Mass. Court Denies Executive Privilege

BOSTON--In a setback for Gov. Michael S. Dukakis, the state's highest court ruled yesterday that there is no legal justification for the governor's claim of "executive privilege" and ordered him to divulge sensitive planning documents.

The ruling, which came in a lawsuit filed by two homosexual men challenging Dukakis' foster care policy, could have immediate and farreaching implications--particularly in a similar suit over the governor's decision to locate a new state prison in New Braintree.

"I haven't read it yet, but certainly we will comply with the decision in every respect," Dukakis told reporters in Shrewsbury, promising to release any requested documents "in accordance with the decision."

In its unanimous opinion, the high court rejected the principle that the executive branch may keep certain papers secret, a practice that is used in some form in about one quarter of the states and by the federal executive branch.

Attorneys for the state had argued that the forced disclosure of internal memos would have a "chilling effect" on the government's policymaking process by inhibiting a full discussion of options and consequences before policies are adopted and made public.

The high court's ruling came in a suit filed by Donald Babets and David Jean, two homosexuals challenging the Dukakis administration's decision to remove two young boys from foster care in their Boston home. The men argued that they needed access to the administration's policymaking process to prove their claim that their rights were violated.

"It's a victory for accountability and open government," said attorney Anthony M. Doniger, who represents Babets and Jean. "The public now has a right to know how its government comes to its decisions. That is a good thing in a democracy."

Ken Schwartz, chief of staff in the state's office of Human Resources, warned that the ruling could distort the decisionmaking process.

"The chilling effects of the disclosure of these types of documents is real and has the potential to harm the quality of decisions," Schwartz said. But, he added, "as a general matter, we take the public right to know very seriously."

In their opinion, the justices said they could find no justification for withholding government documents in the state constitution or in state law, and they declined to create new law by recognizing such a privilege.

"Had the framers of our government's structure intended to recognize in our constitution an executive privilege, it is reasonable to expect that they would expressly have created one," Hennessey wrote.

Having found no language in the constitution, the court went on to consider the government's argument that the "common law" must provide an executive privilege against forced disclosures. Noting its reluctance to create new laws, rights or privileges, the court said the issue was a policy question best left to the legislature.

The case before the court had its beginnings in 1985, when the Dukakis administration abruptly removed two youngsters--then aged 3 and 22 months--from Babets and Jean, a homosexual couple living in Boston.

After a study, the Department of Social Services promulgated new rules laying out a system of priorities for placing foster children that gave lowest priority to gay individuals who lacked experience as parents. The system gave first priority to married traditional couples with children.

Babets and Jean filed suit in Suffolk Superior Court in January 1986 challenging the legality of the new DSS rules. The suit named Dukakis, Human Services Secretary Philip Johnston and DSS Commissioner Sandy Matava as defendants, although Dukakis was later dropped as a named defendant.

The plaintiffs argued that the foster placement policy discriminated against them and violated their constitutional rights to equal protection, free association and privacy.

At trial in Superior Court, lawyers for Babets and Jean asked Judge James P. Lynch Jr. to order the Dukakis administration to divulge certain documents relating to the policymaking process.

After inspecting the documents in his chambers, Lynch ordered the government to surrender the requested papers. But Lynch stayed his own order and referred the constitutional questions to the appellate courts.