Backman v. Secretary of the Commonwealth

Liacos, J.

(dissenting). Article 48 of the Amendments to the Massachusetts Constitution requires that a legislative amendment to that document be approved by joint constitutional session of two succeeding sessions of the General Court before it can be submitted to the people. Art. 48, The Initiative, IV, §§ 4 & 5. Section 2 provides that “if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.” Art. 48, The Initiative, IV, § 2, as amended by art.- 81 of the Amendments. The question before us is what steps the Governor must take, after the General Court has been prorogued, to exercise his power to call the General Court into a joint constitutional session. For reasons that are difficult to discern, the court *557appears to hold that “the Governor’s action runs afoul neither of any specific nor of any necessarily implicit requirement of the Constitution.” Supra at 555. Because I believe that the position taken by the court misconceives our role under our Constitution, I dissent.

I believe that the outcome of this case should turn on a thorough examination of the Massachusetts Constitution and of our cases. The essential issue is the scope of legislative and executive power under the procedures mandated by art. 48, The Initiative, IV, and Part II, c. 2, § 1, art. 5, of the Massachusetts Constitution. Although the court acknowledges the fact that “we have never explicitly incorporated” the Federal political question doctrine “into our State jurisprudence,” supra at 554, the approach it takes is reminiscent of such an approach. Consequently, I defer consideration of Massachusetts law to comment briefly on this doctrine.

1. The Federal political question doctrine. The court concedes that the political question doctrine has never been adopted in Massachusetts. Perhaps recognizing that the doctrine is a source of confusion rather than of clarity, our predecessors have wisely avoided the doctrine. Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 641-642 (1981). Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 552-553 (1979).1 Loring v. Young, 239 Mass. 349, 360-361 (1921). One of the ironies of the court’s approach is that it parallels the political question doctrine at a time when it is in a state of confusion and decline in the Federal courts. See L. Tribe, American Constitutional Law § 3-16, at 71-72 n.l (1978); Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976). In recent years, the Supreme Court of the *558United States has largely rejected arguments that issues before it presented nonjusticiable political questions. This process began in Baker v. Carr, 369 U.S. 186 (1962), where the Court held that issues of legislative apportionment did not present political questions. In Powell v. McCormack, 395 U.S. 486 (1969), the Supreme Court held that the issue whether a member of the House of Representatives was entitled to take his seat did not present a political question. In United States v. Nixon, 418 U.S. 683 (1974), the Court held that the issue of executive privilege did not present a political question.2

As it has been developed in the Federal courts, the doctrine is nothing more than a number of “analytical threads.”3 Under our State law, however, our sole object is to determine whether the Legislature or Chief Executive has acted pursuant to a constitutional grant of authority and has not acted contrary to any constitutional limitation. If so, then it can be said that the act of the Legislature or the Chief Executive is only open to political challenge.4 If the constitutional procedures have not been met, it is our judicial duty to so declare.

*5592. Judicial scrutiny of the amendment process under Massachusetts law. Whatever the merits of the Federal doctrine,5 our cases demonstrate that this court has carefully scrutinized the enactment of initiative and legislative amendments to the Constitution and has required strict compliance with its provisions. In Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 320 (1951), the court stated that art. 48 of the Amendments was drafted “with certain precisely defined safeguards” designed “to prevent hasty action.” It reasoned that “[s]ince the people have themselves adopted the Constitution with its amendments for their government, they are bound by the provisions and conditions which they themselves have placed in it, and when they seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247-248 [1946]. Failure to comply will mean that no valid law has been enacted, no matter how great the popular majority may have been in its favor. Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured. The question whether or not the requirements of the Constitution have been observed and a valid law has been enacted is a justiciable question to be determined in the last analysis by the judicial department of the government whenever the question arises in a proper proceeding in court.” Id. at 320-321.

The language of the court could not be more explicit. Plainly, the duty of this court to pass on the validity of the process utilized in regard to a proposed constitutional amendment cannot be denied. See Moe v. Secretary of Admin. & Fin., supra; Opinion of the Justices, 334 Mass. 745 (1956); Sears v. Treasurer & Receiver Gen., supra; *560Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247-248 (1946); Opinion of the Justices, 291 Mass. 578 (1935); Loring v. Young, supra; Opinion of the Justices, 237 Mass. 589 (1921).

3. Judicial scrutiny of the procedures employed to call the General Court into session under Massachusetts law. Our cases also demonstrate that the General Court is not empowered to adopt whatever procedures it wishes to call itself into session. In Opinion of the Justices, 294 Mass. 623, 623-624 (1936), the Justices were asked, inter alla, whether the power of the legislative bodies to call themselves into session “at such times ... as they shall judge necessary” could be exercised upon either (1) “the call of the presiding officers of the two branches” or (2) the “petition of a majority or other designated proportion of the members of each branch” in order that they may “thereafter transact any business as a General Court.” In a carefully crafted response, the Justices, while clearly delineating an area of legislative discretion, stated that the Constitution placed procedural limitations on the ability of the General Court to call itself into session.

The Justices set forth the principle that “persons scattered through the Commonwealth, although elected as members of the Senate and House of Representatives, do not constitute the General Court; they must be convened according to law in order to exercise any functions as a General Court.” Id. at 626. “According to law,” in the opinion of the Justices, meant that the General Court, as a body, had to judge whether it was necessary to assemble. Thus, it was not in the power of the General Court to enact procedures through which its presiding officers could call the General Court into session.

Similarly, in Opinion of the Justices, 303 Mass. 664 (1939), the Justices found limitations on the power of the General Court to call itself into session. The court was asked to determine whether the General Court could call itself into session after being adjourned or prorogued if it had not previously determined that an assembly was neces*561sary. The Justices answered the question in the affirmative, id. at 676, and recognized that the General Court had discretion to enact an appropriate method of assembling in a special session.6 But the Justices stated that whatever procedure the General Court enacted had to provide “a reasonable opportunity” for every member “to express in an orderly manner his opinion as to the necessity for a special session on a specified date.” Id. at 675. Plainly, the Justices could not have concluded otherwise.

4. The merits. The import of the cases discussed above is clear. The court applies the wrong standard of review. The standard is not properly framed as what the “Legislature acquiesced in” or what the “Governor and the General Court could have reasonably concluded.” Supra at 555.

Rather, we must insist on strict compliance with the provisions of the Constitution relating to the amendment process. Sears v. Treasurer & Receiver Gen., supra. It must therefore be shown that the Governor’s call of the General Court into a joint constitutional session was made pursuant to grant of authority from the Constitution.

The grant of power under art. 48, The Initiative, IV, § 4, contemplates that the Governor may call the General Court into a constitutional session only when it has been previously called to assembly as a General Court. Cf. Opinion of the Justices, 294 Mass. at 626 (General Court must be convened according to law in order to exercise any functions as a General Court).

Looking to the operative language of the Governor’s proclamation, it calls the members of the General Court to assemble “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 Governor had no *562power to act in that fashion after the Legislature had been prorogued. The Governor had prorogued the Legislature on July 5, 1980, and he did not exercise his power under the Constitution, Part II, c. 2, § 1, art. 5, to call the General Court back into session. Thus, the General Court was never properly convened, and its actions during the purported joint constitutional session were to no effect. The proposed amendment has not been approved by two validly convened successive constitutional sessions of the General Court. It cannot now be submitted to the people. Art. 48, The Initiative, IV, § 5.

In Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 553 (1979), the court stated: “Without in any way attempting to invade the rightful province of the Legislature to conduct its own business, we have the duty, certainly since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803), to adjudicate a claim that a law and the actions undertaken pursuant to that law conflict with the requirements of the Constitution. ‘This,’ in the words of Mr. Chief Justice Marshall, ‘is of the very essence of judicial duty.’”

Only in Gilligan v. Morgan, 413 U.S. 1 (1973), has the Supreme Court in recent years invoked the doctrine, and that case is hardly relevant here. In Gilligan the Court considered a challenge to the training of the Ohio National Guard. The Court found that the area of military training was beyond the competence of the judiciary to evaluate. Id. at 10-11.

In Baker v. Carr, 369 U.S. 186, 217 (1962), the Supreme Court found that cases held to raise a political question involved at least one of the following formulations: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

See Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597, 597-617 (1976).

The political question doctrine is akin to the law of standing in being a prudential doctrine which allows the “federal courts to define their own limitations.” L. Tribe, American Constitutional Law § 3-16, at 79 (1978). And like the political question doctrine, the Federal law of standing has not been incorporated into our jurisprudence. See Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 314-315 (1951).

The difficulty with the court’s opinion is its failure to undertake a careful consideration of the scope of discretionary power accorded the Legislature and the Chief Executive. Instead, the court simply concludes that the Constitution was not violated.