Capezzuto v. State Ballot Law Com'n

• Decision Date: 11 July 1990
• Citation: 556 N.E.2d 366,407 Mass. 949
• Parties: Loretta A. CAPEZZUTO v. STATE BALLOT LAW COMMISSION (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 366

556 N.E.2d 366

407 Mass. 949

Loretta A. CAPEZZUTO v. STATE BALLOT LAW COMMISSION (and a companion case¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 10, 1990.

Decided July 11, 1990.

Gerald J. Caruso (Robert P. Rodophele, Boston, with him), for Loretta A. Capezzuto and another.

Eric J. Mogilnicki, Asst. Atty. Gen., for Attorney General and another.

Charles C. Caldart, Boston, and Kenneth L. Kimmell, Watertown, for interveners, submitted a brief.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ. GREANEY, Justice.

At issue in this case is the validity of an initiative petition which proposed enactment of a law entitled "An Act to promote environmentally acceptable product packaging." If enacted, the proposed law would require all packaging used in Massachusetts after December 31, 1995, to be reusable or to contain recyclable or recycled materials which meet certain specific standards. The proposed law also provides various remedies to redress violations.

On August 2, 1989, the drafter of the proposed law, Amy Perry, caused to be submitted an initiative petition to the Attorney General for certification pursuant to the procedure prescribed by the Amendments to the Massachusetts Constitution, art. 48, The Initiative, II, § 3. The submitted document purportedly had been signed by nineteen registered voters, nine more than the constitutionally required ten signers. See id. The Attorney General subsequently certified that the petition was in proper form and appropriate for submission to the voters. This certification reflects the Attorney General's determination that, among other things, the petition had been validly signed "by ten qualified voters of the commonwealth," and "that it contains only subjects not excluded from the popular initiative." Id.

On August 31, 1989, prior to the Attorney General's decision to certify the initiative petition, the plaintiff Loretta Capezzuto filed an objection with the State Ballot Law Commission (commission) to test the legality of the purported signatures. The objection, as amended, alleged that: (1) the petition had not been "signed by ten qualified voters of the commonwealth," as required by art. 48, The Initiative, II, § 3, because the signatures were not physically located on the petition itself, and because (2) the signers did not subscribe to a document which "set forth the full text" of the law as required by § 1 of the same article, ² and that, (3) even if constitutional requirements had been complied with, the petition still failed the statutory requirement that the signatures be made "in person." See G.L. c. 53, § 7 (1988 ed.), and G.L. c. 53, § 22A (1988 ed.) (laws relating to signatures on candidates' nomination papers shall apply, "so far as apt," to the signing of initiative and referendum petitions). After a hearing, the commission issued a decision in which it made findings of fact (to which we shall return below), and overruled Capezzuto's objection. Capezzuto appealed from this decision to the Superior Court pursuant to G.L. c. 55B, § 4 (1988 ed.), and G.L. c. 30A, § 14 (1988 ed.), seeking to set aside the commission's decision and a declaration (pursuant to G.L. c. 231A) that the petition had been improperly certified.

On March 5, 1990, the plaintiff Massachusetts Committee for Responsible Waste Management, together with Capezzuto, filed another action in the Supreme Judicial Court for Suffolk county, challenging the Attorney General's certification of the initiative petition. As the primary basis for this action, the plaintiffs alleged that the proposed law, in so far as it creates various remedies for violations of the proposed law, relates to the powers of the courts, and thus involves a matter which is expressly excluded from the initiative process. See Art. 48, The Initiative, II, § 2. ³

On April 3, 1990, the parties filed with a single justice of this court a statement of agreed facts, along with joint motions seeking (a) to transfer Capezzuto's appeal of the commission's decision from the Superior Court to this court pursuant to the authority conferred by G.L. c. 211, § 4A (1988 ed.); (b) to consolidate that case with the case pending in the county court challenging the Attorney General's certification; (c) to permit Amy Perry and eighteen other individuals to intervene; and (d) to reserve and report the entire matter to the full court. The single justice granted all the motions and we have the issues in both cases before us. We conclude that the petition lacks the required ten signatures.

Our analysis properly begins with a review of the commission's decision. As the defendants correctly point out, the commission's findings of fact will be upheld if supported by "substantial evidence," see Almeida Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 341, 203 N.E.2d 556 (1965), which is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." See G.L. c. 30A, § 1(6) (1988 ed.); Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 574, 321 N.E.2d 656 (1974); Labor Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 521, 269 N.E.2d 682 (1971). However, the conclusions of law to be drawn from those facts are subject to independent judicial review. See Haley v. Commissioner of Pub. Welfare, 394 Mass. 466, 476, 476 N.E.2d 572 (1985); Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595, 307 N.E.2d 330 (1974). This principle is of particular importance when the legal issue involved is of constitutional dimension. See Selectmen of Framingham v. Civil Serv. Comm'n, 366 Mass. 547, 554, 321 N.E.2d 649 (1974).

Applying these principles, we find in the evidence and materials before the commission support for its factual findings. However, we conclude that the commission erred as matter of constitutional law when it ruled, based on those facts, that "twelve signers subscribed to the full text of the petition before it was filed with the Attorney General." ⁴ Because we conclude that the full text of the proposed law was not subscribed to by ten qualified voters, as required by our Constitution, we need not address the additional arguments raised by the plaintiffs.

The relevant facts, drawn from the commission's findings and the parties' stipulations, are as follows. Amy Perry, the principal drafter of the proposed law, prepared three separate drafts of the initiative petition. She produced the first one on July 28, 1989, and circulated copies to each of the eighteen other people who ultimately signed. Along with the copies, Perry circulated a cover letter which requested comments and criticisms.

In response to the comments she received, Perry prepared a second draft, which she printed at around noon on August 2, 1989. The commission found that this draft was "substantially different from the July 28 draft and incorporated many of the changes suggested by people who reviewed the July 28 draft." Perry sent copies of the second draft by facsimile machine to eight of the signers (Roosevelt, Alexander, Pines, Alt, Wood, Domenitz, Barrett, and Kratka). ⁵ Thus, including Perry herself, nine people received actual copies of the substantially altered second draft.

Also on August 2, Perry spoke by telephone to another of the signers, Amy Goldsmith. Perry orally described to Goldsmith the substantive changes that had been incorporated into the new August 2 draft. Perry offered to read those changes verbatim to Goldsmith, but Goldsmith declined, stating that she was accepting the changes as they had been described to her by Perry. Perry spoke in person to another signer, Ellen Citron, that same day. The two women discussed the August 2 draft, and Citron stated that she understood the changes that had been made and felt comfortable with them.

At approximately 3 P.M. on August 2, Perry produced a third draft of the initiative petition. The commission found that this draft was "almost identical" to the second draft, "except for some minor typographical and grammatical corrections." The commission further found that "[n]o substantive changes" had been incorporated into the third draft. No one except Perry saw the third draft, nor did Perry discuss it with any of the signers. Perry caused to be submitted the third draft, together with signature pages which she had received from each of the eighteen other signatories, to the Attorney General's office in time to meet the 5 P.M. filing deadline that same day, August 2.

In summary then, the facts pertaining to the three drafts are as follows:

(1) The first draft was seen by all nineteen signatories.

(2) The second draft was seen by nine signatories, and orally described to two signatories. The second draft differed greatly in substance from the first draft.

(3) The third draft was seen by Perry alone. It did not differ in substance from the second draft.

(4) With respect to these previous drafts, eighteen people sent signature pages to Perry, and each person subsequently reaffirmed the validity of his or her signature.

The dispositive question, as we see it, is whether ten people can be deemed to have signed on to a draft which set forth "the full text" of the proposed law. In answering that question, we will assume, without deciding, that the second draft of the petition set forth the full text of the proposed law because that draft was, in the commission's view, identical in substance to the draft ultimately forwarded to, and approved by, the Attorney General. ⁶

Based on the assumptions noted, we conclude that there are nine people who signed on to the second draft. This group includes Perry, who drafted the petition, and the eight people who had before them the entire text of the second draft for examination and consideration.

This, however, still leaves the proponents of the petition one signature short of the constitutionally mandated ten. In order to comply with ...