Massachusetts Senate Seeks SJC Advisory Opinion on Constitutionality of Public Records and Stipends Ballot Questions

BY SAM DRYSDALE

The Massachusetts Senate plans to seek a high court advisory opinion on whether two proposed ballot initiatives — one regulating legislative stipends and another expanding public access to records held by the Legislature and governor’s office — violate the state constitution.

The Legislature faces a May 5 deadline to act on those initiative petitions. If lawmakers do not pass the measures as written by that date, supporters can gather another round of signatures to place the questions on the November ballot. But a Senate official said Thursday that if the court concludes the proposals are unconstitutional, lawmakers could consider other steps before they advance to voters.

The official stressed that the request is not litigation and would not result in a binding decision. Instead, the Senate is using a rarely invoked constitutional provision allowing the legislative and executive branches to seek advisory opinions from the state Supreme Judicial Court.

The state constitution states: “Each branch of the Legislature…shall have authority to require the opinions of the Justices of the Supreme Judicial Court, upon important questions of law, and upon solemn occasions.”

According to Senate officials, the last time the Legislature or another branch sought such an opinion was in 2016, with another request the year before.

The public records proposal would extend the state’s public records law to the Legislature and the governor’s office. A Senate order requesting the court’s opinion says the petition raises “grave doubt” about whether it conflicts with constitutional protections governing legislative independence.

The Senate asks whether the measure would violate its authority under the constitution to “determine its own rules of proceedings” and manage its records. Lawmakers also question whether granting enforcement power to executive officials and courts would violate the separation of powers clause in the constitution.

The order further warns the measure could intrude on legislative privilege, including the right to “freedom of deliberation, speech and debate.”

A second initiative, to reform and regulate legislative stipends, would condition lawmakers’ eligibility for additional compensation on compliance with certain procedural requirements for handling legislation. The Senate order argues that the proposal may also run afoul of the constitution if it effectively mandates changes to internal legislative procedures rather than proposing a law.

Attorney General Andrea Campbell last year determined the initiative petitions meet constitutional requirements to appear on the ballot. 

In a Substack post Thursday morning, Senate Majority Leader Cindy Creem said the chamber is seeking clarity before voters weigh in.

“The Senate will ask the Court questions so the public can get the answers,” Creem wrote.

She also said they are choosing this route after complications from a previous ballot initiative to reform the Legislature, championed by the same proponent of the public records measure, Auditor Diana DiZoglio. The measure to audit the Legislature passed by 72% in 2024, and the auditor has turned to the courts to seek enforcement authority because the Legislature has resisted her audit attempts. 

“Candidly, misunderstandings and a lack of clear explanation of the constitutional implications of Question 1 during the last ballot cycle has led to confusion and frustration,” Creem wrote.

The Legislature had not asked the courts for its opinion on the constitutionality of the audit law.