To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the House on February 21, 1974, and transmitted to us on February 25, 1974. The order recites the
The questions are:
“1. Would the enactment of the bill printed in House, No. 5293 be in violation of Article XXX of Part the First of the Constitution of the Commonwealth providing for the separation of the Legislative, Executive and Judicial Departments?
“2. Would the enactment of the bill printed in House, No. 5293 which applies to the housing court of the City of Boston be in violation of Article II of the Amendments to the Constitution of the Commonwealth establishing home rule for municipalities?”
1. Initially, we note that the concept of a separation of powers is fundamental to our form of government. While not explicitly delineated in the Federal Constitution it is implicit in the structure of the government there created and it finds expression, in varying forms, in the Constitutions of most of the States. The Massachusetts version, like those of only a handful of other States, is in a most explicit form, and on its face calls for a complete and rigid division of all powers among the three branches.
Nevertheless, we recognize that an absolute division of the three general types of functions is neither possible nor always desirable. The growth in this century of administrative agencies, called by some a “fourth branch” of government, has sometimes tended to obscure the admittedly indistinct boundary lines between the three branches and led some courts to adopt such descriptions as “quasi-judicial” or “quasi-legislative.”
The laudable motives of the authors of the present bill, the promotion of economy and efficiency in government, often dictate cooperation among the coordinate branches. Such efforts must, however, take place within the limitations of art. 30, which was not lightly adopted, and must be complied with. Thus, this court has upheld the assignment of a legislative investigation to an executive officer, as the Legislature may delegate “incidental powers which it may exercise itself in aid of its primary functions but which do not partake of the nature of law making.” Attorney Gen. v. Brissenden,
We believe the proposed bill violates this core principle and also transgresses specific precedent on the allocation of governmental powers. It would therefore be unconstitutional if passed. We discuss the specific reasons below.
Appointments.
The major supervisory body created by House No. 5293 would be the Electronic Data Processing and Telecommunications Commission (the Commission). It would have administrative authority over the Electronic Data Processing and Telecommunications Services Department (the Department) which in turn would have operational responsibility for the functions in all branches of State
“The creation of a public office is a legislative function, but the appointment of a particular person to an office is the function of the executive department.” Commissioner of Admn. v. Kelley,
“It is settled, however, that this power of appointment may not be conferred by the General Court upon the courts — the judicial department — with respect to officers or boards not exercising a function that is judicial or incidental to the exercise of judicial powers .. ..” Opinion of the Justices,
While the court clearly has “the power to appoint or to remove certain officers whose duties are closely connected with the judicial work of the court,” LaChapelle v. United Shoe Mach. Corp.
As for the proposed appointments by the President of the Senate and the Speaker of the House of Representatives, “in our opinion the power of appointing members of such boards is so far executive in nature that it cannot be conferred by fixed law upon such purely legislative officers as senators and representatives, acting in any manner other than that prescribed by the Constitution for action by the General Court, without violating the provisions of art. 30 of the Declaration of Rights. But even if the power of appointing members of such boards were to be regarded as a legislative power, it could be exercised by the General Court or its members only in the manner prescribed by the Constitution for action by the General Court, and could not be delegated to such members acting in a different manner.” Opinion of the Justices,
If the appointment provisions were revised to conform to constitutional requirements and the Commission and the Department were placed, as seems logical from their functions, in the executive branch of government, the question would nevertheless remain whether there would be an interference by that branch with the function of the judiciary.
The Governor’s message to the Legislature recommending passage of House No. 5293 asserts that such concerns are “mitigated by the fact that the department will be a service department, not a policy-making department in the traditional sense.” Were the Commission and the Department to function in a strictly service capacity for the several branches of government, with no involvement in their internal functioning, the requirements of art. 30 would be met. Clearly, for example, the executive branch may manage public buildings without constitutional impediment. However, the decision of this court in O’Coin’s, Inc. v. Treasurer of the County of Worcester,
Our concern as to the effect of such indirect influence over other branches of government is amplified by the policy making role assigned by the bill to the Commission.
In § 3 the Commission is “authorized and empowered: (1) To oversee, manage and develop policy for the Commonwealth’s electronic data processing and telecommunications needs and to oversee the management of . . . [the Department].” “(4) To approve or disapprove all projects for the Department and to set priorities for such projects. ... (11) To perform all other acts necessary and proper for the execution of the purposes of this act.” In § 4 the Department is stated to be “responsible for carrying out the policy and operational mandates of the Commission” and is “authorized and empowered: (1) To program, plan and budget for all electronic data processing and telecommunications activities . . . which will enable the Department to exercise fiscal control over ... all such state agencies and departments using electronic data processing
The potential for dangerous concentration of indirect but very real control over all branches of government inherent in such legislation is substantial. The provisions of the bill providing for a Security and Privacy Council to make “recommendations concerning questions of individual privacy and system security in connection with the collection, storage, dissemination and usage of data processing information pertaining to individuals” (§ 5), and providing a right of hearing before the Council to “[a]ny person who is aggrieved by a decision of the Commission or whose privacy has been violated” ( § 6), neither substantively nor procedurally answer such concerns. Nor does the attenuated right of administrative appeal to a Committee of Conference or judicial appeal under the State Administrative Procedure Act, G. L. c. 30A (§§ 6 and 7) suffice to do so. The bill creates an agency with power to exert control over all branches of government and thus is entithetical to the notion of separation of powers. This notion does not necessarily preclude judicial participation on a voluntary basis in the sharing of data processing facilities and services, provided that such participation does not involve internal functioning of the judicial branch.
Unlawful Transfer of Power From Legislature to Executive.
Apart from the problems of an impermissible scheme of appointments and interference with the judiciary, an additional impediment remains which would alone render the proposed legislation invalid under art. 30. As the plan originates with the General Court the constitutional problem lies not in any usurpation of the power of that body but in the propriety of such a delegation of administrative authority and control from the Legislature to the Execu
2. As any consideration of the constitutionality of the proposed bill under art. 2 of the Amendments to the Constitution of the Commonwealth, as amended by art. 89, would appear to be rendered unnecessary by the above discussion of art. 30, we do not answer question.2.
We answer question 1, “Yes.”
We beg to be excused from answering question 2.
G. Joseph Tauro
Paul C. Reardon
Francis J. Quirico
Robert Braucher
Edward F. Hennessey
Benjamin Kaplan
Herbert P. Wilkins
Notes
Article 30 of our Declaration of Rights: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative
In order to avoid confusion with the use of the term “Department” to refer to the specific agency set up by the bill we will refer in this opinion to the three major divisions of government as “branches.”
Davis, Administrative Law Treatise, § 1.09 (1958).
Jaffe, Judicial Control of Administrative Action, 28 (1965).
Davis, Administrative Law Treatise, § 1.09 (1958).
It is perhaps worth noting that the protection of the independence of the judiciary was the exclusive purpose of the original draft of the Massachusetts separation of powers clause. As drafted by John Adams and reported by the committee as art. 31 of the draft, the clause read as follows: “The judicial department of the State ought to be separate from, and independent of, the legislative and executive powers.” J. of the Convention for Framing a Constitution of Government (Mass. Bay) (1779-1780) 197. See generally 2 Mass. L. Q. (No. 5) 383-393 (1917).
For a critical analysis of some of the dangers inherent in such a unified data collecting and processing system, see the remarks of Professor Arthur R. Miller in Automation in the Courts, Its Impact on Record-Making and Record-Keeping, Implications for the Private Citizen and the Public, Association of the Bar of the City of New York, 35-45 (1971).