Dunn v. Attorney Gen.

• Decision Date: 06 July 2016
• Docket Number: SJC–12107.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James H. DUNN & another v. ATTORNEY GENERAL & others.

474 Mass. 675
54 N.E.3d 1

James H. DUNN & another¹
v.
ATTORNEY GENERAL & others.²

SJC–12107.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 8, 2016.
Decided July 6, 2016.

54 N.E.3d 3

Katherine J. Spohn, of Nebraska (Mary Jacobson, of Nebraska, with her) for the plaintiffs.

Elizabeth N. Dewar, Assistant Attorney General, for the defendants.

Thomas O. Bean, Boston, for the interveners.

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

GANTS, C.J.

474 Mass. 676

In this appeal, we consider whether the Attorney General properly certified an initiative petition proposing a new law that would prohibit (1) confinement of egg-laying hens, calves raised for veal, and breeding pigs on a commercial farm “in a cruel manner,” i.e., under conditions that prevent them from lying down, standing up, fully extending their limbs, or turning around freely; and (2) the sale by any business within the Commonwealth of “shell” eggs, “whole veal meat,” and “whole pork meat” that the business owner or operator “knows or should know” was produced from animals so confined. The plaintiffs contend that this initiative petition was not properly certified because the animal confinement restriction and the prohibition against sale are not related or mutually dependent subjects, and because the petition is not in “proper form” insofar as it contains a statement of purpose that does not constitute a “law” to be voted upon by the people. 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 subjects contained in the petition are sufficiently related to meet the requirements of art. 48, and that the brief statement of purpose in the proposed measure does not render it unfit for submission to the voters. We therefore conclude that the initiative petition was properly certified by the Attorney General.

Background. In August, 2015, the Attorney General received a signed initiative petition entitled “An Act to prevent cruelty to farm animals,” which she numbered as Initiative Petition 15–11 (petition 15–11 or petition). The petition contains two principal provisions, which we shall refer to as the “farm provision” and the “sales provision.”

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The farm provision, contained in section 2 of the petition, would make it “unlawful for a farm owner or operator within the Commonwealth of Massachusetts to knowingly cause any covered animal to be confined in a cruel manner.” “Covered animal” is defined in section 5(D) as “any breeding pig, calf raised for

474 Mass. 677

veal, or egg-laying hen that is kept on a farm.”³ “Confined in a cruel manner” is defined in section 5(E) as “confined so as to prevent a covered animal from lying down, standing up, fully extending the animal's limbs, or turning around freely.”⁴

The sales provision, contained in section 3 of the petition, would make it “unlawful for a business owner or operator to knowingly engage in the sale within the Commonwealth of Massachusetts of any:

“(A) Shell egg that the business owner or operator knows or should know is the product of a covered animal that was confined in a cruel manner.

“(B) Whole veal meat that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner.

“(C) Whole pork meat that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner, or is the meat of the immediate offspring of a covered animal that was confined in a cruel manner.”⁵

“Sale,” as defined in the proposed measure, refers only to commercial sales by a business.⁶ The sales provision is not limited to the sale of eggs, veal, and pork from Massachusetts farms; the

474 Mass. 678

sale of such products would be barred regardless of the location of the farms that produced the eggs, veal, and pork. Under section 7, the proposed law would provide a defense for business owners and operators who rely “in good faith upon a written certification or guarantee by the supplier” that the eggs, veal, or pork at issue did not come from animals confined in a cruel manner.

Section 6 of the proposed law confers sole enforcement authority on the Attorney General, who is authorized to seek civil fines of up to $1,000 per violation, as well as injunctive relief. Under section 10, the Attorney General would also be responsible for promulgating, by January 1, 2020, rules and regulations to implement the new law. The law's operative provisions would take effect, pursuant to section 11, on January 1, 2022.

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On September 2, 2015, the Attorney General certified to the Secretary of the Commonwealth (Secretary) that the measure proposed in petition 15–11

“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 April 25, 2016, the plaintiffs 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 sought declarations that petition 15–11 fails to meet the requirements of art. 48 and that the Attorney General erred in certifying it, and further requested a direction that the Secretary take no further steps to advance the petition or submit it to the voters. A single justice of the county court reserved and reported the case to this court.

Discussion. When a new law is proposed by initiative petition, it cannot be presented to the Legislature and the voters for their consideration unless and until the Attorney General reviews it and certifies that it meets the requirements of art. 48 of the Amendments to the Massachusetts Constitution. See art. 48, The Initiative, II, § 3, as amended by art. 74. The plaintiffs contend that the Attorney General's certification of petition 15–11 was

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improper because the petition does not meet two of art. 48's requirements: (1) that a proposed measure “contain[ ] only subjects ... which are related or which are mutually dependent” (related subjects requirement); and (2) that the proposed measure be “in proper form for submission to the people” (proper form requirement). Id. We review the Attorney General's certification decision de novo, bearing 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 v. Attorney Gen., 468 Mass. 478, 487, 11 N.E.3d 574 (2014), quoting Carney v. Attorney Gen., 451 Mass. 803, 814, 890 N.E.2d 121 (2008) (Carney II ).⁷

1. Related subjects requirement. The related subjects requirement in art. 48 was adopted during the constitutional convention of 1917–1918 in response to delegates' concerns about voter confusion and the dangers of “log-rolling” in the initiative process, i.e., the “practice of including several propositions in one measure or proposed constitutional amendment so that the ... voters will pass all of them, even though these propositions might not have passed if they had been submitted separately.” Carney v. Attorney Gen., 447 Mass. 218, 219 n. 4, 850 N.E.2d 521 (2006) ( Carney I ), quoting Black's Law Dictionary 960 (8th ed. 2004). See Carney I, supra at 227–228, 850 N.E.2d 521 ; 2 Debates in the Massachusetts Constitutional Convention 1917–1918 at 12, 537, 567, 701–702 (1918) (Constitutional Debates).⁸ To prevent initiative petitions

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from being exploited in this manner, the delegates considered potential limitations on their subject matter. See Carney I, supra; Constitutional Debates, supra at 537, 856–857. One delegate offered an amendment to require that “[n]o proposed law shall contain more than one subject,” which another delegate proposed modifying to state that a proposed law “shall not contain unrelated subjects.” See Carney I, supra; Constitutional Debates, supra at 856–857. This modified amendment was adopted by the convention, and,

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after some reworking by the committee on form and phraseology, ultimately was approved as the provision in art. 48, The Initiative, II, § 3, requiring the Attorney General to certify that a proposed measure “contains only subjects ... which are related or which are mutually dependent.” See Carney I, supra; Constitutional Debates, supra at 953, 1051.

In light of this history, there is no single “bright-line” test for...