commission shall notify the general court when all appointments have been made and the commission is ready to commence its investigation. Upon such notification, all legislative committees which are conducting an investigation and study of said contract and related events between McKee-Berger-Mansueto, Inc., and the commonwealth shall terminate in an orderly manner their investigations . . . ."

Page 826

In addition to the expected cessation of the Joint Committee's investigation, we have the following facts. As to the portion of the second question dealing with the personal or bank records of a legislator, those records which were subpoenaed have been produced, and no other subpoena of this type is contemplated. Two legislators were invited to testify. One testified without recourse to a subpoena. A subpoena was issued to the other, and this remains the subject of a pending action in the Superior Court, [Note 1] although the legislator has testified in response to the subpoena after denial of his applications for temporary injunctive relief. We have refrained in the past from rendering advisory opinions which might "seriously, even if indirectly, affect private rights." Answer of the Justices, 150 Mass. 598, 601 (1890). See also Answer of the Justices, 373 Mass. 867, 871-872 (1977); Opinion of the Justices, 363 Mass. 889, 898 (1973). In all the circumstances, we believe no "solemn occasion" exists which would justify our furnishing an answer to the second question. [Note 2]

For the several reasons stated, we ask respectfully to be excused from answering the questions presented.

The foregoing answers are submitted by the Chief Justice and the Associate Justices subscribing hereto on the 16th day of May, 1978.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

BENJAMIN KAPLAN

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS

Mr. Justice Braucher concurs but is unavailable for signature.