TIMOTHY BOGERTMAN & others vs. ATTORNEY GENERAL & another.
Supreme Judicial Court of Massachusetts
June 28, 2016
474 Mass. 607 (2016)
Suffolk. May 2, 2016. - June 28, 2016. Present: GANTS, C.J., SPINA, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Discussion of the process and standards for enactment of a law by popular initiative, and of the role of the Attorney General in certifying initiative petitions. [610-612]
An initiative petition that sought to amend
An initiative petition that sought to amend
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on December 7, 2015.
The case was reported by Cordy, J.
Matthew S. Cameron for the plaintiffs.1
Elizabeth N. Dewar, Assistant State Solicitor, for the defendants.2
Jeffrey S. King & Hayley Trahan-Liptak, for Eugene McCain, amicus curiae, submitted a brief.
GANTS, C.J. In this case, we decide whether the Attorney General properly certified an initiative petition that seeks to amend
Background. In 2011, the Legislature enacted the Expanded Gaming Act, St. 2011, c. 194, which established the commission and a highly structured process for introducing, licensing, and regulating casino and slots gambling in the Commonwealth under a new statute,
On August 5, 2015, the proponent, Eugene McCain,3 filed an initiative petition for “An Act relative to expanded gaming,” (petition 15-34 or petition), pursuant to
“The proposed location of the gaming establishment shall be at least 4 acres large, and shall be adjacent to, and within 1500 feet of, a race track, including the track, grounds, paddocks, barns, auditorium, amphitheatre and/or bleachers, if any, where a horse racing meeting may physically be held, which race track shall have hosted a horse racing meeting, provided that said location is not separated from said race track by a highway or railway.”
Second, the petition would eliminate the timing requirement in
In a letter to the Secretary of the Commonwealth (Secretary) dated September 2, 2015, the Attorney General certified that
“this measure 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 or submitted 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 2, Section 2.”
On December 7, 2015, the plaintiffs, ten registered voters and residents of Suffolk County, commenced an action against the Attorney General and the Secretary in the county court, seeking relief in the nature of certiorari and mandamus under
On February 25, 2016, a single justice of the county court reserved and reported the case for determination by this court.
Discussion. Article 48 of the Amendments to the Massachusetts Constitution establishes the process and standards for enactment of a law by “popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection.”
“certify that the measure and the title thereof are in proper form for submission to the people, and that the measure is
not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections, and that it contains only subjects not excluded from the popular initiative and which are related or which are mutually dependent.”
Id. If the Attorney General certifies that the initiative petition meets these criteria, and the proponents submit the required number of additional signatures of qualified voters to the Secretary by a certain date, the Secretary will then transmit the initiative petition to the House of Representatives for consideration. See id. § 4;
Thus, the Attorney General acts as the gatekeeper for the initiative process, ensuring that a proposed petition meets certain constitutional requirements before it can be submitted to the Legislature and the voters. The Attorney General‘s review does not involve, however, an “inquiry into [the] substance” of a proposed measure; she is to be “not the censor, but the aid and interpreter of the people‘s will,” allowing “the people [to] speak freely,” with “as little restraint as possible.” Nigro v. Attorney Gen., 402 Mass. 438, 446-447 (1988), quoting 2 Debates in the Massachusetts Constitutional Convention 1917-1918, at 728 (1918) (Constitutional Debates). See Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203, 211 (1988) (Yankee II).
We have long held that “the certificate of the Attorney General” concerning an initiative petition “is open to inquiry as to its conformity to the Constitution in appropriate proceedings.” Horton v. Attorney Gen., 269 Mass. 503, 508 (1929). We review
1. Local matters exclusion. Article 48 provides that “[n]o measure... the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth... shall be proposed by an initiative petition.”
a. Purpose and scope. We begin by reviewing the purpose and scope of the local matters exclusion in
“Under the heading ‘Excluded Matters‘,... the intention was to exclude purely local matters, matters that were not State wide matters. A matter relating to a city or town should be dealt with by the Legislature or by that city or town, or by the Legislature referred to that city or town. It is clear that a matter referring to a particular city is not a matter of State wide interest that should be dealt with by the State wide initiative and referendum.”
Constitutional Debates, supra at 693 (comments of Joseph Walker of Brookline).8 In discussing the language of the local matters exclusion, Walker distinguished between “[l]aws that relate to a particular district or locality” and those that relate “to the Commonwealth as a whole.” Id. As these comments suggest, the local matters exclusion serves to prevent the entire Massachusetts electorate from deciding issues involving particular municipalities or other political subdivisions that do not concern them and that are more properly decided by the government or voters of those localities, or by the Legislature.
Our previous decisions concerning the local matters exclusion have distinguished between two types of petitions. Where “the restriction to a particular town, city or other political subdivision or to particular districts or localities [is] specified in the law itself in terms which expressly or by fair implication are geographically descriptive of territorial divisions of the Commonwealth,” the petition is barred by the local matters exclusion. Mount Washington v. Cook, 288 Mass. 67, 74 (1934), cited with approval in Abdow, 468 Mass. at 497; Carney II, 451 Mass. at 811; Ash v. Attorney Gen., 418 Mass. 344, 348 (1994); and Massachusetts Teachers Ass‘n, 384 Mass. at 224. For example, this court has advised the Legislature on many occasions that proposed laws were not proper subjects for an initiative or a referendum9 where they explicitly targeted particular counties, regions, or munici-
Where the proposed laws concerned Statewide issues and, on their face, applied Statewide, we have held that initiative petitions were not barred by the local matters exclusion even though, in practice, the laws might affect some localities significantly more than others. See Abdow, 468 Mass. at 497-498 (petition to prohibit various forms of gaming not barred by local matters exclusion, because it involved matter of Statewide concern and applied Statewide, even though economic impact of Statewide ban would be greatest in existing or prospective host communities); Carney II, 451 Mass. at 810-813 (petition to eliminate parimutuel dog racing not barred by local matters exclusion, because it involved matter of Statewide concern and applied Statewide, even though opponents alleged it took “‘dead aim’ at the only two localities where dog racing... exist[ed] or [was] likely to exist in the foreseeable future“); Ash, 418 Mass. at 347-349 (petition to ban rent control not barred by local matters exclusion, because it applied Statewide and involved issue of Statewide concern, even though rent control was only in effect in small number of municipalities); Massachusetts Teachers Ass‘n, 384 Mass. at 224-225 (Proposition 2 1/2 not barred by local matters exclusion because it addressed matter of Statewide concern and applied in all areas of Commonwealth, even though it had different consequences in various municipalities).
b. Application in this case. Applying these principles to petition 15-34, we note, first, that it falls within a subject matter area — gaming — that is regulated by the State, not by municipalities or other political subdivisions, and is plainly an issue of Statewide concern.10 See Abdow, 468 Mass. at 497 (proposal to prohibit casinos, slot machines, all games conducted under
We further observe that, on its face, there is nothing in the language of the proposed law that explicitly refers, or restricts its operation, to any “particular town, city or other political division or to particular districts or localities of the commonwealth.”
We thus consider whether, even if the proposed law is not expressly limited to a particular locality, it contains terms that “by fair implication are geographically descriptive of territorial divisions of the Commonwealth,” and thereby improperly restrict its application to local matters. Mount Washington, 288 Mass. at 74. The plaintiffs urge us to take judicial notice that the petition‘s “proponent Eugene McCain has a property interest in land which... is the only site in the Commonwealth which meets these carefully-drafted specifications while also being legally eligible for a new license application” (footnote omitted). These asserted facts are not appropriate for judicial notice, and even if they were, they would not suffice to show that the proposed law is limited to local matters.
We may take judicial notice of facts of common knowledge that are indisputably true. See Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 515 n.16 (2010), citing Nantucket v. Beinecke, 379 Mass. 345, 352 (1979). See also
Here, it is certainly not a matter of common knowledge that McCain has an interest in a property that meets the specifications in the proposed law, still less that it is the only property in the Commonwealth that could meet those specifications while also being eligible for the proposed slots parlor license. Nor have the plaintiffs brought to our attention unimpeachable records that would unquestionably establish these alleged facts. Although the plaintiffs have proffered a newspaper article in support of their claims, the article does not definitively state all of these allegations and, in any event, we must disregard it as hearsay.11 See Costa v. Fall River Hous. Auth., 453 Mass. 614, 628 (2009).
Nor can we say that all of the plaintiffs’ allegations are indisputably true. See Provencal, 456 Mass. at 515 n.16. The record indicates that there is a dispute over how many locations with existing race tracks nearby might be eligible for a slots parlor license under the specifications in the proposed law. As the plaintiffs stipulated, “[t]he proponent and opponents of petition 15-34, in their various memoranda on certification to the Attorney General, debated which, and how many, currently-existing race tracks in the Commonwealth could meet the specific site requirements set forth in the proposed law.” A memorandum submitted by counsel for the proponent asserts that the proposed siting criteria would “apply to at least [ten] municipalities containing horse race tracks scattered throughout the Commonwealth, which have already hosted horse racing meetings.” An opposition memorandum disputes that assertion, but presents specific arguments challenging only two of the potential sites listed. Even the plaintiffs acknowledge in their brief that there are “three presently identifiable sites in the Commonwealth” — Brockton Fairgrounds, Plainridge Park, and Suffolk Downs — near which the proposed slots parlor might be located. The plaintiffs argue that the Brockton Fairgrounds and Plainridge Park locations would not be eligible for the proposed slots license, leaving Suffolk Downs as the only possible choice, but those arguments are open to question. The plaintiffs ask us to take notice that the city of Brockton has entered into an agreement under which the city has pledged to work with Mass Gaming & Entertainment, LLC, to support that entity‘s application for a category 1 casino license at the Brockton Fairgrounds. But it appears that application was rejected by the commission on April 28, 2016.12 The plaintiffs also assert that Plainridge Park is already the holder of a category 2 license and therefore would not be eligible for a second license under
The plaintiffs also contend that the initiative is improper because it automatically excludes all cities and towns that lack sufficient developable acreage to meet the size requirements of the proposed law. We do not find this argument persuasive. The four-acre size requirement is not prohibitively large, amounting to only 0.00625 square miles, and cities and towns that are fully developed might still choose to redevelop a parcel. And even assuming that the four-acre requirement might favor some cities or towns over others, the local matters exclusion “does not require that a proposed statute have uniform, Statewide application” (emphasis added). Massachusetts Teachers Ass‘n, 384 Mass. at 224.
It may well be true that this petition was motivated by one person‘s desire to profit from the Commonwealth‘s developing gaming industry, based on his ownership interest in a particular property; the interests that propel both proponents and opponents of initiative petitions may often involve self-interest rather than the public interest. But our focus in deciding whether an initiative
c. Factual examination by Attorney General. The plaintiffs also contend that the Attorney General failed to conduct an adequate factual inquiry concerning the petition‘s alleged inclusion of excluded local matters. We have previously held, however, that “the Attorney General is not to become involved with holding extensive hearings to determine the full factual impact of a petition.” Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 758 (1988) (Yankee I). Rather, “the factual examination required of the Attorney General is limited to matters implicit in the language of the petition and to matters of which the Attorney General may properly take official notice.” Yankee II, 403 Mass. at 205. “Official notice includes matters subject to judicial notice, as well as additional items of which an agency official may take notice due to the agency‘s established familiarity with and expertise regarding a particular subject area.” Id., quoting Yankee I, supra at 759 n.7. Such facts, we have said, can be “quickly determined,” so that the Attorney General‘s “determinations w[ill] not involve undue delay which might frustrate the initiative process.” Yankee I, supra at 759.
In this case, the Attorney General has stipulated that she did not take official notice of how many race tracks currently existing in the Commonwealth would meet the requirements set forth in the proposed law. But she was not obligated to do so where the facts alleged by the plaintiffs are not appropriate for judicial notice. See
2. Exclusion of “substantially the same” matters. Article 48 also requires the Attorney General to certify that “the measure is not, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections.” See
The plaintiffs contend that the Attorney General improperly certified the petition because it is “substantially the same” as question 3 on the 2014 ballot, which sought to prohibit casinos, slots parlors, and wagering on simulcast greyhound races. To address this issue, we must construe the meaning of the phrase “substantially the same,” which we have not previously interpreted in this context.14
We have previously interpreted “substantially,” in other contexts, as meaning “really or essentially.” See Bennett v. Newell, 266 Mass. 127, 131 (1929), citing Commonwealth v. Wentworth, 118 Mass. 441, 442 (1875). See also Hollinger Inc. v. Hollinger Int‘l, Inc., 858 A.2d 342, 377 (Del. Ch. 2004) (“Substantially conveys the same meaning as ‘considerably’ and ‘essentially’ because it means ‘to a great extent or degree’ and communicates that it is very nearly the same thing...” [footnote omitted]). We have also said that where two matters are “substantially the same,” there is “no substantive difference between” them. Haran v. Board of Registration in Med., 398 Mass. 571, 574-575 (1986).
We also note that an earlier version of the “substantially the same” provision of
Accordingly, we interpret the phrase “substantially the same” in
With that standard in mind, we now compare question 3 and petition 15-34. The law proposed in question 3, which was rejected by the voters in the November, 2014, election, contained two elements. First, it would have revised the definition of “illegal gaming” under
We conclude that these two measures are not substantially the same, either affirmatively or negatively. Question 3 asked whether the voters wanted to prohibit casinos, slots parlors, and wagering on simulcast greyhound races. Petition 15-34 asks whether the voters want to permit the licensing of a second slots parlor adjacent to a horse racing track.
Nor is there any actual overlap in the specific legal provisions of the two proposed measures. Question 3 would have amended
Conclusion. Having determined that the Attorney General properly certified petition 15-34 pursuant to
So ordered.
AN ACT RELATIVE TO EXPANDED GAMING
Be it enacted by the People, and by their authority:
SECTION 1. Subsection (a) of Section 8 of Chapter 23K of the General Laws, as appearing in the 2012 Official Edition is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The commission shall issue a request for applications for category 1 and category 2 licenses.
SECTION 2. Section 20 of said Chapter 23K of the General Laws, as so appearing, is hereby amended by adding the following subsection:-
(g) Notwithstanding any general or special law, rule, or regulation to the contrary, the commission may issue 1 additional category 2 license; provided, however, that the additional category 2 license shall only be issued to applicants who are qualified under the criteria set forth in this chapter as determined by the commission and that the additional category 2 license meet the following additional qualification:
(1) The proposed location of the gaming establishment shall be at least 4 acres large, and shall be adjacent to, and within 1500 feet of, a race track, including the track, grounds, paddocks, barns, auditorium, amphitheatre and/or bleachers, if any, where a horse racing meeting may physically be held, which race track shall have hosted a horse racing meeting, provided that said location is not separated from said race track by a highway or railway.