Carney v. Attorney General

• Decision Date: 13 July 2006
• Citation: 850 N.E.2d 521,447 Mass. 218
• Parties: George L. CARNEY, Jr., & others<SMALL><SUP>1</SUP></SMALL> v. ATTORNEY GENERAL & another.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

850 N.E.2d 521

447 Mass. 218

George L. CARNEY, Jr., & others¹ v. ATTORNEY GENERAL & another.²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 2, 2006.

Decided July 13, 2006.

Joel A. Kozol, Boston (Lee H. Kozol & Marc D. Rie with him) for the plaintiffs.

Peter Sacks, Assistant Attorney General (Lorraine A. Goldenberg-Tarrow, Assistant Attorney General, with him) for the defendants.

The following submitted briefs for amici curiae:

Thomas R. Kiley, Boston, for Wonderland Greyhound Owners Association, Inc., & others.

Bradley J. Butwin, Abby F. Rudzin, Samantha L. Hetherington, & Joseph D. Keller, of New York, NY, & Jeffrey D. Hutchins, Boston, for Committee to Protect Dogs & another.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & SOSMAN, JJ.

MARSHALL, C.J.

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.³ If enacted into law by a majority of voters, the petition would dismantle the dog racing industry in Massachusetts by repealing the provisions of G.L. c. 128A that license and regulate dog racing in which wagering or betting occurs (parimutuel dog racing). It would also amend provisions of our criminal code by broadening criminal statutes that penalize dog fighting and the general neglect and abuse of dogs. Parimutuel dog racing has been legal in the Commonwealth for more than seventy years. See G.L. c. 128A, inserted by St.1934, c. 374, § 3. In 2000, the voters rejected an initiative petition to outlaw parimutuel dog racing that was identical to the petition's dog racing ban.

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. 48.⁴ They also claim that the petition violates art. 48 in that it contains only "local matters," effects a taking of property without compensation, and is in a form improper for submission to the voters.⁵

We conclude that the petition violates the relatedness limitation of art. 48. The plain wording of art. 48 and the context in which it was enacted demonstrate that the relatedness limitation is one of many restrictions on the popular initiative process intended to avoid confusion at the polls and to permit citizens to exercise a meaningful choice when voting to accept or reject a proposed law. Here, the petition's proposal to expand existing criminal sanctions against cruelty to animals bears no meaningful operational relationship to laws that would abolish parimutuel dog racing, an established, highly regulated enterprise. As we shall explain, the aggregation of these two very different sets of laws into one petition that the voter must accept or reject would operate to deprive voters of their right under art. 48 to enact a uniform statement of public policy through exercising a meaningful choice in the initiative process. Because we conclude that the petition violates the relatedness limitation of art. 48, it is unnecessary to consider the plaintiffs' other challenges.

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.⁶

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.⁷ We describe the salient provisions of the petition, together with the current laws the various sections of the petition would modify.

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 . . . injur[ing], disabl[ing] or otherwise mistreat[ing]" a military dog, a police dog owned by a State or Federal law enforcement agency, or a "service dog."⁸ The new law proposes criminal penalties identical to those set by G.L. c. 272, § 77, the general animal neglect and mistreatment statute,⁹ but potentially greater than those set by G.L. c. 272, § 77A, which penalizes the wilful mistreatment of dogs owned by Commonwealth law enforcement agencies.

(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.

(3) by requiring that dogs and puppies confiscated in the enforcement of laws against dog fighting be forfeited to the custody of a humane society. Under current law, fighting animals that are forfeited are required to be killed within twenty-four hours of seizure. See G.L. c. 272, § 91.

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 Counties¹⁰ and may also be licensed in Hampden County. See G.L. c. 128A, § 3 (g).¹¹ The industry is heavily regulated with respect to wagering, employees, the treatment and veterinary care of racing dogs, and other matters. See G.L. c. 128A. The abolition of dog racing would take effect on January 1, 2008.

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.¹² The remaining provisions of the present petition have not previously appeared on the ballot.¹³

2. Certification. On or before the first Wednesday of August, 2005, eleven qualified voters¹⁴ filed the prospective petition with the Attorney General. On August 15, 2005, and August 29, 2005, representatives of Massasoit Greyhound Association, Inc. (Massasoit), and Taunton Dog Track, Inc. (Taunton), each licensed by the State Racing Commission to conduct parimutuel dog racing, wrote to the Attorney General opposing certification of the petition. On September 7, 2005, the Attorney General certified to the Secretary that, among other qualifications, the petition "contains only subjects that are related or are mutually dependent." See art. 48, The Initiative, II, § 3.¹⁵ In accordance with art. 48 he also prepared and sent to the Secretary a "fair, concise" summary of the petition for transmission to the voters. See id.¹⁶ That same day, the Attorney General sent a detailed letter to Massasoit and Taunton stating, in essence, that their objections to the petition were groundless.

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 art. 48, General Provisions, Part IV, and to add the petition to the ballot for the people's consideration during the 2006 Statewide election in November.

On February 14, 2006, the plaintiffs filed their complaint for certiorari and mandamus in the county court.¹⁷ The single justice reserved and reported the case to the full court on the complaint, the statement of agreed facts, and other documents.¹⁸

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."¹⁹ Our point of departure is the plain wording of art. 48 itself, which we construe "in the light of the conditions under which it was framed the ends designed to be...