Dimino v. Secretary of Com.

• Decision Date: 23 June 1998
• Citation: 695 N.E.2d 659,427 Mass. 704
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Richard DIMINO & others 1 v. SECRETARY OF the COMMONWEALTH & another. 2

Page 659

695 N.E.2d 659

427 Mass. 704

Richard DIMINO & others ¹ v. SECRETARY OF the COMMONWEALTH & another. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 10, 1998.

Decided June 23, 1998.

E. Randolph Tucker, Boston (Timothy Veeser, with him), for plaintiffs.

Douglas H. Wilkins, Assistant Attorney General (Peter Sacks, Assistant Attorney General, with him) for Secretary of Commonwealth & another.

Before LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

LYNCH, Justice.

The plaintiffs initiated this action seeking a declaratory judgment and an order in the nature of mandamus in the Supreme Judicial Court for Suffolk County. They contend that the Attorney General erred in certifying that a citizens' initiative petition to eliminate toll collections on certain Massachusetts roads did not concern matters "excluded" from the initiative process under art. 48, The Initiative, Part II, § 3, of the Amendments to the Constitution of the Commonwealth. A single justice of this court reserved decision and reported the case for consideration by the full court. We agree with the plaintiffs' claim and accordingly declare that the petition contains matters excluded from the initiative process under art. 48.

Facts. The parties agree on the following facts: The Massachusetts Turnpike Authority (authority), established in 1952, is "a body politic and corporate" within the State Executive Office of Transportation and Construction, and is charged with the construction, maintenance, and over-all management of the Massachusetts Turnpike and a series of other roads collectively now known as the metropolitan highway system. The Massachusetts Turnpike is an express toll highway beginning at the New York border in the town of West Stockbridge and ending at the interchange of Interstate 90 and State Highway Route 128 (also known as Interstate 95) in the town of Weston. The metropolitan highway system consists of the Boston Extension of the Massachusetts Turnpike, Sumner Tunnel, Callahan Tunnel, Ted Williams Tunnel, the Central Artery, and the Central Artery north area. General Laws c. 81A (the enabling act), amended by St.1997, c. 3, § 6, repealed earlier enabling acts, and authorizes the authority to issue bonds to pay costs relating to its general management responsibilities, and to repay the authority's debts or obligations. See G.L. c. 81A, § 5. It also authorizes the authority to charge and to collect tolls for transit over the turnpike and metropolitan highway system in order to generate revenues for the authority. See G.L. c. 81A, §§ 4, 10.

Pursuant to its powers under the enabling act, the authority in 1993 issued a series of turnpike revenue bonds in the amount of $365,555,000 to finance turnpike construction and various capital improvements. The 1993 bonds were issued pursuant to, and are governed by, the terms of a trust agreement between the authority and the 1993 bondholders. This agreement defines the collateral for the 1993 bonds and the authority's obligations to the bondholders. Subsequently, in October, 1997, the authority again issued a series of bonds totaling more than $1.7 billion. This included $1,466,862,622.85 of metropolitan highway system bonds and $297,520,000 of western turnpike revenue bonds. Like the 1993 bonds, the 1997 bonds were issued pursuant to two trust agreements between the authority and the 1997 bondholders, one governing the metropolitan highway system bonds, and the other governing the western turnpike revenue bonds. Each of these agreements delineates the collateral for, and the authority's obligations with respect to, the 1997 bonds. The authority then used the proceeds from the 1997 issuance to retire all outstanding debts from the 1993 bonds. The 1997 bonds, however, remain outstanding.

On or before August 6, 1997, a petition entitled "An Act By Citizens Initiative To Roll Back And Then Prohibit Tolls On The Turnpike, The Boston Extension, The Metropolitan Highway System, The Tobin Bridge, The Sumner, Callahan, And Ted Williams Tunnels, And On Any Other Road, Highway, Tunnel, Or Bridge In The Commonwealth To Which The Public Has Motor Vehicle Access," reproduced in the Appendix to this opinion, was filed with the Attorney General. In essence, the petition seeks to amend the enabling act such that (1) as of January 1, 1999, toll rates would be reduced to their June 1, 1997, levels; and (2) as of August 15, 1999, toll collection would be completely eliminated. The Attorney General, in a letter dated September 3, 1997, certified, inter alia, that the petition contained "only subjects ... that are not excluded from the initiative process pursuant to Article 48, the Initiative, Part 2, Section 2."

The plaintiffs thereafter objected, claiming that the Attorney General's certification was erroneous in that the petition concerns two subjects "excluded" from the initiative process by art. 48. They first claim that because the petition, if enacted, would eliminate part of the 1997 bondholders' security interest (i.e., toll revenue), it offends art. 48's prohibition of initiatives which are "inconsistent with the right to receive compensation for private property appropriated to public use." They alternatively contend that, because the petition as enacted would affect the authority almost exclusively, art. 48's ban of initiatives whose operation "is restricted to a particular ... political subdivision" would be violated. Because we agree with the plaintiffs' first contention, we decline to address the latter.

1. Mootness. As a preliminary matter, the defendants maintain that the plaintiffs' claim is moot because the 1993 bonds have been repaid. This repayment, according to the defendants, eliminated any security interest which the 1993 bondholders may have once held in the authority's toll revenues. The absence of this security interest, the defendants contend, precludes the plaintiffs from claiming at this time that the petition, if enacted, would constitute an appropriation of private property "inconsistent with the right to receive compensation."

The defendants' argument in this regard presupposes that, in making his determination, the Attorney General properly disregarded any security interest held by the 1997 bondholders. It is with this presumption that we take issue. This court reviews de novo the Attorney General's certification that a petition does not contain an excluded matter under art. 48. Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203, 207, 526 N.E.2d 1246 (1988) (Yankee II ). In doing so, "[w]e consider anew what facts are implicit in the language of the petition or are subject to judicial notice, but we defer to the Attorney General's reasonable determinations concerning facts subject to his official notice." Associated Indus. of Mass. v. Attorney Gen., 418 Mass. 279, 286, 636 N.E.2d 220 (1994). "Factual matters which are 'indisputably true' are subject to judicial notice; these include '[m]atters of common knowledge or observation within the community.' " Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 759 n. 7, 525 N.E.2d 369 (1988) (Yankee I ), quoting Nantucket v. Beinecke, 379 Mass. 345, 352, 398 N.E.2d 458 (1979).

In the present case, we conclude that, in certifying the petition, the Attorney General should have considered the security interest held by the 1997 bondholders. The existence of the 1997 bonds and the 1997 bondholders' security interest is, in our view, "indisputably true," given that the proceeds from these bonds alone made the retirement or repayment of the 1993 bonds possible. Official Statements of the Massachusetts Turnpike Authority, 1997 Bonds. Moreover, the issuance of $1.7 billion worth of authority bonds, by virtue of its sheer magnitude, is a matter of "common knowledge or observation." As such, the existence of the 1997 bonds and their corresponding security interest is a judicially noticeable fact which the Attorney General erred in disregarding during the certification process. Yankee I, supra at 759 n. 7, 525 N.E.2d 369.

Therefore, in reviewing his decision that the petition was not "inconsistent with ... the right to receive compensation for private property appropriated for public use," we shall consider whether the petition would, if enacted, effect a taking of the security interest held by 1997 bondholders. Associated Indus. of Mass. v. Attorney Gen., supra. Because this interest and the bonds which secure it are still outstanding, the plaintiffs' claim is not moot.

Furthermore, even if moot, the plaintiffs' claim would require our consideration. We make an exception to the general rule against hearing moot claims in some cases "because of the public interest involved and the uncertainty and confusion that exist." Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159, 484 N.E.2d 1015 (1985), citing Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). Unquestionably, the potentially erroneous certification of an initiative petition which, if enacted may subject the Commonwealth to well over a billion dollars in liability, is a matter of public interest. See Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 629 n. 4, 531 N.E.2d 1261 (1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989) (although case involving newspaper's claim of entitlement to impounded court records was "clearly moot," court would address merits "because of the strong public interest in the matter"). ³

2. The appropriation of private property. We next consider whether, based on the petition's potential effect on the security interest of the 1997 bondholders, the Attorney General erred in certifying that the petition was not "inconsistent with ... [t]he right to receive compensation for private property appropriated to public use." Art. 48, The Initiative, Part II, § 2. See Yankee...