Backman v. Secretary of the Commonwealth

Wilkins, J.

On September 18, 1980, in response to a proclamation issued by the Governor, with the advice of the Executive Council, the General Court met in continuance *550of a joint constitutional session that had adjourned on July 2, 1980. On September 19, 1980, the joint session approved a proposed constitutional amendment permitting capital punishment in the Commonwealth. A subsequent joint session, held in May, 1982, also approved the proposed constitutional amendment. Thus, the proposed amendment must be submitted to the people at the November 2,1982, State election,1 unless, as the plaintiff argues, this court should declare invalid the action of the September, 1980, joint session on the ground that the Governor did not follow appropriate procedures in calling that joint session to continue its deliberations on pending matters.

We heard argument in this case on August 4, 1982, and, on August 6, 1982, we ordered that judgment should be entered for the defendant Secretary of the Commonwealth, thus permitting him to submit the proposed constitutional amendment to the people at the November 2, 1982, State election. This opinion is issued in explanation of that order.

The plaintiff’s basic contention is that the Governor acted contrary to the Constitution in purporting to call a joint session under art. 48 of the Amendments without first calling the General Court into session pursuant to his powers under Part II, c. 2, § 1, art. 5, of the Massachusetts Constitution.2 We conclude that there is no explicit or necessarily implicit constitutional provision directing the manner in which the Governor shall call the General Court into joint session and *551that, in the circumstances, where the members of the General Court in joint session accepted the Governor’s call and the joint session acted on various matters, this court should not disturb the procedure adopted by the Governor and accepted by the Legislature.

Our narrative, taken from a statement of agreed facts, starts with the assembling of a joint session of the General Court in May, 1980. Among the proposals for amendments to the Constitution of the Commonwealth was one “providing for capital punishment.” The joint session took no final action on this proposal before adjourning on July 2, 1980. On July 5, 1980, in response to an order adopted by the Senate and the House of Representatives, the Governor, with the advice and consent of the Executive Council, prorogued the General Court until the day preceding the first Wednesday of January, 1981.

On September 10, 1980, the Governor sent a letter to the Executive Council stating that, subject to the Council’s advice, he proposed to call “the members of the general court to assemble in special session” on September 18, 1980, at 11 a.m. On September 17, 1980, the Council advised the Governor of its consent to his request to recall the Legislature into special session and the Governor issued a proclamation calling the members of the General Court to assemble on September 18, 1980, “in continuance of joint constitutional session, which adjourned on July 2, 1980, to the end that final action may be taken upon all Proposals for Constitutional Amendments properly before it.”3 The Governor’s *552request to the Council and the Council’s advice to the Governor speak in terms of calling or recalling the Legislature into special session, and the first “whereas” clause of the Governor’s proclamation incorporates the language of Part II, c. 2, § 1, art. 5, concerning the calling of the General Court into session sooner than the time to which it prorogued. The operative language of the proclamation, however, did not explicitly call the General Court into session as a General Court but only called the members of the General Court into joint constitutional session. It is the Governor’s alleged omission of any call of the General Court into session as a Legislature on which the plaintiff rests his argument.

At the joint session of September 18, 1980, Senator Back-man, the plaintiff in this action, raised a point of order challenging the Governor’s power to call the members of the General Court into joint session following adjournment of the joint session on July 2, 1980, and the prorogation of the General Court on July 5, 1980. The President of the Senate ruled that the point of order was not well taken. No appeal was taken from the ruling of the chair. Before us, the plaintiff neither argues nor concedes the point that, after prorogation of the General Court, the Governor lacked constitutional authority to recall the General Court and then to call a joint constitutional session. We do not pass on the point, although we note that there is no explicit constitutional pro*553vision barring the Governor from doing so. See Opinion of the Justices, 334 Mass. 745, 758 (1956) (“[W]e find no time limit during the life of [a] General Court within which the Governor must call a continuance of the session”).

Senator Backman then raised a further point of order challenging the Governor’s proclamation “insofar as it may restrict the purpose for which the General Court was called together” because it unconstitutionally intruded on the lawmaking power of the General Court. The President of the Senate, as presiding officer, stated that it was not within his province to rule on constitutional questions. No appeal was taken from this ruling. Because the General Court did not undertake to transact any business as a legislature, we need not consider whether the Governor’s proclamation restricted, or could have restricted, legislative action in the face of a desire by the General Court to transact legislative business apart from matters considered in joint session. As far as appears in the record, Senator Backman did not raise the precise issue involved in this action during the September, 1980, joint session.

As indicated above, the amendment authorizing capital punishment was approved by the September, 1980, joint session and referred to the next General Court. A joint session held during the course of the 1982 legislative session approved the proposed constitutional amendment by a majority of all members elected, and the amendment was certified to the Secretary of the Commonwealth pursuant to art. 48 of the Amendments to the Constitution, as amended by art. 81 of the Amendments.

The plaintiff commenced this proceeding in September, 1980, in the Supreme Judicial Court for the County of Suffolk, but no action was taken on the merits of the plaintiff’s challenge to the propriety of the Governor’s call of the September, 1980, joint session until after the proposed constitutional amendment was approved for a second time. See Opinion of the Justices, 386 Mass. 1201, 1212-1213 n.3 (1982). The case is before us on a reservation and report, by a single justice of this court, including the plaintiff’s substi*554tuted complaint, the defendant’s motion to dismiss the substituted complaint, and a statement of agreed facts.4

The defendant argues that the issue before the court is a political question that we should refrain from answering. The concept of a non justiciable political question has been more fully developed under the Constitution of the United States than under our State Constitution. See Goldwater v. Carter, 444 U.S. 996 (1979); Powell v. McCormack, 395 U.S. 486 (1969); Baker v. Carr, 369 U.S. 186 (1962). Although we have been faced with arguments that an issue before us presented a political question we should not answer (see Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 641-642 [1981]; Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 552-553 [1979]; Loring v. Young, 239 Mass. 349, 360-361 [1921]), we have never explicitly incorporated the Federal doctrine into our State jurisprudence. We decline to avoid deciding the issue before us by applying the conclusory label that it is a “political question.” As the opinions just cited demonstrate, this court has an obligation to adjudicate claims that particular actions conflict with constitutional requirements.

Thus, for example, this court has the power and the duty to pass on challenges to procedures by which a constitutional amendment has been proposed where the challenge is based on a claim that explicit or necessarily implicit constitutional requirements have not been followed. See Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 320-322 (1951) (initiative petition). If a proposed constitutional amendment is not laid before a joint session on or before the second Wednesday in May (as art. 48, The Initiative, IV, § 2, as amended by art. 81 of the Amendments now re*555quires), any approval of that amendment in joint session and by the people would be invalid (see Opinion of the Justices, 237 Mass. 589, 590-591 [1921]), and this court appropriately would so rule. Similarly, if the issue arose whether, after prorogation of the Legislature, the Governor had the power to recall it and then to convene a joint constitutional session, we would treat that question as one appropriate for consideration in a law suit, filed at the appropriate time, challenging any purported final action of the reconvened joint session.

Here, however, the Governor’s action runs afoul neither of any specific nor of any necessarily implicit requirement of the Constitution. He advised the Council that he intended to recall the Legislature, and the Council granted its consent. The Governor then issued a proclamation in which he quoted his authority to recall the Legislature. Although his proclamation did not explicitly recall the Legislature, his actions can reasonably be construed to have constituted a recall of the Legislature. The General Court convened in joint constitutional session. Senator Backman raised a challenge to the Governor’s proclamation arguing that it improperly limited the power of the General Court to act as a Legislature. This challenge, which is peripherally related to the issue argued before us, was rejected. The joint session accepted the Governor’s recall and proceeded to act on various matters.

In these circumstances, mindful of the principle of separation of powers so carefully stated in art. 30 of the Declaration of Rights, this court should not infer specific constitutional procedures that the executive and legislative branches of government must follow. No constitutional requirement was violated. The Governor and the General Court could have reasonably concluded that the General Court had been properly recalled and called into joint constitutional session. Although the plaintiff argues that his challenge is not merely one of form, the fact remains that his challenge would lose its force if the Governor had issued two proclamations — one recalling the General Court and the second calling the General Court into joint constitutional session. We *556believe that the two steps can appropriately be carried out in one document. Where, as here, the Constitution does not prescribe the procedures to be followed, this court should not reject the means selected by the Governor to achieve a constitutionally permissible end where the Legislature acquiesced in his determination. If, however, as we have said, the Constitution does set forth procedures to be followed, our duty to disapprove any departure from those procedures is clear. See, e.g., Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, 384 Mass. 209, 229 (1981); Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 321-322 (1951).

We need not reach the defendant’s further argument that, in any event, the General Court convened itself and that the Governor’s proclamation was not necessary to support the action of the joint session. It does not appear that the General Court convened itself pursuant to procedures looked on favorably in Opinion of the Justices, 303 Mass. 664, 675 (1939), and Opinion of the Justices, 294 Mass. 623, 626-627 (1936).

If at a joint session a legislative amendment receives the affirmative votes of a majority of all the members elected, it is to be referred to the next General Court. Art. 48 of the Amendments to the Massachusetts Constitution, The Initiative, IV, § 4. “If in the next general court a legislative amendment shall again be agreed to in joint session by a majority of all the members elected, . . . such fact shall be certified by the clerk of such joint session to the secretary of the commonwealth, who shall submit the amendment to the people at the next state election.” Art. 48, The Initiative, IV, § 5.

Part II, c. 2, § 1, art. 5, of the Massachusetts Constitution provides, in part, that the Governor may call the Legislature “together sooner than the time to which it may be adjourned or prorogued, if the welfare of the Commonwealth shall require the same.”

The proclamation reads as follows:

“WHEREAS, the Constitution of the Commonwealth provides that ‘the Governor with the advice of council, shall have full power and authority,’ during the recess of the General Court, ‘to call together sooner than the time to which it may be adjourned or prorogued, if the welfare of the Commonwealth shall require the same’; and

“WHEREAS, the Constitution further provides that if a Proposal for a Constitutional Amendment is introduced into the General Court by initiative petition or by legislative amendment, such proposal shall be laid before a joint session of the two houses not later than the second Wednesday in May, and if the two houses fail to continue such joint session until *552final action has been taken on all amendments pending, the Governor shall call such joint session or continuance thereof; and

“WHEREAS, on July 5th the General Court prorogued without taking final action on all Proposed Constitutional Amendments properly laid before it; and

“WHEREAS, the welfare of the Commonwealth requires that the General Court assemble to resume joint constitutional session in order that the public confidence in the constitutional process be maintained;

“NOW, THEREFORE, believing that the welfare of the Commonwealth so requires, I hereby make proclamation to the members of the General Court of Massachusetts calling them to assemble at the State House on September 18, 1980 at 11 o’clock in the forenoon in the chamber of the House of Representatives in continuance of joint constitutional session, which adjourned on July 2, 1980, to the end that final action may be taken upon all Proposals for Constitutional Amendments properly before it.”

The defendant advances no challenge to the plaintiff’s standing as a citizen and qualified voter to seek relief in this action. See Cohen v. Attorney Gen., 354 Mass. 384, 387 (1968); Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 314-315 (1951). The plaintiff’s right to challenge the propriety of the Governor’s action is not lost because, as a senator present at the September, 1980, joint session, he did not raise the issue now presented or because he presented a somewhat related issue by unsuccessfully raising a point of order.