-: SJC13559, Martin El Koussa et al
versus Attorney General et al.
(judge chuckling)
Budd: Okay, Attorney Miller.
-: Good morning, Your Honors, and may it please the court.
Jennifer Grace Miller here today on behalf
of Mr. El Koussa and the other ballot question opponents.
Your Honors, as in El Koussa 1,
proponents of the five ballot questions
before you today ask too much.
They yolk together an unrelated laundry list
of disparate aspects of employment law
and they've redefined multiple relationships,
not just the one between the network companies
and their app-based drivers.
This is all in violation of Article 48.
I'd like to make three points this morning.
First, I'd like to make the point
that the petitions include a long list of changes
to unrelated aspects of employment law,
which this court has acknowledged
in cases like Camargo are substantively distinct.
The petitions also do more than just define the relationship
between the network companies and their app-based workers,
they also define the relationship between the companies,
the Commonwealth, the public, and others.
And finally, third, today, Your Honors,
I'd like to address Albano,
which I believe is easily distinguished.
-: Do you- -: Start there, please,
with the Albano.
-: Of course, Your Honors.
Albano is distinguishable
for at least two reasons, Your Honors.
First of all, it's in a unique context.
Albano is in the context of marriage.
Marriage is a fundamental right.
It can't be different in different context.
Employment status is different.
It can be different in different contexts,
as this court has already recognized.
But in addition to being a unique context,
I think the real difference is that Albano
had a concrete purpose, a real public policy,
shall we define the marriage as between man and a woman?
What it didn't have, and it left for another day,
was a series of other changes to the law
or a series of obvious consequences to the law
that the court was going to have to deal with directly.
Here, what we have is not a concrete public policy.
We have an abstract public policy
redefining the relationship between these two entities.
But what we do have is a concrete list
of changes to the laws that the courts
and voters eventually will have to wrestle with.
So we haven't left it to another day,
and that's why Albano,
which, of course, addresses the relatedness issue
in only three paragraphs is different.
It had only a single concrete readily understood
public policy that the voters could vote yes or no on.
Here we don't.
We don't have a public policy
and we have a list of concrete-
-: But why isn't the public policy
that app drivers are not the employees
of the technology companies that match them up with rides?
-: Right, sure.
Of course, that's not what proponents state
that the public policy is.
They say it's redefining
and regulating the legal relationship
or the working relationship between these two entities.
So it's not precisely that, Your Honor.
But, also as this court has recognized in Camargo, again,
Justice Gants was concerned about folks being,
your average voter being confused.
Because it's difficult for a regular worker
to understand what the nuances
of being an employee actually are.
And certainly, it's difficult for them to understand
what the nuances of being an employee are in separate areas
of employment law, under the workers' compensation statutes,
under the unemployment insurance statutes.
And that, Your Honor, is why the break rooms
and lunch rooms of businesses across the Commonwealth
have notices in there to inform employees
of what their rights actually are.
But, Your Honor, I think-
-: One of those notices is employment discrimination in 151B.
-: Right. -: You don't address that,
but I'm gonna be asking some others,
but I don't understand how this works under 151B.
Are they taking themselves out
of the anti-discrimination laws or not?
-: Right.
Well, they certainly are explicitly
in version B, Your Honor.
-: Right. -: Version B corrects all laws.
And substitutes this definition
in all laws in the Commonwealth.
So, obviously that would affect 151B as well.
And of course, in the long versions,
they include a mandatory contractual term
that addresses or seeks to attempt to address-
-: 'Cause I have trouble keeping all these straight.
-: Sure. -: So how many
of these change, I understand there's a debate
whether they are employees
or whether they are independent contractors
under existing law.
But if they were employees,
they would be entitled to all the anti-discrimination
protections under Massachusetts law.
How many of these five change that?
-: At least four, Your Honor.
So at least three, Your Honor.
All of the long versions would change that.
-: And when they had that sentence,
"Not withstanding any general or special law or the contrary
and any rules or regulations,"
and then they go on to reference 150, 151A, but not 151B,
do we take that to mean that 151B
is still in effect for them or not?
-: Well, it's an interesting question, Your Honor,
because, of course, under 151B,
these protections are not available
to independent contractors, that we know.
-: But we have constitutional protections
against disability, discrimination and other things, right?
I'm confused to how the discrimination laws work here.
-: Right, so, potentially,
you could bring a lawsuit, Your Honor, on your own, right?
As a constitutional violation.
You could also bring, under the long versions,
you could bring a breach of contract claim, theoretically.
But what you wouldn't get
is an opportunity to proceed before the MCAD.
You wouldn't get an opportunity for the MCAD
to actually take up your case or to resolve your case
before you might go to court, Your Honor.
So, 151B is certainly in the mix
of the kinds of laws that are at stake here.
Speaking of the kinds of laws that are at stake here,
the complexity of this case,
I think can be best understood
by thinking about it in the reverse.
So, if we imagine that the Commonwealth
had never put an employment law on its books,
and a labor group came organized
and decided to put together a ballot question.
And what they were going to do was literally draft
all of the employment laws in the Commonwealth
that this petition addresses.
So, they're going to put in protections
under the wage and hour laws.
They're gonna do unemployment insurance,
they're gonna do workers' compensation,
they're going to do the anti-discrimination laws.
I am sure that colleagues from industry
would be here making virtually the same kinds of arguments
that I am making here today, that these are unrelated,
that they are too different for voters
to consider as part of a single ballot.
And they'd, of course, be right.
And this court has also addressed
when ballot question contains disparate parts,
but that feel like they're interconnected, right?
That's Gray.
So, Gray determined, ultimately-
-: But isn't this mostly like the marijuana case?
Jennifer: No, I don't think so.
-: Creating a new industry?
-: No, I don't think so, Your Honor.
Because in the marijuana case,
you had a clear public policy, shall we legalize marijuana?
That is something that is concrete,
that's easily understood
by the average voter in the voting booth.
Then you had a series of implementations.
Voters could get their arms around the public policy
without necessarily understanding
all of the vagaries of the tax scheme
or the regulatory scheme.
They could do that.
That's not the question here.
The question here is,
shall we define the relationship between these two parties?
And that simply begs the question,
it begs the question, how?
You can't answer can we do that, yes or no?
You have to ask how, and when you ask how,
that's when you get into all of these unrelated subjects.
So it's not like Hensley, it's much more like Gray.
It's much more like Gray and Henderson and Oberle's
because these ideas about work,
these ideas about employment law, might be interconnected.
You might think of them in the domain
of employment as the court and Gray put it.
But they're not similar enough
for the relatedness requirement.
In Gray it was what to teach, how to test,
and Anderson is what to do tax and how do you spend it.
And in Oberle's it's who do you hire
and how do you afford to pay for them?
Right?
So those ideas are all interconnected.
-: They're gonna stand up and argue
you're creating a scheme that defines
the benefits of gig workers.
I worry when we start talking about discrimination,
but at least I see the benefits.
I understand they're different laws,
but it's setting up a benefit system
for these people in total.
There is at least a relatedness to that, you know?
An employee has the following benefits,
workers' comp, unemployment insurance,
and they have pregnancy rights and other things.
Here they're saying these are the benefits you get
and it seems like a voter could get their arms
around at least that part of this.
There are other parts of this that I don't understand.
Also, there are five of these.
I have no idea how a voter sorts through five of these.
-: You're right, Your Honor,
this is the first time that's been a possibility.
But I want to quibble a little bit
with uninsurance being a benefit.
And I think that's a good example
to show why these actually are not related.
So what is unemployment insurance?
Unemployment insurance is a social program
run by the Commonwealth that provides benefits to workers.
And it has, you know, at least three underlying purposes.
Right?
So the underlying purposes are to stabilize the economy,
to provide an ability for these folks
to be employed while they, "to be employed",
to receive benefits while they are still working.
Forgive me here.
-: Which kind of insurance are you talking about here?
-: Unemployment insurance. -: Right.
So they don't receive unemployment
insurance while they're working.
-: Correct. -: They would receive
unemployment insurance if they were terminated
by their employer.
-: Correct. -: It's not just workers.
-: Exactly. -: It's employers.
-: Exactly right. -: Alright.
-: And so not only do these do different things,
do they have different underlying purposes,
but they also affect different relationships.
So the primary relationship with respect
to unemployment insurance, to your point, Wolohojian,
is that the primary relationship is with the Commonwealth.
So it's the Commonwealth that provides the benefits.
-: But the employer contributes to the scheme.
-: But not for the benefit of their individual employees.
-: Is that different from workers' comp?
Because workers' comp also sets up an insurance scheme
that, you know, why is that so different?
-: Well, it's different because it is a replacement
for the tort system, right?
In the workplace context.
So there you have, and, again,
it's a different purpose, right?
The idea was to relieve workers of the obligation
to have to prove negligence
and to give employers some sense of predictability
with respect to the costs involved
in any kind of work related injury.
-: And so for all of these various aspects,
what this petition is suggesting,
and I agree with Justice Kafker,
that five in and of itself is probably confusing,
but let's just assume there was one or two.
That what this petition's common purpose is to say,
we're not gonna do any of those employment laws, right?
We are a different system
for which the existing employment laws do not work
because of the way these individual drivers work,
how they choose their hours and what they wanna do.
And so for that gig economy of these drivers and couriers,
we are gonna set up, you know, a new chapter 159AA,
and that's what's gonna govern
this different kind of relationship.
Why isn't that a common purpose?
-: Because it involves unrelated aspects
of employment law, Your Honor.
It's a question at too high of a generality.
All of these ideas are connected only by work.
Now, could the proponents have come in
and potentially amended the independent contractor statute
alone under chapter 149 affecting 151?
Sure, they could have done that.
And that would have changed the employment relationship
between these parties in the broadest way
possible under Massachusetts law,
but that's not what they did.
They did that, they did the uninsurance laws,
they did the workers' comp laws,
they did the anti-discrimination laws.
-: What if the proposal just said,
"People who work in this industry for these types
of companies will for all purposes, in every context,
be deemed independent contractors, not employees," period.
How is it that you could say that the components
of that global proposal would not be related
because it affects so many different laws?
-: Right, so we're back to Albano,
and I would argue that in this instance,
you don't have a clear statement
of public policy for voters to hang on to.
So the petition you just wrote, Justice Wolohojian,
is not the one that was actually done.
So in this particular instance-
-: But I'm trying to understand your argument
that relatedness is to be determined
by looking at the number of laws that it might affect,
as opposed to the terms of the proposal itself.
-: Right, so this is the terms of the proposal itself,
so that's why it's different from Albano.
The proponents have actually said that what we wanna do
is change either all the laws in the Commonwealth
that touch on employment,
or these four specific areas of employment law.
So we have to wrestle with what's actually in the petition.
And the question is are they similar enough
for a voter to consider them all at once?
And the answer, we believe here is no.
-: I have an additional question, if I may?
Do you accept the representation
that only one of these proposals
will be presented to the voters?
-: Well, that's certainly
what proponents have said, Your Honor.
They're not required to do that,
but that is what they've said.
It does make this whole-
-: Do you have any reason to challenge the truth of that?
-: No, I have no reason to challenge the truth of that.
-: Do they have control of that decision, though?
I mean, if I'm one of those people
that signed one of those nine,
can I keep going out and trying to keep this alive?
Does the proponent control this?
Or is this the public controls it at this point,
once it's out there?
I don't know why they get to do this,
unless the proponent has absolute control over this.
I'm one of those people who signed one of those nine,
God knows how they sorted through that.
Jennifer: Right.
-: Don't I have the ability to keep my proposal alive,
at least if I'm one of the five?
Jennifer: Right, so-
-: Or do the sponsors control?
I just don't know the answer to that.
Jennifer: Yeah, the sponsors do control.
Kafker: They have the ability to turn it off?
-: Correct.
And the secretary will ask, eventually,
what they'd like to put on the ballot.
And that's how it'll be resolved.
-: Can you answer one other thing?
The legislative history, or whatever,
the constitutional history,
talks about this "joker" provision,
where a joker decides to put on five different petitions.
One involves suffrage,
that we're gonna have women's suffrage,
we're gonna have municipal women's suffrage
and we're gonna have another kind of suffrage.
And they're concerned that the confusion
that that would induce is you don't address that, right?
I think one of the amicus does.
Isn't that a problem here?
-: Well, I would agree that fundamentally
the framers of Article 48 were concerned
about voter confusion and that certainly goes
to voter confusion and what is the single break
on having multiple confusing ballot questions
before the people, and that is the relatedness
requirement of Article 48.
So, if what we're concerned about is sifting through
and making sure that these petitions do not contain
any jokers, that they are not framed in such a way
as to confuse voters, then Article 48
and the relatedness requirement should bar
its publication on the ballot.
-: I'm just trying to understand.
If there are five different petitions out there right now.
People signed different ones.
Jennifer: Right.
-: Probably unable to sort through the differences,
'cause we can't.
-: Not outside of a Wegmans, Your Honor.
-: So, but does it matter?
Wendlandt: Well, some of us can, but-
(all laughing)
-: Justice Wendlandt could sort through that,
but I'm trying to...
An average voter who sees the big picture,
but has a job and a family and doesn't spend hours
discerning, finding differences
between different initiative petitions.
Those are the people we're dealing with, right?
We're not dealing with, you know,
trained lawyers who have the time
to read through all these briefs and sort this out.
Jennifer: Correct.
-: Is there a danger of real confusion here, then?
Again, a voter sees the big picture,
but they can't discriminate
at this level of detail, can they?
-: No. -: Maybe we can ask
Attorney Heuer about that.
-: Okay, go ahead.
Jennifer: Very good, thank you, Your Honors.
-: Thank you.
Okay, Attorney Sterman.
-: Good morning, and may it please the court,
Anne Sterman for the Attorney General
and the Secretary of the Commonwealth.
Your Honors, each of the five versions
of the petition before you was appropriately certified
by the attorney general as meeting the related
subjects requirement of Article 48.
The classification only petitions,
what we've dubbed the classification only petitions
and what the opponents have dubbed the short versions,
ask the voters whether to specify
that app-based drivers are not employees
as that term is used
in various existing statutory provisions.
The classification plus benefits petitions,
what the opponents call the long versions,
ask voters whether to specify
that app-based drivers are not employees,
but should instead be entitled
to a particular suite of benefits.
Collectively, each petition has the effect
of expanding the current binary in which workers
are either an employee or an independent contractor,
to create and define, essentially,
a modified independent contractor status
that would apply to app-based drivers.
-: What is your understanding
of the anti-discrimination laws?
Do they still apply to these?
Is buried in this some change in discrimination laws,
'cause you don't address that at all.
But there are clearly, at least in three of these,
some kind of anti-discrimination change, right?
In the laws.
-: So I think there is, at least in one of them,
a change to the anti-discrimination law.
-: At least in two, right?
Two of them expressly have this,
we will not discriminate against drivers
and the remedy is not 151B,
but the company will decide whether it discriminated, right?
That's at least in two of them, right?
-: That is in two of the versions, yes.
-: And then there's a third one notwithstanding
any general laws to the contrary,
and then it has a list, but it leaves out 151B.
What's your understanding of...
Does that change?
Are those people subject to the discrimination laws?
Is there a change there?
-: So, I think one distinction that's important to parse
is the extent to which the anti-discrimination laws
apply to employers and employees.
And then there's of course a whole host of other contexts
in which our anti-discrimination laws apply.
This would affect,
for purposes of employer-employee relationship,
this particular employer and employee relationship,
which would be defined as something else.
-: All these people,
I don't know whether their employees or not now,
but none of these people would have the MCAD process 151B,
they're all taken out of 151B?
-: I think under version B, that's petition 2325,
that applies for the purposes of any Massachusetts
general or special law, that's correct.
I think it is debatable whether or not-
-: One of the one's is still alive.
I can't remember.
B is still alive?
-: B is still alive.
Yes, Your Honor.
I'll address only ones that are still alive
to minimize the confusion.
-: So if I understand your answer
to Justice Kafker's question,
at least version B would take
these companies outside of the definition
of employer within chapter 151B,
but it's not clear whether any
of the other four proposals do so?
-: That's right, Your Honor.
So I think if I may address the other four,
they essentially fall into two buckets
for this purpose, right?
There are two that are classification only,
but don't include 151B.
-: But they begin by saying notwithstanding
any general or special laws to the contrary,
but then it leaves out 151B.
So that means that they're covered by 151B,
even though they're not employees any longer?
-: I think it's not clear what that means-
-: Is that a problem? -: With respect to 151B.
And I think since we don't know for certain,
we don't know that it's reasonably clear
that that is an implication,
that that is a necessary consequence
of adopting any of these petitions.
I would say the same thing
about the two long form petitions,
or the classification plus benefits petitions
that do have their own anti-discrimination provision in it.
-: We generally don't have the person
who's accused of discrimination
decide whether they discriminated, right?
That's a change in the law.
-: That's a change in the law
that we don't know what the consequence would be, right?
If an app-based driver were then to litigate
whether or not their rights under chapter 151B
were entirely supplanted by this new provision in this law,
I think that would be a question
that would need to be resolved by a court.
-: Do these flaws just go to the merits
for a voter versus the constitutionality?
-: I think they all do, right?
So, whether or not and how exactly these proposed laws
would impact drivers under the anti-discrimination law
really only matters for purposes
of the Article 48 certification analysis
if it renders those proposed laws unrelated,
as the terms used.
-: I'm sorry to interrupt.
But how do we figure out...
Since you don't know and it's not clear
from the petitions whether 151B is implicated,
doesn't that go to the heart of Article 48
in preventing confusion?
Because voters won't know.
-: So, Article 48, you are absolutely correct.
The framers of Article 48 were concerned
about voter confusion.
But there is not in Article 48,
a general provision that says the AG
can refuse to certify any petition
that might cause voter confusion.
Instead, the framers chose to approach
that voter confusion problem through specific tools,
the relatedness test, right?
So there may be things that one can conceive of
that would cause voter confusion
that were not among the things the framers conceived of
and, therefore, not covered.
-: Which is why you don't address the five separate questions
other than to say our job is yay or nay per question.
-: That's right, Your Honor.
-: It might be our job.
(all laughing)
-: I don't see anything in Article 48 as it is framed
that precludes these proponents
from doing what they've done.
That's not the same as asking
whether or not what they've done or may continue to do
might result in voter confusion, right?
Article 48 doesn't say the AG can't certify
and the court can't bless any proposed law
that may cause voter confusion.
-: I understand that when I deal with UI,
workers' comp, salary, but isn't discrimination
a whole separate, it's different.
It isn't that different
from whether your benefit structure, you know,
we have a broader prohibition against discrimination
than in the employment laws.
Does that take this out of...
I see the complexity of saying
that it's unrelated, UI, workers' comp,
but once you start adding in things
like you're not subject to the discrimination laws,
doesn't that raise a different set of issues?
How is that related?
-: So I think it's related
because it's not actually saying
you're not subject to the anti-discrimination laws.
It's saying you're not subject to a particular aspect
of the anti-discrimination law, right?
That arises from and when you have an employer-employee
relationship with a particular entity.
By redefining-
-: Can I ask you another question?
I just don't know the answer.
When you're providing transportation to the public,
I understand they don't think they're drive,
they're digital dispatchers or whatever,
but do the anti-discrimination laws preclude,
I know, for example, restaurants can't discriminate.
I don't think bus companies can discriminate, right?
Against the public.
How does it work when you're an independent contractor?
-: And I don't know the answer
to that either in this context,
but I think that itself is instructive, right?
The answer to how this would play out
in the context of this particular industry
under any of these five proposed laws
is not clear from the face of the proposed laws.
And in any event, even if it were clear,
that doesn't render it unrelated
because it still arises from the relationship
between the app-based driver and the technology company.
Whether that person is an employee of the company,
an independent contractor,
or the modified type of independent contractor
that is established under these five proposed laws.
It is still related.
-: Sorry, can I turn your attention
to the multiplicity of the proposals?
Anne: Yes.
-: Do you have any reason to doubt the representation
that only one of these will be presented to the voters?
-: I don't.
The petitioners have represented that to the secretary,
to this court and to the legislature.
-: Is it your understanding,
or the Attorney General's Office understanding,
that the petitioners have the ability
to abandon four of the proposals
at this stage of the process?
-: They do still at this stage of the process.
So the place where we are in the process
is that the second round of signature gathering is underway.
That occurs between the first Wednesday in May
and the first Wednesday in July.
So, the petitioners could, as we speak, be making decisions
about which of these five versions
they're going to collect that second set of signatures on.
And even once they collect signatures,
they can make a decision about which one
to turn in the signatures for.
Now, my understanding is that once they submit signatures
for certification to the Secretary of State's Office,
right, then we're locked in as to what goes on the ballot.
[Wolohojian] So, when is that date?
-: That would not be until the first Wednesday in July.
-: So if we don't issue our decision
by the first Wednesday in July, we will wreak havoc.
Is that right?
-: I mean define "wreak havoc",
but probably result in these petitioners
submitting all five to the secretary.
I think that's probably the foreseeable consequence.
-: Okay, thank you. -: Thank you.
-: Okay, Attorney Heuer.
-: Good morning, Chief Justice Budd, may it please the court,
Tad Heur on behalf of the interveners.
With me is Seth Reiner.
I'd like to make three points.
I'm not sure you'll let me get through them,
but I'd like to try.
The first of which is that while
each of these five petitions has a different scope,
and they do, each does establish a narrow common purpose
and the same one.
And that's defining the relationship
between the companies and the drivers
as not employer-employee.
For some purposes it's for all the general laws,
for some it's more narrow.
Second, Albano and Abdel,
and our other precedents, are very clear.
Article 48 allows a petition
to amend and affect other statutes and multiple statutes,
even those passed at different times for different purposes.
As long as the petition's provisions,
not the other laws provisions, are related.
And that's what we have here
because we have a common purpose
of defining that relationship as not employer-employee.
And third, each petition here took seriously
and intentionally reflects this court's detailed guidance
in El Koussa 1, from two years ago,
as to what complies with Article 48.
So on that first point as to the narrow common purpose,
the so-called Carney question from Carney, which says,
"What's the question that voters
will be asked to answer yes or no," is coherent and simple.
It is, should drivers be classified as not employees
if they meet an objective for part test?
And as to the longer version,
which provides certain benefits,
Clark, from just two years ago was very clear, quote,
"Initiative petitions designed to account for consequences
of their primary objectives pass the relatedness test."
And the benefits provisions here do exactly that.
-: Can I have a- -: Go ahead.
Sorry, go ahead. -: No, sorry.
I'm sorry to take you off this topic,
but your time is limited.
Tad: Of course.
-: I have a hypothetical for you
and then a couple of questions that come from it.
Well, the first is a question that's not a hypothetical.
I take at face value the representation that you've made
to the court that only one of these provisions
will be submitted to the voters, ultimately?
-: That's correct, Your Honor.
I'm standing before the court.
Rule 3.3 requires me to have candor to the tribunal
and I hold the Massachusetts bar card.
-: Okay. -: That is true.
-: And we have ways, I think, of enforcing that if we wish.
So let's assume that we accept that,
and so that there is never going
to be a need to go into the question
of whether presenting a multiplicity of proposals
to the voters in and of itself
can cause some kind of Article 48 problem.
Whether it's confusion or creates an ambiguity
as to relatedness,
let's just assume we can set that to the side.
Here's my hypothetical.
Assume that you only had one proposal and you had gotten it
through the certification process
at the Attorney General's Office,
and an appeal had been taken, it's pending before the court,
but you've already, as a practical matter,
decided that you're not going to present it to the voters.
Wouldn't that question then be moot for us?
And if so, why aren't four fifths of this case not moot,
although, we haven't been told which four fifths are?
And I'll just put my cards on the table,
I don't think that's a fair situation
for the court to be in.
-: So, Your Honor, we submitted as the petitioners,
as the plaintiff suggested, nine petitions.
Only five of them went to the secretary,
the attorney general certified all nine,
five went to the secretary.
We collected signatures on all five of those.
There is still, as the attorney general noted,
a second signature collection phase.
So even if we wished only one of these,
let's say we wished it were version B,
we don't get to make that choice.
The voters still have to go out
and we have to collect 12,000 more signatures
to put that question on the ballot.
It's very possible that the five petitions
that are before the court,
which we all believe meet Article 48,
that voters only sign the further 12,000 signatures
on two of them.
For the court to decide that only-
-: Why is that our problem?
Our problem is not to decide moot issues.
I guess- -: But it's not-
-: Why is it that we...
Would you be willing to identify in order of priority-
-: Of course. -: Which ones you would
like to take to the voters or for signature?
-: Yes. -: Because then that
prevents us, that would permit us
not to engage in moot questions.
Do you understand what I'm saying?
-: Absolutely. -: Okay.
-: I'm happy to do that. -: So can you tell
us which ones now?
-: Certainly. -: Okay.
-: So there are five versions
that are currently before the court.
Those are B, F, G, H, and I.
-: So if we were to say that B meets the relatedness test,
we need not go further?
-: No, so those are the five that are available.
Kafker: He hasn't given you the order yet.
-: Oh, I thought your order.
Okay. -: I'm setting the stage
for what we've got.
-: Okay. -: In that order,
we would suggest that starting with B is most appropriate
because it is the broadest of them, it governs all laws,
not just these four sections,
and it has the benefits provision.
If the broadest provision that deals with all the laws
plus benefits is acceptable under Article 48,
so too are the remaining four.
We would suggest then to go in decreasing order.
So starting with the three long forms.
So, that would be starting with B and then G and then H,
switching to the shorter forms, F and then I.
-: So B, G- -: We believe that
would narrow that funnel.
-: B, G, H, F, I.
If we decide B in affirming
the AG's certification determination,
we need to go no further?
-: I think we would technically say
the court needs to go no further
as to the Article 48 question,
because all five of them would be certifiable
and the attorney general appropriately certified,
which is the question before the court.
Whether the attorney general
appropriately certified those questions.
-: And I think-
-: But you're not saying if we were to approve B,
you would terminate the process on G, H, F and I?
-: We could not because we don't know if the voters
will actually sign up to B, right?
It's very possible the voters say, "We don't like B,
we're not gonna give you the last 12,000 signatures."
It can't go to the secretary,
it cannot appear in the ballot.
That's Article 48 right there.
We would need to have an option to move to the next one,
even if the court and we agreed with that to say,
"Right, we would then move to G," and the voters say,
"Yes, we think 12,000 are appropriate,"
we get 12,000 signatures on G.
-: So you want our decision on all of these,
'cause you don't know which one's gonna pass?
-: We don't know which one will collect
the appropriate requisite number of signatures required.
-: But isn't the case in every one of these types of cases?
-: I'm sorry, I'm not sure I-
-: Every article 48 case here-
-: Yeah. -: The court is,
presumably deciding the case
before anyone knows whether
they're gonna be the 12,000 signatures collected.
-: That's true. -: So why should
that be a special consideration here?
-: Because the court
always decides each petition individually.
The plaintiffs have combined
the five petitions into one complaint.
But the question under Article 48
is does each individual question,
just as you're deciding this question
separate from the one that will be argued after me
and the one that you'll hear on Wednesday,
you will decide each of those,
not necessarily you decided this question,
therefore those don't need to be reached.
The fact there are variations-
-: But if we agree with you.
If we say that B is fine, we wouldn't have to go any further
because your representation is that if B is fine,
they're all fine.
-: That would be appropriate.
If the court says B is fine
and therefore we need not go further
because all five are fine, that's appropriate.
I took Justice Wolohojian's question to be,
if you say B is appropriate, we need to not go further
and decide on the remaining four.
-: But isn't B one of the provisions
that has this special anti-discrimination process in it?
B has this provision says, again, correct me if I'm wrong,
'cause, again, I have trouble keeping them straight.
But I thought B says we've added this special provision
that these people cannot be discriminated against,
but that doesn't mean you do it on 151B,
you appeal to the company
and they decide whether they discriminated, right?
B has that provision in it?
-: B does, but I wanna make a distinction here.
-: Go ahead. -: There's a difference
between 151B and where it falls
in which statutes are affected
and the provision that you just identified,
which is in the driver contract.
-: Can you help me understand, again,
if all of these people are employees,
they would all be subject to 151B
and the anti-discrimination laws?
Tad: Correct.
-: If they're independent contractors,
even the AG wasn't sure exactly
whether they're subject to anti-discrimination laws.
But walk me through the five provisions quickly.
My colleagues are gonna kill me,
but I just wanna understand
what the anti-discrimination effects
of each one of these are to you.
-: I can do it in a more-
-: Go ahead. -: Rapid manner.
Because I think it's possible to do it in two.
There's version B, version B is the long version
that affects all Massachusetts statutes, right?
One of the Massachusetts statutes is of course 151B.
And this is the same as we saw in Albano.
Albano says if you affect numerous different statutes
passed at different times for different purposes,
as long as you have a common purpose in your petition,
you're related and you meet Article 48.
So our position is, yes,
that would affect in the situation
where we have not an employee-employer relationship,
a statute that says it has a relation
to an employer or an employee,
151B is affected as an Albano.
For the other four, those are 149,
151, 151A, and 152.
152B is not mentioned.
-: Do G, H, F and I wipe out 151B protections or do they not?
-: I don't believe they do, because they are not referenced.
In statutory interpretation we look at what we say,
and what we say is notwithstanding
the purpose of any general or special law or rule
or regulation promulgated thereunder,
for the purposes of 149, 151, 151A, and 152B,
there will be no employee-employer relationship,
excuse me, 152, 151B is not referenced.
It's notwithstanding any other law
for the purposes of those four statutes.
-: But the beginning of the statute
says you're not an employee.
-: So- -: Correct.
-: So when I combine you're not an employee
with the fact that notwithstanding, how does that work?
You're not an employee, so are you outside of 151B?
-: You are not an employee for the purposes
of 149, 151, 151A and 152.
-: Okay. -: You are to the extent
that is possible to be an employee
for the purposes of 151B and that matters,
then, yes, it would apply.
I think the other thing we'd note
is that in El Koussa, the court instructed us,
and we took it very seriously,
this notion of not directing the court
as to what a future interpretation or outcome is.
So I'm slightly hesitant to say definitively what it is.
Budd: No, you don't have to tell us.
-: Right, but that's because of that reason.