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

• Decision Date: 07 July 1988
• Docket Number: No. S-4794,S-4794
• Parties: YANKEE ATOMIC ELECTRIC COMPANY, et al. 1 v. SECRETARY OF the COMMONWEALTH, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 369

525 N.E.2d 369

402 Mass. 750

YANKEE ATOMIC ELECTRIC COMPANY, et al. ¹ v. SECRETARY OF the COMMONWEALTH, et al. ²

No. S-4794.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 5, 1988.

Decided July 7, 1988.

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

James M. Shannon, Atty. Gen., Paul A. Lazour and Nathaniel S. Lawrence, Asst. Attys. Gen., for Secretary of the Com., et al.

Benjamin Hiller, Cambridge, Ellen J. Messing and Joseph Kenyon, Boston, for Christopher J. Hodgkins, et al., 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 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.

On July 28, 1987, the initiative petition at issue in this case was submitted to the Attorney General pursuant to art. 48, The Initiative, II, § 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." ⁴ The Attorney General is required by art. 48, The Initiative, II, § 3, to certify, inter alia, that petitions submitted to him contain only matters not excluded from the initiative process by art. 48, The Initiative, II, § 2. ⁵ Among the matters excluded from the initiative are propositions "inconsistent with ... the right to receive compensation for private property appropriated to public use." The propriety of the Attorney General's certification of the petition in the face of the plaintiffs' claim that it contained this excluded matter, and the extent of the Attorney General's fact-finding obligations in the certification process, are the central issues in this case.

It is undisputed that the plaintiff Yankee Atomic Electric Company and amicus Boston Edison Company (the utilities) separately own and operate the only two nuclear reactors in the Commonwealth. When the Attorney General was considering whether to certify the petition, the utilities argued that the petition should not be certified because it would effect a taking of their property. If, as the utilities argue, the petition effects a taking of their property, its failure also to provide for compensation would make it "inconsistent with" the right to such compensation, see Bromfield v. Treasurer & Receiver Gen., 390 Mass. 665, 668-669, 459 N.E.2d 445 (1983), quoting Haverhill Bridge Proprietors v. County Comm'rs of Essex, 103 Mass. 120, 124-125 (1869) (the act effecting a taking "must provide for compensation, and a ready means of ascertaining the amount"), and the Attorney General should not have certified to the contrary.

The Attorney General's letter to the Secretary of the Commonwealth, certifying the petition, does not indicate what facts he considered in concluding that the petition does not contain an excluded matter, i.e., is not "inconsistent with ... the right to receive compensation for private property appropriated to public use." The parties have stipulated as follows: "[T]he Attorney General did not engage in a factual analysis to determine what effect the initiative might have on the two currently existing commercial electric nuclear power plants in Massachusetts, if it were passed into law. He did not engage in a factual analysis to attempt to determine the economic value of the two existing nuclear power plants before or after passage of the Petition.... The Attorney General takes the position in this litigation that the putative facts proffered by the plaintiffs to establish a taking by way of inverse condemnation are not ascertainable at this stage and/or have no relevance to the certification issue here presented. Accordingly, no stipulations of fact concerning the value of the Yankee plant, the reasonable investment backed expectations of its owners, its value after enactment of the Petition, the availability and/or form of compensation or any alternative uses of electrical power plants have been entered. Plaintiffs contend that if a fact based inquiry had been conducted at the certification stage or were conducted now, it would establish an inverse condemnation of the Yankee Rowe plant without providing compensation."

Before turning to the central issue of the extent of the Attorney General's fact-finding obligations, if any, in the certification process, two preliminary contentions can be resolved. First, the Attorney General contends that the corporate plaintiff, Yankee Atomic Electric Company, lacks standing to maintain this action. Because the named individual plaintiffs do possess standing, we need not determine this argument's merits. See Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 214-215, 424 N.E.2d 469 (1981), citing Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 674-675, 322 N.E.2d 742 (1975). Second, the plaintiffs argue that the petition, assuming it effects a taking, is void, independent of the certification requirement of art. 48, because art. 10 of the Amendments to the Constitution of the Commonwealth provides that takings, even if compensated, can be authorized only by the Legislature. However, arguments regarding the validity of an initiative petition not based on failure to comply with art. 48, cannot be pursued unless and until the measure has been enacted. See Paisner v. Attorney Gen., 390 Mass. 593, 597, 458 N.E.2d 734 (1983), quoting Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 246-247, 69 N.E.2d 115 (1946).

That the Attorney General should not ignore the "factual impact" of a petition, as he has stipulated he did here, in making his certification determination is clear from general legal principles, from the judicial decisions construing art. 48, from the article's language, and from the debates surrounding its adoption. In Paisner, supra, 390 Mass. at 597, 458 N.E.2d 734, involving the Attorney General's certification that a petition was in proper form, the court noted that the initiative petition places "several responsibilities upon the Attorney General which require the exercise of his discretion and legal judgment." Exercise of legal judgment involves, to some extent at least, applying legal principles to facts even when considering "pure" questions of law. For example, when determining whether a statute is overbroad in a First Amendment context, a number of supposed sets of facts are considered to determine if the statute impermissibly would reach them.

Moving beyond general principles, decisions reviewing certification by the Attorney General that a petition does not contain excluded subjects indicate that this court has considered the factual impact of petitions in conducting its review. In Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 248-253, 69 N.E.2d 115 (1946), involving restrictions on political campaign spending, the court concluded the petition at issue was not "inconsistent with" the right to freedom of elections because it did not impair "the freedom of a voter to express his choice as to men or measures ... [and it] would tend to increase the freedom of elections by removing influences upon the voter that the use of money can bring to bear." Id. at 249, 69 N.E.2d 115. The court made similar determinations regarding the impact of the petition in addressing assertions that the petition, in various sections, contained excluded subjects because of its inconsistency with other rights. See also Opinion of the Justices, 309 Mass. 571, 584-587, 34 N.E.2d 527 (1941) (impact on Legislature's general supervision of the public treasury is considered in determining if petition contained excluded subject in that it called for a specific appropriation of funds); Opinion of the Justices, 300 Mass. 602, 606- 607,14 N.E.2d 462 (1938) (court assesses impact on owners' real property interests in determining that petition contained only a reasonable police power regulation); Opinion of the Justices, 294 Mass. 607, 609, 2 N.E.2d 190 (1936) (petition's language limiting its application to towns with more than 12,000 inhabitants indicates that it contained an excluded subject for its operation is restricted to particular localities); Horton v. Attorney Gen., 269 Mass. 503, 509-513, 169 N.E. 552 (1930) (petition's impact considered in rejecting argument that petition contained excluded subjects).

That the court reviews the factual impact of a petition in determining if the Attorney General's certification decision was proper, logically indicates that the Attorney General should also consider the factual impact in making the initial certification decision. In Paisner, supra 390 Mass. at 598, 458 N.E.2d 734, the court cited instances where it had previously quashed certifications regarding proper form on the ground that a petition did not propose a law, and concluded that the Attorney General, in certifying later petitions as to form, has the duty to exercise his legal judgment to determine that they do propose a law. Thus, the Attorney General should use the same...