Announcer: SJC-13257, Christopher R. Anderson,
the attorney general.
-: Attorney Martin.
-: Chief justice and may I please the-
-: Welcome.
-: Chief justice and may I please the court,
Kevin Martin, on behalf of the appellants.
With me today, I have my colleagues,
Jordan Bach and Jenna Welsh.
Your honors, voters are asked
whether to amend our constitution only rarely.
And on those rare occasions,
they're entitled to fair and neutral summaries
of proposition before them.
In this case, the defendant's summary and yes statement
are unconstitutional and unlawful,
because they are not fair and neutral.
They instead advance the proponents misleading narrative
that additional tax revenues are to be used
and would be used for education and transportation spending.
I supposed spending commitment
that was specifically designed
to have a significant impact on voters.
I would like to focus on three points this morning.
First, the attorney general is wrong
that AIM and Gilligan dictate the outcome of this case.
Second, this court's governing standard
requires consideration of the real world impact
of the ballot language on voters.
And here there could be no real dispute
about what that impact was intended to be
and is likely to be.
And third, where a constitutional amendment is at stake,
this court should be especially rigorous
in enforcing the requirement of fair and neutral summaries
so that voters to paraphrase sears
will have a fair and intelligent comprehension
of what our fundamental governing law will be,
if the measure is adopted.
So I'd like to start your honors
with the AIM and Gilligan point.
The attorney general's principal argument
is that subject to appropriation
should be treated as the ballot language equivalent
of crossed fingers, alerting voters
to disregard any spending language that follows,
but that's not the law.
As Hensley teaches,
ballot language must be considered in its full context
and in light of its likely impact on voters.
Hear both the con.
-: Sorry, subject to appropriation
indicates that the 4% monies that are raised
may not be used, I mean, may not be spent, right?
That indicates that the legislate this could pass
and we wouldn't have the 4% actually appropriated, right?
-: It indicates your honor to a reasonable voter
that it might not be appropriated at all
what it would not indicate.
-: Meaning it would be like a penalty on the rich then.
-: It would be like a fund being created
and then whether the money comes out of that fund
and how it gets spent as between education
and transportation is up to the legislature.
What it would not indicate to a reasonable voter
when put into a constitutional amendment
is that the legislature
actually can spend it however it wants.
-: But that's, I mean,
that's the entire appropriation process, right?
That the legislature can do what it wants
with the money, right?
And your clients will be able to correct that,
make that point very simply in your numerous opportunities
to make that point, right?
Including bombarding the airways with that point
and advertising and other things.
It's not like the voters are gonna be confused
on that point, are they?
-: Well, so I guess three
very important points there, your honor.
First, the ordinary appropriations process
is that the legislature can do what it wants
because the legislature cannot bind
in the hands of some future legislature.
However, is this court recognized in AIM?
That's not the case
when you're talking about appropriations language
that's embedded in the constitution
where it both will have a restrictive effect
on the future legislatures,
and I think ordinary voters would understand
that something in the constitution is intended
to have restrictive effect on subsequent legislatures.
With respect to the opportunity,
plaintiffs have to set the record straight,
and at the end of the day, the constitution requires,
article 48 requires the attorney general
to provide a fair, not misleading,
nonpartisan explanation of what will work.
-: I understand that, but it's a summary.
They can't explain everything.
I mean, there's gonna be...
I mean, do they have to explain
that if they made your point,
that the political process would put a lot of pressure
on the legislature to spend this as additional money?
Would they have to indicate that?
-: Well, no, your honor.
But again, the test this court applies
is one which asks what the main features of the measure are.
Have they been mentioned?
Is it misleading to ordinary voters?
What's the likely impact on voters to be?
Where this case differs from a case like Gilligan or AIM,
is that there, you did not have the overwhelming evidence
you have in this case,
that the reason why the spending language
was put into the measure
was precisely to have a significant impact on voters
to get them to approve a kind of measure
that they previously had refused to approve.
So that's sort of what this court recognized in footnote 10
and the last version of this case,
what we've been calling Anderson One,
which is that this language was put there
to have an impact on voters
to help log roll this measure to victory,
whereas in Gilligan and AIM,
the court brushed aside
the spending language there as details.
Gilligan said, "The main features have been mentioned,
"although details have been covered
"with broad generalizations."
And AIM, the court said,
"We believe the summary fairly states the sum
"and substance of this measure."
-: When the subject to appropriation language
alert the public to the appropriation process,
it may alert it, you feel too narrowly,
but doesn't it advertise
that the legislature has an appropriation role here?
And that if they understand the budget process at all,
they're gonna understand
that the legislature can move money around.
They can spend that on how they want,
tax money how they want, except for this particular money.
-: Right, and so there, your honor,
again, a couple of a couple of important points.
That's clearly not the message
that proponents are trying to put across to people,
including not just proponents, private proponents,
but also the president of the state Senate,
the house committee on revenue,
but they're all suggesting the voters is that that language
is an actual enforceable commitment
of money to these two purposes.
I think that's been backed up
by the polling data that we conducted,
and if you look at the-
-: So for example, on your polling data,
did you also give background information
in your polling data that said, I mean,
the voter is gonna come into the polls,
I mean, to the voting booths
with a lot of other information here.
Your poll data, was it just them submitting this language
without any background information whatsoever?
-: So what we provided the poll respondents
was the language of the summary and the yes statement,
and then after obtaining responses
and based on that information, we then provided-
-: But they wouldn't even have had
what the voters in the real world are gonna have,
which is a response from your side
explaining just the point you want made, right?
None of that was presented in your poll data, right?
-: Well, what we provided voters was the language
from the attorney general's own brief in 2018
to see what effect it would have
once the attorney general provided voters
the same clarification concerning how this operates,
that the attorney general provided this court
four years ago, which is really what we're asking for.
We're asking for the attorney general
not to conduct some new analysis, not to conduct hearings,
but simply to provide voters in a few more words,
the same clarification concerning the real-world operation
of this supposed earmark.
-: You seem to be requesting more than that.
You seem to be requesting to some extent
that there be a legal analysis.
And you also have to keep in mind
that what you wanna add is one-sided,
the however and the though.
I mean, Mr. Martin, your proposal is not to add
to the summary that the legislature retains the ability
to enhance or reduce funding in budget categories.
Arguably, that's neutral.
You've got an enormous amount of advocacy,
which is fine within the fullness submissive
of a political debate,
but not in a concise summary
where you only need to make sure
that you avoid confusion.
-: Sure, it words. -: And in other words,
the agenda of your however
and the impacts sort of the prism
through which I'm looking at this summary
and this yes and no.
-: So your honor, we're certainly happy
dropping the however and though.
The important point here is that the language
that's currently in the summary and yes statement
suggests to voters that the money would be used
and is to be used for only two purposes.
Our proposal is that voters be made aware
that the money actually could be spent on other purposes
in addition to those two.
That's the position and the attorney general took in 2018
and is continuing to advance that understanding
and briefing to this court in this case.
We're not asking the attorney general
to conduct any more analysis
than the attorney general is already conducted,
and as this court recognized in Abdo,
it is inevitable when the attorney general
is attempting to summarize
what is effectively a legal document,
either a statute or a constitutional provision
that some legal analysis must occur.
The court deferred to the attorney general's legal analysis
in Abdo because it was reasonable legal analysis.
We agree that the attorney general's analysis
of this measure is reasonable.
We just want the attorney general
to provide it not only to this court, but also to voters,
not because we're trying to have a gotcha
or quibble over some minor issue.
We know that this is a incredibly
important issue for voters.
It's why this language appears there in the first place.
Senator Rosenberg was very clear that this was put in
in order to get voters over the hump
with respect to a graduating-
-: But we neither have logrolling now
nor do we have an analysis of what Senator Rosenberg said.
We have an analysis
of what the attorney general has put forward.
And as Justice Kafka said, subject to appropriation,
it points out that spending is contingent.
It's contingent on what the legislature ends up doing.
-: We completely agree with that,
but we think in the context
of this proposed constitutional amendment,
what a voter reasonably would understand
subject to appropriation to mean
would be that the legislature is bound by the constitution
to spend this money on education and transportation.
When it gets spent, how it gets spent,
how it gets divided between the two,
that's left up to the legislature
and the ordinary budgetary process,
but that if the legislature would take all-
-: That's accurate for this money.
The question is, does this money free up other money?
But it is accurate.
The attorney general statement's accurate,
whether it's as complete as you want,
meaning that the legislature made say, okay,
I got this new money that has to be spent on this,
but I'll use my existing monies differently.
That's a different question.
It's not inaccurate, right?
-: Right, and so your honor,
with the law, it's not inaccurate.
What the law has recognized in many contexts
is that language that's technically accurate,
nonetheless can be misleading in context,
and the standard this court applies to ballot measures
is not mere technical accuracy.
It asks whether it's fair nonpartisan
and looks to ask what the likely impact on voters will be.
And I think there's no dispute
that the reason why this language was put in here
was to make voters believe
that the quote additional revenues
would be used for education and transportation,
not that they-
-: Council, do you think that any tax
that the only way a tax could get through
on a ballot question is if it was not associated
with any subjects suspended on
if there's nothing that they could?
If it was just a tax, is that the only way to do this?
-: So no, your honor, but I do think that-
-: So how would you frame 4% tax
on millionaires with the money going to specific subjects?
How would you frame it so that it's clear to the voter?
-: So we've provided-
-: I read that,
but the last one didn't make a lot of sense to me,
the third part, as it still seemed a little,
I mean, I didn't find you're reframing
any different really to tell you the truth.
-: So we think, your honor, I appreciate that,
but we think that for example,
our proposal to add into the yes statement,
just a handful of words to be used for,
but not necessarily to increase
would go to the heart of the issue here,
because again, you have a yes statement
that refers to additional revenues
and then calls out two subjects for spending.
We think a ordinary voter looking at that language,
even with the summary,
which basically says the same thing in the amendment itself,
which again, basically says the same thing
would think that these additional revenues
must be used to increase these two areas of spending.
-: So you're not ever taking the position
that you cannot have a tax increase
coupled with a direction for it to go?
-: Not as introduced by the legislature, your honor.
I mean, there would be related subject matter issues,
like the last case,
if it came up in a proposed initiative petition.
-: But not here.
-: Not here.
I mean, really, we don't have a problem
with the summary and yes statement.
We're referring to potential future spending areas,
as long as it does so in a non misleading manner,
as long as it doesn't draw voters attention to only two
when the attorney general is telling this court
that the money actually can be used anywhere else.
Again, this court's test is not one that asks,
is the attorney general doing a good job
creating a cliff notes version of the summary.
What this court has always said
is that it looks to the likely impact on voters.
Will a voter looking at this measure
have a fair and accurate understanding
of what the law will be if they were to vote for it?
And here, the entire legislative history
of this provision shows that it was designed
to make voters believe that a vote for this tax
would be a vote for increased education
and transportation spending.
That is the history.
There was no dispute about that history
in the briefing of this court.
So given that history,
is it worth a few additional words to clarify for voters
that while this money could be used
for those two subjects to increase spending,
it won't necessarily,
it could be subject to the kind of redirection
that we've been talking about,
and we think that's especially worthwhile,
given that this is a constitutional amendment
we are talking about.
If it were a mere statute and people were misled,
the legislature could fix it very readily.
You could have another initiative petition
to fix it quite readily,
whereas the constitutional amendment we're talking about,
we should be especially rigorous
about making sure that misleading language,
which is not clear to ordinary voters
does not make its way into our constitution
and result in a measure that was rejected several times
before being able to cross over the finish line.
And I see my time has expired.
-: Chief justice, I think you're muted.
-: I'm so sorry.
We'll turn to Attorney Toone, thanks.
Kevin: Thank you.
-: Good morning, Chief Justice Budd,
and I may please the court.
Robert Toone, for the attorney general
and the secretary, the Commonwealth,
I'm here virtually with my colleagues,
Anne Sterman and Adam Hornstein.
AIM and Gilligan do control this case.
Like this case, AIM and Gilligan each involved a measure
to raise revenue through new excise or tax,
and a statement of purpose
as to how that revenue would be expended.
Like this case, the summaries in AIM and Gilligan stated
that expenditures of the revenue
would be subject to appropriation by the legislature.
And in each case, this court approved
the attorney general's decision
to track the basic language of the measure
and to exclude extraneous warnings
that the legislature might somehow spend revenue
for some other purpose.
To require the attorney general to state
that monies could be spent for another purpose
would in essence require her
to state a legal interpretation of the measure
and nothing in article 48 requires the summary
to include legal analysis or an interpretation.
Now the plaintiffs-
-: No, the stakes are a lot higher
when it's constitutional as opposed to statutory.
-: I'm sorry, your honor.
I didn't get your...
-: Excuse me.
The stakes are a lot higher
when we're dealing with constitutional
as opposed to statutory.
-: Well, of course, this measure
has to be a constitutional amendment
because article 44 currently enshrines a flat tax regime.
So you can't impose any kind of graduated income tax
without a constitutional amendment.
But two points on that, your honor,
first of all, the standard first summary,
a fair, concise summary,
it's set forth in article 48,
applies regardless of whether the measure
is in a proposed law or a proposed constitutional amendment.
But second, the meaning of the statement of funding purpose,
of spending purpose, and the subject
for appropriation clause, the meaning is the same
regardless of where that text is located,
whether it's in a constitutional provision
or a statutory provision.
And it means among other things
that the legislature will retain
its traditional authority, enterprises, voters,
that expenditures of money for the state of purpose
would be contingent on an action of the legislature,
and that is appropriation.
So in the end, we think that the holdings
in AIM and Gilligan apply directly to this case.
And for three decades, sorry, your honor.
Oh, for three decades,
the attorney general's office has followed AIM and Gilligan
without challenge by using this kind of language
in summaries without further explanation
when the measure so provides.
In the end, plaintiffs and their amici
want to insert hypothetical assumptions about the future
and debatable legal interpretations into the summary
in the one-sentence statements
that citizens are gonna review before they vote,
but that's never been done before
and there's no reason for the court to start now.
-: Can you address council's argument
that this while technically accurate
is actually somewhat misleading because it suggests
that the funding will be used for these purposes
when the attorney general's position has been,
and frankly, there have been several statements
that it really is sweeteners
so that taxpayers will vote under graduated tax
for millionaires that may or may not result
in increased spending in education and transportation?
Why call out those two other than as witness?
-: Well, your honor, we certainly wouldn't.
We view them as a main feature of the measure
that deserve to be included in the summary.
And the point that we made
in our first Anderson brief in 2018
was that assuming that the statement of spending purpose
does somehow bind the legislature
to spend the money on education, transportation purposes,
that the legislature will still retain its authority
to make specific appropriations.
To be honest, the law isn't completely settled
on the precise extent
to which the legislature would be bound
by a statement of spending purpose,
but there is authority that supports that conclusion,
and that's specifically the line of cases
that this court held applying the spending limitation
in the article 78, article 104 cases.
Those cases found that the statement of purpose
in that provision did require the legislature
to spend that money on highway
or mass transportation funding.
Now, there were cases like the 1976 opinion
of the justice cases
that analyze whether particular purpose fell
within that stated purpose for, I think the 1976 case
was about bike pass and the court concluded, yes,
that qualifies that's officially related to highway funding.
So it's entirely possible
that this measure may well be interpreted
to impose a binding commitment on the legislature
to spend this money on these general purposes.
So we think that we're not here
to offer definitive interpretations
of what this court or another court will do in the future,
and of course, any kind of determination like that
would be contingent on numerous factual issues
that we can't anticipate now,
but it certainly is a main feature of the measure
that we think is appropriately included in the summary.
-: Can I ask a followup question about Gilligan?
Gilligan, the language actually said
that amounts credited set funds shall be expended,
subritual appropriation to supplement existing levels.
That's different, right?
That's more specific than our case, right?
So Gilligan's distinguishable, right?
Because there, you couldn't do
what Mr. Martin is arguing here,
which is actually spend less, right?
-: Right, I'm not sure whether that issue ever got litigated,
but I see your honor's point that the measure,
it created the particular, a new fund,
a health protection fund,
and I assume there would've been an argument
that would have to be additive.
There's no such lying with-
-: But it was expressed in that.
In that statute, it was expressed it would be additive.
We don't have that nurse, right?
-: No, we absolutely do not.
The only reference-
-: But that distinguishes Gilligan then,
because the legislature couldn't do in Gilligan
what Mr. Martin is saying they could do here.
-: Perhaps, your honor,
but going back to AIM, the first case,
there, the measure provided that the new revenue
from the excise on hazardous materials would be credited
to the already existing environmental challenge fund
and used subject to appropriation
to clean up contaminated sites.
So there are other sources of revenue
already flowing into that fund.
By plaintiff's logic,
that summary should have said, well,
you know it's possible
that maybe the legislature will decrease
the other sources of revenue,
but that's just not a realistic requirement
to impose on a summary.
It doesn't involve the measure itself,
but rather speculation
about what the legislature might do in the future
to somehow mitigate or undermine the measures effects.
And it just goes way beyond
what this court has ever interpreted
from the article 48 summary.
-: It certainly within the attorney general's discretion,
whether or not to reference the spending
deserves to be in the summary.
And certainly, there's an argument
that what the plaintiffs have suggested
is an advocacy clause,
and anyway, it wouldn't fit within a yes or no sentence
that's almost 40% increased.
But why shouldn't the summary to be fair,
to be neutral, and still be concise,
let the voters understand
that the legislature retains the ability to enhance
or decrease spending within categories?
-: Well, first of all,
the subject to appropriation language does uprise voters
that spending is gonna be contingent
on future legislative action,
and this court's always held that that's sufficient
to alert voters of this other purpose scenario.
-: Well, what if we were concerned
that just subject to appropriation
is inside this ball language,
and that letting the legislation know
about the ability to enhance
or reduce funding within budget categories is retained?
Would that help as far as being fair
and also retain neutrality and still be concise?
-: I think it would be more confusing
and potentially misleading than helpful, your honor.
And in part, because the reference
to other revenues being decreased,
we have no idea what that means.
Plaintiffs are very vague
about what other revenues could be shifted around.
The issue in the Mitchell case,
Mitchell versus secretary of administration,
that was the case that said, with article 78 funding,
it's possible that as long as all the funding that's raised
through that tax goes to the highway funding,
it's possible that other money could be allocated away.
But the big issue in that case
was whether the other revenue,
which I think it was the infrastructure fund
could be sent back to the general fund
and used to fund the MBTA.
So in that case,
there's actually a specific source
of other revenue that was the issue.
Here we have no idea what plaintiffs are talking about.
Some of the amicus brief spin out scenarios.
I think, the Pioneer Institute brief talks about, well,
if this measure passes,
then maybe the legislature will amend the sales tax statute
and decrease the 1% allocation
that currently flows to the MBTA
or the 1% allocation
that goes to the school building authority.
I just think that kind of speculative hypothetical
is just so far beyond what a fair concise summary
is meant to cover.
And it's much better
to track the general language of the measure, include these.
-: Yeah, so that far, I mean,
it doesn't seem like that's what the plaintiffs
are asking for.
I mean, it could be
that the amici are spiting tails and hypotheticals.
It doesn't seem that that's actually
what the plaintiffs are asking for.
They're just asking
for the attorney general to make clear this language
of subject to appropriation is really a technical term
subject to the legislature's discretion, right?
-: And your honor-
-: And why would that lead
to some sort of creative horribles too much in the summary,
just to say to the lay audience,
subject to the legislature's discretion entirely?
-: Again, your honor, this court is already held
in the end kicks that that phrase appraises voters,
both at the expenditures of money for the state of purposes
would be contingent on an action of the legislature
and exactly what that action is.
So this court's already held
that that language is meaningful to voters
and appropriately included in summaries.
I think to come up with new-
-: So here, the evidence that the plaintiffs have put forward
as to the confusion now
is not a basis upon which we can say,
although in AIMs, we said that,
now look at what we have in reality
of this sort of empirical data.
We're sort of bound by AIMs, is that what you're saying?
-: Well, the court has never considered
this kind of extraneous information
like the survey data that they've set forth
and we don't think
that's a reliable basis at all for this court.
-: Could you articulate why that wouldn't be?
Why would it be important to look
at what the actual sort of a survey of voters is showing us?
-: Well, setting aside
that we don't know anything about the methodology,
we don't know what a multi-mode life survey is,
who don't know how they chose their respondents,
their own survey results discredit their theory of the case.
They claim that the summary misleads people
into believing that the amendment will require spending
on education, transportation
to increase by the amount of the new taxes.
But they actually ask their respondents this.
This is question three in joint appendix page 283
and 65% of their respondents said they did not believe
that the legislative amendment would do that,
or were unsure,
and that's using the similar summary that we had in 2018.
So even their own survey sort of undermines their theory
that this isn't somehow an inherently misleading summary
that leads people to think
this money's gonna necessarily be additive.
And again, our position is that the court
needs to just look at the measure itself
and compare that to the summary
that the attorney general has proposed,
not to rely on extraneous information
that hasn't been tested
and the methodology of which is sort of uncertain.
In the end, we think that our summary
is really compliant with article 40,
because it covers the main features of the measure.
It is not partisan-colored
or argumentative in any way or one-sided.
And just with respect to the plaintiff's argument
that the discipline approach that the attorney general
and the secretary take in preparing these materials,
how that's provides less safe safeguards
to people of Massachusetts.
-: Before we lose you, can I ask you one question?
Do we have the additional material
that they're gonna submit yet?
I know the voters get sort of a little summary
from the proponents and the opponents, right?
-: 150 word statements.
I don't think that's been submitted yet.
And that the secretary prepares that I believe
for the information for voters' guide
and that has been finalized.
-: So that won't appear on the ballot itself.
-: No, that appears in the voter's guide
that's sent to every voter in the Commonwealth.
What appears in the ballot is the summary
and the yes, no statements.
And so just to sort of the-
-: Our legal analysis
is that it does the ability of opponents and proponents
to state their side affect, the neutral statement,
the fair statement that the attorney general
must submit in our legal analysis?
-: Yes, yes, I think this court has held that.
In part, it's appropriate
for summaries not to include interpretations and argument
because there will be plenty of opportunity
for each side to make argument
and not just in the 150 word statements,
but in the public arena.
This measure is likely to see many, many adds
in our future and the plaintiffs and the amici
are perfectly free to make their arguments
about what they think might happen
if this measure is passed by the voters.
But our role as the attorney general is to keep partisan
or disputed unnecessary arguments out of the summary
and just to summarize the main features of the measure
and let the voters decide.