Weiner v. Attorney Gen.

• Decision Date: 26 May 2020
• Docket Number: SJC-12885
• Parties: Benjamin Locke WEINER & others v. ATTORNEY GENERAL & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 687

144 N.E.3d 886

Benjamin Locke WEINER & others¹

v.ATTORNEY GENERAL & another.²

SJC-12885

Supreme Judicial Court of Massachusetts, Suffolk..

Argued April 6, 2020

Decided May 26, 2020

Robert J. Cordy for the plaintiffs.

Juliana deHaan Rice, Assistant Attorney General (Anne Sterman & Kendra Kinscherf, Assistant Attorneys General, also present) for the defendants.

The following submitted briefs for amici curiae: Kevin P. Martin & Joshua J. Bone for Wine & Spirits Wholesalers of Massachusetts, Inc.

David Hadas for Beer Distributors of Massachusetts, Inc.

Thomas R. Kiley, Carl Valvo, Meredith G. Fierro, & Matthew T. Durand for Cumberland Farms, Inc., & another.

John Sofis Scheft for Massachusetts Prevention Alliance & another.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

On or before August 7, 2019, an initiative petition signed by at least ten registered voters, entitled "An Initiative Petition for a Law Relative to the Sale of Beer and Wine by Food Stores," was submitted to the Attorney General and numbered by her as Initiative Petition 19-14. On September 4, 2019, the Attorney General certified to the Secretary of the Commonwealth (Secretary) that Initiative Petition 19-14 was in proper form for submission to the people; that it was not, either affirmatively or negatively, substantially the same as any measure that was qualified for submission or submitted to the people at either of the two preceding biennial State elections; and that it contained only subjects that are related or are mutually dependent and that are not excluded from the initiative process pursuant to art. 48, The Initiative, II, § 2, of the Amendments to the Massachusetts Constitution. In accordance with the requirements of art. 48, the Attorney General prepared a "fair, concise summary" of the measure proposed by Initiative Petition 19-14 and transmitted that summary to the Secretary with the September 4 certification letter. The proponents of Initiative Petition 19-14 then filed it with the Secretary. Following receipt of the summary and certification from the Attorney General, the Secretary prepared blank signature collection forms and provided them to proponents for circulation to members of the public. On December 20, 2019, the Secretary's elections division sent a letter informing the proponents of Initiative Petition 19-14 that they had submitted a sufficient number of certified signatures pursuant to art. 48, The Initiative, II, § 3, as amended by art. 74 of the Amendments, and art. 48, The Initiative, IV, § 2. The Secretary submitted Initiative Petition 19-14 to the clerk of the House of Representatives on January 1, 2020. See 2020 House Doc. No. 4303.

Thereafter, seven registered voters of the Commonwealth commenced an action in the county court, challenging the Attorney General's certification of Initiative Petition 19-14; alleging that the measure was not in compliance with the requirement that an initiative petition "contain[ ] only subjects ... which are related or which are mutually dependent," art. 48, The Initiative, II, § 3, as amended by art. 74, and that the measure included a "specific appropriation" in violation of art. 48, The Initiative, II, § 2; and requesting that the Secretary be enjoined from placing the measure on the ballot. A single justice reserved and reported the case to the full court on a statement of agreed facts. We conclude that Initiative Petition 19-14 neither contains unrelated subjects nor includes a specific appropriation and that the Attorney General's certification therefore complied with art. 48.³

The proposed law. General Laws c. 138, §§ 15 and 15A, govern the retail sale of alcoholic beverages for consumption off the premises, for example, by package stores.⁴ Most licenses for such sales are granted by cities and towns, subject to the approval of the alcoholic beverages control commission (commission). See G. L. c. 138, § 15. In most cities and towns, the number of available licenses for the sale of alcoholic beverages, whether to be consumed on or off premises, is set by a quota system based on the municipality's population. G. L. c. 138, § 17. Currently, no one person, corporation, or other entity may hold more than nine off-premises licenses (per-entity limit). G. L. c. 138, § 15, as amended through St. 2011, c. 193.

If passed into law, section 1 of Initiative Petition 19-14 would amend G. L. c. 138 by adding § 15D, which would create a new type of license, known as a "food store license," allowing the sale, for consumption off the premises, of wine and malt beverages⁵ by retail food stores. Food stores eligible for such licenses are defined in section 1 of the measure by reference to other State and Federal laws. The number of these food store licenses to be granted would be "at the sole discretion of each local licensing authority"; food store licenses would be subject neither to existing local quotas for off-premises licenses nor to the per-entity limit. Moreover, Initiative Petition 19-14 would also amend § 15 to gradually increase, and eventually eliminate, the per-entity limit on off-premises licenses.

Section 1 of Initiative Petition 19-14 would also add a new § 15C to G. L. c. 138. The proposed § 15C would impose new procedures to prevent the sale of alcohol to persons under twenty-one years of age. Under current law, although retailers face criminal penalties if they sell alcohol to any person under twenty-one years of age, G. L. c. 138, § 34, they are not obligated to use any particular means to verify the age of any person purchasing alcohol.⁶ The proposed § 15C would require all off-premises retailers, whether food stores or package stores, to demand certain forms of identification as proof of age for any sale. Eventually, under sections 2 and 11 of Initiative Petition 19-14, off-premises retailers would be required to check identification using a barcode scanner or "such other comparable technology as may be approved by the commission."

Finally, the measure would provide for additional resources for the enforcement of the laws concerning alcoholic beverages. Section 8 of Initiative Petition 19-14 would establish "a separate fund which, subject to appropriation, shall consist of all monies required to be paid into the state treasury under [§§] 27 and 62 of said chapter 138 and which, subject to appropriation, shall be expended by the commission first for the implementation of this Act and second for the ongoing administration and enforcement of said chapter 138 generally." Under section 9 of the petition, the commission would be required to employ at least one investigator for every 250 off-premises retail licenses granted under § 15 or § 15D, again subject to appropriation.

Standard of review. As noted, the Attorney General certified that Initiative Petition 19-14 was in compliance with art. 48. We review that determination de novo. See, e.g., Abdow v. Attorney Gen., 468 Mass. 478, 487, 11 N.E.3d 574 (2014). At the same time, "we acknowledge ‘the firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.’ " Id., quoting Carney v. Attorney Gen., 451 Mass. 803, 814, 890 N.E.2d 121 (2008) ( Carney II ). See Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199, 355 N.E.2d 806 (1976) (art. 48 establishes "people's process").

Relatedness. Article 48, The Initiative, II, § 3, as amended by art. 74, requires the Attorney General to certify that a proposed measure "contains only subjects ... which are related or which are mutually dependent" before the measure can be placed on the ballot. The plaintiffs argue that Initiative Petition 19-14 contains four distinct subjects that they argue are unrelated to each other: the creation of food store licenses; the reduction and eventual elimination of the per-entity limit on all off-premises licenses under G. L. c. 138, § 15 ; the new age-verification requirements; and the increase in funding for enforcement by the commission. We disagree. In our view, these subjects are all operationally related, as we shall explain.

"There is no single ‘bright-line’ test for determining whether an initiative meets the related subjects requirement." Hensley v. Attorney Gen., 474 Mass. 651, 657, 53 N.E.3d 639 (2016), citing Abdow, 468 Mass. at 500, 11 N.E.3d 574. We have said that "the related subjects requirement is met where ‘one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane.’ " Hensley, supra, quoting Abdow, supra at 499, 11 N.E.3d 574. This purpose "may not be so broad as to render the relatedness limitation ‘meaningless.’ " Carney v. Attorney Gen., 447 Mass. 218, 225, 850 N.E.2d 521 (2006) ( Carney I ), quoting Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 219, 424 N.E.2d 469 (1981). "At some high level of abstraction, any two laws may be said to share a ‘common purpose.’ " Carney I, supra at 226, 850 N.E.2d 521. "[R]elatedness cannot be defined so broadly that it allows the inclusion in a single petition of two or more subjects that have only a marginal relationship to one another, which might confuse or mislead voters, or which could place them in the untenable position of casting a single vote on two or more dissimilar subjects." Abdow, supra, citing Carney I, supra at 224-232, 850 N.E.2d 521. At the same time, if we construe the relatedness requirement too strictly, we risk limiting initiative petitions to a single subject, a requirement rejected by the constitutional convention that approved art. 48. See Abdow, supra, citing Massachusetts Teachers Ass'n, supra at 219-220, 424 N.E.2d 469 & nn.9, 10. This would "frustrate the ability of voters to use the popular initiative as ‘the people's process’ to bring important matters of concern directly to the electorate." Abdow, supra. We therefore balance these considerations by asking two...