OPINION OF THE JUSTICES TO THE GOVERNOR

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; [email protected]

OPINION OF THE JUSTICES TO THE GOVERNOR.

SJC-11114

March 27, 2012.

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

On March 27, 2012, the Justices submitted the following answer to questions propounded to them by the Governor.

To His Excellency the Governor of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in the Governor's letter dated December 22, 2011, and transmitted to the Justices on that day:

"Is it constitutionally required that the Governor be physically present at and presiding over an assembly of the Executive Council in order for the Lieutenant Governor to vote on matters before the Council, provided that the chair of the Governor is not vacant by reason of the Governor's death, absence from the Commonwealth, or other incapacity?"

The Governor's letter refers to Part II, c. 2, § 2, art. 2, of the Constitution of the Commonwealth (art. 2), which provides:

"The governor, and in his absence the lieutenant governor, shall be president of the council, but shall have no vote in council: and the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant."

On receiving the request for an advisory opinion, we invited interested persons to file briefs no later than February 13, 2012. [FN1]

1. May the question constitutionally be answered? We first must address whether constitutionally we may answer the question. The Massachusetts Constitution requires the Justices of the Supreme Judicial Court to give opinions to the Governor, the Executive Council, or the Legislature "upon important questions of law, and upon solemn occasions." Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments. "The constitutional obligation of the Justices is 'to render opinions only when they are properly required, and to abstain from answering questions of law not required under this provision.' " Answer of the Justices, 444 Mass. 1201, 1202 (2005), quoting Opinion of the Justices, 430 Mass. 1205, 1207 (2000). See generally Answer of the Justices, ante 1201 (2012).

We have interpreted this provision to require both that the question of law be important and that it be presented to us in the context of a "solemn occasion." Answer of the Justices, 444 Mass. at 1202; Answer of the Justices, 364 Mass. 838, 841 (1973). Because we have no doubt that the question of law presented here is important, we turn immediately to whether it comes to us in the context of a "solemn occasion." A "solemn occasion" arises when a branch of government, "having some action in view, has serious doubts as to [its] power and authority to take such action, under the Constitution, or under existing statutes." Answer of the Justices, 461 Mass. at 1202, quoting Answer of the Justices, 373 Mass. 867, 871 (1977). An advisory opinion is appropriate only where there is a pending matter and the opinion of law would assist "in the performance of a present duty." Answer of the Justices, 461 Mass. at 1202, quoting Answer of the Justices, 444 Mass. at 1202. We "have construed a present duty as an imminent obligation to act pursuant to the Constitution or statute." Answer of the Justices, 444 Mass. at 1206.

"To safeguard the principle of separation of powers, fundamental in our system of government, we construe the 'solemn occasion' provision strictly." Answer of the Justices, 461 Mass. at 1202. We have noted that our power does not extend to addressing the "usual legal difficulties presenting themselves either to the House of Representatives or to the Senate or to the Governor and Council," and that the Legislature has provided for the Attorney General to offer advice in those situations. Answer of the Justices, 373 Mass. at 870. See Answer of the Justices, 461 Mass. at 1203; G.L. c. 12, § 9 (Attorney General "shall give [her] opinion upon questions of law submitted to [her] by the governor and council or by either branch of the general court").

Recognizing the issue to be a close one, we conclude that the question presented comes to us in the context of a "solemn occasion." The Governor has the constitutional obligation to nominate and appoint all judicial officers, subject to the advice and consent of the Executive Council. Part II, c. 2, § 1, art. 9, of the Constitution of the Commonwealth. Where there is a tie vote in the Executive Council, the Lieutenant Governor may exercise his constitutional authority to vote to break the tie. Art. 2. Because the question for which an advisory opinion has been sought has yet to be resolved, the Governor has chosen to preside over the Executive Council whenever there is a tie. Such ties in the past were unusual, and therefore did not materially affect the Governor's ability to leave the State House to perform his constitutional function as the "supreme executive magistrate." Part II, c. 2, § 1, art. 1, of the Constitution of the Commonwealth. However, the Governor and Executive Council agree that tie votes among Councillors are now increasingly common. Seven tie votes occurred in 2011, six of which were resolved by the Lieutenant Governor casting a tie-breaking vote with the Governor presiding over the meeting. [FN2]

With so many judicial vacancies in the Commonwealth, the Governor has a present duty to act to fill those vacancies with capable judicial nominees, the Executive Council has a present duty to confirm or reject those nominees pursuant to its authority to advise and consent, and, where there is a tie, the Lieutenant Governor has the present duty to decide whether he shall vote to break the tie. Pragmatically, the Governor cannot wait for a tie vote to present this question, because any advisory opinion could not be provided before voting on the judicial nominee in the Council is completed. If the Governor were to choose not to preside over the Council and the Lieutenant Governor were nonetheless to cast the vote breaking the tie to confirm the nominee, constitutional questions would be raised after the nominee is sworn as a judge whether the judge lawfully was confirmed, and whether the judge's acts were judicial acts. And if the Governor were to seek to avoid this constitutional cloud by continuing to preside over the Council whenever there were tie votes, and if the past is prologue as to the prevalence of tie votes, the Governor would need to remain near the State House during the weekly meetings of the Council. Where the Governor and Council will inevitably face this question again in the near future once the Council casts a tie vote on a judicial nomination, and where there is no practical way for the question timely to be answered once a tie vote is cast, we conclude that the question presents a "solemn occasion" that warrants our advice. Cf. O'Brien v. Borowski, ante 415, 417 (2012) (reaching merits of moot dispute where it raised issues of public importance regarding constitutionality of statute that would likely arise again but otherwise evade review).

2. The question presented. The answer to the question presented rests on the interpretation of art. 2, which states:

"The governor, and in his absence the lieutenant governor, shall be president of the council, but shall have no vote in council: and the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant."

The Governor and the Council have differing interpretations of this provision. The Governor is of the view that, read together, these two clauses allow the Lieutenant Governor to be a voting member of the Council even when he is presiding over it, unless he is acting Governor because the Governor is dead, absent from the Commonwealth, or otherwise incapable of serving. The Council, on the other hand, reads these clauses as prohibiting the Lieutenant Governor from voting if he is presiding over the Council in the absence of the Governor.

Our analysis is informed by our traditional principles of constitutional interpretation. We look first to the plain language of the constitutional provision. Schulman v. Attorney Gen., 447 Mass. 189, 191 (2006), and cases cited. "We bear in mind that the Constitution 'was written to be understood by the voters to whom it was submitted for approval' and that '[i]t is to be interpreted in the sense most obvious to the common intelligence. Its phrases are to be read and construed according to the familiar and approved usage of the language.' " Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 665 (2011), S. C., ante 232 (2012), quoting Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976).

Second, we construe the language of a provision "in the light of the conditions under which it was framed, the ends designed to be accomplished, the benefits expected to be conferred, and the evils hoped to be remedied." Carney v. Attorney Gen., 447 Mass. 218, 224 (2006), quoting Loring v. Young, 239 Mass. 349, 372 (1921). See McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545, 558 (1993), quoting Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317 (1950) (language and structure of provision to be "construed so as to accomplish a reasonable result and to achieve its dominating purpose").

Third, we recognize "that every word and phrase in the Constitution was intended and has meaning." Powers v. Secretary of Admin., 412 Mass. 119, 124 (1992). See Commonwealth v. Bergstrom, 402 Mass. 534, 541 (1988), quoting Mount Washington v. Cook, 288 Mass. 67, 70 (1934) ("All [the] words [of the Constitution] must be presumed to have been chosen advisedly"); Opinion of the Justices, 332 Mass. 769, 777 (1955) ("Words of the Constitution cannot be ignored as meaningless").

Fourth, we interpret the provisions of the Constitution "in combination with each other and all other parts of the Constitution as forming a single harmonious instrument for the government of the Commonwealth." Opinion of the Justices, 291 Mass. 578, 586 (1935). See Opinion of the Justices, 384 Mass. 820, 823 (1981) ("We must construe a constitutional amendment as an harmonious whole, giving words and phrases in different places in the amendment the same meaning unless used in manifestly different senses").

To understand the meaning of art. 2, one must first understand the history of the Executive Council and its various constitutional responsibilities. The executive body that would become the Council was first established in the Massachusetts Bay Colony by its charter of 1629, which established that there would be a Governor, deputy governor, and assistants. The History of the Law in Massachusetts: The Supreme Judicial Court 1692-1992 at 49 (R.K. Osgood, ed.1992). The subsequent charter of 1692 provided for twenty-eight "Assistants or Councillors to be advising and assisting to the Governour of Our said Province or Territory," referred to in the charter as the "Privy Councill." 1 Acts and Resolves of the Province of Massachusetts Bay 1692-1714 at 10, 15 (1869). From the founding of the colony until the adoption of the Constitution, the Council had numerous functions: it played a judicial role (first, as the Court of Assistants, adjudicating appeals and later, as the Council, adjudicating questions of marriage, divorce, and the probate of wills), and an executive role "to assist, to advise, and in a measure to control the governor in the exercise of his executive functions." E.B. Greene, The Provincial Governor in the English Colonies of North America 80 (1898) (Greene); L.A. Frothingham, A Brief History of the Constitution and Government of Massachusetts 12-13 (1916) (Frothingham); 1 Records of the Court of Assistants of the Colony of the Massachusetts Bay at v (1901). The advisory role of a Councillor "was expressed in his oath of office, by which he was bound 'at all times freely' to give his advice to the governor 'for the good management of the publick affairs of this government.' " Greene, supra at 80-81, quoting Massachusetts Province Laws i.78. In the absence of the Governor and Lieutenant Governor, a majority of the Council exercised the executive power of the colony. Frothingham, supra at 15.

The Executive Council was preserved in the Constitution of 1780. Part II, c. 2, § 3, art. 1, of the Constitution of the Commonwealth. Art. 16 of the Amendments to the Constitution of the Commonwealth (art. 16). See White, Toward the Framers' Understanding of "Advice and Consent": A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol'y 103, 135 (2005). Today the Executive Council is comprised of eight Councillors, art. 16, and the Lieutenant Governor, whom the Governor has the power and authority to convene "from time to time, at his discretion," for "ordering and directing the affairs of the Commonwealth." Part II, c. 2, § 3, art. 1. Part II, c. 2, § 1, art. 4, of the Constitution of the Commonwealth.

"The Constitution recognizes two kinds of executive business which may come before the Council: one, that which is to be done by the Governor and Council acting together as an executive board, and the other, business to be done by the Governor, acting under the responsibility of his office as supreme executive magistrate, by and with the advice and consent of the Council." Opinion of the Justices, 190 Mass. 616, 618 (1906). The Governor and Council act as an executive board when they, for instance, examine records of votes for State Senate, Part II, c. 1, § 2, art. 3, of the Constitution of the Commonwealth; examine records of votes for Governor, Lieutenant Governor, and Councillors, art. 16; and when a statute uses the words "Governor and Council" to suggest their review of a particular matter as an executive board. See Opinion of the Justices, 211 Mass. 632, 635 (1912). The Council acts pursuant to its advice and consent responsibilities where it, for instance, reviews the Governor's nominations to judicial offices, Part II, c. 2, § 1, art. 9, and proposed pardons. Part II, c. 2, § 1, art. 8, of the Constitution of the Commonwealth. We have also recognized that the Council may play an advisory role in addition to these two constitutional roles where "[i]n the transaction of other kinds of executive business, doubtless the Governor may take the advice of the Council or not, as he chooses." Opinion of the Justices, 190 Mass. at 618. [FN3]

The Council's most prominent constitutional role is its power of advice and consent. In this role, the Governor alone has the power to make the nomination, but the nomination may result in the appointment of the nominee only after the nomination is confirmed by the Council by a majority vote. See Opinion of the Justices, 190 Mass. at 620 ("It cannot have been intended that the Governor, before determining upon a person to be appointed, should be obliged to take the advice of the Council; but plainly it was intended that before an act of appointment can become complete, the Council shall approve of it, and take affirmative action which fairly may be called advising it, as well as consenting to it"). See also Murphy v. Casey, 300 Mass. 232, 235 (1938).

While the Council's advice and consent function serves as a check and balance on the power of the Governor, the Council's function as an executive board is more collaborative, because the Governor and Councillors "are to act together as an executive body, and the Governor cannot lawfully act alone." Opinion of the Justices, 190 Mass. at 618. See Pineo v. Executive Council, 412 Mass. 31, 35 (1992), quoting Answer of the Justices, 214 Mass. 602, 604 (1913) ("Nowhere in the Constitution are any duties conferred upon the Council, except such as they are to perform in conjunction with the Governor, either approving or disapproving his acts or joining with him as an executive board"); Scullin v. Cities Serv. Oil Co., 304 Mass. 75, 78 (1939) ("Whether the Council acts in conjunction with the Governor or whether it merely gives advice or consent as to matters in the first instance determined by him, it acts with the Governor or alone as a recognized official executive or advisory board").

"Duties ... to be performed by the executive board are conferred in the Constitution often by the words 'Governor and Council,' or 'the governor with five of the council,' or other equivalent language." Opinion of the Justices, 211 Mass. 632, 633 (1912). We know that, in 1912, both the Governor and Executive Council understood that, when the Governor and Council met together as an executive board, the Governor could participate in the resolution of matters before the Council because the Governor and Council that year agreed to seek an advisory opinion from this court on the following question: "When the law calls for action 'by the Governor and Council,' has the Governor to concur with a majority of the Council in order to make its decision effective, or is he to be considered a member of the deciding body with one vote?" Id. at 632. The context of the question was that a State hospital had voted to appoint a superintendent at an annual salary of $4,000 and requested the approval of the action by the Governor and Council. Id. The Governor did not give his approval, but a majority of the Councillors did, id., and the issue was whether the Governor or the Council would prevail. We noted that the power to fix the salaries of employees of public institutions has an important bearing on the Commonwealth's finances, and that the Constitution imposes on the Governor "a particular duty respecting the finances of the Commonwealth." Id. at 634. We therefore concluded:

"The words 'Governor and Council' when used respecting many matters, indicate the single executive board composed of the Governor and the councillors. Sparhawk v. Sparhawk, 116 Mass. 315, 317 [1874]. But as employed in the statute now under consideration touching the creation of that which may become in the nature of a fixed charge against the treasury of the Commonwealth, we incline to the view that they require separate approval by the Governor and also by the Council. Each must act independently of the other, and both must concur to effect the increase in salary."

Id. at 635.

Turning now to our interpretation of art. 2, we understand the clause declaring that "the lieutenant-governor shall always be a member of the council except when the chair of the governor shall be vacant" to mean that the Lieutenant Governor shall be a member of the Council except when he serves as the Acting Governor, which he does "[w]henever the chair of the governor shall be vacant, by reason of his death, or absence from the Commonwealth, or otherwise...." Part II, c. 2, § 2, art. 3, of the Constitution of the Commonwealth, as amended by art. 55 of the Amendments (art. 3). [FN4] While he serves as acting Governor, the Lieutenant Governor performs all the duties of the Governor, with all the power and authority vested in the Governor under the Constitution, and therefore may not also serve as a member of the Council.

We understand the clause in art. 2 declaring that "[t]he governor, and in his absence the lieutenant governor, shall be president of the council, but shall have no vote in council," to mean that when the Council performs its advice and consent role in considering the Governor's nominations, the Governor shall preside over the Council as its president but shall have no vote. We interpret the "absence" referred to in art. 2 to mean the Governor's absence from the Council chamber while the Council is convened, and not absence from the Commonwealth. [FN5] If "absence" were to mean "absence from the Commonwealth," the drafters of the Constitution would have spelled out this requirement in art. 2 as they did in art. 3. Therefore, under this provision, where the Governor does not preside over the Council meeting because he is absent from the Council chamber, the Lieutenant Governor shall preside in his place and becomes "president of the council."

Where the Governor is absent from the Council chamber but not absent from the Commonwealth, the Lieutenant Governor serves as "president of the council" but not as Acting Governor, and therefore remains a member of the Council but has no vote in the Council on matters of advice and consent. We conclude that this is the plain meaning of the clause in art. 2: "The governor, and in his absence the lieutenant governor, shall be president of the council, but shall have no vote in council." The Governor states that this cannot be the meaning because the next clause of art. 2 provides that "the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant," and this interpretation renders meaningless the word "always" in this clause. The Governor's position essentially is that the Lieutenant Governor cannot "always be a member of the council" yet have no vote in the Council when he serves as president of the Council in the Governor's absence. The Governor's interpretation, however, assumes that the Council's only role is advice and consent, and fails to consider the Council's role as an executive board, where the Lieutenant Governor, regardless whether he is serving as president of the Council, continues to perform the duties of a Council member. Although as president of the Council he was unable to vote on matters of advice and consent, he could still perform the duties of a Council member on executive board matters. To the framers of our Constitution, therefore, there was no inconsistency in declaring that the Lieutenant Governor had no vote in the Council on matters of advice and consent when he served as president of the Council in the absence of the Governor, but he always remained a member of the Council except when he served as Acting Governor.

To agree with the Governor's interpretation of art. 2 that the Lieutenant Governor always retains a vote in the Council except when he serves as Acting Governor, we would need to ignore the apparent constitutional directive that the president of the Council, whether it be the Governor or the Lieutenant Governor presiding in the Governor's absence, "shall have no vote in council." Essentially, the Governor reads art. 2 as if it stated:

"The governor shall be president of the council, but shall have no vote in council; in the governor's absence, the lieutenant governor shall be president of the council; and the lieutenant governor shall always be a member of the council except when the chair of the governor shall be vacant."

We interpret art. 2 as it was written, recognizing the care and craftsmanship with which the words were chosen, giving it a meaning that respects every word and clause, and that is consistent with the Council's dual constitutional roles of providing advice and consent and acting as an executive board.

The answer to the question, therefore, is: where the Lieutenant Governor is president of the Executive Council because the Governor is absent from the Council chamber, the Lieutenant Governor remains a member of the Council but may not vote on matters of advice and consent until the Governor returns to preside over the Council. For the reasons given in note 5, supra, we do not address whether the Governor is "absent" from the Council chamber within the meaning of art. 2 where the Governor is physically absent from the Council chamber but, through the use of technology, may be functionally present and capable of presiding over the Council.

The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the twenty-seventh day of March, 2012.

Roderick L. Ireland

Francis X. Spina

Robert J. Cordy

Margot Botsford

Ralph D. Gants

Fernande R.V. Duffly

Barbara A. Lenk

FN1. We acknowledge the briefs received from the Governor, the Executive Council, Councillors Charles O. Cipollini and Mary-Ellen Manning, Alycia Kennedy (daughter of Councillor Terrence W. Kennedy), and Patrick McCabe of the CPF-Fatherhood Coalition.

FN2. On the seventh vote, the Governor was outside the Commonwealth, so the Lieutenant Governor was the acting Governor and could not vote in the Executive Council. See Part II, c. 2, § 2, art. 2, of the Constitution of the Commonwealth (art. 2). The Governor withdrew his nomination of the candidate, resubmitted it, and on January 4, 2012, the Lieutenant Governor cast the tie-breaking vote with the Governor presiding over the meeting.

FN3. The Constitution also provides, "All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision." Part II, c. 3, art. 5, of the Constitution of the Commonwealth. However, in 1783 and 1785, the Legislature made "other provision," relieving the Governor and Council of this judicial role. St. 1783, c. 46, § 3; St. 1785, c. 69. See Sparhawk v. Sparhawk, 116 Mass. 315, 317-318 (1874).

FN4. Part II, c. 2, § 2, art. 3, of the Constitution of the Commonwealth, as amended by art. 55 of the Amendments (art. 3), provides:

"Whenever the chair of the governor shall be vacant, by reason of his death, or absence from the commonwealth, or otherwise, the lieutenant governor, for
the time being, shall, during such vacancy, perform all the duties incumbent upon the governor, and shall have and exercise all the powers and authorities, which by this constitution the governor is vested with, when personally present."

FN5. We respectfully do not address whether the Governor is absent from the Council chamber within the meaning of art. 2 where the Governor is physically absent from the Council chamber but able to hear (and perhaps see) all that is contemporaneously transpiring in the chamber by means of a telephone, an audio or video connection, a computer, or other technology, and able to communicate with the Councillors as if he were physically present. No one has proposed such an arrangement or described in detail how it would work, and without a specific proposal we are unable to opine whether, in those circumstances, the Governor would be considered absent from the chamber within the meaning of art. 2. Nor is it clear that the Governor's question intended to solicit an opinion whether the Governor is absent from the Council chamber under art. 2 where he is physically absent but functionally present and capable of presiding. We note that both the Governor and the Council in their briefs appear to have understood "absence" to occur whenever the Governor is not physically present in the Council chamber.