Henry v. Connolly, Civ. A. No. 90-11767-K.

• Decision Date: 24 July 1990
• Docket Number: Civ. A. No. 90-11767-K.
• Citation: 743 F. Supp. 922
• Parties: Constance Sherbill HENRY, Ann Wilcox, Richard C. Covino, Brian Keith Charlson, Kristin M. Palace, Amy Goldsmith, Ellen Citron, and Amy Perry, Plaintiffs, v. Michael J. CONNOLLY, as he is the Secretary of State of the Commonwealth of Massachusetts, Defendant, and Loretta A. Capezzuto and Massachusetts Committee for Responsible Waste Management, Intervenor-Defendants.
• Court: U.S. District Court — District of Massachusetts

743 F. Supp. 922

Constance Sherbill HENRY, Ann Wilcox, Richard C. Covino, Brian Keith Charlson, Kristin M. Palace, Amy Goldsmith, Ellen Citron, and Amy Perry, Plaintiffs, v. Michael J. CONNOLLY, as he is the Secretary of State of the Commonwealth of Massachusetts, Defendant and Loretta A. Capezzuto and Massachusetts Committee for Responsible Waste Management, Intervenor-Defendants.

Civ. A. No. 90-11767-K.

United States District Court, D. Massachusetts.

July 24, 1990.

Kenneth Luke Kimmell, Charles C. Caldart, Public Interest Litigation Project, Boston, Mass., for plaintiffs.

James Shannon, Eric J. Mogilnicki, Asst. Atty. Gen., Boston, Mass., for defendant.

Ferriter, Scobbo, Sikora, Caruso, Rodophele, Robert Rodophgle, Boston, Mass., for intervenor-defendants.

OPINION

KEETON, District Judge.

In Capezzuto v. State Ballot Law Commission, 407 Mass. 949, 556 N.E.2d 366 (1990) (hereinafter the "SJC Opinion"), the Supreme Judicial Court ("SJC") unanimously held that

the full text of the initiative petition in question Initiative Petition 89-39 ("An Act to Promote Environmentally Acceptable Product Packaging," hereinafter "the Recycling Initiative") was not subscribed to by ten qualified voters as required by Mass. Const., Amend. art. 48, The Initiative, II, §§ 1 and 3, and consequently, the petition should not have been certified by the Attorney General or filed with the Secretary of the Commonwealth.

Id. at 957, 556 N.E.2d 366. See also SJC's Order (reproduced at Plaintiffs' Appendix of Exhibits, exhibit A, page 1 (Docket No. 4, filed July 17, 1990)) (same text). The Secretary of State has indicated that he will comply with the order of the SJC and will not include the Recycling Initiative on the November 1990 Massachusetts Ballot. Plaintiffs, complaining that this decision violates their rights under the First and Fourteenth Amendments of the United States Constitution, seek an order compelling the Secretary to place the Recycling Initiative on the November 1990 ballot, an order permanently enjoining the Secretary from applying the SJC's Opinion to future initiative campaigns, and attorney's fees.

The parties report that time is of the essence. The Secretary seeks final disposition of this case, including any appellate review, by August 9, 1990, in order to allow sufficient time to prepare and publish the Massachusetts Voter Pamphlet. To expedite final disposition of plaintiffs' claims in the district court, the parties agreed at a hearing on July 18, 1990, the day after this action was filed, to forego a ruling on the Application for Temporary Restraining Order and Motion for Preliminary Injunction (Docket No. 2, filed July 17, 1990) and instead to proceed immediately to trial. Accordingly, the court called this case for trial on July 20, 1990.

Pursuant to the Agreed Statement as to Exhibits and Facts (Docket No. 18, filed July 20, 1990), the parties jointly filed as evidence in this case parts of the record of the case argued before the State Ballot Law Commission ("BLC" or "Commission") and the SJC, numerous affidavits, and assorted other materials. Trial Exhibit 1 (except for tabs 6, 7 and 8, which were offered separately as Trial Exhibit 3, see infra). Plaintiff has also filed a Supplemental Affidavit of Amy Perry to which defendant-intervenors object, but defendant does not. Trial Exhibit 2. Finally, defendant-intervenors have filed three additional documents as Trial Exhibit 3 — a copy of a Boston Globe advertisement, a sample Initiative Petition, and a copy of House Bill 4456, which is pending before the Massachusetts House of Representatives — to which plaintiff conditionally objects unless the court receives the Perry Supplemental Affidavit offered as Trial Exhibit 2. I took these objections under advisement along with the case. No other evidence was proffered by any party.

In this Opinion, I set forth undisputed facts and conclusions of law central to deciding this controversy. Fed.R.Civ.P. 52(a). For the reasons explained in this Opinion, I conclude that judgment must enter for the defendant and intervenor-defendants.

I. Procedural History

The legislative power of the Commonwealth of Massachusetts is typically vested in the General Court. Mass. Const., Pt. 2, Ch. I. Article 48 of the Amendments to the Massachusetts Constitution (hereinafter "Article 48"), however, reserves to the people the power to approve a "popular initiative, which is the power of a specified number of voters to submit ... laws to the people for approval or rejection." Id., Amend. Art. 48, Pt. I, Def. That article of amendment, as amended, also governs the procedure for placing an initiative on the ballot:

Section I. Contents. — An initiative petition shall set forth the full text of the ... law, hereinafter designated as the measure, which is proposed by the petition....

Section 3. Mode of Originating. — Such petition shall first be signed by ten qualified voters of the commonwealth and shall be submitted to the attorney-general not later than the first Wednesday of the August before the assembling of the general court into which it is to be introduced, and if he shall certify that the measure ... is in proper form for submission to the people ..., it may then be filed with the secretary of the commonwealth. The secretary of the commonwealth shall provide blanks for the use of subsequent signers, and shall print at the top of each blank a fair, concise summary, as determined by the attorney-general, of the proposed measure....

Id., Amend. Art. 48, Init., Pt. II, §§ 1, 3 (as amended by id., Amend. Art. 74, § 1) (emphasis added). If a certain number of voters thereafter sign the petition blanks provided by the Secretary — in this case, 50,525 voters in the first round and an additional 8,421 voters in the second round — "then the secretary of the commonwealth shall submit such proposed law to the people at the next state election." Id., Amend. Art. 48, Init., Pt. V, § 1 (as amended by id., Amend. Art. 81, § 2).

The Recycling Initiative was purportedly signed by nineteen Massachusetts voters and was filed with the Attorney General on August 2, 1989. The Attorney General thereafter certified that the petition was in proper form for submission to the people and filed the petition with the Secretary. Intervenor Capezzuto, disagreeing with the Attorney General's determination, filed an objection with the BLC asserting, inter alia, that the petition had not been signed by ten qualified voters of the Commonwealth. After a hearing, the Commission overruled the objection based on its determination that the petition had been properly signed by twelve qualified voters. Because the Commission held that twelve qualified voters had signed the petition, the Commission "declined to find facts regarding the other seven signers." Capezzuto v. Perry, State Ballot Law Commission Docket No. 89-1, slip op. at 10-13, 11 n. 1 (October 12, 1989) (hereinafter "BLC Opinion," reproduced at exhibit B to Appendix of Exhibits, Docket No. 4).

On October 17, 1989, Capezzuto appealed the Commission's ruling to the Superior Court. That appeal was transferred to the SJC in April 1990, consolidated with another case, and argued to the Justices on May 10, 1990. On July 11th, the SJC ruled that three of the twelve signers — plaintiffs Goldsmith and Citron, and Armando Carbonell — had not "subscribed to" (the phrase appearing in the SJC's Opinion, 407 Mass. at 957, 556 N.E.2d 366, and Order) or "signed" (the term used in Article 48, The Initiative, Part II, Section III, and at various points in the SJC Opinion) the "full text" of "such petition" as required by Article 48. The validity of the other seven signatures was not before the court, but it is clear from the undisputed facts, as explained below, that these seven signatures were even more vulnerable to attack than those of Citron and Goldsmith. The SJC concluded that the initiative could not be placed on the November 1990 ballot.

II. Factual Predicate

The SJC reviewed deferentially the facts as found by the Commission (although, of course, conclusions of law, including mixed fact-law determinations, were reviewed de novo) and found that the evidence supported the Commission's factual findings. SJC Opinion, 407 Mass. at 952, 556 N.E.2d 366. See generally BLC Opinion, slip op. at 4-9; SJC Opinion, 407 Mass. at 952-54, 556 N.E.2d 366; Agreed Statement of Facts, Trial Exhibit 1, Tab 1, pp. 650-64. The parties do not dispute these findings, which I adopt as the findings of this court.

Plaintiff Perry, the principal drafter of the petition, produced a first draft of the petition on July 28, 1989. She sent that draft, along with a cover letter inviting comments, to eighteen other people, including plaintiffs Goldsmith and Citron.

On August 1, 1989, Perry sent a signature page to each of these eighteen people. Nine of the twelve whose signatures were validated by the Commission — including plaintiffs Perry, Citron, and Goldsmith — signed the signature page on August 1st after receiving the first draft of the petition. The other three — Alexander, Pines, and Carbonell — signed the signature page sometime on August 2nd, the filing deadline date for initiatives for the 1990 ballot.

In response to comments that Perry received, she prepared a second draft on August 2, 1989. This draft was "substantially different from the July 28 draft." BLC Opinion, slip op. at 5. Perry faxed copies of this second draft to eight other signers, but not to Goldsmith or Citron. Thus, only nine persons, including Perry, actually received a copy of the second draft.

Later on August 2nd, Perry orally described to Goldsmith and Citron the substantive changes that had been incorporated into the second draft. Perry offered to read those changes verbatim to Goldsmith, but Goldsmith declined, stating that she was accepting the changes as described to her by Perry. Citron, too, stated that she understood the changes, and that sh...