Carney v. Attorney General

• Citation: 890 N.E.2d 121,451 Mass. 803
• Decision Date: 15 July 2008
• Docket Number: SJC-10158.
• 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

890 N.E.2d 121

451 Mass. 803

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

SJC-10158.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 2008.

Decided July 15, 2008.

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

Peter Sacks, Assistant Attorney General, for the defendants.

Abby F. Rudzin, Anne J. Savage, & Luke Sosnicki, of New York, & Ann P. Hochberg, Boston, for Committee to Protect Dogs & another, amici curiae, submitted a brief.

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

BOTSFORD, J.

This case involves the latest round in an ongoing struggle between supporters of parimutuel dog racing³ and a coalition of citizen groups seeking to outlaw such racing in the Commonwealth through a ballot initiative petition. See art. 48, The Initiative, Parts II & V, of the Amendments to the Constitution of the Commonwealth.⁴ The plaintiffs, four Massachusetts voters,⁵ filed suit in the county court to quash the Attorney General's certification of Initiative Petition 07-06, entitled "An Act to protect greyhounds" (petition), and to enjoin the Secretary of the Commonwealth (Secretary) from placing the petition on the 2008 Statewide ballot. If approved by a majority of voters, the proposed law would eliminate parimutuel dog racing by repealing those provisions of G.L. c. 128A that currently regulate and provide for licensing of the parimutuel dog racing industry.

In 2000, the voters rejected an initiative petition to ban parimutuel dog racing identical in substance to the petition at issue here, by a vote of 48.59% against, 46.70% in favor, and 4.71% blank.⁶ In 2006, this court considered a challenge brought by the same plaintiffs as in this case to an initiative petition entitled "An Act to protect dogs." Carney v. Attorney Gen., 447 Mass. 218, 219, 850 N.E.2d 521 (2006) (Carney I). In Carney I, the court agreed with the plaintiffs that the proposed law, which included provisions to ban parimutuel dog racing along with provisions to "broaden[] criminal statutes that penalize dog fighting and the general neglect and abuse of dogs," id., violated the "relatedness" limitation on the initiative process outlined in art. 48. Id. at 219-220, 850 N.E.2d 521. The court therefore enjoined the Secretary from placing that petition on the 2006 ballot. Id. at 232, 850 N.E.2d 521.

Renewing their efforts, the organizational proponents of the 2006 initiative petition (proponents)⁷ have submitted the instant petition, which corrects the relatedness problem by focusing solely on parimutuel dog racing. We therefore now have occasion to consider two issues raised by the plaintiffs in Carney I that we found unnecessary to reach in that case: whether the proposed law violates the "local matters" limitation on the initiative petition process, and whether the law is inconsistent with the right to receive compensation for private property appropriated to public use. See id. at 219-220, 850 N.E.2d 521. The plaintiffs also claim that the petition is inconsistent with the right of trial by jury and that its provision of a fine without a specified maximum amount represents an unconstitutional delegation of legislative authority and is therefore beyond the power of the people to enact through the initiative process. Finally, the plaintiffs argue that the Attorney General, in certifying that the proposed law does not contain any matters excluded under art. 48, failed to discharge her constitutional duty as gatekeeper by refusing to take official notice of certain information within the files of State agencies.

We conclude that the Attorney General's certification of the petition was proper. We therefore remand the case to the county court for the entry of a judgment denying the plaintiffs' request for relief in the nature of certiorari and mandamus.

1. Background. We summarize the record submitted by the parties pursuant to the single justice's reservation and report.

The petition would put an end to parimutuel dog racing in the Commonwealth by amending the regulatory scheme set out in G.L. c. 128A so that it applies only to horse racing. The proposed law would prohibit dog races "where any form of betting or wagering on the speed or ability of dogs occurs"; would prohibit the State Racing Commission (commission) from "accepting or approving any application or request for racing dates for dog racing"; and would impose, for any violation of the dog racing ban, "a civil penalty of not less than twenty thousand dollars" payable to the commission for its administrative purposes subject to appropriation. The effective date of the proposed law is January 1, 2010.

As of that date, G.L. c. 128A will permit dog racing to be licensed at three tracks in the Commonwealth (no two in the same county or within twenty-five miles of each other), as well as at major State or county fairs. See G.L. c. 128A, § 3 (i).⁸ However, there appears to have been no racing at fairs since 1981, and there are presently only two tracks in operation: Wonderland Greyhound Park in Suffolk County and Raynham-Taunton Dog Track (Raynham Track) in Bristol County. At least some of the plaintiffs in this action are shareholders or directors of two companies, Massasoit Greyhound Association, Inc. (Massasoit), and Taunton Dog Track, Inc. (Taunton), each licensed by the commission to conduct parimutuel dog racing meetings at Raynham Track. See Carney I, 447 Mass. at 222-223, 224 n. 17, 850 N.E.2d 521. Massasoit owns Raynham Track and has been licensed there for over fifty years; Taunton has been licensed there (as a lessee) since 1986 and was previously licensed for twenty-five years to conduct races elsewhere in the Commonwealth. Licensees must apply for renewal licenses on a yearly basis. G.L. c. 128A, § 2. No entity other than Massasoit, Taunton, or the operators of Wonderland Park has filed an application for a license to conduct dog races at a track since 1961.

In August, 2007, at least ten qualified voters filed the petition at issue here with the Attorney General. See art. 48, The Initiative, Part II, § 3. On September 5, 2007, the Attorney General certified that the petition is in proper form for submission to the people; that the measure is not substantially the same as any measure qualified for submission or submitted to the people at either of the two preceding biennial State elections; and that it contains only subjects which are related or mutually dependent and are not excluded from the popular initiative. See id. On receipt of the Attorney General's certification, the Secretary prepared and distributed blank signature forms for circulation by the proponents. See id. On or before the first Wednesday in December, 2007, the proponents submitted to the Secretary the additional signatures required for submission of the petition to the Legislature, and the Secretary transmitted the petition to the clerk of the House of Representatives on January 8, 2008. See art. 48, The Initiative, Part II, § 4, and Part V, § 1. As of the date of the parties' statement of agreed facts, the Legislature had not enacted the law proposed by the petition. The Secretary has stipulated that if the proponents submit sufficient additional signatures by the first Wednesday in July, 2008, he intends to include the proposed law, as set forth in the petition, in the Information for Voters Guide being printed this summer and to submit the proposed law to the people at the 2008 Statewide election in November. See art. 48, The Initiative, Part V, § 1.

The plaintiffs filed their complaint for certiorari and mandamus in the county court on February 21, 2008. The single justice reserved and reported the case to the full court on the complaint, the statement of agreed facts, and other documents. We refer to additional information contained in the statement of agreed facts as it is relevant to the issues raised by the plaintiffs.

2. Scope of Attorney General's official notice. The plaintiffs

initially challenge the procedure followed by the Attorney General in certifying the petition pursuant to art. 48, The Initiative, Part II, § 3. In considering whether to certify the petition, the Attorney General took official notice of certain facts gleaned primarily from the commission's annual report for 2006, including State revenue figures for greyhound racing; the fact that dog racing is currently occurring at two race tracks in the Commonwealth; and the fact that Massasoit and Taunton were both licensed to operate parimutuel dog racing meetings with associated simulcast rights during 2007 and had been so licensed in prior years. The plaintiffs argue that the Attorney General, in fulfillment of her constitutional duty as gatekeeper for initiative petitions, should also have taken official notice of additional information within the public files of State agencies that are her "clients." In particular, they contend that she should have noticed information contained in applications for racing licenses on file with the commission (indicating the long-standing status of Massasoit and Taunton as two of only three companies operating dog races in the Commonwealth, as well as those companies' investments in improvements to the facilities at Raynham Track), and information available from the Department of Agricultural Resources (regarding the recent lack of racing at State or county fairs and the number of fairs eligible to conduct racing under existing law). The plaintiffs argue that this additional information would have altered the Attorney General's determination whether the proposed law is excluded from the initiative process as a local matter or as inconsistent with the right to receive compensation for property appropriated to public use.⁹ Although we agree with the Attorney General that the additional facts the plaintiffs claim she should have noticed would not show that the petition contains any excluded matters, the...