Yankee Atomic Elec. Co. v. Secretary of Com.

• Citation: 526 N.E.2d 1246,403 Mass. 203
• Parties: YANKEE ATOMIC ELECTRIC COMPANY, et al. 1 v. SECRETARY OF the COMMONWEALTH et al. 2 Supreme Judicial Court of Massachusetts, Suffolk
• Decision Date: 11 August 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1246

526 N.E.2d 1246

403 Mass. 203

YANKEE ATOMIC ELECTRIC COMPANY, et al. ¹ v. SECRETARY OF the COMMONWEALTH et al. ² Supreme Judicial Court of Massachusetts Suffolk.

Argued May 5, 1988.

Argued Aug. 3, 1988.

Decided Aug. 11, 1988.

Thomas R. Kiley, Robert E. Sullivan, Laurie S. Gill and David R. Friedman, Boston, for plaintiffs.

James M. Shannon, Atty. Gen., Thomas A. Barnico and Paul A. Lazour, Asst. Attys. Gen., for Secretary of the Com. and another.

Ellen J. Messing, Boston, for Christopher J. Hodgkins and others, interveners.

William S. Stowe, Boston, for Boston Edison Co., amicus curiae.

Patrick W. Hanifin and Wayne S. Henderson, Boston, for New England Legal Foundation, amicus curiae.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiffs filed a complaint in the Supreme Judicial Court for Suffolk County seeking relief in the nature of certiorari and mandamus respectively against the Attorney General and the Secretary of the Commonwealth in their official capacities. The plaintiffs challenge the Attorney General's certification of an initiative petition pursuant to art. 48 of the Amendments to the Constitution of the Commonwealth. Art. 48, The Initiative, II, § 3. ³ The petition, entitled "The Stop Nuclear Waste Act" by its proponents, would, after July 4, 1989, prohibit "generation of electric power by commercial nuclear power plants in the Commonwealth by means which result in the production of nuclear waste." The plaintiffs also seek to prevent the Secretary of the Commonwealth from having the initiative measure placed on the ballot in the upcoming State election. See art. 48, The Initiative, IV, § 5. The single justice reserved and reported the case for consideration by the full court on the parties' motion.

The plaintiffs maintain that the petition, if enacted, would constitute a "taking" of the property of plaintiff Yankee Atomic Electric Company and one other electric utility within the Commonwealth, and that the Attorney General is therefore required under art. 48 to decline to certify the initiative petition for a place upon the ballot.

This is the second decision and opinion of this court relating to this controversy. On July 7, 1988, this court's opinion in Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 525 N.E.2d 369 (1988) (Yankee One), ordered the Attorney General to make an examination of the facts relating to the initiative petition. The court stated that the Attorney General's duty under the Massachusetts Constitution, art. 48, The Initiative, is to certify proposed initiative petitions, and this duty requires the Attorney General to determine, among other things, whether the petition contains matter excluded from the initiative process by art. 48, The Initiative, II, § 2. ⁴ Among the matters thus excluded from the initiative are propositions inconsistent with the right to receive compensation for private property appropriated to public use. In response to the plaintiffs' argument that the Attorney General is required to make a factual investigation and analysis in order to determine whether the proposed initiative should be excluded from the ballot, the court stated that the factual examination required of the Attorney General is limited to matters implicit in the language of the petition and to matters of which the Attorney General may properly take official notice. The court, in defining official notice, stated: "Factual matters which are 'indisputably true' are subject to judicial notice; these include '[m]atters of common knowledge or observation within the community.' ... Official notice includes matters subject to judicial notice, as well as additional items of which an agency official may take notice due to the agency's established familiarity with and expertise regarding a particular subject area." (Citations omitted). Yankee One, supra at 759 n. 7, 525 N.E.2d 369.

In Yankee One, in ordering that the Attorney General must make the limited factual examination as defined by the court, we further stated that if it is the Attorney General's decision to affirm his certification after factual examination, the certification shall be considered to be valid ab initio. Id. at 759-760, 525 N.E.2d 369. We also directed that the county court was to retain jurisdiction of this case, and that the single justice in his discretion was to enter orders to expedite the proceedings. Id. at 760, 525 N.E.2d 369. Subsequently, pursuant to a time schedule ordered by the single justice by agreement of the parties, the Attorney General on July 19, 1988, filed in the county court a copy of his letter of that date to the Secretary of the Commonwealth in which the Attorney General affirmed his certification of the petition. Subsequently, the single justice reported the case back to the full court without decision. ⁵

The Attorney General in his letter of July 19, 1988, stated: "In reexamining the validity of the petition I have considered those facts implied by the petition's language and those officially noticeable. Id. at 759, 525 N.E.2d 369. I have also reviewed facts proffered and arguments submitted by the proponents and opponents of the petition." He then stated all the facts which he had considered in affirming his original decision that the petition does not establish, on its face, that it effects a regulatory taking. ⁶

In assessing the Attorney General's conclusion that, on consideration of the pertinent facts, the petition does not, on its face, establish a regulatory taking, we undertake de novo review. Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 230 n. 18, 424 N.E.2d 469 (1981). See, e.g., Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 248-253, 69 N.E.2d 115 (1946) (court engages in de novo review in considering whether petition contains excluded matter); Horton v. Attorney Gen., 269 Mass. 503 511-512, 169 N.E. 552 (1929) (same). Similarly, in considering what facts are implicit in the petition's language or are subject to judicial notice, see Yankee One, supra at 759 & n. 7, 525 N.E.2d 369, we are not bound by the Attorney General's determinations. However, in assessing the extent of the facts subject to his official notice, see id., we will defer to the Attorney General's reasonable determinations. See Massachusetts Teachers Ass'n, supra at 230, 424 N.E.2d 469. Cf. Beth Israel Hosp. Ass'n v. Board of Registration in Medicine, 401 Mass. 172, 176, 515 N.E.2d 574 (1987) ("all presumptions are in favor of the validity of agency action ... [and] agencies have leeway in interpreting statutes they enforce").

Guided by our description in Yankee One of the limited factual examination required of the Attorney General, we first consider whether there are facts implicit in the petition's language or facts subject to judicial notice, i.e., indisputable facts or matters of common knowledge, which the Attorney General should have considered and did not. In our view there are no such facts. The Attorney General's summary of the facts he considered, supra note 6, contains all the facts which we would consider to be implicit in the petition's language and subject to judicial notice.

Next we determine whether there are further facts of which, in accordance with our directions to him in Yankee One, supra at 759 & n. 7, 525 N.E.2d 369, the Attorney General should have taken official notice "due to [his] established familiarity with and expertise regarding a particular subject area." Beyond question, the person best qualified to determine the extent of his expert knowledge is the Attorney General. In that regard we shall not lightly substitute our view of what are the officially noticeable facts for that of the Attorney General. See Massachusetts Teachers Ass'n, supra at 230, 424 N.E.2d 469. Cf. Beth Israel Hosp. Ass'n, supra, and cases cited. Our review of the summary of the facts he considered, supra note 6, leads us to conclude that the Attorney General did not arbitrarily omit facts apparently subject to his official notice. Accordingly, we accept as reasonable the Attorney General's determination of the facts he has considered in affirming his certification of the petition.

We next consider whether the facts recognized by the Attorney General preclude him under art. 48, as a matter of law, from certifying the petition. Here we look particularly at the Attorney General's finding that "I infer from [the petition's] prohibition that it would prevent Yankee and Boston Edison from generating any electricity by use of their nuclear reactors in their current forms after July 4, 1989." Supra note 6. Do the facts as properly found compel a conclusion that this petition proposes legislation which would bring about a taking of private property without compensation? We think not, and in so concluding we look to the legal principles which have controlled in cases similar to the case before us.

Our review of these principles reveals issues (1) which are relevant to the question whether a taking would ensue from the proposed legislation, and (2) which have not been, and should not be, determined through the Attorney General's limited examination of the facts at this time. The petition proposes not a permanent physical occupation or confiscation of property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982), but instead a regulation of use of property. As such the question is whether the "regulation goes too far." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Answering this question involves regulatory takings analysis which is peculiarly fact dependent, involving "essentially ad hoc, factual inquiries." Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). See Turnpike Realty Co. v. Dedham, 362 Mass. 221, 236, ...