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Hensley v. Attorney General

Supreme Judicial Court of Massachusetts, Suffolk

July 6, 2016

Josephine Hensley & others [1]
v.
Attorney General & another. [2] Matthew John Allen & others
v.
Attorney General & another.

         Argued June 8, 2016

Page 652

          Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 22, 2016, The case was reported by Duffly, J.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 10, 2016, The case was reported by Spina, J.

          John S. Scheft for Josephine Hensley & others.

          Robert E. Toone, Assistant Attorney General, for the defendants.

          Thomas R. Kiley for Matthew John Allen & others.

          David G. Evans, of New Jersey, for Massachusetts Hospital Association & others, amici curiae, submitted a brief.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

          [53 N.E.3d 643] Gants, C.J.

          We 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.

         We 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

Page 653

Secretary to amend the title and statement.[5]

          Description of the petition.

          The 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."

         The 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.[6] 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.[7] 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

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consumption of marijuana.[8]

         The 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."

         The 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.[9]

         Chapter 94G of the proposed act states that " [t]his chapter shall not be construed to affect the provisions of chapter 369 of the acts

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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.

          Procedural history.

          The 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.[10] 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

Page 656

by art. 48. The Secretary transmitted the petition to the House of Representatives in accordance with art. 48, The Initiative, II, § 4.[11] 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.

         In 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.

         The 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.[12] A single justice of this court reported the Hensley case to the full court without decision.

         The 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

Page 657

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.

          Discussion.

          1. Related subjects.

          We 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."

          There 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).

         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

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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 requirement).

         The 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.

         At 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

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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 (2002).[13]

         The 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.

         2. Attorney General's summary.

         The 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 summary is

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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 ...


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