376 Mass. 938

July 31, 1978

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

No solemn occasion existed, under art. 85 of the Amendments to the Massachusetts Constitution, authorizing or requiring the opinions of the Justices on questions of law respecting a House bill set forth in an order adopted and transmitted to the Justices before prorogation of the 1978 regular session of the General Court to which the Justices responded after prorogation but before the election and assembly of the 1979 session. [939-940]

On July 31, 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 response to the questions set forth in an order adopted by the House on June 8, 1978, and transmitted to us on June 9, 1978.

The order indicates that there is pending before the General Court a bill, House No. 5912, entitled "An Act making all justices contribute to their retirement system."

The bill, a copy of which was submitted with the order, reads as follows:

"Chapter 32, Section 65A, Section 65B and Section 65D

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of the General Laws is hereby amended by adding the following paragraph:

"And all said justices of the District, and Superior Courts shall contribute to their retirement system, the same percentage of their earnings as other state and/or County employees, except that with respect to those justices appointed to the bench prior to January 1, 1975, the provisions of this section shall apply only to that portion of their salary which represents an increase in base salary as a result of passage of the so-called Court Reform Act of 1978."

The order recites that "[g]rave doubt exists as to the constitutionality of the bill, if enacted into law" and, therefore, requests the opinions of the Justices on the following important questions of law:

"1. Is it constitutionally competent for the General Court to enact legislation to require that all justices of the District and Superior Courts appointed prior to January 1, 1975 contribute into the retirement system that portion of their salary which represents an increase in base salary as a result of passage of the so-called Court Reform Act of 1978?

"2. Would the enactment of such legislation alter the nature and legal effect of an existing contract depriving said justices of property, privilege or estate without due process of law in violation of Articles 1, 10 and 12 of the Declaration of Rights of the Constitution of Massachusetts?"

We invited interested persons to file briefs on or before June 26, 1978, but no briefs were received. The 1978 regular session of the General Court was prorogued on July 12, 1978. The members of the next General Court will be chosen at the election to be held on November 7, 1978, and will assemble for the 1979 session on January 3, 1979. Arts. 64 and 82 of the Amendments to the Constitution of the Commonwealth. House No. 5912 referred to in the order of the House of Representatives is therefore no longer pending before the General Court. The result is

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that there is not a solemn occasion authorizing or requiring our opinion on the questions transmitted to us. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment. Answer of the Justices, 374 Mass. 861, 862-863 (1978). Answer of the Justices, 374 Mass. 858, 860-861 (1978). Answer of the Justices, 371 Mass. 902 (1976). Answer of the Justices, 360 Mass. 903, 905-906 (1971). Answer of the Justices, 358 Mass. 833, 835-837 (1970). Answer of the Justices, 290 Mass. 601, 603-604 (1935).

In the event the questions present serious constitutional issues regarding which either House of the 1979 Legislature may wish advice from the Justices of this court, a new order requesting our opinion may be adopted.

The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the thirty-first day of July, 1978.