Bates v Director Office Campaign Finance

• Decision Date: 25 February 2002
• Docket Number: SJC-08677
• Citation: 436 Mass. 144
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KELLY BATES & others(FN1) vs. DIRECTOR OF THE OFFICE OF CAMPAIGN AND POLITICAL FINANCE & another.(FN2) Docket No.:MASSACHUSETTS SUPREME COURT County: Suffolk

KELLY BATES & others¹

vs.

DIRECTOR OF THE OFFICE OF CAMPAIGN AND POLITICAL FINANCE & another.²

Docket No.: SJC-08677

MASSACHUSETTS SUPREME COURT

County: Suffolk.

February 7, 2002.

February 25, 2002.

Summary: Massachusetts Clean Elections Law. Elections, Political contributions. Initiative. General Court. Constitutional Law, Appropriation of money. Statute, Construction. Governmental Immunity. Waiver. Secretary of the Commonwealth. Injunction.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 4, 2001.

The case was reported by Martha B. Sosman, J.

John C. Bonifaz (Lisa J. Danetz & Edward V. Colbert, III, with him) for the plaintiffs.

Peter Sacks, Assistant Attorney General, for the defendants.

The following submitted briefs for amici curiae:

Joshua M. Davis, David S. Friedman & James Roosevelt, Jr., for the Massachusetts Democratic State Committee.

Robert J. O'Regan & Frederick S. Paulsen for Jay Kaufman & others.

The following submitted memoranda:

Michael W. Morrissey, State Senator.

Marie J. Parente, State Representative.

Shannon P. O'Brien for the Shannon O'Brien Committee.

Joel M. Sowalsky for James W. Segal, amicus curiae.

Thomas F. Reilly, Attorney General, & Peter A. Sacks, Assistant Attorney General, for the Attorney General.

Shaun P. Kelly, State Representative.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

MARSHALL, C.J.

On November 3, 1998, the Massachusetts Clean Elections Law, G. L. c. 55A, §§ 1 et seq. (clean elections law), was approved overwhelmingly by the people, under the initiative provisions of art. 48, The Initiative, V, § 1, of the Amendments to the Massachusetts Constitution. See St. 1998, c. 395 (inserting G. L. c. 55A and amending related statutes). The law creates a system that allows electoral candidates for Massachusetts State or Statewide offices³ who, among other requirements, limit the amount and sources of private campaign contributions they accept, to receive public campaign funding.

Because the clean elections law was enacted by popular initiative, it engages art. 48, which provides that "if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect."⁴ To date, the clean elections law has not been repealed, neither has the General Court of Massachusetts (the Legislature) appropriated any money to carry it into effect.

In October, 2001, with the 2002 Massachusetts election season already under way, supporters of the clean elections law commenced an action in the county court under G. L. c. 214, § 1, against the director of the office of campaign and political finance (director) and the Secretary of the Commonwealth (Secretary). They sought a declaration that any Massachusetts State or Statewide election held without access to the funds mandated by the clean elections law would violate both art. 48 and the clean elections law. They also sought permanent injunctive relief ordering the director to provide public campaign funds to all candidates entitled to such funds, and barring the Secretary from holding any elections unless and until such funds had been made available to all eligible candidates.

The plaintiffs promptly sought a preliminary injunction in the county court, which the defendants opposed, to order the director to distribute public funds immediately to qualified clean elections candidates.⁵ Noting that no candidate had yet been certified under the clean elections law to receive public funds, a single justice denied the motion solely on the issue of irreparable harm. But see note 7, infra. She then reserved and reported the matter to the full court on an expedited schedule, on the plaintiffs' corrected complaint, a stipulation in lieu of the defendants' answer, and a statement of agreed facts.⁶ Subsequently, one plaintiff, a candidate for Governor, was certified by the director as a clean elections candidate.⁷

We are asked to decide whether the director, the executive agent charged with implementing the clean elections statute, has any present duty to distribute public funds to certified candidates for electoral office where the Legislature has not appropriated any monies for disbursement to such candidates. See G. L. c. 10, § 42. That question requires us to examine the scope of the Legislature's duties under art. 48 after a law has been enacted by initiative, an issue of first impression. The constitutional command is plain and unambiguous. If a measure properly enacted by the people is not repealed, the Legislature "shall" raise by taxation or otherwise and "shall" appropriate funds to "carry such law into effect." Art. 48, The Initiative, II, § 2. Here, however, the measure enacted by the people provides that the distribution of funds to qualified candidates is "subject to appropriation." G. L. c. 55A, § 8 (a). We must therefore also decide whether the terms of the clean elections statute operate to relieve the Legislature of its obligations under art. 48. We hold that the clean elections initiative was validly enacted into law by the people of Massachusetts, and that nothing in that law relieves the Legislature of its constitutional duties under art. 48.⁸

Only after we have delineated the Legislature's duties under art. 48 can we consider what relief, if any, is available to any plaintiff. For the reasons we describe below, we conclude that plaintiff Tolman has suffered a cognizable injury under the clean elections statute. That injury arose as a result of affirmative actions taken by the director to enable candidates to participate in the clean elections certification process, including certifying Tolman as a clean elections candidate. See G. L. c. 55A, § 5. In consequence of being certified, Tolman is owed $811,050, and is entitled to a judgment in his favor in that amount.

As to the broader relief sought by the plaintiffs, we conclude that they are not entitled to declarations against either the director or the Secretary. The drastic remedy of enjoining the Secretary from conducting all Massachusetts State elections, including all those elections where there may be no candidates who are or intend to be clean elections candidates, is not warranted. Injunctive relief requiring the director to provide full funding to all qualified clean elections candidates is similarly inappropriate. Because the director has no clean elections funds to distribute and no authority on his own to reach those funds, he cannot be enjoined to distribute them.

I

We summarize the salient facts from the statement of agreed facts and other undisputed material of record. The plaintiffs are electoral candidates, Massachusetts voters, and organizations supportive of the clean elections law. The defendant director is an official of the executive branch of the Massachusetts government; among his statutory duties are certifying candidates, distributing monies from the clean elections fund, and promulgating rules and regulations under the clean elections law. See G. L. c. 55A, §§ 5, 8, and 14. The office of Secretary, also a part of the executive branch, was created by the Massachusetts Constitution. See Part II 2, c. 2, § 4, arts. 1 and 2, of the Massachusetts Constitution, and art. 17 of the Amendments to the Constitution. The constitutional and statutory duties of the Secretary include administering the Massachusetts election laws. E.g., art. 48, General Provisions, IV, as amended by art. 74, § 4, of the Amendments (Information for Voters) (printing and distribution to voters of initiative or referendum petition and related documents); G. L. c. 53, § 7 (promulgation of regulations designed to achieve and maintain accuracy, uniformity, and security from forgery and fraud in the nomination certification process).

The present controversy arises in the midst of the 2002 Massachusetts election season. The primary campaign period, from March 31, 2001, to September 17, 2002, has already begun. See St. 2000, c. 159, § 325, an emergency act, approved July 28, 2000, and made effective July 1, 2000, St. 2000, c. 159, § 498. The general election campaign period begins September 18, 2002. The election will decide, among other State offices, the Governor and Lieutenant Governor, who each serve four-year terms, and State Senators and State Representatives, who each serve two-year terms.⁹

The statute at the heart of this controversy, the clean elections law, was approved at the November, 1998, general election by a majority of Massachusetts voters in every electoral district, and approved Statewide by a ratio of two to one.¹⁰ Under the law, candidates for State or Statewide office, see note 3, supra, who choose to participate in the clean elections system agree, among other things, to limit the amount of their primary and general election campaign contributions and expenditures. In return, once they are certified by the director, these candidates receive a substantial amount of their allowable campaign expenditures -- approximately 80% -- from the public treasury.

The clean elections law is funded by the clean elections fund, G. L. c. 10, § 42, also created as part of the successful initiative petition. See St. 1998, c. 395, § 3 (amending G. L. c. 10, § 42). The clean elections fund presently contains approximately $23 million. That sum was accumulated in large part from transfers of $10 million in each of fiscal years 2000 and 2001 from the general fund to the clean elections fund in annual budget bills passed by the Legislature and signed by the Governor. These funds were expressly set aside to be available for the 2002 State elections. See St. 1999, c. 127, § 2, line item 0920-0302; St. 2000, c. 159, § 361.¹¹ Other sources of revenue for the clean elections fund include money contributed by individual taxpayers through voluntary checkoffs on their State income tax returns, ...