Anderson v. Attorney General
Anderson v. Attorney General
Opinion of the Court
*311**781The Attorney General certified as suitable for printing on the 2018 Statewide ballot an initiative petition that would ask voters in the Commonwealth to decide whether to amend the existing flat tax rate mandated by the Massachusetts Constitution in order to impose a graduated tax on residents with incomes in excess of $1 million. The language of Initiative Petition 15-17 also provides that, "subject to appropriation" by the Legislature, all revenues received from the proposed tax "shall" be earmarked for two budgetary purposes: education and transportation.
The plaintiffs, registered voters in the Commonwealth, seek to exclude the petition from the ballot on the ground, inter alia, that it does not meet the related subjects requirement of art. 48 of the Amendments to the Massachusetts Constitution. In addition, the plaintiffs contend that the petition would constitute a "specific appropriation of money from the treasury of the commonwealth," contrary to the explicit prohibition in art. 48, The Initiative, II, § 2, of the Amendments to the Massachusetts Constitution against **782such appropriations, and that the drafters of art. 48, at the Constitutional Convention of 1917-1918, did not intend that tax rates be set by initiative petitions.
We conclude that the initiative petition should not have been certified by the Attorney *312General as "in proper form for submission to the people," because, contrary to the certification, the petition does not contain only subjects "which are related or which are mutually dependent," pursuant to art. 48, The Initiative, II, § 3, of the Amendments to the Massachusetts Constitution, as amended by art. 74 of the Amendments.
1. Background. a. Article 44. To place the issue in context, a brief description of the mandatory flat tax rate in the Massachusetts Constitution is necessary. Article 44 of the Amendments to the Massachusetts Constitution, ratified in 1915, allows the Legislature to levy a State income tax on Massachusetts residents at a "uniform rate." See Drapkin v. Commissioner of Revenue,
"Full power and authority are hereby given and granted to the general court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the commonwealth **783upon incomes derived from the same class of property."
Pursuant to art. 44, the State income tax "must be calculated by applying a single, flat rate percentage to a particular class of income." Peterson v. Commissioner of Revenue,
Over the past fifty years, a number of initiative petitions seeking to amend art. 44, in order to permit a graduated income tax, have been certified and presented to the voters. In 1962, 1968, 1972, and 1976, proposals to amend the flat tax rate were placed on the ballot by the Legislature; in 1994, the ballot initiative seeking to amend the flat tax was the product of a voter-initiated petition. In all five of these measures, the graduated income tax, alone, was the sole subject of the ballot question. In 1994, for example, the ballot question stated:
"This proposed constitutional amendment would require Massachusetts income tax rates to be graduated, in order to distribute the burden of the tax fairly and equitably. The proposed amendment would require the rates for taxpayers in higher income brackets to be higher than the rates for taxpayers in lower income brackets. The proposed amendment would also allow the state Legislature to grant reasonable exemptions and abatements and establish the number and range of tax brackets. The proposed amendment would eliminate from the Massachusetts Constitution the present requirement that income taxes must be levied at a uniform rate throughout the state upon incomes derived from the same class of property."
*313Voters rejected this petition by a margin of sixty-five to twenty-eight per cent of votes cast. On the same ballot, voters also rejected, by a margin of sixty-five to twenty-seven per cent of votes cast, an initiative petition that a statute be enacted requiring graduated income tax rates.
b. Initiative Petition 15-17. By August 5, 2015, at least ten registered voters had filed with the Attorney General the initiative petition at issue here, entitled, "An Initiative Petition for An **784Amendment to the Constitution of the Commonwealth to Provide Resources for Education and Transportation through an additional tax on Incomes in excess of One Million Dollars." The petition would amend art. 44 by adding the following:
"To provide the resources for quality public education and affordable public colleges and universities, and for the repair and maintenance of roads, bridges and public transportation, all revenues received in accordance with this paragraph shall be expended, subject to appropriation, only for these purposes. In addition to the taxes on income otherwise authorized under this Article, there shall be an additional tax of 4 percent on that portion of annual taxable income in excess of $1,000,000 (one million dollars) reported on any return related to those taxes. To ensure that this additional tax continues to apply only to the commonwealth's highest income residents, this $1,000,000 (one million dollar) income level shall be adjusted annually to reflect any increases in the cost of living by the same method used for federal income tax brackets. This paragraph shall apply to all tax years beginning on or after January 1, 2019."
On September 2, 2015, the Attorney General certified to the Secretary that the petition "is in proper form for submission to the people; that the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission to the people at either of the two preceding biennial state elections; and that it contains only subjects that are related or are mutually dependent and which are not excluded from the initiative process pursuant to Article 48, the Initiative, Part II, Section 2."
After the Attorney General's certification, the proponents of the initiative petition gathered and submitted sufficient additional signatures to the Secretary so that the Secretary transmitted the measure to the Legislature. See art. 48, The Initiative, II, §§ 1, 3, 4, as amended by art. 74. On May 18, 2016, more than one-quarter of the members of both houses of the Legislature voted in favor of the proposed constitutional amendment, and it was referred to the next legislative session. See art. 48, The Initiative, IV, § 4. On June 14, 2017, more than one-quarter of the members of both houses again voted to approve the proposed amendment. This litigation followed.
On October 3, 2017, the plaintiffs filed a complaint in the county court seeking a declaration pursuant to G. L. c. 214, § 1, **785that the initiative petition does not comply with the requirements of art. 48; they also sought an order quashing the Attorney General's certification and an injunction preventing the Secretary from placing the initiative petition on the general election ballot to be put before the voters in November, 2018. Ten registered voters who support the petition were allowed to intervene in the case. The single justice then reserved and reported the matter for decision by the full court.
The plaintiffs contend that the Attorney General's certification of the petition was improper for three reasons. First, they argue that the petition combines "three very different subject matters: whether to *314impose a graduated income tax, and whether to give preferential treatment in state spending to two unrelated subject matters-education and transportation," contrary to the requirement of art. 48, The Initiative, II, § 3, as amended by art. 74, that an initiative petition address only related or mutually dependent subjects. Second, the plaintiffs maintain that the earmarking of the tax revenues that would be raised by the new tax would violate the prohibition of art. 48 against imposing "specific appropriation[s]" by initiative petitions. See art. 48, The Initiative, II, § 2. Third, the plaintiffs assert that an initiative petition may not be used to usurp the Legislature's authority to tax, and that a petition to modify the Massachusetts Constitution is on a different footing in this regard from a petition to create a statute.
2. Standard of review. A challenge to the Attorney General's decision to certify an initiative petition is reviewed de novo. See Abdow v. Attorney Gen.,
At the same time, however, we are obligated to safeguard the integrity of the initiative petition process by requiring that those **786seeking to change the law strictly comply with art. 48. "[T]he provisions of art. 48 are mandatory rather than directory.... [W]hen [the people] ... seek to enact laws by direct popular vote they must do so in strict compliance with those provisions and conditions" (citations omitted). Opinion of the Justices,
3. Discussion. The plaintiffs challenge the Attorney General's certification that Initiative Petition 15-17 contains only subjects "which are related or which are mutually dependent." Art. 48, The Initiative, II, § 3, as amended by art. 74.
a. Related subjects requirement. In deciding whether an initiative petition contains subjects "which are related or which are mutually dependent," we examine whether "the similarities of an 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[.] That is the crux of the relatedness controversy." Carney v. Attorney Gen.,
The language of art. 48 emerged from the Constitutional Convention of 1917-1918, "from which we may discern the conditions under which art. 48 came into existence, and how it appears then to have been received and understood by the convention, and ultimately, by the voters" (citation and quotations omitted). Carney I,
The convention adopted the related subjects requirement in response to two concerns raised by the delegates: the potential for voter confusion and "the dangers of 'log-rolling,' "
The relatedness requirement was imposed in its current form, mandating that initiative petitions contain only subjects that are "related" or "mutually dependent," after much debate among the delegates about how best to avoid "packaging proposed laws in a way that would confuse the voter," Carney I,
**788"To prevent initiative petitions from *316being exploited in this manner, the delegates considered potential limitations on their subject matter.... One delegate offered an amendment to require that '[n]o proposed law shall contain more than one subject,' which another delegate proposed modifying to state that a proposed law 'shall not contain unrelated subjects.' ... This modified amendment was adopted by the convention, and, after some reworking by the committee on form and phraseology, ultimately was approved as the provision in art. 48 ..., requiring the Attorney General to certify that a proposed measure 'contains only subjects ... which are related or which are mutually dependent.' " Dunn, 474 Mass. at 679-680,
We were first called upon to construe the "related subjects requirement" in 1941, in a petition involving education about birth control for married couples. See Opinion of the Justices,
Forty years later, we relied on that test in Massachusetts Teachers Ass'n v. Secretary of the Commonwealth,
**789defined as whether it violated "the art. 48 requirement that all subjects of an initiative be related or mutually dependent," the Justices again relied upon the test in Massachusetts Teachers Ass'n, supra, whether "one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane." Opinion of the Justices,
Ten years later, in Carney I,
In our subsequent decisions, we have continued to follow what has been known as the "related subjects" requirement or the "relatedness requirement." In Dunn,
Similarly, in Gray,
As mentioned, in Gray,
As these cases demonstrate, the language "or which are mutually dependent" in the relatedness requirement does not lessen the **791limitation that an initiative petition under art. 48, The Initiative, II, § 3, as amended by art. 74, must contain a single common purpose and express a unified public policy. Nor does it impose a separate requirement that may be satisfied even if the subjects of a petition are not related. The questions whether "the similarities of an 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," and whether two or more provisions in an initiative petition "express 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," are two sides of the same coin. See Carney I,
"A constitutional amendment should be 'interpreted in the light of the conditions under which it ... [was] framed, the ends which it was designed to accomplish, the benefits which it was expected to confer and the evils which it was hoped to remedy.' " Mazzone,
In its dictionary definition, "mutual" means "directed by each toward the other or others; reciprocal." Black's Law Dictionary 1178 (10th ed. 2014). In common usage, "mutual" is defined as "having the same relation each toward the other" and "of or pertaining to each of two or more; held in common; shared." Webster's New Universal Unabridged Dictionary 1270 (2003). A "dependent" is defined as "[s]omeone who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else," and "dependence" is defined as "[a] relationship between two ... things whereby one is sustained by the other or relies on the other for support or necessities." Black's Law Dictionary, supra at 531. In common usage, "dependent" also means "conditioned or determined by something else"; "contingent"; and "not used in isolation; used only in connection with other forms." Webster's New Universal Unabridged Dictionary, supra at 534.
While the word "or" is often used as a disjunctive, it also has a number of other meanings. The word "or" may be "used to **792correct or rephrase what was *319previously said." Webster's New Universal Unabridged Dictionary, supra at 1360. It is fundamental to statutory construction that the word "or" is disjunctive "unless the context and the main purpose of all the words demand otherwise."
In other words, while operationally related subjects need not be mutually dependent, "we need not pause to consider whether any subjects which are mutually dependent could ever be said not also to be related."
**793Massachusetts Teachers Ass'n,
To construe the phrase "or which are mutually dependent" as eliminating the requirement of relatedness would be to vitiate the purpose of protecting the voters from misuse of the petitioning process for which it was enacted. "An amendment to the Constitution is one of the most solemn and important of instruments.... Its words should be interpreted in 'a sense most obvious to the common understanding at the time of its adoption,' because it is proposed for public adoption and must be understood by all entitled to vote." Carney I, 447 Mass. at 224,
b. Application. With this guidance in mind, we turn to the petition at issue. Initiative Petition 15-17 contains three provisions on three distinct subjects presented as a single ballot question. First, the petition would amend the flat tax rate mandated by art. 44 to impose a graduated income tax on certain high-income taxpayers. Second, the petition would prioritize spending for public education by earmarking revenues raised by the new tax for "quality public education and affordable public colleges and universities." Third, the petition would prioritize spending for transportation by earmarking revenues raised by the new tax for "the repair and maintenance of roads, bridges and public transportation."
The parties understandably do not raise any arguments specifically concerning whether the provisions of the petition are mutually dependent. It is immediately apparent, however, that the three provisions are not mutually dependent. As discussed, petitions seeking to impose a graduated tax rate or a tax on specific high-income earners previously have been presented to the voters of the Commonwealth as stand-alone initiatives. It is also evident that funds for "quality public education" and "affordable public colleges and universities" could be raised and provided to educational *321institutions separately from any expenditures on transportation, and that raising funds for "repair and maintenance of roads, bridges and public transportation" could proceed without any expenditures on education, at any grade level. Indeed, the dissent states as much when it notes that a differently worded petition, directing one-half of the funds raised to transportation and the other one-half to education, would remove from the Legislature "the latitude accorded it by the original proposed law to spend on the two identified areas as it saw fit, and instead would be limited to spending the funds raised specifically for each area regardless of the particular needs in each area."Post at 333. Because the provisions here can "exist independently," they are not "mutually dependent," just as in Gray, 474 Mass. at 648,
Although she certified the subjects as sufficiently related, the Attorney General has not articulated a common purpose between these spending priorities, beyond the abstract determination that both purposes are "broad areas of public concern." The interveners, for their part, assert that prioritizing spending for education and transportation will "strengthen[ ] the Massachusetts economy and set[ ] a foundation for inclusive growth." Some of the amici characterize the petition as intended "for economic advancement and social mobility" of specific groups within the Commonwealth. The difficulty the proponents have in stating the purported purpose of the initiative petition is itself telling.
As a general matter, we agree with the Attorney General's **796observation *322that the subjects of education and transportation are areas of broad public concern, and efforts to improve them may be characterized as socially beneficial and for the common good. We also agree that education and transportation are among the many keys to "inclusive growth." Nonetheless, as we emphasized in Gray, 474 Mass. at 648,
There is "no single 'bright-line' test for determining whether an initiative meets the related subjects requirement." See, e.g., Dunn,
In Gray,
Similarly, in Carney I, 447 Mass. at 224, 232,
By contrast, in Dunn,
Examination of the diverse subjects of Initiative Petition 15-17, by contrast, discloses no "operational relatedness among its substantive parts" (citation omitted), Dunn,
The Attorney General maintains that "[t]he reasonably cognizant voter, simply by reading the text of the petition, is on alert that, if she objects to how this new revenue will be raised or spent, she should vote 'no' on the measure." This view would leave a voter who favored a graduated income tax but disfavored earmarking any funds for a specific purpose, for example, in the untenable position of choosing which issue to support and which must be disregarded. A voter who favored designating specific State funds for schools and transportation (subject to legislative appropriation), but not a graduated income tax, would be confronted with the same conundrum. A voter who commuted to work on an unreliable subway line, but who did not have school-aged children and was unconcerned about public education, might want to prioritize spending for public transportation, without devoting additional resources to public education, but would be unable to vote for that single purpose. A parent of young children, who lived in a rural part of the Commonwealth and did not own a motor vehicle, would be unable to vote in favor of prioritizing funding for early childhood education without supporting spending for transportation.
In essence, the dissent raises three issues. The dissent argues that: (1) a taxing proposition and a funding proposition cannot be separated and are always mutually dependent; (2) if the subjects of a petition are mutually dependent, there is no concern about the possibility of misleading or confusing the voters, and thus no need for consideration whether the petition expresses a single common purpose; and (3) the decision in this case that the provisions are neither related nor mutually dependent deprives the voters of their right to express an opinion on the petition.
The gravamen of the dissent's argument is that any collection of provisions that would tax any number of different sources, and would provide funds to some indeterminate list of distinct entities and purposes, should be placed before the voters, because the list of provisions would be "mutually dependent," and therefore inseparable; in this view, removing any one of the taxing sources or funding priorities would fundamentally alter the proposed law. The problem with this is that, at the time of the 1917-1918 Constitutional Convention, this court had established that a taxing provision establishing a source of funds, and a spending provision, could be separated. See Edwards,
In addition, in this view, there is no requirement of a common purpose or a coherent statement of public policy that the voters can accept or reject as a whole. Because the provisions are inseparable, the dissent would have it, there is no concern about logrolling, or that the voters would be confused, misled, or placed in the untenable position of having to choose between two or more dissimilar subjects in casting a single vote. Thus, petitions that contain only "mutually dependent" provisions, as crafted by the proponents of the petitions, would be insulated from the protections that art. 48 was intended to provide. In particular, any petition containing provisions for both taxing and spending would be shielded from review by the Attorney General and, thereafter, the courts, to determine whether the proposed law presented a single statement of public policy, suitable to be placed before the voters. Taken to its logical conclusion, merely by adding to each provision a statement that the provision is intended **801to be part of a particular package, and cannot stand on its own, petitioners would be able to guarantee that none of their petitions were subject to any sort of meaningful review. This would leave the question of relatedness, which was so intensely debated by the delegates to the 1917-1918 Constitutional Convention, on the cutting room floor.
Lastly, the dissent argues that construing the requirement of related or mutually dependent subjects as required under art. 48, The Initiative, II, § 3, as amended by art. 74, and, therefore, concluding that the petition is not suitable to be placed on the ballot, deprives the voters of the Commonwealth of the right to "express their opinion on a one-section, four-sentence petition." Post at 328. To the contrary, however, a decision to place before the voters three distinct policy provisions, yet permit them only to accept, or reject, all three as a package, would deprive the voters of the Commonwealth of their right "to exercise a meaningful choice when voting to accept or reject a proposed law." Carney I, 447 Mass. at 220,
*326Moreover, while the dissent asserts that the petitioners have an absolute "right" to place before the voters "this petition," in contrast to some other law that would be proposed if any of the provisions were not included, there is no such right. Article 48 was designed precisely to prevent any conceivable collection of provisions from being presented to the voters. See Carney I, 447 Mass. at 220-222,
"Neither the Attorney General nor this court is required to check common sense at the door when assessing the question of relatedness. The relatedness limitation of art. 48 must not be permitted to drift from its intent to secure to voters the right to enact a uniform statement of public policy through exercising a meaningful choice in the initiative process." Carney I, 447 Mass. at 232,
Conclusion. The matter is remanded to the county court, where a judgment shall enter declaring that the Attorney General's certification of Initiative Petition 15-17 is not in compliance with the related subjects requirement of art. 48 and the petition is not suitable to be placed on the ballot in the 2018 Statewide election.
So ordered.
See Bates v. Director of the Office of Campaign & Political Fin.,
We acknowledge the amicus briefs of the New England Legal Foundation; the Pioneer Institute, Inc., and the Tax Foundation; and the Chamber of Commerce of the United States of America, in support of the plaintiffs. We acknowledge the amicus brief of the mayors of Somerville, Lawrence, Lynn, Medford, New Bedford, and Northampton; the amicus brief of the Ballot Initiative Strategy Center; the amicus brief of the Alliance for Business Leadership; and the amicus brief of the Center on Budget and Policy Priorities and the Institute on Taxation and Economic Policy, in support of the defendants. We also acknowledge the amicus brief of Adela Gonzalez; Zuleyka Hernandez; Ayomide Olumuyiwa, Greenroots, Inc.; and Alternatives for Community & Environment, Inc.
"Logrolling" is the "practice of including several propositions in one measure or proposed constitutional amendment so that the ... voters will pass all of them, even though these propositions might not have passed if they had been submitted separately." Dunn v. Attorney Gen.,
As an example of impermissible log-rolling, the delegates to the convention debated a provision placed before voters in Oregon through an initiative process:
"But, sir, you now invite the self-seekers who cannot get their legislation through the General Court to turn to the people whom they may wheedle or deceive into granting the privileges that our representatives never would permit. I have time to refer but incidentally to the measures that become law through the blind wording of titles or to catchy provisions, as illustrated by a case in Oregon, where, in order to secure the passage of the single tax, there was hitched to the front of it, like a locomotive to the front of a freight train, a proposal that there should be no more poll or head taxes. The important part of them had been abolished for years, but nevertheless that proposal hauled the heavy freight through and put into the Constitution of Oregon the single-tax proposition that the people had previously rejected."
Carney I, 447 Mass. at 227 n.20,
In Gaynor's Case,
"It is argued that 'or' in the clause quoted from [St. 1911, c. 751,] Part V, § 2, should be construed to mean 'to wit,' or identity with or explanation of that which goes before. Sometimes it is necessary to attribute this signification to the word in order to effectuate the plain legislative purpose. Commonwealth v. Grey, [2 Gray 501 ,68 Mass. 501 (1854) ]. Brown v. Commonwealth,8 Mass. 59 [ (1811) ]. It often is construed as 'and' in order to accomplish the intent manifested by the entire act or instrument in which it occurs.... It is not synonymous with 'and' and is to be treated as interchangeable with it only when the obvious sense requires it, or when otherwise the meaning is dubious. But the word 'or' in its ordinary use and also in accurate meaning is a disjunctive particle. It marks an alternative and not a conjunctive. It indicates one or the other of two or several persons, things or situations and not a combination of them.... It is construed as having a different meaning only when the context and the main purpose to be accomplished by all the words used seems to demand it."
Even if we were to accept the argument that the proposed spending provisions are dependent upon a particular funding mechanism-the proposed tax-that would not change the evident fact that the proposed tax can stand on its own, and neither spending provision depends upon the other. Moreover, that the two funding provisions rely on a particular source of funds does not make the provisions "mutually dependent." At the time of the Constitutional Debates of 1917-1918, it was well established that the source of funds for a desired public expenditure could be severed from the purpose of the expenditure, and that the two were not mutually dependent. See Edwards v. Bruorton,
By the same token, in Mazzone v. Attorney General,
Given the result we reach, we need not address the plaintiffs' argument that the petition violates the provision in art. 48, The Initiative, II, § 2, that "[n]o measure ... that makes a specific appropriation of money from the treasury of the commonwealth ... shall be proposed by an initiative petition." See Associated Indus. of Mass. v. Secretary of the Commonwealth,
We are not entirely unaware of the possibility that, as the plaintiffs argue, these "broad areas of public concern" were added to the initiative petition as a means to "sweeten the pot" for voters. In discussing the differences between the prior, unsuccessful, petitions for constitutional amendments to the flat tax rate that were presented as single-issue petitions and this petition, then Senate President Stanley Rosenberg remarked, "In the past, constitutional amendments have been very differently constructed. This one because it is focused specifically on money for education and transportation will stand a better chance of being approved. And, also because it is very clear that it (affects) people who make more than $1 million in taxable income." See Tuthill, Backers of Proposed Tax Hike on Massachusetts Millionaires File Signatures, WAMC Northeast Public Radio (Dec. 2, 2015), http://wamc.org/post /backers-proposed-tax-hike-massachusetts-millionaires-file-signatures [https://perma.cc/6UR3-NHP6]. Thus, the focus of legislators, like Rosenberg, was specifically on proposals to appropriate funds for education and transportation, because those proposals would stand a better chance of being approved by voters who would be forced to disregard the elimination of the flat tax in order to approve publicly beneficial funding initiatives. This, of course, is precisely what art. 48, The Initiative, II, § 3, as amended by art. 74, seeks to prevent.
Concurring Opinion
I concur with the result and with much of the court's reasoning as to whether Initiative Petition 15-17 contains related subjects. I write separately because I agree with the dissent's view that the mandate in art. 48 of the Amendments to the Massachusetts Constitution requiring that a petition contain "only subjects ... which are related or which are mutually dependent" is disjunctive in nature; it sets out two alternatives and calls for two different analyses. I agree, further, with the dissent that the court should consider the phrase "mutually dependent" as it would have been understood at the time of the 1917-1918 Constitutional Convention, as discussed in the court's then extant jurisprudence concerning the severability of statutory provisions. Although this case presents squarely the question whether unrelated subjects may be mutually dependent-they can be, if rarely-I disagree with the dissent that Initiative Petition 15-17 contains subjects which are in fact mutually dependent.
In the years leading up to the Constitutional Convention, to decide whether statutory provisions were severable, this court would consider whether they were "mutually dependent and must stand or fall together."
*327See Nolan's Case,
**803the provisions were not considered mutually dependent and, accordingly, were deemed severable. See Commonwealth v. Petranich,
Although severability analysis concerns statutory provisions, art. 48, The Initiative, II, § 3, of the Amendments to the Massachusetts Constitution, as amended by art. 74 of the Amendments, speaks of "subjects ... which are mutually dependent." To determine whether Initiative Petition 15-17 satisfies this constitutional requirement, we must ask whether the subjects of Initiative Petition 15-17 can "stand independently" and, if not, whether they must instead "stand or fall together." See Petranich,
If Initiative Petition 15-17 is viewed as containing two subjects-a tax on millionaires and how to spend it-as framed, the two are not severable and are mutually dependent. This is so because, although the tax could "stand independently," see Petranich,
There is no requirement, however, that our analysis be controlled by the structure of the petition imposed by its proponents. As discussed, art. 48, The Initiative, II, § 3, as amended by art. 74, **804speaks of subjects, rather than provisions; a provision may be drafted to concern multiple subjects. In this regard, Initiative Petition 15-17 contains three subjects, insofar as the spending matter consists of two: education and transportation. These two subjects have no apparent interaction, and are "distinct and in their nature separable the one from the other." Ashley v. Three Justices of the Superior Court,
Given that the three subjects in Initiative Petition 15-17 are neither related nor mutually dependent, I am constrained to agree with the court that the petition may not be put before the people.
BUDD, J. (dissenting, with whom Gants, C.J., joins).
Disregarding the plain text of art. 48, The Initiative, II, § 3, of the Amendments to the Massachusetts Constitution, as amended by art. 74 of the Amendments, which requires that an initiative petition contain "only subjects ... which are related or which are mutually dependent," the court concludes that, in drafting this language the delegates to the Constitutional Convention of 1917-1918 inserted the words "or which are mutually dependent" as superfluous text. Ante at ----, ----. The court goes on to conclude that the people may not express their opinion on a one-section, four-sentence petition because it contains subjects that are not related. Ante at 325. That analysis is flawed.
The constitutional text is the written expression of the Constitutional Convention's intent to ensure that ballot questions containing multiple severable distinct, independent, and unrelated subjects cannot be asked of voters together in one ballot question, **805but instead must be severed and asked of voters independently.
For these reasons I dissent.
1. The meaning of "mutually dependent" in art. 48. We have recently held that a petition is not mutually dependent if its provisions can "exist independently." Gray v. Attorney Gen.,
"A constitutional amendment['s] ... 'words are to be given their natural and obvious sense according to common and approved usage at the time of its adoption.' " Mazzone v. Attorney Gen.,
The concept of mutual dependence as applied to legislation has its roots in the doctrine of severability. Whenever a court determines that a portion of a statute is unconstitutional, it must consider whether that portion is severable from the rest and determine whether the remainder of the statute may be left intact. Prior to 1854, many courts simply severed unconstitutional provisions from statutes, assuming that "full effect will be given to such as are not repugnant to the [C]onstitution." Bank of Hamilton v. Lessee of Dudley,
However, Warren v. Mayor & Aldermen of Charlestown,
**807"must be taken with this limitation, that the [statute's] parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other. [For] if they are so mutually connected with and dependent on each other, as conditions, considerations or compensations *330for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them" (emphasis added).
Warren,
After 1854, the court sometimes simplified the language originally used in Warren to refer to portions of statutes that were not distinct and independent. Over time, the phrase originally expressed as "mutually dependent and connected" was sometimes expressed as "mutually dependent." See Ashley,
Thus, based on Warren and its progeny, "mutually dependent" subjects are those that, if separated from one another, would no longer convey the meaning or purpose of the proposition.
For example, in Gray,
"An initiative petition properly may contain only subjects 'which are related or which are mutually dependent.' Art. 48, The Initiative, II, § 3[, as amended by art. 74]. The two subjects in this petition are clearly not 'mutually dependent.'
**809In fact, the opposite seems true. That is, whether the diagnostic assessment tests are based on the common core standards or some previous set of academic standards-the focus of sections 1 through 3 of the petition-will not affect in any way the commissioner's obligation under section 4 to release before the start of every school year all of the previous year's test items in order to inform educators about the testing process; the commissioner's obligation will exist independently of the specific curriculum content on which the tests are based."
The "exist independently" test is the same as the mutual dependence requirement from Warren and its progeny. See, e.g., Ashley,
In Carney v. Attorney Gen.,
The court's conclusion that relatedness and mutual dependence are one and the same appears to stem partially from a misinterpretation of cases in which mutual dependence is not at issue.
The court did not evaluate the "mutually dependent" requirement in these cases; thus, the court should not look to these cases for an analysis of mutual dependence, nor should it assume that the two prongs mean the same thing. In Gray, supra at 644,
The same is true in Carney, where the court considered the "relatedness limitation" in art. 48 because the provisions of the petition were not mutually dependent. See Carney,
3. This petition "contains only subjects ... which are mutually dependent." The subjects in this one-section, four-sentence petition are mutually dependent because the subjects cannot be severed without changing the meaning of the petition. Cf. Warren,
Attempting such a separation proves the point. It is possible to ask voters: "Should the people adopt a tax on incomes exceeding one million dollars?" But the remaining portions of the petition, regarding how the money should be spent, cannot stand on their own. See Gray,
**811If the remaining partial proposition were to be refashioned so as to ask questions that would propose a "constitutional amendment" or "law," they would necessarily be different from the question presented by the petitioners. For example, questions regarding whether voters would like an additional amount of existing revenue (without a new source of revenue) to go toward education or to transportation, or both, would be entirely different from the one presented by the petitioners.
Similarly, separating the question so as to ask about two separate taxes, one to fund education and one to fund transportation, *333also would fundamentally alter the question contained in the original petition. For example, rather than one four per cent tax to fund both education and transportation, the proposal could be severed to ask voters (1) whether to impose a two per cent tax on incomes over $1 million to fund education spending; and (2) whether to impose a separate two per cent tax on incomes over $1 million in order to fund transportation spending. Assuming both passed, the Legislature would not have the latitude accorded it by the original proposed law to spend on the two identified areas as it saw fit, and instead would be limited to spending the funds raised specifically for each area regardless of the particular needs in each area.
Thus, there is no way to separate the question into subjects and still have the same question-the petition does not have the same meaning if its subjects are separated. See Petranich,
The court relies on Edwards v. Bruorton,
Unlike the provisions in the ballot question at issue in this case, a State's grant of powers to a municipality to take land, to float bonds, and to make special assessments on certain properties could plainly exist independently of one another. See Loeb v. Columbia Township Trustees,
Based on the language of the petition, rather than seeking to impose **813a tax combined with the broad authority to spend the associated revenue on all areas of State government, the ballot initiative grants the Legislature with power to assess a particular tax and limits the areas where the revenue from that tax can be spent. The petitioners want to ask the electorate whether this question should be law, and the electorate has the right under art. 48 to consider whether this question should be law-not a different question.
4. The court's conflation of relatedness and mutual dependence in art. 48. Disregarding the second half of art. 48's requirement that a petition contain "only subjects ... which are related or which are mutually dependent," the court concludes that the subjects of the petition are unrelated, and thus holds that the ballot question cannot be put before voters.
In explaining its view that "or which are mutually dependent" is surplusage,
In redrafting the text, the committee on form and phraseology worked closely with those who had been active in the earlier debates, including the sponsor of the initiative and referendum, Joseph Walker, as well as Robert Luce and Josiah Quincy. Id. The Committee also worked closely with the advisor to the Convention, Lawrence B. Evans. Id. Evans explained that the role of that committee was to reduce "the amount of litigation which is due entirely to the careless drafting of constitutions or statutes." Evans, The Massachusetts Constitutional Convention,
Our cases have explained that the requirement that a petition "contains only subjects ... which are related or which are mutually dependent" was put in place in order to limit the dangers of logrolling. See Dunn,
a. Relatedness in art. 48 jurisprudence. For example, in **816Carney,
Similarly in Gray,
Finally, in Opinion of the Justices,
Many of these propositions could have been severed from the others and asked of voters independently without changing their meanings, thus they were not mutually dependent. See
Thus, although our case law has properly focused on relatedness, the tests articulated to determine whether the subjects of a petition are related need not be applied to this petition, which is not severable.
*338See art. 48, The Initiative, II, § 3, as amended by art. 74.
**818b. The fairness inquiry. The fairness inquiry the court undertakes when it asks if it is fair to voters to be asked this question is part of the relatedness analysis. See Gray,
Drafters of proposed laws (and constitutional amendments) designed to achieve goals (such as increasing spending on public investments) must choose a means by which to do so. Here the drafters chose a tax on incomes over $1 million. They could have chosen any number of other ways to reach this goal: alternative means to achieve a desired end in any proposed law are always available. If voters do not like the proposed means to achieve a particular end within a ballot question (or do not agree with the particular end proposed), they are, as always, free to vote against the question.
**819Here, if opponents of the petition wish to achieve increased spending on education and transportation but dislike the proposed means, or wish to provide the Legislature with discretion to invest the revenue on more or fewer areas of public investment than education and transportation, they are free to express their opinion that voters should reject the question, just like in any other ballot question proposal. We should not stifle the policy debate by preventing the people from considering the petition altogether.
The court also suggests that the petition violates the spirit of logrolling because ballot questions seeking to amend art. 44's prohibition on a graduated income tax were defeated numerous times in the past (most recently in 1994).
Although the requirement in art. 48, The Initiative, II, § 3, as amended by art. 74, that initiative petitions only contain "subjects ... which are related or which are mutually dependent" prohibits petitioners from tacking on an unrelated, distinct, independent and separate proposal for a law or constitutional amendment to their original proposal as part of one petition, art. 48 in no way prohibits petitioners from attempting to modify or limit a proposal with conditions until they are successful. In other words, if a majority of voters did not like a certain proposition because of its breadth, but a majority of voters would support the proposition if it were more limited, the more limited proposal may of course be asked.
For example, a hypothetical gun safety advocacy group that advanced a previously rejected petition to outlaw automatic weapons could not return with a different petition that both outlawed automatic weapons and legalized recreational marijuana because **820the two subjects are severable and unrelated. That same group, however, could advance a new petition to regulate (rather than prohibit) automatic weapons.
The court contends that this reading of mutual dependence would permit "any collection of provisions that would tax any number of different sources, and would provide funds to some indeterminate list of distinct entities and purposes, should be placed before voters, because the list of provisions would be 'mutually dependent.' " Ante at 325. This is a misunderstanding of mutual dependence. To the extent that a petition contained numerous distinct taxes, they would not necessarily be mutually dependent. Also, to the extent that a petition removed the Legislature's spending discretion, the provisions of this question would not likely be mutually dependent, but severable. Furthermore, the delegates to the 1917-1918 Constitutional Convention expressly considered and rejected the contention that the initiative petition process could be used to "provide funds to some indeterminate list of distinct entities," id., by including "specific appropriation[s]" on the list of matters excluded from the initiative process. Art. 48, The Initiative, II, § 2.
Article 48 permits the people to adopt laws through the initiative process that are properly narrowed to the popular will. To prohibit advocates from asking more limited propositions than others previously rejected by the people ignores the purpose of art. 48 and interferes directly with the democratic process.
6. Article 30 and the people's legislative power under art. 48. Finally, by ratifying art. 48, the people extended the legislative power from the General Court to the people. See art. 48, The Initiative, II; Bowe v. Secretary of the Commonwealth,
By reversing the Attorney General's decision to certify the instant petition, the court fundamentally interferes with the ability of the people to exercise the constitutionally granted legislative power under art. 48. Because the proposed question is not severable, the effect of the court's holding is to turn art. 48's mode and form requirements into absolute disqualifiers; that is, rather than having the option of putting the question into what the court considers proper form, the question cannot be asked at all. See Horton,
7. Conclusion. "[W]hether [the substance of this petition] is wise as a matter of economic and social policy is, of course, not subject to judicial review." Town Taxi Inc. v. Police Comm'r of Boston,
I see nothing in art. 48, The Initiative, II, § 3, as amended by art. 74, that prohibits the power of the people to accept or reject this ballot question in November; therefore, I dissent.
The dissent cites Warren v. Mayor & Alderman of Charlestown,
Without the "subjects ... which are related or which are mutually dependent" requirement, nothing would prohibit a group of petitioners from placing before the electorate the type of omnibus legislation that is commonly considered by the Legislature. As an example, on April 13, 2018, the Governor signed into law an omnibus criminal justice reform package sent to him by the Legislature. The law consists of 239 different sections. See St. 2018, c. 69. Among its numerous provisions, it repeals various mandatory minimum sentence requirements for certain crimes, including those relating to some retail drug offenses and drug paraphernalia.
Excluded matters under art. 48 include measures that "relate[ ] to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth" and matters relating to art. 18 of the Amendments to the Massachusetts Constitution, art. 48 itself, provisions in the Constitution specifically excluding matters from popular initiative and referendum, and certain rights in the Massachusetts Declaration of Rights. Art. 48, The Initiative, II, § 2.
The court cites to Warren v. Mayor & Alderman of Charlestown,
The regular use of the term "mutually dependent" by courts to describe severability of statutes at the time of the 1917-1918 Constitutional Convention alone is sufficient to connect the term as used in art. 48 with the debates among the delegates regarding the danger of combining of numerous unrelated, distinct, and independent proposals into a single ballot question for an up or down vote. However, it is interesting to note that this court applied the "mutually dependent" test to determine if provisions of a statute were severable in an opinion that was released during the Constitutional Convention. See Ashley v. Three Justices of the Superior Court,
The court's conflation of relatedness and mutual dependence is discussed further, in part 4, infra.
To the extent that the reasoning in Edwards v. Bruorton,
The Edwards court acknowledged that its decision in the case regarding mutual dependence was "not free from difficulty," Edwards,
The court asserts that this test in art. 48 does not "impose a separate requirement that may be satisfied even if the subjects of a petition are not related." Ante at ----. Nonetheless, the court asserts that the provisions of the petition are not mutually dependent. Ante at 318.
This view ignores a basic tenet of statutory interpretation that every word is to be given effect and none should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence. Scalia & Garner, supra at 174.
" 'Logrolling' ... is defined as '[t]he legislative practice of including several propositions in one measure or proposed constitutional amendment so that the legislature or voters will pass all of them, even though these propositions might not have passed if they had been submitted separately' " (emphasis added). Carney v. Attorney Gen.,
"Logrolling" has also been defined as "the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately" (emphasis added). Ruud, No Law Shall Embrace More Than One Subject,
See, e.g., Constitutional Debates, supra at 537 (remarks of Francis N. Balch) (suggesting that there be special body to review ballot questions for seven different requirements as to proper form, including one stating that "[t]he measure touches only one subject-matter, or on subject-matters so related as not fairly to require separation" [emphasis added] ). Furthermore, it is consistent with the examples given by delegates concerned about logrolling such as the Oregon example provided by Robert Luce. Id. at 567 (discussing "a case in Oregon, where, in order to secure the passage of the single tax, there was hitched to the front of it, like a locomotive to the front of a freight train, a proposal that there should be no more poll or head taxes").
I take no position whether the subjects of the petition are related, except to note that subjects can be both related and mutually dependent. See Massachusetts Teachers Ass'n v. Secretary of the Commonwealth,
This view ignores the canon of statutory interpretation providing that a "determination of statutory meaning [cannot] be overridden by a judicially perceived, at-large 'spirit' of the law that overcomes its letter." Scalia & Garner, supra at 343.
The court's opinion appears to allow a ballot question permitting a graduated income tax to be asked of voters alone such that any associated revenue would be available for legislators to spend on all areas of government spending. But by the court's logic, a question that called for the same tax but enumerated each area of government spending in the text would violate art. 48 because it would contain "unrelated subjects" despite the fact that it would be fundamentally the same question with the same outcome.
In fact, the Constitutional Convention's decision to move the requirement that a petition contain "only subjects ... which are related or which are mutually dependent" to the "Mode of Originating" section, art. 48, The Initiative, II, § 3, as amended by art. 74, and away from the "Excluded Matters" section reflects the conscious intent that the provision was not designed to prohibit certain proposed laws from being asked of voters. Constitutional Debates, supra at 960; Convention Doc. No. 370, at 2-3.
Although the delegates at the 1917-1918 Constitutional Convention expressly rejected a single subject rule, instead opting for a rule requiring there to be "related" or "mutually dependent" subjects, the court's opinion is written as if our Constitution does in fact provide a single subject rule. See Massachusetts Teachers Ass'n,
It is well worth noting that at the time of the debates over art. 48, many proponents of the initiative and referendum favored it because it would let voters vote on the exact type of question being posed by the ballot question in this case, and opponents opposed it for that same reason. However, the opponents lost. Albert E. Pillsbury was one of the most hard-line opponents of the initiative and referendum provisions. Pillsbury viewed the debate as "between the believers in constitutional representative government on the one hand and socialistic democracy on the other." Constitutional Debates, supra at 604. He believed that "[t]he ultimate effect if not the object of the initiative and referendum, say what you will, is to enable a majority at the polls to appropriate the property of those who have it to the use of those who want it. With this weapon in their hands they can do ... anything." Id. at 613.
On the other side of the issue was Grenville S. MacFarland, an editorial writer for the Boston American, who was once referred to as "the most influential force for the [initiative and referendum provisions]." R.L. Bridgman, The Massachusetts Constitutional Convention of 1917, at 42 (1923). MacFarland sent a personal letter to all candidates for the Legislature expressing concerns about economic inequality in the industrial era:
"In my judgment, and I hope in yours, that convention will be a failure if it does not enable us to obtain the initiative and referendum by which the direct power of the whole body of citizens may supplement the present form of representative government and keep it free from those vices which the unequal distribution of wealth and the resulting concentration of financial and political power, through the rise of powerful public service and industrial corporations, have introduced into our body politic and are now threatening our representative form of government."
Id. at 42-43.
Reference
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