Bogertman v. Attorney Gen.

• Decision Date: 28 June 2016
• Docket Number: SJC–12063.
• Citation: 474 Mass. 607,53 N.E.3d 627
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Timothy BOGERTMAN & others v. ATTORNEY GENERAL & another.

474 Mass. 607

53 N.E.3d 627

Timothy BOGERTMAN & others¹

v.ATTORNEY GENERAL & another.²

SJC–12063.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted May 2, 2016.

Decided June 28, 2016.

Matthew S. Cameron for the plaintiffs.

Elizabeth N. Dewar, Assistant State Solicitor, for the defendants.

Jeffrey S. King & Hayley Trahan–Liptak, Boston, for Eugene McCain, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

GANTS, C.J.

In this appeal, we decide whether the Attorney General properly certified an initiative petition that seeks to amend G.L. c. 23K to authorize the Gaming Commission (commission) to award one additional license for a slot machine parlor. Article 48 of the Amendments to the Massachusetts Constitution, which governs the process for presenting proposed laws directly to Massachusetts voters through popular initiatives, sets forth certain standards for initiative petitions. In this case, the plaintiffs contend that the petition violates two of art. 48's restrictions, which prohibit initiative petitions that are (1) limited to local matters, or (2) substantially the same as those presented at either of the two preceding biennial State elections. See art. 48, The Initiative, II, §§ 2, 3, of the Amendments to the Massachusetts Constitution, as amended by art. 74 of the Amendments. We conclude that the petition complies with these provisions and was therefore properly certified by the Attorney General.

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, G.L. c. 23K. See Abdow v. Attorney Gen., 468 Mass. 478, 480–483, 11 N.E.3d 574 (2014) (describing Expanded Gaming Act). Chapter 23K authorizes the commission to award up to three “category 1” licenses for gaming establishments “with table games and slot machines” (i.e., casinos) in certain specified regions of the Commonwealth, and no more than one “category 2” license for a gaming establishment “with no table games and not more than 1,250 slot machines” (i.e., a slots parlor). See G.L. c. 23K, § 2 (defining category 1 and 2 licenses); G.L. c. 23K, § 19 (a ) (specifying number and regional locations of category 1 licenses); G.L. c. 23K, § 20 (a ) (specifying number of category 2 licenses). Chapter 23K also requires the commission to request applications for category 2 slots parlor licenses before requesting applications for category 1 casino licenses. See G.L. c. 23K, § 8 (a ).

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 art. 48.⁴ This petition seeks to amend G.L. c. 23K in two ways. First, the petition would amend G.L. c. 23K, § 20, by adding a new subsection (g ) that would authorize, but not require, the commission to award one additional category 2 slots parlor license to a qualified applicant, but only for a location that meets the following qualifications:

“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 G.L. c. 23K, § 8, so that the commission may solicit applications for a category 2 slots parlor license concurrently with or after the solicitation of applications for category 1 casino licenses.⁵

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 G.L. c. 249, §§ 4 and 5, and requesting declaratory relief under G.L. c. 231A. The plaintiffs allege in their complaint that the petition concerns an excluded local matter in violation of art. 48, because it would “restrict the newly-available license to gaming establishment proposals in the immediate vicinity of Suffolk Downs, a thoroughbred horse racing track which spans two municipalities (Boston and Revere) in Suffolk County.” In connection with that allegation, the plaintiffs submitted a September 12, 2015, Boston Globe article reporting that McCain, “the man who is driving the campaign” for the initiative petition, had an agreement to buy a mobile-home property near Suffolk Downs in Revere. According to the article, McCain raised with Revere officials the prospect of putting slot machines at the site, although the city did not support the proposal. The plaintiffs also allege that the petition violated art. 48's prohibition on presenting “substantially the same” measure as had been proposed within the two preceding biennial State elections, because in the November, 2014, election the voters had considered ballot question 3, entitled “Expanding Prohibitions on Gaming.”

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.” Art. 48, I. Article 48 requires that, before the proponents of an initiative petition can start the process of soliciting signatures from additional voters, submitting the petition to the Legislature for possible action, and placing it on the ballot, they must submit the petition by a certain date to the Attorney General for review. Art. 48, The Initiative, II, § 3, as amended by art. 74. The Attorney General must then decide whether to

“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 ; art. 48, The Initiative, V, § 1, as amended by art. 81 of the Amendments to the Massachusetts Constitution; Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317–318, 93 N.E.2d 744 (1950). If the Legislature fails to enact the proposed law by a certain date,⁶ and the proponents succeed in obtaining and timely submitting the required number of further additional signatures, then the Secretary will submit the initiative petition to the voters at the next State election. Art. 48, The Initiative, V, § 1, as amended by art. 81.

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, 523 N.E.2d 467 (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, 526 N.E.2d 1246 (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, 169 N.E. 552 (1929). We review the Attorney General's certification of an initiative petition de novo, Abdow, 468 Mass. at 487, 11 N.E.3d 574, “consider[ing] anew what facts are implicit in the language of the petition or are subject to judicial notice, but ... defer[ring] to the Attorney General's reasonable determinations concerning facts subject to [her] official notice,”⁷ Associated Indus. of Mass. v. Attorney Gen., 418 Mass. 279, 286, 636 N.E.2d 220 (1994). In undertaking our review, we also bear in mind “the firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.” Abdow, supra, at 487, 11 N.E.3d 574, quoting Carney v. Attorney Gen., 451 Mass. 803, 814, 890 N.E.2d 121 (2008) (Carney II ). We do not weigh the wisdom of the policies underlying a proposed measure, but only whether the petition conforms...