Oberlies v. Attorney General
Oberlies v. Attorney General
Opinion
**824 We are asked to determine whether two initiative petitions satisfy the requirements of art. 48 of the Amendments to the Massachusetts Constitution. The first, Initiative Petition 17-07, would limit the number of patients who may be assigned to a registered nurse in Massachusetts health care facilities, and would prohibit facilities from accommodating those limits by reducing certain other health care staff. The second, Initiative Petition 17-08, contains the same provisions as the first petition, with an additional section that would require publicly funded hospitals to make annual public disclosures of their financial assets. The Attorney General certified that Initiative Petition 17-07 meets the requirements of art.
**825 48, but declined to certify Initiative Petition 17-08, after concluding that the mandate for financial disclosure was not sufficiently related to or mutually dependent upon the other provisions in the petition. The opponents of Initiative Petition 17-07, and the proponents of Initiative Petition 17-08, sought relief before a single justice in the county court.
On the request of all parties, the single justice reserved and reported both cases to this court. In the first case, the plaintiffs challenge the Attorney General's decision to certify Initiative Petition 17-07; they contend that the nurse-to-patient ratios are not sufficiently related to or dependent upon the requirement that, in implementing
*767
those ratios, covered facilities are prohibited from reductions in other health care staff. Because the restriction on staff reduction pertains to implementation of the nurse-to-patient ratios, we conclude that these two elements of the proposal form "a unified statement of public policy,"
Carney
v.
Attorney Gen
.,
In the second case, the plaintiffs challenge the Attorney General's decision not to certify Initiative Petition 17-08; they argue that the financial disclosure provision is sufficiently related to the nurse-to-patient ratios, because it will shed light on facilities' capacity to meet new staffing needs. We conclude that the Attorney General was correct in declining to certify Initiative Petition 17-08 on the ground that the financial asset disclosure requirement and the limitations on nurse-patient staffing ratios are not sufficiently related or mutually dependent, as required by art. 48. See
Massachusetts Teachers Ass'n
v.
Secretary of the Commonwealth
,
1. Background . In August, 2017, two petitions, each signed by ten registered voters in the Commonwealth, were submitted to the **826 Attorney General for certification. The Attorney General numbered them Initiative Petition 17-07 and Initiative Petition 17-08. Although both are entitled "Initiative Petition For A Law Relative To Patient Safety And Hospital Transparency," the petitions differ with respect to one section.
Initiative Petition 17-07 seeks to create a new statute, entitled "The Patient Safety Act" (act or proposed act) that would amend c. 111 of the General Laws. The act would create "patient assignment limits" for registered nurses working in "facilities" in Massachusetts. The proposed act defines the term "[f]acility" as "a hospital licensed under [ G. L. c. 111, § 51 ], the teaching hospital of the University of Massachusetts medical school, any licensed private or [S]tate-owned and [S]tate-operated general acute care hospital, an acute psychiatric hospital, an acute care specialty hospital, or any acute care unit within a [S]tate[-]operated healthcare facility." "[R]ehabilitation facilities" and "long-term care facilities" are explicitly excluded.
The act proposed by Initiative Petition 17-07 would set limits on the number of patients who could be assigned to a registered nurse in any given facility, based on the unit where the nurse works and the condition of the patients. For example, in any emergency services department, a registered nurse would be assigned only one critical care or intensive care patient; in pediatric units, up to four pediatric patients could be assigned to one registered nurse. In any unit not specifically listed in *768 the proposed act, the patient assignment ratio would be four patients per registered nurse. The patient assignment limits would be in effect at all times except "during a [S]tate or nationally declared public health emergency."
The proposed act provides, "Each facility shall implement the patient assignment limits established by [G. L. c. 111, §] 231C [the nurse-patient limit provision of the proposed act]. However, implementation of these limits shall not result in a reduction in the staffing levels of the health care workforce." We refer to this requirement as the "workforce reduction restriction." The "health care workforce" is defined by the proposed act as all "personnel employed by or contracted to work at a facility that have an effect upon the delivery of quality care to patients, including but not limited to registered nurses, licensed practical nurses, unlicensed **827 assistive personnel, service, maintenance, clerical, professional and technical workers, and all other health care workers." The proposed act would require each facility to submit a written plan to the Health Policy Commission (HPC), 6 certifying that the facility will implement the patient assignment limits without diminishing its health care workforce.
The act proposed by Initiative Petition 17-07 also would authorize the HPC to promulgate regulations governing implementation and operation of the act. These regulations would include, but not be limited to, "regulations setting forth the contents and implementation of: (a) certification plans each facility must prepare for implementing the patient assignment limits enumerated in [§] 231C, including the facility obligation that implementation of limits shall not result in a reduction in the staffing level of the health care workforce assigned to such patients; and (b) written compliance plans that shall be required for each facility out of compliance with the patient assignment limits." The HPC would not be authorized to promulgate any regulation that directly or indirectly delays, waives, or modifies the patient assignment limits, or the requirement that those limits be implemented without resulting reductions in a facility's health care workforce.
Under the terms of the proposed act, the HPC "may conduct inspections of facilities to ensure compliance with the terms of this act. A facility's failure to adhere to the patient assignment limits," as adjusted per the act's requirements, "shall be reported by the [HPC] to the Attorney General for enforcement." The Attorney General would be able to sue a facility found to be in violation of the act in the Superior Court for injunctive relief and civil penalties up to $25,000 per violation.
The other initiative petition at issue in this case, Initiative Petition 17-08, seeks to enact the "Patient Safety and Hospital Transparency Act." Initiative Petition 17-08 is essentially identical to Initiative Petition 17-07, but with one additional provision. General Laws c. 111, § 231K, would require that "[e]ach facility that accepts funds from the Commonwealth ... report annually to the [HPC] all financial assets owned by the facility, along with assets of any holding company and any and all parent, subsidiary, or affiliated companies." Under Initiative Petition 17-08, the HPC would be required to make this information public within seven **828 days of its receipt, unless doing so otherwise is prohibited by law. *769 In September, 2017, the Attorney General certified that Initiative Petition 17-07 is in proper form for submission to the people; that it is not substantially the same as any measure qualified for submission to the people at either of the two preceding biennial State elections; and that it contains only matters that are related or mutually dependent and not excluded from the initiative process under art. 48. By December 6, 2017, the petition's proponents had gathered and filed sufficient voter signatures to require the Secretary of the Commonwealth (Secretary) to transmit the petition to the Legislature. The Secretary did so in January, 2018. If the Legislature does not adopt the measure, and if the proponents submit sufficient additional signatures by July 3, 2018, the Secretary intends to include the proposed law in the Information for Voters guide that will be printed in the summer of 2018. See art. 48, The Initiative, V, § 1, of the Amendments to the Massachusetts Constitution, as amended by art. 81, § 2, of the Amendments.
In January, 2018, four registered voters commenced an action in the county court, challenging the Attorney General's decision to certify Initiative Petition 17-07. These plaintiffs, whom we will call the Oberlies plaintiffs, sought writs of mandamus and certiorari and a declaratory judgment, and asked the court to declare that Initiative Petition 17-07 is invalid, to quash the Attorney General's certification of the petition, and to enjoin the Secretary of the Commonwealth from placing the petition on the 2018 Statewide ballot. On the parties' joint motion and an agreed-upon statement of facts, the single justice reserved and reported the case to the full court.
At the same time that she certified Initiative Petition 17-07, the Attorney General declined to certify Initiative Petition 17-08, after having concluded that the financial disclosure requirement was not sufficiently related to or mutually dependent upon the patient assignment limits to satisfy the requirements of art. 48. Shortly thereafter, ten registered voters filed a complaint in the county court, seeking an order of mandamus reversing that decision. 7 We refer to these plaintiffs as the Williams plaintiffs.
The single justice allowed the parties' joint motion to enter a preliminary order that, without passing on the likelihood that the **829 Williams plaintiffs would succeed, required the Attorney General to release a summary of the petition to the Secretary of the Commonwealth. This order also directed the Secretary to prepare blank signature forms so that signatures could be gathered while the challenge to the Attorney General's decision was pending. In December, 2017, upon the joint request of the parties, the order was amended to require the Secretary to advance the petition to the Legislature, if the proponents collected sufficient signatures prior to December 6, 2017. Also that month, on the parties' joint motion and an agreed statement of facts, the single justice reserved and reported the case to the full court.
2.
Discussion
. When a new law is proposed by initiative petition, before it can be presented to the Legislature and then to the voters for their consideration, the Attorney General must review it and certify that it meets the requirements of art. 48. See art. 48, The Initiative, II, § 3, as amended by art. 74. We review the Attorney General's decision regarding
*770
whether to certify a ballot petition de novo, bearing in mind "the firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws."
Abdow
v.
Attorney Gen
.,
The primary question at issue with respect to both Initiative Petitions 17-07 and 17-08 is whether the subjects addressed in each petition are related or mutually dependent. See art. 48, The Initiative, II, § 3, as amended by art. 74. The opposition to Initiative Petition 17-07 also raises an additional question whether it is in a proper form for submission to the voters as required by art. 48. See
Nigro
v.
Attorney Gen
.,
a.
Whether subjects are related or mutually dependent
. Under art. 48, if a petition addresses multiple subjects, those subjects must be "related or ... mutually dependent." Art. 48, The Initiative, II, § 3, as amended by art. 74. See
Albano
v.
Attorney Gen
.,
Indeed, the drafters of art. 48 were concerned that initiatives could confuse voters, or could be used for "logrolling." See
Dunn
,
We accordingly have held that the related subjects requirement is satisfied where "one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane."
Massachusetts Teachers Ass'n
,
*771
"[W]e have posed two questions to be considered in addressing the related subjects requirement."
Dunn
,
The Oberlies plaintiffs challenge the Attorney General's determination that Initiative Petition 17-07 contains subjects that are related or mutually dependent. The Williams plaintiffs assert that the Attorney General erred in determining that Initiative Petition 17-08 fails this test. For the reasons discussed infra , we conclude that the Attorney General was correct in reaching both of these determinations.
i.
Initiative Petition 17-07
. The common purpose of the provisions in Initiative Petition 17-07 is to establish and enforce nurse-to-patient ratios in facilities in the Commonwealth.
8
This common purpose is not "so broad as to render the 'related subjects' limitation meaningless."
Massachusetts Teachers Ass'n
,
First, "the similarities of [the] initiative's provisions dominate what each segment provides separately so that the petition is sufficiently coherent to be voted on 'yes' or 'no' by the voters."
Abdow
,
Second, Initiative Petition 17-07 "express[es] an operational relatedness among its substantive parts that would permit a reasonable voter to affirm or reject the entire petition as a unified statement of public policy."
Abdow
,
In this sense, the situation at bar is similar to that in
Dunn
. In that case, we considered a petition seeking to prohibit confinement of specified farm animals in a cruel manner (farm provision), and also banned the sale, within the Commonwealth, of certain products produced from animals so confined (sales provision).
Dunn
, 474 Mass. at 676,
**833
Similarly, here, the workforce reduction restriction seeks to address facilities' potential responses to the nurse-patient staffing ratio requirement. Indeed, because the workforce reduction restriction regulates the same facilities as those affected by the patient assignment limits, the two requirements are more closely related than the farm provision and the sales provision we considered in
Dunn
,
supra
; the farm provision governed farms that produced certain goods, while the sales provision constrained businesses that purchased those goods.
Id
. at 676,
"The 'unified statement of public policy' called for by
Carney I
,
The argument that Initiative Petition 17-07 violates the related subjects requirement because it might impose a financial burden on facilities is unavailing. The Oberlies plaintiffs point to
Gray
,
The Oberlies plaintiffs also suggest that the workforce reduction restriction is simply an attempt to make Initiative Petition
**834
17-07 more politically palatable, by providing job security to health care workers. The proposed act, however, would prohibit only health care workforce reductions resulting from the implementation of nurse-patient assignment limits; it is not an outright ban on reducing staffing levels at covered facilities. Even if Initiative Petition 17-07 might be appealing to some hospital employees because they believed that they would stand to gain job security if it were enacted, the enjoyment, by some, of an "ancillary benefit" does not render the proposal's provisions unrelated. See
Dunn
,
The Oberlies plaintiffs also contend that voters will not understand the potential impact of the workforce reduction restriction. Based on their expansive reading of the definition of "health care workforce," the Oberlies plaintiffs maintain that Initiative Petition 17-07 "mandates the retention of virtually every employee or contractor who works for or at a hospital." 11 They argue that even the petition's proponents do not appreciate the possible sweeping consequences of the workforce reduction restriction. Additionally, the parties dispute whether a separate section in the petition limits the definition of the "health care workforce," thereby narrowing the scope of the workforce reduction restriction. This section requires that facilities'
*774 certification plans, which must be submitted to HPC, address "the facility obligation that implementation of limits shall not result in a reduction of the staffing level of the health care workforce assigned to such patients " (emphasis supplied). The parties disagree with respect to whether, pursuant to this language, only those employees who are assigned to individual patients would be considered part of the health care workforce.
**835
When determining whether an initiative meets the requirements of art. 48, we exercise "restraint in deciding whether a measure would or would not have the legal effect intended," and restrict such considerations to the extent necessary to determine whether a proposal satisfies the requirements of art. 48. See
Abdow
,
ii. Initiative Petition 17-08 . As stated, the text of Initiative Petition 17-08 is virtually identical to that of Initiative Petition 17-07, with the addition of one section. That section, the financial disclosure requirement, would require hospitals that accept funds from the Commonwealth to file annual reports of their financial assets with the HPC. The HPC, in turn, would be required to make this information public within seven calendar days of its receipt, unless doing so is otherwise prohibited by law.
In determining whether the financial disclosure requirement is sufficiently related to the remainder of Initiative Petition 17-08, we look for "a common purpose to which each subject of [the] initiative petition can reasonably be said to be germane."
Massachusetts Teachers Ass'n
,
These issues might be connected, in some sense, if hospitals' financial assets reflect their ability to pay the salaries of additional
**836
registered nurses. The patient assignment limits, however, are mandatory and inflexible, and are not tied to a hospital's financial condition; under the terms of Initiative Petition 17-08, an inability to pay is no defense for a failure to comply. Nor does the proposal provide a mechanism to increase funding to hospitals that would bear an economic hardship if forced to hire additional registered nurses. The financial disclosure requirement, therefore, has
*775
"only a marginal relationship" to the nurse-patient staffing ratios. See
Abdow
,
Initiative Petition 17-08 recalls
Opinion of the Justices
,
The subjects are unrelated because they concern "two separate public policy issues."
Gray
,
Additionally, "[t]he two subjects in this petition are clearly not 'mutually dependent.' In fact, the opposite seems true."
Gray
,
In sum, the nurse-patient staffing ratios and the financial disclosure requirement are neither mutually dependent nor related subjects. The Attorney General was correct in declining to certify that Initiative Petition 17-08 satisfies the demands of art. 48.
b.
Proper form requirement
. Only laws and constitutional amendments may be presented through the initiative process under art. 48. See art. 48, The Initiative, I ("the popular initiative" allows specified number of voters "to submit constitutional amendments and laws to the people"). "[A]n initiative petition that proposes neither a law nor a constitutional amendment is not 'in proper form for submission to the people.' "
Dunn
,
*777 The Oberlies plaintiffs first argue that the title of Initiative Petition 17-07-"Initiative Petition For A Law Relative To Patient Safety And Hospital Transparency"-is misleading, **839 because, unlike the rejected Initiative Petition 17-08, it contains no provision requiring hospitals to disclose their financial assets. In this view, the title's reference to "hospital transparency" is "incongruous." The Oberlies plaintiffs further contend that the title should include a reference to the workforce reduction restriction.
"Nowhere is it provided that the title of a proposed law shall be descriptive of it to any particular degree, or wholly accurate so far as it is descriptive."
Nigro
,
The Oberlies plaintiffs' remaining challenges to the form of Initiative Petition 17-07 are related to its contents. They contend that the terms "facilities" and "health care workforce," as used in the text, are internally inconsistent or open to multiple interpretations. They thereby ask us to conduct "an [impermissible] inquiry into substance." See
Nigro
,
In
Mazzone
,
**840
The Oberlies plaintiffs also challenge an exception included in Initiative Petition 17-07 that provides that "[t]he requirements of this act, and its enforcement, shall be suspended during a [S]tate or nationally declared public health emergency." They argue that voters will
*778
misread this section, and believe that the proposed act's requirements will be suspended under any situation that commonly might be described as an emergency, such as food poisoning at a popular restaurant or a multivehicle accident on the expressway, rather than only under the limited circumstances of a State or nationally declared public health emergency. The proposal's language, however, plainly states that its requirements would be suspended only during a State or nationally declared public health emergency. This claim does not assert any "errors of draftmanship," see
Nigro
,
Finally, the Oberlies plaintiffs argue that Initiative Petition 17-07 is fatally flawed because it does not adequately set forth how the workforce reduction restriction will be enforced, or the grounds for determining whether a violation has occurred. They assert that the proposal's failure to answer these questions will make the proposed act difficult to implement, and "deprive voters of the ability to make an informed electoral choice." The proposal, however, if approved, would empower the HPC to "promulgate regulations governing and ensuring the implementation and operation of th[e] act." A petition does not lack the proper form solely because, at this stage, the details of its administration are unclear. See
Mazzone
,
As a result, the Attorney General was correct in determining that Initiative Petition 17-07 is in a proper form for submission to **841 the voters, pursuant to art. 48.
3. Conclusion . We remand the matter to the county court for entry of a judgment declaring that the Attorney General's decisions to certify Initiative Petition 17-07, and declining to certify Initiative Petition 17-08, were in compliance with the requirements of art. 48.
So ordered .
We acknowledge the amicus briefs submitted by the Massachusetts Nurses Association, Steward Health Care System LLC, and National Nurses United and the California Nurses Association in Oberlies's case. We also acknowledge the amicus briefs submitted by the Massachusetts Health & Hospital Association, Massachusetts Council of Community Hospitals, Conference of Boston Teaching Hospitals, and Massachusetts Association of Behavioral Health Systems; Steward Health Care System LLC; and the American Nurses Association Massachusetts, Inc., in Williams's case.
The Health Policy Commission was created in 2012 to "monitor the reform of the health care delivery and payment system in the [C]ommonwealth." See St. 2012, c. 224, § 15; G. L. c. 6D, §§ 2, 5.
The original Williams plaintiffs moved, with the assent of the defendants, to substitute ten different registered voters as the Williams plaintiffs. The single justice allowed this motion.
The Oberlies plaintiffs contend that Initiative Petition 17-07's purpose is "patient safety," based on the title of the proposed act, references to patient safety in the petition's text, and a memorandum submitted by its proponents to the Attorney General. The court agrees with the Attorney General's characterization of the proposal's purpose, which is to achieve patient safety specifically through the "establishment of patient-to-nurse assignment limits in hospitals and other specified health care facilities." See
Opinion of the Justices
,
Initiative Petition 17-07 provides, "Each facility shall implement the patient assignment limits established by [G. L. c. 111, §] 231C [the nurse-patient limit provision of the proposed act]. However, implementation of these limits shall not result in a reduction in the staffing levels of the health care workforce."
Additionally, the Oberlies plaintiffs have not alleged that the electorate previously rejected an initiative proposing solely patient assignment limits, without any associated workforce reduction provision. Cf.
Carney
v.
Attorney Gen
.,
Initiative Petition 17-07 defines "health care workforce" to include those "personnel employed by or contracted to work at a facility that have an effect upon the delivery of quality care to patients, including but not limited to registered nurses, licensed practical nurses, unlicensed assistive personnel, service, maintenance, clerical, professional and technical workers, and all other health care workers."
The Williams plaintiffs alternatively assert that the common purpose of Initiative Petition 17-08 is "the safety of patients through adequate staffing and hospital transparency in disclosing their means and methods of staffing." By its terms, however, this "common purpose" purports to tackle "two separate public policy issues": adequate hospital staffing and hospital transparency. See
Gray
v.
Attorney Gen
.,
The Oberlies plaintiffs properly do not contend that Initiative Petition 17-07, if approved, would not constitute a law. We observe that, under Initiative Petition 17-07, "[e]ach facility
shall
implement the patient assignment limits," and "implementation of these limits
shall
not result in a reduction in the staffing levels of the health care workforce" (emphasis supplied). It is well established that use of the word "shall" indicates a mandatory duty. See
Galenski
v.
Erving
,
The Oberlies plaintiffs have not challenged the Attorney General's summary of Initiative Petition 17-07.
Reference
- Full Case Name
- Amanda S. OBERLIES & Others v. ATTORNEY GENERAL & Another. Donna Kelly Williams & Others v. Attorney General & Another.
- Cited By
- 2 cases
- Status
- Published