Dunn v. Attorney General , 474 Mass. 675 ( 2016 )

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SJC-12107
JAMES H. DUNN & another1 vs. ATTORNEY GENERAL & others.2
Suffolk. June 8, 2016. - July 6, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Initiative. Constitutional Law, Initiative petition. Attorney
General. Animal.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 25, 2016.
The case was reported by Duffly, J.
Katherine J. Spohn, of Nebraska (Mary Jacobson, of
Nebraska, with her) for the plaintiffs.
Elizabeth N. Dewar, Assistant Attorney General, for the
defendants.
Thomas O. Bean for the interveners.
1
Diane Sullivan.
2
Secretary of the Commonwealth. Three of the first ten
signers of the initiative petition at issue (Stephanie J.
Harris, Joann M. Lindenmayer, and Sharon B. Young) were allowed
to intervene as defendants. We acknowledge the brief submitted
by the interveners.
2
GANTS, C.J. In this appeal, we consider whether the
Attorney General properly certified an initiative petition
proposing a new law that would prohibit (1) confinement of egg-
laying hens, calves raised for veal, and breeding pigs on a
commercial farm "in a cruel manner," i.e., under conditions that
prevent them from lying down, standing up, fully extending their
limbs, or turning around freely; and (2) the sale by any
business within the Commonwealth of "shell" eggs, "whole veal
meat," and "whole pork meat" that the business owner or operator
"knows or should know" was produced from animals so confined.
The plaintiffs contend that this initiative petition was not
properly certified because the animal confinement restriction
and the prohibition against sale are not related or mutually
dependent subjects, and because the petition is not in "proper
form" insofar as it contains a statement of purpose that does
not constitute a "law" to be voted upon by the people. See art.
48, The Initiative, II, §§ 2, 3, of the Amendments to the
Massachusetts Constitution, as amended by art. 74 of the
Amendments. We conclude that the subjects contained in the
petition are sufficiently related to meet the requirements of
art. 48, and that the brief statement of purpose in the proposed
measure does not render it unfit for submission to the voters.
We therefore conclude that the initiative petition was properly
certified by the Attorney General.
3
Background. In August, 2015, the Attorney General received
a signed initiative petition entitled "An Act to prevent cruelty
to farm animals," which she numbered as Initiative Petition 15-
11 (petition 15-11 or petition). The petition contains two
principal provisions, which we shall refer to as the "farm
provision" and the "sales provision."
The farm provision, contained in section 2 of the petition,
would make it "unlawful for a farm owner or operator within the
Commonwealth of Massachusetts to knowingly cause any covered
animal to be confined in a cruel manner." "Covered animal" is
defined in section 5(D) as "any breeding pig, calf raised for
veal, or egg-laying hen that is kept on a farm."3 "Confined in a
cruel manner" is defined in section 5(E) as "confined so as to
prevent a covered animal from lying down, standing up, fully
extending the animal's limbs, or turning around freely."4
The sales provision, contained in section 3 of the
petition, would make it "unlawful for a business owner or
3
Section 5(H) of Initiative Petition 15-11 (petition)
defines a "[f]arm" as "the land, building, support facilities,
and other equipment that are wholly or partially used for the
commercial production of animals or animal products used for
food; and does not include live animal markets or establishments
at which inspection is provided under the Federal Meat
Inspection Act."
4
Under section 4 of the petition, transportation,
exhibitions and 4-H programs, slaughter, medical research,
veterinary examination and treatment, and certain breeding and
birthing practices are exempted from the definition of "confined
in a cruel manner."
4
operator to knowingly engage in the sale within the Commonwealth
of Massachusetts of any:
"(A) Shell egg that the business owner or operator knows or
should know is the product of a covered animal that was
confined in a cruel manner.
"(B) Whole veal meat that the business owner or operator
knows or should know is the meat of a covered animal that
was confined in a cruel manner.
"(C) Whole pork meat that the business owner or operator
knows or should know is the meat of a covered animal that
was confined in a cruel manner, or is the meat of the
immediate offspring of a covered animal that was confined
in a cruel manner."5
"Sale," as defined in the proposed measure, refers only to
commercial sales by a business.6 The sales provision is not
limited to the sale of eggs, veal, and pork from Massachusetts
farms; the sale of such products would be barred regardless of
the location of the farms that produced the eggs, veal, and
pork. Under section 7, the proposed law would provide a defense
for business owners and operators who rely "in good faith upon a
5
"Whole veal meat" and "[w]hole pork meat" are defined in
sections 5(T) and 5(S), respectively, as "any uncooked cut . . .
that is comprised entirely" of those meats, respectively; they
do not include "combination food products," such as "soups,
sandwiches, pizzas, hot dogs, or similar processed or prepared
food products."
6
Under section 5(M) of the petition, "[s]ale" means a
commercial sale by a business that sells any item covered by
section 3, but does not include any sale undertaken at an
establishment at which inspection is provided under the Federal
Meat Inspection Act. For purposes of this section, a sale is
deemed to occur at the location where the buyer takes physical
possession of an item covered by section 3.
5
written certification or guarantee by the supplier" that the
eggs, veal, or pork at issue did not come from animals confined
in a cruel manner.
Section 6 of the proposed law confers sole enforcement
authority on the Attorney General, who is authorized to seek
civil fines of up to $1,000 per violation, as well as injunctive
relief. Under section 10, the Attorney General would also be
responsible for promulgating, by January 1, 2020, rules and
regulations to implement the new law. The law's operative
provisions would take effect, pursuant to section 11, on January
1, 2022.
On September 2, 2015, the Attorney General certified to the
Secretary of the Commonwealth (Secretary) that the measure
proposed in petition 15-11
"is in proper form for submission to the people; that the
measure is not, either affirmatively or negatively,
substantially the same as any measure which has been
qualified for submission or submitted to the people at
either of the two preceding biennial state elections; and
that it contains only subjects that are related or are
mutually dependent and which are not excluded from the
initiative process pursuant to Article 48, the Initiative,
Part 2, Section 2."
On April 25, 2016, the plaintiffs commenced an action
against the Attorney General and the Secretary in the county
court, seeking relief in the nature of certiorari and mandamus
under G. L. c. 249, §§ 4 and 5, and requesting declaratory
relief under G. L. c. 231A. The plaintiffs sought declarations
6
that petition 15-11 fails to meet the requirements of art. 48
and that the Attorney General erred in certifying it, and
further requested a direction that the Secretary take no further
steps to advance the petition or submit it to the voters. A
single justice of the county court reserved and reported the
case to this court.
Discussion. When a new law is proposed by initiative
petition, it cannot be presented to the Legislature and the
voters for their consideration unless and until the Attorney
General reviews it and certifies that it meets the requirements
of art. 48 of the Amendments to the Massachusetts Constitution.
See art. 48, The Initiative, II, § 3, as amended by art. 74.
The plaintiffs contend that the Attorney General's certification
of petition 15-11 was improper because the petition does not
meet two of art. 48's requirements: (1) that a proposed measure
"contain[] only subjects . . . which are related or which are
mutually dependent" (related subjects requirement); and (2) that
the proposed measure be "in proper form for submission to the
people" (proper form requirement). Id. We review the Attorney
General's certification decision 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."
7
Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014), quoting
Carney v. Attorney Gen., 451 Mass. 803, 814 (2008) (Carney II).7
1. Related subjects requirement. The related subjects
requirement in art. 48 was adopted during the constitutional
convention of 1917-1918 in response to delegates' concerns about
voter confusion and the dangers of "log-rolling" in the
initiative process, i.e., the "practice of including several
propositions in one measure or proposed constitutional amendment
so that the . . . voters will pass all of them, even though
these propositions might not have passed if they had been
submitted separately." Carney v. Attorney Gen., 447 Mass. 218,
219 n.4 (2006) (Carney I), quoting Black's Law Dictionary 960
(8th ed. 2004). See Carney I, supra at 227-228; 2 Debates in
the Massachusetts Constitutional Convention 1917-1918 at 12,
537, 567, 701-702 (1918) (Constitutional Debates).8 To prevent
initiative petitions from being exploited in this manner, the
7
The scope of this review is limited solely to whether the
petition meets art. 48's requirements, and does not extend to
other potential challenges to the proposed law's validity or to
its interpretation. See Hensley v. Attorney Gen., 474 Mass.
, n.13 (2016); Abdow v. Attorney Gen., 468 Mass. 478, 507-
508 (2014).
8
We consider the proceedings of the constitutional
convention "not for the purpose of controlling the plain meaning
of words written into the Rearrangement of the Constitution but
of understanding the conditions under which it came into
existence and how it appears then to have been received and
understood by the convention." Cohen v. Attorney Gen., 357
Mass. 564, 572 (1970).
8
delegates considered potential limitations on their subject
matter. See Carney I, supra; Constitutional Debates, supra at
537, 856-857. One delegate offered an amendment to require that
"[n]o proposed law shall contain more than one subject," which
another delegate proposed modifying to state that a proposed law
"shall not contain unrelated subjects." See Carney I, supra;
Constitutional Debates, supra at 856-857. This modified
amendment was adopted by the convention, and, after some
reworking by the committee on form and phraseology, ultimately
was approved as the provision in art. 48, The Initiative, II,
§ 3, requiring the Attorney General to certify that a proposed
measure "contains only subjects . . . which are related or which
are mutually dependent." See Carney I, supra; Constitutional
Debates, supra at 953, 1051.
In light of this history, there is no single "bright-line"
test for determining whether an initiative meets the related
subjects requirement. See Abdow, 468 Mass. at 500, quoting
Carney I, 447 Mass. at 226. We do not construe the requirement
"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" by effectively
confining each petition to a single subject; we recognize that
the delegates to the constitutional convention that approved
art. 48 permitted more than one subject to be included in a
9
petition. Abdow, supra at 499. Nor do we construe the
requirement "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 . . . place them in the untenable position of
casting a single vote on two or more dissimilar subjects." Id.
Balancing these concerns, 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." Abdow, 468 Mass. at 499, quoting Massachusetts
Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209,
219-220 (1981). "We have not construed this requirement
narrowly nor demanded that popular initiatives be drafted with
strict internal consistency." Abdow, supra at 500, quoting
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.'" Abdow,
supra, quoting Carney I, 447 Mass. at 226. Consequently, we
have posed two questions to be considered in addressing the
related subjects requirement: 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, supra, quoting
Carney I, supra. Second, does the initiative petition "express
10
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, supra
at 501, quoting Carney I, supra at 230-231. See Gray v.
Attorney Gen., 474 Mass. , (2016) (discussing related
subjects requirement).
In this case, the plaintiffs argue that petition 15-11 does
not meet the related subjects requirement because the farm
provision prohibiting confinement of covered animals in a cruel
manner and the sales provision prohibiting sales of products
from animals so confined address different public policies.
They contend that the farm provision aims to prevent animal
cruelty, whereas the sales provision seeks to mitigate the
health and safety risks of animal confinement to Massachusetts
consumers and to regulate the sale of products derived from
these animals. They assert that the petition unfairly asks
voters to decide simultaneously whether to ban certain animal
farming methods and whether to require retailers to alter their
purchasing decisions. The plaintiffs also argue that the
petition contains unrelated subjects because it concerns three
different species of animals: egg-laying hens, calves raised
for veal, and breeding pigs. The plaintiffs contend that voters
may believe that certain confinement practices are beneficial
for one species but detrimental for another, so that voters
11
would not be able to affirm or reject the entire petition as a
unified statement of public policy.
We are not persuaded by these arguments. Both the farm
provision and the sales provision share a common purpose of
preventing farm animals from being caged in overly cramped
conditions, consistent with the statement of purpose in
section 1 of the proposed law, "to prevent animal cruelty by
phasing out extreme methods of farm animal confinement." The
two provisions also complement each other in the means of
accomplishing this common purpose. The farm provision bars farm
owners and operators in Massachusetts from confining hens,
calves, and pigs in a cruel manner, and the sales provision
prevents businesses in Massachusetts from selling eggs, veal,
and pork from animals that were confined in a cruel manner. The
latter 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. It
also protects hens, calves, and pigs in other States (and other
nations) by providing non-Massachusetts farmers with an economic
incentive not to confine their animals in a cruel manner if they
wish to sell their eggs, veal, and pork in the Massachusetts
market. See Massachusetts Teachers Ass'n, 384 Mass. at 220-221
 12
(all provisions of Proposition 2½ were germane to common purpose
where they all related "directly or indirectly to the limitation
of State and local taxation"). If the confinement of hens,
calves, and pigs were to pose a health and safety risk to
consumers, the sales provision would also serve the purpose of
protecting Massachusetts consumers from that risk, but we do not
see that as unrelated to the purpose of preventing the cruel
confinement of farm animals; it would simply be an ancillary
benefit from the prevention of that cruel confinement. Because
the petition's provisions share a common purpose and are related
in the accomplishment of that purpose, we conclude that a
reasonable voter may affirm or reject the entire petition as a
unified statement of public policy.
Finally, although the proposed law covers three different
species of farm animals, the petition treats all three species
similarly, applying the same prohibition against confinement in
a cruel manner to each of them. It is conceivable, as the
plaintiffs argue, that a voter might view the law's prohibition
against confinement in a cruel manner as appropriate for one
species but not for another. But that objection pertains to the
scope of the law, i.e., whether it was appropriate to include
all three species. "Provided the subjects are sufficiently
related," as we believe they are, "the choice as to the scope of
13
an initiative petition is a matter for the petitioners, not the
courts." Abdow, 468 Mass. at 503.
Accordingly, we conclude that the Attorney General properly
certified that petition 15-11 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 a single
petition containing both the farm and the sales provisions.
2. Proper form requirement. Under art. 48, only laws and
constitutional amendments can be presented through the
initiative process. See art. 48, The Initiative, I (defining
"the popular initiative" 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, II,
§ 1 ("An initiative petition shall set forth the full text of
the constitutional amendment or law . . . , which is proposed by
the petition"); Paisner v. Attorney Gen., 390 Mass. 593, 598
(1983) ("the popular initiative is confined to laws and
constitutional amendments"). Accordingly, an initiative
petition that proposes neither a law nor a constitutional
amendment is not "in proper form for submission to the people."
Art. 48, The Initiative, II, § 3, as amended by art. 74. See
Paisner, supra ("the Attorney General has . . . the duty,
pursuant to his review of the 'form' of the initiative petition,
14
to apply his legal judgment to the issue whether a law is
proposed").
"Although we have avoided a precise construction of the
term 'law' for purposes of art. 48, we have described it as
including a measure with binding effect . . . ." Mazzone, 432
Mass. at 530. An initiative petition that "merely invites a
declaration of opinion by voters" does not present a "law" in
proper form for submission to the voters. Opinion of the
Justices, 262 Mass. 603, 605 (1928). For example, the Justices
of this court have opined that an initiative petition did not
present a "law" where it asked Massachusetts voters simply to
decide whether their senators and representatives in the United
States Congress should be requested to repeal Prohibition. See
id. at 604, 606. We have also held that an initiative was not a
"law" that could be submitted to the people for approval or
rejection where it asked voters whether to call a constitutional
convention. See Cohen v. Attorney Gen., 357 Mass. 564, 578
(1970). And we have concluded that an initiative did not
propose a "law" where it sought to prescribe rules for the
Legislature's internal operations that could not bind the
Legislature absent a constitutional amendment, and therefore, if
enacted, "would be no more than a nonbinding expression of
opinion." Paisner, 390 Mass. at 601.
15
In the present case, the plaintiffs contend that petition
15-11 does not properly present a law due to its statement of
purpose in section 1, which provides:
"The purpose of this Act is to prevent animal cruelty by
phasing out extreme methods of farm animal confinement,
which also threaten the health and safety of Massachusetts
consumers, increase the risk of foodborne illness, and have
negative fiscal impacts on the Commonwealth of
Massachusetts."
The plaintiffs assert that inclusion of this "argumentative"
policy statement is improper, taints the entire petition, and
results in the petition not being in proper form for submission
to the people. The plaintiffs further argue that such policy
statements are not contemplated under art. 48 and should not be
permitted in initiative petitions.
We disagree. As a general matter, there is nothing
inherently improper about including a statement of purpose in an
initiative petition. Laws enacted by the Legislature frequently
include statements of purpose, which we have in turn used to
understand the intent of the enacting Legislature when called
upon to interpret those laws. See, e.g., Galenski v. Erving,
471 Mass. 305, 311 (2015) (citing statement of purpose in G. L.
c. 32B, § 1); R.D. v. A.H., 454 Mass. 706, 714 (2009) (citing
statement of purpose in G. L. c. 209C, § 1); Beale v. Planning
Bd. of Rockland, 423 Mass. 690, 695-696 (1996) (citing statement
of purpose in G. L. c. 41, § 81M). The people's power to enact
16
laws through popular initiatives is "coextensive with the
Legislature's law-making power under Part II, c. 1, § 1," of the
Massachusetts Constitution. Paisner, 390 Mass. at 601. See
Opinion of Justices, 375 Mass. 795, 817 (1978) ("except as to
matters expressly excluded, the scope of the power of the people
to enact laws directly is as extensive as that of the General
Court"). Statements of purpose are therefore appropriately
included in laws proposed by initiative petitions, just as they
are in legislative enactments.
Indeed, where we have been called upon to interpret the
meaning of laws adopted by initiative petition, we have been
guided by statements of purpose. Just last year, in
Commonwealth v. Canning, 471 Mass. 341 (2015), we cited the
statement of purpose in the new medical marijuana law, which had
been adopted by initiative petition, in analyzing whether the
law affected the requirements for a search warrant where the
crime alleged was the defendant's cultivation of marijuana
plants. See id. at 344, 352. See also Bates v. Director of the
Office of Campaign & Political Fin., 436 Mass. 144, 165-166
(2002).
The plaintiffs cite the Attorney General's Web site warning
to initiative proponents that it may be safer not to include
statements of purpose and declarations of public policy, because
they may result in a conclusion that the proposed law is not in
17
proper form for submission to the people. In response, the
Attorney General states that this warning was prompted by
concerns that a petition consisting solely of such statements
would not propose a proper law, or that a petition containing
wide-ranging policy statements might violate the related
subjects requirement. The Attorney General further states that
the statement of purpose in section 1 of petition 15-11 does not
raise these kinds of concerns. We agree.
The plaintiffs also contend that, even if a statement of
purpose does not always render the form of a petition improper,
it does here because it is "argumentative." The plaintiffs
have not called to our attention any case where we have found
error in the Attorney General's certification because of the
"argumentative" nature of the statement of purpose. Nor need we
determine whether a statement of purpose may be so argumentative
that it could make the form of a petition improper, because we
do not find the statement of purpose in this petition to be
unduly argumentative.
Accordingly, we conclude that an initiative petition
presenting a proposed law with binding effect may properly
include a statement of purpose. We therefore conclude that the
Attorney General correctly certified that petition 15-11 is in
proper form for submission to the people.
18
We now address two matters that do not affect our holding
in this case: first, the timing of the filing of this action;
and second, the one-sentence statements describing the effect of
a "yes" and "no" vote on petition 15-11.
3. Timing of actions challenging the Attorney General's
certification decisions. Article 48 requires that proposed
initiative petitions be submitted to the Attorney General by the
first Wednesday in August before the assembly of the Legislature
in which it is to be introduced. See art. 48, The Initiative,
II, § 3, as amended by art. 74. According to public information
provided by the Attorney General, this is typically done in an
odd-numbered year, i.e., in the year before an election year.
See Initiative Petition Process, 2015-2016: An Overview for
Interested Members of the Public,
http://www.mass.gov/ago/government-resources/initiatives-and-
other-ballot-questions/initiative-petition-process.html
[https://perma.cc/PR4Y-BZC9]. The Attorney General usually
determines whether a measure proposed by initiative meets the
requirements of art. 48 by the first Wednesday in September,
i.e., about one month later. Id. Decisions not to certify are
usually challenged within days. Id. Decisions to certify are
usually challenged after it is known whether the proponents have
gathered enough additional signatures by the first Wednesday in
19
December to move forward with the process. Id. See art. 48,
The Initiative, II, § 3, as amended by art. 74.
The plaintiffs commenced this action on April 25, 2016. In
her order reserving and reporting the case for consideration by
the full court, the single justice asked the plaintiffs to
"explain why this action was filed so late," and invited the
defendants to comment as well on the timing of this action and
"what they consider to be reasonable and appropriate time
guidelines for the filing of cases like this in the future."9
We share the single justice's concern with the timing of
the complaint. The Secretary is responsible for distributing an
Information for Voters guide (guide) describing initiative
petitions in advance of an election. See art. 48, General
Provisions, IV, as amended by art. 108 of the Amendments to the
Massachusetts Constitution; G. L. c. 54, § 53. This guide
includes the text of the proposed measures, the Attorney
General's summaries, the ballot question titles prepared by the
Attorney General and the Secretary, the one-sentence statements
describing the effect of a "yes" or "no" vote, statements
prepared by the Secretary of Administration and Finance
concerning the fiscal consequences of each measure for State and
municipal government finances, and arguments for and against
9
In response, the plaintiffs simply stated that they filed
the action "as expeditiously as possible."
20
each measure. See art. 48, General Provisions, IV, as amended
by art. 108; G. L. c. 54, §§ 53, 54. The Attorney General and
the Secretary report that the printing deadline for the guide
usually falls in early July. When an initiative petition is
challenged, this court endeavors to decide the case before the
July printing deadline to avoid the need for the printing of the
guide to be postponed or redone. But, if adequate time is to be
allowed for the parties to brief the issues and agree on a
statement of facts, if required, and for the county court or
this court to review the case, hear argument, and issue a
decision before the printing deadline, there should be a
deadline for the filing of a complaint challenging an Attorney
General's certification decision.
There is presently no such deadline in our Constitution or
laws, and we have previously held that an action alleging that
an initiative petition failed to meet art. 48's requirements was
not barred by laches, even though it "could have been brought at
earlier stages in the initiative process and before thousands of
signatures had been obtained and the measure had been submitted
to the people." Sears v. Treasurer & Receiver Gen., 327 Mass.
310, 326 (1951). We reasoned that "[f]ailure to comply" with
art. 48 "will mean that no valid law has been enacted, no matter
how great the popular majority may have been in its favor," and
that "[a]n unconstitutional law cannot be made valid by the
21
laches of anyone or by any lapse of time." Id. at 321, 326-327.
See Massachusetts Teachers Ass'n, 384 Mass. at 213, 231 n.19),
citing Sears, 327 Mass. at 326-327 (laches did not bar actions
claiming that initiative failed to meet art. 48's requirements,
even though actions were commenced after initiative was adopted
by voters; "The doctrine of laches has no significant role in
prompt, postelection challenges to the process by which an
initiative measure was adopted").
The Attorney General and the Secretary propose that actions
challenging the Attorney General's certification decisions
should be commenced in the county court by February 1 of an
election year. We agree this is a reasonable deadline, and
therefore strongly urge plaintiffs to file such challenges by
this date. As in a marriage ceremony, it is not unfair to ask
those who object to the Attorney General's certification of an
initiative petition to "speak now or forever hold your peace."
Filing a complaint by February 1 should ordinarily permit the
parties to brief the issues for a May hearing, and enable this
court to issue a decision by the end of June.10 Plaintiffs who
delay filing beyond this date should bear in mind that such
delay may make it impossible for this court to render a decision
before the guide is distributed, and may risk causing voter
10
We had to convene a special June sitting of the full
court to hear oral argument in this and two other challenges to
initiative petitions.
22
confusion and additional costs for the Commonwealth if the court
were to conclude that the Attorney General erred in certifying
an initiative petition.
4. The one-sentence "yes" and "no" statements. The
election ballot will contain only the summary of petition 15-11
written by the Attorney General and the one-sentence statements
jointly written by the Attorney General and the Secretary
describing the effect of a "yes" or "no" vote. See art. 48,
General Provisions, III, as amended by art. 74; G. L. c. 54,
§§ 42A, 53. The summary describes both the farm and the sales
provisions. The one-sentence statements, however, refer only to
the farm provision; they are silent as to the sales provision.11
General Laws c. 54, § 53, provides in relevant part:
"The secretary shall make available for public examination
a copy of the ballot question titles, [one]-sentence
statements describing the effect of a yes or no vote and
fiscal effect statements and shall publish them in the
Massachusetts register by the second Wednesday in May. Any
[fifty] voters may petition the supreme judicial court for
Suffolk county to require that a title or statement be
amended; provided, however, that the petition shall be
filed within [twenty] days after the publication of the
title and statement. The court may issue an order
requiring amendment by the attorney general and the state
11
The one-sentence statements inform voters as follows:
"A YES VOTE would prohibit any confinement of pigs, calves,
and hens that prevents them from lying down, standing up,
fully extending their limbs, or turning around freely.
"A NO VOTE would make no change in current laws relative to
the keeping of farm animals."
23
secretary only if it is clear that the title, [one]-
sentence statement or fiscal effect statement in question
is false, misleading or inconsistent with the requirements
of this section."
Neither the plaintiffs nor any other voters filed a petition
seeking to amend the one-sentence statements prepared by the
Attorney General and the Secretary for petition 15-11.
We, however, recognized that the one-sentence statements
might be clearly misleading to voters because they make no
reference to the sales provision, even though the initiative
petition includes only two primary provisions and, in contrast
with the farm provision, the sales provision will potentially
affect every Massachusetts consumer of eggs, veal, and pork.12
We therefore invited the parties and interveners at oral
argument to provide supplemental briefs as to whether we have
the legal authority to order the Attorney General and Secretary
12
We also recognize that the one-sentence statements
cannot, and should not, attempt to describe all the elements of
a proposed measure. That would undermine their usefulness as a
shorthand reference for voters. We also recognize that
deference is due the Attorney General's and the Secretary of the
Commonwealth's reasonable judgments in deciding what to include
in the one-sentence statements, as evidenced by the statute
permitting the court to order amendment "only if it is clear"
that the statement "in question is false, misleading or
inconsistent with" the statute's requirements (emphasis added).
G. L. c. 54, § 53. And we acknowledge that the one-sentence
statements are supplemented by other information provided to
voters, most importantly the Attorney General's summary, which
clearly describes the sales provision.
24
to amend the one-sentence statements where no complaint was
filed under § 53.13
We conclude that, even if we were to find that the one-
sentence statements are clearly misleading, we have no power to
order their amendment where no petition has been filed under
§ 53. Where a statute requires that a certain claim can only be
brought by a stated number of specified plaintiffs in a
particular court, we have treated these requirements as
jurisdictional, and we have been reluctant to infer jurisdiction
on some other basis. See Litton Business Sys., Inc. v.
Commissioner of Revenue, 383 Mass. 619, 621-622 (1981) (statute
that permits "ten taxable inhabitants" to petition court to
enjoin municipality from unlawfully raising or expending money
imposes jurisdictional requirements; action did not come within
general jurisdiction of court of equity, and could be maintained
only in accordance with statute); Carlton v. Salem, 103 Mass.
141, 143 (1869) (where statutes expressly confer jurisdiction in
particular circumstances, they "create a strong implication
against the existence of . . . general equity jurisdiction").14
13
We also invited the supplemental briefs to address
whether the one-sentence statements were clearly misleading and,
if they were and if we had the authority to order amendment,
what language the parties and interveners would recommend we
adopt.
14
In particular, the requests in the plaintiffs' complaint
for relief in the nature of certiorari and mandamus, and for
25
Because we conclude that we lack jurisdiction to order amendment
of the one-sentence statements, we do not reach the question
whether they are clearly misleading.
Conclusion. Having determined that the Attorney General
properly certified petition 15-11 pursuant to art. 48, The
Initiative, II, § 3, as amended by art. 74, we remand the case
to the county court for entry of a declaratory judgment to that
effect.
So ordered.
declaratory relief, do not provide an alternative basis for us
to exercise jurisdiction to order amendment of the one-sentence
statements. It is well settled that certiorari and mandamus
cannot be employed as alternative routes to relief where another
avenue already exists. See, e.g., Picciotto v. Superior Court
Dep't of the Trial Court, 436 Mass. 1001, 1001 (2002), cert.
denied, 537 U.S. 820 (2002), quoting G. L. c. 249, § 4
("Certiorari simply does not provide an additional or
alternative avenue of appellate review. . . . [T]he purpose of
a civil action in the nature of certiorari is to correct errors
that 'are not otherwise reviewable by motion or by appeal'");
Callahan v. Superior Court, 410 Mass. 1001, 1001 (1991) ("It is
well settled that relief in the nature of mandamus is
extraordinary and may be granted only to prevent a failure of
justice in instances where there is no alternative remedy").
Nor can a declaratory judgment action create jurisdiction where
none exists. "General Laws c. 231A, § 1, does not expand the
jurisdiction of the courts upon which it confers power to render
declaratory decrees; the statute makes it clear that this power
is conferred on the courts 'within their respective
jurisdictions'" (footnote omitted). Sisters of Holy Cross of
Mass. v. Brookline, 347 Mass. 486, 491 (1964).