447 Mass. 218 | Mass. | 2006
The plaintiffs, four Massachusetts voters, filed suit in the county court to quash the Attorney General’s certification of Initiative Petition 05-05, entitled “An Act to protect dogs” (petition), and to enjoin the Secretary of the Commonwealth (Secretary) from placing the petition on the 2006 Statewide ballot. See art. 48, The Initiative, Part II, and The Referendum, Part III, of the Amendments to the Constitution of the Commonwealth.
The plaintiffs claim that by combining a controversial proposition (dismantling parimutuel dog racing) with “insignificant and non-controversial” amendments to existing criminal laws against animal fighting and cruelty to animals, the petition is a “smokescreen” designed to “obfuscate the issue and confuse the voters.” As such, they contend, the petition is a “logrolling” measure that violates the “relatedness” limitation of art. 48.
We conclude that the petition violates the relatedness limita
We remand the case to the county court for the entry of a judgment declaring that the Attorney General’s certification of the petition is not in compliance with the limitations of art. 48 and enjoining the Secretary from taking steps to place the measure on the ballot in the 2006 Statewide election.
1. Background. We summarize from the record submitted by the parties pursuant to the single justice’s reservation and report.
The petition would first amend various sections of G. L. c. 272 that impose criminal sanctions against those who mistreat and neglect animals. It would also amend G. L. c. 128A to do away with the parimutuel dog racing industry regulated by that statute.
a. Sections 2 and 3 of the petition would, effective January 1, 2007, add or amend various sections of our criminal code, as follows:
(1) by adding a new criminal measure providing prison terms and fines for those convicted of “willfully, maliciously or with reckless disregard . . . injuring], disabling] or otherwise mistreating]” a military dog, a police dog owned by a State or Federal law enforcement agency, or a “service dog.”
(2) by amending the statutes prohibiting animal fighting to specify that the term “dogs” used therein includes “dogs or puppies that are used or kept for breeding or producing for, or to be used, exchanged, sold or exported in association with, or in support or furtherance of, dog fighting”; by criminalizing the breeding of dogs for fighting; and by permitting the search for and seizure of dog fighting paraphernalia. Current criminal statutes do not address the breeding of dogs for fighting, see G. L. c. 272, § 88 (search warrant), § 89 (warrantless search), §91 (forfeiture), and § 94 (punishment), or address the issue of dog fighting paraphernalia.
b. Section 4 of the petition does not address any criminal statutes. It would repeal the provisions of existing law that permit and license parimutuel dog racing, prohibit the State Racing Commission from licensing parimutuel dog racing anywhere in the Commonwealth, and provide civil penalties for violations. Section 4 would amend the regulatory scheme of G. L. c. 128A to apply only to horse racing. At present, parimutuel dog racing is licensed in Suffolk and Bristol Counties
There is no dispute that § 4 of the petition is identical to an initiative petition entitled “An Act Relative to dog racing in the commonwealth” that was submitted to voters in the 2000 Statewide election and defeated by a margin of 48.59 per cent to 46.70 per cent.
2. Certification. On or before the first Wednesday of August, 2005, eleven qualified voters
On receipt of the certification letter and summary from the Attorney General, the Secretary prepared and distributed blank circulation forms for the petitioners to gather additional signatures sufficient for submission of the petition to the Legislature. See id. On or before the first Wednesday in December, 2005, the proponents of the petition submitted the required additional signatures to the Secretary, who then submitted the petition to the clerk of the House of Representatives. See art. 48, The Initiative, Part II, § 4, and Part V, § 1. The Secretary has stipulated that if, pursuant to art. 48, the proponents gather sufficient additional signatures by the first Wednesday of July, 2006, he intends to include the petition in the Information to Voters Guide being printed this summer, see
On February 14, 2006, the plaintiffs filed their complaint for certiorari and mandamus in the county court.
3. Discussion. The plaintiffs claim that the petition is a collection of loosely related provisions designed to mislead voters into abolishing parimutuel dog racing in Massachusetts. The Attorney General counters that the sections of the petition all relate generally to “promoting the more humane treatment of dogs.”
An initiative petition may include more than one subject, provided that the joined subjects have “a common purpose to which each element is germane or, at least, to which it ‘cannot rightly be said to be unrelated.’ ” Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, 384 Mass. 209, 221 (1981), quoting Opinion of the Justices, 309 Mass. 555, 561 (1941). The petition need not evidence a “strict internal consistency.” Mazzone v. Attorney Gen., 432 Mass. 515, 529 (2000). On the other hand, its purported common purpose may not be so broad as to render the relatedness limitation “meaningless.” Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, supra at 219.
Under art. 48, the Attorney General serves as the first line of defense against confusing, misleading, or otherwise invalid initiative provisions. See Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 757 (1988). He must “assess what a proposed initiative does in its various aspects or subjects.” Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, supra at 221. He is obligated under art. 48 “to ferret out obviously improper initiative petitions.” See Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, supra. The Attorney General concedes that this obligation requires him to consider, at minimum, “ ‘legislative’ facts,” which he defines as “whether one could reasonably believe that various subjects relate to a common purpose.” This narrow perspective, focused solely on the initiative’s proponents, fails to give full effect to art. 48 by ignoring the Attorney General’s carefully crafted obligation to protect the voters, who must ultimately “legislate” the proposal.
For additional insight into the relatedness limitation, we turn to the proceedings of the constitutional convention of 1917-1918, from which art. 48 emerged for consideration by the voters, and 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. Cohen v. Attorney Gen., 357 Mass. 564, 572 (1970). In the context of the entire debate surrounding adoption of an initiative and referendum amendment, the relatedness limitation emerges as one of a number of compromise measures intended to place limits on the initiative as a means to forestall “abuse” of the process. See Hurst v. State Ballot Law Comm’n, 427 Mass. 825, 828 (1998).
The original draft of the measure that became art. 48, approved by the bare majority of the Committee on Initiative and Referendum, contained no relatedness provision. See 2 Debates in the Massachusetts Constitutional Convention 1917-1918, 4-6 (1918) (Debates). That draft was extensively debated and revised over weeks of deliberation that captured the attention of the press and the general public. See Cohen v. Attorney Gen., supra at
On submission of the Luce proposal, Mr. Quincy of Boston rose to state that the subject it concerned had been “discussed
We cannot overlook the context in which the relatedness amendment was agreed to. In particular, a great deal of debate centered on the need to add provisions to the original draft amendment that would foreclose the kinds of abuses and misapplications of initiative petitions that the delegates determined had occurred in other States. A recurring topic of concern was the possibility that well-financed “special interests” would exploit the initiative process to their own ends by packaging proposed laws in a way that would confuse the voter. See, e.g., id. at 131 (remarks of Mr. Lummus, on intrusion of “private interests” into initiative process); id. at 152 (remarks of Mr. Underhill, on attempts to influence voters in Oregon initiative elections); id. at 495-496 (remarks of Mr. Bartlett, on domination of California initiative process by monied interests). Cf.
The delegates sought solutions to potential misuse of the petition and referendum process, not in changes to the original draft that would penalize wrongdoers, but by adding gatekeeping measures that would cull out misleading or confusing initiative measures. A comparison of the original 181-line draft amendment with the 411-line final draft makes these changes readily apparent. The final draft of the initiative amendment approved by the majority of delegates for submission to the people contained many provisions for the formal review of initiatives that were absent from the original draft. They include addition of a certification role for the Attorney General, expansion of the type of individual rights excluded from the initiative process, resolution by the Legislature of conflicting and alternative petition measures, and, among others, the relatedness limitation. Compare Debates, supra at 2-6 (original draft amendment) with Debates, supra at 1050-1057 (final draft). The resulting draft submitted for the people’s approval was one the delegates intended, in the words of one, to establish an initiative process that “makes, not for a hasty, snap, popular judgment, but for the expression of that sound and settled popular will, fair to minorities, sane as to its consequences, which in a democracy ought to govern.” Id. at 941 (remarks of Mr. Lummus). See Bates v. Director of the Office of Campaign & Political Fin., 436 Mass. 144, 159 n.24 (2002) (“The desire of Massachusetts citizens to place significant limits on their initiative powers in art. 48 resulted in a constitutional amendment that as a whole is considerably more modulated than are the initiative amendments to some other States’ Constitutions adopted at about the same time”); Hurst v. State Ballot Law Comm’n, 427 Mass. 825, 828 (1998) (“Article 48 provides means for the public to participate directly in the lawmaking process, but also safeguards against abuse of those means by special interests to
Read in its entirety, then, art. 48 provides a mechanism for exercising the right of popular lawmaking that carefully constructs safeguards against potential voter confusion in the initiative process. When considering the question of relatedness, we must give full effect to the balance struck by the amendment. We recognize that every initiative petition enables the majority to express its will apart from the process of representative democracy. We also recognize that the initiative does not, and cannot, turn every voter into a legislator. Unlike a legislator, the voter has no opportunity to modify, amend, or negotiate the sections of a law proposed by popular initiative.
The language, structure, and history of art. 48 all suggest that any initiative presenting multiple subjects may not operate to deprive the people of a “meaningful way” to express their will. See Opinion of the Justices, 422 Mass. 1212, 1221 (1996). It is not enough that the provisions in an initiative petition all “relate” to some same broad topic at some conceivable level of abstraction. Id. To clear the relatedness hurdle, the initiative petition must express an operational relatedness among its substantive parts
Here, there is no meaningful operational relationship between §§ 2 and 3, which would amend criminal statutes penalizing animal abuse, and § 4, which would dismantle the legitimate business of parimutuel dog racing.
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.
4. Conclusion. Because we conclude that Petition 05-05 violates the relatedness limitation of art. 48, we do not consider the plaintiffs’ other claims. We remand the case to the county court for the entry of a judgment declaring that the Attorney General’s certification of Petition 05-05 is not in compliance with the limitations of art. 48 and enjoining the Secretary from taking steps to place the measure on the ballot in the 2006 Statewide election.
So ordered.
Unless otherwise stated, all references to art. 48 refer to art. 48 as amended by arts. 74, 81, and 108 of the Amendments to the Massachusetts Constitution.
“Logrolling” in the sense employed by the plaintiffs 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.” Black’s Law Dictionary 960 (8th ed. 2004).
Article 48, The Initiative, Part II, § 2, provides that no measure be proposed by initiative petition “the operation of which is restricted to a particular town, city or other political division or to particular districts or
The record includes a statement of agreed facts. We acknowledge the Attorney General’s reservation that the statement of agreed facts “does not necessarily constitute agreement that the fact was officially noticeable by the Attorney General during the certification process, or was actually officially noticed by him.”
Section 1 of the petition recites the following “Declaration of purpose:” “The citizens of Massachusetts have special concerns for dogs, and find that the provisions of this Act, as recommended by the Animal Rescue League of
The petition defines “service dog” as “any guide dog or signal dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to: guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Currently, G. L. c. 272, § 85B, permits recovery of damages from third parties who steal or attack “assistance animal[s],” a term the statute does not define.
Those penalties, which recently were increased, include “imprisonment in the state prison for not more than 5 years or imprisonment in the house of correction for not more than 2 lh years or by a fine of not more than $2,500, or by both such fine and imprisonment.” G. L. c. 272, § 77, as amended through St. 2004, c. 319, § 4.
The Suffolk and Bristol County parimutuel dog racing tracks also have simulcast rights. See, e.g., G. L. c. 128C, § 2 (l)-(3). These simulcast rights are set to expire on December 31, 2006. See St. 2006, c. 54, § 12 (approved April 6, 2006).
Certain geographical restrictions are set to expire on December 31, 2006. See St. 2006, c. 54, § 12 (approved April 6, 2006).
The percentage of voters not voting on the 2000 initiative measure was 4.71 per cent.
Section 5 of Petition 05-05, the final section, is a severability provision.
Two of the eleven voters were purportedly acting on behalf of organizations. The plaintiffs do not seek to invalidate these signatures or otherwise argue that they are improper.
In relevant part, art. 48, The Initiative, Part n, § 3, provides: “Such petition shall first be signed by ten qualified voters of the commonwealth and shall then be submitted to the attorney-general not later than the first Wednesday of the August before the assembling of the general court into which it is to be introduced, and if he shall 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, it may then be filed with the secretary of the commonwealth.”
The summary states that the proposed law would “(1) prohibit any dog racing or racing meeting in Massachusetts where any form of betting or wagering on the speed or ability of dogs occurs; (2) make it a crime to harm a military, police, or service dog while committing a felony; and (3) make it a crime to use or keep dogs for breeding for fighting, and allow law enforcement officials to seize such dogs and property used in the violation of laws against dog fighting, and seek a court order for their forfeiture.”
As to the plaintiffs, the parties’ statement of agreed facts notes only that George L. Carney, Jr., is a stockholder of Massasoit and Taunton, which are Massachusetts corporations licensed by the State Racing Commission to conduct dog racing meetings where betting or wagering is allowed and granted associated simulcast rights. On its 2005 license application to the racing commission, submitted as an exhibit to the statement of agreed facts, Massasoit lists Carney as its president, clerk, treasurer, and director, and the president, clerk, treasurer, and director of Taunton. Massasoit’s license application also lists Laetitia A. Carney and Maura J. Carney as directors of Massasoit and Maura J. Carney as a director of Taunton. Gary M. Temple is a registered voter in Worcester County.
We acknowledge the amicus briefs filed by the Committee to Protect Dogs and The Humane Society of the United States; and the Wonderland Greyhound Owners Association, Inc., William H. O’Donnell, and Albert G. Smith, Jr.
The formulation of the petition’s purpose that the Attorney General advances here is broader than that enunciated by the petition’s sponsors, which is to “further protect” dogs. See note 7, supra.
Mr. Luce went on to state: “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.” 2 Debates in the Massachusetts Constitutional Convention . 1917-1918, 567 (1918) (Debates).
This point was made by several delegates to the Constitutional Convention of 1917-1918. See, e.g., Debates, supra at 13 (dissenting members: “Voters have no choice save to pass or reject a measure exactly as framed by the petitioners. It may contain both good and bad provisions, but both must be accepted or rejected without amendment. . . . Very few legislative measures are introduced in form or phrase deserving of final adoption”); id. at 133 (remarks of Mr. Lummus: “Did you ever hear of an unamendable motion, — a motion to which the proposer was authorized to give final and conclusive form, and, at his own will and from his own narrow and perhaps selfish standpoint, to refuse to change even upon the strongest proof of necessity?”); id. at 531-533 (remarks of Mr. Balch: initiative process would destroy institution of “deliberative government” for process of “compulsory deliberation”).
We do not question the power of the Legislature and the people through the initiative process to abolish animal racing involving betting or wagering, see Selectmen ofTopsfield v. State Racing Comm’n, 324 Mass. 309 (1949), or to enact robust criminal and civil laws for the protection of animals. See Opinion of the Justices, 286 Mass. 611 (1934).
The brief submitted by the Attorney General circumvents this point by stating that “voters who have . . . mixed feelings” about the separate sections of the petition “must be trusted to sort them out before they vote.” As we stated above, voters, unlike legislators, are not afforded the opportunity to participate in the deliberative process of debate and compromise to craft a statement of public policy that they can endorse without significant reservation. They have no meaningful way to “sort out” their mixed feelings about an initiative bill short of voting it up or down as a whole.