Koussa v. Attorney Gen.
| Docket Number | SJC-13237 |
| Decision Date | 14 June 2022 |
| Parties | MARTIN EL KOUSSA & others [1] v. ATTORNEY GENERAL & others. [2] |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Heard: May 4, 2022.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 18, 2022. The case was reported by Lowy, J.
M Patrick Moore, Jr. (Sarah K. Grossnickle, of Maine, & Thomas O. Bean also present) for the plaintiffs.
Jesse M. Boodoo, Assistant Attorney General, for the Attorney General.
Thaddeus Heuer (Andrew M. London & Seth Reiner also present) for the interveners.
The following submitted briefs for amici curiae:
Sarah David Heydemann & Sunu P. Chandy, of the District of Columbia, Rebecca G. Pontikes, & Lori A. Jodoin for National Women's Law Center & others.
Lydia Edwards for Matahari Women Workers' Center.
Michael J. Holecek, of California, & Joshua S. Lipshutz for Jon Paul Prunier & others.
John Pagliaro & Daniel B. Winslow for New England Legal Foundation.
Gary J. Lieberman for Chamber of Progress.
Kevin P. Martin & William E. Evans for Chamber of Commerce of the United States of America.
Sally Dworak-Fisher & Matthew J. Ginsburg, of the District of Columbia, & Audrey Richardson for American Federation of Labor and Congress of Industrial Organizations & others.
Michael J. Adame, of California, Elsa C.W. Haag, of Oregon, & Jonathan B. Miller for Public Rights Project & others.
Shannon Liss-Riordan & Anastasia Doherty for Massachusetts Employment Lawyers Association.
Adam Cederbaum, Corporation Counsel, & Randall Maas, Assistant Corporation Counsel, for city of Boston.
Harold P. Naughton for Massachusetts Budget and Policy Center.
Jennifer G. Miller for William Good & others.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The plaintiffs, twelve voters registered in Massachusetts, challenge the Attorney General's certifications of two initiative petitions, each proposing "A Law Defining and Regulating the Contract-Based Relationship Between Network Companies and App-Based Drivers." The plaintiffs contend that these petitions violate the requirement under art. 48 of the Amendments to the Massachusetts Constitution that initiative petitions must contain only related or mutually dependent subjects. The plaintiffs also object to the Attorney General's summaries of the proposed laws, arguing that they are not "fair" for purposes of art. 48 because the summaries do not adequately explain how the petitions, if approved by the voters, would change existing law.
We conclude that the petitions contain at least two substantively distinct policy decisions, one of which is buried in obscure language at the end of the petitions, and thus fail art. 48's related subjects requirement. As such, the Attorney General's decision to certify the petitions was in error, and accordingly the petitions may not be placed on the ballot. [3]
Background.
In August 2021, two initiative petitions signed by at least ten registered Massachusetts voters were filed with the Attorney General. The Attorney General designated them as Initiative Petitions 21-11 and 21-12. The two petitions each propose laws that are identical, except that Initiative Petition 21-11 includes an additional section relating to paid driver safety training.
The declared purpose of the petitions is to "define and regulate the contract-based relationship" between a specified category of business entities termed "network companies" and a category of workers termed "app-based drivers." Network companies, as defined in the petitions, comprise "Delivery Network Compan[ies]" (DNCs), which maintain online-enabled applications or platforms that connect couriers to customers to arrange and provide delivery services, and "Transportation network compan[ies]" (TNCs), which are rideshare companies that use a digital network to connect riders to drivers to arrange and provide transportation services. [4] The category of app-based drivers under the proposed laws covers those couriers for DNCs and drivers for TNCs who provide delivery and transportation services under certain specified conditions of independence from the network companies. [5]
The laws proposed by the petitions each contain a provision that would classify any covered app-based driver as "an independent contractor and not an employee or agent" of a network company "for all purposes with respect to his or her relationship with the network company," "[n]otwithstanding any other law to the contrary" (first classification provision) --that is, regardless of the classification of app-based drivers under existing law. The proposed laws also specify a minimum level of compensation that network companies must pay to app-based drivers, calculated based on the total amount of a driver's "engaged time" or time spent fulfilling delivery or transportation requests. The proposed laws further specify various benefits that network companies must provide or make available to app-based drivers, including a health care stipend for drivers who meet a certain minimum of average engaged time per week, earned paid sick time, contributions to drivers' coverage under the paid family and medical leave (PFML) program established by G. L. c. 175M, and occupational accident insurance covering drivers' medical expenses, disability payments, and death benefits. The proposed laws would also provide app-based drivers with some form of protection against invidious discrimination by prohibiting network companies from refusing to contract with or terminating the contract of a driver based on certain protected characteristics. Initiative Petition 21-11, although not Initiative Petition 21-12, includes additional provisions requiring network companies to mandate driver safety training for the app-based drivers who contract with them, while also requiring network companies to compensate drivers for the time taken to complete the training.
Finally, both the proposed laws include a provision, placed in their respective final substantive sections, directing that "[n]otwithstanding any general or special law to the contrary, compliance with the provisions of [the proposed laws] shall not be interpreted or applied, either directly or indirectly, in a manner that treats network companies as employers of app-based drivers, or app-based drivers as employees of network companies" (second classification provision). The same sections include a further provision instructing that "any party seeking to establish that a person is not an app-based driver bears the burden of proof" (burden-of-proof provision).
In September 2021, the Attorney General certified both petitions as compliant with the requirements of art. 48 and issued summaries of the petitions as required under art. 48, The Initiative, II, § 3, art. 74 of the Amendments. These summaries make no mention of the second classification provision or the burden-of-proof provision. By December 2021, the petitioners had timely gathered and filed sufficient signatures to require the Secretary of the Commonwealth to transmit the petitions to the Legislature, which the Secretary then did.
In January 2022, the plaintiffs commenced this action in the county court, claiming that the Attorney General's certifications of the petitions were in error because the petitions did not, as required by art. 48, contain only related or mutually dependent subjects. The plaintiffs also challenged the summaries issued by the Attorney General, contending that they were not "fair" for art. 48 purposes.
In February 2022, ten of the original signers of the petitions filed a motion to intervene as defendants, [6] which the single justice allowed. On the joint motion of the parties and a statement of agreed facts, the single justice then reserved and reported the case to the full court.
Discussion.
Before an initiative petition can be presented to the Legislature and then to the voters, the Attorney General must certify that it meets the requirements of art. 48. See Oberlies v. Attorney Gen., 479 Mass. 823, 829 (2018); art. 48, The Initiative, II, § 3, art. 74. We review de novo the Attorney General's decisions as to whether to certify an initiative petition. Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014), citing Mazzone v. Attorney Gen., 432 Mass. 515, 520 (2000) .
Under art. 48, a measure proposed by an initiative petition must "contain[] only subjects . . . which are related or which are mutually dependent." Art. 48, The Initiative, II, § 3, art. 74. This related subjects requirement arises from a recognition that "a voter, unlike a legislator, 'has no opportunity to modify, amend, or negotiate the sections of a law proposed by popular [initiative].'" Anderson v. Attorney Gen., 479 Mass. 780, 786 (2018), quoting Carney v. Attorney Gen., 447 Mass. 218, 230 (2006), S.C., 451 Mass. 803 (2008). Because "a voter cannot 'sever the unobjectionable from the objectionable' and must vote to approve or reject an initiative petition in its entirety," Anderson, supra, quoting Carney, supra, the related subjects requirement serves to ensure that voters are not placed "in the untenable position of casting a single vote on two or more dissimilar subjects," Weiner v. Attorney Gen., 484 Mass. 687, 691 (2020), quoting Abdow, 468 Mass. at 499. See Carney, supra at 220 ("the aggregation of . . . 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").
We have interpreted the related subjects...
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