WEBVTT
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Chief Justice Ralph Gants,
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why don't we first get a roll call,
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Justice Lenk had (mumbles)
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she'll be be back on momentarily, I just.
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So among Justices,
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we have,
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Justice Gaziano,
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(mumbles)
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we have Justice Lenk back.
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Again, wait a moment for her.
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I just emailed her somebody can text her.
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(clears throat)
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While we're waiting for them,
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now joining
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You're live again.
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Okay, you're back, good.
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What happened
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(tone)
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you'd been cut off I'm sorry.
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It's all right,
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on behalf of Mr. Wiener who do we have?
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Robert Cordy.
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And on behalf of AG?
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Assistant Attorney General Juliana Rice, Your Honor,
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with me are Anne Sturman and Kendra Kinscherf.
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Okay, all right.
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I will go through the protocol with you,
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I believe Connealy has already described,
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First Connealy, do we have you on the line?
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I trust we do.
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Yes chief.
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The protocol is that,
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Mr. Cordy will argue first,
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he will have in the bowl for about three minutes
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to argue without interruption.
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If he wishes, invite questions earlier,
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he of course may do so by simply inviting.
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He will then be asked questions by seniority,
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Justice Lenk first, I will be asking questions last.
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After I finished my questions,
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we will give each of the
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Justices a chance to ask follow up questions
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if any of them wish.
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And of course we will do the same with regard to Miss Rice.
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If anybody is on a landline and has a cell phone please,
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silence your cell phones and if
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any of you are,
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not speaking, please mute your phone so that
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we don't have any more background noise and it's inevitable.
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And with that, Mr. Cordy you may begin.
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Thank you.
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What Cumberland Farms is attempting to do
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and it's initiative petition is exactly
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what the framers of Article 48,
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here special interest would do.
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Combining in a single initiative what is popular,
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with what was, with what is desired
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by their own selfish interest.
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The framers would call it log rolling,
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shielding those real interests
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behind unrelated shiny objects.
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A few more beer and wine stores in the neighborhood.
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More rigorous identification requirements
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to reduce underage purchasing of alcohol
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and a beefed up ABCC to enforce alcohol laws.
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It has a common purpose here,
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it is to enrich Cumberland Farms,
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increasing the number of statewide licenses they have,
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from seven to say, 200.
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To do that, they need to remove or get around the cap,
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on the statewide ownership of off-premises alcohol licenses.
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But statewide cap addresses
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important public policy concerns,
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the dangers of concentration of power
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in the liquor industry, preventing monopolies,
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indiscriminate price cutting, excessive advertising,
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preserving the rights of small independent dealers
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to do business.
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These policy concerns have been the subject of
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intense legislative debate and disagreements
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for more than 40 years.
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Not surprisingly, none of those debates
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have ever involved the community population based limits
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on licenses relied upon and ratified by communities
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since the end of prohibition,
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which the petition would also effectively eliminate.
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The concerns underlying the population based limits,
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are very important and completely unrelated
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to those underlining the statewide cap.
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And they directly affect the (mumbles)
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of our communities and minimize the harm
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that flows from increased alcohol store
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intensity, density, excuse me.
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Increased consumption, increased levels of
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assault and homicide, child abuse and neglect,
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self inflicted and traffic injuries.
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So these two policy cornerstones, the statewide cap,
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and the population based community limits,
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are related only at the abstract level
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of alcohol regulation.
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And that is not sufficient.
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There is no unified statement of public policy here,
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on which a voter can vote yes or no.
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The shiny objects used to make more attractive these
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unrelated provisions compound the constitutional problems.
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What after all, the new identification rules,
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have to do with the statewide cap,
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and not on the number of licenses that a company can own.
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Nothing.
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They are neither related to
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nor mutually dependent on each other.
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The petitioner and the Attorney General contend that,
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such provisions can be permissively combined,
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not that they are related, to the other provisions,
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but because they address the potential consequences
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of adding an unlimited number of
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food store licenses to our communities,
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and they fight the Oberlies case.
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However, the decision in Oberlies undercuts that issue.
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In Oberlies, the court went out of its way to point out
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that the inclusion of limitations
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on medical staff reductions,
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which was intended to address potential consequences
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of the now nurse-patient ratio requirement,
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which was the common purpose of that petition,
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were permissible only as applied to reductions
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triggered by the implementation of the new nurse ratio
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and not for any other reason.
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That of course is totally inconsistent
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with the identification provisions in this petition.
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Those provisions are not limited
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to addressing the potential consequences triggered
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by the new food store licenses have had to apply.
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With a few exceptions, wineries,
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to all Off-premises Alcohol Beverage Licensees,
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which are now governed by the Safe Harbor law,
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including the thousands who are
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currently licensed under Chapter 138.
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Again, having nothing to do with
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the statewide ownership cap.
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Certainly the funding of staff ratio provisions
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for the ABCC, by their very terms,
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direct the ABCC to expand the money
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and use the staff not only for
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implementing the provisions of the initiative petition,
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but also for the ongoing administration
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and enforcement of the alcohol laws generally.
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Again, inconsistent with Oberlies limits,
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on including unrelated provisions in anticipation
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of the likely consequences.
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In some, if but one of included provisions
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is not related to, nor mutually dependent on the others,
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there is no unified statement of public policy
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and the petition fails the Article 48 requirement.
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And that is plainly the case here.
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Thank you.
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All right.
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I'll turn to Justice Lenk and ask if you have any questions.
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Lenk.
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They need to unmute.
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Oh my goodness, I'm sorry.
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(mumbles)
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I wanted to focus on the related decisions,
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to begin with and
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I wonder if Mr. Cordy if you were using
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the (mumbles) the purposes of the Attorney General
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or the, one of the voters in the initial decision,
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in your analysis,
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the one proposed by the Attorney General of course,
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puts restrictions on the number and allocation of licenses.
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And of course, the limit proposed by the voter
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is taking the initial petition
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to establishments with assistance,
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enhancing the discretion of licensing authorities
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to create off-premises alcohol beverages.
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I'm wondering which one you're using?
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Well, it is interesting that there were
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two different views of in fact what the relatedness is.
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The AG's common purpose,
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which is to lift restrictions on the number
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and allocation of licenses for the retail sales
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of alcoholic beverage off-premises
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actually speaks volumes.
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It does two things.
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It talks about lifting restriction on the number.
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We're talking about community based population limits,
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which is a very important policy
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and the allocation which is an entirely different policy,
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the statewide ownership cap.
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So it is talking about two very different public policies
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implicated in the same petition.
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When you say that, impermissible?
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What?
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These are unrelated policies.
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No, by law, (mumbling)
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policy can be unrelated to themselves,
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but they are both serving common purpose.
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I'm sorry, I can't.
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I'm sorry, can't there be a common purpose,
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without explaining the unrelated policies?
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But what's the common purpose?
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Says the common purpose is to lift the restriction
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on the number and allocation of licenses.
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Well, those implicate two very different public policies
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on which a voter would have very different views,
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and that's the problem.
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The statewide cap has nothing to do with the
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population limits that communities live with
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and have prohibition.
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Okay.
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Next thing is I'm hoping that,
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(mumbles)tend to be specific appropriations
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aren't gonna be like,
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I am hoping you'll explain to me what appropriations means
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under the framers intention.
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Yes.
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Its like (mumbles) here was to money in control,
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the legislature, or keep the budget cuts
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in control of legislature.
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I'm not sure what you want, or is both of them?
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I'm having a very difficult time hearing, I'm sorry.
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I'm sorry, I'm very sorry about this.
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Let me see if I can get, is that better?
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I'll just put it
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Much better.
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Much better?
Okay.
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So what I want to get to,
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is this specific appropriations argument that you make,
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and picking out what the
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original purpose of the framers was,
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because it seems to me maybe there's,
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a tension here between,
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was it keeping money in control of legislature,
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keeping the budget process in control of the legislature,
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I'm wondering if you could comment on that.
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Well, this is a particularly interesting
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budget, in the sense that it takes a stream of revenue
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that has always gone directly into the general fund
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for the general appropriations
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and which is estimated to be
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between 90 and 100 million dollars a year,
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and designates it into a very specific fund
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with very specific purposes to be spent
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by very specific agencies.
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And in that sense, removes the fund
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of the monies that stream,
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that always went into the general fund,
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removes it into a special fund.
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Now, of course, the spending out of that special fund
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will be subject to appropriation,
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the legislature can decide not to spend all of the money,
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100 million dollars and that's in the fund.
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And once they can decide
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which ABCC functions or gets which amounts of money,
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that's first off, the appropriation process.
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But the taking of the fund, and
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really putting it aside and taking it out of,
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what I think, is out of the legislature's ability to say,
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"Oh, never mind, we're just gonna
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"use it for other things."
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Is an important factor here and somewhat unique.
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The other piece of this,
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which is found, nevermind,
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I'm starting to repeat myself.
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But the Bates case, which is particularly interesting
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and never really been applied by in a situation like this,
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which says, "Once there is an initial petition
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"that is passed, the legislature must carry it into effect,
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"or repeal it,
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" in carrying it into effect means they must
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"appropriates the money to carry it into effect."
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Well, okay, if that's the case,
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they must put the money into the fund
274
00:13:07.950 --> 00:13:10.320
and use it for the specified purpose.
275
00:13:10.320 --> 00:13:12.909
So to that extent, we think it's a,
276
00:13:12.909 --> 00:13:14.573
an appropriation,
277
00:13:16.280 --> 00:13:19.140
that would violate Article 48.
278
00:13:19.140 --> 00:13:21.573
Okay, thank you.
Situation, sorry.
279
00:13:22.830 --> 00:13:24.394
Is there other question, Justice Lenk?
280
00:13:24.394 --> 00:13:25.466
No, (mumbles)
281
00:13:25.466 --> 00:13:27.110
Justice Gaziano.
282
00:13:27.110 --> 00:13:29.350
Thank you, Mr. Cordy.
283
00:13:29.350 --> 00:13:32.010
It's rather, into your work about,
284
00:13:32.010 --> 00:13:34.663
on specific appropriations.
285
00:13:36.670 --> 00:13:40.610
The legislature of course can decide, how much the ABCC
286
00:13:40.610 --> 00:13:43.680
needs for the various functions, including enforcement.
287
00:13:43.680 --> 00:13:48.680
If we were to invalidate this on the grounds you request,
288
00:13:49.060 --> 00:13:50.299
subject to appropriations.
289
00:13:50.299 --> 00:13:53.803
Would we have to overrule Manzoni and the AME case?
290
00:13:55.040 --> 00:13:56.540
Well,
291
00:13:56.540 --> 00:13:58.693
I don't think so.
292
00:14:00.330 --> 00:14:03.453
I don't think so, subject to appropriation.
293
00:14:04.880 --> 00:14:07.030
These are not magic words
294
00:14:07.030 --> 00:14:10.233
that fix every conceivable problem.
295
00:14:12.380 --> 00:14:13.213
Two things.
296
00:14:13.213 --> 00:14:16.940
First of all, this is a different funding stream.
297
00:14:16.940 --> 00:14:19.733
It's very different than those other cases.
298
00:14:21.450 --> 00:14:22.283
And,
299
00:14:23.520 --> 00:14:24.393
secondly,
300
00:14:30.165 --> 00:14:33.650
the Bates case, which really puts the legislature
301
00:14:33.650 --> 00:14:37.720
in the position of having to carry out the purposes
302
00:14:37.720 --> 00:14:40.243
of the petition or repealing it.
303
00:14:40.243 --> 00:14:43.980
Does that mean having to fund a petition,
304
00:14:43.980 --> 00:14:46.240
and whether the petition itself includes
305
00:14:46.240 --> 00:14:49.997
a very specific set aside of general funds,
306
00:14:49.997 --> 00:14:52.595
for very specific purposes?
307
00:14:52.595 --> 00:14:55.870
I think this creates, or at least presents
308
00:14:55.870 --> 00:14:57.843
a very different tax scenario.
309
00:14:59.040 --> 00:15:00.083
Thank you.
310
00:15:00.083 --> 00:15:01.346
That's all the questions I have.
311
00:15:01.346 --> 00:15:03.117
Justice Lowy.
312
00:15:03.117 --> 00:15:07.810
Yes, I ask you about Hensley versus the Attorney General
313
00:15:07.810 --> 00:15:10.750
and I recognize that you've distinguished this by
314
00:15:12.220 --> 00:15:13.053
pressing,
315
00:15:13.930 --> 00:15:15.870
is an industry that's been,
316
00:15:15.870 --> 00:15:18.061
the alcohol industry has been regulated
317
00:15:18.061 --> 00:15:20.820
after prohibition and that
318
00:15:20.820 --> 00:15:23.800
the marijuana, legal marijuana industry is new.
319
00:15:23.800 --> 00:15:26.900
However, if we,
320
00:15:26.900 --> 00:15:28.308
look at,
321
00:15:28.308 --> 00:15:31.637
the purpose of this,
322
00:15:31.637 --> 00:15:35.170
as loosening restrictions,
323
00:15:35.170 --> 00:15:36.003
who could sell
324
00:15:36.916 --> 00:15:41.640
alcohol, certain types of alcohols, and where it may be sold
325
00:15:42.600 --> 00:15:47.600
and reviewed the purposes and overall loosening and then the
326
00:15:49.410 --> 00:15:52.650
ideal technology provisions and the funding provisions,
327
00:15:52.650 --> 00:15:57.236
as you said, that's the consequences of that.
328
00:15:57.236 --> 00:15:58.319
It seems like
329
00:15:59.538 --> 00:16:00.690
this
330
00:16:00.690 --> 00:16:05.690
petition is doing a heck of a lot less than Hensley did.
331
00:16:05.890 --> 00:16:07.970
Could you address that, please?
332
00:16:07.970 --> 00:16:08.910
Sure.
333
00:16:08.910 --> 00:16:10.040
Well, in addition, of course,
334
00:16:10.040 --> 00:16:11.840
to the things that you've mentioned,
335
00:16:12.710 --> 00:16:16.560
eliminating the statewide cap on ownership
336
00:16:16.560 --> 00:16:19.432
is a really big (mumbles) here.
337
00:16:19.432 --> 00:16:23.620
But Hensley, the Attorney General in the brief describes
338
00:16:23.620 --> 00:16:27.830
the petitioning in Hensley as one which
339
00:16:27.830 --> 00:16:32.830
comprehensively regulated all aspects of a new industry,
340
00:16:33.030 --> 00:16:36.293
the commercial sale of marijuana in Massachusetts.
341
00:16:37.910 --> 00:16:40.180
Of course, the growing and selling of marijuana
342
00:16:40.180 --> 00:16:42.650
wasn't really a new industry.
343
00:16:42.650 --> 00:16:45.130
It had been illegal for about 100 years
344
00:16:45.130 --> 00:16:49.987
and often run by organized criminal enterprises.
345
00:16:49.987 --> 00:16:54.340
So it's not surprising that from the perspective of a voter,
346
00:16:54.340 --> 00:16:59.260
the voter would, a reasonable voter would wanna know,
347
00:16:59.260 --> 00:17:02.750
before soliciting about legalizing this whole
348
00:17:02.750 --> 00:17:05.510
illegal business, would wanna know,
349
00:17:05.510 --> 00:17:08.480
how it will be regulated and controlled.
350
00:17:08.480 --> 00:17:10.320
That makes perfect sense.
351
00:17:10.320 --> 00:17:12.953
So to the extent that there was an awful lot of,
352
00:17:14.827 --> 00:17:17.600
a large number of provisions testifying,
353
00:17:17.600 --> 00:17:21.620
how it would be regulated, how it would be controlled,
354
00:17:21.620 --> 00:17:26.240
which were directly related and necessary for the voters to
355
00:17:26.240 --> 00:17:27.800
decide yes or no.
356
00:17:27.800 --> 00:17:32.040
And I think that's what distinguishes that case.
357
00:17:32.040 --> 00:17:36.940
This is, an industry which has almost 100 years
358
00:17:36.940 --> 00:17:38.683
of law and structure,
359
00:17:39.590 --> 00:17:44.590
that are designed to protect and ensure a whole range of
360
00:17:44.680 --> 00:17:48.260
different basic interests related to alcohol.
361
00:17:48.260 --> 00:17:52.520
And so that, I think that does make a difference
362
00:17:52.520 --> 00:17:55.650
and when you're trying to sort of change two unrelated...
363
00:17:58.050 --> 00:18:01.945
and then add a few other little different changes to it all.
364
00:18:01.945 --> 00:18:04.500
They gotta be related in some way.
365
00:18:04.500 --> 00:18:07.530
So the increase,
with alcohol,
366
00:18:07.530 --> 00:18:09.610
So increasing and then eventually
367
00:18:09.610 --> 00:18:13.560
eliminating the restrictions on the number of licenses,
368
00:18:13.560 --> 00:18:15.140
one entity could have.
369
00:18:15.140 --> 00:18:20.140
And then also making beer and wine is available
370
00:18:20.763 --> 00:18:21.940
in food, grocery stores,
371
00:18:21.940 --> 00:18:26.003
doesn't have a relatedness of trying to make it,
372
00:18:27.409 --> 00:18:29.160
more available to the consumer,
373
00:18:29.160 --> 00:18:31.740
to be able to purchase alcohol?
374
00:18:31.740 --> 00:18:33.610
I know you say that point,
375
00:18:33.610 --> 00:18:34.443
just
376
00:18:35.660 --> 00:18:38.243
that aren't they related?
377
00:18:39.590 --> 00:18:40.423
Well,
378
00:18:41.560 --> 00:18:44.830
creating a new beer
379
00:18:45.810 --> 00:18:50.810
and wine license for food stores in communities
380
00:18:52.760 --> 00:18:55.890
has nothing to do at all with,
381
00:18:55.890 --> 00:18:58.533
how many events can be owned,
382
00:19:00.010 --> 00:19:02.723
the statewide cap on the number of licenses.
383
00:19:03.657 --> 00:19:06.357
Now, what this petition does of course is they create,
384
00:19:07.230 --> 00:19:11.307
this new license and says "Oh, by the way,
385
00:19:11.307 --> 00:19:14.067
"it's not governed by any caps at all.
386
00:19:14.067 --> 00:19:18.877
"But we are also going to eliminate the statewide cap
387
00:19:18.877 --> 00:19:22.083
"on off-premises license ownership.
388
00:19:23.460 --> 00:19:26.080
What is that got to do with which grocery stores
389
00:19:26.080 --> 00:19:29.353
aren't gonna get licenses in their communities?
390
00:19:30.282 --> 00:19:31.897
How significant that is?
(mumbling)
391
00:19:31.897 --> 00:19:33.410
The significant is that is, so,
392
00:19:33.410 --> 00:19:37.574
in Hensley we're dealing with licensing
393
00:19:37.574 --> 00:19:41.290
and regulating the entire industry
394
00:19:41.290 --> 00:19:43.470
and dealing with medical
395
00:19:43.470 --> 00:19:48.470
marijuana centers and legalizing marijuana,
396
00:19:48.540 --> 00:19:50.860
all and I'm not listing everything involved,
397
00:19:50.860 --> 00:19:53.667
all in one petition and here,
398
00:19:53.667 --> 00:19:54.820
we're talking about,
399
00:19:54.820 --> 00:19:58.730
differences in the regulations within an industry,
400
00:19:58.730 --> 00:20:01.880
but not entire regulations in the industry.
401
00:20:01.880 --> 00:20:06.027
Hensley, do we need to rely on your point that
402
00:20:07.207 --> 00:20:09.120
a new industry as opposed to one
403
00:20:09.120 --> 00:20:10.980
that's been regulated since prohibition?
404
00:20:10.980 --> 00:20:13.030
Is that the key distinction?
405
00:20:13.030 --> 00:20:17.570
Well, I think the distinction is akin to that.
406
00:20:17.570 --> 00:20:19.580
But what would a voter want?
407
00:20:19.580 --> 00:20:21.320
Or what a voter need to know in order to
408
00:20:21.320 --> 00:20:24.610
make a vote on yes or no.
409
00:20:24.610 --> 00:20:26.640
On Hensley, we have current,
410
00:20:26.640 --> 00:20:30.170
we are legalizing the marijuana industry, one that's
411
00:20:30.170 --> 00:20:33.550
run by organized criminal enterprises for 100 years.
412
00:20:33.550 --> 00:20:35.337
So should, wouldn't a voter want to know,
413
00:20:35.337 --> 00:20:36.797
"How it's going to be regulated?
414
00:20:36.797 --> 00:20:39.271
"How is this going to be controlled?"
415
00:20:39.271 --> 00:20:43.370
That's very different than what we have here.
416
00:20:43.370 --> 00:20:46.472
What is, a voter might be,
417
00:20:46.472 --> 00:20:49.040
wants a few more beer and wine stores,
418
00:20:49.040 --> 00:20:52.700
or what better identification procedures
419
00:20:52.700 --> 00:20:56.140
to keep underage purchases down but
420
00:20:57.000 --> 00:21:00.420
would also not want a Costco.
421
00:21:00.420 --> 00:21:01.307
Or a
422
00:21:02.950 --> 00:21:06.140
one of these international operations to come in
423
00:21:06.140 --> 00:21:08.690
and basically run the liquor industry
424
00:21:08.690 --> 00:21:10.940
by gathering up hundreds of
425
00:21:11.980 --> 00:21:15.610
licenses and exceeding the statewide cap,
426
00:21:15.610 --> 00:21:18.920
which is something that has been critically important
427
00:21:18.920 --> 00:21:20.940
to the regulatory process,
428
00:21:20.940 --> 00:21:24.798
being debated for decades by the legislature.
429
00:21:24.798 --> 00:21:27.490
So that's the difference I think.
430
00:21:27.490 --> 00:21:30.110
Thank you, that's all I have to say.
431
00:21:30.110 --> 00:21:30.970
Justice Budd.
432
00:21:30.970 --> 00:21:32.053
Hi, good morning.
433
00:21:32.950 --> 00:21:36.400
Just along the lines of Justice Lowy's questions,
434
00:21:36.400 --> 00:21:41.110
isn't this just about how broadly we read related subjects?
435
00:21:41.110 --> 00:21:43.823
It seems to me that you can always say,
436
00:21:45.390 --> 00:21:47.110
two things are not related
437
00:21:47.110 --> 00:21:51.680
depending on how narrowly you define related, right?
438
00:21:51.680 --> 00:21:52.513
And
439
00:21:55.410 --> 00:21:59.540
two people could disagree about whether
440
00:21:59.540 --> 00:22:00.910
within a general
441
00:22:02.150 --> 00:22:07.150
area, two subjects within that area are related or not,
442
00:22:07.820 --> 00:22:10.110
as compared to whether
443
00:22:11.090 --> 00:22:16.090
two completely unrelated areas are a sensitive subjects.
444
00:22:17.393 --> 00:22:19.137
I mean, is that fair to say,
445
00:22:19.137 --> 00:22:20.957
"this is what we're trying to figure out,
446
00:22:20.957 --> 00:22:25.142
"how broadly can be related subjects here,"
447
00:22:25.142 --> 00:22:25.975
is that fair?
448
00:22:25.975 --> 00:22:26.808
No.
449
00:22:26.808 --> 00:22:29.014
I think that's right.
450
00:22:29.014 --> 00:22:32.910
I mean, there's not a bright line rule here.
451
00:22:32.910 --> 00:22:35.760
You have to sort of get under the hood a little bit.
452
00:22:35.760 --> 00:22:36.593
And,
453
00:22:37.690 --> 00:22:39.860
if you look at these individual pieces,
454
00:22:39.860 --> 00:22:41.520
are they related in the sense
455
00:22:41.520 --> 00:22:43.606
that they all relate to alcohol?
456
00:22:43.606 --> 00:22:44.439
Yes,
457
00:22:44.439 --> 00:22:46.953
and they all relate to alcohol sales, yes.
458
00:22:47.910 --> 00:22:51.860
But there are very different and important
459
00:22:51.860 --> 00:22:56.860
public policies bases behind of these,
460
00:22:57.280 --> 00:22:59.000
that are different.
461
00:22:59.000 --> 00:23:01.190
Understood, but what I'm saying that,
462
00:23:01.190 --> 00:23:03.580
and just well, I guess I'm trying to get out is,
463
00:23:03.580 --> 00:23:05.443
whatever evidence do we have,
464
00:23:05.443 --> 00:23:06.920
that we should take a
465
00:23:08.314 --> 00:23:09.917
broad view, which is a narrow view that
466
00:23:14.160 --> 00:23:17.800
we should be looking, not just at the subject matter,
467
00:23:17.800 --> 00:23:19.543
but within that subject.
468
00:23:20.410 --> 00:23:21.950
We should be parsing,
469
00:23:21.950 --> 00:23:25.840
whether the individual items within that
470
00:23:25.840 --> 00:23:28.870
general topic, the general subject here,
471
00:23:28.870 --> 00:23:32.130
alcohol sales need to be parsed any further.
472
00:23:32.130 --> 00:23:34.850
What, where do I look for that evidence?
473
00:23:34.850 --> 00:23:37.980
Well, I think it might be interesting, of course,
474
00:23:37.980 --> 00:23:39.950
I didn't get a chance to look at the,
475
00:23:39.950 --> 00:23:42.220
some of the (mumbles)
476
00:23:42.220 --> 00:23:45.860
but if you look at how these issues have been dealt with
477
00:23:45.860 --> 00:23:48.626
separately and differently
478
00:23:48.626 --> 00:23:50.800
over the last 80 years,
479
00:23:50.800 --> 00:23:53.870
or certainly intensely over the last 45,
480
00:23:53.870 --> 00:23:57.060
you can see how the debates are very different.
481
00:23:57.060 --> 00:24:00.200
Yes, this is all related to alcohol but
482
00:24:00.200 --> 00:24:03.140
what goes on in a community and how many licenses
483
00:24:03.140 --> 00:24:07.110
the community can issue based on their population
484
00:24:07.110 --> 00:24:09.000
and worries about impact,
485
00:24:09.000 --> 00:24:11.570
particularly on low income communities?
486
00:24:11.570 --> 00:24:13.653
That density is very critical.
487
00:24:14.940 --> 00:24:16.200
If you look at that,
488
00:24:16.200 --> 00:24:19.560
compared to the statewide cap
489
00:24:19.560 --> 00:24:22.226
which involves a whole set of different issues,
490
00:24:22.226 --> 00:24:24.330
who's gonna be able to dominate?
491
00:24:24.330 --> 00:24:26.880
Somebody may or Costco or Total Wines
492
00:24:26.880 --> 00:24:28.840
or somebody able to come in
493
00:24:28.840 --> 00:24:31.873
and literally dominate the whole alcohol field.
494
00:24:31.873 --> 00:24:35.360
And I understand there are policy reasons for and against,
495
00:24:35.360 --> 00:24:38.530
I guess the question that they're looking
496
00:24:38.530 --> 00:24:40.744
to put on the ballot, and I understand that,
497
00:24:40.744 --> 00:24:41.840
and that can be debated.
498
00:24:41.840 --> 00:24:43.770
But what I'm saying is, is there any case log,
499
00:24:43.770 --> 00:24:45.337
I can look at and say, "Oh, okay,
500
00:24:45.337 --> 00:24:48.830
"this is how broad I should consider related subjects."
501
00:24:48.830 --> 00:24:50.423
What that actually means.
502
00:24:51.954 --> 00:24:55.780
There are a lot of cases out there that is platonic,
503
00:24:55.780 --> 00:24:58.910
but always in the context of specific,
504
00:24:58.910 --> 00:25:00.903
if you take Carney for example,
505
00:25:02.220 --> 00:25:04.140
you know that they all have,
506
00:25:04.140 --> 00:25:06.930
the attorney general concluded that,
507
00:25:06.930 --> 00:25:09.770
the various pieces of Carney all related to
508
00:25:09.770 --> 00:25:12.670
promoting more humane treatment of dogs.
509
00:25:12.670 --> 00:25:14.170
That's what they were related to.
510
00:25:14.170 --> 00:25:16.507
But the court said, "Well, yeah,
511
00:25:16.507 --> 00:25:19.927
"that's a very interesting and nice, common purpose.
512
00:25:19.927 --> 00:25:22.657
"But Carney's was dog racing,
513
00:25:22.657 --> 00:25:25.923
"and neglect and abuse of dogs,
514
00:25:26.787 --> 00:25:27.837
"under the criminal law
515
00:25:27.837 --> 00:25:29.660
"are two really different things."
516
00:25:29.660 --> 00:25:32.520
Yeah, they all involve dogs and the treatment of dogs,
517
00:25:32.520 --> 00:25:34.103
but they're two different things.
518
00:25:35.250 --> 00:25:36.500
And they raise different issues--
519
00:25:36.500 --> 00:25:38.750
Just remind me, they both have to do with dog racing?
520
00:25:38.750 --> 00:25:39.830
No.
521
00:25:39.830 --> 00:25:40.663
Did they what?
522
00:25:40.663 --> 00:25:42.770
Did they both have to do with dog racing,
523
00:25:42.770 --> 00:25:43.660
or was it--?
524
00:25:43.660 --> 00:25:45.270
No, it was not.
525
00:25:45.270 --> 00:25:46.900
Yeah, okay.
526
00:25:46.900 --> 00:25:48.840
So yeah, you can read it broadly or not.
527
00:25:48.840 --> 00:25:50.670
It just depends on your,
528
00:25:50.670 --> 00:25:52.670
what you're trying to accomplish, right?
529
00:25:53.650 --> 00:25:54.483
Right.
530
00:25:54.483 --> 00:25:56.970
I mean, the Gray case is another example
531
00:25:58.160 --> 00:26:01.130
where the petition was on the one hand the,
532
00:26:01.130 --> 00:26:02.957
sort of had the Common Core standards
533
00:26:02.957 --> 00:26:07.792
and the other to release the comprehensive assessments
534
00:26:07.792 --> 00:26:11.365
every year with respect to Comprehensive Test assessments
535
00:26:11.365 --> 00:26:14.050
every year, and of course it,
536
00:26:14.050 --> 00:26:16.620
yeah, they're both related to education.
537
00:26:16.620 --> 00:26:18.690
They're both controversial public issues
538
00:26:18.690 --> 00:26:21.750
in the domain of Elementary and Secondary Education,
539
00:26:21.750 --> 00:26:24.180
but not enough to make them related.
540
00:26:24.180 --> 00:26:27.310
There's no unified statement of public policy there.
541
00:26:27.310 --> 00:26:29.080
And I think the same can be said here.
542
00:26:29.080 --> 00:26:32.030
There's no uniform statement of public policy.
543
00:26:32.030 --> 00:26:33.950
Some people might want more beer stores,
544
00:26:33.950 --> 00:26:36.850
some people might want, not more beer stores,
545
00:26:36.850 --> 00:26:39.100
but better identification rules.
546
00:26:39.100 --> 00:26:41.310
Others might not want to see
547
00:26:41.310 --> 00:26:44.964
the whole industry dominated by Costco.
548
00:26:44.964 --> 00:26:47.508
So there are really different issues.
549
00:26:47.508 --> 00:26:50.910
And there's no unified policy here embodied there and
550
00:26:50.910 --> 00:26:52.262
that's what I would say.
551
00:26:52.262 --> 00:26:53.095
Okay, thank you.
552
00:26:53.095 --> 00:26:53.928
Thank you.
553
00:26:54.850 --> 00:26:55.863
Justice Cypher.
554
00:26:58.780 --> 00:27:01.131
Thank you.
(clears throat)
555
00:27:01.131 --> 00:27:02.710
And
556
00:27:02.710 --> 00:27:04.920
my question involves a different image now
557
00:27:04.920 --> 00:27:08.363
of Costco coming in here and taking everything over.
558
00:27:09.260 --> 00:27:12.160
But don't, the licensing would still be
559
00:27:12.160 --> 00:27:15.010
controlled by the state and municipalities,
560
00:27:15.010 --> 00:27:18.190
would they, would still have discretion to limit them?
561
00:27:20.550 --> 00:27:22.330
Well, no, not.
562
00:27:22.330 --> 00:27:23.680
No discretion?
563
00:27:26.650 --> 00:27:28.020
No.
564
00:27:28.020 --> 00:27:29.690
There are two pieces here that
565
00:27:29.690 --> 00:27:33.790
the total statewide cap ownership is that
566
00:27:33.790 --> 00:27:38.380
Costco can only own X number of licenses,
567
00:27:38.380 --> 00:27:41.433
Total Wine and only own Y number of licenses.
568
00:27:44.121 --> 00:27:44.954
The,
569
00:27:47.000 --> 00:27:50.114
at the individual community level,
570
00:27:50.114 --> 00:27:51.020
I should say this,
571
00:27:51.020 --> 00:27:53.483
there's actually two caps at issue here.
572
00:27:54.490 --> 00:27:56.657
They're both dealt with in
573
00:27:56.657 --> 00:27:58.660
Section 15.
574
00:27:58.660 --> 00:28:00.360
One is statewide cap,
575
00:28:00.360 --> 00:28:03.700
you can only own so many of these outlets statewide.
576
00:28:03.700 --> 00:28:06.470
And the other is a local ownership cap,
577
00:28:06.470 --> 00:28:09.010
in addition to the number of licenses
578
00:28:09.010 --> 00:28:11.150
that a community can actually award.
579
00:28:11.150 --> 00:28:12.070
Right.
580
00:28:12.070 --> 00:28:15.420
but just because you take off the cap does not mean
581
00:28:15.420 --> 00:28:17.680
that the state or the municipality is going
582
00:28:17.680 --> 00:28:20.680
to automatically just let everybody have whatever they want.
583
00:28:22.070 --> 00:28:23.093
That's true,
584
00:28:23.930 --> 00:28:25.710
for sure.
585
00:28:25.710 --> 00:28:29.090
But it's a, just a dynamic because now we're talking
586
00:28:29.090 --> 00:28:32.160
about arbitrary and capricious in every case
587
00:28:32.160 --> 00:28:33.670
is going to involve,
588
00:28:33.670 --> 00:28:34.940
there's no limits anymore.
589
00:28:34.940 --> 00:28:36.567
So you can't say,
590
00:28:36.567 --> 00:28:39.847
"No, the legislature's decided on a limit.
591
00:28:39.847 --> 00:28:41.570
"You can't have any more."
592
00:28:41.570 --> 00:28:44.130
It's, well, "Why can't we have any more?"
593
00:28:44.130 --> 00:28:45.950
The law just says we can't, we're good.
594
00:28:45.950 --> 00:28:48.760
Now we're a big dealer.
595
00:28:48.760 --> 00:28:50.380
Why can't we have any more?
596
00:28:50.380 --> 00:28:52.330
If you're just an arbitrary and capricious, I mean,
597
00:28:52.330 --> 00:28:54.520
then you get into a whole series
598
00:28:54.520 --> 00:28:58.770
of legal battles about the issuance of licenses generally,
599
00:28:58.770 --> 00:29:01.327
both at the local level and then of course,
600
00:29:01.327 --> 00:29:04.730
this, the state doesn't really issue license,
601
00:29:04.730 --> 00:29:07.460
it's all done at the local
mostly the board.
602
00:29:07.460 --> 00:29:08.831
Yeah.
603
00:29:08.831 --> 00:29:10.840
One other question.
604
00:29:10.840 --> 00:29:13.607
And that is it said in your brief that
605
00:29:13.607 --> 00:29:16.457
"A voter would be surprised to learn that
606
00:29:16.457 --> 00:29:19.157
"it impacts the sale of spirit in liquor stores,
607
00:29:19.157 --> 00:29:21.320
"including at the point of sale."
608
00:29:21.320 --> 00:29:22.220
And my question is,
609
00:29:22.220 --> 00:29:24.940
if you look at the Attorney General's summary,
610
00:29:24.940 --> 00:29:29.940
and it would be the one, two, three, fourth paragraph,
611
00:29:31.370 --> 00:29:34.000
the proposed law would also change the statewide limits
612
00:29:34.000 --> 00:29:35.410
on the number of licenses to
613
00:29:35.410 --> 00:29:36.957
the sale of alcoholic beverages.
614
00:29:36.957 --> 00:29:39.300
If you just inserted,
615
00:29:39.300 --> 00:29:40.743
including spirit.
616
00:29:41.600 --> 00:29:43.983
Wouldn't that resolve your problem?
617
00:29:46.541 --> 00:29:50.780
Well, we made it more accurate.
618
00:29:50.780 --> 00:29:51.947
Just a moment.
619
00:29:55.220 --> 00:29:57.787
Yeah, well, I mean, there's the way this
620
00:29:57.787 --> 00:29:59.710
sort of deals with
621
00:30:01.400 --> 00:30:04.130
stores that sell spirits as well as beer and wine
622
00:30:04.130 --> 00:30:06.060
for some purposes and not for others,
623
00:30:06.060 --> 00:30:07.663
is different and complicated.
624
00:30:08.720 --> 00:30:13.547
But that's the sort of the nature of the (mumbles).
625
00:30:15.919 --> 00:30:17.064
(clears throat)
626
00:30:17.064 --> 00:30:18.650
That might clarify that although I don't
627
00:30:18.650 --> 00:30:21.203
think that changes anything.
628
00:30:23.288 --> 00:30:25.873
And I have no furtherquestion, thank you.
629
00:30:27.150 --> 00:30:28.900
Justice Kafker.
630
00:30:28.900 --> 00:30:31.910
My questions are follow ups and just the following.
631
00:30:31.910 --> 00:30:35.170
So I'm not sure I found the distinction
632
00:30:35.170 --> 00:30:37.920
when we're dealing with, pre existing
633
00:30:38.983 --> 00:30:42.090
regulation and a new regulation,
634
00:30:42.090 --> 00:30:44.040
the marijuana versus the alcohol.
635
00:30:44.040 --> 00:30:47.180
And if the public decide we're gonna
636
00:30:48.380 --> 00:30:52.490
do a whole new regime of alcohol regulation
637
00:30:52.490 --> 00:30:55.893
and put it into a ballot initiative.
638
00:30:56.870 --> 00:30:59.413
Well, surely the legislature can do that.
639
00:31:00.379 --> 00:31:03.300
But the public can't do the same thing.
640
00:31:03.300 --> 00:31:04.797
They can't say, "Okay,
641
00:31:04.797 --> 00:31:07.643
"I want to only deregulate alcohol.
642
00:31:09.417 --> 00:31:13.457
"I want to deregulate number of licenses.
643
00:31:13.457 --> 00:31:15.703
"I'm going to spread it far and wide.
644
00:31:16.711 --> 00:31:20.157
"And that's gonna just to create some ripple effects.
645
00:31:20.157 --> 00:31:21.787
"I'll regulate the ripple effects
646
00:31:21.787 --> 00:31:24.867
"but I don't like a regulated industry.
647
00:31:24.867 --> 00:31:27.537
"I want to have a deregulated one
648
00:31:27.537 --> 00:31:29.420
"and I'll deal with the consequences."
649
00:31:29.420 --> 00:31:30.370
They can't do that.
650
00:31:31.270 --> 00:31:32.670
(shuffling)
651
00:31:32.670 --> 00:31:33.670
Well, I don't--
652
00:31:33.670 --> 00:31:34.783
in an initiative.
653
00:31:40.167 --> 00:31:41.820
So the question was,
654
00:31:41.820 --> 00:31:44.500
the petition would be the alcohol industry
655
00:31:44.500 --> 00:31:46.200
is hereby deregulated,
656
00:31:46.200 --> 00:31:48.040
anybody can sell whatever they want.
657
00:31:48.040 --> 00:31:52.633
And what else any, I'm gonna, agree with the public thing.
658
00:31:53.622 --> 00:31:57.370
I don't like this fact stores can sell what they want,
659
00:31:57.370 --> 00:32:01.250
I wanna band who can do it much further,
660
00:32:01.250 --> 00:32:02.240
if I wanna be able,
661
00:32:02.240 --> 00:32:06.510
I want public to be able to buy in any grocery store
662
00:32:06.510 --> 00:32:10.040
or Costco or Walmart,
663
00:32:10.040 --> 00:32:12.540
so that you don't have a back store.
664
00:32:12.540 --> 00:32:14.410
So we do one stop shopping.
665
00:32:14.410 --> 00:32:16.750
And I understand that opens us up some,
666
00:32:16.750 --> 00:32:20.420
but I'll allow you to require,
667
00:32:20.420 --> 00:32:23.000
a particular kind of license to look at that.
668
00:32:23.000 --> 00:32:26.550
And I also know that the ABCC needs to be expanded
669
00:32:26.550 --> 00:32:30.110
cause we're going to have many more sales,
670
00:32:30.110 --> 00:32:31.330
we're going to have many more places
671
00:32:31.330 --> 00:32:33.100
and the existing number of people
672
00:32:33.100 --> 00:32:35.050
can't monitor all these stores.
673
00:32:35.050 --> 00:32:39.060
They can't but if it seems like it's a coherent policy.
674
00:32:39.060 --> 00:32:41.050
It may not be a good one.
675
00:32:41.050 --> 00:32:43.043
But it, isn't it coherent?
676
00:32:44.166 --> 00:32:45.830
Well,
677
00:32:45.830 --> 00:32:47.500
but not, not exactly,
678
00:32:47.500 --> 00:32:48.950
I mean, the way you described,
679
00:32:48.950 --> 00:32:51.200
it may be coherent.
680
00:32:51.200 --> 00:32:55.490
But if you think of the statewide cap
681
00:32:55.490 --> 00:32:58.385
on the number of licenses that a company can own
682
00:32:58.385 --> 00:33:01.870
and why that's there,
683
00:33:01.870 --> 00:33:03.837
and its history,
684
00:33:03.837 --> 00:33:06.760
you see that there are a whole series
685
00:33:06.760 --> 00:33:08.390
of public policy concerns
686
00:33:08.390 --> 00:33:11.466
that are dealt with in that respect.
687
00:33:11.466 --> 00:33:13.649
You could do this--
688
00:33:13.649 --> 00:33:15.480
I'm not saying this is wise,
689
00:33:15.480 --> 00:33:18.860
I'm just saying it's not, it's changing,
690
00:33:18.860 --> 00:33:19.900
you know, go ahead.
691
00:33:19.900 --> 00:33:21.430
Sorry I didn't mean to cut you off.
692
00:33:21.430 --> 00:33:22.263
No, that's okay.
693
00:33:22.263 --> 00:33:23.559
I'm cutting you off as well.
694
00:33:23.559 --> 00:33:24.657
This is really complicated.
695
00:33:24.657 --> 00:33:28.160
But the other issue in this case,
696
00:33:28.160 --> 00:33:32.120
of course, is at the local level,
697
00:33:32.120 --> 00:33:37.120
how many licenses can the local communities hand out?
698
00:33:37.490 --> 00:33:39.267
Now if you wanna say,
699
00:33:39.267 --> 00:33:42.940
"We would like to deregulate
700
00:33:44.135 --> 00:33:47.405
"the licensing at the local level and allow
701
00:33:47.405 --> 00:33:52.405
"any grocery store to sell anything at once,"
702
00:33:54.380 --> 00:33:57.171
that actually has nothing to do, I mean,
703
00:33:57.171 --> 00:33:59.206
that would really affect the community.
704
00:33:59.206 --> 00:34:00.280
And they may be a lot of good reasons people
705
00:34:00.280 --> 00:34:01.418
would want it or not want it.
706
00:34:01.418 --> 00:34:03.480
But that has nothing to do
707
00:34:03.480 --> 00:34:06.680
with the statewide cap on ownership.
708
00:34:06.680 --> 00:34:09.170
The number of stores one can own,
709
00:34:09.170 --> 00:34:11.100
which is a very different set of issues.
710
00:34:11.100 --> 00:34:12.177
So that's--
711
00:34:12.177 --> 00:34:14.703
I understand there are existing,
712
00:34:15.710 --> 00:34:19.290
best interest and also existing
713
00:34:19.290 --> 00:34:21.670
balancing that was done out there.
714
00:34:21.670 --> 00:34:24.440
But I'm just wondering why you can't recre...
715
00:34:25.795 --> 00:34:29.317
Why an initiative can't say,
716
00:34:29.317 --> 00:34:31.207
"I don't like the system.
717
00:34:31.207 --> 00:34:33.777
"I want to fundamentally change the system,
718
00:34:33.777 --> 00:34:37.137
"and I'm gonna do that and create
719
00:34:37.137 --> 00:34:40.370
"what I consider better system?"
720
00:34:40.370 --> 00:34:41.430
It may not be.
721
00:34:41.430 --> 00:34:42.930
We may all disagree about that,
722
00:34:42.930 --> 00:34:45.088
but that's what the public gets to vote on.
723
00:34:45.088 --> 00:34:48.880
The question is whether it's a unified statement
724
00:34:48.880 --> 00:34:53.387
of public policy on which your voter could vote for, or no.
725
00:34:53.387 --> 00:34:56.260
And what I'm saying is, there are
726
00:34:56.260 --> 00:34:58.730
lots of unrelated pieces here except
727
00:34:58.730 --> 00:35:00.513
to the extent they're related to alcohol.
728
00:35:00.513 --> 00:35:02.490
That that a voter might feel,
729
00:35:02.490 --> 00:35:04.883
one way about one piece or another way about another piece,
730
00:35:04.883 --> 00:35:07.413
there's no unified policy here.
731
00:35:08.576 --> 00:35:10.480
Not that unified public policy
732
00:35:10.480 --> 00:35:13.660
that a voter can say yes or no.
733
00:35:13.660 --> 00:35:15.130
Isn't there?
734
00:35:15.130 --> 00:35:18.680
Doesn't it go, it's not just about alcohol but it's about
735
00:35:18.680 --> 00:35:21.150
basically making alcohol available
736
00:35:21.150 --> 00:35:24.253
in many more places with less regulation.
737
00:35:25.719 --> 00:35:29.466
We're not going to give people control over the licenses
738
00:35:29.466 --> 00:35:33.530
we're gonna basically turn this into
739
00:35:33.530 --> 00:35:35.020
more of a free for all
740
00:35:36.920 --> 00:35:39.050
and more stores
741
00:35:40.330 --> 00:35:41.380
can sell it
742
00:35:43.420 --> 00:35:45.485
and there aren't gonna be caps--
743
00:35:45.485 --> 00:35:49.883
On the number of licenses that someone can,
744
00:35:49.883 --> 00:35:51.483
that a company can own?
745
00:35:52.470 --> 00:35:53.303
Right.
746
00:35:53.303 --> 00:35:54.257
Period?
747
00:35:54.257 --> 00:35:55.090
Yeah.
748
00:35:55.090 --> 00:35:55.923
Period.
749
00:35:55.923 --> 00:35:58.124
Then there is no ownership ca, no statewide ownership cap
750
00:35:58.124 --> 00:36:01.227
and anyone can sell?
751
00:36:01.227 --> 00:36:02.670
That's right?
752
00:36:02.670 --> 00:36:04.310
I'm not saying that this is good policy,
753
00:36:04.310 --> 00:36:06.683
but it's a coherent one, yeah.
754
00:36:07.540 --> 00:36:09.960
Well, I think that you need to get,
755
00:36:09.960 --> 00:36:14.960
again, you sort of need to get under the hood.
756
00:36:15.323 --> 00:36:18.510
As you know, there was a initiative petition,
757
00:36:18.510 --> 00:36:22.070
I think, 2005, 2006, if I've got that right,
758
00:36:22.070 --> 00:36:24.990
to create a new license of wine and food stores,
759
00:36:24.990 --> 00:36:27.386
which went down to defeat.
760
00:36:27.386 --> 00:36:29.640
This is sort of that broadened
761
00:36:29.640 --> 00:36:32.050
and with a lot of other little things thrown in
762
00:36:32.050 --> 00:36:35.309
to make it more attractive, which is what's going on here.
763
00:36:35.309 --> 00:36:39.850
But the answer is,
764
00:36:39.850 --> 00:36:44.187
the subjects themselves have to be related more than just,
765
00:36:44.187 --> 00:36:45.930
"it's all about alcohol."
766
00:36:45.930 --> 00:36:48.200
And Hensley is so different,
767
00:36:48.200 --> 00:36:49.806
because you're creating a new industry,
768
00:36:49.806 --> 00:36:54.150
one that has been dominated
769
00:36:54.150 --> 00:36:55.870
by criminal organizations
770
00:36:55.870 --> 00:36:59.110
and the notion of a voter needing to know
771
00:36:59.110 --> 00:37:00.420
in order to vote yes or no.
772
00:37:00.420 --> 00:37:02.820
What the policy is gonna be concerning,
773
00:37:02.820 --> 00:37:05.360
how this is going to be regulated and controlled
774
00:37:05.360 --> 00:37:07.910
is really important, one can see that,
775
00:37:07.910 --> 00:37:11.683
that's not really what's going on here.
776
00:37:11.683 --> 00:37:12.550
Thank you.
777
00:37:12.550 --> 00:37:13.450
That's all I have.
778
00:37:14.550 --> 00:37:16.040
Chief Justice Gants,
779
00:37:16.040 --> 00:37:20.210
I'm going to give you an alternative initiative.
780
00:37:20.210 --> 00:37:22.669
So give me a moment before you interrupt
781
00:37:22.669 --> 00:37:23.502
(coughing)
a question.
782
00:37:23.502 --> 00:37:25.760
Because I agree this is complicated
783
00:37:25.760 --> 00:37:28.680
cause there are no, can't see anybody language.
784
00:37:28.680 --> 00:37:33.680
But imagine that the initiative said,
785
00:37:33.857 --> 00:37:36.037
"this is an initiative to allow people
786
00:37:36.037 --> 00:37:38.507
"to purchase wine and beer at food stores.
787
00:37:38.507 --> 00:37:41.360
"So when they go to Stop and Shop or a Cumberland Farms
788
00:37:41.360 --> 00:37:46.360
to get some groceries, they can also pick up beer and wine.
789
00:37:46.560 --> 00:37:50.360
And because that means that when you check out,
790
00:37:50.360 --> 00:37:53.310
you're gonna be checking out groceries and everything else.
791
00:37:54.560 --> 00:37:57.790
We need additional security.
792
00:37:57.790 --> 00:37:59.820
So if you're going to be buying beer and wine,
793
00:37:59.820 --> 00:38:01.130
we're gonna require the people
794
00:38:01.130 --> 00:38:03.040
at the cashier's office just to,
795
00:38:03.040 --> 00:38:05.940
at the cashier's desk to make sure that they
796
00:38:05.940 --> 00:38:08.520
see an ID regardless of your age,
797
00:38:08.520 --> 00:38:10.417
but that's going to be a requirement given that
798
00:38:10.417 --> 00:38:13.220
you're checking out more than just beer and wine,
799
00:38:13.220 --> 00:38:15.970
but could be checking out many other things.
800
00:38:15.970 --> 00:38:19.960
And, that's going to produce, that's gonna require,
801
00:38:19.960 --> 00:38:22.062
that's gonna open up a lot of
802
00:38:22.062 --> 00:38:25.420
places to sell beer and wine.
803
00:38:25.420 --> 00:38:27.500
And we're not going to limit the number of staff in shops
804
00:38:27.500 --> 00:38:30.340
or the number of store markets around the state.
805
00:38:30.340 --> 00:38:35.150
So we need to drop the cap on the sale of beer and wine.
806
00:38:35.150 --> 00:38:37.950
And because this is going to be generating
807
00:38:37.950 --> 00:38:39.930
that many more establishments,
808
00:38:39.930 --> 00:38:42.517
we're going to put the money aside
809
00:38:42.517 --> 00:38:46.930
that is obtained from the raising of beer,
810
00:38:46.930 --> 00:38:49.480
from the expansion of beer and wine sales
811
00:38:49.480 --> 00:38:53.270
to these supermarkets and other food shops.
812
00:38:53.270 --> 00:38:55.490
And that money is gonna go into a special fund
813
00:38:55.490 --> 00:38:56.510
and the additional,
814
00:38:56.510 --> 00:38:59.021
and that money is going to be devoted to
815
00:38:59.021 --> 00:39:02.083
additional enforcement, running ABCC.
816
00:39:02.940 --> 00:39:05.550
Would that legislation in your view
817
00:39:05.550 --> 00:39:07.833
be sufficiently related to pass muster?
818
00:39:09.910 --> 00:39:14.870
Well, in several respects, yes.
819
00:39:14.870 --> 00:39:18.263
Because you're creating a new license,
820
00:39:19.200 --> 00:39:22.920
you're going to bring in a lot of
821
00:39:22.920 --> 00:39:26.350
new licensees, grocery stores now.
822
00:39:26.350 --> 00:39:28.810
So the notion that you would
823
00:39:28.810 --> 00:39:32.900
want to have certainty with respect to ID checks
824
00:39:32.900 --> 00:39:37.090
with regard to those new market, new licensees
825
00:39:37.090 --> 00:39:41.027
that are coming in, makes perfect sense.
826
00:39:41.027 --> 00:39:45.303
The next level of and,
827
00:39:45.303 --> 00:39:49.290
we wanna make sure that in Stop and Shop can have as many
828
00:39:49.290 --> 00:39:52.653
of these licenses as they want across the state.
829
00:39:53.600 --> 00:39:56.460
One might say, "Well, okay, sure."
830
00:39:56.460 --> 00:40:00.573
But what does, what is the policy implicated by that?
831
00:40:01.864 --> 00:40:04.650
By that, if you look, again at the history,
832
00:40:04.650 --> 00:40:08.580
of how that issue has been dealt with,
833
00:40:08.580 --> 00:40:12.760
back and forth and extensively at the legislative level,
834
00:40:12.760 --> 00:40:15.440
what are the issues involved there?
835
00:40:15.440 --> 00:40:17.973
They are enormous and very significant.
836
00:40:18.941 --> 00:40:21.363
And so to say, "Well,
837
00:40:22.237 --> 00:40:24.937
"yeah, a new food license,
838
00:40:24.937 --> 00:40:27.127
"because we want more beer stores and wine stores around,
839
00:40:27.127 --> 00:40:31.022
"we want to be able to buy at different places."
840
00:40:31.022 --> 00:40:33.613
But the statewide cap,
841
00:40:33.613 --> 00:40:36.690
but we are concerned that then one comes in
842
00:40:38.264 --> 00:40:40.600
and buys 200 licenses and then runs the whole shop
843
00:40:41.991 --> 00:40:44.400
and monopolizes it and engages in the conduct
844
00:40:44.400 --> 00:40:47.850
that the statewide cap is designed to ensure
845
00:40:47.850 --> 00:40:49.380
that things get out of control.
846
00:40:49.380 --> 00:40:51.510
I mean, those are two very different things.
847
00:40:51.510 --> 00:40:53.778
And I think that,
848
00:40:53.778 --> 00:40:56.250
that the issue would be raised and
849
00:40:57.623 --> 00:40:58.990
what does the voter need to know?
850
00:40:58.990 --> 00:41:02.750
How to, is a unified statement of public policy here?
851
00:41:02.750 --> 00:41:05.260
That relates both to more stores selling it
852
00:41:05.260 --> 00:41:07.329
and the statewide cap?
853
00:41:07.329 --> 00:41:10.053
That would be the question.
854
00:41:11.000 --> 00:41:14.973
Now, the proposed initiative goes beyond my hypo
855
00:41:14.973 --> 00:41:19.973
in that it would permit a Total Wine to be able to own
856
00:41:22.430 --> 00:41:26.640
as many places as it can in the Commonwealth.
857
00:41:26.640 --> 00:41:28.960
Selling not only wine, but liquor,
858
00:41:28.960 --> 00:41:33.909
and it's players would require the package store to
859
00:41:33.909 --> 00:41:37.400
require me to show ID even though
860
00:41:37.400 --> 00:41:40.894
despite my youthful good looks, it's pretty clear I'm 21,
861
00:41:40.894 --> 00:41:44.660
and it would take all the money,
862
00:41:44.660 --> 00:41:46.690
including all the money from excise taxes,
863
00:41:46.690 --> 00:41:49.530
from package stores and put it into
864
00:41:49.530 --> 00:41:51.780
this particular fund.
865
00:41:51.780 --> 00:41:55.573
So is your argument that
866
00:41:55.573 --> 00:41:58.580
this initiative is essentially have provisions
867
00:41:58.580 --> 00:42:00.470
which are needlessly unrelated.
868
00:42:00.470 --> 00:42:05.180
Is there some argument that you're suggesting
869
00:42:05.180 --> 00:42:06.013
that we should look?
870
00:42:06.013 --> 00:42:08.055
Not only, yes to the overall,
871
00:42:08.055 --> 00:42:13.055
initiative, but whether or not it is needlessly expand,
872
00:42:13.800 --> 00:42:16.080
it needlessly goes beyond the scope of
873
00:42:16.080 --> 00:42:19.977
what would be necessary to essentially ask the question,
874
00:42:19.977 --> 00:42:21.450
"Do you wanna be able to allow
875
00:42:21.450 --> 00:42:24.000
food stores to sell beer and wine?
876
00:42:24.000 --> 00:42:27.355
I mean, things can be needlessly added.
877
00:42:27.355 --> 00:42:32.355
But if you add something that
878
00:42:32.406 --> 00:42:37.406
involves another public policy issue,
879
00:42:38.037 --> 00:42:41.900
you've got to think a little bit about
880
00:42:41.900 --> 00:42:44.440
the perspective from the voter.
881
00:42:44.440 --> 00:42:46.020
Are they going to be able to,
882
00:42:46.020 --> 00:42:49.930
is there a unified public statement of public policy here?
883
00:42:49.930 --> 00:42:52.430
That they're going to be able to vote yes or no?
884
00:42:52.430 --> 00:42:55.650
Do they want more local stores with beer,
885
00:42:55.650 --> 00:42:57.023
wine and other things?
886
00:42:58.790 --> 00:43:00.364
On one hand,
887
00:43:00.364 --> 00:43:03.120
are they concerned at all?
888
00:43:03.120 --> 00:43:06.850
Or do they have any sense of what the marketplace might look
889
00:43:06.850 --> 00:43:09.200
if, in fact, statewide cap's eliminated
890
00:43:09.200 --> 00:43:12.020
which has nothing to do, by the way with,
891
00:43:12.020 --> 00:43:14.244
the local population, with the number of stores
892
00:43:14.244 --> 00:43:18.952
that a community can agree should be licensed.
893
00:43:18.952 --> 00:43:23.952
If, you really have to get on under the hood
894
00:43:24.040 --> 00:43:25.970
and look at the occupation of these folks
895
00:43:25.970 --> 00:43:29.911
to under, to determine whether they're sufficiently related
896
00:43:29.911 --> 00:43:32.293
under Article 48.
897
00:43:33.430 --> 00:43:34.263
I have no--
898
00:43:34.263 --> 00:43:35.520
there's no bright line here.
899
00:43:38.312 --> 00:43:39.690
I have no further questions.
900
00:43:39.690 --> 00:43:42.499
Is there any Justice who has any further--?
901
00:43:42.499 --> 00:43:44.190
I have one more.
902
00:43:44.190 --> 00:43:45.023
Yes Justice--
903
00:43:45.023 --> 00:43:47.010
Going back to the probation issue.
904
00:43:47.010 --> 00:43:48.900
Mr. Cordy, can you hear me?
905
00:43:48.900 --> 00:43:49.810
Yes, I can.
906
00:43:49.810 --> 00:43:51.110
Okay, good.
907
00:43:51.110 --> 00:43:52.162
(mumbling)
908
00:43:52.162 --> 00:43:55.219
do you find it's going to be created,
909
00:43:55.219 --> 00:43:58.240
according to the initiative petition would be
910
00:43:58.240 --> 00:44:00.440
under the control of the legislature or not?
911
00:44:02.340 --> 00:44:05.480
Under the control of the legislature in the sense that
912
00:44:05.480 --> 00:44:07.853
it would appropriate money out of the fund.
913
00:44:09.020 --> 00:44:10.393
Right.
914
00:44:10.393 --> 00:44:11.226
Right,
915
00:44:12.572 --> 00:44:14.168
but when they would not care,
916
00:44:14.168 --> 00:44:15.558
it would knock the heck out of the budget process,
917
00:44:15.558 --> 00:44:16.968
but not out of keeping money in
918
00:44:16.968 --> 00:44:18.040
the control of the legislature?
919
00:44:18.040 --> 00:44:18.960
Correct.
920
00:44:18.960 --> 00:44:21.728
Okay, got it, thank you.
921
00:44:21.728 --> 00:44:23.260
Is there any other question?
922
00:44:23.260 --> 00:44:26.620
I have one last question for Mr. Cordy.
923
00:44:26.620 --> 00:44:29.700
The language in Bates.
924
00:44:29.700 --> 00:44:32.817
It says "A specific appropriation may not be made
925
00:44:32.817 --> 00:44:35.737
"by way of initiative and the insertion of the word
926
00:44:35.737 --> 00:44:39.877
"subject to appropriation excludes any possibility
927
00:44:39.877 --> 00:44:41.137
"that the initiative is
928
00:44:41.137 --> 00:44:44.120
"an impermissible specific appropriation."
929
00:44:44.120 --> 00:44:45.210
Do we have the
930
00:44:46.584 --> 00:44:48.716
correct that?
931
00:44:48.716 --> 00:44:51.973
To adopt your interpretation?
932
00:44:53.129 --> 00:44:55.150
No, I don't think so.
933
00:44:55.150 --> 00:44:56.018
I mean that,
934
00:44:56.018 --> 00:44:59.040
the Bates case
935
00:45:00.800 --> 00:45:03.197
it basically said the insertion of the term
936
00:45:03.197 --> 00:45:04.930
"subject to appropriation"
937
00:45:04.930 --> 00:45:06.810
in the Clean Elections law
938
00:45:06.810 --> 00:45:09.310
did not relieve the legislature
939
00:45:09.310 --> 00:45:12.593
of its constitutional duty to in fact,
940
00:45:13.510 --> 00:45:18.510
make appropriations to fund the Clean Elections Funds.
941
00:45:18.628 --> 00:45:23.543
Either they had to do that or they had to repeal it.
942
00:45:23.543 --> 00:45:26.924
So even though it had that language in there,
943
00:45:26.924 --> 00:45:30.400
once enacted the legislature still
944
00:45:30.400 --> 00:45:34.170
has an obligation to appropriate money to fund
945
00:45:35.121 --> 00:45:37.343
the initiative, or they can repeal it,
946
00:45:38.560 --> 00:45:39.480
But in that--
947
00:45:39.480 --> 00:45:41.490
That's what they said.
948
00:45:41.490 --> 00:45:44.330
But isn't that, that's the second part of what they did.
949
00:45:44.330 --> 00:45:47.556
They sort of, did they assume that if you have
950
00:45:47.556 --> 00:45:49.788
the specific appropriation language,
951
00:45:49.788 --> 00:45:54.660
written, you don't, if it's subject to appropriation,
952
00:45:54.660 --> 00:45:57.120
it's not a specific appropriation.
953
00:45:57.120 --> 00:46:00.375
They were just, they sort of assumed that,
954
00:46:00.375 --> 00:46:02.899
as the first step, and then they said,
955
00:46:02.899 --> 00:46:04.802
"Okay, they didn't want this language."
956
00:46:04.802 --> 00:46:07.060
Then they sort of went from there,
957
00:46:07.060 --> 00:46:10.300
but they kind of assumed the issue working prior with,
958
00:46:10.300 --> 00:46:14.199
which is, when you have the subject to appropriation
959
00:46:14.199 --> 00:46:17.973
language, it's not a specific appropriation, right?
960
00:46:20.120 --> 00:46:25.120
If that's correct, it's not a specific appropriation.
961
00:46:26.978 --> 00:46:31.978
But the legislature is required to
962
00:46:33.850 --> 00:46:38.850
implement the intention of the initiative petition.
963
00:46:39.210 --> 00:46:42.290
And here the intention is,
964
00:46:42.290 --> 00:46:44.190
that these funds be segregated
965
00:46:44.190 --> 00:46:47.158
and spent on a very specific set of purposes.
966
00:46:47.158 --> 00:46:48.800
So
967
00:46:50.096 --> 00:46:53.077
the legislature still retains the power to say,
968
00:46:53.077 --> 00:46:55.867
"Okay, there's $100 million in here.
969
00:46:55.867 --> 00:47:00.117
"We're gonna appropriate $5 million of that for the ABCC.
970
00:47:00.117 --> 00:47:02.650
"And these are the functions we're going to fund."
971
00:47:02.650 --> 00:47:03.997
But it can't then say,
972
00:47:03.997 --> 00:47:06.717
"But we're really, we're gonna take the rest of the money
973
00:47:06.717 --> 00:47:08.870
"out of the fund and spend it entirely differently."
974
00:47:08.870 --> 00:47:10.940
'Cause that would be exactly
975
00:47:10.940 --> 00:47:14.363
contrary to the intention of the initiative petition.
976
00:47:14.363 --> 00:47:16.340
That's sort of the argument.
977
00:47:16.340 --> 00:47:18.170
And then it says you've gotta,
978
00:47:18.170 --> 00:47:19.360
if you either repeal it,
979
00:47:19.360 --> 00:47:21.493
or you have to adequately carry it out.
980
00:47:23.540 --> 00:47:26.557
It's not (mumbles)
(clears throat)
981
00:47:26.557 --> 00:47:27.540
the unrelated issue is in some respects,
982
00:47:27.540 --> 00:47:29.860
a clear issue then, believe it or not,
983
00:47:29.860 --> 00:47:31.536
this isn't the
984
00:47:31.536 --> 00:47:33.193
(sneeze)
specific appropriation.
985
00:47:34.030 --> 00:47:36.010
Any further questions?
986
00:47:36.010 --> 00:47:38.019
and hearing none, Mr. Cordy, thank you.
987
00:47:38.019 --> 00:47:39.533
Thank you.
988
00:47:39.533 --> 00:47:41.220
Thank you, Your Honor.
989
00:47:41.220 --> 00:47:42.990
Good morning, and may it please the Court,
990
00:47:42.990 --> 00:47:45.370
the proposal would restructure the Massachusetts
991
00:47:45.370 --> 00:47:47.410
retail liquor market to make beer and wine
992
00:47:47.410 --> 00:47:49.062
more widely available at neighborhood outlets.
993
00:47:49.062 --> 00:47:51.580
Customers might be visiting anyway,
994
00:47:51.580 --> 00:47:53.793
like grocery stores and convenience stores.
995
00:47:53.793 --> 00:47:56.450
They would do this by lifting two numerical caps,
996
00:47:56.450 --> 00:47:58.403
one that restricts the number of food stores
997
00:47:58.403 --> 00:48:00.510
that may be licensed for alcohol sales
998
00:48:00.510 --> 00:48:02.340
in any single city or town,
999
00:48:02.340 --> 00:48:04.270
and the other restricting the number of licenses
1000
00:48:04.270 --> 00:48:06.670
that one company may hold statewide.
1001
00:48:06.670 --> 00:48:08.660
The other provisions would address consequences of
1002
00:48:08.660 --> 00:48:11.449
this increased alcohol availability
1003
00:48:11.449 --> 00:48:14.220
by imposing age verification procedures
1004
00:48:14.220 --> 00:48:16.710
and ensuring funding for adequate inspection
1005
00:48:16.710 --> 00:48:18.927
and regulation of the additional liquor outlets.
1006
00:48:18.927 --> 00:48:22.280
Mr. Cordy, in his presentation conceded that there is
1007
00:48:22.280 --> 00:48:24.410
a common purpose among these provisions,
1008
00:48:24.410 --> 00:48:28.454
and that that common purpose was to enrich Cumberland Farms.
1009
00:48:28.454 --> 00:48:32.950
To enrich Cumberland farms and similarly situated companies,
1010
00:48:32.950 --> 00:48:35.176
such as ten grocery stores in Massachusetts.
1011
00:48:35.176 --> 00:48:37.500
They are a different business sector
1012
00:48:37.500 --> 00:48:39.340
in the independent package stores
1013
00:48:39.340 --> 00:48:41.210
that have participated in this litigation
1014
00:48:41.210 --> 00:48:43.050
through filing amicus briefs,
1015
00:48:43.050 --> 00:48:45.322
but they are also a different business sector.
1016
00:48:45.322 --> 00:48:50.130
Then Total Wine and Costco, Costco is a warehouse club
1017
00:48:50.130 --> 00:48:52.218
would be specifically excluded from
1018
00:48:52.218 --> 00:48:55.447
this initiative petition under the definition of
1019
00:48:55.447 --> 00:48:59.123
food stores that is incorporated into the proposed law
1020
00:48:59.123 --> 00:49:01.145
and Total wine would not be eligible
1021
00:49:01.145 --> 00:49:05.440
as it does not, it's not a food store
1022
00:49:05.440 --> 00:49:08.111
for applying for this new kind of license.
1023
00:49:08.111 --> 00:49:10.848
Massachusetts Liquor Control Act was adopted in 1933
1024
00:49:10.848 --> 00:49:13.540
after the end of prohibition,
1025
00:49:13.540 --> 00:49:15.470
and it's generally structured the same way
1026
00:49:15.470 --> 00:49:17.934
as it was when municipal licensed quota systems
1027
00:49:17.934 --> 00:49:21.180
were implemented in the 1960s and 1970s.
1028
00:49:21.180 --> 00:49:24.530
The petition sponsors may view this law as antiquated
1029
00:49:24.530 --> 00:49:27.357
and non responsive to modern consumer preferences.
1030
00:49:27.357 --> 00:49:29.105
Updating the law as proposed,
1031
00:49:29.105 --> 00:49:31.771
may benefit some businesses and disadvantage others
1032
00:49:31.771 --> 00:49:34.420
and may have community effects viewed by some
1033
00:49:34.420 --> 00:49:36.810
as undesirable, but it is not the role of
1034
00:49:36.810 --> 00:49:39.424
the Attorney General to search for reasons
1035
00:49:39.424 --> 00:49:40.257
to reject a petition on the basis
1036
00:49:40.257 --> 00:49:42.160
of policy disagreements.
1037
00:49:42.160 --> 00:49:44.170
Article 48 allows proposed laws to
1038
00:49:44.170 --> 00:49:45.970
contain multiple subjects,
1039
00:49:45.970 --> 00:49:48.650
it requires only that those subjects be related.
1040
00:49:48.650 --> 00:49:50.020
As the court has noted,
1041
00:49:50.020 --> 00:49:51.910
at some high level of abstraction,
1042
00:49:51.910 --> 00:49:54.176
any two legal provisions may be said to be related.
1043
00:49:54.176 --> 00:49:56.810
The converse is also true.
1044
00:49:56.810 --> 00:49:59.470
Using a small enough lens, those two legal provisions
1045
00:49:59.470 --> 00:50:01.660
could ever be said to be related.
1046
00:50:01.660 --> 00:50:03.298
If you dismantle any multi part measure
1047
00:50:03.298 --> 00:50:05.403
and examine each part separately,
1048
00:50:05.403 --> 00:50:08.232
it's easy to overemphasize distinctions among them.
1049
00:50:08.232 --> 00:50:11.830
If those distinctions demanded division of this measure
1050
00:50:11.830 --> 00:50:14.166
into four or more separate valid questions,
1051
00:50:14.166 --> 00:50:17.177
each proposing a separate change in the law.
1052
00:50:17.177 --> 00:50:20.180
It would be extremely confusing and burdensome to voters,
1053
00:50:20.180 --> 00:50:22.528
expensive to propose, difficult to administer,
1054
00:50:22.528 --> 00:50:24.318
and likely to lead, unworkable,
1055
00:50:24.318 --> 00:50:27.606
yield, unworkable or unintended legal consequences.
1056
00:50:27.606 --> 00:50:31.298
Such as, didn't all pass or didn't all fail,
1057
00:50:31.298 --> 00:50:33.630
as long as a common purpose of a proposed law
1058
00:50:33.630 --> 00:50:35.310
is of a reasonable scope,
1059
00:50:35.310 --> 00:50:38.055
and all provisions of the law implement that common purpose,
1060
00:50:38.055 --> 00:50:40.743
is appropriate for the ballot.
1061
00:50:40.743 --> 00:50:42.986
Turning briefly to specific appropriation,
1062
00:50:42.986 --> 00:50:44.910
this Court has never held that
1063
00:50:44.910 --> 00:50:46.565
a proposed law may not direct funds to be used
1064
00:50:46.565 --> 00:50:48.355
for a particular purpose.
1065
00:50:48.355 --> 00:50:50.740
As long as, the ultimate spending discretion
1066
00:50:50.740 --> 00:50:52.770
remains with the legislature.
1067
00:50:52.770 --> 00:50:54.330
And this court has specifically noted
1068
00:50:54.330 --> 00:50:56.773
that setting aside funds for a specific purpose,
1069
00:50:56.773 --> 00:50:59.113
is not an appropriation.
1070
00:50:59.113 --> 00:51:01.800
This Court has noted that it is difficult
1071
00:51:01.800 --> 00:51:03.510
to imagine how a measure which states,
1072
00:51:03.510 --> 00:51:06.161
that it is subject to appropriation, as this one does,
1073
00:51:06.161 --> 00:51:07.930
could have been intended to be
1074
00:51:07.930 --> 00:51:09.840
an appropriation in and of itself.
1075
00:51:09.840 --> 00:51:12.190
The question is, "Would the legislature be powerless to
1076
00:51:12.190 --> 00:51:14.550
"appropriate money from the
1077
00:51:14.550 --> 00:51:16.657
specified sources to any other use?"
1078
00:51:16.657 --> 00:51:18.146
And the answer is, "No."
1079
00:51:18.146 --> 00:51:20.750
If this court were to accept the plaintiff's cue,
1080
00:51:20.750 --> 00:51:22.798
then initiated laws may not redirect existing revenue,
1081
00:51:22.798 --> 00:51:25.130
that would dramatically restrict
1082
00:51:25.130 --> 00:51:27.256
the scope of citizen lawmaking.
1083
00:51:27.256 --> 00:51:28.970
Noting that my three minutes have elapsed,
1084
00:51:28.970 --> 00:51:30.854
I'll invite any questions the Justices may have.
1085
00:51:30.854 --> 00:51:32.220
Thank you.
1086
00:51:32.220 --> 00:51:33.410
Justice Lenk.
1087
00:51:33.410 --> 00:51:36.350
I will go back to appropriation (mumbles)step on it.
1088
00:51:36.350 --> 00:51:38.984
I'm gonna, I would like to know your view on the,
1089
00:51:38.984 --> 00:51:41.244
can you hear me by the way?
1090
00:51:41.244 --> 00:51:42.710
Yes, I can, thank you.
1091
00:51:42.710 --> 00:51:43.692
Okay.
1092
00:51:43.692 --> 00:51:46.750
I'd like to know what your view is as to,
1093
00:51:46.750 --> 00:51:48.290
what the original purpose of the framers
1094
00:51:48.290 --> 00:51:50.607
was when enacting this specific appropriations requirement,
1095
00:51:50.607 --> 00:51:52.882
was to keep money in control of the legislature
1096
00:51:52.882 --> 00:51:56.662
or to keep the budget process in control the legislature.
1097
00:51:56.662 --> 00:51:59.000
I would say it's both, Your Honor.
1098
00:51:59.000 --> 00:52:02.330
As we know, the framers at the same time
1099
00:52:02.330 --> 00:52:03.630
while they were debating,
1100
00:52:03.630 --> 00:52:05.528
what became Amendment Article 48.
1101
00:52:05.528 --> 00:52:08.260
They were also,
1102
00:52:08.260 --> 00:52:10.040
discussing the implementation of a unified
1103
00:52:10.040 --> 00:52:13.019
budgetary system that became Amendment Article 63
1104
00:52:13.019 --> 00:52:16.575
adopted at the same election.
1105
00:52:16.575 --> 00:52:18.310
So,
1106
00:52:18.310 --> 00:52:21.573
it was their concern that
1107
00:52:21.573 --> 00:52:26.573
initiated petitions would not be able to
1108
00:52:28.230 --> 00:52:31.580
carve out permanently and remove
1109
00:52:31.580 --> 00:52:34.470
from legislative discretion, any funds,
1110
00:52:34.470 --> 00:52:35.910
but at the same time,
1111
00:52:35.910 --> 00:52:38.496
there was a robust debate on whether,
1112
00:52:38.496 --> 00:52:41.430
citizens ought to be allowed to propose laws
1113
00:52:41.430 --> 00:52:43.490
that would cost money to implement.
1114
00:52:43.490 --> 00:52:45.573
And after that robust debate,
1115
00:52:45.573 --> 00:52:50.164
the framers concluded that they were not going to
1116
00:52:50.164 --> 00:52:53.961
reduce the initiative petition procedure to one of,
1117
00:52:53.961 --> 00:52:58.280
merely resolutions or toothless ideas, but then in fact,
1118
00:52:58.280 --> 00:53:00.980
the voters should be allowed to implement laws
1119
00:53:00.980 --> 00:53:04.890
that may cost money to implement, to enact.
1120
00:53:04.890 --> 00:53:05.943
Okay, but wouldn't you say that
1121
00:53:05.943 --> 00:53:08.670
this initiative petition would disrupt
1122
00:53:08.670 --> 00:53:10.120
the legislative control of the budget,
1123
00:53:10.120 --> 00:53:12.714
even though it would not prohibit them
1124
00:53:12.714 --> 00:53:16.210
from spending, from appropriating funds?
1125
00:53:16.210 --> 00:53:17.816
I would not, Your Honor, because,
1126
00:53:17.816 --> 00:53:21.636
well, the provision would require that money
1127
00:53:21.636 --> 00:53:24.060
is set aside in a particular fund,
1128
00:53:24.060 --> 00:53:26.750
this Court has held in the Manzoni and in other cases,
1129
00:53:26.750 --> 00:53:28.240
that, that does not.
1130
00:53:28.240 --> 00:53:31.370
That is not an excluded specific appropriation,
1131
00:53:31.370 --> 00:53:34.086
and that that money would not be permanently
1132
00:53:34.086 --> 00:53:37.190
removed from the budgetary process.
1133
00:53:37.190 --> 00:53:39.801
In the two cases in which this Court has concluded that,
1134
00:53:39.801 --> 00:53:43.533
proposed measures should have been excluded from
1135
00:53:43.533 --> 00:53:47.810
the initial petition process as specific appropriations,
1136
00:53:47.810 --> 00:53:50.136
the 1937 opinion of the Justices' case
1137
00:53:50.136 --> 00:53:53.960
and the Truman case in 1988.
1138
00:53:53.960 --> 00:53:56.025
What was important to the court
1139
00:53:56.025 --> 00:53:59.940
in both of those situations was the fact that the,
1140
00:53:59.940 --> 00:54:01.659
legislative would have been powerless
1141
00:54:01.659 --> 00:54:03.490
to amend the subject fund,
1142
00:54:03.490 --> 00:54:06.220
to appropriate the subject fund for any other use.
1143
00:54:06.220 --> 00:54:09.740
In this case, the legislature is granted the discretion
1144
00:54:09.740 --> 00:54:11.824
through the inclusion of the
1145
00:54:11.824 --> 00:54:13.210
subject to appropriation language,
1146
00:54:13.210 --> 00:54:15.867
to appropriate the funds as it sees fit
1147
00:54:15.867 --> 00:54:19.213
and appropriate leftover funds in that
1148
00:54:19.213 --> 00:54:22.900
specialized fund for any other use.
1149
00:54:22.900 --> 00:54:24.130
So I would say no,
1150
00:54:24.130 --> 00:54:26.154
it would not disrupt the budget process.
1151
00:54:26.154 --> 00:54:27.690
It wouldn't, okay.
1152
00:54:27.690 --> 00:54:30.459
So, Mr. Cordy's view of Bates is incorrect?
1153
00:54:30.459 --> 00:54:34.501
That we're, the legislative would not be required
1154
00:54:34.501 --> 00:54:36.748
in some fashion to
1155
00:54:36.748 --> 00:54:40.972
do the will of the voter, to do bidding of the voters,
1156
00:54:40.972 --> 00:54:43.990
in connection with appropriating funds
1157
00:54:43.990 --> 00:54:45.460
with specific purpose?
1158
00:54:45.460 --> 00:54:46.510
Excuse me Your Honor,
1159
00:54:46.510 --> 00:54:49.990
I agree with Mr. Cordy's representation of Bates,
1160
00:54:49.990 --> 00:54:52.520
to the extent he states, that Article 48
1161
00:54:52.520 --> 00:54:54.762
requires a legislature, the legislature
1162
00:54:54.762 --> 00:54:58.280
to either fund or repeal any law
1163
00:54:58.280 --> 00:55:00.271
enacted through an initiative petition.
1164
00:55:00.271 --> 00:55:03.643
But this was decided 10 years after AME and Gilligan,
1165
00:55:03.643 --> 00:55:08.643
that have remained on to serve to this day stating that,
1166
00:55:09.382 --> 00:55:13.343
"It is not, a measure cannot be excluded
1167
00:55:13.343 --> 00:55:16.077
"for specific appropriation if in fact,
1168
00:55:16.077 --> 00:55:17.947
"the legislature's spending power
1169
00:55:17.947 --> 00:55:22.340
"remains subject to appropriation."
1170
00:55:22.340 --> 00:55:24.976
The situation in Bates was of course not a
1171
00:55:24.976 --> 00:55:28.720
question of whether the proposed law
1172
00:55:28.720 --> 00:55:30.170
should have been certified.
1173
00:55:30.170 --> 00:55:32.817
The proposed law had already been certified and enacted.
1174
00:55:32.817 --> 00:55:35.110
The court was wrestling with what
1175
00:55:35.110 --> 00:55:38.041
that enacted law required the legislature to do,
1176
00:55:38.041 --> 00:55:43.041
and upon, including that, the inclusion of the words
1177
00:55:43.117 --> 00:55:44.734
"subject to appropriation"
1178
00:55:44.734 --> 00:55:48.717
in the Clean Elections law were not required,
1179
00:55:48.717 --> 00:55:52.100
had been added solely for the purpose
1180
00:55:52.100 --> 00:55:56.100
of avoiding a challenge to the initiative petition on
1181
00:55:56.100 --> 00:55:58.044
specific appropriation grounds.
1182
00:55:58.044 --> 00:56:01.844
The court measured those words against the
1183
00:56:01.844 --> 00:56:05.000
intent of the statute taken as a whole,
1184
00:56:05.000 --> 00:56:08.510
and concluded that the framers did not intend
1185
00:56:08.510 --> 00:56:12.152
that law to be, the enactment of that law to be
1186
00:56:12.152 --> 00:56:15.830
purely optional with the legislature.
1187
00:56:15.830 --> 00:56:18.320
And there was no Clean Elections law prior
1188
00:56:18.320 --> 00:56:19.770
to the enactment of that law.
1189
00:56:20.991 --> 00:56:23.034
So if the legislature did not appropriate funds
1190
00:56:23.034 --> 00:56:26.040
to implement it, it would not be implemented.
1191
00:56:26.040 --> 00:56:28.646
And by the time the Bates case came before this court,
1192
00:56:28.646 --> 00:56:32.440
certain candidates at least one
1193
00:56:32.440 --> 00:56:34.593
and I think in the course of litigation,
1194
00:56:35.565 --> 00:56:36.954
another had qualified for funds
1195
00:56:36.954 --> 00:56:38.840
under the Clean Elections law.
1196
00:56:38.840 --> 00:56:41.301
So it was clear exactly how much money would need to be
1197
00:56:41.301 --> 00:56:43.430
appropriated to enact that law
1198
00:56:43.430 --> 00:56:46.329
with respect to those candidates.
1199
00:56:46.329 --> 00:56:50.493
I would agree with Mr. Cordy's assertion that this law,
1200
00:56:50.493 --> 00:56:54.334
if enacted, would require the legislature to fund the ABCC
1201
00:56:54.334 --> 00:56:59.334
sufficiently to enact it but I do disagree,
1202
00:57:00.010 --> 00:57:02.020
that it would be required,
1203
00:57:02.020 --> 00:57:04.331
to spend any particular amount of money.
1204
00:57:04.331 --> 00:57:05.288
Okay, thank you.
1205
00:57:05.288 --> 00:57:06.288
Thank you.
1206
00:57:07.720 --> 00:57:08.900
Justice Gaziano.
1207
00:57:08.900 --> 00:57:10.930
No questions, thank you.
1208
00:57:10.930 --> 00:57:12.570
Justice Lowy.
1209
00:57:12.570 --> 00:57:17.380
Sure, so, there's just as that alluded to,
1210
00:57:17.380 --> 00:57:19.600
you can take almost any situation
1211
00:57:19.600 --> 00:57:23.570
and find relatedness at certain level.
1212
00:57:23.570 --> 00:57:26.070
And perhaps the relatedness here is that
1213
00:57:26.070 --> 00:57:29.643
people are really busy or they're lazy
1214
00:57:29.643 --> 00:57:34.230
and they just want to go, one place,
1215
00:57:34.230 --> 00:57:36.000
be able to get beer or wine.
1216
00:57:36.000 --> 00:57:38.071
Just like some people,
1217
00:57:38.071 --> 00:57:40.688
they want to be able to vote for options we are
1218
00:57:40.688 --> 00:57:43.159
and how they get their new state.
1219
00:57:43.159 --> 00:57:45.222
What if that person who
1220
00:57:45.222 --> 00:57:49.792
really just wants to be able to buy beer and wine
1221
00:57:49.792 --> 00:57:52.230
wherever he or she may be,
1222
00:57:52.230 --> 00:57:54.503
really doesn't like the idea of,
1223
00:57:55.700 --> 00:58:00.700
having this concentration of business in a few hands,
1224
00:58:01.070 --> 00:58:03.140
or doesn't like go to the local
1225
00:58:04.090 --> 00:58:06.050
liquor store when they also sell food,
1226
00:58:06.050 --> 00:58:09.370
doesn't want to
1227
00:58:09.370 --> 00:58:12.936
every single day stand in line in front of the
1228
00:58:12.936 --> 00:58:17.162
people that he or she sees every day and show their ID.
1229
00:58:17.162 --> 00:58:19.863
Don't you have a situation where,
1230
00:58:21.166 --> 00:58:23.771
you've got a voter who, yes, on a level,
1231
00:58:23.771 --> 00:58:25.430
you've got relatedness
1232
00:58:25.430 --> 00:58:30.430
as it relates to how the alcohol industry is regulated,
1233
00:58:30.492 --> 00:58:33.280
but you've at least two other things
1234
00:58:33.280 --> 00:58:35.820
that are really gonna bother voters,
1235
00:58:35.820 --> 00:58:38.589
and they don't know how to vote.
1236
00:58:38.589 --> 00:58:40.103
They don't want to vote yes.
1237
00:58:41.231 --> 00:58:42.365
And they don't want to vote no.
1238
00:58:42.365 --> 00:58:43.800
Yes, Your Honor.
1239
00:58:43.800 --> 00:58:45.910
Anytime you have a multi part petition,
1240
00:58:45.910 --> 00:58:48.690
which is expressly allowed under Article 48,
1241
00:58:48.690 --> 00:58:51.899
you may have some voters who feel one way about part of it
1242
00:58:51.899 --> 00:58:54.100
and another way about another part of it,
1243
00:58:54.100 --> 00:58:56.200
as this court concluded in Hensley,
1244
00:58:56.200 --> 00:58:58.370
just as we do when we choose candidates,
1245
00:58:58.370 --> 00:59:02.110
we need to wrestle with what we like and don't like
1246
00:59:02.110 --> 00:59:04.521
about any particular measure that's before us.
1247
00:59:04.521 --> 00:59:08.928
The relatedness requirement is not intended to
1248
00:59:08.928 --> 00:59:13.110
reduce the need to think consciously
1249
00:59:13.110 --> 00:59:14.870
about how you feel about a measure,
1250
00:59:14.870 --> 00:59:19.510
but is rather intended to ensure that voters are tasked
1251
00:59:19.510 --> 00:59:22.288
unfairly to engage in that wrestling process,
1252
00:59:22.288 --> 00:59:24.694
as this court concluded in Dan,
1253
00:59:24.694 --> 00:59:28.770
a petitioner can use multiple paths
1254
00:59:28.770 --> 00:59:30.400
to get to a similar place.
1255
00:59:30.400 --> 00:59:32.970
In this case, that's what the measure does.
1256
00:59:32.970 --> 00:59:35.580
It both expands availability
1257
00:59:35.580 --> 00:59:38.407
by both lifting the statewide cap and introducing
1258
00:59:38.407 --> 00:59:42.347
a new form of license that would not be subject
1259
00:59:42.347 --> 00:59:44.306
to the local quotas.
1260
00:59:44.306 --> 00:59:49.306
So we can speculate until the election,
1261
00:59:50.290 --> 00:59:52.891
what might motivate one voter and not another voter,
1262
00:59:52.891 --> 00:59:55.552
but there is nothing in Article 48 that
1263
00:59:55.552 --> 01:00:00.552
precludes voters having to review the materials
1264
01:00:00.670 --> 01:00:02.720
that are before them and make a decision overall,
1265
01:00:02.720 --> 01:00:04.950
how they feel about a particular question.
1266
01:00:04.950 --> 01:00:08.150
Well, I guess it's, just what would say,
1267
01:00:08.150 --> 01:00:10.130
where the line is, if you look at
1268
01:00:10.130 --> 01:00:11.876
Carney here, he has achieved,
1269
01:00:11.876 --> 01:00:15.260
this petition seems to be protecting not the dogs,
1270
01:00:15.260 --> 01:00:20.176
because you don't have a permit of dog racing anymore.
1271
01:00:20.176 --> 01:00:23.539
And the penalties included are increased.
1272
01:00:23.539 --> 01:00:28.093
But we found no relatedness there.
1273
01:00:28.093 --> 01:00:29.900
So,
1274
01:00:29.900 --> 01:00:32.777
the question is,
1275
01:00:32.777 --> 01:00:34.157
"What's the principle,
1276
01:00:34.157 --> 01:00:37.627
"the core principle that you would point
1277
01:00:37.627 --> 01:00:39.947
"for us to be able to find that line?"
1278
01:00:41.090 --> 01:00:43.621
The way, Your Honor, that I find it easiest to,
1279
01:00:43.621 --> 01:00:48.621
evaluate these provisions and to harmonize this court cases,
1280
01:00:49.203 --> 01:00:53.840
is to think about these petitions in terms of scope.
1281
01:00:53.840 --> 01:00:55.825
And if you can conceive of a scope that
1282
01:00:55.825 --> 01:01:00.825
will include all provisions of the proposed law
1283
01:01:01.990 --> 01:01:04.771
and is not unduly broad, then,
1284
01:01:04.771 --> 01:01:09.250
that is one way of arriving at a conclusion
1285
01:01:09.250 --> 01:01:11.820
that the relatedness requirement is met.
1286
01:01:11.820 --> 01:01:15.010
In Carney, the court concluded that protection of dogs
1287
01:01:15.010 --> 01:01:17.463
was simply too broad and abstract.
1288
01:01:17.463 --> 01:01:20.950
In Gray, the court concluded that education
1289
01:01:20.950 --> 01:01:25.262
was simply too broad and related only abstractly.
1290
01:01:25.262 --> 01:01:27.537
In MCA, the court concluded that state
1291
01:01:27.537 --> 01:01:30.930
and local taxation is sufficiently narrow.
1292
01:01:30.930 --> 01:01:33.006
And in Hensley, the court concluded that
1293
01:01:33.006 --> 01:01:38.006
the marijuana, the comprehensive scheme to
1294
01:01:38.870 --> 01:01:43.170
regulate medical and recreational marijuana
1295
01:01:43.170 --> 01:01:44.820
was sufficiently narrow.
1296
01:01:44.820 --> 01:01:46.606
In Hensley we talked about, the provision there,
1297
01:01:46.606 --> 01:01:51.470
dealt with multiple sectors of a retail market
1298
01:01:51.470 --> 01:01:54.322
both vertically in terms of
1299
01:01:54.322 --> 01:01:56.797
cultivation, testing and distribution,
1300
01:01:56.797 --> 01:01:59.741
as well as horizontally in terms of,
1301
01:01:59.741 --> 01:02:03.265
on-premises and off-premises,
1302
01:02:03.265 --> 01:02:06.977
retail sales and recreational sales and medical sales.
1303
01:02:06.977 --> 01:02:10.963
And the court concluded that was not a scope
1304
01:02:10.963 --> 01:02:12.770
that was overly broad.
1305
01:02:12.770 --> 01:02:15.357
Certainly this petition that deals with one
1306
01:02:15.357 --> 01:02:19.310
sector of the off-premises alcohol market,
1307
01:02:19.310 --> 01:02:22.010
or one sector of the retail alcohol market
1308
01:02:22.010 --> 01:02:23.927
is narrower than that.
1309
01:02:23.927 --> 01:02:26.571
Thank you, no further questions.
1310
01:02:26.571 --> 01:02:28.115
Justice Budd.
1311
01:02:28.115 --> 01:02:29.465
I have no questions.
1312
01:02:29.465 --> 01:02:30.574
Thank you.
1313
01:02:30.574 --> 01:02:31.991
Justice Cypher.
1314
01:02:34.080 --> 01:02:35.860
I just would like to go back for a minute
1315
01:02:35.860 --> 01:02:39.037
to your answer regarding the appropriation question.
1316
01:02:39.037 --> 01:02:39.920
And,
1317
01:02:39.920 --> 01:02:44.170
the requirement in the petition,
1318
01:02:44.170 --> 01:02:47.034
that there be money,
1319
01:02:47.034 --> 01:02:48.782
set aside, correct me, set aside
1320
01:02:48.782 --> 01:02:51.650
but then you say that the legislature wouldn't,
1321
01:02:51.650 --> 01:02:52.940
would have to spend something
1322
01:02:52.940 --> 01:02:56.100
but wouldn't necessarily have to spend all of it.
1323
01:02:56.100 --> 01:02:57.210
Can you explain?
1324
01:02:57.210 --> 01:02:59.350
Maybe I just don't understand your answer to that.
1325
01:02:59.350 --> 01:03:01.090
Yeah, yes Your Honor,
1326
01:03:01.090 --> 01:03:03.600
in the Manzoni case and in other cases,
1327
01:03:03.600 --> 01:03:07.000
the court has wrestled with the argument
1328
01:03:07.000 --> 01:03:09.415
about whether setting money aside in a particular fund
1329
01:03:09.415 --> 01:03:12.480
constitutes an appropriation for purposes
1330
01:03:12.480 --> 01:03:14.151
of the Article 48 exclusion.
1331
01:03:14.151 --> 01:03:17.072
And the court is consistently held that, "No, it does not."
1332
01:03:17.072 --> 01:03:18.010
The court has not concluded that a measure
1333
01:03:18.010 --> 01:03:23.010
contains a prohibited specific
1334
01:03:23.559 --> 01:03:27.980
appropriation except where the legislature
1335
01:03:27.980 --> 01:03:30.112
would be powerless to use
1336
01:03:30.112 --> 01:03:32.730
(coughing)
that money for anything else.
1337
01:03:32.730 --> 01:03:34.318
In the 1937 opinion,
1338
01:03:34.318 --> 01:03:38.930
the money would have gone to the legislature without,
1339
01:03:38.930 --> 01:03:41.360
I mean, to the executive branch without any
1340
01:03:41.360 --> 01:03:42.920
action by the legislature and
1341
01:03:42.920 --> 01:03:45.200
in the law at issue in Slama,
1342
01:03:45.200 --> 01:03:47.055
the money would have been
1343
01:03:47.055 --> 01:03:49.914
distributed to municipalities automatically
1344
01:03:49.914 --> 01:03:52.213
and without further appropriation.
1345
01:03:52.213 --> 01:03:55.014
So the subject to appropriation language as this Court has
1346
01:03:55.014 --> 01:03:58.423
developed this jurisprudence in this area means
1347
01:03:58.423 --> 01:04:01.744
that the legislature retains
1348
01:04:01.744 --> 01:04:04.140
full spending authority,
1349
01:04:04.140 --> 01:04:07.745
though there under Manzoni and other cases,
1350
01:04:07.745 --> 01:04:12.223
it is just simply not the case that
1351
01:04:12.223 --> 01:04:14.700
assigning money to a particular fund removes
1352
01:04:14.700 --> 01:04:17.540
it from the control of the legislature.
1353
01:04:17.540 --> 01:04:18.730
It doesn't.
1354
01:04:18.730 --> 01:04:21.710
So while it is true that the legislature
1355
01:04:21.710 --> 01:04:24.260
would need to either sufficiently fund
1356
01:04:24.260 --> 01:04:26.310
this initiative petition to implement it
1357
01:04:26.310 --> 01:04:28.310
or choose to repeal it,
1358
01:04:28.310 --> 01:04:32.770
it would not be required to spend any particular
1359
01:04:32.770 --> 01:04:34.410
amount of money to do that.
1360
01:04:34.410 --> 01:04:36.367
Okay, thank you.
1361
01:04:36.367 --> 01:04:38.300
No more questions.
1362
01:04:38.300 --> 01:04:39.960
Justice Kafker,
1363
01:04:39.960 --> 01:04:43.070
So I just want to make sure it is,
1364
01:04:43.070 --> 01:04:46.788
are these the subject of appropriation as I mean,
1365
01:04:46.788 --> 01:04:51.288
are subject to appropriation magic words then?
1366
01:04:51.288 --> 01:04:53.380
As long as they're included, our analysis ends?
1367
01:04:53.380 --> 01:04:54.213
Ah,
1368
01:04:56.443 --> 01:04:59.400
I would not call them magic words.
1369
01:04:59.400 --> 01:05:01.183
Because I think that is,
1370
01:05:01.183 --> 01:05:04.595
making light of a very serious--
1371
01:05:04.595 --> 01:05:09.595
we can quibble over the terminology, but it, are you,
1372
01:05:10.429 --> 01:05:14.087
I wouldn't, I'd want to I'd like to understand,
1373
01:05:14.087 --> 01:05:16.687
if that language is included, does our analysis end?
1374
01:05:17.582 --> 01:05:20.624
Unless this court were to,
1375
01:05:20.624 --> 01:05:25.624
reverse its positions in AME and Gilligan and Manzoni,
1376
01:05:27.370 --> 01:05:29.020
Yes.
1377
01:05:29.020 --> 01:05:31.295
Okay, so that's the end,
1378
01:05:31.295 --> 01:05:35.818
we can stop worrying about that one in your view.
1379
01:05:35.818 --> 01:05:38.640
The second plan.
1380
01:05:38.640 --> 01:05:41.510
It's raises Justice Budd's question about
1381
01:05:41.510 --> 01:05:43.453
just sort of relatedness,
1382
01:05:44.302 --> 01:05:47.137
and I'm struggling with the Gray case, particularly.
1383
01:05:47.137 --> 01:05:51.170
So in Gray we have, it's the course,
1384
01:05:51.170 --> 01:05:54.350
we created for subject matter petition,
1385
01:05:54.350 --> 01:05:58.080
but then we don't allow testing on it because we decide
1386
01:05:59.020 --> 01:06:02.088
that's unrelated but isn't that almost
1387
01:06:02.088 --> 01:06:05.120
exactly like what we're doing here, which is,
1388
01:06:05.120 --> 01:06:06.971
we're opening up
1389
01:06:06.971 --> 01:06:09.030
the number of licenses,
1390
01:06:09.030 --> 01:06:10.687
but we're saying, "Okay,
1391
01:06:10.687 --> 01:06:13.917
"but that means we've got to have better identification
1392
01:06:13.917 --> 01:06:15.220
"at the checkout counter."
1393
01:06:15.220 --> 01:06:16.570
Is just,
1394
01:06:16.570 --> 01:06:19.487
I don't understand how we can reconcile Gray with this case.
1395
01:06:19.487 --> 01:06:23.100
Well, as Your Honor knows,
1396
01:06:23.100 --> 01:06:26.960
I certainly made arguments in favor of
1397
01:06:28.358 --> 01:06:31.668
a conclusion that the petitioner issue in Gray was related.
1398
01:06:31.668 --> 01:06:34.200
But in fact, this court disagreed.
1399
01:06:34.200 --> 01:06:37.780
And I think this Court's ruling there
1400
01:06:37.780 --> 01:06:40.789
does not compel a different result here.
1401
01:06:40.789 --> 01:06:43.490
The court in Gray concluded that there
1402
01:06:43.490 --> 01:06:45.600
was no operational relatedness
1403
01:06:45.600 --> 01:06:48.091
between the AME cast question release provision
1404
01:06:48.091 --> 01:06:51.291
and the other provisions in the law that would have
1405
01:06:51.291 --> 01:06:55.715
ended the common core requirements and
1406
01:06:55.715 --> 01:06:59.935
provided a path for adopting new curriculum frameworks.
1407
01:06:59.935 --> 01:07:03.325
Because the
1408
01:07:03.325 --> 01:07:06.022
(clears throat)
1409
01:07:06.022 --> 01:07:06.942
AME cast question release would occur
1410
01:07:06.942 --> 01:07:08.413
regardless of what frameworks were in place.
1411
01:07:10.757 --> 01:07:12.498
In Oberlies,
1412
01:07:12.498 --> 01:07:13.466
and I think as well as in here,
1413
01:07:13.466 --> 01:07:16.047
the petition that was certified by the Attorney General
1414
01:07:16.047 --> 01:07:18.880
and that certification was upheld by this court,
1415
01:07:18.880 --> 01:07:21.870
concluded, the court concluded that
1416
01:07:21.870 --> 01:07:25.337
the provisions were operationally related, where the,
1417
01:07:26.974 --> 01:07:31.260
patient-nurse ratios were to be implemented in
1418
01:07:31.260 --> 01:07:33.770
a particular way that would
1419
01:07:33.770 --> 01:07:38.045
preclude certain employment from being terminated.
1420
01:07:38.045 --> 01:07:41.547
Here as well, if I own a chain of grocery stores
1421
01:07:41.547 --> 01:07:44.380
and I currently am unable to apply for a license
1422
01:07:44.380 --> 01:07:46.999
in my particular town, either because of,
1423
01:07:46.999 --> 01:07:50.062
the quota for Section 15 licenses has been reached,
1424
01:07:50.062 --> 01:07:54.155
or because I already hold nine licenses statewide.
1425
01:07:54.155 --> 01:07:58.040
And this law is enacted and I am permitted to
1426
01:07:58.040 --> 01:07:59.150
apply for that license
1427
01:07:59.150 --> 01:08:01.410
and I'm lucky enough to receive that license.
1428
01:08:01.410 --> 01:08:02.850
The other provisions of this law
1429
01:08:02.850 --> 01:08:05.510
will govern how that license is implemented,
1430
01:08:05.510 --> 01:08:07.787
both in terms of IV requirements and
1431
01:08:07.787 --> 01:08:12.330
hiring and funding the ABCC inspectors
1432
01:08:12.330 --> 01:08:14.579
who are gonna come in and inspect my business.
1433
01:08:14.579 --> 01:08:18.463
So every provision of this proposed law
1434
01:08:18.463 --> 01:08:20.100
is operationally related.
1435
01:08:20.100 --> 01:08:22.821
That was not the case in Gray as this court concluded.
1436
01:08:22.821 --> 01:08:24.730
Okay, I'm all set.
1437
01:08:24.730 --> 01:08:25.943
Thank you.
1438
01:08:25.943 --> 01:08:28.097
(chuckles)
Justice Cypher just,
1439
01:08:28.097 --> 01:08:32.083
with regard to the fun that is created,
1440
01:08:32.083 --> 01:08:36.240
is this the first case in which we've ever created,
1441
01:08:36.240 --> 01:08:39.970
which initiative has created a fund which pulls
1442
01:08:39.970 --> 01:08:42.696
money from the general fund and puts it into a
1443
01:08:42.696 --> 01:08:46.320
new fund as opposed to simply saying
1444
01:08:46.320 --> 01:08:49.080
the initiative generate new revenues,
1445
01:08:49.080 --> 01:08:51.513
which will be placed in a special fund?
1446
01:08:53.617 --> 01:08:58.145
I believe in Manzoni.
1447
01:08:58.145 --> 01:09:00.700
There were new revenues,
1448
01:09:00.700 --> 01:09:03.760
but there were also redirection of existing revenues.
1449
01:09:03.760 --> 01:09:08.615
So it is, it may be the first time that
1450
01:09:08.615 --> 01:09:13.099
the redirection of revenue is not coupled
1451
01:09:13.099 --> 01:09:15.335
with the creation of new revenue.
1452
01:09:15.335 --> 01:09:18.562
But the setting aside of the revenue,
1453
01:09:18.562 --> 01:09:23.450
should not under this Court's precedent,
1454
01:09:23.450 --> 01:09:24.400
make a difference in terms of
1455
01:09:24.400 --> 01:09:27.120
specific appropriation question.
1456
01:09:27.120 --> 01:09:28.283
Okay, but aside,
1457
01:09:29.443 --> 01:09:32.490
I'm not troubled by whether it's a specific appropriation
1458
01:09:32.490 --> 01:09:34.490
the question, I guess is, whether or not
1459
01:09:35.422 --> 01:09:37.076
this goes to the issue of whether it's related.
1460
01:09:37.076 --> 01:09:41.950
What do you, so they put funding,
1461
01:09:41.950 --> 01:09:44.241
let's assume this passes.
1462
01:09:44.241 --> 01:09:48.340
90 to 100 million dollars of excise taxes
1463
01:09:48.340 --> 01:09:51.470
that come out of, that come from the sale of alcohol,
1464
01:09:51.470 --> 01:09:53.740
which right now are going into the general fund
1465
01:09:53.740 --> 01:09:57.356
would go into this special fund,
1466
01:09:57.356 --> 01:10:00.540
let's assume the legislature appropriates
1467
01:10:00.540 --> 01:10:02.010
only $20 million to ABCC.
1468
01:10:03.173 --> 01:10:07.893
But let's also assume, which I think we can certainly assume
1469
01:10:07.893 --> 01:10:11.006
that the legislature is going to be strapped for money,
1470
01:10:11.006 --> 01:10:13.100
next fiscal year.
1471
01:10:13.100 --> 01:10:16.467
And he's gonna say,
1472
01:10:16.467 --> 01:10:18.580
"We want to spend this money on school food."
1473
01:10:18.580 --> 01:10:22.306
So we've appropriated billion dollars to schools.
1474
01:10:22.306 --> 01:10:25.919
And we're just gonna direct Treasurer to take,
1475
01:10:25.919 --> 01:10:29.950
the rest of the money, aid from this fund
1476
01:10:29.950 --> 01:10:31.793
and spend it on schools.
1477
01:10:31.793 --> 01:10:35.082
Can that be done without special legislative act?
1478
01:10:35.082 --> 01:10:38.327
And then can the treasurer simply say,
1479
01:10:38.327 --> 01:10:39.723
"I'm gonna take some money from the general fund,
1480
01:10:39.723 --> 01:10:41.890
"I'm gonna take some money from this fund,"
1481
01:10:41.890 --> 01:10:43.483
or does the treasurer need,
1482
01:10:44.440 --> 01:10:46.583
special legislation in order to do that?
1483
01:10:47.495 --> 01:10:49.410
The treasurer doesn't need special legislation,
1484
01:10:49.410 --> 01:10:51.840
Your Honor, but the legislature would have to make
1485
01:10:53.183 --> 01:10:54.250
appropriation in the General Appropriations Act,
1486
01:10:54.250 --> 01:10:55.680
or a Special Appropriations Act.
1487
01:10:55.680 --> 01:10:57.970
Just like with any other kind of revenue.
1488
01:10:57.970 --> 01:11:00.292
Meaning that it would have to say,
1489
01:11:00.292 --> 01:11:02.547
that the X dollars out of this particular fund
1490
01:11:02.547 --> 01:11:04.910
are to be going to schools.
1491
01:11:04.910 --> 01:11:06.104
Correct, Your Honor.
1492
01:11:06.104 --> 01:11:07.730
There are--
1493
01:11:07.730 --> 01:11:08.563
I'm sorry.
1494
01:11:08.563 --> 01:11:11.840
I was going to say there are certain funds listed in
1495
01:11:11.840 --> 01:11:13.720
General Law Chapter 29.
1496
01:11:13.720 --> 01:11:15.925
That the executive can access without
1497
01:11:15.925 --> 01:11:18.739
independent legislative action.
1498
01:11:18.739 --> 01:11:22.510
They say right in the tax without further appropriation,
1499
01:11:22.510 --> 01:11:24.430
these funds will be available.
1500
01:11:24.430 --> 01:11:27.474
If this proposed law had proposed the funds,
1501
01:11:27.474 --> 01:11:32.060
worded that way, I would agree that it would be
1502
01:11:32.060 --> 01:11:35.310
an illegal specific appropriation under Article 48.
1503
01:11:35.310 --> 01:11:37.430
But that's not what this does.
1504
01:11:37.430 --> 01:11:39.637
What is the practical consequence of having this fund?
1505
01:11:39.637 --> 01:11:41.750
Sounds like there's none according to you.
1506
01:11:41.750 --> 01:11:43.730
Under the Manzoni and other cases,
1507
01:11:43.730 --> 01:11:46.728
it's really just a bookkeeping mechanism.
1508
01:11:46.728 --> 01:11:49.395
Without practical consequence?
1509
01:11:53.122 --> 01:11:54.750
Without, there's practical consequences in the sense that,
1510
01:11:56.540 --> 01:11:59.839
that is how the money is tracked and we will then know.
1511
01:11:59.839 --> 01:12:04.839
But because the proposed, the law as written,
1512
01:12:05.256 --> 01:12:09.663
leaves the budgetary discretion with the legislature.
1513
01:12:09.663 --> 01:12:13.163
That doesn't restrict the legislature's discretion at all.
1514
01:12:14.220 --> 01:12:16.093
Okay, lets turn to another question.
1515
01:12:16.093 --> 01:12:19.960
You heard my (mumbles)
1516
01:12:19.960 --> 01:12:23.860
And I think, agree that would certainly if you agree that
1517
01:12:23.860 --> 01:12:26.160
this passes muster, you would agree that would
1518
01:12:28.361 --> 01:12:30.185
that that initiative would pass muster.
1519
01:12:30.185 --> 01:12:31.462
Yes, Your Honor.
1520
01:12:31.462 --> 01:12:33.699
And you said that this,
1521
01:12:33.699 --> 01:12:38.699
this will affect the Total Wine because Total Wine now,
1522
01:12:42.980 --> 01:12:46.610
which may be limited to that number of
1523
01:12:46.610 --> 01:12:49.910
stores (mumbles) for the sale of liquor,
1524
01:12:49.910 --> 01:12:51.770
not only beer and wine,
1525
01:12:51.770 --> 01:12:53.700
will now be able to open up
1526
01:12:55.470 --> 01:12:57.550
however many stores it wishes to,
1527
01:12:57.550 --> 01:12:59.684
to sell liquor, correct?
1528
01:12:59.684 --> 01:13:00.517
Well
1529
01:13:00.517 --> 01:13:04.250
subject to the grant of licenses by localities, yes.
1530
01:13:04.250 --> 01:13:05.083
Okay.
1531
01:13:05.083 --> 01:13:07.840
Does the state limitation on the Total Wine,
1532
01:13:07.840 --> 01:13:09.140
I don't mean to pick them,
1533
01:13:11.038 --> 01:13:12.988
(coughs)
but they are just to be gone,
1534
01:13:13.826 --> 01:13:15.872
correct Your Honor,
1535
01:13:15.872 --> 01:13:16.834
with regard to the sale of liquor.
1536
01:13:16.834 --> 01:13:18.170
Correct, Your Honor.
1537
01:13:18.170 --> 01:13:20.560
And how is that related to
1538
01:13:20.560 --> 01:13:23.983
allowing food stores to sell beer and wine?
1539
01:13:25.050 --> 01:13:27.760
It's related, Your Honor, because the,
1540
01:13:27.760 --> 01:13:30.241
as in done, the drafters here,
1541
01:13:30.241 --> 01:13:33.778
chose two paths to get to the same result,
1542
01:13:33.778 --> 01:13:38.778
which was increased availability of beer and wine at
1543
01:13:38.785 --> 01:13:41.492
grocery stores and convenience stores.
1544
01:13:41.492 --> 01:13:45.174
It is within the drafters prerogative
1545
01:13:45.174 --> 01:13:49.660
to conclude that it would be administratively difficult
1546
01:13:49.660 --> 01:13:52.060
and maybe somewhat dissonant to
1547
01:13:52.930 --> 01:13:55.730
lift the statewide cap only for Total Wine,
1548
01:13:55.730 --> 01:13:58.470
I mean, only for excluding Total Wines,
1549
01:13:58.470 --> 01:14:00.340
from the lifting of the statewide cap.
1550
01:14:00.340 --> 01:14:02.310
In fact, they may have been drafting
1551
01:14:02.310 --> 01:14:05.260
with a view toward some type of equal protection
1552
01:14:05.260 --> 01:14:07.840
challenge to the law if it's enacted down the line.
1553
01:14:07.840 --> 01:14:11.810
So the fact that the statewide cap
1554
01:14:11.810 --> 01:14:13.980
would no longer apply to Total Wine,
1555
01:14:13.980 --> 01:14:17.210
it would mean that yes, that an entity like that,
1556
01:14:17.210 --> 01:14:19.986
that sells only alcohol
1557
01:14:19.986 --> 01:14:22.290
would have the benefit.
1558
01:14:22.290 --> 01:14:24.868
But the growth would not necessarily be as fast
1559
01:14:24.868 --> 01:14:29.868
as growth for these new licenses,
1560
01:14:31.030 --> 01:14:33.950
these grocery stores and convenience stores
1561
01:14:33.950 --> 01:14:35.811
that would have the benefit of,
1562
01:14:35.811 --> 01:14:39.509
the availability of licenses outside the local quota system.
1563
01:14:39.509 --> 01:14:43.066
The Total Wine situate, the Total Wine
1564
01:14:43.066 --> 01:14:47.043
model would still be subject to the local quota system.
1565
01:14:47.043 --> 01:14:49.160
Okay, so certainly you're not saying
1566
01:14:49.160 --> 01:14:50.987
that the initiative could not have said,
1567
01:14:50.987 --> 01:14:53.957
"We're going to drop the statewide cap sale
1568
01:14:53.957 --> 01:14:56.567
"of beer and wine, but we're not touching
1569
01:14:56.567 --> 01:14:59.034
"the state statewide cap on the sales liquor."
1570
01:14:59.034 --> 01:15:04.034
As a certification matter under Article 48,
1571
01:15:04.110 --> 01:15:05.779
no, that would not be problematic.
1572
01:15:05.779 --> 01:15:09.779
And similarly with regard to the ID,
1573
01:15:09.779 --> 01:15:13.556
I understand why you'd want to be ensure
1574
01:15:13.556 --> 01:15:18.556
that the showing of an ID at a food store.
1575
01:15:18.707 --> 01:15:23.707
But, is it related that they're now requiring
1576
01:15:24.500 --> 01:15:29.500
tech stores to have IDs where before that was not done?
1577
01:15:29.590 --> 01:15:33.860
How is that related to the addition
1578
01:15:33.860 --> 01:15:36.600
of food store selling beer and wine?
1579
01:15:36.600 --> 01:15:39.550
Well, Your Honor, I think that it is again
1580
01:15:39.550 --> 01:15:42.800
within the drafters prerogative,
1581
01:15:42.800 --> 01:15:45.500
to not choose to propose a law
1582
01:15:45.500 --> 01:15:47.872
that would set up differing
1583
01:15:47.872 --> 01:15:51.144
enforcement requirements at different types of
1584
01:15:51.144 --> 01:15:56.144
outlets for the sale of alcoholic beverages and to
1585
01:15:56.146 --> 01:15:57.134
impose, right now I think many people might be
1586
01:15:57.134 --> 01:16:02.134
surprised to know that there actually
1587
01:16:04.067 --> 01:16:05.493
is no requirement that anyone show
1588
01:16:05.493 --> 01:16:07.490
an ID when purchasing alcohol.
1589
01:16:07.490 --> 01:16:09.300
The framers here might have concluded
1590
01:16:09.300 --> 01:16:11.100
that that is somewhat of an outdated
1591
01:16:14.214 --> 01:16:15.180
mechanism and not sufficient to keep up
1592
01:16:15.180 --> 01:16:17.498
with increased availability.
1593
01:16:17.498 --> 01:16:21.052
The amicus briefs filed by Cumberland Farms and
1594
01:16:21.052 --> 01:16:26.052
the Trade Organization made reference to a 2017
1595
01:16:27.181 --> 01:16:32.181
task force report that the ABCC or the treasurer ,
1596
01:16:32.390 --> 01:16:36.680
had convened and increased,
1597
01:16:36.680 --> 01:16:39.240
or standardizing ID requirements,
1598
01:16:39.240 --> 01:16:41.360
including with the use of technology was
1599
01:16:41.360 --> 01:16:44.433
one of the recommendations of that taskforce report.
1600
01:16:44.433 --> 01:16:47.639
It's not unreasonable for the drafters here,
1601
01:16:47.639 --> 01:16:51.571
to conclude that it will be an easier administration
1602
01:16:51.571 --> 01:16:55.470
of the new law to have those requirements
1603
01:16:55.470 --> 01:16:57.240
apply across the board.
1604
01:16:57.240 --> 01:16:59.508
And there is nothing in Article 48 that requires
1605
01:16:59.508 --> 01:17:04.508
the creation of either multiple enforcement entities
1606
01:17:04.926 --> 01:17:08.085
or multiple standards in the enforcement of Chapter 138.
1607
01:17:08.085 --> 01:17:12.641
Now, you earlier used the term unduly broad,
1608
01:17:12.641 --> 01:17:15.300
with regard to the relatedness issues.
1609
01:17:15.300 --> 01:17:16.340
When does
1610
01:17:17.300 --> 01:17:21.989
the scope of the initiative in terms of reaching beyond
1611
01:17:21.989 --> 01:17:25.290
the sale of beer and wine
1612
01:17:25.290 --> 01:17:30.090
at food stores become unduly broad?
1613
01:17:30.090 --> 01:17:31.337
I mean, Mr. Cordy has said,
1614
01:17:31.337 --> 01:17:33.187
"Well, if it's unduly broad
1615
01:17:33.187 --> 01:17:35.627
"and that it goes beyond our means that
1616
01:17:35.627 --> 01:17:37.717
"tech stores must check ID,
1617
01:17:37.717 --> 01:17:40.107
"it's unduly broad in that it,
1618
01:17:40.107 --> 01:17:42.979
"it now means there's no cap down with liquor?
1619
01:17:42.979 --> 01:17:45.457
"It's unduly broad and that it
1620
01:17:45.457 --> 01:17:48.662
"is now putting all alcohol excise taxes into
1621
01:17:48.662 --> 01:17:51.847
"a separate fund?"
1622
01:17:54.170 --> 01:17:57.670
When, why is this not really broad
1623
01:17:57.670 --> 01:18:01.890
given that a narrower scope is certainly possible?
1624
01:18:01.890 --> 01:18:03.840
A narrow scope is certainly possible,
1625
01:18:04.742 --> 01:18:05.900
Your Honor and a broader scope would be possible as well.
1626
01:18:05.900 --> 01:18:10.900
If this proposal were to,
1627
01:18:12.192 --> 01:18:14.900
I think it would still fall
1628
01:18:14.900 --> 01:18:17.860
within this court cases on a legitimately
1629
01:18:17.860 --> 01:18:22.390
related a narrow scope if this law were to propose changes
1630
01:18:22.390 --> 01:18:27.390
in the entire alcohol distribution scheme,
1631
01:18:27.811 --> 01:18:31.574
under Chapter 138, the sale of alcohol
1632
01:18:31.574 --> 01:18:34.104
both in restaurants and in,
1633
01:18:34.104 --> 01:18:38.732
for off-premises consumption is
1634
01:18:38.732 --> 01:18:41.700
certainly not broader than the law
1635
01:18:41.700 --> 01:18:44.482
that was approved by the court in Hensley.
1636
01:18:44.482 --> 01:18:47.810
I think the limit for what is too broad a scope
1637
01:18:47.810 --> 01:18:50.387
has got to be someplace in between
1638
01:18:50.387 --> 01:18:54.600
education, as in Gray and
1639
01:18:54.600 --> 01:18:57.496
state and local taxation as in MTA.
1640
01:18:57.496 --> 01:19:02.496
But I think you could completely revamp Chapter 138,
1641
01:19:02.625 --> 01:19:06.408
with respect to the sale of alcoholic beverages without
1642
01:19:06.408 --> 01:19:11.408
creating a scope that's unduly broad under this court case.
1643
01:19:11.605 --> 01:19:13.750
I have no further questions.
1644
01:19:13.750 --> 01:19:16.020
Are there any additional questions from
1645
01:19:16.020 --> 01:19:19.363
my Justice colleagues?
1646
01:19:19.363 --> 01:19:20.891
No, thank you.
1647
01:19:20.891 --> 01:19:23.770
And being none.
1648
01:19:23.770 --> 01:19:25.860
That will close this session.
1649
01:19:25.860 --> 01:19:26.850
I thank counsel.
1650
01:19:26.850 --> 01:19:28.770
And I thank my fellow Justices.
1651
01:19:28.770 --> 01:19:29.603
Thank you.
1652
01:19:29.603 --> 01:19:30.436
Thank you very much.