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SJC 13560 Stephen Clark et al
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versus Andrea J. Campbell, Attorney General et al.
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Great, okay, attorney Daley.
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Good morning your Honors.
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May it please the court, Ed Daley and Elisa Venpoppy
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on behalf of Mr. Clark, who's joining us today in court
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and other interested voters,
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registered voters in Massachusetts
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who oppose the certification of ballot initiative 2312.
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And I know this court has heard
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at least two different ballot initiative cases this week
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and is well versed in the latest analysis,
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so I'll just get right into it.
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The critical question for the relatedness issue
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is whether the petition offers a unified statement
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of public policy to the voters in Massachusetts,
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such that those voters can either vote yes or no.
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It avoids the untenable situation
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where a voter is presented with two different policy issues,
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but only one vote to decide both
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and that's exactly what we have here today,
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a petition that presents two distinct statements
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of public policy.
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The petition's titled, "An act
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to require the full minimum wage for tip workers
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with tips on top."
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And it advertises itself as a petition
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about the minimum wage.
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Do you take the title to be the statement
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of the unified purpose or policy?
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I think because there's no other statement
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of unified purpose or public policy,
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the title is where to look-
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Have we ever said how it is that we're to determine
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what the purpose or policy is?
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Well, I think in several cases,
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including the opinions of the justices case in 1996,
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the court looks to first the title of the petition,
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'cause that's what the voter's gonna be looking at.
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That's what's in front of them,
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that's what they consider in the voting booth.
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And is that the end of the inquiry
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or do we look further within the text of the initiative
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to determine what the policy is?
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Well, the court can certainly look further
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into the text of the initiative
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and oftentimes there's statements of purpose
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in these initiatives which tell the voters
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the purpose of the initiative before them.
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There is no statement of purpose here.
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So the voter is left with what's in front of them,
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which is the title
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and that is an act to require the full minimum wage
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for tips workers with tips on top.
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And the issue here
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is that although the petition advertises itself
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as a question about full minimum wage,
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it's really presenting two different issues
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on the menu for voters.
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And that first issue, of course is about minimum wage,
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but the second is about tip pooling.
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Concerning that first issue-
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They're really substantively interrelated though.
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I mean, I understand you can tease them apart
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to a certain extent,
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so you've got a restaurant operating
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and the the people dealing with the public
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are getting paid tips
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and the people doing the dishes are not,
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but the success of the restaurant is interdependent.
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It just seems to me these are awfully closely related
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when we look at the different cases we've decided.
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The only case that's even remotely close to it
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may be the education case,
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but think you're really swimming upstream here.
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Tell me why this close interrelationship is really separate.
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Well, 'cause there's actually
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not really a close interrelationship at all.
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Well, but the restaurant's, profits are an operation,
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are all caught up in how you pay the people who work there.
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Your Honor, this petition
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wouldn't just affect restaurants.
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This is any employer that has tipped workers
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or any service employers, this could be a hotel.
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So the workers of a hotel would be required to remit tips
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back to anybody from the landscaping crew,
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to the people who maintain the pool.
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So this isn't just an issue
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about tips and wages in restaurants,
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but even if we were just to look
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at the issue of tips and wages,
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those are two separate things
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with two separate relationships.
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Doesn't this deal with the consequences
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of phasing out the tips scale?
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Because as we elevate the pay and get the servers,
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in one example, to a minimum wage,
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we have to deal
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with what happens to the tips thereafter, correct?
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But your Honor, this isn't a consequence mitigation case,
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because these two provisions
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or these two questions for voters
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can exist completely independently.
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So this isn't the type of case where it's an enabling case
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or a consequence medication case, there's no overall scheme.
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And I just wanna focus on the purposes-
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There are two existing statutes, right?
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Correct.
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The existing statutes allow you
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to pay less than the minimum wage,
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but they also prevent you from passing the tips
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onto the backs, I'm describing them improperly,
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in the hypothetical of the restaurant,
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the people who are doing the dishes
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or otherwise in the back room.
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So those statutes are interrelated
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and now this new statute will reallocate those rights.
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So they're dealing with the existing statutory law too.
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Well, so those statutes
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are actually not so much interrelated,
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but they are separate
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because tips and wages are separate issues
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and they're separate relationships at play here
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where the relationship between employer and employee,
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that's the wage relationship,
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what an employer must pay an employee.
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And that's the relationship that's affected
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and the purpose of sections one through five,
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the minimum wage statute.
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So the fact that the minimum wage statute,
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the fair minimum wage statute
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says, "Hey, don't look here."
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If we're looking at tip pooling,
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that's in a different statute, doesn't bring those together,
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it actually separates the two statutes
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because they reflect different relationships
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and different purposes.
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And that's clear from looking at the operation
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of sections one through five,
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that is asking voters, "Do you favor
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increasing the minimum wage
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for a certain category of workers?"
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That's its own question.
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But of course those workers are already guaranteed
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to receive the full minimum wage.
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So the question is really do you favor
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eliminating the tip credit,
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what an employer is required to pay
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in terms of a minimum wage, irrespective of tips received?
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And that's a separate economic relationship,
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as I just mentioned, between the employer and the employee.
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So when you look to this second proposal, the second issue,
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and it's not as well advertised to the voters,
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it's not in the title of the petition.
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[Justice Wolohojian] Can I stop you there?
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Of course.
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If the title of the petition
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and the name of the proposed act
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had said an act to require the full minimum wage
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for tipped workers and to permit employers
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to create a tip pool
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that would be shared among tipped workers
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and non tipped workers,
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would then all the provisions be related?
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They would not.
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Why?
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That would address the issue
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of whether this petition is misleading,
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but it does not go to the relatedness of the petition
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because the two purposes are separate,
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they're mutually different.
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So for me at least, it'll be helpful to then understand,
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because I thought you said that the purpose can be gleaned
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by looking at the stated purpose or title of the act.
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But now it seems to me you're saying
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that the purpose is to be determined
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by looking at the individual provisions.
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Well the title of the act is it informs the voter
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what they're voting on.
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And this presents the voter with a question
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about minimum wage.
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Yeah, but how do we determine relatedness
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for article 48 purposes?
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It's not based on the title of the act, is it?
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It's not just based on the title of the act.
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It's about whether or not there's a common purpose
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as to which each of the component parts
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can be said to be germane,
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isn't that the test that we've articulated?
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That's correct
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and there is no common purpose here because-
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Because you're saying not allowing the employers
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to take the tip credit is completely divorced from,
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and independent of, the idea of tip pooling.
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Is that your position?
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Well, tip pooling,
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section six could survive and exist by itself
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if sections one through five never existed,
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it's totally independent, it does not depend-
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Where in our case law do we have that test
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where we say if a provision can exist
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totally independent from, albeit overlapping with,
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the other one that it violates article 48?
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I think that's the key of the mutual dependence test,
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is that if both of these provisions-
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Where is that in our jurisprudence?
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Where is that mutual dependence test,
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separate and apart from the relatedness test
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articulated in our jurisprudence?
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I think that's in Anderson,
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footnote eight addresses that,
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the fact that you can have a certain element that's common
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or you can have a certain connection
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that does not satisfy relatedness.
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Because if each of the provisions can survive on their own
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and function on their own
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and are not dependent on each other,
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that presents and that shows the court
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that these are truly two different issues
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that are being presented to the voters.
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Well then, let's look at the language of section six,
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because the first clause of it
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has sort of a dependency relationship
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with the other portions.
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It says, "Provided that an employer is paying
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all employees a wage
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that is not less than the full minimum wages
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provided in section one of chapter 151."
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Why is that not enough
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to make this not a standalone, independent provision?
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Why doesn't that create the dependency you're talking about?
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Sure, because if sections one through five did not exist
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in this petition, if you split these two issues
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into their own separate petitions,
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section six wouldn't have to be amended at all
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to be presented to a voter,
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That's why it's totally independent.
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And so just because there's some abstract or connection
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or common element-
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Well wait, and then I just hear,
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I wanna make sure I understand what you're arguing.
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That sounds to me
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as though the objection is that there are two things joined
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in one proposal and that you're requiring
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that simply regardless of their logical connection,
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they need to be in separate initiative petitions.
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Is that what you're saying?
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Well, I'm saying that the problem
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with this particular initiative petition
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is that it's joining two dissimilar subjects,
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two different questions for Massachusetts voters
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into one petition, it's the issue of hitching or log rolling
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where there's one set of voters
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that may love sections one through five.
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Think about the restaurant workers
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at the front of the house,
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they may say, great,
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this sounds like I'm gonna get increased minimum wage.
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That's wonderful.
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But then you look at section six
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and that says something completely different
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that says, we're gonna be allowing your employer
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to take those tips away
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and actually, and wages as well, if you look at the text,
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which I actually missed the first 100 times
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I read this petition,
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but on the 101st it says the employer could be permitted
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to remit any wage tip or service charge
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from that front of the house worker.
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And so that worker may say, I don't want to do that,
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I don't want my tips for the hard work
272
00:12:08.310 --> 00:12:11.760
I'm doing for the customers to go to someone else.
273
00:12:11.760 --> 00:12:13.230
Whether it's, and maybe the dishwashers,
274
00:12:13.230 --> 00:12:15.330
but it could also be the events crew
275
00:12:15.330 --> 00:12:17.850
at the restaurant, or it could be the catering crew
276
00:12:17.850 --> 00:12:20.790
or in-house counsel for a restaurant, who knows?
277
00:12:20.790 --> 00:12:23.850
It's just, there's no limit to the amount of, I'm sorry,
278
00:12:23.850 --> 00:12:26.970
there's a limited limit to the amount of employees
279
00:12:26.970 --> 00:12:28.350
that those tips could go to
280
00:12:28.350 --> 00:12:31.260
and that's only the employer or a manager.
281
00:12:31.260 --> 00:12:34.946
And so that presents the waitress, the waiter,
282
00:12:34.946 --> 00:12:37.410
the housekeeping staff at a hotel
283
00:12:37.410 --> 00:12:38.940
with two very different options
284
00:12:38.940 --> 00:12:40.380
and if you take it the other way around
285
00:12:40.380 --> 00:12:43.230
and you look at the employer who's looking at this question,
286
00:12:43.230 --> 00:12:47.160
these questions, that says maybe they hate one through five,
287
00:12:47.160 --> 00:12:49.368
they say that's gonna raise wage costs,
288
00:12:49.368 --> 00:12:51.900
that doesn't make any sense for the business.
289
00:12:51.900 --> 00:12:53.370
But then they look at section six
290
00:12:53.370 --> 00:12:56.484
and they may say, well tip pooling and sharing,
291
00:12:56.484 --> 00:12:58.350
that doesn't sound so bad.
292
00:12:58.350 --> 00:13:00.690
And the reason that those different voters
293
00:13:00.690 --> 00:13:02.790
could look so differently at these different issues
294
00:13:02.790 --> 00:13:04.740
is 'cause they are separate questions
295
00:13:04.740 --> 00:13:06.300
with separate purposes
296
00:13:06.300 --> 00:13:09.441
and that's exactly what the relatedness requirement
297
00:13:09.441 --> 00:13:12.000
seeks to prevent the voters from having to choose.
298
00:13:12.000 --> 00:13:13.170
They have one vote,
299
00:13:13.170 --> 00:13:15.920
but they're being asked to vote on two separate things.
300
00:13:17.430 --> 00:13:20.820
Section six is also remarkable, because it would create
301
00:13:20.820 --> 00:13:24.270
a new economic relationship in Massachusetts,
302
00:13:24.270 --> 00:13:26.970
instead of just amending the minimum wage statute,
303
00:13:26.970 --> 00:13:28.740
this creates a new economic relationship
304
00:13:28.740 --> 00:13:32.550
where employers are permitted to take the tips
305
00:13:32.550 --> 00:13:33.990
from a tipped worker
306
00:13:33.990 --> 00:13:36.480
and subsidize the back of the house's wages
307
00:13:36.480 --> 00:13:37.313
and that's something that's remarkable,
308
00:13:37.313 --> 00:13:40.050
'cause it does not exist under Massachusetts law.
309
00:13:40.050 --> 00:13:43.470
It is now saying that you are allowed to take tips,
310
00:13:43.470 --> 00:13:46.426
wages, remit them to a tip pool-
311
00:13:46.426 --> 00:13:49.983
Both provisions present a new economic relationship.
312
00:13:50.970 --> 00:13:52.830
So I'd say that sections one through five
313
00:13:52.830 --> 00:13:54.750
amend a current economic relationship.
314
00:13:54.750 --> 00:13:58.893
Well, if you are not getting minimum wage, now you are,
315
00:14:00.000 --> 00:14:01.170
the standard minimum wage,
316
00:14:01.170 --> 00:14:03.682
now you're getting the standard minimum wage,
317
00:14:03.682 --> 00:14:06.390
that's certainly a new economic relationship, isn't it?
318
00:14:06.390 --> 00:14:07.223
I disagree, your Honor.
319
00:14:07.223 --> 00:14:09.360
I think that adjusts the current economic relationship
320
00:14:09.360 --> 00:14:12.900
and that relationship is between wage payer, the employer-
321
00:14:12.900 --> 00:14:15.423
So you're quibbling over adjusts vs new?
322
00:14:16.290 --> 00:14:18.390
No, because there's never a situation-
323
00:14:18.390 --> 00:14:20.100
How about changed?
324
00:14:20.100 --> 00:14:22.770
Changed, it's amended.
325
00:14:22.770 --> 00:14:25.740
So sections one through five is an act of amendment,
326
00:14:25.740 --> 00:14:27.900
whereas section six would be an act of creation.
327
00:14:27.900 --> 00:14:30.660
Right now there's no situation and it's prohibited
328
00:14:30.660 --> 00:14:35.100
to require that tips and wages from the front of the house
329
00:14:35.100 --> 00:14:39.245
be taken away from those workers and then used to subsidize
330
00:14:39.245 --> 00:14:41.527
the back of the house's wages.
331
00:14:41.527 --> 00:14:44.160
Because it's an amendment to a prohibition,
332
00:14:44.160 --> 00:14:46.473
it's a whole new economic relationship.
333
00:14:48.000 --> 00:14:48.870
Here it certainly is,
334
00:14:48.870 --> 00:14:50.910
because right now there is no situation
335
00:14:50.910 --> 00:14:55.230
where a tipped worker's tips can be taken away from them.
336
00:14:55.230 --> 00:14:56.250
And it's important,
337
00:14:56.250 --> 00:14:59.460
this is an issue of why the petition itself is misleading
338
00:14:59.460 --> 00:15:02.220
to voters is because the text of the petition,
339
00:15:02.220 --> 00:15:04.344
the title is promising something
340
00:15:04.344 --> 00:15:07.500
that section six is essentially removing from them.
341
00:15:07.500 --> 00:15:10.230
This is the issue of the robot on the river,
342
00:15:10.230 --> 00:15:12.390
it's not going down to the same direction.
343
00:15:12.390 --> 00:15:14.310
There's two crews of rowers
344
00:15:14.310 --> 00:15:16.170
rowing in opposite directions here.
345
00:15:16.170 --> 00:15:20.280
It's saying do you want to have more money in your pocket,
346
00:15:20.280 --> 00:15:22.620
higher wages for a certain class of workers?
347
00:15:22.620 --> 00:15:23.490
But then this other question
348
00:15:23.490 --> 00:15:25.680
that says we're actually gonna do the exact opposite.
349
00:15:25.680 --> 00:15:29.943
Does it matter that section six is discretionary?
350
00:15:31.050 --> 00:15:33.990
It does matter for the relatedness standpoint,
351
00:15:33.990 --> 00:15:35.520
because it actually demonstrates
352
00:15:35.520 --> 00:15:38.640
why it's a standalone independent question for voters.
353
00:15:38.640 --> 00:15:40.620
It can exist without the requirement,
354
00:15:40.620 --> 00:15:43.020
or without the existence, of sections one through five.
355
00:15:43.020 --> 00:15:44.640
But since it doesn't require
356
00:15:44.640 --> 00:15:48.290
the creation of a separate tip pool that would be shared,
357
00:15:48.290 --> 00:15:53.290
then your argument that the title is misleading,
358
00:15:53.574 --> 00:15:58.574
it might be, if a particular employer decided
359
00:15:59.024 --> 00:16:02.400
to create a separate tip pool,
360
00:16:02.400 --> 00:16:06.587
but it may not be if a particular employer didn't.
361
00:16:06.587 --> 00:16:09.120
So why doesn't that affect your argument
362
00:16:09.120 --> 00:16:12.360
that the title is misleading?
363
00:16:12.360 --> 00:16:15.420
Because the title still doesn't identify for the voter.
364
00:16:15.420 --> 00:16:17.737
Even the diligent voter who reads this
365
00:16:17.737 --> 00:16:19.290
and reads the summary,
366
00:16:19.290 --> 00:16:22.920
it doesn't identify the implications of section six.
367
00:16:22.920 --> 00:16:24.966
It doesn't say that even though we're promising you
368
00:16:24.966 --> 00:16:27.870
the full minimum wage with tips on top,
369
00:16:27.870 --> 00:16:30.945
section six says actually if your employer decides to
370
00:16:30.945 --> 00:16:32.940
and forego the tip credit,
371
00:16:32.940 --> 00:16:34.968
they can actually take those tips on top away.
372
00:16:34.968 --> 00:16:36.840
And actually, and according to section six,
373
00:16:36.840 --> 00:16:38.640
maybe some wages too.
374
00:16:38.640 --> 00:16:42.540
The summary includes section, includes the last section.
375
00:16:42.540 --> 00:16:43.705
If you read the summary,
376
00:16:43.705 --> 00:16:48.705
it indicates that this sharing of tips is possible, right?
377
00:16:49.350 --> 00:16:52.320
It suggests that the sharing of tips is possible,
378
00:16:52.320 --> 00:16:54.300
but it doesn't fully inform the voter
379
00:16:54.300 --> 00:16:57.213
about what the implications of that sharing of tips are
380
00:16:57.213 --> 00:16:59.340
and even if it did,
381
00:16:59.340 --> 00:17:02.460
it still represents a separate policy consideration
382
00:17:02.460 --> 00:17:04.170
for the voters.
383
00:17:04.170 --> 00:17:07.110
And this is why we haven't specifically challenged
384
00:17:07.110 --> 00:17:09.750
the summary because it's a relatively clear
385
00:17:09.750 --> 00:17:12.180
and straightforward summary of what's being presented.
386
00:17:12.180 --> 00:17:14.240
The problem is, is that what's being presented
387
00:17:14.240 --> 00:17:17.250
are two separate issues for the voters to decide,
388
00:17:17.250 --> 00:17:19.620
two separate questions with only one vote
389
00:17:19.620 --> 00:17:20.580
and that's exactly
390
00:17:20.580 --> 00:17:23.370
what the relatedness requirement prohibits.
391
00:17:23.370 --> 00:17:25.200
Isn't it just like the marijuana?
392
00:17:25.200 --> 00:17:29.130
I mean you could have had medical marijuana alone,
393
00:17:29.130 --> 00:17:30.930
but you're legalizing marijuana.
394
00:17:30.930 --> 00:17:34.230
Those are people who needed the medical marijuana,
395
00:17:34.230 --> 00:17:35.970
may have voted one way
396
00:17:35.970 --> 00:17:39.540
and been opposed to legalizing marijuana in another.
397
00:17:39.540 --> 00:17:42.330
But we still found it related,
398
00:17:42.330 --> 00:17:44.790
because the voters could understand
399
00:17:44.790 --> 00:17:47.220
the overall policy decision.
400
00:17:47.220 --> 00:17:50.310
Here, can't the voters understand the policy decision?
401
00:17:50.310 --> 00:17:52.203
We're changing the tips law,
402
00:17:53.910 --> 00:17:57.120
we're gonna require minimum wage,
403
00:17:57.120 --> 00:17:59.022
but we're gonna pool the things.
404
00:17:59.022 --> 00:18:02.910
Your average Joe going to the poll
405
00:18:02.910 --> 00:18:04.710
can understand that, can't they?
406
00:18:04.710 --> 00:18:06.930
Oh, I certainly don't. And the first time I read it,
407
00:18:06.930 --> 00:18:08.310
I didn't quite understand that.
408
00:18:08.310 --> 00:18:11.140
You're quite smart Mr. Daley, you understand that.
409
00:18:11.140 --> 00:18:12.420
Well, I didn't understand
410
00:18:12.420 --> 00:18:14.220
and the purpose that's been articulated
411
00:18:14.220 --> 00:18:15.053
in the AG'S brief
412
00:18:15.053 --> 00:18:17.310
is that there's this two-tier wage structure
413
00:18:17.310 --> 00:18:19.470
and the purpose is to go after and dismantle
414
00:18:19.470 --> 00:18:20.795
that two-tier wage structure.
415
00:18:20.795 --> 00:18:23.319
I don't see anything about a two-tier wage structure
416
00:18:23.319 --> 00:18:26.640
in the petition, but even if that were the case
417
00:18:26.640 --> 00:18:28.800
and you were to accept that purpose
418
00:18:28.800 --> 00:18:31.890
that only furthers the provisions one through five,
419
00:18:31.890 --> 00:18:34.350
'cause that's what gets rid of the two tier wage structure.
420
00:18:34.350 --> 00:18:36.750
It still has nothing to do with provision six.
421
00:18:36.750 --> 00:18:40.020
And again, because these are two separate questions
422
00:18:40.020 --> 00:18:42.870
or at least two separate questions, posed to the voters
423
00:18:42.870 --> 00:18:44.790
that only have one vote on the matter,
424
00:18:44.790 --> 00:18:47.850
it should not be certified and put on the ballot for 2024.
425
00:18:49.379 --> 00:18:50.212
[Justice Wolohojian] Okay, thank you.
426
00:18:50.212 --> 00:18:51.323
Rest of my briefs. Thank you.
427
00:18:52.602 --> 00:18:54.693
Okay, Attorney Fischer-Groban.
428
00:19:08.310 --> 00:19:09.450
Good morning your Honors
429
00:19:09.450 --> 00:19:12.540
and may it please the court, Phoebe Fischer-Groban,
430
00:19:12.540 --> 00:19:15.990
Assistant Attorney General on behalf of the Attorney General
431
00:19:15.990 --> 00:19:18.240
and the Secretary of the Commonwealth.
432
00:19:18.240 --> 00:19:21.480
The Attorney General properly certified this petition
433
00:19:21.480 --> 00:19:23.040
under Article 48
434
00:19:23.040 --> 00:19:26.880
because it makes two closely connected changes
435
00:19:26.880 --> 00:19:30.300
to how workers in tipped industries are paid for their work,
436
00:19:30.300 --> 00:19:33.600
their hourly cash wage and their tips.
437
00:19:33.600 --> 00:19:37.890
And in response to some questions to appellant's counsel,
438
00:19:37.890 --> 00:19:40.410
the Massachusetts Teacher's Association case
439
00:19:40.410 --> 00:19:42.240
says that what this court does
440
00:19:42.240 --> 00:19:45.150
in ascertaining whether there's a common purpose
441
00:19:45.150 --> 00:19:47.220
is it looks as what the provisions
442
00:19:47.220 --> 00:19:50.490
of the initiative petition or the proposed law would do
443
00:19:50.490 --> 00:19:53.250
and determines whether there's a reasonable relationship
444
00:19:53.250 --> 00:19:55.230
between those provisions.
445
00:19:55.230 --> 00:19:57.330
Here, there's a reasonable relationship
446
00:19:57.330 --> 00:19:58.710
between these provisions.
447
00:19:58.710 --> 00:20:00.900
They govern the two core components
448
00:20:00.900 --> 00:20:03.660
of what employees in the same business make,
449
00:20:03.660 --> 00:20:06.780
their hourly cash wage and whether it's the minimum wage
450
00:20:06.780 --> 00:20:08.220
or a sub minimum wage
451
00:20:08.220 --> 00:20:10.080
and then whether they get a share of tips
452
00:20:10.080 --> 00:20:12.540
on top of what their employer pays them
453
00:20:12.540 --> 00:20:16.020
and this law would allow tip pools to be administered
454
00:20:16.020 --> 00:20:18.998
between front of house and back of house workers.
455
00:20:18.998 --> 00:20:20.673
I'm sorry to interrupt.
456
00:20:22.012 --> 00:20:25.110
So what I understand you to have just said
457
00:20:25.110 --> 00:20:27.840
is that to determine whether there's a common purpose,
458
00:20:27.840 --> 00:20:30.330
you look at the entirety of the provisions
459
00:20:30.330 --> 00:20:35.330
of the initiative and from that you make this evaluation.
460
00:20:39.240 --> 00:20:43.110
You don't just look at, for example, the title
461
00:20:43.110 --> 00:20:44.790
or perhaps the stated purpose
462
00:20:44.790 --> 00:20:47.970
of the initiative if it has a stated purpose?
463
00:20:47.970 --> 00:20:48.990
That's absolutely right
464
00:20:48.990 --> 00:20:51.990
and that's what Massachusetts Teachers Association said.
465
00:20:51.990 --> 00:20:53.910
And also when the voters go to the polls,
466
00:20:53.910 --> 00:20:56.280
they'll have the title, but they'll also have the summary
467
00:20:56.280 --> 00:20:58.980
that explains to them what this proposed law might do
468
00:20:58.980 --> 00:21:00.420
to see if they agree with it.
469
00:21:00.420 --> 00:21:03.240
And they'll also have the yes or no statement
470
00:21:03.240 --> 00:21:05.640
that comes alongside the proposed law
471
00:21:05.640 --> 00:21:07.830
that tells them again, what this petition will do,
472
00:21:07.830 --> 00:21:09.690
not simply the title.
473
00:21:09.690 --> 00:21:11.970
So is the inquiry though different
474
00:21:11.970 --> 00:21:14.910
if the question is voter confusion?
475
00:21:14.910 --> 00:21:19.890
In that case, and not relatedness, but voter confusion,
476
00:21:19.890 --> 00:21:23.550
which perhaps may be a subset of relatedness or something,
477
00:21:23.550 --> 00:21:25.893
but whatever, because in that case,
478
00:21:26.910 --> 00:21:31.756
does how the act presents itself, in other words,
479
00:21:31.756 --> 00:21:35.823
through its title or through its stated purpose?
480
00:21:35.823 --> 00:21:39.120
Is that sort of a different inquiry
481
00:21:39.120 --> 00:21:43.200
or is it the same, that you would look at all the provisions
482
00:21:43.200 --> 00:21:45.600
to see if the voters would be confused?
483
00:21:45.600 --> 00:21:47.880
In the voter confusion inquiry.
484
00:21:47.880 --> 00:21:50.310
I similarly think you'd look at all of the provisions
485
00:21:50.310 --> 00:21:52.770
and see if they're reasonably related to one another.
486
00:21:52.770 --> 00:21:56.340
It does, Massachusetts teachers say that as well.
487
00:21:56.340 --> 00:21:59.430
I'm not certain if that case says that specifically,
488
00:21:59.430 --> 00:22:03.840
but I do know that the framers of this, of article 48,
489
00:22:03.840 --> 00:22:06.300
the purpose of the relatedness requirement
490
00:22:06.300 --> 00:22:07.500
is voter confusion,
491
00:22:07.500 --> 00:22:10.110
that was kind of the concern that the framers had
492
00:22:10.110 --> 00:22:12.300
and so they developed the relatedness requirement
493
00:22:12.300 --> 00:22:14.340
as kind of a way of saying, well,
494
00:22:14.340 --> 00:22:16.976
if the provisions of a proposal hang together
495
00:22:16.976 --> 00:22:18.300
and they're related
496
00:22:18.300 --> 00:22:20.760
and they bear reasonable relationship to one another
497
00:22:20.760 --> 00:22:23.130
and they're unified by a common purpose,
498
00:22:23.130 --> 00:22:25.560
that's the tool we use to figure out
499
00:22:25.560 --> 00:22:27.360
whether voters will be confused or not.
500
00:22:27.360 --> 00:22:31.800
So then, if I understand that framework correctly,
501
00:22:31.800 --> 00:22:35.370
then it's not that we would disregard the title,
502
00:22:35.370 --> 00:22:37.110
it's that it would be put in the mix
503
00:22:37.110 --> 00:22:38.880
of the entirety of the proposal
504
00:22:38.880 --> 00:22:43.880
to see if it somehow is enough to cause voter confusion
505
00:22:45.660 --> 00:22:47.550
or whether in the entirety
506
00:22:47.550 --> 00:22:51.630
we would say no voters are not confused?
507
00:22:51.630 --> 00:22:53.010
Yes, that's right, your Honor.
508
00:22:53.010 --> 00:22:55.080
And here, I don't even think
509
00:22:55.080 --> 00:22:56.730
that that's really necessary,
510
00:22:56.730 --> 00:22:59.280
because here we have a relatively straightforward
511
00:22:59.280 --> 00:23:01.292
proposed law that does two things
512
00:23:01.292 --> 00:23:03.690
and we don't have a single subjects requirement
513
00:23:03.690 --> 00:23:04.680
here in Massachusetts,
514
00:23:04.680 --> 00:23:08.460
that is petitioners don't have to kind of submit subjects
515
00:23:08.460 --> 00:23:10.350
to the voter's piecemeal every two years.
516
00:23:10.350 --> 00:23:11.670
We don't have a single subject,
517
00:23:11.670 --> 00:23:14.820
but it's not just voter confusion we're focused on,
518
00:23:14.820 --> 00:23:19.820
we want them to have a unified policy to vote on.
519
00:23:20.460 --> 00:23:22.590
We don't want them to have to take a vote
520
00:23:22.590 --> 00:23:26.034
that's internally inconsistent with each other.
521
00:23:26.034 --> 00:23:30.210
We don't want them to have to choose but to vote once,
522
00:23:30.210 --> 00:23:31.770
'cause they, unlike a legislature,
523
00:23:31.770 --> 00:23:33.570
they can't amend and get rid of things.
524
00:23:33.570 --> 00:23:36.840
We wanna make sure that it's a coherent vote.
525
00:23:36.840 --> 00:23:40.920
It's not just confusion, that's a separate part of it.
526
00:23:40.920 --> 00:23:42.150
That's true, your Honor.
527
00:23:42.150 --> 00:23:45.390
And here there is a unified statement of public policy,
528
00:23:45.390 --> 00:23:48.360
which is allowing all employees in tipped industries
529
00:23:48.360 --> 00:23:52.020
to be paid the state minimum wage plus a share of tips.
530
00:23:52.020 --> 00:23:54.120
It removes the two statutes
531
00:23:54.120 --> 00:23:56.760
or it modifies or changes the two statutes
532
00:23:56.760 --> 00:23:58.620
that currently prevent that from happening.
533
00:23:58.620 --> 00:24:00.420
It eliminates those two barriers.
534
00:24:00.420 --> 00:24:01.860
There's the fact here,
535
00:24:01.860 --> 00:24:06.860
so both the bill, the initiative and the summary,
536
00:24:07.830 --> 00:24:11.070
five, six of it's devoted to tips,
537
00:24:11.070 --> 00:24:16.070
and the last provision in the bill
538
00:24:16.260 --> 00:24:18.990
and the last provision in the summary deal
539
00:24:18.990 --> 00:24:20.973
with the sharing of the tips.
540
00:24:21.870 --> 00:24:24.780
I think the whole proposed law is about tips.
541
00:24:24.780 --> 00:24:26.970
It's about what your employer can do with your tips.
542
00:24:26.970 --> 00:24:28.380
Right, but their focus
543
00:24:28.380 --> 00:24:33.380
is that the second decision's an important one,
544
00:24:34.050 --> 00:24:38.280
but it only appears in one section in the last sentence,
545
00:24:38.280 --> 00:24:40.323
that it's somehow getting lost maybe.
546
00:24:41.956 --> 00:24:46.956
Say something important doesn't come out, does that matter?
547
00:24:49.230 --> 00:24:51.630
I mean, I take it your answer here is,
548
00:24:51.630 --> 00:24:55.830
it is in the summary, one sentence in the summary,
549
00:24:55.830 --> 00:24:57.990
and it's the sixth provision they read,
550
00:24:57.990 --> 00:25:00.090
so they do notice it.
551
00:25:00.090 --> 00:25:04.740
But I don't know, I worry that when you bury something new
552
00:25:04.740 --> 00:25:08.160
in one section and it's not in the summary,
553
00:25:08.160 --> 00:25:10.170
that might be a problem, right?
554
00:25:10.170 --> 00:25:12.150
Well, if it weren't in the summary,
555
00:25:12.150 --> 00:25:14.070
that could potentially pose a problem.
556
00:25:14.070 --> 00:25:15.270
But it is here.
557
00:25:15.270 --> 00:25:18.630
This is a relatively straightforward law,
558
00:25:18.630 --> 00:25:19.860
it's a short law.
559
00:25:19.860 --> 00:25:21.960
It kind of combines these two subjects,
560
00:25:21.960 --> 00:25:23.670
which of course it permissibly can do
561
00:25:23.670 --> 00:25:27.240
under article 48 and it's right there in the summary.
562
00:25:27.240 --> 00:25:30.810
So this proposed law doesn't present a situation
563
00:25:30.810 --> 00:25:34.380
where an important provision is either ambiguous
564
00:25:34.380 --> 00:25:37.020
or difficult to understand or buried somewhere
565
00:25:37.020 --> 00:25:40.985
in a really long law, that's not this proposed law.
566
00:25:40.985 --> 00:25:44.340
And here, this is easier for voters to understand
567
00:25:44.340 --> 00:25:45.750
and to vote yes or no on.
568
00:25:45.750 --> 00:25:48.600
Yes, I want all employees in tipped businesses
569
00:25:48.600 --> 00:25:51.420
to be paid the state minimum wage plus have the chance
570
00:25:51.420 --> 00:25:54.093
to get a share of tips or no, I don't want that.
571
00:25:55.024 --> 00:25:56.353
So I mean the amendment,
572
00:25:56.353 --> 00:26:00.270
I've just glancingly gone through chapter 149,
573
00:26:00.270 --> 00:26:05.270
but do you agree that the section six proposed amendment
574
00:26:06.030 --> 00:26:10.230
to section 152 A of chapter 149
575
00:26:10.230 --> 00:26:14.247
affects all tipped employees?
576
00:26:14.247 --> 00:26:17.160
In other words, not just restaurant workers,
577
00:26:17.160 --> 00:26:20.940
service employees of whatever sort,
578
00:26:20.940 --> 00:26:23.403
your hairdresser, your Uber driver?
579
00:26:26.010 --> 00:26:29.337
Well, without weighing into the Uber driver question-
580
00:26:29.337 --> 00:26:34.337
I just wanna understand, you agree with this statement
581
00:26:35.142 --> 00:26:38.289
that the amendment to chapter 149,
582
00:26:38.289 --> 00:26:42.030
section 152 A of chapter 149
583
00:26:42.030 --> 00:26:44.790
applies beyond restaurant workers?
584
00:26:44.790 --> 00:26:48.150
Yes, that's absolutely right and currently it does too-
585
00:26:48.150 --> 00:26:49.350
Yes, that's what I saw too.
586
00:26:49.350 --> 00:26:54.350
So this amendment goes beyond the restaurant industry.
587
00:26:56.014 --> 00:26:59.220
When I look at section six, actually,
588
00:26:59.220 --> 00:27:01.710
how it's drafted of the proposed law,
589
00:27:01.710 --> 00:27:04.620
and this is on page 46 of the addendum
590
00:27:04.620 --> 00:27:07.440
to our brief as well as in other places,
591
00:27:07.440 --> 00:27:09.397
section six provides that,
592
00:27:09.397 --> 00:27:12.060
"Provided an employer is paying all employees a wage
593
00:27:12.060 --> 00:27:13.950
that's not less than the full minimum wage,
594
00:27:13.950 --> 00:27:17.250
they may require wait staff, employees, service employees
595
00:27:17.250 --> 00:27:18.480
or service bartenders,"
596
00:27:18.480 --> 00:27:19.440
so those are the categories
597
00:27:19.440 --> 00:27:20.827
of employees it would apply to,
598
00:27:20.827 --> 00:27:22.350
"Participate in tip pool
599
00:27:22.350 --> 00:27:25.980
through which the tips are then distributed to employees
600
00:27:25.980 --> 00:27:27.450
that are not those employees."
601
00:27:27.450 --> 00:27:30.150
So service employees, as I read,
602
00:27:30.150 --> 00:27:32.790
as defined in chapter 149,
603
00:27:32.790 --> 00:27:37.790
include many other industries beyond restaurant workers.
604
00:27:41.640 --> 00:27:43.770
So are we saying the same thing
605
00:27:43.770 --> 00:27:45.240
that this proposed amendment
606
00:27:45.240 --> 00:27:48.513
extends beyond the restaurant industry?
607
00:27:51.150 --> 00:27:54.510
Yes, when I look at these two laws together,
608
00:27:54.510 --> 00:27:55.860
I see that they both use
609
00:27:55.860 --> 00:27:58.230
the wait staff, employee service employee
610
00:27:58.230 --> 00:28:00.630
or service bartender language.
611
00:28:00.630 --> 00:28:02.310
They do, service employees,
612
00:28:02.310 --> 00:28:06.630
I think includes hairdressers,
613
00:28:06.630 --> 00:28:08.400
anyone else you would provide a tip to,
614
00:28:08.400 --> 00:28:12.810
which includes cab drivers, Uber drivers,
615
00:28:12.810 --> 00:28:14.370
all sorts of people.
616
00:28:14.370 --> 00:28:16.690
So does this matter?
617
00:28:20.610 --> 00:28:21.927
I'm not sure it matters,
618
00:28:21.927 --> 00:28:26.927
but it does seem to me to perhaps be beyond,
619
00:28:33.397 --> 00:28:36.540
well, do you think that's fairly reflected in the summary?
620
00:28:36.540 --> 00:28:38.340
Yes, I think it is
621
00:28:38.340 --> 00:28:40.410
and I'm happy to take a look at the summary,
622
00:28:40.410 --> 00:28:41.760
but I'll also note here though,
623
00:28:41.760 --> 00:28:43.830
that they have not challenged the summary here.
624
00:28:43.830 --> 00:28:46.110
I do not take them to be challenging the summary.
625
00:28:46.110 --> 00:28:47.250
No, they said they're not.
626
00:28:47.250 --> 00:28:49.650
Exactly, and so to me,
627
00:28:49.650 --> 00:28:51.930
I don't think that this poses a problem.
628
00:28:51.930 --> 00:28:54.090
I think we're talking about service employee industries,
629
00:28:54.090 --> 00:28:56.070
the most common a voter may understand
630
00:28:56.070 --> 00:28:57.570
is the restaurant industry,
631
00:28:57.570 --> 00:28:59.520
but we are talking about other industries
632
00:28:59.520 --> 00:29:04.080
where employees regularly, customarily receive tips.
633
00:29:04.080 --> 00:29:06.060
But I don't think that that changes
634
00:29:06.060 --> 00:29:08.790
the article 48 analysis here.
635
00:29:08.790 --> 00:29:12.270
Just as similarly, the tip pool prohibition applies
636
00:29:12.270 --> 00:29:14.490
more broadly than the restaurant industry,
637
00:29:14.490 --> 00:29:16.640
the removing of that prohibition
638
00:29:16.640 --> 00:29:19.140
will also apply more broadly
639
00:29:19.140 --> 00:29:20.730
than the restaurant industry.
640
00:29:20.730 --> 00:29:23.610
But that doesn't alter that the tip pooling provision
641
00:29:23.610 --> 00:29:27.660
and the tip credit provisions are closely connected here.
642
00:29:27.660 --> 00:29:29.790
And I'll point even that the Department of Labor
643
00:29:29.790 --> 00:29:31.620
obviously regulates these same issues
644
00:29:31.620 --> 00:29:34.170
and their regulation related to tip pooling
645
00:29:34.170 --> 00:29:36.180
does exactly what this law would do,
646
00:29:36.180 --> 00:29:39.510
which is to say, it says, "If you're taking a tip credit,
647
00:29:39.510 --> 00:29:41.760
you can't have a tip pool with back of house workers.
648
00:29:41.760 --> 00:29:45.390
Employers that do not take a tip credit
649
00:29:45.390 --> 00:29:47.820
can have a tip pool that includes back of house workers."
650
00:29:47.820 --> 00:29:49.920
So in the Department of Labor's regulation,
651
00:29:49.920 --> 00:29:52.200
these are closely connected concepts
652
00:29:52.200 --> 00:29:54.663
and they are in this proposed law as well.
653
00:29:58.590 --> 00:30:00.000
I'll make one final point,
654
00:30:00.000 --> 00:30:02.040
but of course I'm happy to answer other questions,
655
00:30:02.040 --> 00:30:03.960
which is that the tip pooling provision
656
00:30:03.960 --> 00:30:05.040
could also be looked at
657
00:30:05.040 --> 00:30:08.340
as addressing a reasonable foreseeable consequence
658
00:30:08.340 --> 00:30:11.097
of the tip credit provision and it falls into the cases
659
00:30:11.097 --> 00:30:15.000
like Oberlee's coal pack and Wiener,
660
00:30:15.000 --> 00:30:18.053
where we have the tip credit provision removes
661
00:30:18.053 --> 00:30:21.150
the key justification for limiting the tip pool
662
00:30:21.150 --> 00:30:22.290
to front of house workers
663
00:30:22.290 --> 00:30:25.530
and so now, once everybody's making the same minimum wage
664
00:30:25.530 --> 00:30:28.290
and being paid that directly by their employer,
665
00:30:28.290 --> 00:30:30.810
it makes sense to permit employers then
666
00:30:30.810 --> 00:30:32.610
not to restrict the tip pool
667
00:30:32.610 --> 00:30:33.930
so that the back of house workers
668
00:30:33.930 --> 00:30:36.753
can participate as well.