Massachusetts Public Interest Research Group v. Secretary of Com.

• Decision Date: 20 April 1978
• Citation: 375 N.E.2d 1175,375 Mass. 85
• Parties: MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP et al. v. SECRETARY OF the COMMONWEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1175

375 N.E.2d 1175

375 Mass. 85

MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP et al. v. SECRETARY OF the COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued Feb. 17, 1978.

Decided April 20, 1978.

Robert J. Gaines, Cambridge (Charles Harak, Newton, with him), for plaintiffs.

Leo S. McNamara, Asst. Atty. Gen., for Secretary of Com.

Robert G. Bleakney, Jr., James S. Rogers, C. Duane Aldrich and Richard W. Blackburn, Boston, for New England Tel. & Tel. Co., submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

This is an action brought in the Supreme Judicial Court for Suffolk County seeking declaratory and injunctive relief against the enforcement of the county-distribution requirement, embodied in art. 48 of the Amendments to the Constitution of the Commonwealth, General Provisions, II, and read into art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. This requirement restricts the number of signatures that may qualify from any one county on behalf of an initiative or referendum petition to not more than one-quarter of the total number needed to qualify. The plaintiffs question the validity of the county-distribution requirement, the application of which has prevented the Secretary of the Commonwealth (Secretary) from transmitting the plaintiffs' initiative petition to the General Court. Unless it is so transmitted, the initiative question cannot be placed on the November, 1978, election ballot.

The case was submitted to a single justice of this court on a statement of agreed facts and exhibits. The matter was reserved and reported by him to the full bench on the pleadings and the statement of agreed facts and exhibits therein. We conclude that the county-distribution requirement is constitutional, and a declaration to that effect shall be entered.

The relevant constitutional provisions, and the facts of this case, are summarized as follows.

The Popular Initiative

Under the provisions of the Constitution of the Commonwealth, legislative power is vested primarily, but not exclusively, in the General Court. Through the popular initiative and referendum, the power to enact or to repeal certain legislation of Statewide applicability is reserved to the people. The popular initiative is described in the Constitution as "the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection." Art. 48, The Initiative, I.

An initiative petition may propose only measures of Statewide applicability. The Constitution specifically excludes from the initiative process laws whose operation would be restricted to a particular town, city, county or other political division or to particular districts or localities of the Commonwealth. Art. 48, The Initiative, II, § 2.

The procedure for the adoption of a law through a popular initiative is set forth in art. 48, which was proposed at the Constitutional Convention of 1917-1918, and later approved by the electorate at the general election held on November 5, 1918. Under the provisions of that article, any ten qualified voters of the Commonwealth, without regard to their county of residence, may draw up and sign an initiative petition containing the full text of the law proposed by the petition. This petition must be submitted to the Attorney General no later than the first Wednesday in the August next preceding the assembly of the General Court for the session in which it is to be introduced. If the Attorney General certifies that the petition is in the proper form, does not contain excluded matter, and is not substantially the same as any measure that has been submitted to the people at either of the two preceding State elections, the petition may be filed with the Secretary. On receipt of the petition, the Secretary prepares blank signature sheets for the use of subsequent signers, containing a summary of the proposal prepared by the Attorney General, and the names and addresses of the first ten signers. The initiative petition can be filed with the Secretary no earlier than the first Wednesday in September. Art. 48, The Initiative, II, § 3, as amended by art. 74 of the Amendments.

An initiative petition must be signed by a number of qualified voters which is at least equal to three per cent of the entire vote cast for Governor at the preceding gubernatorial election. Art. 48, The Initiative, V, § 1, as amended by art. 81, § 2. The Secretary has determined that, for measures proposed for adoption in 1978, the number of signatures required is 55,644.

Although the fourteen counties of the Commonwealth vary enormously in population and in their numbers of registered voters, ¹ the so called county-distribution rule, art. 48, General Provisions, II, provides that: "Not more than one-fourth of the certified signatures on any petition shall be those of registered voters of any one county." Consequently, for measures proposed by initiative in 1978, no more than 13,911 signatures from any one county may be counted toward the total number of signatures required.

The county-distribution rule limits the number of additional signatures that can be counted from any one county. Using 1977 as an example, not more than one-quarter of the required 55,644 signatures could come from any one county, and once 13,911 valid signatures were collected in any one county, the signatures of additional voters in that county were rendered meaningless by operation of the county-distribution rule.

Prior to the first Wednesday in December, local officials must certify the required number of signatures as valid signatures of registered voters, and the petitioner must file those signatures with the Secretary. Art. 48, The Initiative, II, § 3. See generally, Opinion of the Justices, 370 Mass. ---, --- - --- ^a, 347 N.E.2d 671 (1976). A petition signed by the required number of qualified voters must be transmitted by the Secretary to the clerk of the House of Representatives as soon as the Legislature convenes. Art. 48, The Initiative, II, § 4. If the General Court fails to enact the law proposed by the petition prior to the first Wednesday in May, the petitioners may collect an additional number of signatures to place the proposal on the ballot at the next State election. The additional number of certified signatures necessary for this procedure is equal to one-half of one per cent of the entire vote cast for Governor at the preceding gubernatorial election. Art. 48, The Initiative, V, § 1.

A law proposed by a popular initiative may be enacted by a majority of those voting on the measure, provided that it receives at least thirty per cent of the total number of votes cast at the election. Art. 48, The Initiative, V, § 1. The veto power of the Governor does not extend to measures approved by the people in this manner. Art. 48, General Provisions, V.

The Instant Case

On August 3, 1977, ten qualified voters submitted to the Attorney General a popular initiative petition calling for the enactment of a general law to establish a public corporation, the Telephone Consumers' Action Group, Inc. (TELCAG), which would have the purpose of representing the interests of consumers in the regulation of residential telephone rates and services. The corporation would be required to receive and respond to consumers' grievances in the use of residential telephone service. It would be empowered to represent consumer interests before regulatory boards and in the courts and to compile and disseminate consumer information to the public. The proposal would not affect the authority of the Attorney General to intervene in these proceedings. Funds for the operation of the corporation would be solicited through the telephone company's billing system. Directors of the corporation would be elected by the contributors.

After reviewing the TELCAG petition, the Attorney General certified that it was in the proper form and did not relate to matters of purely local concern or to other excluded subjects. The petition was timely filed with the Secretary who prepared the signature sheets for additional signatures. Between September 22, 1977, and November 30, 1977, supporters of the TELCAG proposal circulated the signature sheets and collected approximately 87,500 signatures. These signatures, which were collected in communities in each of the fourteen counties of the Commonwealth, were timely submitted to the appropriate officials in the cities and towns for certification. Of the 87,500 signatures, 61,676 were certified to be registered voters by the appropriate officials in the various cities and towns. The signature sheets bearing the collected signatures were filed with the Secretary on or before the first Wednesday in December of 1977.

The Secretary did not, however, transmit the petition to the clerk of the House of Representatives. In a letter dated December 14, 1977, addressed to an agent of the petitioners, the Secretary acknowledged receipt of the 61,676 certified signatures, but indicated that, if the county-distribution rule were applied, only 54,528 could be allowed. Subsequently, by letter dated January 5, 1978, the Secretary informed the first ten signers that he would not count more than 13,911 signatures from any one county and that he was rejecting the petition on the ground that only 54,528 signatures could be allowed.

The Secretary disallowed 5,353 signatures from Middlesex County and 1,795 signatures from Suffolk County. As a result, the petition fell 1,116 signatures short of the 55,644 required for transmittal to the General Court.

In his letter of January 5, 1978, the Secretary expressed his belief that the county-distribution requirement was unconstitutional, but that he did not have the power to transmit the petition to the General Court until the courts so ruled. ² On January 6, 1978, the plaintiffs commenced this action...