370 Mass. 879 | Mass. | 1976
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this answer to the question set forth in an order adopted by the House on May 13,1976, and transmitted to us on May 19,1976. The order recites that there is pending before the General Court a bill, House No. 4463, entitled, “An Act providing for recall elections in the town of Hop-kinton.” A copy of the bill was transmitted to us with the order. The order also recites that a petition seeking enactment of the bill was filed “by the town” under art. 89 of the Amendments to the Constitution of the Commonwealth, the Home Rule Amendment. Section 8 of the Home
The order also states that a special town meeting, held in Hopkinton on November 24, 1975, voted against a motion to have the town’s board of selectmen petition the General Court requesting enactment of the special act which provides a procedure for the recall of any elected official. The order further recites that, on December 15, 1975, by referendum ballot, the same question was submitted to the voters of the town, purportedly pursuant to St. 1954, c. 660, “An Act providing that certain town meeting votes shall be subject to a referendum in the town of Hopkinton.”
The order further recites that opponents of the proposed legislation have questioned the validity of the vote taken by special ballot on the ground that St. 1954, c. 660, does not allow submission to the voters of a question defeated at a town meeting. The order indicates also that a civil action has been filed in the Superior Court, Middlesex County, asking that the vote in favor of the filing of the petition be declared invalid.
“Is the petition accompanying House, No. 4463, a petition properly filed by the voters of the town of Hopkinton within the meaning of Section 8 of Article LXXXIX of the Amendments to the Constitution of the Commonwealth, notwithstanding the method by which it was obtained?”
The basic question is whether the House now has before it a petition for a special act affecting a single municipality which was filed properly under the Home Rule Amendment. If the vote on the referendum question was a valid vote under the special act relating to Hopkinton, that vote amounts to a petition for a special act and would be filed properly under § 8 of the Home Rule Amendment.
We consider only whether St. 1954, c. 660, permits a referendum vote after a measure had been defeated by vote at a town meeting. We do not discuss other possible infirmities in the referendum vote. However, in light of the answer that we give, other infirmities are immaterial.
The words “vote ... passed” in St. 1954, c. 660, are ambiguous. See R. B. Johnson & others, Town Meeting Time 71, esp. n.10 (1962). They could be construed to refer to a vote not to take specific action as well as to a vote to take affirmative action on a proposition before a town meeting. We think, however, that those words are intended to refer only to an affirmative vote, one which calls for action, and not to a negative town meeting vote. We find support for this conclusion in St. 1954, c. 660, itself and in the absence of language which appears in other representative town meeting acts allowing voter consideration of measures rejected at a town meeting.
A common understanding in a legislative context of the words “vote ... passed” is a vote which approves of specific legislation. Statute 1954, c. 660, has language which tends to support this interpretation. A “vote... passed” is not to be operative until the expiration of five days and, unless a referendum petition is filed, “shall become operative and effective at the expiration of said period.” This language
If the Legislature had intended St. 1954, c. 660, to authorize voter approval of a proposition defeated at a town meeting in Hopkinton, that act could have referred to any vote passed or rejected by a town meeting. In 1954, when the Hopkinton special act was passed, there were representative town meeting acts which made express reference to voter action on proposals rejected at town meeting as well as those “passed.” See, e.g., St. 1928, c. 167, § 8 (Winchester) ; St. 1929, c. 215, § 8 (Lexington); St. 1932, c. 279, § 8 (Needham); and St. 1936, c. 39, § 9 (Amesbury),
We conclude that the petition in support of House No. 4463 was not filed or approved by the town meeting of Hopkinton. We turn then to the question whether the petition was “filed or approved by the voters” of Hopkinton as those words are used in § 8 of the Home Rule Amendment.
In our opinion, the vote did not constitute a petition “filed or approved by the voters” of Hopkinton. That vote was not taken pursuant to any statutory authorization. There is no general law prescribing procedures to be followed in obtaining the sentiment of voters on a proposed petition for enactment of a law relating to municipality.
Because we are of the opinion that the petition accompanying House No. 4463 was not a petition properly filed under § 8 of the Home Rule Amendment, we answer the question, “No.”
Edward F. Hennessey
Paul C. Reardon
Francis J. Quirico
Robert Braucher
Benjamin Kaplan
Herbert P. Wilkins
Paul J. Liacos
The crucial language concerning the referendum vote in Hopkinton appears in St. 1954, c. 660, § 1, which amended St. 1943, c. 454, § 2, by inserting a new § 2. For the purposes of our discussion we shall refer to St. 1943, c. 454, § 2, as amended by St. 1954, c. 660, § 1, as St. 1954, c. 660. The only other section of St. 1954, c. 660, provided for submission of its acceptance to the voters at a town meeting. St. 1954, c. 660, § 2.
We have examined the papers and docket entries in that action. Dennis A. Keefe et al v. John H. Duffy et al, Middlesex Superior Court, Civil No. 75-6607. The complaint was filed on December 12, 1975. The plaintiffs are voters of the town of Hopkinton, and the defendants are the members of the town’s board of selectmen. The complaint seeks a declaration that the vote taken at the referendum election was invalid under St. 1954, c. 660, because that statute allows a referendum only on measures affirmed by vote at a town meeting and not measures de
In response to our invitation to interested persons to file briefs, we received briefs from the town counsel of the town of Hopkinton and from the plaintiffs in the pending civil action.
We accept a vote “to have the Board of Selectmen petition the General Court requesting the enactment of... [a] special act” as satisfying the requirement of § 8 that the petition be “filed or approved” by the voters or the town meeting.
In offering our opinion on this issue, one that has been raised in the course of private litigation, we caution that the answer we give is in our capacity as counsélor to a coordinate branch of our government
Such a general law was proposed in 1966 in the First Report of the Special Commission on Implementation of the Municipal Home Rule Amendment to the State Constitution, 1966 Senate Doc. No. 846, 26-28. From time to time that Commission has renewed its proposal that procedures be defined for requesting the enactment of special laws under § 8 (1) of the Home Rule Amendment. See 1967 Senate Doc. No. 1547, 22. In 1969, that Special Commission in its Fourteenth Report made a detailed suggestion for implementing local petitions under § 8. See 1969 Senate Doc. No. 1271,4-5.
General Laws c. 3, § 8A, inserted by St. 1973, c. 896, provides that a petition filed pursuant to § 8 of the Home Rule Amendment must indicate the number voting for and the number voting against, if such a vote is tabulated. That section does not prescribe any procedure to be followed in obtaining the voters’ approval of a petition.
For example, a home rule petition for special legislation affecting a municipality signed by a majority of the municipality’s voters might have a valid existence without implementing legislation.