Oberlies v. Attorney General , 479 Mass. 823 ( 2018 )

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SJC-12472
SJC-12473
AMANDA S. OBERLIES & others1 vs. ATTORNEY GENERAL & another.2
DONNA KELLY WILLIAMS & others3 vs. ATTORNEY GENERAL & another.4
Suffolk. April 3, 2018. - June 18, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Initiative. Constitutional Law, Initiative petition. Attorney
General. Nurse.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 19, 2018.
The case was reported by Gaziano, J.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 8, 2017.
1 Sharon Gale, Patricia M. Noga, and Timothy Quigley.
2 Secretary of the Commonwealth.
3 Karen A. Coughlin, Susan Wright Thomas, Mary Elizabeth
Amsler, Daniel R. Rec, Nora A. Watts, Linda Barton, Ellen Smith,
Paula Ryan, and Harley W. Keisch.
4 Secretary of the Commonwealth.
2
The case was reported by Gaziano, J.
Edward V. Colbert, III (David Koha & Carmen F. Francella,
III, also present) for Donna Kelly Williams & others.
Juliana deHaan Rice, Assistant Attorney General (Michael B.
MacKenzie, Assistant Attorney General, also present) for the
Attorney General.
Andrew N. Nathanson (Elissa Flynn-Poppey & Mathilda McGee-
Tubb also present) for Amanda S. Oberlies & others.
The following submitted briefs for amici curiae:
Thaddeus A. Heuer, Andrew M. London, & Rachel C. Hutchinson
for Steward Health Care System LLC.
Edward V. Colbert, III, David Koha, & Carmen F. Francella,
III, for Massachusetts Nurses Association.
Carol Igoe, of California, & David Hadas for National
Nurses United & another.
Thomas R. Kiley, Carol Valvo, & Meredith Fierro for
American Nurses Association Massachusetts, Inc.
Elissa Flynn-Poppey, Andrew N. Nathanson, & Mathilda S.
McGee-Tubb for Massachusetts Health & Hospital Association &
others.
LENK, J. We are asked to determine whether two initiative
petitions satisfy the requirements of art. 48 of the Amendments
to the Massachusetts Constitution. The first, Initiative
Petition 17-07, would limit the number of patients who may be
assigned to a registered nurse in Massachusetts health care
facilities, and would prohibit facilities from accommodating
those limits by reducing certain other health care staff. The
second, Initiative Petition 17-08, contains the same provisions
as the first petition, with an additional section that would
require publicly funded hospitals to make annual public
disclosures of their financial assets. The Attorney General
certified that Initiative Petition 17-07 meets the requirements
3
of art. 48, but declined to certify Initiative Petition 17-08,
after concluding that the mandate for financial disclosure was
not sufficiently related to or mutually dependent upon the other
provisions in the petition. The opponents of Initiative
Petition 17-07, and the proponents of Initiative Petition 17-08,
sought relief before a single justice in the county court.
On the request of all parties, the single justice reserved
and reported both cases to this court. In the first case, the
plaintiffs challenge the Attorney General's decision to certify
Initiative Petition 17-07; they contend that the nurse-to-
patient ratios are not sufficiently related to or dependent upon
the requirement that, in implementing those ratios, covered
facilities are prohibited from reductions in other health care
staff. Because the restriction on staff reduction pertains to
implementation of the nurse-to-patient ratios, we conclude that
these two elements of the proposal form "a unified statement of
public policy," Carney v. Attorney Gen., 447 Mass. 218, 231
(2006) (Carney I), and therefore are related "within the meaning
of art. 48." See Hensley v. Attorney Gen., 474 Mass. 651, 672
(2016). The plaintiffs challenging Initiative Petition 17-07
also argue that it is not in the form required by art. 48 for
presentation to the voters, on a number of grounds, which we
determine are unsupported. As a result, we conclude that the
4
Attorney General's decision to certify Initiative Petition 17-07
was correct.
In the second case, the plaintiffs challenge the Attorney
General's decision not to certify Initiative Petition 17-08;
they argue that the financial disclosure provision is
sufficiently related to the nurse-to-patient ratios, because it
will shed light on facilities' capacity to meet new staffing
needs. We conclude that the Attorney General was correct in
declining to certify Initiative Petition 17-08 on the ground
that the financial asset disclosure requirement and the
limitations on nurse-patient staffing ratios are not
sufficiently related or mutually dependent, as required by
art. 48. See Massachusetts Teachers Ass'n v. Secretary of the
Commonwealth, 384 Mass. 209, 219-220 (1981).5
1. Background. In August, 2017, two petitions, each
signed by ten registered voters in the Commonwealth, were
submitted to the Attorney General for certification. The
Attorney General numbered them Initiative Petition 17-07 and
5 We acknowledge the amicus briefs submitted by the
Massachusetts Nurses Association, Steward Health Care System
LLC, and National Nurses United and the California Nurses
Association in Oberlies's case. We also acknowledge the amicus
briefs submitted by the Massachusetts Health & Hospital
Association, Massachusetts Council of Community Hospitals,
Conference of Boston Teaching Hospitals, and Massachusetts
Association of Behavioral Health Systems; Steward Health Care
System LLC; and the American Nurses Association Massachusetts,
Inc., in Williams's case.
5
Initiative Petition 17-08. Although both are entitled
"Initiative Petition For A Law Relative To Patient Safety And
Hospital Transparency," the petitions differ with respect to one
section.
Initiative Petition 17-07 seeks to create a new statute,
entitled "The Patient Safety Act" (act or proposed act) that
would amend c. 111 of the General Laws. The act would create
"patient assignment limits" for registered nurses working in
"facilities" in Massachusetts. The proposed act defines the
term "[f]acility" as "a hospital licensed under [G. L. c. 111,
§ 51], the teaching hospital of the University of Massachusetts
medical school, any licensed private or [S]tate-owned and
[S]tate-operated general acute care hospital, an acute
psychiatric hospital, an acute care specialty hospital, or any
acute care unit within a [S]tate[-]operated healthcare
facility." "[R]ehabilitation facilities" and "long-term care
facilities" are explicitly excluded.
The act proposed by Initiative Petition 17-07 would set
limits on the number of patients who could be assigned to a
registered nurse in any given facility, based on the unit where
the nurse works and the condition of the patients. For example,
in any emergency services department, a registered nurse would
be assigned only one critical care or intensive care patient; in
pediatric units, up to four pediatric patients could be assigned
6
to one registered nurse. In any unit not specifically listed in
the proposed act, the patient assignment ratio would be four
patients per registered nurse. The patient assignment limits
would be in effect at all times except "during a [S]tate or
nationally declared public health emergency."
The proposed act provides, "Each facility shall implement
the patient assignment limits established by [G. L. c. 111,
§] 231C [the nurse-patient limit provision of the proposed act].
However, implementation of these limits shall not result in a
reduction in the staffing levels of the health care workforce."
We refer to this requirement as the "workforce reduction
restriction." The "health care workforce" is defined by the
proposed act as all "personnel employed by or contracted to work
at a facility that have an effect upon the delivery of quality
care to patients, including but not limited to registered
nurses, licensed practical nurses, unlicensed assistive
personnel, service, maintenance, clerical, professional and
technical workers, and all other health care workers." The
proposed act would require each facility to submit a written
plan to the Health Policy Commission (HPC),6 certifying that the
6 The Health Policy Commission was created in 2012 to
"monitor the reform of the health care delivery and payment
system in the [C]ommonwealth." See St. 2012, c. 224, § 15;
G. L. c. 6D, §§ 2, 5.
7
facility will implement the patient assignment limits without
diminishing its health care workforce.
The act proposed by Initiative Petition 17-07 also would
authorize the HPC to promulgate regulations governing
implementation and operation of the act. These regulations
would include, but not be limited to, "regulations setting forth
the contents and implementation of: (a) certification plans
each facility must prepare for implementing the patient
assignment limits enumerated in [§] 231C, including the facility
obligation that implementation of limits shall not result in a
reduction in the staffing level of the health care workforce
assigned to such patients; and (b) written compliance plans that
shall be required for each facility out of compliance with the
patient assignment limits." The HPC would not be authorized to
promulgate any regulation that directly or indirectly delays,
waives, or modifies the patient assignment limits, or the
requirement that those limits be implemented without resulting
reductions in a facility's health care workforce.
Under the terms of the proposed act, the HPC "may conduct
inspections of facilities to ensure compliance with the terms of
this act. A facility's failure to adhere to the patient
assignment limits," as adjusted per the act's requirements,
"shall be reported by the [HPC] to the Attorney General for
enforcement." The Attorney General would be able to sue a
8
facility found to be in violation of the act in the Superior
Court for injunctive relief and civil penalties up to $25,000
per violation.
The other initiative petition at issue in this case,
Initiative Petition 17-08, seeks to enact the "Patient Safety
and Hospital Transparency Act." Initiative Petition 17-08 is
essentially identical to Initiative Petition 17-07, but with one
additional provision. General Laws c. 111, § 231K, would
require that "[e]ach facility that accepts funds from the
Commonwealth . . . report annually to the [HPC] all financial
assets owned by the facility, along with assets of any holding
company and any and all parent, subsidiary, or affiliated
companies." Under Initiative Petition 17-08, the HPC would be
required to make this information public within seven days of
its receipt, unless doing so otherwise is prohibited by law.
In September, 2017, the Attorney General certified that
Initiative Petition 17-07 is in proper form for submission to
the people; that it is not substantially the same as any measure
qualified for submission to the people at either of the two
preceding biennial State elections; and that it contains only
matters that are related or mutually dependent and not excluded
from the initiative process under art. 48. By December 6, 2017,
the petition's proponents had gathered and filed sufficient
voter signatures to require the Secretary of the Commonwealth
9
(Secretary) to transmit the petition to the Legislature. The
Secretary did so in January, 2018. If the Legislature does not
adopt the measure, and if the proponents submit sufficient
additional signatures by July 3, 2018, the Secretary intends to
include the proposed law in the Information for Voters guide
that will be printed in the summer of 2018. See art. 48, The
Initiative, V, § 1, of the Amendments to the Massachusetts
Constitution, as amended by art. 81, § 2, of the Amendments.
In January, 2018, four registered voters commenced an
action in the county court, challenging the Attorney General's
decision to certify Initiative Petition 17-07. These
plaintiffs, whom we will call the Oberlies plaintiffs, sought
writs of mandamus and certiorari and a declaratory judgment, and
asked the court to declare that Initiative Petition 17-07 is
invalid, to quash the Attorney General's certification of the
petition, and to enjoin the Secretary of the Commonwealth from
placing the petition on the 2018 Statewide ballot. On the
parties' joint motion and an agreed-upon statement of facts, the
single justice reserved and reported the case to the full court.
At the same time that she certified Initiative Petition 17-
07, the Attorney General declined to certify Initiative Petition
17-08, after having concluded that the financial disclosure
requirement was not sufficiently related to or mutually
dependent upon the patient assignment limits to satisfy the
10
requirements of art. 48. Shortly thereafter, ten registered
voters filed a complaint in the county court, seeking an order
of mandamus reversing that decision.7 We refer to these
plaintiffs as the Williams plaintiffs.
The single justice allowed the parties' joint motion to
enter a preliminary order that, without passing on the
likelihood that the Williams plaintiffs would succeed, required
the Attorney General to release a summary of the petition to the
Secretary of the Commonwealth. This order also directed the
Secretary to prepare blank signature forms so that signatures
could be gathered while the challenge to the Attorney General's
decision was pending. In December, 2017, upon the joint request
of the parties, the order was amended to require the Secretary
to advance the petition to the Legislature, if the proponents
collected sufficient signatures prior to December 6, 2017. Also
that month, on the parties' joint motion and an agreed statement
of facts, the single justice reserved and reported the case to
the full court.
2. Discussion. When a new law is proposed by initiative
petition, before it can be presented to the Legislature and then
to the voters for their consideration, the Attorney General must
7 The original Williams plaintiffs moved, with the assent of
the defendants, to substitute ten different registered voters as
the Williams plaintiffs. The single justice allowed this
motion.
11
review it and certify that it meets the requirements of art. 48.
See art. 48, The Initiative, II, § 3, as amended by art. 74. We
review the Attorney General's decision regarding whether to
certify a ballot petition de novo, bearing in mind "the firmly
established principle that art. 48 is to be construed to support
the people's prerogative to initiate and adopt laws." Abdow v.
Attorney Gen., 468 Mass. 478, 487 (2014), quoting Carney v.
Attorney Gen., 451 Mass. 803, 814 (2008).
The primary question at issue with respect to both
Initiative Petitions 17-07 and 17-08 is whether the subjects
addressed in each petition are related or mutually dependent.
See art. 48, The Initiative, II, § 3, as amended by art. 74.
The opposition to Initiative Petition 17-07 also raises an
additional question whether it is in a proper form for
submission to the voters as required by art. 48. See Nigro v.
Attorney Gen., 402 Mass. 438, 443 (1988). We address each issue
in turn.
a. Whether subjects are related or mutually dependent.
Under art. 48, if a petition addresses multiple subjects, those
subjects must be "related or . . . mutually dependent."
Art. 48, The Initiative, II, § 3, as amended by art. 74. See
Albano v. Attorney Gen., 437 Mass. 156, 161 (2002). We have
held that two provisions that "exist independently" of each
other are not mutually dependent. See Gray v. Attorney Gen.,
12
474 Mass. 638, 648 (2016). No "bright-line" test exists for
determining whether two subjects are related. See Dunn v.
Attorney Gen., 474 Mass. 675, 680 (2016); Abdow, 468 Mass. at
499. "The decisions of this court illustrate how we have
endeavored to construe the related subjects requirement in a
balanced manner that fairly accommodates both the interests of
initiative petitioners and the interests of those who would
ultimately vote on the petition. On the one hand, the
requirement must not be construed so narrowly as to 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. On the other hand, while
art. 48 does not demand that an initiative concern only one
subject, "relatedness 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."
Id. Otherwise, a petition "might confuse or mislead voters,
or . . . place them in the untenable position of casting a
single vote on two or more dissimilar subjects." Id.
Indeed, the drafters of art. 48 were concerned that
initiatives could confuse voters, or could be used for
"logrolling." See Dunn, 474 Mass. at 679-680; Carney I, 447
Mass. at 226-228. "Logrolling" refers to the bundling of
multiple provisions such that they all gain approval, even if
13
one or more of them would, standing alone, be rejected. Carney
I, supra at 219 n.4. Logrolling is of particular concern when
an unpopular provision could be hidden or made less apparent by
a more attractive proposal that catches voters' attention. See
id. at 229.
We accordingly have held that the related subjects
requirement is satisfied where "one can identify a common
purpose to which each subject of an initiative petition can
reasonably be said to be germane." Massachusetts Teachers
Ass'n, 384 Mass. at 219-220. "We have not construed this
requirement narrowly nor demanded that popular initiatives be
drafted with strict internal consistency." Mazzone v. Attorney
Gen., 432 Mass. 515, 528-529 (2000). "But we have also
cautioned that '[a]t some high level of abstraction, any two
laws may be said to share a "common purpose."'" Dunn, 474 Mass.
at 680, quoting Abdow, 468 Mass. at 500.
"[W]e have posed two questions to be considered in
addressing the related subjects requirement." Dunn, 474 Mass.
at 680. First, "[d]o the similarities of an initiative's
provisions dominate what each segment provides separately so
that the petition is sufficiently coherent to be voted on 'yes'
or 'no' by the voters?" Abdow, 468 Mass. at 500, quoting
Carney I, 447 Mass. at 226. Second, does the initiative
petition "express an operational relatedness among its
14
substantive parts that would permit a reasonable voter to affirm
or reject the entire petition as a unified statement of public
policy?" Abdow, supra at 501, quoting Carney I, supra at 230-
231.
The Oberlies plaintiffs challenge the Attorney General's
determination that Initiative Petition 17-07 contains subjects
that are related or mutually dependent. The Williams plaintiffs
assert that the Attorney General erred in determining that
Initiative Petition 17-08 fails this test. For the reasons
discussed infra, we conclude that the Attorney General was
correct in reaching both of these determinations.
i. Initiative Petition 17-07. The common purpose of the
provisions in Initiative Petition 17-07 is to establish and
enforce nurse-to-patient ratios in facilities in the
Commonwealth.8 This common purpose is not "so broad as to render
the 'related subjects' limitation meaningless." Massachusetts
Teachers Ass'n, 384 Mass. at 219. The patient assignment limits
The Oberlies plaintiffs contend that Initiative
8
Petition 17-07's purpose is "patient safety," based on the title
of the proposed act, references to patient safety in the
petition's text, and a memorandum submitted by its proponents to
the Attorney General. The court agrees with the Attorney
General's characterization of the proposal's purpose, which is
to achieve patient safety specifically through the
"establishment of patient-to-nurse assignment limits in
hospitals and other specified health care facilities." See
Opinion of the Justices, 422 Mass. 1212, 1220-1221 (1996)
(rejecting initiative drafters' asserted purpose, and accepting
purpose advanced by brief of counsel to House of
Representatives).
15
"can reasonably be said to be germane" to the petition's common
purpose, because they implement the nurse-to-patient ratios that
the petition seeks to achieve. Id. at 219-220. Notwithstanding
the Oberlies plaintiffs' claims to the contrary, the workforce
reduction restriction also advances the petition's common
purpose.
First, "the similarities of [the] initiative's provisions
dominate what each segment provides separately so that the
petition is sufficiently coherent to be voted on 'yes' or 'no'
by the voters." Abdow, 468 Mass. at 500, quoting Carney I, 447
Mass. at 226. The workforce reduction restriction only
prohibits reduction in a facility's health care workforce that
results from putting in place the patient assignment limits.9 In
other words, the restriction on workforce reduction is triggered
by the implementation of these limits. It does not prohibit
reduction of the health care workforce for any other reason,
but, rather, dictates how nurse-to-patient ratios may be
maintained: in a manner such that there be no reductions in
staff among other members of the health care workforce. Because
the patient assignment limits and the workforce reduction
9 Initiative Petition 17-07 provides, "Each facility shall
implement the patient assignment limits established by [G. L.
c. 111, §] 231C [the nurse-patient limit provision of the
proposed act]. However, implementation of these limits shall
not result in a reduction in the staffing levels of the health
care workforce."
16
restriction both determine how nurse-patient staffing ratios
will be implemented, their similarity "dominate[s] what each
segment provides separately." See Abdow, supra, quoting
Carney I, supra.
Second, Initiative Petition 17-07 "express[es] an
operational relatedness among its substantive parts that would
permit a reasonable voter to affirm or reject the entire
petition as a unified statement of public policy." Abdow, 468
Mass. at 501, quoting Carney I, 447 Mass. at 230-231. Because
it anticipates and addresses a potential consequence of the
nurse-patient staffing ratios, the workforce reduction
restriction is "simply one piece of the proposed integrated
scheme." See Hensley, 474 Mass. at 659. If hospitals were
economically burdened by hiring more registered nurses, they
might attempt to compensate by reducing the numbers of other
staff. Indeed, when California implemented nurse-to-patient
ratios, the health care industry protested that hospitals would
be forced to lay off personnel to pay for additional nurses.
See California Nurses Ass'n vs. Schwarzenegger, Cal. Super Ct.,
No.04CS01725, slip op. (Sacramento County May 27, 2005).
"Neither the Attorney General nor this court is required to
check common sense at the door when assessing the question of
relatedness." Carney I, 447 Mass. at 232. Because the
workforce reduction restriction would shape the impact of the
17
patient assignment limits, it forms part of the proposal's
"unified statement of public policy." See id. at 230-231.
In this sense, the situation at bar is similar to that in
Dunn. In that case, we considered a petition seeking to
prohibit confinement of specified farm animals in a cruel manner
(farm provision), and also banned the sale, within the
Commonwealth, of certain products produced from animals so
confined (sales provision). Dunn, 474 Mass. at 676. We
concluded that the provisions were related within the meaning of
art. 48, because the sales provision "protects Massachusetts
farmers who comply with the law by preventing Massachusetts
businesses from selling eggs, veal, and pork obtained from out-
of-State farmers who confine their animals in a cruel manner and
who, by doing so, may be able to underprice their Massachusetts
competitors." Id. at 681, 682. In other words, the sales
provision anticipated and mitigated private actors' foreseeable
reactions to the farm provision.
Similarly, here, the workforce reduction restriction seeks
to address facilities' potential responses to the nurse-patient
staffing ratio requirement. Indeed, because the workforce
reduction restriction regulates the same facilities as those
affected by the patient assignment limits, the two requirements
are more closely related than the farm provision and the sales
provision we considered in Dunn, supra; the farm provision
18
governed farms that produced certain goods, while the sales
provision constrained businesses that purchased those goods.
Id. at 676.
"The 'unified statement of public policy' called for by
Carney I, 447 Mass. at 230-231, does not require that an
initiative petition be a comprehensive piece of legislation that
would entirely cover its field. It requires that the portion of
the field covered by the petition be presented in a way that
permits a reasonable voter to make an intelligent up or down
choice." Abdow, 468 Mass. at 503. A voter who approves of the
registered nurse-patient staffing ratio requirement, but
believes health care facilities should be able to accommodate
this requirement by eliminating other members of the health care
workforce, "is free to vote 'no' . . . , but the proposed act
does not place anyone 'in the untenable position of casting a
single vote on two or more dissimilar subjects'" (emphasis in
original). Hensley, 474 Mass. at 659, quoting Abdow, supra at
499.
The argument that Initiative Petition 17-07 violates the
related subjects requirement because it might impose a financial
burden on facilities is unavailing. The Oberlies plaintiffs
point to Gray, 474 Mass. at 647, where, in concluding that the
proposal did not satisfy the relatedness test, we noted the
costs associated with one of the initiative's provisions. That
19
case concerned a proposal that would have altered the
educational curriculum of publicly funded elementary and
secondary schools, and would have required the release of
certain test information included in the prior year's
comprehensive assessment tests mandated for those schools. See
id. at 638-639, 648. We concluded that those two subjects were
not sufficiently related, because educational curricula and
school transparency represented "two separate public policy
issues." Id. at 649. Although we observed that there could be
a high "price tag" associated with the "test items" disclosure
requirement, this observation was not dispositive of our
conclusion. See id. at 647-649. The Oberlies plaintiffs'
reliance on Gray is misplaced.
The Oberlies plaintiffs also suggest that the workforce
reduction restriction is simply an attempt to make Initiative
Petition 17-07 more politically palatable, by providing job
security to health care workers. The proposed act, however,
would prohibit only health care workforce reductions resulting
from the implementation of nurse-patient assignment limits; it
is not an outright ban on reducing staffing levels at covered
facilities. Even if Initiative Petition 17-07 might be
appealing to some hospital employees because they believed that
they would stand to gain job security if it were enacted, the
enjoyment, by some, of an "ancillary benefit" does not render
20
the proposal's provisions unrelated. See Dunn, 474 Mass. at
682. "Nor is it necessary that all of an initiative's
supporters share the same motivations" in order for the
initiative to satisfy the relatedness test. See Abdow, 468
Mass. at 503.10
The Oberlies plaintiffs also contend that voters will not
understand the potential impact of the workforce reduction
restriction. Based on their expansive reading of the definition
of "health care workforce," the Oberlies plaintiffs maintain
that Initiative Petition 17-07 "mandates the retention of
virtually every employee or contractor who works for or at a
hospital."11 They argue that even the petition's proponents do
not appreciate the possible sweeping consequences of the
workforce reduction restriction. Additionally, the parties
dispute whether a separate section in the petition limits the
definition of the "health care workforce," thereby narrowing the
Additionally, the Oberlies plaintiffs have not alleged
10
that the electorate previously rejected an initiative proposing
solely patient assignment limits, without any associated
workforce reduction provision. Cf. Carney v. Attorney Gen., 447
Mass. 218, 222, 232 (2006) (voters' earlier rejection of one
provision of proposed petition was relevant to relatedness
analysis).
Initiative Petition 17-07 defines "health care workforce"
11
to include those "personnel employed by or contracted to work at
a facility that have an effect upon the delivery of quality care
to patients, including but not limited to registered nurses,
licensed practical nurses, unlicensed assistive personnel,
service, maintenance, clerical, professional and technical
workers, and all other health care workers."
21
scope of the workforce reduction restriction. This section
requires that facilities' certification plans, which must be
submitted to HPC, address "the facility obligation that
implementation of limits shall not result in a reduction of the
staffing level of the health care workforce assigned to such
patients" (emphasis supplied). The parties disagree with
respect to whether, pursuant to this language, only those
employees who are assigned to individual patients would be
considered part of the health care workforce.
When determining whether an initiative meets the
requirements of art. 48, we exercise "restraint in deciding
whether a measure would or would not have the legal effect
intended," and restrict such considerations to the extent
necessary to determine whether a proposal satisfies the
requirements of art. 48. See Abdow, 468 Mass. at 507. "In
circumstances like these, the proper time for deciding
definitively whether the measure has the desired legal effect
will come if and when the measure is passed." Id. at 508. We
need not, at this juncture, construe the definition of "health
care workforce" or decide whether this definition could have
consequences that its drafters did not intend. Nor do we need
to determine how to reconcile this definition with the proposed
act's reference, in a separate section, to "the facility
obligation that implementation of limits shall not result in a
22
reduction in the staffing level of the health care workforce
assigned to such patients" (emphasis supplied). The proper
interpretation of these provisions is not dispositive of the
question of relatedness. Under any reading, the workforce
reduction restriction merely constrains how nurse-patient
staffing ratios may be implemented. As a result, we conclude
that Initiative Petition 17-07 "contains only subjects that are
related or are mutually dependent. It is therefore fair to ask
the people of the Commonwealth to vote 'yes' or 'no' on" the
petition. Dunn, 474 Mass. at 682.
ii. Initiative Petition 17-08. As stated, the text of
Initiative Petition 17-08 is virtually identical to that of
Initiative Petition 17-07, with the addition of one section.
That section, the financial disclosure requirement, would
require hospitals that accept funds from the Commonwealth to
file annual reports of their financial assets with the HPC. The
HPC, in turn, would be required to make this information public
within seven calendar days of its receipt, unless doing so is
otherwise prohibited by law.
In determining whether the financial disclosure requirement
is sufficiently related to the remainder of Initiative Petition
17-08, we look for "a common purpose to which each subject of
[the] initiative petition can reasonably be said to be germane."
Massachusetts Teachers Ass'n, 384 Mass. at 219-220. The
23
Williams plaintiffs contend that the common purpose unifying
Initiative Petition 17-08 is patient safety. They assert that
the financial disclosure requirement furthers this goal by
shining a light on hospitals' economic capacity to hire new
staff, as might be required by the nurse-patient assignment
limits.
These issues might be connected, in some sense, if
hospitals' financial assets reflect their ability to pay the
salaries of additional registered nurses. The patient
assignment limits, however, are mandatory and inflexible, and
are not tied to a hospital's financial condition; under the
terms of Initiative Petition 17-08, an inability to pay is no
defense for a failure to comply. Nor does the proposal provide
a mechanism to increase funding to hospitals that would bear an
economic hardship if forced to hire additional registered
nurses. The financial disclosure requirement, therefore, has
"only a marginal relationship" to the nurse-patient staffing
ratios. See Abdow, 468 Mass. at 499. Moreover, the initiative
cannot be saved by assertion of a more general common purpose,
such as regulation of hospitals. "At some high level of
abstraction, any two laws may be said to share a 'common
purpose,'" Carney I, 447 Mass. at 226, but a petition's asserted
common purpose cannot be "so broad as to render the relatedness
24
limitation 'meaningless,'" id. at 225, quoting Massachusetts
Teachers Ass'n, 384 Mass. at 219.
Initiative Petition 17-08 recalls Opinion of the Justices,
422 Mass. 1212, 1220-1221 (1996), in which the Justices
concluded that the goal of making "Massachusetts government more
accountable to the people" was "unacceptably broad" as a
"general purpose" for an initiative petition. The petition at
issue in that case primarily sought to regulate legislators'
compensation, but contained one provision that would have
permitted the Inspector General to request and summon records
held by the commissioner of veterans' services. Id. at 1213-
1214. The Justices determined that the proposal's true common
purpose was more narrow, specifically to improve legislative
accountability. Id. at 1220-1221. The initiative failed the
related subjects requirement because "permitting the Inspector
General access to the records of the commissioner of veterans'
services does not relate in any meaningful way to improving
legislative accountability." Id. at 1221. Similarly, here, the
financial asset disclosure requirement "does not relate in any
meaningful way" to patient safety through the establishment of
nurse-patient staffing ratios.12 See id.
12The Williams plaintiffs alternatively assert that the
common purpose of Initiative Petition 17-08 is "the safety of
patients through adequate staffing and hospital transparency in
disclosing their means and methods of staffing." By its terms,
25
The subjects are unrelated because they concern "two
separate public policy issues." Gray, 474 Mass. at 649. This
becomes clear when one reads the section of Initiative Petition
17-08 that would impose the financial disclosure requirement.
That section provides, "It is in the public interest to have
access to a transparent, detailed, and comprehensive record of
the financial health of each facility that accepts funds from
the Commonwealth to provide healthcare to its residents." The
stated policy goal of this section -- public access to
hospitals' financial records -- has no apparent connection to
the petition's purported purpose of ensuring patient safety by
virtue of creating nurse-to-patient staffing ratios. "The
combination of these two issues in one initiative petition does
not offer the voters a 'unified statement of public policy"
(emphasis in original). Id. at 649, quoting Carney I, 447 Mass.
at 231. "Rather, because the issues combined in the petition
are substantively distinct, it is more likely that the voters
would be in the 'untenable position of casting a single vote on
two or more dissimilar subjects.'" Gray, supra, quoting Abdow,
468 Mass. at 499. These subjects therefore lack "sufficient
however, this "common purpose" purports to tackle "two separate
public policy issues": adequate hospital staffing and hospital
transparency. See Gray v. Attorney Gen., 474 Mass. 638, 649
(2016).
26
operational connection . . . to be 'related' within the meaning
of art. 48." Gray, supra at 648.
As a result, we conclude that Initiative Petition 17-08
fails the two-part relatedness test. First, the similarities
between the financial disclosure requirement and the remainder
of the initiative petition do not "dominate what each segment
provides separately." Carney I, 447 Mass. at 226. While both
elements of the proposal pertain to hospitals, even this
commonality is limited; the financial disclosure requirement
would be imposed only on State-funded hospitals, while the
remainder of the initiative would apply to all facilities.
Second, and more crucially, because they represent "two separate
public policy issues," Gray, 474 Mass. at 649, there is no
"operational relatedness" between the two requirements. See
Carney I, supra at 230-231.
Additionally, "[t]he two subjects in this petition are
clearly not 'mutually dependent.' In fact, the opposite seems
true." Gray, 474 Mass. at 648, quoting Art. 48, The Initiative,
II, § 3, as amended by art. 74. In Gray, we held that
terminating public schools' use of the national common core
curriculum was not "mutually dependent" on the requirement that
schools release certain testing information because, "whether
the diagnostic assessment tests are based on the common core
standards or some previous set of academic standards . . . will
27
not affect in any way the . . . obligation" to release the
required test information. Id. Because these two subjects
would "exist independently," they were not "mutually dependent."
Id. Similarly, here, a facility's implementation of, or failure
to implement, the required nurse-to-patient ratios would "not
affect in any way" its obligation to disclose its financial
assets, and the two requirements would therefore "exist
independently." Id. The provisions of Initiative Petition 17-
08 are thus not "mutually dependent." See id.
In sum, the nurse-patient staffing ratios and the financial
disclosure requirement are neither mutually dependent nor
related subjects. The Attorney General was correct in declining
to certify that Initiative Petition 17-08 satisfies the demands
of art. 48.
b. Proper form requirement. Only laws and constitutional
amendments may be presented through the initiative process under
art. 48. See art. 48, The Initiative, I ("the popular
initiative" allows specified number of voters "to submit
constitutional amendments and laws to the people"). "[A]n
initiative petition that proposes neither a law nor a
constitutional amendment is not 'in proper form for submission
to the people.'" Dunn, 474 Mass. at 682, quoting art. 48, The
Initiative, II, § 3, as amended by art. 74. Although we have
declined to "construe the word 'form' in a narrow and technical
28
sense," our analysis of whether a petition has the proper form
has focused on the question "whether a law is proposed."
Paisner v. Attorney Gen., 390 Mass. 593, 598 (1983). In other
words, we examine whether the petition presents a measure that
has a binding effect, and "govern[s] conduct external to the
legislative body." Id. at 600. The Oberlies plaintiffs
contend, on five different grounds, that Initiative Petition
17-07 does not take the proper form required by art. 48. For
the reasons discussed infra, we conclude that these claims are
unavailing.13
The Oberlies plaintiffs first argue that the title of
Initiative Petition 17-07 -- "Initiative Petition For A Law
Relative To Patient Safety And Hospital Transparency" -- is
misleading, because, unlike the rejected Initiative Petition 17-
08, it contains no provision requiring hospitals to disclose
their financial assets. In this view, the title's reference to
13The Oberlies plaintiffs properly do not contend that
Initiative Petition 17-07, if approved, would not constitute a
law. We observe that, under Initiative Petition 17-07, "[e]ach
facility shall implement the patient assignment limits," and
"implementation of these limits shall not result in a reduction
in the staffing levels of the health care workforce" (emphasis
supplied). It is well established that use of the word "shall"
indicates a mandatory duty. See Galenski v. Erving, 471 Mass.
305, 309 (2015), citing Hashimi v. Kalil, 388 Mass. 607, 609
(1983). The proposed act thus would have a "binding" effect on
facilities, thereby regulating "conduct external to the
legislative body." Paisner v. Attorney Gen., 390 Mass. 593, 600
(1983). The initiative petition therefore meets the requirement
of art. 48 that it propose either a law or a constitutional
amendment. See id.
29
"hospital transparency" is "incongruous." The Oberlies
plaintiffs further contend that the title should include a
reference to the workforce reduction restriction.
"Nowhere is it provided that the title of a proposed law
shall be descriptive of it to any particular degree, or wholly
accurate so far as it is descriptive." Nigro, 402 Mass. at 445,
quoting Bowe v. Secretary of the Commonwealth, 320 Mass. 230,
240-241 (1946). "The legislative history and structure of
art. 48 demonstrate that the 'proper form' requirement is not
intended to require a title to give fair notice of the scope and
essential nature of the underlying measure." Nigro, supra.
Rather, the Attorney General's summary serves the purpose of
explaining the proposal's contents, and "any harm caused by a
misleading title can be corrected by an accurate summary."14 Id.
at 447, citing Opinion of the Justices, 309 Mass. 631, 640-641
(1941). Even if the title were inaccurate, therefore, and we do
not conclude that the title here is, that alone would not render
the form of an initiative petition invalid.
The Oberlies plaintiffs' remaining challenges to the form
of Initiative Petition 17-07 are related to its contents. They
contend that the terms "facilities" and "health care workforce,"
as used in the text, are internally inconsistent or open to
14The Oberlies plaintiffs have not challenged the Attorney
General's summary of Initiative Petition 17-07.
30
multiple interpretations. They thereby ask us to conduct "an
[impermissible] inquiry into substance." See Nigro, 402 Mass.
at 445-446 ("The debate concerning the original adoption of the
'proper form' requirement reveals that the framers of art. 48
were primarily concerned with avoiding errors of draftmanship,"
and did not intend that it "become an inquiry into substance").
In Mazzone, 432 Mass. at 530, we rejected a similar
challenge to the form of an initiative petition in which the
plaintiffs claimed that the definition of a key term was
"circular" and "mystifying." We explained that "[n]either the
petitioners' skill at legislative drafting, the potential
constitutional infirmities of an arbitrary or vague statute, nor
the potential effects of a measure on current law are reviewable
matters under art. 48." Id. "[T]he pros and cons of the
measure, including its possible legal flaws," Abdow, 468 Mass.
at 508, are not before us at this time.
The Oberlies plaintiffs also challenge an exception
included in Initiative Petition 17-07 that provides that "[t]he
requirements of this act, and its enforcement, shall be
suspended during a [S]tate or nationally declared public health
emergency." They argue that voters will misread this section,
and believe that the proposed act's requirements will be
suspended under any situation that commonly might be described
as an emergency, such as food poisoning at a popular restaurant
31
or a multivehicle accident on the expressway, rather than only
under the limited circumstances of a State or nationally
declared public health emergency. The proposal's language,
however, plainly states that its requirements would be suspended
only during a State or nationally declared public health
emergency. This claim does not assert any "errors of
draftmanship," see Nigro, 402 Mass. at 446, but, rather, appears
to challenge the narrow scope of the proposed exception. "The
plaintiffs' disagreements with the petition's purpose, the
methods chosen to achieve that purpose and the possible effects"
are not grounds upon which to reject an initiative petition.
See Mazzone, 432 Mass. at 529.
Finally, the Oberlies plaintiffs argue that Initiative
Petition 17-07 is fatally flawed because it does not adequately
set forth how the workforce reduction restriction will be
enforced, or the grounds for determining whether a violation has
occurred. They assert that the proposal's failure to answer
these questions will make the proposed act difficult to
implement, and "deprive voters of the ability to make an
informed electoral choice." The proposal, however, if approved,
would empower the HPC to "promulgate regulations governing and
ensuring the implementation and operation of th[e] act." A
petition does not lack the proper form solely because, at this
stage, the details of its administration are unclear. See
32
Mazzone, 432 Mass. at 530 ("The plaintiffs' argument that 'a
statutory scheme that demands arbitrary enforcement by providing
no guidance to those who must administer it states no law'
misconstrues the constitutional requirements for the enactment
of legislation by the people or the Legislature"). "[T]he
proper time for deciding definitively whether the measure has
the desired legal effect will come if and when the measure is
passed." Abdow, 468 Mass. at 508. That the full consequences
of the proposed act would be fleshed out after its passage does
not render its form improper. See id. at 509-510.
As a result, the Attorney General was correct in
determining that Initiative Petition 17-07 is in a proper form
for submission to the voters, pursuant to art. 48.
3. Conclusion. We remand the matter to the county court
for entry of a judgment declaring that the Attorney General's
decisions to certify Initiative Petition 17-07, and declining to
certify Initiative Petition 17-08, were in compliance with the
requirements of art. 48.
So ordered.