May 2, 2016
action commenced in the Supreme Judicial Court for the county
of Suffolk on December 7, 2015.
case was reported by Cordy, J.
Matthew S. Cameron for the plaintiffs.
Elizabeth N. Dewar, Assistant State Solicitor, for the
Jeffrey S. King & Hayley Trahan-Liptak, for Eugene McCain,
amicus curiae, submitted a brief.
Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ.
N.E.3d 629] Gants, C.J.
this appeal, we decide whether the Attorney General properly
certified an initiative petition that seeks to amend G. L. c.
23K to authorize the Gaming Commission (commission) to award
one additional license for a slot machine parlor. Article 48
of the Amendments to the Massachusetts Constitution, which
governs the process for presenting proposed laws directly to
Massachusetts voters through popular initiatives, sets forth
certain standards for initiative petitions. In this case, the
plaintiffs contend that the petition violates two of art.
48's restrictions, which prohibit initiative petitions
that are (1) limited to local matters, or (2) substantially
the same as those presented at either of the two preceding
biennial State elections. 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 petition complies with these provisions and
was therefore properly certified by the Attorney General.
2011, the Legislature enacted the Expanded Gaming Act, St.
2011, c. 194, which established the commission and a highly
structured process for introducing, licensing, and regulating
casino and slots gambling in the Commonwealth under a new
statute, G. L. c. 23K. See Abdow v.
Attorney Gen., 468 Mass. 478, 480-483, 11 N.E.3d 574
(2014) (describing Expanded Gaming Act). Chapter 23K
authorizes the commission to award up to three "
category 1" licenses for gaming establishments "
with table games and slot machines" (i.e., casinos) in
certain specified regions of the Commonwealth, and no more
than one " category 2" license for a gaming
establishment " with no table games and not more than
1,250 slot machines" (i.e., a slots parlor). See G. L.
c. 23K, § 2 (defining category 1 and 2 licenses); G. L.
c. 23K, § 19 ( a ) (specifying number and
regional locations of category 1 licenses); G. L. c. 23K,
§ 20 ( a ) (specifying number of category 2
licenses). Chapter 23K also requires the commission to
for category 2 slots parlor licenses before requesting
applications for category 1 casino licenses. See G. L. c.
23K, § 8 ( a ).
August 5, 2015, the proponent, Eugene McCain, filed an
initiative petition for " An Act relative to expanded
gaming," (petition 15-34 or petition), pursuant to art.
48. This petition seeks to amend G. L. c.
23K in two ways. First, the petition would amend G. L. c.
23K, § 20, by adding a new subsection ( g )
that would authorize, but not require, the commission to
award one additional category 2 slots parlor license to a
qualified applicant, but only for a location that meets the
" The proposed location of the gaming establishment
shall be at least 4 acres large, and shall be adjacent to,
and within 1500 feet of, a race track, including the track,
grounds, paddocks, barns, auditorium, amphitheatre and/or
bleachers, [53 N.E.3d 630] if any, where a horse racing
meeting may physically be held, which race track shall have
hosted a horse racing meeting, provided that said location is
not separated from said race track by a highway or
the petition would eliminate the timing requirement in G. L.
c. 23K, § 8, so that the commission may solicit
applications for a category 2 slots parlor license
concurrently with or after the solicitation of applications
for category 1 casino licenses.
letter to the Secretary of the Commonwealth (Secretary) dated
September 2, 2015, the Attorney General certified that
" this measure 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."
December 7, 2015, the plaintiffs, ten registered voters and
residents of Suffolk County, 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 allege
in their complaint that the petition concerns an excluded
local matter in violation of art. 48, because it would "
restrict the newly-available license to gaming establishment
proposals in the immediate vicinity of Suffolk Downs, a
thoroughbred horse racing track which spans two
municipalities (Boston and Revere) in Suffolk County."
In connection with that allegation, the plaintiffs submitted
a September 12, 2015, Boston Globe article reporting that
McCain, " the man who is driving the campaign" for
the initiative petition, had an agreement to buy a
mobile-home property near Suffolk Downs in Revere. According
to the article, McCain raised with Revere officials the
prospect of putting slot machines at the site, although the
city did not support the proposal. The plaintiffs also allege
that the petition violated art. 48's prohibition on
presenting " substantially the same" measure as had
been proposed within the two preceding biennial State
elections, because in the November, 2014, election the voters
had considered ballot question 3, entitled " Expanding
Prohibitions on Gaming."
February 25, 2016, a single justice of the county court
reserved and reported the case for determination by this
Article 48 of the Amendments to the Massachusetts
Constitution establishes the process and standards for
enactment of a law by " popular initiative, which is the
power of a specified number of voters to submit
constitutional amendments and laws to the people for approval
or rejection." Art. 48, I. Article 48 requires that,
before the proponents of an initiative petition can start the
process of soliciting signatures from additional voters,
submitting the petition to the Legislature for possible
action, and placing it on the ballot, they must submit the
petition [53 N.E.3d 631] by a certain date to the Attorney
General for review. Art. 48, The Initiative, II, § 3, as
amended by art. 74. The Attorney General must then decide
" certify that the measure and the title thereof are in
proper form for submission to the people, and that the
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
not excluded from the popular initiative and which are
related or which are mutually dependent."
Id. If the Attorney General certifies that the
initiative petition meets these criteria, and the proponents
submit the required number of additional signatures of
qualified voters to the Secretary by a certain date, the
Secretary will then transmit the initiative petition to the
House of Representatives for consideration. See id.
§ 4; art. 48, The Initiative, V, § 1, as amended by
art. 81 of the Amendments to the Massachusetts Constitution;
Lincoln v. Secretary of the
Commonwealth, 326 Mass. 313, 317-318, 93 N.E.2d 744
(1950). If the Legislature fails to enact the proposed law by
a certain date, and the proponents succeed in
obtaining and timely submitting the required number of
further additional signatures, then the Secretary will submit
the initiative petition to the voters at the next State
election. Art. 48, The Initiative, V, § 1, as amended by
the Attorney General acts as the gatekeeper for the
initiative process, ensuring that a proposed petition meets
certain constitutional requirements before it can be
submitted to the Legislature and the voters. The Attorney
General's review does not involve, however, an "
inquiry into [the] substance" of a proposed measure; she
is to be " not the censor, but the aid and interpreter
of the people's will," allowing " the people
[to] speak freely," with " as little restraint as
possible." Nigro v. Attorney
Gen., 402 Mass. 438, 446-447, 523 N.E.2d 467 (1988),
quoting 2 Debates in the Massachusetts Constitutional
Convention 1917-1918, at 728 (1918) (Constitutional Debates).
See Yankee Atomic Elec. Co. v.
Secretary of the Commonwealth, 403 Mass. 203, 211,
526 N.E.2d 1246 (1988) ( Yankee II ).
have long held that " the certificate of the Attorney
General" concerning an initiative petition " is
open to inquiry as to its conformity to the Constitution in
appropriate proceedings." Hortonv.Attorney Gen., 269 Mass. ...