The Validity of the Restrictions on the Modern Advisory Opinion

In 1831 the Maine House of Representatives, relying on its constitutional authority to request advisory opinions, sought the counsel of the Justices of the Supreme Judicial Court regarding voting requirements for the election of state officers. Because the House was about to adjourn, it requested that the Justices forward their answers to the Governor for publication. The Justices, without mentioning any constitutional limitation on their power to answer questions propounded by the Governor or the Legislature, complied with this request. One hundred and forty years later, the Senate requested the Justices' advice regarding the reapportionment of the House of Representatives. In a sequence of events similar to those surrounding the 1831 Opinion, the requesting body adjourned shortly after transmitting its questions. The Justices refused to answer, stating that they no longer had the constitutional authority to respond because the Senate had adjourned before the Justices could answer. The contradictory manner in which the Justices replied to the requests of the House and Senate illustrates the transformation in judicial construction of the constitutional language defining the parameters of the use of advisory opinions in Maine. An advisory opinion generally constitutes the advice of the individual justices of the highest court in a given jurisdiction, rendered at the request of certain executive or legislative bodies. The Maine Constitution provides that: "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when requested by the Governor, Senate or House of Representatives." Except for removal of reference to the defunct executive council, this constitutional provision has remained unaltered since its adoption in 1820. Although commentators often examine the alleged benefits of the advisory opinion, they seldom address the issue whether judicial interpretation of the conditions precedent to the Justices' issuance of an opinion complies with the modern purpose of this procedure. Justification of the restrictions on the rendition of the advisory opinion depends on whether those restrictions support the historical purpose of the advisory opinion as applied to the requirements of the modern governmental system.