-: SJC 13560 Stephen Clark et al
versus Andrea J. Campbell, Attorney General et al.
-: Great, okay, attorney Daley.
-: Good morning your Honors.
May it please the court, Ed Daley and Elisa Venpoppy
on behalf of Mr. Clark, who's joining us today in court
and other interested voters,
registered voters in Massachusetts
who oppose the certification of ballot initiative 2312.
And I know this court has heard
at least two different ballot initiative cases this week
and is well versed in the latest analysis,
so I'll just get right into it.
The critical question for the relatedness issue
is whether the petition offers a unified statement
of public policy to the voters in Massachusetts,
such that those voters can either vote yes or no.
It avoids the untenable situation
where a voter is presented with two different policy issues,
but only one vote to decide both
and that's exactly what we have here today,
a petition that presents two distinct statements
of public policy.
The petition's titled, "An act
to require the full minimum wage for tip workers
with tips on top."
And it advertises itself as a petition
about the minimum wage.
-: Do you take the title to be the statement
of the unified purpose or policy?
-: I think because there's no other statement
of unified purpose or public policy,
the title is where to look-
-: Have we ever said how it is that we're to determine
what the purpose or policy is?
-: Well, I think in several cases,
including the opinions of the justices case in 1996,
the court looks to first the title of the petition,
'cause that's what the voter's gonna be looking at.
That's what's in front of them,
that's what they consider in the voting booth.
-: And is that the end of the inquiry
or do we look further within the text of the initiative
to determine what the policy is?
-: Well, the court can certainly look further
into the text of the initiative
and oftentimes there's statements of purpose
in these initiatives which tell the voters
the purpose of the initiative before them.
There is no statement of purpose here.
So the voter is left with what's in front of them,
which is the title
and that is an act to require the full minimum wage
for tips workers with tips on top.
And the issue here
is that although the petition advertises itself
as a question about full minimum wage,
it's really presenting two different issues
on the menu for voters.
And that first issue, of course is about minimum wage,
but the second is about tip pooling.
Concerning that first issue-
-: They're really substantively interrelated though.
I mean, I understand you can tease them apart
to a certain extent,
so you've got a restaurant operating
and the the people dealing with the public
are getting paid tips
and the people doing the dishes are not,
but the success of the restaurant is interdependent.
It just seems to me these are awfully closely related
when we look at the different cases we've decided.
The only case that's even remotely close to it
may be the education case,
but think you're really swimming upstream here.
Tell me why this close interrelationship is really separate.
-: Well, 'cause there's actually
not really a close interrelationship at all.
-: Well, but the restaurant's, profits are an operation,
are all caught up in how you pay the people who work there.
-: Your Honor, this petition
wouldn't just affect restaurants.
This is any employer that has tipped workers
or any service employers, this could be a hotel.
So the workers of a hotel would be required to remit tips
back to anybody from the landscaping crew,
to the people who maintain the pool.
So this isn't just an issue
about tips and wages in restaurants,
but even if we were just to look
at the issue of tips and wages,
those are two separate things
with two separate relationships.
-: Doesn't this deal with the consequences
of phasing out the tips scale?
Because as we elevate the pay and get the servers,
in one example, to a minimum wage,
we have to deal
with what happens to the tips thereafter, correct?
-: But your Honor, this isn't a consequence mitigation case,
because these two provisions
or these two questions for voters
can exist completely independently.
So this isn't the type of case where it's an enabling case
or a consequence medication case, there's no overall scheme.
And I just wanna focus on the purposes-
-: There are two existing statutes, right?
Ed: Correct.
-: The existing statutes allow you
to pay less than the minimum wage,
but they also prevent you from passing the tips
onto the backs, I'm describing them improperly,
in the hypothetical of the restaurant,
the people who are doing the dishes
or otherwise in the back room.
So those statutes are interrelated
and now this new statute will reallocate those rights.
So they're dealing with the existing statutory law too.
-: Well, so those statutes
are actually not so much interrelated,
but they are separate
because tips and wages are separate issues
and they're separate relationships at play here
where the relationship between employer and employee,
that's the wage relationship,
what an employer must pay an employee.
And that's the relationship that's affected
and the purpose of sections one through five,
the minimum wage statute.
So the fact that the minimum wage statute,
the fair minimum wage statute
says, "Hey, don't look here."
If we're looking at tip pooling,
that's in a different statute, doesn't bring those together,
it actually separates the two statutes
because they reflect different relationships
and different purposes.
And that's clear from looking at the operation
of sections one through five,
that is asking voters, "Do you favor
increasing the minimum wage
for a certain category of workers?"
That's its own question.
But of course those workers are already guaranteed
to receive the full minimum wage.
So the question is really do you favor
eliminating the tip credit,
what an employer is required to pay
in terms of a minimum wage, irrespective of tips received?
And that's a separate economic relationship,
as I just mentioned, between the employer and the employee.
So when you look to this second proposal, the second issue,
and it's not as well advertised to the voters,
it's not in the title of the petition.
-: [Justice Wolohojian] Can I stop you there?
-: Of course.
-: If the title of the petition
and the name of the proposed act
had said an act to require the full minimum wage
for tipped workers and to permit employers
to create a tip pool
that would be shared among tipped workers
and non tipped workers,
would then all the provisions be related?
Ed: They would not.
-: Why?
-: That would address the issue
of whether this petition is misleading,
but it does not go to the relatedness of the petition
because the two purposes are separate,
they're mutually different.
-: So for me at least, it'll be helpful to then understand,
because I thought you said that the purpose can be gleaned
by looking at the stated purpose or title of the act.
But now it seems to me you're saying
that the purpose is to be determined
by looking at the individual provisions.
-: Well the title of the act is it informs the voter
what they're voting on.
And this presents the voter with a question
about minimum wage.
-: Yeah, but how do we determine relatedness
for article 48 purposes?
It's not based on the title of the act, is it?
-: It's not just based on the title of the act.
-: It's about whether or not there's a common purpose
as to which each of the component parts
can be said to be germane,
isn't that the test that we've articulated?
-: That's correct
and there is no common purpose here because-
-: Because you're saying not allowing the employers
to take the tip credit is completely divorced from,
and independent of, the idea of tip pooling.
Is that your position?
-: Well, tip pooling,
section six could survive and exist by itself
if sections one through five never existed,
it's totally independent, it does not depend-
-: Where in our case law do we have that test
where we say if a provision can exist
totally independent from, albeit overlapping with,
the other one that it violates article 48?
-: I think that's the key of the mutual dependence test,
is that if both of these provisions-
-: Where is that in our jurisprudence?
Where is that mutual dependence test,
separate and apart from the relatedness test
articulated in our jurisprudence?
-: I think that's in Anderson,
footnote eight addresses that,
the fact that you can have a certain element that's common
or you can have a certain connection
that does not satisfy relatedness.
Because if each of the provisions can survive on their own
and function on their own
and are not dependent on each other,
that presents and that shows the court
that these are truly two different issues
that are being presented to the voters.
-: Well then, let's look at the language of section six,
because the first clause of it
has sort of a dependency relationship
with the other portions.
It says, "Provided that an employer is paying
all employees a wage
that is not less than the full minimum wages
provided in section one of chapter 151."
Why is that not enough
to make this not a standalone, independent provision?
Why doesn't that create the dependency you're talking about?
-: Sure, because if sections one through five did not exist
in this petition, if you split these two issues
into their own separate petitions,
section six wouldn't have to be amended at all
to be presented to a voter,
That's why it's totally independent.
And so just because there's some abstract or connection
or common element-
-: Well wait, and then I just hear,
I wanna make sure I understand what you're arguing.
That sounds to me
as though the objection is that there are two things joined
in one proposal and that you're requiring
that simply regardless of their logical connection,
they need to be in separate initiative petitions.
Is that what you're saying?
-: Well, I'm saying that the problem
with this particular initiative petition
is that it's joining two dissimilar subjects,
two different questions for Massachusetts voters
into one petition, it's the issue of hitching or log rolling
where there's one set of voters
that may love sections one through five.
Think about the restaurant workers
at the front of the house,
they may say, great,
this sounds like I'm gonna get increased minimum wage.
That's wonderful.
But then you look at section six
and that says something completely different
that says, we're gonna be allowing your employer
to take those tips away
and actually, and wages as well, if you look at the text,
which I actually missed the first 100 times
I read this petition,
but on the 101st it says the employer could be permitted
to remit any wage tip or service charge
from that front of the house worker.
And so that worker may say, I don't want to do that,
I don't want my tips for the hard work
I'm doing for the customers to go to someone else.
Whether it's, and maybe the dishwashers,
but it could also be the events crew
at the restaurant, or it could be the catering crew
or in-house counsel for a restaurant, who knows?
It's just, there's no limit to the amount of, I'm sorry,
there's a limited limit to the amount of employees
that those tips could go to
and that's only the employer or a manager.
And so that presents the waitress, the waiter,
the housekeeping staff at a hotel
with two very different options
and if you take it the other way around
and you look at the employer who's looking at this question,
these questions, that says maybe they hate one through five,
they say that's gonna raise wage costs,
that doesn't make any sense for the business.
But then they look at section six
and they may say, well tip pooling and sharing,
that doesn't sound so bad.
And the reason that those different voters
could look so differently at these different issues
is 'cause they are separate questions
with separate purposes
and that's exactly what the relatedness requirement
seeks to prevent the voters from having to choose.
They have one vote,
but they're being asked to vote on two separate things.
Section six is also remarkable, because it would create
a new economic relationship in Massachusetts,
instead of just amending the minimum wage statute,
this creates a new economic relationship
where employers are permitted to take the tips
from a tipped worker
and subsidize the back of the house's wages
and that's something that's remarkable,
'cause it does not exist under Massachusetts law.
It is now saying that you are allowed to take tips,
wages, remit them to a tip pool-
-: Both provisions present a new economic relationship.
-: So I'd say that sections one through five
amend a current economic relationship.
-: Well, if you are not getting minimum wage, now you are,
the standard minimum wage,
now you're getting the standard minimum wage,
that's certainly a new economic relationship, isn't it?
-: I disagree, your Honor.
I think that adjusts the current economic relationship
and that relationship is between wage payer, the employer-
-: So you're quibbling over adjusts vs new?
-: No, because there's never a situation-
-: How about changed?
-: Changed, it's amended.
So sections one through five is an act of amendment,
whereas section six would be an act of creation.
Right now there's no situation and it's prohibited
to require that tips and wages from the front of the house
be taken away from those workers and then used to subsidize
the back of the house's wages.
-: Because it's an amendment to a prohibition,
it's a whole new economic relationship.
-: Here it certainly is,
because right now there is no situation
where a tipped worker's tips can be taken away from them.
And it's important,
this is an issue of why the petition itself is misleading
to voters is because the text of the petition,
the title is promising something
that section six is essentially removing from them.
This is the issue of the robot on the river,
it's not going down to the same direction.
There's two crews of rowers
rowing in opposite directions here.
It's saying do you want to have more money in your pocket,
higher wages for a certain class of workers?
But then this other question
that says we're actually gonna do the exact opposite.
-: Does it matter that section six is discretionary?
-: It does matter for the relatedness standpoint,
because it actually demonstrates
why it's a standalone independent question for voters.
It can exist without the requirement,
or without the existence, of sections one through five.
-: But since it doesn't require
the creation of a separate tip pool that would be shared,
then your argument that the title is misleading,
it might be, if a particular employer decided
to create a separate tip pool,
but it may not be if a particular employer didn't.
So why doesn't that affect your argument
that the title is misleading?
-: Because the title still doesn't identify for the voter.
Even the diligent voter who reads this
and reads the summary,
it doesn't identify the implications of section six.
It doesn't say that even though we're promising you
the full minimum wage with tips on top,
section six says actually if your employer decides to
and forego the tip credit,
they can actually take those tips on top away.
And actually, and according to section six,
maybe some wages too.
-: The summary includes section, includes the last section.
If you read the summary,
it indicates that this sharing of tips is possible, right?
-: It suggests that the sharing of tips is possible,
but it doesn't fully inform the voter
about what the implications of that sharing of tips are
and even if it did,
it still represents a separate policy consideration
for the voters.
And this is why we haven't specifically challenged
the summary because it's a relatively clear
and straightforward summary of what's being presented.
The problem is, is that what's being presented
are two separate issues for the voters to decide,
two separate questions with only one vote
and that's exactly
what the relatedness requirement prohibits.
-: Isn't it just like the marijuana?
I mean you could have had medical marijuana alone,
but you're legalizing marijuana.
Those are people who needed the medical marijuana,
may have voted one way
and been opposed to legalizing marijuana in another.
But we still found it related,
because the voters could understand
the overall policy decision.
Here, can't the voters understand the policy decision?
We're changing the tips law,
we're gonna require minimum wage,
but we're gonna pool the things.
Your average Joe going to the poll
can understand that, can't they?
-: Oh, I certainly don't. And the first time I read it,
I didn't quite understand that.
-: You're quite smart Mr. Daley, you understand that.
-: Well, I didn't understand
and the purpose that's been articulated
in the AG'S brief
is that there's this two-tier wage structure
and the purpose is to go after and dismantle
that two-tier wage structure.
I don't see anything about a two-tier wage structure
in the petition, but even if that were the case
and you were to accept that purpose
that only furthers the provisions one through five,
'cause that's what gets rid of the two tier wage structure.
It still has nothing to do with provision six.
And again, because these are two separate questions
or at least two separate questions, posed to the voters
that only have one vote on the matter,
it should not be certified and put on the ballot for 2024.
-: [Justice Wolohojian] Okay, thank you.
-: Rest of my briefs. Thank you.
-: Okay, Attorney Fischer-Groban.
-: Good morning your Honors
and may it please the court, Phoebe Fischer-Groban,
Assistant Attorney General on behalf of the Attorney General
and the Secretary of the Commonwealth.
The Attorney General properly certified this petition
under Article 48
because it makes two closely connected changes
to how workers in tipped industries are paid for their work,
their hourly cash wage and their tips.
And in response to some questions to appellant's counsel,
the Massachusetts Teacher's Association case
says that what this court does
in ascertaining whether there's a common purpose
is it looks as what the provisions
of the initiative petition or the proposed law would do
and determines whether there's a reasonable relationship
between those provisions.
Here, there's a reasonable relationship
between these provisions.
They govern the two core components
of what employees in the same business make,
their hourly cash wage and whether it's the minimum wage
or a sub minimum wage
and then whether they get a share of tips
on top of what their employer pays them
and this law would allow tip pools to be administered
between front of house and back of house workers.
-: I'm sorry to interrupt.
-: So what I understand you to have just said
is that to determine whether there's a common purpose,
you look at the entirety of the provisions
of the initiative and from that you make this evaluation.
You don't just look at, for example, the title
or perhaps the stated purpose
of the initiative if it has a stated purpose?
-: That's absolutely right
and that's what Massachusetts Teachers Association said.
And also when the voters go to the polls,
they'll have the title, but they'll also have the summary
that explains to them what this proposed law might do
to see if they agree with it.
And they'll also have the yes or no statement
that comes alongside the proposed law
that tells them again, what this petition will do,
not simply the title.
-: So is the inquiry though different
if the question is voter confusion?
In that case, and not relatedness, but voter confusion,
which perhaps may be a subset of relatedness or something,
but whatever, because in that case,
does how the act presents itself, in other words,
through its title or through its stated purpose?
Is that sort of a different inquiry
or is it the same, that you would look at all the provisions
to see if the voters would be confused?
-: In the voter confusion inquiry.
I similarly think you'd look at all of the provisions
and see if they're reasonably related to one another.
-: It does, Massachusetts teachers say that as well.
-: I'm not certain if that case says that specifically,
but I do know that the framers of this, of article 48,
the purpose of the relatedness requirement
is voter confusion,
that was kind of the concern that the framers had
and so they developed the relatedness requirement
as kind of a way of saying, well,
if the provisions of a proposal hang together
and they're related
and they bear reasonable relationship to one another
and they're unified by a common purpose,
that's the tool we use to figure out
whether voters will be confused or not.
-: So then, if I understand that framework correctly,
then it's not that we would disregard the title,
it's that it would be put in the mix
of the entirety of the proposal
to see if it somehow is enough to cause voter confusion
or whether in the entirety
we would say no voters are not confused?
-: Yes, that's right, your Honor.
And here, I don't even think
that that's really necessary,
because here we have a relatively straightforward
proposed law that does two things
and we don't have a single subjects requirement
here in Massachusetts,
that is petitioners don't have to kind of submit subjects
to the voter's piecemeal every two years.
-: We don't have a single subject,
but it's not just voter confusion we're focused on,
we want them to have a unified policy to vote on.
We don't want them to have to take a vote
that's internally inconsistent with each other.
We don't want them to have to choose but to vote once,
'cause they, unlike a legislature,
they can't amend and get rid of things.
We wanna make sure that it's a coherent vote.
It's not just confusion, that's a separate part of it.
-: That's true, your Honor.
And here there is a unified statement of public policy,
which is allowing all employees in tipped industries
to be paid the state minimum wage plus a share of tips.
It removes the two statutes
or it modifies or changes the two statutes
that currently prevent that from happening.
It eliminates those two barriers.
-: There's the fact here,
so both the bill, the initiative and the summary,
five, six of it's devoted to tips,
and the last provision in the bill
and the last provision in the summary deal
with the sharing of the tips.
-: I think the whole proposed law is about tips.
It's about what your employer can do with your tips.
-: Right, but their focus
is that the second decision's an important one,
but it only appears in one section in the last sentence,
that it's somehow getting lost maybe.
Say something important doesn't come out, does that matter?
I mean, I take it your answer here is,
it is in the summary, one sentence in the summary,
and it's the sixth provision they read,
so they do notice it.
But I don't know, I worry that when you bury something new
in one section and it's not in the summary,
that might be a problem, right?
-: Well, if it weren't in the summary,
that could potentially pose a problem.
But it is here.
This is a relatively straightforward law,
it's a short law.
It kind of combines these two subjects,
which of course it permissibly can do
under article 48 and it's right there in the summary.
So this proposed law doesn't present a situation
where an important provision is either ambiguous
or difficult to understand or buried somewhere
in a really long law, that's not this proposed law.
And here, this is easier for voters to understand
and to vote yes or no on.
Yes, I want all employees in tipped businesses
to be paid the state minimum wage plus have the chance
to get a share of tips or no, I don't want that.
-: So I mean the amendment,
I've just glancingly gone through chapter 149,
but do you agree that the section six proposed amendment
to section 152 A of chapter 149
affects all tipped employees?
In other words, not just restaurant workers,
service employees of whatever sort,
your hairdresser, your Uber driver?
-: Well, without weighing into the Uber driver question-
-: I just wanna understand, you agree with this statement
that the amendment to chapter 149,
section 152 A of chapter 149
applies beyond restaurant workers?
-: Yes, that's absolutely right and currently it does too-
-: Yes, that's what I saw too.
So this amendment goes beyond the restaurant industry.
-: When I look at section six, actually,
how it's drafted of the proposed law,
and this is on page 46 of the addendum
to our brief as well as in other places,
section six provides that,
"Provided an employer is paying all employees a wage
that's not less than the full minimum wage,
they may require wait staff, employees, service employees
or service bartenders,"
so those are the categories
of employees it would apply to,
"Participate in tip pool
through which the tips are then distributed to employees
that are not those employees."
-: So service employees, as I read,
as defined in chapter 149,
include many other industries beyond restaurant workers.
So are we saying the same thing
that this proposed amendment
extends beyond the restaurant industry?
-: Yes, when I look at these two laws together,
I see that they both use
the wait staff, employee service employee
or service bartender language.
-: They do, service employees,
I think includes hairdressers,
anyone else you would provide a tip to,
which includes cab drivers, Uber drivers,
all sorts of people.
So does this matter?
I'm not sure it matters,
but it does seem to me to perhaps be beyond,
well, do you think that's fairly reflected in the summary?
-: Yes, I think it is
and I'm happy to take a look at the summary,
but I'll also note here though,
that they have not challenged the summary here.
I do not take them to be challenging the summary.
-: No, they said they're not.
-: Exactly, and so to me,
I don't think that this poses a problem.
I think we're talking about service employee industries,
the most common a voter may understand
is the restaurant industry,
but we are talking about other industries
where employees regularly, customarily receive tips.
But I don't think that that changes
the article 48 analysis here.
Just as similarly, the tip pool prohibition applies
more broadly than the restaurant industry,
the removing of that prohibition
will also apply more broadly
than the restaurant industry.
But that doesn't alter that the tip pooling provision
and the tip credit provisions are closely connected here.
And I'll point even that the Department of Labor
obviously regulates these same issues
and their regulation related to tip pooling
does exactly what this law would do,
which is to say, it says, "If you're taking a tip credit,
you can't have a tip pool with back of house workers.
Employers that do not take a tip credit
can have a tip pool that includes back of house workers."
So in the Department of Labor's regulation,
these are closely connected concepts
and they are in this proposed law as well.
I'll make one final point,
but of course I'm happy to answer other questions,
which is that the tip pooling provision
could also be looked at
as addressing a reasonable foreseeable consequence
of the tip credit provision and it falls into the cases
like Oberlee's coal pack and Wiener,
where we have the tip credit provision removes
the key justification for limiting the tip pool
to front of house workers
and so now, once everybody's making the same minimum wage
and being paid that directly by their employer,
it makes sense to permit employers then
not to restrict the tip pool
so that the back of house workers
can participate as well.