Bogertman v. Attorney General
53 N.E.3d 627
Mass.2016Background
- Proponent Eugene McCain filed initiative petition 15-34 to amend G. L. c. 23K to (1) permit the Gaming Commission to award one additional category 2 (slots parlor) license subject to narrow siting criteria (≥4 acres; adjacent to and within 1,500 feet of a horse racetrack; not separated by a highway/railway), and (2) remove the timing requirement that category 2 applications be requested before category 1 applications.
- The Attorney General certified the petition as proper for submission under Article 48, finding it not locally restricted and not substantially the same as measures in the two prior biennial elections.
- Plaintiffs (Suffolk County voters) challenged certification, arguing the petition: (a) is an excluded "local matter" because the siting criteria effectively target Suffolk Downs (spanning Boston and Revere), and (b) is "substantially the same" as 2014 Ballot Question 3 (which would have prohibited casinos, slots, and certain parimutuel wagering).
- The single justice reserved and reported the case to the Supreme Judicial Court for de novo review of the Attorney General’s certification.
- The SJC evaluated Article 48’s local-matters exclusion and the prohibition on measures "substantially the same" as recently submitted initiatives, applying precedents and principles favoring voters’ access to the initiative process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition is an excluded "local matter" under Art. 48 | Petition is tailor-made to benefit McCain's property and effectively limits the license to Suffolk Downs (local) | Gaming and licensing are matters of statewide concern; petition’s text does not reference any particular municipality and could apply to multiple sites | Held: Not a local matter; on its face statewide and not geographically descriptive; possibility that only one existing site fits is insufficient to exclude it |
| Whether Attorney General failed to take adequate official notice in certifying petition | Attorney General should have investigated which race tracks meet criteria and whether only one eligible site exists | AG need only consider matters implicit in petition and those proper for official notice; exhaustive factual inquiries are not required | Held: AG’s factual inquiry sufficient; not required to adjudicate disputed facts not proper for judicial notice |
| Whether petition is "substantially the same" as 2014 Ballot Question 3 | Petition impermissibly overlaps with Question 3 because both concern slots parlors/gaming | Petition is an incremental licensing change, not a prohibition; scope and statutory amendments differ materially | Held: Not substantially the same; Question 3 sought a broad ban and repeal-like effect, whereas petition authorizes one additional license with narrow criteria |
| Whether petition’s siting criteria render it unconstitutional under Art. 48 because of practical effects | Even if economically likely to favor a specific locality, practical realities cannot convert a facially statewide law into an excluded local matter | AG and proponents: facial potential to apply statewide is controlling; voters decide motivations | Held: Practical likelihood of local effect does not bar petition; focus is on the law’s text and potential statewide application |
Key Cases Cited
- Abdow v. Attorney Gen., 468 Mass. 478 (2014) (initiative regulating gaming is a matter of statewide concern)
- Carney v. Attorney Gen., 451 Mass. 803 (2008) (initiative banning parimutuel dog racing applied statewide despite concentrated local impact)
- Associated Indus. of Mass. v. Attorney Gen., 418 Mass. 279 (1994) (deference to AG’s reasonable factual determinations on official notice)
- Mount Washington v. Cook, 288 Mass. 67 (1934) (local matters exclusion bars petitions that are geographically descriptive by text or fair implication)
- Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203 (1988) (limits on AG’s factfinding; AG need not conduct extensive hearings)
- Horton v. Attorney Gen., 269 Mass. 503 (1929) (AG’s certification is judicially reviewable)
- Buckley v. Secretary of the Commonwealth, 371 Mass. 195 (1976) (court’s role is not to assess wisdom of initiative but conformity with Article 48)