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SJC13559, Martin El Koussa et al
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versus Attorney General et al.
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(judge chuckling)
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Okay, Attorney Miller.
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Good morning, Your Honors, and may it please the court.
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Jennifer Grace Miller here today on behalf
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of Mr. El Koussa and the other ballot question opponents.
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Your Honors, as in El Koussa 1,
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proponents of the five ballot questions
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before you today ask too much.
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They yolk together an unrelated laundry list
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of disparate aspects of employment law
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and they've redefined multiple relationships,
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not just the one between the network companies
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and their app-based drivers.
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This is all in violation of Article 48.
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I'd like to make three points this morning.
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First, I'd like to make the point
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that the petitions include a long list of changes
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to unrelated aspects of employment law,
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which this court has acknowledged
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in cases like Camargo are substantively distinct.
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The petitions also do more than just define the relationship
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between the network companies and their app-based workers,
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they also define the relationship between the companies,
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the Commonwealth, the public, and others.
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And finally, third, today, Your Honors,
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I'd like to address Albano,
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which I believe is easily distinguished.
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Do you-
Start there, please,
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with the Albano.
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Of course, Your Honors.
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Albano is distinguishable
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for at least two reasons, Your Honors.
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First of all, it's in a unique context.
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Albano is in the context of marriage.
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Marriage is a fundamental right.
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It can't be different in different context.
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Employment status is different.
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It can be different in different contexts,
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as this court has already recognized.
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But in addition to being a unique context,
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I think the real difference is that Albano
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had a concrete purpose, a real public policy,
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shall we define the marriage as between man and a woman?
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What it didn't have, and it left for another day,
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was a series of other changes to the law
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or a series of obvious consequences to the law
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that the court was going to have to deal with directly.
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Here, what we have is not a concrete public policy.
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We have an abstract public policy
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redefining the relationship between these two entities.
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But what we do have is a concrete list
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of changes to the laws that the courts
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and voters eventually will have to wrestle with.
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So we haven't left it to another day,
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and that's why Albano,
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which, of course, addresses the relatedness issue
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in only three paragraphs is different.
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It had only a single concrete readily understood
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public policy that the voters could vote yes or no on.
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Here we don't.
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We don't have a public policy
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and we have a list of concrete-
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But why isn't the public policy
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that app drivers are not the employees
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of the technology companies that match them up with rides?
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Right, sure.
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Of course, that's not what proponents state
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that the public policy is.
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They say it's redefining
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and regulating the legal relationship
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or the working relationship between these two entities.
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So it's not precisely that, Your Honor.
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But, also as this court has recognized in Camargo, again,
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Justice Gants was concerned about folks being,
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your average voter being confused.
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Because it's difficult for a regular worker
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to understand what the nuances
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of being an employee actually are.
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And certainly, it's difficult for them to understand
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what the nuances of being an employee are in separate areas
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of employment law, under the workers' compensation statutes,
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under the unemployment insurance statutes.
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And that, Your Honor, is why the break rooms
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and lunch rooms of businesses across the Commonwealth
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have notices in there to inform employees
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of what their rights actually are.
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But, Your Honor, I think-
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One of those notices is employment discrimination in 151B.
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Right.
You don't address that,
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but I'm gonna be asking some others,
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but I don't understand how this works under 151B.
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Are they taking themselves out
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of the anti-discrimination laws or not?
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Right.
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Well, they certainly are explicitly
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in version B, Your Honor.
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Right.
Version B corrects all laws.
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And substitutes this definition
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in all laws in the Commonwealth.
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So, obviously that would affect 151B as well.
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And of course, in the long versions,
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they include a mandatory contractual term
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that addresses or seeks to attempt to address-
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'Cause I have trouble keeping all these straight.
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Sure.
So how many
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of these change, I understand there's a debate
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whether they are employees
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or whether they are independent contractors
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under existing law.
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But if they were employees,
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they would be entitled to all the anti-discrimination
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protections under Massachusetts law.
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How many of these five change that?
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At least four, Your Honor.
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So at least three, Your Honor.
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All of the long versions would change that.
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And when they had that sentence,
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"Not withstanding any general or special law or the contrary
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and any rules or regulations,"
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and then they go on to reference 150, 151A, but not 151B,
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do we take that to mean that 151B
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is still in effect for them or not?
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Well, it's an interesting question, Your Honor,
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because, of course, under 151B,
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these protections are not available
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to independent contractors, that we know.
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But we have constitutional protections
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against disability, discrimination and other things, right?
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I'm confused to how the discrimination laws work here.
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Right, so, potentially,
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you could bring a lawsuit, Your Honor, on your own, right?
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As a constitutional violation.
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You could also bring, under the long versions,
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you could bring a breach of contract claim, theoretically.
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But what you wouldn't get
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is an opportunity to proceed before the MCAD.
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You wouldn't get an opportunity for the MCAD
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to actually take up your case or to resolve your case
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before you might go to court, Your Honor.
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So, 151B is certainly in the mix
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of the kinds of laws that are at stake here.
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Speaking of the kinds of laws that are at stake here,
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the complexity of this case,
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I think can be best understood
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by thinking about it in the reverse.
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So, if we imagine that the Commonwealth
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had never put an employment law on its books,
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and a labor group came organized
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and decided to put together a ballot question.
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And what they were going to do was literally draft
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all of the employment laws in the Commonwealth
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that this petition addresses.
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So, they're going to put in protections
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under the wage and hour laws.
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They're gonna do unemployment insurance,
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they're gonna do workers' compensation,
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they're going to do the anti-discrimination laws.
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I am sure that colleagues from industry
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would be here making virtually the same kinds of arguments
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that I am making here today, that these are unrelated,
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that they are too different for voters
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to consider as part of a single ballot.
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And they'd, of course, be right.
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And this court has also addressed
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when ballot question contains disparate parts,
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but that feel like they're interconnected, right?
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That's Gray.
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So, Gray determined, ultimately-
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But isn't this mostly like the marijuana case?
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No, I don't think so.
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Creating a new industry?
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No, I don't think so, Your Honor.
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Because in the marijuana case,
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you had a clear public policy, shall we legalize marijuana?
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That is something that is concrete,
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that's easily understood
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by the average voter in the voting booth.
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Then you had a series of implementations.
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Voters could get their arms around the public policy
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without necessarily understanding
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all of the vagaries of the tax scheme
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or the regulatory scheme.
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They could do that.
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That's not the question here.
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The question here is,
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shall we define the relationship between these two parties?
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And that simply begs the question,
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it begs the question, how?
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You can't answer can we do that, yes or no?
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You have to ask how, and when you ask how,
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that's when you get into all of these unrelated subjects.
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So it's not like Hensley, it's much more like Gray.
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It's much more like Gray and Henderson and Oberle's
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because these ideas about work,
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these ideas about employment law, might be interconnected.
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You might think of them in the domain
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of employment as the court and Gray put it.
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But they're not similar enough
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for the relatedness requirement.
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In Gray it was what to teach, how to test,
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and Anderson is what to do tax and how do you spend it.
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And in Oberle's it's who do you hire
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and how do you afford to pay for them?
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Right?
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So those ideas are all interconnected.
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They're gonna stand up and argue
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you're creating a scheme that defines
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the benefits of gig workers.
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I worry when we start talking about discrimination,
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but at least I see the benefits.
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I understand they're different laws,
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but it's setting up a benefit system
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for these people in total.
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There is at least a relatedness to that, you know?
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An employee has the following benefits,
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workers' comp, unemployment insurance,
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and they have pregnancy rights and other things.
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Here they're saying these are the benefits you get
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and it seems like a voter could get their arms
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around at least that part of this.
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There are other parts of this that I don't understand.
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Also, there are five of these.
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I have no idea how a voter sorts through five of these.
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You're right, Your Honor,
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this is the first time that's been a possibility.
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But I want to quibble a little bit
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with uninsurance being a benefit.
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And I think that's a good example
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to show why these actually are not related.
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So what is unemployment insurance?
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Unemployment insurance is a social program
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run by the Commonwealth that provides benefits to workers.
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And it has, you know, at least three underlying purposes.
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Right?
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So the underlying purposes are to stabilize the economy,
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to provide an ability for these folks
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to be employed while they, "to be employed",
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to receive benefits while they are still working.
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Forgive me here.
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Which kind of insurance are you talking about here?
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Unemployment insurance.
Right.
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So they don't receive unemployment
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insurance while they're working.
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Correct.
They would receive
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unemployment insurance if they were terminated
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by their employer.
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Correct.
It's not just workers.
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Exactly.
It's employers.
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Exactly right.
Alright.
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And so not only do these do different things,
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do they have different underlying purposes,
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but they also affect different relationships.
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So the primary relationship with respect
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to unemployment insurance, to your point, Wolohojian,
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is that the primary relationship is with the Commonwealth.
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So it's the Commonwealth that provides the benefits.
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But the employer contributes to the scheme.
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But not for the benefit of their individual employees.
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Is that different from workers' comp?
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Because workers' comp also sets up an insurance scheme
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that, you know, why is that so different?
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Well, it's different because it is a replacement
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for the tort system, right?
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In the workplace context.
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So there you have, and, again,
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it's a different purpose, right?
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00:12:42.330 --> 00:12:45.240
The idea was to relieve workers of the obligation
270
00:12:45.240 --> 00:12:46.860
to have to prove negligence
271
00:12:46.860 --> 00:12:51.090
and to give employers some sense of predictability
272
00:12:51.090 --> 00:12:53.550
with respect to the costs involved
273
00:12:53.550 --> 00:12:56.007
in any kind of work related injury.
274
00:12:56.007 --> 00:12:58.680
And so for all of these various aspects,
275
00:12:58.680 --> 00:13:01.440
what this petition is suggesting,
276
00:13:01.440 --> 00:13:03.090
and I agree with Justice Kafker,
277
00:13:03.090 --> 00:13:06.120
that five in and of itself is probably confusing,
278
00:13:06.120 --> 00:13:09.363
but let's just assume there was one or two.
279
00:13:10.530 --> 00:13:15.530
That what this petition's common purpose is to say,
280
00:13:15.600 --> 00:13:19.200
we're not gonna do any of those employment laws, right?
281
00:13:19.200 --> 00:13:23.040
We are a different system
282
00:13:23.040 --> 00:13:26.430
for which the existing employment laws do not work
283
00:13:26.430 --> 00:13:30.903
because of the way these individual drivers work,
284
00:13:31.830 --> 00:13:35.610
how they choose their hours and what they wanna do.
285
00:13:35.610 --> 00:13:40.320
And so for that gig economy of these drivers and couriers,
286
00:13:40.320 --> 00:13:45.000
we are gonna set up, you know, a new chapter 159AA,
287
00:13:45.000 --> 00:13:47.170
and that's what's gonna govern
288
00:13:49.050 --> 00:13:52.140
this different kind of relationship.
289
00:13:52.140 --> 00:13:54.450
Why isn't that a common purpose?
290
00:13:54.450 --> 00:13:58.290
Because it involves unrelated aspects
291
00:13:58.290 --> 00:13:59.790
of employment law, Your Honor.
292
00:14:01.770 --> 00:14:04.560
It's a question at too high of a generality.
293
00:14:04.560 --> 00:14:07.650
All of these ideas are connected only by work.
294
00:14:07.650 --> 00:14:10.110
Now, could the proponents have come in
295
00:14:10.110 --> 00:14:13.740
and potentially amended the independent contractor statute
296
00:14:13.740 --> 00:14:18.630
alone under chapter 149 affecting 151?
297
00:14:18.630 --> 00:14:19.920
Sure, they could have done that.
298
00:14:19.920 --> 00:14:24.330
And that would have changed the employment relationship
299
00:14:24.330 --> 00:14:26.520
between these parties in the broadest way
300
00:14:26.520 --> 00:14:27.990
possible under Massachusetts law,
301
00:14:27.990 --> 00:14:29.310
but that's not what they did.
302
00:14:29.310 --> 00:14:32.070
They did that, they did the uninsurance laws,
303
00:14:32.070 --> 00:14:33.240
they did the workers' comp laws,
304
00:14:33.240 --> 00:14:34.980
they did the anti-discrimination laws.
305
00:14:34.980 --> 00:14:36.993
What if the proposal just said,
306
00:14:37.987 --> 00:14:41.400
"People who work in this industry for these types
307
00:14:41.400 --> 00:14:45.963
of companies will for all purposes, in every context,
308
00:14:48.780 --> 00:14:53.283
be deemed independent contractors, not employees," period.
309
00:14:55.920 --> 00:15:00.000
How is it that you could say that the components
310
00:15:00.000 --> 00:15:03.780
of that global proposal would not be related
311
00:15:03.780 --> 00:15:07.050
because it affects so many different laws?
312
00:15:07.050 --> 00:15:09.540
Right, so we're back to Albano,
313
00:15:09.540 --> 00:15:12.630
and I would argue that in this instance,
314
00:15:12.630 --> 00:15:15.270
you don't have a clear statement
315
00:15:15.270 --> 00:15:17.640
of public policy for voters to hang on to.
316
00:15:17.640 --> 00:15:20.640
So the petition you just wrote, Justice Wolohojian,
317
00:15:20.640 --> 00:15:22.380
is not the one that was actually done.
318
00:15:22.380 --> 00:15:24.090
So in this particular instance-
319
00:15:24.090 --> 00:15:26.790
But I'm trying to understand your argument
320
00:15:26.790 --> 00:15:29.970
that relatedness is to be determined
321
00:15:29.970 --> 00:15:34.500
by looking at the number of laws that it might affect,
322
00:15:34.500 --> 00:15:38.610
as opposed to the terms of the proposal itself.
323
00:15:38.610 --> 00:15:40.920
Right, so this is the terms of the proposal itself,
324
00:15:40.920 --> 00:15:43.173
so that's why it's different from Albano.
325
00:15:44.040 --> 00:15:46.440
The proponents have actually said that what we wanna do
326
00:15:46.440 --> 00:15:49.260
is change either all the laws in the Commonwealth
327
00:15:49.260 --> 00:15:50.370
that touch on employment,
328
00:15:50.370 --> 00:15:54.360
or these four specific areas of employment law.
329
00:15:54.360 --> 00:15:58.620
So we have to wrestle with what's actually in the petition.
330
00:15:58.620 --> 00:16:02.730
And the question is are they similar enough
331
00:16:02.730 --> 00:16:05.130
for a voter to consider them all at once?
332
00:16:05.130 --> 00:16:08.160
And the answer, we believe here is no.
333
00:16:08.160 --> 00:16:10.353
I have an additional question, if I may?
334
00:16:12.000 --> 00:16:15.280
Do you accept the representation
335
00:16:16.290 --> 00:16:19.590
that only one of these proposals
336
00:16:19.590 --> 00:16:22.380
will be presented to the voters?
337
00:16:22.380 --> 00:16:23.220
Well, that's certainly
338
00:16:23.220 --> 00:16:24.990
what proponents have said, Your Honor.
339
00:16:24.990 --> 00:16:26.610
They're not required to do that,
340
00:16:26.610 --> 00:16:27.930
but that is what they've said.
341
00:16:27.930 --> 00:16:28.890
It does make this whole-
342
00:16:28.890 --> 00:16:32.310
Do you have any reason to challenge the truth of that?
343
00:16:32.310 --> 00:16:34.110
No, I have no reason to challenge the truth of that.
344
00:16:34.110 --> 00:16:36.480
Do they have control of that decision, though?
345
00:16:36.480 --> 00:16:40.320
I mean, if I'm one of those people
346
00:16:40.320 --> 00:16:42.903
that signed one of those nine,
347
00:16:44.940 --> 00:16:48.843
can I keep going out and trying to keep this alive?
348
00:16:49.890 --> 00:16:53.400
Does the proponent control this?
349
00:16:53.400 --> 00:16:56.820
Or is this the public controls it at this point,
350
00:16:56.820 --> 00:16:58.143
once it's out there?
351
00:16:59.550 --> 00:17:02.040
I don't know why they get to do this,
352
00:17:02.040 --> 00:17:04.950
unless the proponent has absolute control over this.
353
00:17:04.950 --> 00:17:07.680
I'm one of those people who signed one of those nine,
354
00:17:07.680 --> 00:17:09.600
God knows how they sorted through that.
355
00:17:09.600 --> 00:17:11.370
Right.
356
00:17:11.370 --> 00:17:14.820
Don't I have the ability to keep my proposal alive,
357
00:17:14.820 --> 00:17:16.563
at least if I'm one of the five?
358
00:17:17.440 --> 00:17:22.340
Right, so-
359
00:17:22.340 --> 00:17:23.580
Or do the sponsors control?
360
00:17:23.580 --> 00:17:24.690
I just don't know the answer to that.
361
00:17:24.690 --> 00:17:26.040
Yeah, the sponsors do control.
362
00:17:26.040 --> 00:17:28.410
They have the ability to turn it off?
363
00:17:28.410 --> 00:17:29.243
Correct.
364
00:17:29.243 --> 00:17:31.110
And the secretary will ask, eventually,
365
00:17:31.110 --> 00:17:32.217
what they'd like to put on the ballot.
366
00:17:32.217 --> 00:17:33.780
And that's how it'll be resolved.
367
00:17:33.780 --> 00:17:35.220
Can you answer one other thing?
368
00:17:35.220 --> 00:17:37.410
The legislative history, or whatever,
369
00:17:37.410 --> 00:17:39.180
the constitutional history,
370
00:17:39.180 --> 00:17:43.170
talks about this "joker" provision,
371
00:17:43.170 --> 00:17:48.170
where a joker decides to put on five different petitions.
372
00:17:49.110 --> 00:17:51.300
One involves suffrage,
373
00:17:51.300 --> 00:17:53.310
that we're gonna have women's suffrage,
374
00:17:53.310 --> 00:17:55.260
we're gonna have municipal women's suffrage
375
00:17:55.260 --> 00:17:57.813
and we're gonna have another kind of suffrage.
376
00:17:58.890 --> 00:18:01.860
And they're concerned that the confusion
377
00:18:01.860 --> 00:18:06.860
that that would induce is you don't address that, right?
378
00:18:07.590 --> 00:18:10.500
I think one of the amicus does.
379
00:18:10.500 --> 00:18:12.840
Isn't that a problem here?
380
00:18:12.840 --> 00:18:14.970
Well, I would agree that fundamentally
381
00:18:14.970 --> 00:18:17.040
the framers of Article 48 were concerned
382
00:18:17.040 --> 00:18:20.250
about voter confusion and that certainly goes
383
00:18:20.250 --> 00:18:23.200
to voter confusion and what is the single break
384
00:18:24.575 --> 00:18:27.750
on having multiple confusing ballot questions
385
00:18:27.750 --> 00:18:30.000
before the people, and that is the relatedness
386
00:18:30.000 --> 00:18:31.710
requirement of Article 48.
387
00:18:31.710 --> 00:18:34.200
So, if what we're concerned about is sifting through
388
00:18:34.200 --> 00:18:36.900
and making sure that these petitions do not contain
389
00:18:36.900 --> 00:18:39.840
any jokers, that they are not framed in such a way
390
00:18:39.840 --> 00:18:44.040
as to confuse voters, then Article 48
391
00:18:44.040 --> 00:18:46.320
and the relatedness requirement should bar
392
00:18:46.320 --> 00:18:48.423
its publication on the ballot.
393
00:18:49.890 --> 00:18:50.863
I'm just trying to understand.
394
00:18:50.863 --> 00:18:54.300
If there are five different petitions out there right now.
395
00:18:54.300 --> 00:18:58.140
People signed different ones.
396
00:18:58.140 --> 00:18:59.820
Right.
397
00:18:59.820 --> 00:19:02.700
Probably unable to sort through the differences,
398
00:19:02.700 --> 00:19:04.290
'cause we can't.
399
00:19:04.290 --> 00:19:06.000
Not outside of a Wegmans, Your Honor.
400
00:19:06.000 --> 00:19:08.730
So, but does it matter?
401
00:19:08.730 --> 00:19:10.081
Well, some of us can, but-
402
00:19:10.081 --> 00:19:13.290
(all laughing)
403
00:19:13.290 --> 00:19:15.120
Justice Wendlandt could sort through that,
404
00:19:15.120 --> 00:19:16.590
but I'm trying to...
405
00:19:16.590 --> 00:19:20.730
An average voter who sees the big picture,
406
00:19:20.730 --> 00:19:25.730
but has a job and a family and doesn't spend hours
407
00:19:27.090 --> 00:19:29.100
discerning, finding differences
408
00:19:29.100 --> 00:19:31.503
between different initiative petitions.
409
00:19:32.460 --> 00:19:33.840
Those are the people we're dealing with, right?
410
00:19:33.840 --> 00:19:36.480
We're not dealing with, you know,
411
00:19:36.480 --> 00:19:38.670
trained lawyers who have the time
412
00:19:38.670 --> 00:19:41.250
to read through all these briefs and sort this out.
413
00:19:41.250 --> 00:19:42.748
Correct.
414
00:19:42.748 --> 00:19:45.240
Is there a danger of real confusion here, then?
415
00:19:45.240 --> 00:19:47.883
Again, a voter sees the big picture,
416
00:19:49.380 --> 00:19:51.210
but they can't discriminate
417
00:19:51.210 --> 00:19:53.310
at this level of detail, can they?
418
00:19:53.310 --> 00:19:54.480
No.
Maybe we can ask
419
00:19:54.480 --> 00:19:56.812
Attorney Heuer about that.
420
00:19:56.812 --> 00:19:57.645
Okay, go ahead.
421
00:19:57.645 --> 00:19:58.478
Very good, thank you, Your Honors.
422
00:19:58.478 --> 00:19:59.311
Thank you.
423
00:20:00.540 --> 00:20:01.690
Okay, Attorney Sterman.
424
00:20:10.860 --> 00:20:13.050
Good morning, and may it please the court,
425
00:20:13.050 --> 00:20:14.640
Anne Sterman for the Attorney General
426
00:20:14.640 --> 00:20:16.980
and the Secretary of the Commonwealth.
427
00:20:16.980 --> 00:20:19.170
Your Honors, each of the five versions
428
00:20:19.170 --> 00:20:22.440
of the petition before you was appropriately certified
429
00:20:22.440 --> 00:20:24.750
by the attorney general as meeting the related
430
00:20:24.750 --> 00:20:27.093
subjects requirement of Article 48.
431
00:20:27.930 --> 00:20:30.660
The classification only petitions,
432
00:20:30.660 --> 00:20:33.420
what we've dubbed the classification only petitions
433
00:20:33.420 --> 00:20:36.690
and what the opponents have dubbed the short versions,
434
00:20:36.690 --> 00:20:38.640
ask the voters whether to specify
435
00:20:38.640 --> 00:20:41.850
that app-based drivers are not employees
436
00:20:41.850 --> 00:20:43.380
as that term is used
437
00:20:43.380 --> 00:20:46.680
in various existing statutory provisions.
438
00:20:46.680 --> 00:20:49.440
The classification plus benefits petitions,
439
00:20:49.440 --> 00:20:52.170
what the opponents call the long versions,
440
00:20:52.170 --> 00:20:54.420
ask voters whether to specify
441
00:20:54.420 --> 00:20:57.090
that app-based drivers are not employees,
442
00:20:57.090 --> 00:20:58.860
but should instead be entitled
443
00:20:58.860 --> 00:21:01.830
to a particular suite of benefits.
444
00:21:01.830 --> 00:21:05.130
Collectively, each petition has the effect
445
00:21:05.130 --> 00:21:08.130
of expanding the current binary in which workers
446
00:21:08.130 --> 00:21:11.430
are either an employee or an independent contractor,
447
00:21:11.430 --> 00:21:13.890
to create and define, essentially,
448
00:21:13.890 --> 00:21:16.800
a modified independent contractor status
449
00:21:16.800 --> 00:21:19.323
that would apply to app-based drivers.
450
00:21:20.760 --> 00:21:22.140
What is your understanding
451
00:21:22.140 --> 00:21:25.140
of the anti-discrimination laws?
452
00:21:25.140 --> 00:21:27.900
Do they still apply to these?
453
00:21:27.900 --> 00:21:31.950
Is buried in this some change in discrimination laws,
454
00:21:31.950 --> 00:21:34.800
'cause you don't address that at all.
455
00:21:34.800 --> 00:21:37.710
But there are clearly, at least in three of these,
456
00:21:37.710 --> 00:21:41.490
some kind of anti-discrimination change, right?
457
00:21:41.490 --> 00:21:42.540
In the laws.
458
00:21:42.540 --> 00:21:46.138
So I think there is, at least in one of them,
459
00:21:46.138 --> 00:21:47.987
a change to the anti-discrimination law.
460
00:21:47.987 --> 00:21:48.820
At least in two, right?
461
00:21:48.820 --> 00:21:51.543
Two of them expressly have this,
462
00:21:53.790 --> 00:21:58.790
we will not discriminate against drivers
463
00:21:58.920 --> 00:22:01.470
and the remedy is not 151B,
464
00:22:01.470 --> 00:22:05.640
but the company will decide whether it discriminated, right?
465
00:22:05.640 --> 00:22:07.470
That's at least in two of them, right?
466
00:22:07.470 --> 00:22:09.057
That is in two of the versions, yes.
467
00:22:09.057 --> 00:22:11.460
And then there's a third one notwithstanding
468
00:22:11.460 --> 00:22:13.440
any general laws to the contrary,
469
00:22:13.440 --> 00:22:16.920
and then it has a list, but it leaves out 151B.
470
00:22:16.920 --> 00:22:18.810
What's your understanding of...
471
00:22:18.810 --> 00:22:21.000
Does that change?
472
00:22:21.000 --> 00:22:23.400
Are those people subject to the discrimination laws?
473
00:22:23.400 --> 00:22:24.840
Is there a change there?
474
00:22:24.840 --> 00:22:29.430
So, I think one distinction that's important to parse
475
00:22:29.430 --> 00:22:31.800
is the extent to which the anti-discrimination laws
476
00:22:31.800 --> 00:22:34.380
apply to employers and employees.
477
00:22:34.380 --> 00:22:36.480
And then there's of course a whole host of other contexts
478
00:22:36.480 --> 00:22:39.000
in which our anti-discrimination laws apply.
479
00:22:39.000 --> 00:22:39.990
This would affect,
480
00:22:39.990 --> 00:22:42.510
for purposes of employer-employee relationship,
481
00:22:42.510 --> 00:22:45.330
this particular employer and employee relationship,
482
00:22:45.330 --> 00:22:48.363
which would be defined as something else.
483
00:22:50.040 --> 00:22:50.873
All these people,
484
00:22:50.873 --> 00:22:52.800
I don't know whether their employees or not now,
485
00:22:52.800 --> 00:22:57.800
but none of these people would have the MCAD process 151B,
486
00:22:59.580 --> 00:23:02.340
they're all taken out of 151B?
487
00:23:02.340 --> 00:23:06.510
I think under version B, that's petition 2325,
488
00:23:07.560 --> 00:23:10.440
that applies for the purposes of any Massachusetts
489
00:23:10.440 --> 00:23:13.440
general or special law, that's correct.
490
00:23:13.440 --> 00:23:16.050
I think it is debatable whether or not-
491
00:23:16.050 --> 00:23:17.220
One of the one's is still alive.
492
00:23:17.220 --> 00:23:18.614
I can't remember.
493
00:23:18.614 --> 00:23:19.447
B is still alive?
494
00:23:19.447 --> 00:23:20.520
B is still alive.
495
00:23:20.520 --> 00:23:21.353
Yes, Your Honor.
496
00:23:21.353 --> 00:23:24.070
I'll address only ones that are still alive
497
00:23:25.200 --> 00:23:26.583
to minimize the confusion.
498
00:23:28.470 --> 00:23:31.140
So if I understand your answer
499
00:23:31.140 --> 00:23:33.750
to Justice Kafker's question,
500
00:23:33.750 --> 00:23:37.897
at least version B would take
501
00:23:41.730 --> 00:23:44.580
these companies outside of the definition
502
00:23:44.580 --> 00:23:48.990
of employer within chapter 151B,
503
00:23:48.990 --> 00:23:50.610
but it's not clear whether any
504
00:23:50.610 --> 00:23:54.660
of the other four proposals do so?
505
00:23:54.660 --> 00:23:55.710
That's right, Your Honor.
506
00:23:55.710 --> 00:23:58.410
So I think if I may address the other four,
507
00:23:58.410 --> 00:24:00.330
they essentially fall into two buckets
508
00:24:00.330 --> 00:24:02.670
for this purpose, right?
509
00:24:02.670 --> 00:24:06.870
There are two that are classification only,
510
00:24:06.870 --> 00:24:09.510
but don't include 151B.
511
00:24:09.510 --> 00:24:11.460
But they begin by saying notwithstanding
512
00:24:11.460 --> 00:24:14.850
any general or special laws to the contrary,
513
00:24:14.850 --> 00:24:17.400
but then it leaves out 151B.
514
00:24:17.400 --> 00:24:20.970
So that means that they're covered by 151B,
515
00:24:20.970 --> 00:24:22.980
even though they're not employees any longer?
516
00:24:22.980 --> 00:24:26.220
I think it's not clear what that means-
517
00:24:26.220 --> 00:24:27.870
Is that a problem?
With respect to 151B.
518
00:24:27.870 --> 00:24:29.700
And I think since we don't know for certain,
519
00:24:29.700 --> 00:24:32.550
we don't know that it's reasonably clear
520
00:24:32.550 --> 00:24:34.230
that that is an implication,
521
00:24:34.230 --> 00:24:37.020
that that is a necessary consequence
522
00:24:37.020 --> 00:24:38.670
of adopting any of these petitions.
523
00:24:38.670 --> 00:24:40.260
I would say the same thing
524
00:24:40.260 --> 00:24:43.623
about the two long form petitions,
525
00:24:44.790 --> 00:24:47.715
or the classification plus benefits petitions
526
00:24:47.715 --> 00:24:52.715
that do have their own anti-discrimination provision in it.
527
00:24:53.370 --> 00:24:55.500
We generally don't have the person
528
00:24:55.500 --> 00:24:57.120
who's accused of discrimination
529
00:24:57.120 --> 00:25:00.213
decide whether they discriminated, right?
530
00:25:01.050 --> 00:25:02.460
That's a change in the law.
531
00:25:02.460 --> 00:25:03.390
That's a change in the law
532
00:25:03.390 --> 00:25:06.750
that we don't know what the consequence would be, right?
533
00:25:06.750 --> 00:25:09.390
If an app-based driver were then to litigate
534
00:25:09.390 --> 00:25:12.330
whether or not their rights under chapter 151B
535
00:25:12.330 --> 00:25:16.473
were entirely supplanted by this new provision in this law,
536
00:25:17.610 --> 00:25:19.080
I think that would be a question
537
00:25:19.080 --> 00:25:21.008
that would need to be resolved by a court.
538
00:25:21.008 --> 00:25:23.610
Do these flaws just go to the merits
539
00:25:23.610 --> 00:25:26.970
for a voter versus the constitutionality?
540
00:25:26.970 --> 00:25:28.680
I think they all do, right?
541
00:25:28.680 --> 00:25:33.360
So, whether or not and how exactly these proposed laws
542
00:25:33.360 --> 00:25:36.480
would impact drivers under the anti-discrimination law
543
00:25:36.480 --> 00:25:38.880
really only matters for purposes
544
00:25:38.880 --> 00:25:42.180
of the Article 48 certification analysis
545
00:25:42.180 --> 00:25:45.750
if it renders those proposed laws unrelated,
546
00:25:45.750 --> 00:25:46.583
as the terms used.
547
00:25:46.583 --> 00:25:47.700
I'm sorry to interrupt.
548
00:25:47.700 --> 00:25:51.120
But how do we figure out...
549
00:25:51.120 --> 00:25:53.280
Since you don't know and it's not clear
550
00:25:53.280 --> 00:25:58.280
from the petitions whether 151B is implicated,
551
00:26:00.060 --> 00:26:03.840
doesn't that go to the heart of Article 48
552
00:26:03.840 --> 00:26:07.410
in preventing confusion?
553
00:26:07.410 --> 00:26:09.780
Because voters won't know.
554
00:26:09.780 --> 00:26:13.200
So, Article 48, you are absolutely correct.
555
00:26:13.200 --> 00:26:15.150
The framers of Article 48 were concerned
556
00:26:15.150 --> 00:26:16.620
about voter confusion.
557
00:26:16.620 --> 00:26:18.480
But there is not in Article 48,
558
00:26:18.480 --> 00:26:20.850
a general provision that says the AG
559
00:26:20.850 --> 00:26:22.710
can refuse to certify any petition
560
00:26:22.710 --> 00:26:24.720
that might cause voter confusion.
561
00:26:24.720 --> 00:26:27.930
Instead, the framers chose to approach
562
00:26:27.930 --> 00:26:32.100
that voter confusion problem through specific tools,
563
00:26:32.100 --> 00:26:34.320
the relatedness test, right?
564
00:26:34.320 --> 00:26:38.070
So there may be things that one can conceive of
565
00:26:38.070 --> 00:26:40.050
that would cause voter confusion
566
00:26:40.050 --> 00:26:43.216
that were not among the things the framers conceived of
567
00:26:43.216 --> 00:26:44.310
and, therefore, not covered.
568
00:26:44.310 --> 00:26:46.770
Which is why you don't address the five separate questions
569
00:26:46.770 --> 00:26:50.313
other than to say our job is yay or nay per question.
570
00:26:51.300 --> 00:26:52.650
That's right, Your Honor.
571
00:26:54.720 --> 00:26:55.959
It might be our job.
572
00:26:55.959 --> 00:26:57.690
(all laughing)
573
00:26:57.690 --> 00:27:00.930
I don't see anything in Article 48 as it is framed
574
00:27:00.930 --> 00:27:02.940
that precludes these proponents
575
00:27:02.940 --> 00:27:04.770
from doing what they've done.
576
00:27:04.770 --> 00:27:06.420
That's not the same as asking
577
00:27:06.420 --> 00:27:08.820
whether or not what they've done or may continue to do
578
00:27:08.820 --> 00:27:12.060
might result in voter confusion, right?
579
00:27:12.060 --> 00:27:15.780
Article 48 doesn't say the AG can't certify
580
00:27:15.780 --> 00:27:18.480
and the court can't bless any proposed law
581
00:27:18.480 --> 00:27:20.193
that may cause voter confusion.
582
00:27:21.690 --> 00:27:25.110
I understand that when I deal with UI,
583
00:27:25.110 --> 00:27:30.110
workers' comp, salary, but isn't discrimination
584
00:27:30.180 --> 00:27:34.560
a whole separate, it's different.
585
00:27:34.560 --> 00:27:35.850
It isn't that different
586
00:27:35.850 --> 00:27:40.850
from whether your benefit structure, you know,
587
00:27:41.370 --> 00:27:44.130
we have a broader prohibition against discrimination
588
00:27:44.130 --> 00:27:45.903
than in the employment laws.
589
00:27:47.760 --> 00:27:50.310
Does that take this out of...
590
00:27:50.310 --> 00:27:53.160
I see the complexity of saying
591
00:27:53.160 --> 00:27:55.200
that it's unrelated, UI, workers' comp,
592
00:27:55.200 --> 00:27:57.030
but once you start adding in things
593
00:27:57.030 --> 00:27:59.310
like you're not subject to the discrimination laws,
594
00:27:59.310 --> 00:28:01.680
doesn't that raise a different set of issues?
595
00:28:01.680 --> 00:28:03.120
How is that related?
596
00:28:03.120 --> 00:28:04.410
So I think it's related
597
00:28:04.410 --> 00:28:05.760
because it's not actually saying
598
00:28:05.760 --> 00:28:07.860
you're not subject to the anti-discrimination laws.
599
00:28:07.860 --> 00:28:10.380
It's saying you're not subject to a particular aspect
600
00:28:10.380 --> 00:28:13.140
of the anti-discrimination law, right?
601
00:28:13.140 --> 00:28:17.520
That arises from and when you have an employer-employee
602
00:28:17.520 --> 00:28:20.070
relationship with a particular entity.
603
00:28:20.070 --> 00:28:21.210
By redefining-
604
00:28:21.210 --> 00:28:22.440
Can I ask you another question?
605
00:28:22.440 --> 00:28:24.030
I just don't know the answer.
606
00:28:24.030 --> 00:28:27.690
When you're providing transportation to the public,
607
00:28:27.690 --> 00:28:30.540
I understand they don't think they're drive,
608
00:28:30.540 --> 00:28:32.910
they're digital dispatchers or whatever,
609
00:28:32.910 --> 00:28:36.810
but do the anti-discrimination laws preclude,
610
00:28:36.810 --> 00:28:40.623
I know, for example, restaurants can't discriminate.
611
00:28:43.740 --> 00:28:46.860
I don't think bus companies can discriminate, right?
612
00:28:46.860 --> 00:28:48.990
Against the public.
613
00:28:48.990 --> 00:28:51.510
How does it work when you're an independent contractor?
614
00:28:51.510 --> 00:28:52.650
And I don't know the answer
615
00:28:52.650 --> 00:28:54.420
to that either in this context,
616
00:28:54.420 --> 00:28:58.950
but I think that itself is instructive, right?
617
00:28:58.950 --> 00:29:01.110
The answer to how this would play out
618
00:29:01.110 --> 00:29:03.450
in the context of this particular industry
619
00:29:03.450 --> 00:29:05.790
under any of these five proposed laws
620
00:29:05.790 --> 00:29:09.210
is not clear from the face of the proposed laws.
621
00:29:09.210 --> 00:29:11.700
And in any event, even if it were clear,
622
00:29:11.700 --> 00:29:13.830
that doesn't render it unrelated
623
00:29:13.830 --> 00:29:16.530
because it still arises from the relationship
624
00:29:16.530 --> 00:29:20.190
between the app-based driver and the technology company.
625
00:29:20.190 --> 00:29:22.950
Whether that person is an employee of the company,
626
00:29:22.950 --> 00:29:24.840
an independent contractor,
627
00:29:24.840 --> 00:29:27.240
or the modified type of independent contractor
628
00:29:27.240 --> 00:29:30.640
that is established under these five proposed laws.
629
00:29:30.640 --> 00:29:31.770
It is still related.
630
00:29:31.770 --> 00:29:34.680
Sorry, can I turn your attention
631
00:29:34.680 --> 00:29:37.470
to the multiplicity of the proposals?
632
00:29:37.470 --> 00:29:38.303
Yes.
633
00:29:39.150 --> 00:29:41.970
Do you have any reason to doubt the representation
634
00:29:41.970 --> 00:29:45.300
that only one of these will be presented to the voters?
635
00:29:45.300 --> 00:29:46.133
I don't.
636
00:29:46.133 --> 00:29:49.020
The petitioners have represented that to the secretary,
637
00:29:49.020 --> 00:29:50.370
to this court and to the legislature.
638
00:29:50.370 --> 00:29:52.440
Is it your understanding,
639
00:29:52.440 --> 00:29:55.260
or the Attorney General's Office understanding,
640
00:29:55.260 --> 00:29:58.500
that the petitioners have the ability
641
00:29:58.500 --> 00:30:00.840
to abandon four of the proposals
642
00:30:00.840 --> 00:30:02.670
at this stage of the process?
643
00:30:02.670 --> 00:30:04.950
They do still at this stage of the process.
644
00:30:04.950 --> 00:30:07.410
So the place where we are in the process
645
00:30:07.410 --> 00:30:11.070
is that the second round of signature gathering is underway.
646
00:30:11.070 --> 00:30:13.200
That occurs between the first Wednesday in May
647
00:30:13.200 --> 00:30:15.300
and the first Wednesday in July.
648
00:30:15.300 --> 00:30:19.320
So, the petitioners could, as we speak, be making decisions
649
00:30:19.320 --> 00:30:20.970
about which of these five versions
650
00:30:20.970 --> 00:30:24.180
they're going to collect that second set of signatures on.
651
00:30:24.180 --> 00:30:26.160
And even once they collect signatures,
652
00:30:26.160 --> 00:30:28.350
they can make a decision about which one
653
00:30:28.350 --> 00:30:30.060
to turn in the signatures for.
654
00:30:30.060 --> 00:30:33.210
Now, my understanding is that once they submit signatures
655
00:30:33.210 --> 00:30:36.660
for certification to the Secretary of State's Office,
656
00:30:36.660 --> 00:30:39.071
right, then we're locked in as to what goes on the ballot.
657
00:30:39.071 --> 00:30:40.530
[Wolohojian] So, when is that date?
658
00:30:40.530 --> 00:30:43.230
That would not be until the first Wednesday in July.
659
00:30:45.990 --> 00:30:47.400
So if we don't issue our decision
660
00:30:47.400 --> 00:30:50.610
by the first Wednesday in July, we will wreak havoc.
661
00:30:50.610 --> 00:30:51.443
Is that right?
662
00:30:52.710 --> 00:30:54.240
I mean define "wreak havoc",
663
00:30:54.240 --> 00:30:56.160
but probably result in these petitioners
664
00:30:56.160 --> 00:30:58.010
submitting all five to the secretary.
665
00:30:59.790 --> 00:31:02.730
I think that's probably the foreseeable consequence.
666
00:31:02.730 --> 00:31:04.443
Okay, thank you.
Thank you.
667
00:31:09.060 --> 00:31:10.263
Okay, Attorney Heuer.
668
00:31:12.720 --> 00:31:14.670
Good morning, Chief Justice Budd, may it please the court,
669
00:31:14.670 --> 00:31:17.040
Tad Heur on behalf of the interveners.
670
00:31:17.040 --> 00:31:18.840
With me is Seth Reiner.
671
00:31:18.840 --> 00:31:20.130
I'd like to make three points.
672
00:31:20.130 --> 00:31:21.360
I'm not sure you'll let me get through them,
673
00:31:21.360 --> 00:31:23.160
but I'd like to try.
674
00:31:23.160 --> 00:31:24.960
The first of which is that while
675
00:31:24.960 --> 00:31:27.720
each of these five petitions has a different scope,
676
00:31:27.720 --> 00:31:32.550
and they do, each does establish a narrow common purpose
677
00:31:32.550 --> 00:31:33.750
and the same one.
678
00:31:33.750 --> 00:31:35.520
And that's defining the relationship
679
00:31:35.520 --> 00:31:38.820
between the companies and the drivers
680
00:31:38.820 --> 00:31:41.970
as not employer-employee.
681
00:31:41.970 --> 00:31:44.310
For some purposes it's for all the general laws,
682
00:31:44.310 --> 00:31:46.230
for some it's more narrow.
683
00:31:46.230 --> 00:31:49.350
Second, Albano and Abdel,
684
00:31:49.350 --> 00:31:52.200
and our other precedents, are very clear.
685
00:31:52.200 --> 00:31:54.270
Article 48 allows a petition
686
00:31:54.270 --> 00:31:58.380
to amend and affect other statutes and multiple statutes,
687
00:31:58.380 --> 00:32:02.310
even those passed at different times for different purposes.
688
00:32:02.310 --> 00:32:05.370
As long as the petition's provisions,
689
00:32:05.370 --> 00:32:08.100
not the other laws provisions, are related.
690
00:32:08.100 --> 00:32:09.090
And that's what we have here
691
00:32:09.090 --> 00:32:11.070
because we have a common purpose
692
00:32:11.070 --> 00:32:15.480
of defining that relationship as not employer-employee.
693
00:32:15.480 --> 00:32:18.600
And third, each petition here took seriously
694
00:32:18.600 --> 00:32:21.990
and intentionally reflects this court's detailed guidance
695
00:32:21.990 --> 00:32:25.140
in El Koussa 1, from two years ago,
696
00:32:25.140 --> 00:32:28.320
as to what complies with Article 48.
697
00:32:28.320 --> 00:32:31.440
So on that first point as to the narrow common purpose,
698
00:32:31.440 --> 00:32:34.927
the so-called Carney question from Carney, which says,
699
00:32:34.927 --> 00:32:36.780
"What's the question that voters
700
00:32:36.780 --> 00:32:41.730
will be asked to answer yes or no," is coherent and simple.
701
00:32:41.730 --> 00:32:46.080
It is, should drivers be classified as not employees
702
00:32:46.080 --> 00:32:49.440
if they meet an objective for part test?
703
00:32:49.440 --> 00:32:50.520
And as to the longer version,
704
00:32:50.520 --> 00:32:52.560
which provides certain benefits,
705
00:32:52.560 --> 00:32:56.647
Clark, from just two years ago was very clear, quote,
706
00:32:56.647 --> 00:33:00.030
"Initiative petitions designed to account for consequences
707
00:33:00.030 --> 00:33:04.560
of their primary objectives pass the relatedness test."
708
00:33:04.560 --> 00:33:06.990
And the benefits provisions here do exactly that.
709
00:33:06.990 --> 00:33:08.392
Can I have a-
Go ahead.
710
00:33:08.392 --> 00:33:10.080
Sorry, go ahead.
No, sorry.
711
00:33:10.080 --> 00:33:12.000
I'm sorry to take you off this topic,
712
00:33:12.000 --> 00:33:13.560
but your time is limited.
713
00:33:13.560 --> 00:33:14.453
Of course.
714
00:33:15.600 --> 00:33:17.250
I have a hypothetical for you
715
00:33:17.250 --> 00:33:19.700
and then a couple of questions that come from it.
716
00:33:22.920 --> 00:33:25.470
Well, the first is a question that's not a hypothetical.
717
00:33:25.470 --> 00:33:29.370
I take at face value the representation that you've made
718
00:33:29.370 --> 00:33:31.680
to the court that only one of these provisions
719
00:33:31.680 --> 00:33:34.560
will be submitted to the voters, ultimately?
720
00:33:34.560 --> 00:33:35.393
That's correct, Your Honor.
721
00:33:35.393 --> 00:33:36.647
I'm standing before the court.
722
00:33:36.647 --> 00:33:39.270
Rule 3.3 requires me to have candor to the tribunal
723
00:33:39.270 --> 00:33:40.980
and I hold the Massachusetts bar card.
724
00:33:40.980 --> 00:33:42.840
Okay.
That is true.
725
00:33:42.840 --> 00:33:46.203
And we have ways, I think, of enforcing that if we wish.
726
00:33:47.730 --> 00:33:52.730
So let's assume that we accept that,
727
00:33:54.660 --> 00:33:57.180
and so that there is never going
728
00:33:57.180 --> 00:34:00.180
to be a need to go into the question
729
00:34:00.180 --> 00:34:03.330
of whether presenting a multiplicity of proposals
730
00:34:03.330 --> 00:34:06.090
to the voters in and of itself
731
00:34:06.090 --> 00:34:10.200
can cause some kind of Article 48 problem.
732
00:34:10.200 --> 00:34:13.920
Whether it's confusion or creates an ambiguity
733
00:34:13.920 --> 00:34:14.940
as to relatedness,
734
00:34:14.940 --> 00:34:17.343
let's just assume we can set that to the side.
735
00:34:18.390 --> 00:34:19.863
Here's my hypothetical.
736
00:34:20.760 --> 00:34:25.760
Assume that you only had one proposal and you had gotten it
737
00:34:26.370 --> 00:34:28.230
through the certification process
738
00:34:28.230 --> 00:34:31.140
at the Attorney General's Office,
739
00:34:31.140 --> 00:34:34.800
and an appeal had been taken, it's pending before the court,
740
00:34:34.800 --> 00:34:36.900
but you've already, as a practical matter,
741
00:34:36.900 --> 00:34:41.433
decided that you're not going to present it to the voters.
742
00:34:42.390 --> 00:34:46.983
Wouldn't that question then be moot for us?
743
00:34:48.360 --> 00:34:53.360
And if so, why aren't four fifths of this case not moot,
744
00:34:55.860 --> 00:35:00.860
although, we haven't been told which four fifths are?
745
00:35:02.310 --> 00:35:04.980
And I'll just put my cards on the table,
746
00:35:04.980 --> 00:35:06.540
I don't think that's a fair situation
747
00:35:06.540 --> 00:35:07.743
for the court to be in.
748
00:35:08.610 --> 00:35:11.580
So, Your Honor, we submitted as the petitioners,
749
00:35:11.580 --> 00:35:14.250
as the plaintiff suggested, nine petitions.
750
00:35:14.250 --> 00:35:16.680
Only five of them went to the secretary,
751
00:35:16.680 --> 00:35:19.470
the attorney general certified all nine,
752
00:35:19.470 --> 00:35:21.930
five went to the secretary.
753
00:35:21.930 --> 00:35:24.900
We collected signatures on all five of those.
754
00:35:24.900 --> 00:35:27.060
There is still, as the attorney general noted,
755
00:35:27.060 --> 00:35:29.100
a second signature collection phase.
756
00:35:29.100 --> 00:35:31.710
So even if we wished only one of these,
757
00:35:31.710 --> 00:35:33.753
let's say we wished it were version B,
758
00:35:34.920 --> 00:35:36.930
we don't get to make that choice.
759
00:35:36.930 --> 00:35:38.520
The voters still have to go out
760
00:35:38.520 --> 00:35:41.010
and we have to collect 12,000 more signatures
761
00:35:41.010 --> 00:35:42.360
to put that question on the ballot.
762
00:35:42.360 --> 00:35:45.600
It's very possible that the five petitions
763
00:35:45.600 --> 00:35:46.470
that are before the court,
764
00:35:46.470 --> 00:35:48.630
which we all believe meet Article 48,
765
00:35:48.630 --> 00:35:52.260
that voters only sign the further 12,000 signatures
766
00:35:52.260 --> 00:35:54.600
on two of them.
767
00:35:54.600 --> 00:35:56.130
For the court to decide that only-
768
00:35:56.130 --> 00:35:57.450
Why is that our problem?
769
00:35:57.450 --> 00:36:00.450
Our problem is not to decide moot issues.
770
00:36:00.450 --> 00:36:02.010
I guess-
But it's not-
771
00:36:02.010 --> 00:36:04.320
Why is it that we...
772
00:36:04.320 --> 00:36:08.643
Would you be willing to identify in order of priority-
773
00:36:10.350 --> 00:36:12.750
Of course.
Which ones you would
774
00:36:12.750 --> 00:36:16.020
like to take to the voters or for signature?
775
00:36:16.020 --> 00:36:17.550
Yes.
Because then that
776
00:36:17.550 --> 00:36:20.160
prevents us, that would permit us
777
00:36:20.160 --> 00:36:22.950
not to engage in moot questions.
778
00:36:22.950 --> 00:36:24.750
Do you understand what I'm saying?
779
00:36:24.750 --> 00:36:25.665
Absolutely.
Okay.
780
00:36:25.665 --> 00:36:26.700
I'm happy to do that.
So can you tell
781
00:36:26.700 --> 00:36:27.840
us which ones now?
782
00:36:27.840 --> 00:36:29.430
Certainly.
Okay.
783
00:36:29.430 --> 00:36:31.470
So there are five versions
784
00:36:31.470 --> 00:36:33.510
that are currently before the court.
785
00:36:33.510 --> 00:36:38.510
Those are B, F, G, H, and I.
786
00:36:41.160 --> 00:36:45.630
So if we were to say that B meets the relatedness test,
787
00:36:45.630 --> 00:36:47.340
we need not go further?
788
00:36:47.340 --> 00:36:48.900
No, so those are the five that are available.
789
00:36:48.900 --> 00:36:50.078
He hasn't given you the order yet.
790
00:36:50.078 --> 00:36:51.510
Oh, I thought your order.
791
00:36:51.510 --> 00:36:52.470
Okay.
I'm setting the stage
792
00:36:52.470 --> 00:36:53.303
for what we've got.
793
00:36:53.303 --> 00:36:54.870
Okay.
In that order,
794
00:36:54.870 --> 00:36:57.990
we would suggest that starting with B is most appropriate
795
00:36:57.990 --> 00:37:01.320
because it is the broadest of them, it governs all laws,
796
00:37:01.320 --> 00:37:02.760
not just these four sections,
797
00:37:02.760 --> 00:37:04.860
and it has the benefits provision.
798
00:37:04.860 --> 00:37:07.470
If the broadest provision that deals with all the laws
799
00:37:07.470 --> 00:37:10.533
plus benefits is acceptable under Article 48,
800
00:37:11.400 --> 00:37:13.950
so too are the remaining four.
801
00:37:13.950 --> 00:37:16.500
We would suggest then to go in decreasing order.
802
00:37:16.500 --> 00:37:20.070
So starting with the three long forms.
803
00:37:20.070 --> 00:37:25.070
So, that would be starting with B and then G and then H,
804
00:37:27.300 --> 00:37:32.300
switching to the shorter forms, F and then I.
805
00:37:32.490 --> 00:37:33.360
So B, G-
We believe that
806
00:37:33.360 --> 00:37:34.470
would narrow that funnel.
807
00:37:34.470 --> 00:37:36.960
B, G, H, F, I.
808
00:37:36.960 --> 00:37:41.700
If we decide B in affirming
809
00:37:41.700 --> 00:37:44.820
the AG's certification determination,
810
00:37:44.820 --> 00:37:46.740
we need to go no further?
811
00:37:46.740 --> 00:37:48.960
I think we would technically say
812
00:37:48.960 --> 00:37:50.100
the court needs to go no further
813
00:37:50.100 --> 00:37:51.420
as to the Article 48 question,
814
00:37:51.420 --> 00:37:54.330
because all five of them would be certifiable
815
00:37:54.330 --> 00:37:56.250
and the attorney general appropriately certified,
816
00:37:56.250 --> 00:37:57.510
which is the question before the court.
817
00:37:57.510 --> 00:37:58.740
Whether the attorney general
818
00:37:58.740 --> 00:38:02.010
appropriately certified those questions.
819
00:38:02.010 --> 00:38:02.843
And I think-
820
00:38:02.843 --> 00:38:06.660
But you're not saying if we were to approve B,
821
00:38:06.660 --> 00:38:09.960
you would terminate the process on G, H, F and I?
822
00:38:09.960 --> 00:38:12.240
We could not because we don't know if the voters
823
00:38:12.240 --> 00:38:15.750
will actually sign up to B, right?
824
00:38:15.750 --> 00:38:18.210
It's very possible the voters say, "We don't like B,
825
00:38:18.210 --> 00:38:20.310
we're not gonna give you the last 12,000 signatures."
826
00:38:20.310 --> 00:38:21.540
It can't go to the secretary,
827
00:38:21.540 --> 00:38:23.100
it cannot appear in the ballot.
828
00:38:23.100 --> 00:38:25.260
That's Article 48 right there.
829
00:38:25.260 --> 00:38:27.840
We would need to have an option to move to the next one,
830
00:38:27.840 --> 00:38:32.347
even if the court and we agreed with that to say,
831
00:38:32.347 --> 00:38:36.217
"Right, we would then move to G," and the voters say,
832
00:38:36.217 --> 00:38:38.880
"Yes, we think 12,000 are appropriate,"
833
00:38:38.880 --> 00:38:40.731
we get 12,000 signatures on G.
834
00:38:40.731 --> 00:38:43.440
So you want our decision on all of these,
835
00:38:43.440 --> 00:38:45.960
'cause you don't know which one's gonna pass?
836
00:38:45.960 --> 00:38:47.160
We don't know which one will collect
837
00:38:47.160 --> 00:38:48.477
the appropriate requisite number of signatures required.
838
00:38:48.477 --> 00:38:53.477
But isn't the case in every one of these types of cases?
839
00:38:56.070 --> 00:38:57.030
I'm sorry, I'm not sure I-
840
00:38:57.030 --> 00:38:59.280
Every article 48 case here-
841
00:38:59.280 --> 00:39:00.420
Yeah.
The court is,
842
00:39:00.420 --> 00:39:01.890
presumably deciding the case
843
00:39:01.890 --> 00:39:03.390
before anyone knows whether
844
00:39:03.390 --> 00:39:06.360
they're gonna be the 12,000 signatures collected.
845
00:39:06.360 --> 00:39:07.740
That's true.
So why should
846
00:39:07.740 --> 00:39:10.053
that be a special consideration here?
847
00:39:10.980 --> 00:39:11.813
Because the court
848
00:39:11.813 --> 00:39:13.530
always decides each petition individually.
849
00:39:13.530 --> 00:39:14.940
The plaintiffs have combined
850
00:39:14.940 --> 00:39:18.600
the five petitions into one complaint.
851
00:39:18.600 --> 00:39:20.670
But the question under Article 48
852
00:39:20.670 --> 00:39:22.500
is does each individual question,
853
00:39:22.500 --> 00:39:24.300
just as you're deciding this question
854
00:39:24.300 --> 00:39:26.010
separate from the one that will be argued after me
855
00:39:26.010 --> 00:39:28.080
and the one that you'll hear on Wednesday,
856
00:39:28.080 --> 00:39:29.400
you will decide each of those,
857
00:39:29.400 --> 00:39:31.950
not necessarily you decided this question,
858
00:39:31.950 --> 00:39:33.630
therefore those don't need to be reached.
859
00:39:33.630 --> 00:39:35.190
The fact there are variations-
860
00:39:35.190 --> 00:39:37.320
But if we agree with you.
861
00:39:37.320 --> 00:39:42.320
If we say that B is fine, we wouldn't have to go any further
862
00:39:43.620 --> 00:39:48.620
because your representation is that if B is fine,
863
00:39:48.690 --> 00:39:50.670
they're all fine.
864
00:39:50.670 --> 00:39:52.020
That would be appropriate.
865
00:39:52.020 --> 00:39:53.580
If the court says B is fine
866
00:39:53.580 --> 00:39:54.780
and therefore we need not go further
867
00:39:54.780 --> 00:39:57.840
because all five are fine, that's appropriate.
868
00:39:57.840 --> 00:39:59.820
I took Justice Wolohojian's question to be,
869
00:39:59.820 --> 00:40:02.340
if you say B is appropriate, we need to not go further
870
00:40:02.340 --> 00:40:03.267
and decide on the remaining four.
871
00:40:03.267 --> 00:40:05.100
But isn't B one of the provisions
872
00:40:05.100 --> 00:40:08.760
that has this special anti-discrimination process in it?
873
00:40:08.760 --> 00:40:13.200
B has this provision says, again, correct me if I'm wrong,
874
00:40:13.200 --> 00:40:14.970
'cause, again, I have trouble keeping them straight.
875
00:40:14.970 --> 00:40:19.920
But I thought B says we've added this special provision
876
00:40:19.920 --> 00:40:23.553
that these people cannot be discriminated against,
877
00:40:24.390 --> 00:40:27.420
but that doesn't mean you do it on 151B,
878
00:40:27.420 --> 00:40:29.610
you appeal to the company
879
00:40:29.610 --> 00:40:32.040
and they decide whether they discriminated, right?
880
00:40:32.040 --> 00:40:34.830
B has that provision in it?
881
00:40:34.830 --> 00:40:36.900
B does, but I wanna make a distinction here.
882
00:40:36.900 --> 00:40:37.800
Go ahead.
There's a difference
883
00:40:37.800 --> 00:40:41.520
between 151B and where it falls
884
00:40:41.520 --> 00:40:43.800
in which statutes are affected
885
00:40:43.800 --> 00:40:46.020
and the provision that you just identified,
886
00:40:46.020 --> 00:40:48.090
which is in the driver contract.
887
00:40:48.090 --> 00:40:50.880
Can you help me understand, again,
888
00:40:50.880 --> 00:40:52.710
if all of these people are employees,
889
00:40:52.710 --> 00:40:54.507
they would all be subject to 151B
890
00:40:54.507 --> 00:40:56.760
and the anti-discrimination laws?
891
00:40:56.760 --> 00:40:57.593
Correct.
892
00:40:57.593 --> 00:40:59.160
If they're independent contractors,
893
00:40:59.160 --> 00:41:01.560
even the AG wasn't sure exactly
894
00:41:01.560 --> 00:41:04.560
whether they're subject to anti-discrimination laws.
895
00:41:04.560 --> 00:41:07.530
But walk me through the five provisions quickly.
896
00:41:07.530 --> 00:41:08.610
My colleagues are gonna kill me,
897
00:41:08.610 --> 00:41:09.900
but I just wanna understand
898
00:41:09.900 --> 00:41:12.510
what the anti-discrimination effects
899
00:41:12.510 --> 00:41:14.940
of each one of these are to you.
900
00:41:14.940 --> 00:41:17.130
I can do it in a more-
901
00:41:17.130 --> 00:41:17.963
Go ahead.
Rapid manner.
902
00:41:17.963 --> 00:41:20.640
Because I think it's possible to do it in two.
903
00:41:20.640 --> 00:41:24.270
There's version B, version B is the long version
904
00:41:24.270 --> 00:41:28.080
that affects all Massachusetts statutes, right?
905
00:41:28.080 --> 00:41:31.500
One of the Massachusetts statutes is of course 151B.
906
00:41:31.500 --> 00:41:33.240
And this is the same as we saw in Albano.
907
00:41:33.240 --> 00:41:36.540
Albano says if you affect numerous different statutes
908
00:41:36.540 --> 00:41:38.550
passed at different times for different purposes,
909
00:41:38.550 --> 00:41:41.190
as long as you have a common purpose in your petition,
910
00:41:41.190 --> 00:41:43.410
you're related and you meet Article 48.
911
00:41:43.410 --> 00:41:45.060
So our position is, yes,
912
00:41:45.060 --> 00:41:47.370
that would affect in the situation
913
00:41:47.370 --> 00:41:50.250
where we have not an employee-employer relationship,
914
00:41:50.250 --> 00:41:52.500
a statute that says it has a relation
915
00:41:52.500 --> 00:41:54.630
to an employer or an employee,
916
00:41:54.630 --> 00:41:58.020
151B is affected as an Albano.
917
00:41:58.020 --> 00:42:01.770
For the other four, those are 149,
918
00:42:01.770 --> 00:42:06.770
151, 151A, and 152.
919
00:42:07.052 --> 00:42:08.730
152B is not mentioned.
920
00:42:08.730 --> 00:42:13.730
Do G, H, F and I wipe out 151B protections or do they not?
921
00:42:15.930 --> 00:42:19.800
I don't believe they do, because they are not referenced.
922
00:42:19.800 --> 00:42:22.680
In statutory interpretation we look at what we say,
923
00:42:22.680 --> 00:42:24.480
and what we say is notwithstanding
924
00:42:24.480 --> 00:42:28.170
the purpose of any general or special law or rule
925
00:42:28.170 --> 00:42:30.090
or regulation promulgated thereunder,
926
00:42:30.090 --> 00:42:35.090
for the purposes of 149, 151, 151A, and 152B,
927
00:42:36.390 --> 00:42:39.060
there will be no employee-employer relationship,
928
00:42:39.060 --> 00:42:43.380
excuse me, 152, 151B is not referenced.
929
00:42:43.380 --> 00:42:44.730
It's notwithstanding any other law
930
00:42:44.730 --> 00:42:48.000
for the purposes of those four statutes.
931
00:42:48.000 --> 00:42:49.680
But the beginning of the statute
932
00:42:49.680 --> 00:42:51.750
says you're not an employee.
933
00:42:51.750 --> 00:42:52.620
So-
Correct.
934
00:42:52.620 --> 00:42:55.020
So when I combine you're not an employee
935
00:42:55.020 --> 00:42:59.163
with the fact that notwithstanding, how does that work?
936
00:43:00.060 --> 00:43:03.213
You're not an employee, so are you outside of 151B?
937
00:43:04.050 --> 00:43:06.540
You are not an employee for the purposes
938
00:43:06.540 --> 00:43:11.410
of 149, 151, 151A and 152.
939
00:43:11.410 --> 00:43:13.440
Okay.
You are to the extent
940
00:43:13.440 --> 00:43:14.880
that is possible to be an employee
941
00:43:14.880 --> 00:43:17.460
for the purposes of 151B and that matters,
942
00:43:17.460 --> 00:43:18.390
then, yes, it would apply.
943
00:43:18.390 --> 00:43:19.440
I think the other thing we'd note
944
00:43:19.440 --> 00:43:22.140
is that in El Koussa, the court instructed us,
945
00:43:22.140 --> 00:43:23.670
and we took it very seriously,
946
00:43:23.670 --> 00:43:25.770
this notion of not directing the court
947
00:43:25.770 --> 00:43:28.590
as to what a future interpretation or outcome is.
948
00:43:28.590 --> 00:43:31.233
So I'm slightly hesitant to say definitively what it is.
949
00:43:31.233 --> 00:43:33.210
No, you don't have to tell us.
950
00:43:33.210 --> 00:43:35.733
Right, but that's because of that reason.