ANSWER OF THE JUSTICES TO THE COUNCIL.
On February 8, 2012, the Justices submitted the following answer to a question propounded to them by the Council.
To the Honorable Council of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in a letter signed by five Councillors on December 7, 2011, and submitted to the Chief Justice on December 28, 2011, in the following form:
“Dear Honorable Justice Ireland:
“Pursuant to [the Massachusetts Constitution], a majority of the Governor's Council is requesting an advisory opinion from the Massachusetts Supreme Court as to the following issue: Whether the Governor's Council may administer a truth telling oath to all nominees and witnesses who come before the Governor's Council to testify at [a] confirmation hearing?”
The Justices must respectfully decline to answer the question.
The Massachusetts Constitution requires the Justices of the Supreme Judicial Court to give opinions to the Governor, the Legislature, or the Executive Council “upon important questions of law, and upon solemn occasions.” Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Amendments. A “solemn occasion” arises in the context of a “serious and unusual exigency,” when a branch of government, “having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes.” Answer of the Justices, 373 Mass. 867, 871, 366 N.E.2d 730 (1977), quoting Answer of the Justices, 148 Mass. 623, 625–626, 21 N.E. 439 (1889). The settlement of these doubts must be necessary to enable that branch of government, “in the exercise of its proper functions, to act legally and intelligently upon the pending question.” Answer of the Justices, 148 Mass. at 626, 21 N.E. 439. Advisory opinions are thus appropriate “only respecting pending matters in order that assistance may be gained in the performance of a present duty.” Answer of the Justices, 444 Mass. 1201, 1202, 829 N.E.2d 1111 (2005), quoting Answer of the Justices, 211 Mass. 630, 631, 99 N.E. 286 (1912).
To safeguard the principle of separation of powers, fundamental in our system of government, we construe the “solemn occasion” provision strictly. See Answer of the Justices, 444 Mass. at 1204, 829 N.E.2d 1111; Opinion of the Justices, 385 Mass. 1201, 1203, 434 N.E.2d 960 (1982); Answer of the Justices, 362 Mass. 914, 917, 291 N.E.2d 598 (1973). Article 30 of the Massachusetts Declaration of Rights “acts as an inhibition upon the Justices giving opinions as to the duties of either the executive or legislative departments except under the Constitution.” Answer of the Justices, 444 Mass. at 1205, 829 N.E.2d 1111, quoting Answer of the Justices, 214 Mass. 602, 604, 102 N.E. 644 (1913). “Not only does the Constitution define the extent of the duty of the Justices to furnish opinions, but it also limits their right to express them.” Answer of the Justices, 444 Mass. at 1203, 829 N.E.2d 1111, quoting Answer of the Justices, 362 Mass. at 916, 291 N.E.2d 598.
There is nothing in what has been presented to us indicating that the Council has ever placed a witness at a confirmation hearing under oath, or has ever attempted to do so. Nor has it been communicated to us that there is any present desire of, or perceived need for, the Council to administer oaths in upcoming confirmation hearings. As presented, therefore, the question is hypothetical and does not address a present duty. See Answer of the Justices, 373 Mass. at 869, 366 N.E.2d 730; Answer of the Justices, 364 Mass. 838, 844–845, 302 N.E.2d 565 (1973); Opinion of the Justices, 324 Mass. 736, 745, 85 N.E.2d 238 (1949). In addition, the request does not indicate that the Council harbors any “serious doubts” as to its “power and authority” to administer oaths. Answer of the Justices, 148 Mass. at 626, 21 N.E. 439. The Councillors who made the request have not referenced a statute or constitutional provision that, in their eyes, would prevent (or authorize) the administration of an oath. Cf., e.g., Opinions of the Justices, 440 Mass. 1201, 1202, 802 N.E.2d 565 (2004); Answer of the Justices, 438 Mass. 1208, 1208–1210, 780 N.E.2d 444 (2002); Opinions of the Justices, 427 Mass. 1211, 1212, 696 N.E.2d 502 (1998). Consequently, there exists no “solemn occasion” permitting the opinion of the Justices. Answer of the Justices, 356 Mass. 769, 773, 250 N.E.2d 450 (1969). Answer of the Justices, 148 Mass. at 626, 21 N.E. 439.
In the absence of a solemn occasion, the Council might seek the advice of the Attorney General. See Answer of the Justices, 444 Mass. at 1205 n. 3, 829 N.E.2d 1111; Answer of the Justices, 373 Mass. at 870, 366 N.E.2d 730; Answer of the Justices, 211 Mass. at 631, 99 N.E. 286. The Attorney General is mandated by statute to “give [her] opinion upon questions of law submitted to [her] by the governor and council or by either branch of the general court.” G.L. c. 12, § 9. “Considerations of judicial economy as well as sensitivity to the constitutional requirement of the separation of powers ․ suggests that the Governor should look to the Attorney General as his primary legal advisor before submitting a request to the Justices.” Answer of the Justices, 364 Mass. at 842, 302 N.E.2d 565. There is no indication in what is before us that the Council has sought, but been unable to obtain, direction from the Attorney General on the question of an oath.
Finally, we make this observation regarding the form of the request that is before us. The request comes to us in a letter jointly signed by five of the eight elected Councillors, on the letterhead of one of the Councillors. There is no indication, one way or the other, whether the remaining three Councillors were consulted and given the opportunity to join in or to oppose the request; whether the matter of this request for an advisory opinion was ever discussed at a meeting of the Council; or whether a formal vote was taken on the question whether to seek the advice of the Justices. The Massachusetts Constitution requires the Council to perform its duties with appropriate formality. “The resolutions and advice of the council shall be recorded in a register and signed by the members present․” Part II, c. 2, § 3, art. 5, of the Massachusetts Constitution. This provision requires that “the Council shall act in a formal manner upon matters coming before it, and that an official record of such acts shall be kept.” Scullin v. Cities Serv. Oil Co., 304 Mass. 75, 78, 22 N.E.2d 666 (1939). An action performed by individual Councillors that is not entered into the official record, even one subscribed to by a majority of the Councillors, is not sufficient to trigger our constitutional authority and responsibility to render advisory opinions.
Every advisory opinion that we have rendered to the Council to date, as well as every instance in which we have declined to answer on the basis of a lack of solemn occasion, has responded to an official Order adopted by the Council after a formal vote. See Opinion of the Justices, 374 Mass. 864, 864, 372 N.E.2d 759 (1978); Answer of the Justices, 373 Mass. 867, 868–869, 366 N.E.2d 730 (1977); Opinion of the Justices, 368 Mass. 866, 867, 334 N.E.2d 604 (1975); Answer of the Justices, 362 Mass. 914, 914–915, 291 N.E.2d 598 (1973); Opinion of the Justices, 353 Mass. 801, 801, 233 N.E.2d 906 (1968); Opinion of the Justices, 349 Mass. 802, 802, 212 N.E.2d 217 (1965). Similarly, prior to the adoption of art. 85 in 1964, the Governor and the Council jointly requested advisory opinions through Orders of the Council. See, e.g., Opinion of the Justices, 334 Mass. 765, 765, 138 N.E.2d 212 (1956); Opinion of the Justices, 309 Mass. 609, 610–612, 35 N.E.2d 5 (1941); Opinion of the Justices, 233 Mass. 603, 603–604, 125 N.E. 849 (1920); Opinion of the Justices, 186 Mass. 603, 603–604, 72 N.E. 95 (1904); Opinion of the Justices, 154 Mass. 603, 603, 31 N.E. 634 (1891); Opinion of the Justices, 120 Mass. 600, 600 (1876). To eliminate any doubt as to our authority to answer, future requests from the Council for advisory opinions should be in the form of Orders that follow a formal vote.
For the foregoing reasons, we must respectfully decline to answer the question that has been presented to us.
The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the eighth day of February, 2012.
RODERICK L. IRELAND
FRANCIS X. SPINA
ROBERT J. CORDY
RALPH D. GANTS
FERNANDE R.V. DUFFLY
BARBARA A. LENK