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BOSTON — The Supreme Judicial Court on Monday raised serious constitutional doubts about a ballot question that would reform the Legislature and left unresolved key issues around a public records proposal, setting up potential legal fights ahead. Both campaigns say they intend to keep moving toward the November ballot.
In advisory opinions requested by the Senate, the high court offered a detailed legal roadmap that could shape what happens next — both before the Legislature’s May 5 deadline to act on the proposals and potentially in courtrooms after the election.
The opinions are non-binding but carry implications for the two initiatives, which seek to reshape Beacon Hill. One would tie legislative stipends to new requirements about committee productivity. The other would subject the Legislature and governor’s office to the public records law.
Stipends proposal faces constitutional headwinds — but the campaign presses on
On the stipends proposal, the justices focused on a threshold question under Article 48 of the Constitution — whether the measure qualifies as a “law” that can be advanced through the initiative petition process, or an internal “rule” governing legislative procedure. Rules cannot be the subject of ballot measures.
The proposal’s supporters say it would encourage committees to be more productive and transparent, while also making legislators less financially dependent on the House speaker and Senate president, The Light reported last month.
The justices wrote that the proposal constitutes a rule change, seeking to impose changes to the Legislature’s internal proceedings. The Senate took that ruling as a victory, with its counsel saying the justices’ interpretation is that the measure is unconstitutional.
Applying a long-standing framework, the court wrote that “laws govern conduct external to the legislative body, while rules govern internal procedures,” and concluded that “the principal purpose of the measure is to regulate the two houses’ internal operations.”
While the petition is framed around compensation — conditioning extra pay on whether committees hold hearings, conduct markups and vote on legislation in specified ways — the justices said that mechanism functions primarily as a tool to direct internal legislative activity. They also pointed to the role assigned to House and Senate clerks, noting that “the clerks are legislative officers whose duties are defined by their respective chambers through unicameral rulemaking.”
The opinion stops short of formally blocking the measure, but it provides a clear constitutional warning that opponents could use in court.
Despite that, the campaign behind the proposal — the Legislative Effectiveness and Accountability Partnership (LEAP) — said it plans to continue.
“We respectfully but firmly disagree with the Justices’ advisory opinion,” said LEAP Chair John Lippitt, calling the opinion “advisory and nonbinding” and arguing it conflicts with the Attorney General’s prior certification. The group said it intends to keep pursuing the ballot question, with Treasurer Jennifer Nassour adding, “This question belongs before the voters.”
The campaign framed the measure as a structural reform to the state’s $5.4 million stipend system, arguing it would tie extra pay to substantive committee work rather than just leadership titles.
Senate counsel, however, described the ruling as a significant validation of the chamber’s legal position, emphasizing that the court found the proposal not to be a proper “law” under Article 48. Lawyers indicated the opinion confirms long-standing concerns that the measure attempts to regulate internal legislative procedure through an indirect mechanism — using compensation as leverage — something the court viewed as an impermissible end run around constitutional limits.
The opinion does say that ballot questions can consider legislative pay. It’s tying that pay to procedural qualifications that is at issue.
Senate lawyers stressed the opinion’s practical effect remains uncertain because it is advisory. If proponents continue their campaign, lawmakers are weighing what steps to take next, including the possibility of future litigation. Senate lawyers repeatedly pointed to the likelihood of legal challenges if the measure advances, particularly given the court’s detailed reasoning.
A spokesperson for Senate President Karen Spilka echoed that view.
“The Supreme Judicial Court (SJC) makes it clear that the ballot initiative on legislative stipends does not propose a law, but an internal rule — and because of that, it’s unconstitutional. This aligns with the Senate’s long-held view that the Legislature’s rights and privileges come directly from the Massachusetts Constitution,” spokesperson Gray Milkowski said.
Public records proposal clears key hurdle, but questions linger
The second opinion, addressing a proposal to apply the state’s public records law to the Legislature and governor’s office, was more mixed — resolving some threshold questions while explicitly leaving others unanswered.
On the core procedural issue, the court determined that the measure fits within the initiative process, writing that “its principal purpose is to provide the public with a new right of access to the records of the General Court and the office of the Governor.” Because it would “alter the legal rights of ‘persons outside the Legislature,’” the justices treated it as a law rather than an internal rule.
They also rejected an argument that the petition improperly intrudes on judicial authority, concluding that any role for courts in enforcing the law would be “merely incidental and subsidiary to the main purpose of the initiative.”
But beyond those threshold determinations, the court declined to resolve several of the most consequential constitutional questions raised by the Senate — including whether the measure would infringe on legislative privilege, violate separation of powers, or encroach on each chamber’s authority to set its own rules.
Those issues, the justices said, are “not amenable to consideration in the abstract,” particularly given the complexity of the public records statute and the range of scenarios in which it could apply.
They underscored that restraint with a broader principle drawn from prior case law: “No court can interfere with the process of legislation, either by the General Court or by the people, before it is completed, to prevent the possible enactment of an unconstitutional measure.”
Supporters of the public records initiative said the opinion largely favors their position.
Shannon Liss-Riordan, an attorney involved in the campaign, said, “We’re very pleased with these decisions, particularly the advisory opinion rejecting the Senate’s concerns around the public records law,” noting that the court declined to strike the measure as unconstitutional on its face.
She argued the ruling reinforces a key principle — that courts will not resolve hypothetical constitutional conflicts before a law is enacted — and said that supports related litigation efforts, including efforts to enforce a previously approved legislative audit.
“The SJC’s statement today that a ballot question might incidentally impact legislative functions doesn’t make it unconstitutional,” she said, emphasizing that the court focused on the measure’s primary purpose of expanding public access to government records.
Liss-Riordan also said the decision signals that unresolved constitutional questions would only be addressed if and when a concrete dispute arises, such as a refusal by state officials to comply with the law.
Next steps: campaigns move forward, legal risks remain
The advisory nature of both opinions is central to what happens next.
Unlike a binding ruling, the justices’ answers do not compel the Legislature to act — or not act — in any particular way, nor do they prevent either campaign from continuing.
The court did say that the Legislature now does not need to take an up-or-down stance on the legislative stipends measure before its May 5 deadline to act on ballot questions. Lawmakers will still have to decide on potential action to the public records proposal.
A House spokesperson said Monday that the Special Joint Committee on Initiative Petitions will consider the SJC’s opinions when it makes its own report.
“Given that the SJC has stated that the initiative petition governing legislative stipends proposes a rule rather than a law, it is now clear that the question should not appear on the ballot in November. While the Court opined that the public records initiative petition was properly certified, they did not reject the possibility of a future constitutional dispute if the ballot question is implemented in its current form.”
Following the May 5 deadline, if the Legislature doesn’t act, campaigns will head back before voters to collect a smaller and last round of signatures to appear on the November ballot.
Secretary of State William Galvin’s spokesperson Deb O’Malley said there is nothing preventing supporters of either measure from returning after May 5 to request additional signature papers to qualify for the November ballot.
As the campaigns move forward, they’re likely headed on a collision course for future legal action.
If the stipends campaign continues, it could face legal challenges aimed at blocking the question from the ballot or invalidating it afterward. Senate counsel signaled that litigation remains a possibility and warned that moving forward could mean gathering signatures and campaigning under the cloud of a court opinion indicating the measure is unconstitutional. Counsel also suggested that, if the question reached voters, the state’s voter information guide — the so-called “Red Book” — would likely say that the question is unconstitutional.
For the public records proposal, the path forward appears more procedurally secure but legally unsettled. The court made clear that challenges based on separation of powers or legislative privilege are still open questions — ones the Legislature has a keen interest in bringing to court.
“In the SJC’s public records opinion, the Court 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,” Milkowski said. “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.”
Opponents likely missed their window to challenge the legislative stipend proposal under Article 48 of the Constitution for an official and binding decision that would wipe it off the ballot. There are a number of these challenges to other ballot measures this year, filed in January and February.
For now, both campaigns are moving forward — one buoyed by a procedural green light to some questions with other answers yet to come, the other facing significant constitutional doubt but no immediate barrier.
