June 8, 2016
action commenced in the Supreme Judicial Court for the county
of Suffolk on April 22, 2016, The case was reported by
action commenced in the Supreme Judicial Court for the county
of Suffolk on May 10, 2016, The case was reported by
S. Scheft for Josephine Hensley & others.
E. Toone, Assistant Attorney General, for the defendants.
R. Kiley for Matthew John Allen & others.
G. Evans, of New Jersey, for Massachusetts Hospital
Association & others, amici curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines,
N.E.3d 643] Gants, C.J.
have before us two cases involving an initiative petition
that, if approved by the voters in the November, 2016,
election, would legalize, regulate, and tax marijuana and
products that contain marijuana concentrate. The plaintiffs
in the first case (Hensley case) claim that the Attorney
General erred in certifying the petition for inclusion on the
ballot under art. 48 of the Amendments to the Massachusetts
Constitution because it contains subjects that are not
related or mutually dependent. They also claim that the
Attorney General's summary of the measure is not fair.
Finally, they contend that, if the question is to be included
on the ballot, we should require the Attorney General and the
Secretary of the Commonwealth (Secretary) to amend the title
and the one-sentence statements they prepared because they
are clearly misleading, in violation of G. L. c. 54, §
53. The plaintiffs in the second case (Allen case) include
eleven of the original fifteen signers of the initiative
petition. They challenge only the title and the one-sentence
" yes" statement prepared by the Attorney General
and the Secretary, but on grounds different from those
alleged by the Hensley plaintiffs.
conclude that the Attorney General did not err in certifying
the petition for inclusion on the ballot under art. 48
because the petition contains only related subjects. We also
conclude that her summary of it is fair. Finally, we conclude
that it is clear that the title assigned to the petition and
the one-sentence statement describing the effect of a "
yes" vote are misleading, in violation of § 53, and
we therefore order the Attorney General and the
Secretary to amend the title and statement.
Description of the petition.
petition proposes comprehensive statutory changes in the law
governing marijuana in what its proponents have entitled
" The Regulation and Taxation of Marijuana Act"
(proposed act). The stated purpose of the proposed act is
" to control the production and distribution of
marijuana under a system that licenses, regulates and taxes
the businesses involved in a manner similar to alcohol and to
make marijuana legal for adults [twenty-one] years of age or
older." Its stated intent is " to remove the
production and distribution of marijuana from the illicit
market and to prevent the sale of marijuana to persons under
[twenty-one] [53 N.E.3d 644] years of age by providing for a
regulated and taxed distribution system."
centerpiece of the proposed act is the addition of a new
chapter of the General Laws (chapter 94G), comprising
fourteen detailed sections, that would legalize under
Massachusetts law the possession, use, and transfer of
marijuana and products containing marijuana concentrate
(including edible products) and the cultivation of marijuana,
all in limited amounts, by individuals twenty-one years of
age or older. Among other things, the new chapter
94G would permit an individual lawfully to purchase and
possess one ounce or less of marijuana, not more than five
grams of which may be in the form of marijuana
concentrate. It would also permit the possession in
one's home of up to ten ounces of marijuana, the
cultivation of a limited number of marijuana plants in
one's home for personal use, and the private transfer
without remuneration of up to one ounce of marijuana, not
more than five grams of which could be marijuana concentrate,
to another individual age twenty-one or older. It would not
permit the public
consumption of marijuana.
proposed act also contains detailed provisions for the
licensing, operation, and regulation of the various types of
" marijuana establishments" that would be engaged
in marijuana-related business in Massachusetts, including
marijuana cultivators, product manufacturers, retailers, and
testing facilities. It would amend G. L. c. 10 by adding two
new sections, § § 76 and 77, that would create new
authorities within the Department of the State Treasurer: a
" cannabis control commission" and a "
cannabis advisory board." The cannabis control
commission would consist of three members appointed by the
Treasurer, and would " have general supervision and sole
regulatory authority over the conduct of the business of
marijuana establishments" in the Commonwealth. The
cannabis advisory board would consist of fifteen members
appointed by the Governor, and " study and make
recommendations" to the commission " on the
regulation of marijuana and marijuana products."
proposed act would also add a new chapter to the General Laws
(chapter 64N) that would provide for the taxation of the
retail sale to consumers of marijuana and marijuana products.
Specifically, chapter 64N would impose on each such sale, in
addition to whatever sales tax may be due under existing
State law, an excise equal [53 N.E.3d 645] to 3.75 per cent
of the total sales price. The new law would also authorize
cities and towns to impose an additional local sales tax of
up to two per cent.
94G of the proposed act states that " [t]his chapter
shall not be construed to affect the provisions of chapter
369 of the acts
of 2012, relating to the medical use of marijuana as enacted
by the people in the state election of 2012." See St.
2012, c. 369 (medical marijuana law). However, several
provisions concern medical marijuana and medical marijuana
treatment centers. First, the sale of medical marijuana and
medical marijuana products would be exempt from the new 3.75
per cent excise tax. Second, the proposed act would permit a
registered medical marijuana treatment center also to obtain
a license to operate as a marijuana retailer and, if
separately licensed, to operate both a medical and retail
operation at a shared location. Cities and towns would not be
allowed to prohibit a retailer under the new law from
operating in any zoned area in which a medical marijuana
treatment center is already registered. Third, although the
proposed act requires the commission to promulgate its
initial regulations no later than September 15, 2017, and to
begin accepting license applications shortly thereafter, it
also provides, in the event regulations are not promulgated
by January 1, 2018, that existing medical marijuana treatment
centers may begin to cultivate, manufacture, and sell
marijuana and marijuana products until the commission
promulgates the necessary regulations and issues licenses for
establishments under the new law. Finally, medical marijuana
treatment centers would be allowed to apply for licenses
under the new law earlier than other applicants and, in
certain circumstances, would be given preference in receiving
licenses under the new law.
initiative petition was filed with the Attorney General in
August, 2015, for her consideration pursuant to art. 48, The
Initiative, II, § 3, of the Amendments to the
Massachusetts Constitution, as amended by art. 74 of the
Amendments. The Attorney General determined that the proposed
act " contains only subjects not excluded from the
popular initiative and which are related or which are
mutually dependent," and therefore that it was " in
proper form for submission to the people." Id.
She also prepared a summary of the proposed act to be printed
at the top of the petition forms that the proponents would
use to gather the requisite signatures. The proponents
thereafter filed the petition with the Secretary, collected
more than the necessary number of additional signatures, and
in December, 2015, timely filed the signed petition forms
with the Secretary, all as required
by art. 48. The Secretary transmitted the petition to the
House of Representatives in accordance with art. 48, The
Initiative, II, § 4. The parties agree that
if the proponents gather and submit sufficient additional
signatures by July 6, 2016, as required by art. 48, The
Initiative, V, § 1, [53 N.E.3d 646] the Secretary
intends to take the necessary steps to place the proposed law
on the November ballot.
addition to the Attorney General's summary, the Attorney
General and the Secretary, in accordance with G. L. c. 54,
§ 53, jointly prepared a title for the question and two
one-sentence statements describing, respectively, the effect
of a " yes" vote and the effect of a "
no" vote on the ballot question.
plaintiffs in the Hensley case, who are fifty-nine registered
Massachusetts voters, commenced their action in the county
court on April 22, 2016, alleging, among other things, that
the proposed act contains two unrelated subjects -- the
legalization of marijuana for adult use and a change in the
restrictions on medical marijuana treatment centers. They
also allege that the Attorney General's summary is not
fair as required by art. 48 because it does not adequately
explain that the proposed act would also legalize "
hashish" and food products containing
tetrahydrocannabinol (THC). Finally, they allege that the
title and one-sentence " yes" statement prepared by
the Attorney General and the Secretary are misleading because
they do not mention hashish or edible products containing
THC. They request a declaration that the Attorney
General's certification and summary are improper, and an
order enjoining the Secretary from placing the matter on the
ballot. They also ask the court to exercise its power under
§ 53 to order the Attorney General and the Secretary to
amend the title and the one-sentence " yes"
statement. A single justice of this court
reported the Hensley case to the full court without decision.
plaintiffs in the Allen case, sixty-three registered
Massachusetts voters, commenced their action in the county
court on May 10, 2016. They allege that the title given to
the initiative by
the Attorney General and Secretary, " Marijuana
Legalization," is false and misleading because the
proposed act would not " fully legalize marijuana,"
and because it makes no mention of the proposed act's
" regulation" and " taxation" of
marijuana. They also claim that the inclusion of the words
" including tetrahydrocannabinol (THC)" in the
" yes" statement is neither fair nor neutral. They
also allege, among other things, that the one-sentence "
yes" statement is misleading because it incorrectly
states that " marijuana accessories" would be taxed
under the new law. They ask the court for an order pursuant
to G. L. c. 54, § 53, amending the title and the "
yes" statement. A single justice of this court reported
the Allen case to the full court without decision.
first address the Hensley plaintiffs' claim that the
Attorney General's certification of the proposed act
violated art. 48, The Initiative, II, § 3, as amended by
art. 74, because it combines two unrelated subjects:
marijuana legalization and a " preferential licensing
system that turns non-profit, medical marijuana treatment
centers into profit-making businesses."
is no single " bright-line" test for determining
whether an initiative meets the related subjects requirement.
[53 N.E.3d 647] See Abdow v. Attorney
Gen., 468 Mass. 478, 500, 11 N.E.3d 574 (2014), quoting
Carney v. Attorney Gen., 447 Mass.
218, 226, 850 N.E.2d 521 (2006) ( Carney I ),
S.C., 451 Mass. 803, 890 N.E.2d 121 (2008). 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 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. See Dunn
v. Attorney Gen., 474 Mass. 675, 679-680,
(2016) (describing adoption of related subjects requirement
in art. 48 at constitutional convention of 1917-1918).
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
Teachers Ass'n v. Secretary of the
Commonwealth, 384 Mass. 209, 219-220, 424 N.E.2d 469
(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, 736 N.E.2d 358 (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 in considering whether an initiative petition meets
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 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, 447 Mass. at 230-231. See
Gray v. Attorney Gen., 474 Mass.
638, 644-645, (2016) (discussing related subjects
initiative petition in this case easily satisfies the related
subjects requirement of art. 48. It lays out a detailed plan
to legalize marijuana (with limits) for adult use and to
create a system that would license and regulate the
businesses involved in the cultivation, testing, manufacture,
distribution, and sale of marijuana and that would tax the
retail sale of marijuana to consumers. The possible
participation of medical marijuana treatment centers in the
commercial distribution of marijuana is adequately related to
this over-all detailed plan.
present, medical marijuana treatment centers in Massachusetts
are governed by St. 2012, c. 369, the medical marijuana law
adopted by the voting public in an initiative petition in
November, 2012, and by the extensive regulations promulgated
thereunder by the Department of Public Health. See 105 Code
Mass. Regs. § § 725.000 (2013). The proposed act
would not revise the language of the medical [53 N.E.3d 648]
marijuana law or its regulations. It would, however, permit
an entity registered to operate a medical marijuana treatment
center under the medical marijuana law also to apply for and
obtain a license under the new law to operate a commercial
marijuana establishment, and would allow the commercial
operation to be at the same location as the medical marijuana
center. The co-location of a commercial marijuana
retail operation and a medical marijuana center would not
relieve the center of its obligations under the medical
marijuana law and regulations; it would, however, subject the
retail operation to the provisions of the new law and the new
regulations. " A measure does not fail the relatedness
requirement just because it affects more than one statute, as
long as the provisions of the petition are related by a
common purpose." Albano v.
Attorney Gen., 437 Mass. 156, 161, 769 N.E.2d 1242
inclusion of medical marijuana treatment centers as potential
retailers in the commercial market is simply one piece of the
proposed integrated scheme. The fact that the
initiative's proponents might have chosen instead to
prohibit medical marijuana treatment centers from
participation in the retail market does not affect the
coherence of the proposal as a unified statement of public
policy that is a proper subject for a " yes" or
" no" vote. See Massachusetts Teachers
Ass'n, 384 Mass. at 220 (" It is not for the
courts to say that logically and consistently other matters
might have been included or that particular subjects might
have been dealt with differently" ). A voter who favors
the legalization of marijuana but not the participation in
the retail market of entities registered as medical marijuana
treatment centers is free to vote " no" if he or
she thinks that the dangers of mixing medical marijuana
distribution with retail distribution overcome the benefits
of the proposal, but the proposed act does not place anyone
" in the untenable position of casting a single vote on
two or more dissimilar subjects" (emphasis
added). Abdow, 468 Mass. at 499.
Attorney General's summary.
plaintiffs in the Hensley case also challenge the Attorney
General's summary of the proposed act. Article 48, The
Initiative, II, § 3, as amended by art. 74, requires the
Attorney General to prepare a " fair, concise
summary" of each certified initiative petition. The
one of the key pieces of information available to voters both
when they are asked to sign an initiative petition and when
they ultimately vote on an initiative that has made its way
onto the ballot. It is printed at the top of the blank
petition forms used by the initiative's proponents to
gather signatures. Id. It also appears in the
Information for Voters guide (guide) that is prepared by the
Secretary and sent to each ...