The Massachusetts Supreme Judicial Court issued a pair of opinions Monday on ballot questions pending before the Legislature, deferring a formal ruling on one that would subject state lawmakers and the governor to the public records law and raising doubts about another that would govern legislative stipends.
The SJC opinions come after the state Senate challenged the two initiative petitions in March, after both met signature counts to sit before the Legislature.
H. 5004 would “make most records held by the Legislature and the Office of the Governor public records under the Massachusetts Public Records Law,” and H. 5010 would “amend provisions governing legislative stipends to condition part of the stipends on the Legislature’s ‘compliance’ with procedural prerequisites and performance goals established in the measure.”
On the issue of public records, the justices said that they would only be able to rule on a specific case were the initiative to become a law.
“Whether this multifaceted regime, or any particular aspect of it, intrudes on the Senate’s authority to set its own rules, violates the separation of powers, or infringes either legislative privilege or legislative immunity are questions not amenable to consideration in the abstract,” the SJC justices wrote. … “Instead, the better course is to wait and, if the initiative is enacted in its current form and is not amended by the Legislature, to consider any challenge to its constitutionality in the context of a future, concrete dispute.”
Massachusetts is currently the only state that exempts the legislature, governor and judiciary from state public records laws.
State Senate and House leadership heralded the justices decision as leaving the door open for future challenges.
Senate President Karen Spilka said the ruling “clearly acknowledges the legitimate constitutional concerns around the Senate’s authority to set its own rules, potential separation‑of‑powers issues, and the protection of legislative speech and debate, privilege and immunity.”
“While the Justices chose not to address those issues now, the Court made clear that it is ready and likely to resolve those fundamental issues should the ballot question become law without any changes,” said Spilka.
On the legislative stipend issue, the SJC found the proposal pertained to a rule and not a law, a distinction critical to the question of whether the question is constitutional or not.
Proponents of the ballot question call the “leadership stipends” awarded to most legislators “loyalty pay,” noting the system is an outlier among states and can award upwards of $119,000 on top of lawmakers’ base pay at the discretion of leadership. The initiative, advocates argue, would tie financial rewards to performance instead.
“Because (Article 48) authorizes voters to propose only laws and constitutional amendments, a measure that is neither a constitutional amendment nor a law lies outside the scope of the initiative process,” justices wrote. “Accordingly, the Attorney General cannot certify an initiative petition as ‘in the proper form for submission to the people’ if the petition does not propose a law.”
The court ruling broke down the differentiation between rules and laws, noting that “laws govern conduct external to the legislative body, while rules govern internal procedures.”
The SJC opinion does not block the measure, but it does provide a set of arguments that opponents could use in court to fight against it.
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Spilka said the ruling “aligns with the Senate’s long-held view that the Legislature’s rights and privileges come directly from the Massachusetts Constitution.”
A spokesperson for the House said it is “now clear that the question should not appear on the ballot in November.”
Both questions remain pending before lawmakers.
“The Special Joint Committee on Initiative Petitions will consider both opinions as they work to issue their recommendations,” the House spokesperson stated.
Initiative petitions for constitutional amendments in Massachusetts must achieve at least 25% approval by two consecutive joint sessions of the Legislature and would appear on a state ballot no earlier than November 2028.
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