ANSWER OF THE JUSTICES TO THE SENATE.

ANSWER OF THE JUSTICES TO THE SENATE.

401 Mass. 1234

February 4, 1988

Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices.

The Justices declined on February 4, 1988, to answer questions by the Senate as to the constitutionality of a bill which ceased to be pending before the General Court when the legislative session ended on January 5, 1988. [1235]

On February 4, 1988, the Justices submitted the following answer to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit the following response to the questions set forth in an order adopted by the Senate on October 26, 1987, and transmitted to us on October 29, 1987.

The order states that there is pending before the General Court a bill entitled "An Act further regulating bail" (Senate No. 800). A copy was transmitted with the order.

The bill provides that a prisoner may be denied bail on the basis of "whether the prisoner may flee, pose a danger to any other person or the community, or whether the prisoner will obstruct or attempt to obstruct justice or will threaten, injure, intimidate or attempt to threaten, injure or intimidate a prospective witness or juror."

The order reports that grave doubt exists as to the constitutionality of the bill if enacted into law and propounds the following questions:

"1. Would section one of said Senate No. 800, if enacted into law, violate the provisions of Article XXIV of

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Part the First of the Constitution of the Commonwealth in that detention of a prisoner based on said section one without a trial to determine guilt, constitutes punishment for actions which have not been declared crimes?

"2. Would section one of said Senate No. 800, if enacted into law, violate the provisions of Article XXVI of Part the First of the Constitution of the Commonwealth in that detention of a prisoner based on said section one without a trial to determine guilt constitutes excessive or unreasonable bail?

"3. Would said section one of said Senate No. 800, if enacted into law, violate the provisions of Article CVI of the Amendments to the Constitution of the Commonwealth in that detention of a prisoner based on said section one without a trial to determine guilt, constitutes deprivation of the enjoyment of liberty?"

By operation of law the 1987 legislative session ended January 5, 1988. Article 10 of the Amendments to the Constitution of the Commonwealth. The Justices received the legislative order too late to permit interested parties to prepare and file briefs, and to permit sufficient deliberation by the Justices thereafter. Consequently, the Justices were unable to render their opinion in this matter before the end of the 1987 legislative session. Therefore no solemn occasion exists authorizing and requiring us to render our opinion. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment. Answer of the Justices, 382 Mass. 694 (1980). Answer of the Justices, 376 Mass. 938 (1978). Answer of the Justices, 374 Mass. 861 (1978). Answer of the Justices, 374 Mass. 858 (1978). Regretfully, we must decline to answer the questions.

The questions may well present constitutional issues regarding which either House of the 1988 Legislature may wish advice. In that event, a new order requesting our opinion may be adopted.

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The foregoing answer is submitted by the Justices subscribing hereto on the fourth day of February, 1988.

EDWARD F. HENNESSEY

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS

JOSEPH R. NOLAN

NEIL L. LYNCH

FRANCIS P. O'CONNOR