Summary
recognizing "fundamental matters relating to marriage" as within a zone of individual privacy in which government may not intrude absent compelling interest
Summary of this case from Goodridge v. Dept. Public Health, NoOpinion
April 27, 1978.
Public Officer, Disclosure of financial interests. Privacy. Constitutional Law, Initiative, Elective office, Elections, Separation of powers, Judiciary, General Court, Trial by jury, Delegation of powers, Appointment of civil officer. Attorney at Law. General Court.
A solemn occasion existed authorizing and requiring the Justices to respond to important questions of law set forth in an order of the Senate reciting that there is presently pending before the General Court an initiative petition seeking passage of a bill under the provisions of art. 48 of the Amendments to the Massachusetts Constitution, expressing grave doubts as to the constitutionality of the bill, and raising the issue as to whether it is "introduced and pending" before the General Court under art. 48, The Initiative, II, § 4; V, § 1. [801-802] Pending legislation to require certain public officials and public employees, and candidates for public office, to file each year with the State Ethics Commission and with prescribed municipal officials statements of financial interests open to public inspection, and to file such statements as to the members of the declarant's immediate family as defined, does not violate any constitutional right of privacy [802-807]; the proposed law, designed to assure the people of the "impartiality and honesty of public officials," does not violate the right to privacy of the declarants nor of the members of their immediate families or of those whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the United States Constitution [807-808]. Any right to privacy inherent in the right of every subject of the Commonwealth under art. 14 of the Massachusetts Declaration of Rights "to be secure from all unreasonable searches" would not be violated by the disclosure of financial interests required by pending legislation to be filed by certain public officials and public employees, and candidates for public office [808]; the disclosure required would not constitute an unreasonable search [808]; any right of privacy implied in the "right of free speech" preserved in art. 77 of the Amendments would not be unconstitutionally infringed [808-809]; and any right of privacy inferable under art. 1 of the Declaration of Rights would not be violated by the financial disclosure provisions of the proposed law [809]. Pending legislation requiring each candidate for constitutional elective office to file a statement of his financial interests with the State Ethics Commission, prohibiting the appropriate election official from accepting a noncomplying candidate's declaration of candidacy or petition to appear on the ballot and prohibiting any noncomplying public official from taking the oath of office or entering on or continuing with his duties, or receiving compensation from public funds, would not add to the qualifications for public offices established by the Massachusetts Constitution [810]; the proposed law would not violate the right of the electorate to vote for a noncomplying candidate or the right of candidates for or holders of elective public office to seek public office, in contravention of art. 9 of the Massachusetts Declaration of Rights or of the Fourteenth Amendment to the Constitution of the United States [811]. Article 30 of the Declaration of Rights would not be violated by the enactment of pending legislation to require a member of the judicial branch of government, other than a judge, to file an annual statement of financial interests, and to file a sworn statement whenever, in the performance of his official duties, he would be required to take an action directly or indirectly affecting a financial interest of the declarant or a member of his immediate family or a business with which he is associated, to describe such action and the nature of the potential conflict, and to take steps to remove himself from influence over any action or decision in the matter. [811-814] Article 30 of the Declaration of Rights would not be violated by a provision of pending legislation prohibiting a majority of the members of a nonelective governmental body, or a committee or subcommittee thereof, from having certain financial interests in matters subject to their jurisdiction. [811-814] Article 30 of the Declaration of Rights would not be violated by a provision of pending legislation requiring attorneys seeking or holding public office to disclose to clients and others "the name, address, and nature of business of any person from whom income in the value of $1,000 or more was received, the nature of the services rendered, and the amount". [811-814] The provision of art. 48, The Initiative, II, § 2, of the Amendments to the Massachusetts Constitution, that no measure which relates to the "powers . . . of courts" shall be proposed by an initiative petition, did not bar from proposal by initiative petition sections of a proposed act pending before the General Court providing for judicial review of decisions of the State Ethics Commission, since such sections are not a principal part of the proposed act, which only incidentally concerns the powers of the courts. [814-815] Pending legislation containing sections prohibiting a "public official" from taking the oath of office or entering on or continuing with his duties unless he has filed a statement of financial interests with the State Ethics Commission, as applied to State senators and representatives, would be void as in violation of the constitutional rights of the Senate and the House of Representatives to be the judges of the elections, returns and qualifications of their own members [815]; however, the Legislature or the people may vote on the proposed law, which contains a separate section containing a severability clause [815-816]. No conflict with the constitutional right of the Senate and the House of Representatives to determine their own rules of proceedings is apparent in pending legislation to control conflicts of interest by public officials, including regulation of the value of gifts which can be given by a legislative agent to a public official or employee, and restrictions, with exceptions, on appearances by a legislator before State agencies [816-817]; the conclusion of no conflict would be the same whether the measure were passed by vote of the General Court or by vote of the people [817-818]. Pending legislation proposing a new chapter to be added to the General Laws c. 268B, empowering the State Ethics Commission appointed thereunder to impose sanctions for violations of that chapter, or of c. 268A, including the imposition of a "civil penalty of not more than $1,000 for each violation," and providing that any action taken by the commission would be subject to judicial review, indicated an intent of the drafters of the proposed measure not to authorize the commission to act in instances where there has been a criminal violation, and would not infringe the right to trial by jury in criminal cases, or impose "a capital or infamous punishment," under art. 12 of the Declaration of Rights [818-819]; the sanction provisions of the proposed act would not result in a violation of art. 30 of the Declaration of Rights [819-820]; and such provisions are not related to "the powers . . . of courts" and therefor excluded from The Initiative under art. 48 of the Amendments to the Constitution, The Initiative, II, § 2 [820]. Provisions of a pending bill in the Legislature authorizing the Secretary of the Commonwealth to appoint one of the five members of the State Ethics Commission, and the Attorney General to appoint one member, and the Governor to appoint three members, and providing that any member of the Commission may be removed by a majority vote of the appointing authorities, are constitutional. [820]
On April 27, 1978, the Justices submitted the following answers to questions propounded to them by the Senate.
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on March 23, 1978, and transmitted to the Justices on March 28, 1978. The order recites that there is presently pending before the General Court an initiative petition seeking passage, under the provisions of art. 48 of the Amendments to the Constitution of the Commonwealth, of a proposed law entitled, "An Act to control conflicts of interest by public officials" (House No. 5151). The proposed act, a copy of which was transmitted to us with the order, would require certain State and county public officials and employees, as well as candidates for elective and certain appointive State and county offices, to disclose their financial interests publicly each year. To administer and enforce the provisions of the act, a five-member State Ethics Commission would be established. The requirements of the act would apply in the three branches of government.
The order declares that, in accordance with art. 48, the General Court must vote on the measure before May 3, 1978, and if the General Court fails to enact it, the measure, subject to certain conditions, must be submitted to the people at the next State election. Art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. Instead of enacting the measure, the order further states, the General Court may at any time adopt and submit to the people a legislative substitute as an alternative to the proposed law. Art. 48, The Initiative, III, § 2. Expressing grave doubts as to the constitutionality of the proposed act, the Senate has requested the opinions of the Justices on the following questions:
"1. (a) Would the enactment of Section 6 of the bill, imposing upon elected and appointed public officials, public employees and candidates for elective public office an obligation to file a statement of financial interests, violate a right of privacy of the persons required to file and the members of their immediate families, or of others whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Articles I, XIV and XVI thereof?
"(b) If the answer to (a) above is "Yes", does the violation of the right of privacy included in the right of 'protection from unreasonable search,' or in a right of association protected by the right of 'freedom of speech,' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?
"2. (a) Would Section 6 of the bill, as applied to candidates for and holders of the constitutional public offices of the Commonwealth, impermissibly add to the qualifications for such offices established by the Massachusetts Constitution; or, as applied to any candidate for or holder of elective public office, violate his right to seek public office and the right of the electorate to vote for him, in contravention of the Fourteenth Amendment to the Constitution of the United States, or of the Massachusetts Declaration of Rights, in particular, Article IX thereof?
"(b) If the answer to (a) above is 'Yes', does the violation or [ sic] the right included in the right to 'freedom of elections' as declared in the Massachusetts Declaration of Rights, result in said Section 6 being nullified and failing to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII, because it is excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?
"3. (a) Would the enactment of Sections 6, 8 and 11 of the bill violate Article XXX of the Massachusetts Declaration of Rights insofar as it imposes filing and other requirements on personnel of the judicial department other than judges, (see definitions in subsections (1) and (m) of section 2 of the bill) insofar as section 7 (b) (2) of the bill requires disclosure by members of the bar seeking or holding public offices of information concerning their relationships with clients?
"(b) Do any of the provisions of the bill imposing such requirements or requiring such disclosure relate 'to the powers . . . of courts,' result in nullifying said provisions so that they fail to become 'introduced and pending' before the general court in accordance with Section 4, Part II of said Article XLVIII because they are excluded as a proper subject of an initiative petition under Section 2, Part II of said Article XLVIII?
"4. Would the enactment of Section 6(d) of the bill prohibiting a public official from taking the oath of office or entering or continuing upon his duties unless he has filed a statement of financial interests, as applied to persons elected to the Senate or House of Representatives of the Commonwealth, violate Part 2, Chapter 1, Section 2, Article 4 or Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution, respectively guaranteeing to those branches the right to be the final judge of the elections, returns and qualifications of their members?
"5. Would the enactment of the bill, particularly Sections 6 to 10, inclusive, creating a code of ethics applicable to members of the Senate and the House of Representatives of the Commonwealth, and Section 11 of the bill, affecting the composition of committees or subcommittees of those bodies, conflict with the right of the House of Representatives and the Senate to determine their own rules, as guaranteed respectively by Part 2, Chapter 1, Section 2, Article 7 and Part 2, Chapter 1, Section 3, Article 10 of the Massachusetts Constitution?
"6. (a) Would the provisions of the bill empowering a State Ethics Commission, appointed in the manner described in the bill, to impose the sanctions set forth therein for violations thereof and of chapter 268A of the General Laws, in particular, in Section 5 (d), thereof, the imposition of a 'civil penalty of not more
than $1,000' authorized by Section 5 (d), violate Article XII or Article XXX of the Massachusetts Declaration of Rights?
"(b) Are such sanctions, or any of them authorized by the bill inconsistent with the 'right of access to and protection in courts of justice' or 'the right of trial by jury' guaranteed by the Massachusetts Declaration of Rights, or do such sanctions relate 'to the powers. . . of courts,' with the result that the provisions providing for such sanctions are nullified and fail to become 'introduced and pending' before the general court in accordance with Section 4, Part 2 of said Article XLVIII because they are excluded as a proper subject of an initiative petition by Section 2, Part 2 of said Article XLVIII?
"7. Are the provisions of section 3 of the bill authorizing the state secretary and the attorney general to appoint and remove members of the State Ethics Commission created by said bill constitutional?
"8. If the answer to question 1(b), 2(b), 3(b) or 6(b) is that any portion of the bill is excluded as not being properly subject to an initiative petition, is such portion, or portions, of the bill severable so that the remainder of the bill, or so much thereof as is not excluded, is "introduced and pending' before the general court in the meaning of Section 2, Part 2 of said Article XLVIII?"
Upon our invitation for briefs from interested persons, the Attorney General, the Senate Committee on Ethics, and Common Cause of Massachusetts (sponsor of the initiative petition) have submitted briefs.
We have no doubt that a solemn occasion exists authorizing and requiring us to respond to the important questions of law set forth in the order. Part II, c. 3, art. 2, of the Massachusetts Constitution, as appearing in art. 85 of the Amendments. Article 48 grants to the people the right, through the use of a special legislative procedure, to enact laws directly without being thwarted by an unresponsive Legislature. Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199-200 (1976). However, art. 48 also imposes on the General Court the duty to vote on the enactment of the proposed law. Art. 48, The Initiative, V, § 1. It must vote on the measure only if it is "introduced and pending." Art. 48, The Initiative, II, § 4; V, § 1. Thus the issue whether the proposed act is "introduced and pending," raised by several of the questions, relates to a present duty in the performance of which the Senate may be aided by our opinions. Opinion of the Justices, 309 Mass. 571, 580-581 (1941).
The questions regarding the constitutionality of the measure, or parts of it, relate to a matter pending before the General Court, for the answers may assist the Legislature in deciding whether to vote for the measure and whether to submit to the people a legislative substitute. Id. at 580-581. Sensitive to the fundamental principle of separation of powers and protective of the people's right to enact laws directly, this court has refrained from passing on the constitutionality of laws proposed by initiative petition when suit was brought to prevent the measure from appearing on the ballot. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 243-247 (1946). But when we are asked to discharge our constitutional duty to advise a branch of the Legislature regarding the constitutionality of a law proposed by initiative petition, we are obligated to respond as long as our answers will assist the requesting House in the performance of a present duty. Since we have determined that our answers would so assist the Senate, we are bound to respond to the questions.
We have not hesitated, however, to consider the question whether the proposed law related to matters excluded from the initiative process by art. 48. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 247-248 (1946). Horton v. Attorney Gen., 269 Mass. 503, 511-512 (1929).
1. Question 1 (a) inquires whether the enactment of § 6 of the proposed new G.L.c. 268B would violate a right to privacy of those required to file statements of financial interests, the members of their immediate families, or others whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the United States Constitution or arts. 1, 14, and 16 of the Declaration of Rights of the Massachusetts Constitution.
We summarize material provisions in § 6 and related sections. Section 6 would require certain public officials and public employees each year and candidates for public office to file with the State Ethics Commission (commission) statements of financial interests, which, under § 4 ( d), would be open to public inspection. Under § 6 ( e) each affected public official and candidate for public office would have to file a copy of the statement with the clerk of the municipality where he lives, and each affected public employee would have to file a copy with the clerk of the municipality where he works. These copies would be open to public inspection. Public employees who work in the city of Boston, under § 6 ( f), would be exempted from the requirement of filing a copy of the statement with the city clerk. All State and county public officials would be required to file the statement except for judges and members of advisory boards having no authority to expend public funds other than reimbursement for personal expense. § 2 ( m). Public employees required to file would be those receiving an annual salary of $20,000 or more or who exercise official responsibility relating to "(1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or personnel; (4) inspecting, licensing, regulating, or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus [ sic] nature on the interests of any person." § 2 ( l). Most teachers would not be required to comply with the act. Id.
Judges are subject to financial disclosure requirements under the Code of Judicial Conduct adopted by the Supreme Judicial Court on December 4, 1972, appearing in Rule 3:25 of the Rules of the Supreme Judicial Court. 359 Mass. 841. Canon 6 (C) provides: "A judge should report on or before April 15 of each year, with respect to the previous calendar year, the date, place, and nature of any activity for which he received compensation, and the name of the payor and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge. His report should be made and should be filed as a public document in the office of the Executive Secretary of the Supreme Judicial Court." Id. at 852.
The information that must be set forth in the statement is specified in § 7 ( b). The declarant must respond as to himself and the members of his immediate family (defined in § 2 [ g] as "a spouse residing in the person's household and dependent children"). He must disclose (1) the nature and amount of interest in any business association (stating whether the entity had done business with or been regulated by the State or a political subdivision thereof); (2) the nature of the business of any entity from which he had received income of $1,000 or more, the nature of the services rendered and the amount; (3) the name and amount of certain securities worth $1,000 or more; (4) a description of certain real property located in the Commonwealth in which he held a direct or indirect financial interest (including certain information regarding the transfer of the real property during the preceding calendar year); and (5) the identity of creditors to whom the value of $1,000 or more was owed, specifying the amount owed and certain other details regarding the debts (retail installment debts and medical expenses excluded). Amounts required by these provisions need not be exact nor even close approximations. The declarant also must supply certain information regarding appearances he made before any governmental agency and regarding gifts he received valued at $50 or more in the aggregate. Finally, the declarant would be required by § 7 ( b) (8) to provide "such other information as the person required to file the statement or the commission deems necessary to carry out the purposes of this act."
We assume that the reference in § 7 ( b) (3), note 4 infra, should be to the amount "of" rather than "or" stock. We note also that bonds and other debt securities are omitted.
The provisions from § 7 ( b) summarized in the text are as follows:
"( b) The statement shall include the following information for the preceding calendar year with regard to the person required to file the statement and the members of his or her immediate family:
"(1) the name, address, nature of association, and amount of interest in any business with which he was associated and in any entity in which a position as trustee was held; and, if the business or entity has done business with or been regulated by the state or any political subdivision thereof, the date and nature of such business or regulation;
"(2) the name, address, and nature of business of any person from whom income in the value of $1,000 or more was received, the nature of the services rendered, and the amount; provided that the source of income received from patients for medical of [ sic] mental health services need not be included. For the purpose of this item of this subsection only, the statement, as it applies to the spouse and dependent children of the individual required to file, need only include the source, not the amount, of any earned income over $1,000 received solely by the spouse or dependent children.
"(3) the name and amount held, at fair market value, or [ sic] stock, commodity options or mineral rights worth $1,000 or more;
"(4) the description, as appearing on the most recent tax bill, of all real property in the state, the assessed value of which exceeds $5,000 in the aggregate, in which a direct or indirect financial interest was held, and, if the property was transferred during the preceding calendar year; a statement of the amount and nature of the consideration received or paid in exchange for such interest, and the name and address of the person furnishing or receiving such consideration;
"(5) the name and address of each creditor to whom the value of $1,000 or more was owed and the original amount, the amount outstanding, the terms of repayment, and the security given for each such debt; provided that debts arising out of a retail installment transaction or directly on account of medical, dental or mental health expenses need not be included. . . ."
Section 7 ( c) provides that "it shall be sufficient to report whether the amount is: less than $2,500; $2,500-5,000; $5,000-10,000; $10,000-25,000; $25,000-50,000; or more than $50,000."
Section 7 ( b) (6) provides as follows:
"if the person required to file has either formally or informally appeared, with or without compensation, before any agency of the state or any political subdivision thereof, on behalf of:
"(A) any business with which he is associated;
"(B) any business in which the person or his immediate family holds stock, commodity options or mineral rights worth $1,000 or more at fair market value; or
"(C) any customer or client of any business with which the person is associated who has paid that business $1,000 or more during the calendar year:
"the person must report on whose behalf he appeared, the agency he appeared before, the date and circumstances of each appearance."
Section 7 ( b) (7) requires in the statement "the name and address of any person from whom a gift or gifts valued in the aggregate at $50 or more was received, and the value and the circumstances of each gift. . . ." "Gift" is broadly defined in § 2 ( e) as including "a payment, entertainment, subscription, advance, services or anything of value, unless consideration of equal or greater value is received." However, § 2 ( e) excludes from the definition of "gift," as used in the proposed law, "a political contribution otherwise reported as required by law, a commercially reasonable loan made in the ordinary course of business, or a gift received from a member of the person's immediate family or from a relative within the third degree of consanguinity of the person or of the person's spouse or from the spouse of any such relative."
The Federal Constitution does not expressly grant to individuals a right to privacy. Nevertheless, the Supreme Court of the United States has recognized the existence of "zones of privacy" into which the government may intrude only on a showing of a compelling State interest and, if shown, then only if the least intrusive means are selected to achieve a legitimate public goal. This right has been extended only to fundamental matters relating to marriage, procreation, contraception, familial relationships and child rearing and education. Paul v. Davis, 424 U.S. 693, 712-713 (1976). Roe v. Wade, 410 U.S. 113, 152-153 (1973). Griswold v. Connecticut, 381 U.S. 479, 483-485 (1965). See Marcoux v. Attorney Gen. ante 63, 66 (1978). This court has recently decided that policemen's constitutional right to privacy was not violated by the public disclosure, mandated by G.L.c. 66, § 10, of payroll records, which disclosed the name, address, base pay, overtime pay, miscellaneous payments, and gross pay of every municipal employee. Hastings Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 813-814, 819-820 (1978). The Court of Appeals for the First Circuit has decided that a Boston policeman's right to privacy was not infringed when he was required to file with the police commissioner answers to a questionnaire disclosing all sources of income for himself and his spouse, all significant assets held by him and members of his household, an estimate of his expenditures, and his State and Federal income tax returns. O'Brien v. DiGrazia, 544 F.2d 543 (1st Cir. 1976), cert. denied sub nom. O'Brien v. Jordan, 431 U.S. 914 (1977). Most State courts, passing on the constitutionality of financial disclosure laws, have determined that the privacy of the financial affairs of public officials, public employees, or candidates for public office is not so fundamental a matter as to trigger the application of the strict scrutiny test. Illinois State Employees Ass'n v. Walker, 57 Ill.2d 512, cert. denied sub nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058 (1974). Montgomery County v. Walsh, 274 Md. 502 (1975), appeal dismissed, 424 U.S. 901 (1976). Evans v. Carey, 40 N.Y.2d 1008 (1976). In re Kading, 70 Wis.2d 508 (1975). But cf. Carmel-by-the-Sea v. Young, 2 Cal.3d 259 (1970); County of Nevada v. MacMillen, 11 Cal.3d 662 (1974); Hays v. Wood, 78 Cal.App.3d 354 (1978); Advisory Opinion 1975 PA 227, 396 Mich. 465 (1976). We concur in this determination. Section 6 is not otherwise violative of the Fourteenth Amendment, for it would provide means (the filing of financial interest statements by public officials, employees, and candidates) which the Legislature or the people could believe to be rationally related to the achievement of the legitimate goal of assuring the people of "impartiality and honesty of public officials" (§ 1 of the proposed new G.L.c. 268B). See Goldtrap v. Askew, 334 So.2d 20 (Fla. 1976); Klaus v. Minnesota State Ethics Comm'n, 309 Minn. 430 (1976), Fritz v. Gorton, 83 Wn.2d 275, appeal dismissed, 417 U.S. 902 (1974); In re Kading, supra. Similar measures have been upheld even under the strict scrutiny test. Stein v. Howlett, 52 Ill.2d 570, 578 (1972), appeal dismissed, 412 U.S. 925 (1973). Montgomery County v. Walsh, supra. Fritz v. Gorton, supra. In re Kading, supra. We are of the opinion that the proposed law, also, would meet the more stringent test.
We conclude that the proposed law would not violate the right to privacy of those required to file financial interest statements nor of the members of their immediate families or of those whose relationships with them must be disclosed, in contravention of the Fourteenth Amendment to the United States Constitution.
Like the United States Constitution, the Massachusetts Constitution does not expressly refer to a right to privacy. If the right exists it must be implied in specific provisions of the Constitution. We limit our inquiry to the provisions mentioned in the question.
Assuming that a right to privacy inheres in the right "to be secure from all unreasonable searches" under art. 14 of the Massachusetts Declaration of Rights, we perceive no violation in the disclosure provisions of § 6 of the proposed act. The compelled disclosure of personal and family financial interests to accomplish a legitimate governmental objective has been determined not to constitute an unreasonable search under the Fourth Amendment to the United States Constitution. See O'Brien v. DiGrazia, supra at 546. Advisory Opinion 1975 PA 227, supra at 509. Nor would the disclosure required by the proposed law constitute an unreasonable search under art. 14.
Article 14 provides as follows: "Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws."
If a right to privacy is implied in the "right of free speech" preserved in art. 16 of the Massachusetts Declaration of Rights, it is no greater than the right to privacy the Supreme Court of the United States has recognized under the First Amendment to the United States Constitution. See Griswold v. Connecticut, supra at 483-484. See also Roe v. Wade, supra at 152-153. Even if the strict scrutiny test applied, we are of the opinion that § 6 of the bill would pass constitutional muster.
Article 16, as appearing in art. 77, states, "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged."
If the right to privacy may be inferred in the broad language of art. 1 of the Massachusetts Declaration of Rights, the protection it affords would not be any greater than that provided by the Fourteenth Amendment to the United States Constitution. Since, as we have determined, § 6 would not violate the Fourteenth Amendment, it follows that it would not violate art. 1.
Article 1 declares, "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness."
Therefore, we conclude that § 6 would not violate any right to privacy of the declarants, their immediate families, or those whose relationships with them must be disclosed, in contravention of arts. 1, 14, or 16 of the Massachusetts Declaration of Rights.
We answer question 1 (a) in the negative and consequently need not answer question 1 (b).
2. Question 2 (a) asks whether § 6 of the proposed new G.L.c. 268B would impermissibly add to the qualifications of candidates for and holders of State constitutional public offices. It further asks whether § 6 would violate the right of a candidate for or holder of elective public office to seek public office and the right of the electorate to vote for him, in contravention of the Fourteenth Amendment to the United States Constitution or art. 9 of the Massachusetts Declaration of Rights.
Section 6 (b) provides that a candidate for elective public office must file his statement of financial interests with the commission "and with the same official and at the same time as he files his legal declaration of candidacy or nomination petition to appear on the ballot for election as a public official. . . ." The election official would be prohibited from accepting the candidate's declaration of candidacy or petition to appear on the ballot if the candidate failed to file a proper financial interest statement. § 6 (b). Furthermore, by virtue of § 6 (d), no public official would be allowed to take the oath of office or to enter on or continue with his duties, nor receive compensation from public funds unless he had filed with the commission a statement of financial interests.
The proposed law would not add to the qualifications for constitutional public offices. It would simply require the candidates for constitutional public office, like candidates for all other county and State public office, disclose their financial interests. This would in no manner affect the eligibility requirements for constitutional public office. See Conley v. Ipswich, 352 Mass. 201, 205 (1967). See also Labor's Educ. Political Club-Independent v. Danforth, 561 S.W.2d 339, 343-344 (Mo. 1977).
Included in the grant to the General Court of legislative authority are broad powers to regulate the process of elections. Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution. Opinion of the Justices, 359 Mass. 775, 777 (1971). Opinion of the Justices, 368 Mass. 819, 821 (1975). This authority, whether exercised by the General Court or by the people directly, must be exercised consistently with the protections of art. 9 of the Massachusetts Declaration of Rights, which provides, "All elections ought to be free; and all inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments." Nothing in the act impedes the right of the voter to exercise freely his choice of candidates or measures. To the contrary, the requirement that candidates disclose publicly their financial interests might be thought to foster freedom of elections by giving voters access to information regarding possible conflicts of interest to which candidates may be exposed if elected. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 248-249 (1946); Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 77-78 (1917). The proposed law, therefore, would not violate the right of the electorate to vote.
Presumably, some would-be candidates for public elective office would forgo the right to run for office if the filing of a financial disclosure statement were made a condition of their candidacy. However, the right "to be elected," preserved in art. 9, is not absolute. It is subject to legislation reasonably necessary to achieve legitimate public objectives. Opinion of the Justices, 368 Mass. 819, 823 (1975). One of the stated purposes of the act is to assure the people that "the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public interest." § 1. This is a legitimate public objective. The means selected to achieve it, the filing of financial disclosure statements, designed to expose any possible conflict of interest, bears a rational relationship to the goal. Therefore, the proposed act would not violate the right of candidates for or holders of elective public office to seek public office.
Since the standard applied under the Fourteenth Amendment to the United States Constitution is no more stringent than that we have applied under art. 9 of the Massachusetts Declaration of Rights, we find no violation of the Fourteenth Amendment in § 6 of the proposed law. See Storer v. Brown, 415 U.S. 724 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Socialist Workers Party v. Davoren, 378 F. Supp. 1245 (D. Mass. 1974) (three-judge court); Opinion of the Justices, 368 Mass. 819, 822-823 (1975).
Accordingly, we answer question 2 (a) in the negative and, therefore, need not answer question 2 (b).
3. Question 3 (a) asks whether §§ 6, 8 and 11 of the proposed new G.L.c. 268B would violate art. 30 of the Massachusetts Declaration of Rights because filing and other requirements would be imposed on personnel in the judicial department (other than judges), and whether § 7 ( b) (2) would violate art. 30 because it would require disclosure by lawyers seeking or holding public offices of information regarding their relationships with clients.
Under § 6 judicial personnel who come within the definition of "public employee" or "public official" under § 2 ( l) or § 2 ( m) would be required to file an annual statement of financial interests. Each individual affected also would be required, under § 8, to give to the commission and to his immediate supervisor, if any, a copy of a sworn statement whenever, in the performance of his official duties, he "would be required to take an action that would affect directly or indirectly a financial interest of himself, a member of his immediate family, or a business with which he is associated. . . ." In the statement he would have to describe the matter requiring action and the nature of the potential conflict. He then would have to take steps through his immediate supervisor or the commission to remove himself from influence over any action or decision on the matter. § 8 ( b) (2) and § 8 ( b) (3). Section 11 would prohibit a majority of the members of a nonelective governmental body, or a committee or subcommittee thereof, from having "a financial interest, either personal or through a member of their immediate family or a business with which they are associated, other than an interest of a de minimus [ sic] nature or an interest that is not distinct from that of the general public, in matters subject to the jurisdiction of the body or committee or subcommittee." By definition the term "governmental body" would be applicable to the judicial branch. Attorneys seeking or holding public office would be required to disclose as to clients and others "the name, address, and nature of business of any person from whom income in the value of $1,000 or more was received, the nature of the services rendered, and the amount. . . ." § 7 ( b) (2).
In § 2 ( f) of the proposed law "governmental body" is defined as "any state or county department, commission, committee, council, board, bureau, division, service, office, administration, legislative body, or other establishment in the executive, legislative, or judicial branch of the state or county."
"Person" is defined in § 2 ( j) of the proposed law as "a business, individual, corporation, union, association, firm, partnership, committee, club, or other organization or group of persons."
The legislative and executive departments are prohibited from exercising powers entrusted to the judicial department. This prohibition is part of the principle of separation of powers, recorded and preserved in art. 30. While we recognize the importance of observing scrupulously the division of powers of each branch of government, we also are cognizant of the need for some flexibility in the allocation of functions among the three departments. Each branch, to some extent, exercises executive, legislative, and judicial powers. The critical inquiry here is whether the requirements which the proposed law would impose on attorneys and employees and officials of the judicial department would interfere with the functions of that branch of government. See Opinion of the Justices, 372 Mass. 883, 892 (1977). Opinion of the Justices, 365 Mass. 639, 641-642 (1974) There is nothing in the provisions to which the question refers which would constitute an impermissible interference by the legislative or executive branches with the functions of the judicial branch. Although we have the authority by rule to establish standards of conduct for judicial employees and officials, as we have done for attorneys and judges, this does not preclude legislation establishing complementary standards and providing administration and enforcement through a commission whose decisions would be subject to judicial review. See Burnside v. Bristol County Bd. of Retirement, 352 Mass. 481, 482-483 (1967). As to attorneys admitted to practice before the courts of the Commonwealth, we retain the ultimate authority to control their conduct in the practice of law. Collins v. Godfrey, 324 Mass. 574, 576 (1949). "Legislation," nevertheless, "may be enacted in aid of the judicial department, and doubtless in appropriate instances standards of conduct may be set up by statutes. . . ." Id. If the judicial department promulgates a rule imposing standards higher than or in conflict with those imposed by the legislation, the judicial rule would prevail. Id. Accordingly, §§ 6, 8, 11, and 7 ( b) (2) would not violate art. 30.
See Supreme Judicial Court Rule 3:22, Canons of Ethics and Disciplinary Rules Regulating the Practice of Law ( 359 Mass. 796 [1972]), and Supreme Judicial Court Rule 3:25, Code of Judicial Conduct ( 359 Mass. 841 [1972]).
Judicial review of decisions of the State Ethics Commission is provided in § 5 ( f) of the proposed act.
It has been suggested that the requirement in § 7 ( b) (2) of the proposed law, that attorneys who are candidates or holders of public office must disclose the names, addresses and nature of business of certain clients and the nature of services rendered to them would conflict with Supreme Judicial Court Rule 3:22, DR 4-101 ( 359 Mass. 796, 812-813 [1972]), forbidding members of the bar from revealing information "which would be embarrassing or would be likely to be detrimental to the client." In particular instances this canon might conflict with the requirements of § 7 ( b) (2); if so, the rule would prevail. Similar considerations might apply as to judicial employees and officials.
We answer question 3 (a) in the negative.
The issue raised by question 3 (b) is whether any provisions of the proposed new G.L.c. 268B relate to "powers . . . of courts" and are therefore excluded from the initiative petition process. Art. 48, The Initiative, II, § 2. The principal purpose of the proposed law is to compel candidates for public office and certain public officials and employees in the three branches of county and State government to disclose their financial interests in order to avoid conflicts of interest. Section 5 ( f), providing for judicial review of the commission's decisions, is not a principal part of the proposed law. The proposed measure only incidentally concerns the powers of the courts. Even if the authority of the courts relating to the conduct of attorneys and judicial officials and employees comes within the meaning of the term "powers . . . of courts" as used in art. 48, those powers are involved in only a subsidiary way. In any event the courts' powers in this particular would not be increased or diminished by the enactment of the measure. Therefore, since the main thrust of the proposed act is not directed at the powers of the courts, the measure is not excluded from the initiative process. Cohen v. Attorney Gen., 354 Mass. 384, 387 (1968). Horton v. Attorney Gen., 269 Mass. 503, 509-511 (1929). See Commonwealth v. Yee, 361 Mass. 533, 537 (1972).
The first paragraph of this section provides " No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect" (emphasis supplied).
We answer question 3 (b) in the negative.
4. Question 4 inquires whether § 6 ( d) of the proposed new G.L.c. 268B, prohibiting a public official from taking the oath of office or entering on or continuing with his duties unless he has filed a financial interest statement, would, as applied to State senators and representatives, violate the constitutional right of the Senate and the House of Representatives to be the judges of the elections, returns and qualifications of their members. Section 6 ( d) would apply to State senators and representatives because "public official" is defined in § 2 ( m) as including any elected official in the State Legislature. The constitutional authority of each branch of the Legislature to judge the elections, returns, and qualifications of its members is exclusive, comprehensive, and final. Dinan v. Swig, 223 Mass. 516 (1916). We are of opinion that the provisions in § 6 ( d) would intrude on an area of concern reserved exclusively to each house of the General Court and would be void as applied to members of the Senate and House of Representatives.
The relevant provisions are:
"The senate shall be the final judge of the elections, returns and qualifications of their own members, as pointed out in the constitution. . . ." Part II, c. 1, § 2, art. 4, of the Massachusetts Constitution.
"The house of representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the constitution. . . ." Part II, c. 1, § 3, art. 10, of the Massachusetts Constitution.
We note, however, that this determination does not prevent the Legislature or the people from voting on the proposed law. "The people acting by means of the initiative, like the General Court, can enact measures that violate the fundamental and supreme law of the Constitution and that consequently have no force or effect. But no court can interfere with the process of legislation, either by the General Court or by the people, before it is completed, to prevent the possible enactment of an unconstitutional measure. . . . The judiciary is barred from the legislative field just as it is from the executive." Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 246-247 (1946). Opinion of the Justices, 309 Mass. 571, 580-581 (1941). Moreover, § 7 of the proposed measure (not part of the proposed new G.L.c. 268B) is a severability clause, providing that invalidity of one provision or application shall not affect the validity of another provision or application.
We answer question 4 in the affirmative.
5. We are asked in question 5 whether the enactment of the proposed new G.L.c. 268B, particularly §§ 6-10 and 11, would conflict with the right of the Senate and the House of Representatives to determine their own rules. We have summarized §§ 6, 7, 8, and 11, in our responses to questions 1 and 3. Section 9 would regulate the value of gifts that could be given by a legislative agent to a public official or employee. Section 10 would restrict appearances by a legislator before State agencies, except when appearing in public court proceedings or acting in an official capacity. The Senate is empowered to "determine its own rules of proceedings." Part II, c. 1, § 2, art. 7, of the Massachusetts Constitution. Similarly, the House is authorized to "settle the rules and orders of proceeding in their own house." Part II, c. 1, § 3, art. 10, of the Massachusetts Constitution. Assuming that the proposed law relates to matters within the rule-making province of the General Court, we perceive no constitutional violation. Nothing in the Constitution prescribes the manner in which the General Court must exercise its rule-making power. It has exercised this authority through the adoption of separate sets of rules regulating the proceedings in the respective legislative branches, as well as joint rules regulating proceedings in both houses. However, it has also done so through the legislative process. See, for example, G.L.c. 3, § 32A (regulating travel expenditures incurred by special commissions and by special or standing committees of the General Court); § 38A (requiring joint committees of the General Court and the committees on ways and means to include fiscal note when reporting favorably on most bills); § 38B (requiring the committee on ways and means in each branch or the joint committee on ways and means to hold public hearings on certain matters); and § 65 (establishing a Senate art committee). This legislative practice reinforces our view that the General Court is free to exercise its constitutional rule-making power through the legislative process. Thus, even if the proposed law would in some respect affect proceedings in the General Court, it would not intrude on the right of the Senate and the House to determine their own rules.
The complete section provides: "No legislative agent shall offer or give to a public official or public employee or a member of his immediate family or a business with which he is associated and no public official or public employee shall solicit or accept from any legislative agent gifts aggregating more than ten dollars in a calendar month."
The full text of the section reads: "No member of the general court shall for compensation represent a person or act as an expert witness before any state agency where the action or non-action of the agency is of a non-ministerial nature, except in a matter of public record in a court of law; provided that this does not apply to a legislator acting in an official capacity."
See Manual for the General Court 1973-76, 599-633 (Rules of the Senate), 635-677 (Rules of the House of Representatives), 679-714 (Joint Rules of the Two Branches).
Our conclusion would be the same whether the measure were passed by vote of the General Court or by vote of the people, for, except as to matters expressly excluded, the scope of the power of the people to enact laws directly is as extensive as that of the General Court. The matter of regulating legislative proceedings is not excluded from the initiative process. Art. 48, The Initiative, II, § 2. We note that, if the Legislature chooses, it may submit to the people a legislative substitute eliminating or modifying provisions relating to legislative proceedings. Art. 48, The Initiative, III, § 2. In the event the people adopt the initiative measure rather than a substitute measure, the Legislature retains the right to amend or repeal the measure. Art. 48, General Provisions, VI.
We answer question 5 in the negative.
6. We are asked in question 6 (a) whether the provisions in the proposed new G.L.c. 268B empowering the commission to impose sanctions for violations of the act or of G.L.c. 268A, in particular § 5 ( d) (3), authorizing the imposition of a civil penalty of $1,000, would violate art. 12 or art. 30 of the Massachusetts Declaration of Rights.
Section 5 ( d) authorizes the commission, on finding that there has been a violation of G.L.c. 268A or of the proposed new c. 268B, other than a criminal violation, to issue an order requiring the violator to cease and desist; file any report, statement or other information required by G.L.c. 268A or by the proposed act; or "pay a civil penalty of not more than $1,000 for each violation of this act or Chapter 268A. . . ." If the commission makes a finding that there has been a criminal violation of the proposed act or of G.L.c. 268A, it is required to report the finding to the Attorney General for prosecution. § 5 ( c). Any action taken by the commission would be subject to judicial review. § 5 ( f).
Article 12 of the Massachusetts Declaration of Rights preserves the right to trial by jury in criminal cases. The expressed intent of the drafters of the proposed measure is not to authorize the commission to act under § 5 ( d) in instances where there has been a criminal violation. They emphasize their purpose by the use of the adjective "civil" preceding the word "penalty" in § 5 ( d) (3). It does not appear that a purpose of the proposed law is to punish the commission of a crime through the imposition of a penalty. Cf. Commonwealth v. United Food Corp., 374 Mass. 765, 781 (1978). We do not think that the imposition of a penalty of not more than $1,000 would amount to "a capital or infamous punishment" which, under art. 12, would require a jury trial. The penalty indicates, to the contrary, that, assuming any criminal offense were involved, it would be petty; consequently, no right to jury trial would arise. See Matter of DeSaulnier ( No. 3), 360 Mass. 769, 774-775 (1971); Opinion of the Justices, 360 Mass. 877, 885 (1971). See also Muniz v. Hoffman, 422 U.S. 454 (1975) (no right to jury trial arose under Sixth Amendment where a labor union was fined $10,000 for contempt of court). The penalty provision is a familiar device conferred on administrative bodies to assist them in the performance of their duties. See, for example, G.L.c. 111, § 127A; G.L.c. 128A, § 9A. Similar provisions have been upheld by other courts against attacks based on the absence of a right to jury trial. See United States v. Atlantic Richfield Co., 429 F. Supp. 830 (E.D. Pa. 1977); K.C. Davis, Administrative Law of the Seventies § 2.13 (1976), and cases discussed therein. We conclude that § 5 ( d) would not violate art. 12.
The full text of art. 12 is as follows: "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.
"And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury."
The enactment of the enforcement provisions in § 5 ( d) would not result in a violation of art. 30. Under § 5 ( f) any action by the commission would be subject to judicial review so that it would not improperly be exercising powers committed to the judicial department. Nor would it be exercising legislative powers not properly delegated to it by the General Court. The delegation of power to the commission to impose a civil penalty of not more than $1,000 for each violation is not, by itself, an excessive delegation of legislative power. Commonwealth v. Diaz, 326 Mass. 525, 528-530 (1950). See Commonwealth v. Racine, 372 Mass. 631 (1977).
We answer question 6 (a) in the negative.
The only issue raised by question 6 (b) and not answered in our response to question 6 (a) is whether the provision authorizing the commission to impose sanctions is related to "the powers . . . of courts" and therefore excluded from the initiative process. Art. 48, The Initiative, II, § 2. What we said in response to question 3 (b) applies here also.
We answer question 6 (b) in the negative.
7. Question 7 asks whether the provisions of § 3 of the proposed new G.L.c. 268B, authorizing the Secretary of the Commonwealth and the Attorney General to appoint and remove members of the commission, are constitutional. Section 3 ( a) would establish the commission, which would consist of five members. Three members would be appointed by the Governor, one member by the Secretary of the Commonwealth, and one member by the Attorney General. § 3 ( b). By a majority vote of these appointing authorities, a member of the commission could be removed. § 3 ( g).
The question does not refer to a particular constitutional provision. We assume the issue is whether the Legislature may authorize an officer in the executive branch, other than the Governor, to appoint members of a commission. There can be no doubt about the answer in light of the Justices' recent statement, "The Legislature may confer this power of appointment on the Governor or on another public officer or board within the executive branch." Opinion of the Justices, 365 Mass. 639, 643 (1974). See also Sheridan v. Gardner, 347 Mass. 8, 12-13 (1964).
We answer question 7 in the affirmative.
8. Question 8 asks whether, if any part of the proposed measure is excluded from the initiative process, the excluded parts could be severed so that the remainder of the measure would be "introduced and pending" within the meaning of art. 48, The Initiative, II, § 2. No answer is required because we have determined that none of the provisions mentioned in questions 1 (b), 2 (b), 3 (b), and 6 (b) relate to matters excluded from the initiative process.
In summary, we answer:
question 1 (a), "No"; question 1 (b), no answer required; question 2 (a), "No"; question 2 (b), no answer required; question 3 (a), "No"; question 3 (b), "No"; question 4, "Yes"; question 5, "No"; question 6 (a), "No"; question 6 (b), "No"; question 7, "Yes"; question 8, no answer required.
The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices, subscribing hereto on the twenty-seventh day of April, 1978.
EDWARD F. HENNESSEY FRANCIS J. QUIRICO ROBERT BRAUCHER BENJAMIN KAPLAN HERBERT P. WILKINS PAUL J. LIACOS RUTH I. ABRAMS