375 Mass. 847

June 13, 1978

Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices.

The Justices declined to answer, as not raising an "important question of law," an inquiry whether a certain phrase in a House document on a petition pending before the General Court for an Amendment to the Constitution stripped away "the clarity of said petition, rendering said document unconstitutional because of vagueness." [849-850]

On June 13, 1978, the Justices submitted the following reply to a question 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 their response to the question set forth in an order adopted by the House of Representatives on May 2, 1978, and transmitted to us on May 4, 1978. The order indicates that there is pending before the General Court an untitled initiative petition for an amendment to the Constitution printed as House No. 5269, a copy of which was transmitted with the order.

The order recites: "Section 10 of said petition, in defining particular terms necessary to carry out the purposes of said initiative petition refers to the average gross state budget, a term which is unclear and without specific meaning." The order also states that "[g]rave doubt exists as to the constitutionality of section 10 of this petition, if enacted into law" and, therefore, requests the opinions of the Justices on the following question of law:

Page 848

"Does the phrase, average gross state budget, as used in section 10 of House Document No. 5269, strip away the clarity of said petition, rendering said document unconstitutional because of vagueness?"

We invited interested persons to file briefs on or before May 26, 1978. Briefs were filed by Citizens for Limited Taxation, a political committee formed under G. L. c. 55, and by Mr. Richard E. Manelis.

Article 48, The Initiative, IV, Section 2, of the Amendments to the Constitution of the Commonwealth, as appearing in art. 81, Section 1, of the Amendments, provides that when consideration of an initiative petition concerning a proposed constitutional amendment is called for, then the proposal shall be laid before a joint session of the two Houses not later than the second Wednesday in May. If the session is not continued from time to time until final action is taken on all pending amendments, the Governor shall call a joint session or a continuance thereof. We note that House No. 5269 was on the list of proposals placed before a joint session on May 10, 1978, that the joint session was recessed until May 24, 1978, and on that date was recessed to June 21, 1978, without the Legislature's having taken any action on the petition. [Note 1] The petition, therefore, is still pending before the General Court.

Part II, c. 3, art. 2, of the Massachusetts Constitution, as appearing in art. 85 of the Amendments, provides: "Each branch of the legislature . . . shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions." This is a limitation of jurisdiction which has been construed strictly by the Justices. Answer of the Justices, 360 Mass. 903, 905 (1971). The Justices have emphasized that our opinions may be required not as to any question of law, but only as to "important questions of law." Answer of the Justices, 211 Mass. 630, 631 (1912). Answer of the Justices,

Page 849

150 Mass. 598, 601 (1890). Answer of the Justices, 148 Mass. 623, 625 (1889).

In determining whether the "question of law" set forth in this order is an important question of law, we are guided by the observations expressed in Answer of the Justices, 299 Mass. 617, 620 (1938), where the Justices said: "[T]he important questions of law must be explicitly stated: they cannot be left to equivocal implications. An opinion upon a question of constitutional law cannot be so framed as to be helpful to legislators without a definite statement of the point of difficulty which has been developed through hearings and discussion."

We do not have the benefit of the analysis which is the basis of the concern of the House of Representatives that the proposed amendment may be "unconstitutional because of vagueness." There is no statement of facts in the order nor any indication of the principles of the Federal Constitution which the petition is thought possibly to offend. Id. at 619. [Note 2]

In a recent Opinion of the Justices, 368 Mass. 849, 850-851 (1975), a question considered was whether "the enactment of . . . a petition . . . [would] be unconstitutional because of its vague and indefinite application." We stated that it was not at all clear what was meant in that context by "unconstitutional" and "vague"; noted that no reference was made to any specific provision of either the Federal or State Constitution; considered the question to be general; and asked to be excused from answering. Id. 852. The applicability of those comments to this request does not require elaboration.

Closely intertwined with the constitutional provision that we provide opinions only with respect to "important questions of law" is the correlative doctrine that we will not give opinions on abstract questions. See Opinion of the Justices, 324 Mass. 736, 745 (1949). See also Answer of the Justices,

Page 850

364 Mass. 838, 846-847 (1973). The question before us, in essence, asks for our opinion on an abstract question of law. We cannot be required to answer general questions as to constitutionality even with reference to a specific bill. Opinion of the Justices, 349 Mass. 794, 801 (1965). Opinion of the Justices, 347 Mass. 797, 798 (1964). Opinion of the Justices, 328 Mass. 679, 691 (1952).

We conclude, for the reasons set forth above, that determining whether "the phrase, average gross state budget . . . strip[s] away the clarity of . . . [the] petition, rendering said document unconstitutional because of vagueness" does not constitute an "important question of law." We, therefore, respectfully decline to answer the question transmitted by the House of Representatives.

The foregoing answer and opinion is submitted by the Associate Justices, subscribing hereto on the thirteenth day of June, 1978.







Mr. Chief Justice Hennessey is unavailable for signature.


[Note 1] 1978 Senate Journal 689, 696, 805-810.

[Note 2] We assume that any supposed violation would be of the Federal Constitution. It is difficult to comprehend how the proposed constitutional amendment can be "unconstitutional" under our Constitution.