Narrator: SJC-13273.
Thomas Coppock and others,
the attorney general.
-: Hey, Attorney baker,
we're ready for you.
-: Chief Justice Budd,
and may it please the court.
Katherine Baker for the plaintiff appellants,
and with me virtually are Lewis Rizolli and Matthew Brown.
Initiative Petition 2103 should not have been certified
to appear on the ballot
because it violates
the related subject's requirement of Article 48.
The petition fails the relatedness test for three reasons.
First, the attorney general has not identified
a unifying public policy because none exists.
Second, the licensing provisions do not dominate what
each other provision provides separately.
Third, there's no operational relatedness
because the sub parts don't work together to
further a unified public policy goal.
At first blush this petition appears reminiscent
of another petition in the alcohol licensing context
that came before this court in 2020,
in Weiner versus Attorney General.
But the two couldn't be more different.
Where the petition in the Weiner case
contemplated an integrated approach to lift restrictions
on the number and allocation of alcohol licenses,
the provisions of the instant petition do not all support
and revolve around that or any other unifying policy.
Instead, this petition begins with a popular proposal
to gradually increase the statewide ownership cap
on the combined number of off premises licenses,
including wine and malts and all alcohol.
But if a diligent voter reads further down,
she will see that it negates that provision
with respect to all alcohol licenses,
setting a maximum-
-: I'm not sure I understand why that's not related.
Altering how many licenses there are per individual,
maybe adding more
for just beer and wine,
and maybe less if you have liquor involved.
That's all related to gauging
how many licenses should be out there.
There's nothing about relatedness that says
that internal regulations all have to be going
in the same direction.
-: I think the problem here, Your Honor,
is that we're starting out by asking the voter
two very separate questions.
Do you want to increase wine and malt licenses?
That has a very different public policy consideration
from the question,
do you wanna decrease the full liquor license?
You're, from the beginning,
putting the voter in an untenable position
of having to make two opposite choices.
-: Well, they're not necessarily opposite choices,
but they're
within the same regulatory scheme.
But it may well be that beer and wine accessibility
at grocery stores
makes sense as a regulatory matter,
and that more care should be involved
when you're dealing with liquor.
I have no comment on whether it does or not,
but either way it's one regulatory agency
dealing with one regulatory scheme
that the referendum contemplates.
-: The issue here though
is the relatedness test is not about
whether all of the subjects are the same subject matter.
We have a requirement that there must be
a unifying statement of public policy
that weaves all of the subjects together.
Here, the attorney general has represented to the court
that her proposed unifying public policy for this petition
is identical to the one in Weiner,
but she had to change that policy statement in Weiner
to try to hide the material differences
that exposed the relatedness problem.
Her proposed replacement,
altering restrictions on licenses,
isn't a statement of public policy at all,
it's just an abstract description
that the petition's amending the law
on a particular subject matter.
Subject matter has never been the basis
for relatedness in this court's precedent.
If a public policy statement,
like the one that the attorney general has selected here,
could qualify as a unifying policy,
no ballot question would ever fail the relatedness test,
because it swallows the standard.
You could imagine in cases where the court has found
there was no relatedness like the Gray Case,
which involved common core standards
and standardized tests being released each year,
the court specifically
rejected a policy statement
of new procedural requirements for educational standards.
There is really no material difference between the type
of purpose statement that we're dealing with here,
in the attorney General's brief,
and that type of policy statement
that was rejected by the court.
The danger is,
you're not asking the voters a particular question.
You're not giving them anything to vote on.
You're not taking a side.
All of the other policy statements
that this court has approved,
in Hensley, legalizing marijuana,
in Dunn, preventing farm animals
from being caged in cramped conditions,
in Weiner, lifting restrictions
on the sale of alcoholic beverages.
These are all questions you can ask a voter in a coherent-
-: Well, it's a pretty straightforward question.
The question is whether you'd want to alter the restrictions
on the number of off premises licenses,
and whether or not
you're going to need to make some changes on enforcement
if the overall numbers are going to go up.
Of course, I'm putting aside the whole
out-of-state license issue for a moment
on the enforcement side.
-: I think Your Honor,
it's important to go through
this analysis step by step,
because I do think that the attorney general
has bypassed the related subjects analysis
in favor of more of a comparison style view
between the different petitions in other cases.
I do think it's important to take this step by step.
If we assume that we can use
this alteration of restrictions on licenses
as the unifying purpose,
we see though that that purpose statement
does not dominate across
the other provisions of the petition.
We have this self checkout ban.
Now what does a ban on buying wine
through the self checkout have to do with
changing the the allocation number of alcohol licenses?
There is no relationship.
-: Counsel, isn't the relationship that
if you change the number of licenses you increase
the potential for underage people to be buying them?
So you have eliminated the self checkout
so you can reduce that risk.
-: Well, the problem with the self checkout ban provision
is that it doesn't contain an age verification requirement
like in Weiner.
The Weiner Case was very different,
there was an affirmative requirement
that licensees were going to need to check IDs.
That made sense because in Weiner
there was gonna be a flood of new licenses
because they created a new license type,
and that type was being offered to potentially new entrance
to the market that had never held an alcohol license before.
With that flood came this fear that potentially
there was gonna be more opportunity
for the sale of alcohol to minors
because the licensees wouldn't have had experience
dealing with the sale of alcohol
and they would be letting all of these
minors come through and buy alcohol.
But here we don't have any of those things.
We don't have a flood of licenses to begin with,
and we don't have a
indirectly related provision dealing with age verification.
There is no age verification requirement here.
I think it's too attenuated to say
that you're just making the assumption that
there's going to be- -: It seems like you're
saying in Weiner the age verification was better,
but if you're eyeballing somebody purchasing the alcohol
and if you're enhancing the fine,
if they miscalculate
then you're enhancing enforcement.
Maybe not as well as Weiner would've done it,
but you're enhancing enforcement.
-: I think this provision also ignores the reality
that the licensees
have the same motivation to check IDs
regardless of the channel of purchase.
As some people may be surprised to learn,
there is no affirmative requirement to check an ID
for the sale of alcohol,
but licensees are motivated to do that
because of liability on the criminal and civil side
that they may incur if they do not.
-: Like a draconian increase in fine
that's not just based on revenue from alcohol.
-: Yes. That's a whole separate problem for relatedness
that we can discuss now, if that makes sense.
This new system of fines is meant to impose
massive disproportionate burden
on non package store licensees.
It could radically change that market segment
by creating strong incentives for those retailers
to simply exit the market
because these fines are gonna be so high
that they can't manage them,
or they might take
a suspension over a fine
and shut down their alcohol business temporarily,
or they may pass on these costs to their customers.
Off the bat, we have a very important public policy
that's being looped in with these other unrelated policies.
The attorney general suggests that this provision
is operationally related to the alteration of license caps
because, she's saying,
"Steeper fines are appropriate
for some retailers because there's gonna be
more retail chains that have more licenses,
and because they're retail chains that sell other products,
they have less knowledge about selling alcohol
than a package store would."
This is a non sequitur.
We don't have to adopt
that speculative rationale because there isn't-
-: Or is it a different rationale
that may make much more money?
They have big operations
and for the penalty to have a bite to them
it needs to deal with all of their revenues.
I'm not saying it's fair,
but I'm saying that there's a rationale
that the penalty is strict enough
and severe enough that it will cause real pain.
-: But what does that have to do with this
minor increase in the availability of licenses though?
-: The act, as Justice Lowy is saying,
look, it rejiggers the licenses for
grocery stores and package stores.
It does a lot of different things.
It's designed to really help the package stores
but look like it's helping the other stores.
It's a camel, it's not a horse.
It may not be completely coherent
but we've not required complete coherence.
The penalty is there
that checkout provision deals with the fact that
convenience stores now don't have somebody there,
like when you buy your alcohol at the package store,
so you need a change of provision there
to accommodate that problem.
They make much more money so that sale liquor thing
may not be enough to really give them a whack.
It all seems generally related.
It just may be sort of messy but it's...
Seems like it's a messy relationship
but it's a relationship.
-: I don't see there being any relationship
above a marginal relationship,
and what is happening here is
these provisions are simply related to alcohol sales.
Again, a subject matter is not a stand-in
for a unified public policy that
ties in each and every subject.
We can't simply look at this
in a vacuum in the abstract and say,
"Well, these all seem to be related."
This is a segment of a market,
and maybe we think these things
are part of the same domain,
but the relatedness requirement
ensures that there has to be
a unified statement of public policy
that a voter can vote yes or no on,
and each of the individual subjects
have to be accounted for.
One, I think that stands out to me is
this out-of-state ID provision.
This is a loosening of age verification requirements.
Under existing law you can use
a Massachusetts driver's license
and a few other types of licenses,
and that reliance on those types
can be reasonable for purposes of liability.
But this petition wants-
-: That's, in my view,
by far your strongest argument,
but why,
I think it's amicus brief,
why isn't the response that,
well, if we're increasing the amount of licenses,
we're increasing the amount of licenses of stores
near the border,
and it seems
reasonable then that there'd be another way
to engage in verification.
-: The problem here is that
the attorney general has admitted
that the out-of-state ID provision
does not relate to the overarching policy statement
that she selected.
It doesn't relate to altering restrictions
on the number and allocation of licenses.
Right there, you've already failed the relatedness test.
It must be related to the overarching purpose.
What she says it's related to
is another indirectly related provision,
but you can't have that attenuated chain of relatedness.
No case has ever held that you are able to connect
one indirectly related provision
to another indirectly related provision
and somehow achieve operational relatedness.
It must all relate back to the purpose.
We have this with this argument from the proponents
in the amicus brief about the cross border transactions.
Again, purely speculative,
not foreseeable that there are going to be more
transactions being done across state lines.
It's simply just an opinion and a speculative one,
and according to the court in Weiner,
it must be a foreseeable consequence that's being addressed.
If you pushed that
operational relatedness standard to its limit,
you swallow the entire relatedness standard.
We have to be very careful here,
especially when we're dealing with a petition
that is a classic case of logrolling.
We're starting out with a very popular proposition,
that we're gonna increase
the entire statewide ownership cap,
but buried beneath
we see, no, that's not true,
we're actually going to decrease
the ownership existing cap
for the most valuable type of license.
And then let's sprinkle in here some more unpopular things
like the self checkout ban,
but we'll add in this out-of-state ID provision,
which could be a sweetener.
This is the exact type of petition
that the framers of Article 48 were so afraid of.
I would submit to this court that
we need to do our best to serve as gatekeepers
and keep this confusing petition off of the ballot.
-: Okay. Thank you.
(clears throat)
Attorney- -: Thank you, Your Honor.
-: Attorney Sterman.
-: Good morning, and may it please the court.
(clears throat)
Anne Sterman, for the attorney general
and secretary of the Commonwealth.
With me is Adam Hornstein.
-: How do you
manage to shove into relatedness
this out-of-state license verification
that's going in
the opposite direction of enforcement
that might be needed for increased amount of licenses?
-: Well, I think Your Honor,
one thing that's important to note is
that Your Honor correctly observed a few moments ago
that nothing in this court's relatedness case
law requires strict internal consistency
between the provisions of a petition.
But second, if we look functionally
at what the provisions of this petition does,
what the provisions do rather,
as you've observed,
we've got the provisions that essentially alter the market
for the retail sale of alcoholic beverages
to be consumed off the premises.
We've got some controlled growth
in the number of licenses available
for the sale of wine and malt beverages,
while we are gonna hold constant at the number
of licenses for the sale of all alcoholic beverages.
And then we've got some provisions that are designed,
as this court's case law tell us,
is permissible to address the consequences of that.
Among those provisions,
are a couple of provisions that together
seek to regulate the point of sale transaction,
the methods by which the point of sale transactions
for these retail sale of alcohol take place.
The drafters have said
that in order, perhaps,
to address a concern about increased possibility
for underage alcohol sales,
that they're going to eliminate the remote transactions
or the non face-to-face transactions,
the self checkouts,
require that things be face-to-face,
but at same time
increase the types of ID
that the face-to-face employee can accept.
Those two provisions work together
to reconfigure the manner by which the transactions
will take place under the licenses
and the increased licenses that this petition provides for.
Your Honor, two years ago
this court considered and rejected a relatedness challenge
to a petition to alter the number and allocation of licenses
for the retail sale of alcoholic beverages
for off premises consumption.
Now, two years later,
a different member of that same retail market
has proposed a law that would alter the number
and allocation of those licenses in a different way.
Their proposal is no less related
than the one that this court approved two years ago.
Although it seeks to accomplish its purpose
in a different manner,
the purpose remains nearly identical
and the provisions are equally related.
None of the differences that plaintiffs
have pointed out between the Weiner petition
and the petition here, in 2103,
are differences that are material
from a relatedness analysis,
for the threshold bar of certification
by the attorney general.
-: Although the proposal two years ago
was more coherent, right?
It was sort of a
pro grocery store licensing scheme,
and this one's kind of a mishmash, right?
A voter could have a consistency...
The provisions were more consistent with each other.
Here, they cut against each other in different ways, right?
-: I'm not sure I agree with that, Your Honor.
I think it is true to say that
the petition in Weiner
favored more growth
and more unrestricted growth.
It is as though, for example,
the petition in Hensley had set forth
a retail market for the sale of marijuana
and the Commonwealth without imposing any limitations.
Right? It is true that in terms of the amount
and pace of growth in the number of licenses,
the petition in Weiner would've had a greater impact.
That doesn't make the provisions of this petition
any less related or any less coherent.
It simply means that they are proposing growth
in this one segment of the retail market,
but in a more controlled
and less wholesale way.
-: Well, that's not
how the opponents look at it.
They look at it as,
well, Weiner was pretty straightforward.
You got
the reduction and maybe even
the elimination of per entity limits.
Here, what you have is
an availability of an increase
for one aspect of liquor sales
but a reduction for another aspect.
If those are inconsistent with each other,
and in Weiner,
as Justice Kaker alluded to,
you're moving to much less regulated
and maybe even elimination on limitations on licenses.
Dramatically different, they would say.
-: Your Honor, I guess where I would push back
is on the characterization of what this petition does
to all alcoholic beverages licenses.
I don't view it as a reduction.
It's not taking away a license
from anyone who currently has a license.
It is decreasing the cap on common ownership going forward
with an important exception for companies that already own
in excess of what the new cap will be, seven.
It is constraining the future growth of those licenses,
but it is not a reduction in such licenses.
Nobody who has an all alcoholic beverages license today
will cease to have one by operation of this proposed law
should it be passed by the voters.
The same way that this petition seeks to
foster or permit a growth in the number
and common ownership of wine and malt licenses,
it seeks to constrain the growth
of all alcoholic beverages license.
It's entirely reasonable for the proponents
who might have assumed that voters might feel differently.
They might feel like, you know what?
I wish it was easier for me to buy a bottle of wine
on my way to a friend's house,
but that doesn't mean that I wanna let loose the limitations
on the sale of hard liquor,
particularly by establishments who are engaged
in more than one business line,
and I might worry about whether or not
they're as strict in checking identification
when verifying the age of the person purchasing the alcohol.
It is always the case
that for a proposed law that has more than one provision,
as most of them do,
that there could always be a hypothetical voter who
might like one piece and not like the other.
But as this court said in Hensley,
that's not what our relatedness test
tells us is required by Article 48.
Article 48 asks whether it's fair to ask a reasonable voter
to vote up or down on the petition as a whole.
First of all, I can conceive of a voter
who might think these provisions harmonize perfectly.
I'd like to make beer and wine sales more available
but I'm concerned about doing the same for hard liquor.
But second of all,
a voter who feels differently about those two provisions,
as a hypothetical voter might feel about
almost any initiative petition,
is free to vote no if their concern about
one of the provisions outweighs
their favor for another of the provisions.
(clears throat)
If the court has no additional questions
on the relatedness issue,
I did wanna touch briefly on the timeliness issue
that the single justice had asked the parties
to address in their briefs.
Your Honors will recall that in the Dunn Case in 2016,
this court issued guidance to parties who wanted to
bring these types of certification challenges
to the attorney general's certification decision,
and that guidance was animated by a concern that the parties
and that this court have a fair opportunity to
consider the significant issues at hand,
and have a fair opportunity to consider whether the petition
is one that is fairly presented to the voters.
Here, the plaintiffs have chosen to ignore that guidance
and have really offered no reason for doing so.
They've ignored that guidance not by filing,
for example, on February 2nd instead of February 1st,
but they've waited till April.
They waited till April having the combined effect
of forcing the parties to brief this
in a quite expedited manner,
and forcing this court to consider the case
in a quite expedited manner.
(clears throat)
What we urge the court
is to give some meaning to the guidance
that they provided in the Dunn Case
to avoid setting up a perverse incentive
where opponents who want to game the system,
who want to challenge the attorney general's
certification of a petition,
might choose to game the system by not suing in January,
not suing in February,
but instead taking those months to prepare their argument
and prepare their brief,
and then file suit in April or May
leaving the attorney general, secretary and this court
to scramble to brief the issues fully
and consider them with the seriousness that they deserve.
Although I encourage the court,
and I believe that there is substantial reason
for the court to on its substance,
uphold the attorney general's certification
of Petition 2103,
as meeting the relatedness requirement.
We've also raised in our brief,
and I urge you to consider in the alternative
whether this petition may be dismissed as untimely.