September 2, 1988 Number 1

September 2, 1988 Number 1 The Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: In a letter dated August 1, 1988, you transmitted a series of proposed ballot questions * to me and requested my opinion whether these questions are ones of public policy within the meaning of G.L. c. 53, § 19. and, if, so, what simple, unequivocal and adequate form is best suited for presentation of these questions on the November, 1988 ballot. I have analyzed each proposed question in accordance with the Massachusetts Constitution and the General Laws, judicial decisions, and prior Opinions of the Attorney General. For the reasons set forth below, this analysis leads me to conclude that thirteen of the fourteen proposed questions are properly public policy questions appropriate to appear in the form provided herein, on the November ballot. The right of Massachusetts voters to place questions of public policy on the ballot is based upon article 19 of the Massachusetts Constitution. Article 19 provides in part that "[t]he people have a right . . . [to] . . . give instructions to their representatives ..." Statutory requirements for the process of submitting to voters questions of public policy are set forth in G.L.c. 53, § 19 through § 22. Traditionally, a broad view has been taken of what constitutes an appropriate question of public policy. See 1982/83 Op. Att'y Gen. No. 3, Rep. A.G., Pub. Doc. No. 12 at 84 (1982). This established view is fully appropriate to the public policy question process. At the same time, however, it must not interfere with the Attorney General's statutory duty to review each question for its conformity to the standards established for public policy questions. ^ The discharge of this statutory duty has in the past required the rejection of proposed questions. See, e^, 1984/85 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at 76 (1984) (rejecting question directing Department of Environmental Quality Engineering to rescind certain licenses for storage and transportation of hazardous waste); 1978/79 Op. Att'y Gen. No. 8, Rep. A.G., Pub. Doc. No. 12 at 114 (1978) (rejecting question asking Legislature to reject changes proposed by a local charter commission). Prior Opinions of the Attorney General and case law have not precisely defined what constitutes "public policy" and the nature of the concept does not 1 A total of fourteen questions were submitted, several of which are proposed to appear on the ballot in more than one district. 2 In addition to assuring that only proper questions of public policy are placed on the ballot, this careful review is essential to protect places on the ballot for proper questions. This arises because of the statutory limit allowing three questions on the ballot in each district. G.L c. 53, § 21 P.D. 12 103 readily lend itself to an exact definition. See 1966/67 Op. Att'y Gen. No. 33. Rep. A.G., Pub. Doc. No. 12 at 76 (1966) (public policy includes matters of "community common sense and common conscience applied to matters of public morals, public health, public safety, public welfare, and the like"). Generally, it can be said that matters of public policy involve determnations of what governmental action is desirable or necessary for the public interest, as opposed to individual concerns, and as contrasted to statements of fact. Cf. Borden. Inc. " Commissioner of Public Health, 388 Mass. 707,721 (1983) (distinguishing between facts, regulations and public policy), appeal dismissed, 464 U.S. 923 (1983), cert denied, 464 U.S. 936 (1983).3 It has been determined repeatedly that a proposed public policy question must be of interest to every citizen in the Commonwealth and not be simply a matter of local concern. See, e.g., 1984/85 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at 75 (1984). Even when a question appears to affect a small geographic area, if the problem it addresses is one of concern to the Commonwealth in general, the question may be considered one of public policy. See, 1982/83 Op. Att'y Gen. No. 3, Rep. A.G., Pub. Doc. No. 12 at 84 (1982). It has rarely been concluded that a matter is solely of local concern. See, e.g., 1974/75 Op. Att'y Gen. No. 11, Rep. A.G.. Pub. Doc. No. 12 at 54 (1974) (approving a question concerning the construction of a rapid transit station in a particular town). But see 1978/79 Op. Att'y Gen. No. 8, Rep. A.G., Pub. Doc. No. 12 at 114 (1978) (disapproving on grounds of purely local concern a question asking the Legislature to reject changes proposed by a local charter commission). In addition, the proposed question must be fit for legislative action/* 1978/79 Op. Att'y Gen. No. 8, Rep. A.G., Pub. Doc. No. 12 at 114 (1978). The instruction contained in each public policy question must be consistent with the powers of the Legislature and subject to legislative action or attention. 1984/85 Op. Att'y Gen. Ho. 2, Rep. A.G., Pub. Doc. No. 12 at 76 (1984). Unless the petition concerns a matter appropriately subject to legislative attention or action, it is not properly a public policy question under Massachusetts law. Id. The requirement that the proposed question concern matters fit for legislative action derives directly from the constitutional provision authorizing public policy questions. Article 19, supra. See also, Thompson v. Secretary of the Commonwealth, 265 Mass. 16, 19 (1928). Indeed, a review of prior public policy questions placed on the ballot reveals that such questions consistently 3 See generally, Griffin v. United States, 500 F.2d 1059. 1066 n.16 (3rd Cir. 1974) (decision to approve polio vaccine did not involve public policy determination but a scientific judgment); McClanahan v. Breedino, 172 Ind. 457. 88 N.E. 695. 697 (1909) (public policy is a question of law, not of fact). *See generally, Mass. Const, pt. 2. c.l. and Mass. Const, pt. 2, c.l. § 1. art. 4 (Legislature may "make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions" as long as the matter is not repugnant or contrary to the Massachusetts Constitution). 104 KD. 12 have proposed specific legislation or resolutions contemplating a particular governmental action. See e.g., 1974/75 Op. Att'y Gen. No. 9, Rep. A.G.. Pub. Doc. No. 12 at 53 (1974) (question asking whether representative should vote for a resolution calling on the United States Congress to grant amnesty to Vietnam- era draft resisters); 1974/75 Op. Att'y Gen. No. 16, Rep. A.G.. Pub. Doc. No. 12 at 58 (question asking whether representative should vote for bill which would prohibit smoking in public places); 1976/77 Op. Att'y Gen. No. 7, Rep. A.G., Pub. Doc. No. 12 at 90 (1976) (question asking whether representative should vote to support and ratify an amendment to the United States Constitution permitting states to prohibit abortions and affirm the right to life of the unborn). As stated above, an application of these principles leads me to conclude that thirteen of the submitted questions are public policy questions properly included on the November ballot. Several of these questions have required analysis whether their subject matter is one of local concern or important to all citizens of the Commonwealth. For example, two proposed questions explicitly affect Cape Cod: one proposes a regional planning commission and the other proposes a temporary moratorium on development. Although these questions present matters with a specific geographic scope, they are important to all citizens of the Commonwealth. Both implicate the broad subject of controlling growth and establishing a comprehensive environmental policy for the Massachusetts coastline. See 1974/75 Op. Att'y Gen. No. 14, Rep. A.G., Pub. Doc. No. 12 at 57 (1974) (approval of question requesting resolution asking Congress to vote in favor of federal land use controls for Nantucket Sound Islands). Cape Cod's unique value to all persons was recognized in 1961 by the establishment of the Cape Cod National Seashore. 16 U.S.C. § 459b. In addition, many residents of other Massachusetts communities utilize the natural resources of Cape Cod by vacationing or visiting Cape Cod communities. See 1968/69 Op. Att'y Gen. No. 5. Rep. A.G.. Pub. Doc. No. 12 at 38 (1968) (in determination of public policy. Attorney General may draw inferences from question and rely upon facts of common knowledge, actual or presumed if reasonable). When the broader view is adopted, as has been done in many past Opinions, it is clear that issues affecting the environment of Cape Cod are not simply of local concern, but rather are of interest to every citizen in the Commonwealth. See 1974/75 Op.Gen. No. 11. Rep. A.G.. Pub. Doc. No. 12 at 55 (1974).5 I have determined that one of the proposed questions transmitted by you is not properly an "instruction []. . . [by the people] ... to their representative[]." Massachusetts Constitution, Part 1, art. 19. This proposed question would inquire of the voter: "In biological terms, when does an individual human life begin?" (emphasis in original); and would instruct the voter to answer by selecting one of three choices: "conception," "viability" or birth," or by writing in a "different biological term." Both the form and the content of this question ^Certain other submitted questions similarly address matters that affect specific geographic areas. See e.g., questions on Milford War Memorial, commuter rail lines on the South Shore, the toll-free operation of a portion of the Massachusetts Turnpike, and the establishment of a new city in Boston. None of these questions are of "purely local concern" as that term has been repeatedly construed by past Attorneys General. See e.g. 1974/75 Op. Atty. Gen. No. 1 1, Rep. A.G., Pub. Doc. No. 12 at 55 (1974). P.D. 12 105 are unprecedented and fatally deficient." Accordingly, it is my opinion that it would be inappropriate for the submitted question to appear on the November ballot as a public policy question. On its face, the beginning of life question does not provide a representative with any instruction or direction regarding governmental action. Indeed, it does not indicate whether any governmental action at all is contemplated by the proposed question. In addition, the proposed question fails to notify voters what public policy, if any, would be changed or established by a representative seeking to follow their instruction. Providing instruction to a representative is fundamental to properly posing a "question of public policy" under Massachusetts law. See discussion, supra. The proposed question fails to do this. This purely abstract, descriptive question conflicts with the long legacy of past public policy questions and the unambiguous intent of article 19 and chapter 53. which is to provide instructions to the Legislature.7 These failings also destroy the ability of voters to provide instruction through this question. Voters facing this question are not told that they are instructing their legislator, and cannot be certain what public policy, if any, will be affected by their vote. Moreover, voters are instructed to respond through a set of choices that does not allow for affirmatively voting that no instruction on this issue should be given. The question's failure to allow voters to reject entirely any instruction to their legislator on the subject of the question appears to be 6The text of the proposed question is susceptible to two readings: one requesting the voter to determine a scientific fact, the other requesting that the voter answer the question utilizing scientific terms. It is not necessary to the analysis here to determine which of these meanings is consistent with the intent of the question or is more likely to be understood by the voter. Under either reading the proposed question is not appropriate for placement as a public policy question on the ballot for the reasons discussed infra. 7While the Attorney General and Secretary of State have the responsibility to draft an approved question in "simple, unequivocal and adequate form" suited to the ballot, this drafting authority necessarily has limits. G.L. c.53, § 19. Implicit in the requirement to draft \heform of a question is the obligation that the Attorney General and Secretary of State retain the substance of the question, thereby preserving the intent of the proponents and voters who signed the particular petition. To materially alter the substance of the question when drafting it would be contrary to section 19 and would interfere with proponents' right to put an instruction before the Legislature. In addition, revisions that materially change a proposed question would raise serious doubt whether the signature requirements of G.L. c.53, § 19 have been satisfied, since the question is no longer substantially the same as what was originally presented by petition to the voters. In the case of the proposed beginning of life question, problems with the question cannot be cured by mere draftsmanship. The legal deficiencies cannot be remedied without materially altering the substance of the proposed question, thereby subverting the intent of the proponents and violating G.L. c.53. §19. 1U6 r.v. vl unprecedented in the history of public policy questions. 8 It is my opinion, after careful review, that the proposed beginning of life question does not provide instruction to a legislator on a matter of public policy within the meaning of article 19 and G.L. c. 53. Accordingly, this question is not approved as appropriate for submission to the voters on the November ballot.9 For those thirteen questions I have determined to be ones of public policy, it is my responsibility, in conjunction with you, to prepare the questions in a "simple, unequivocal and adequate form" for the ballot. G.L. c. 53, §19. The form that I conclude is proper for each of these questions appears at the conclusion of this Opinion. It should be remembered that this Opinion does not encompass the additional requirements which must be satisfied before a public policy question may appear on the ballot. Those requirements, as contained in G.L. c. 53, §§19, 20, and 21, involve determinations of fact. As have my predecessors. I note that you, as Secretary of the Commonwealth, are in a better position than I to make the necessary factual determinations. 1984/85 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at 77-78 (1984) (Secretary of State maintains past election ballots from each of the relevant districts). Consequently, and in accordance with prior practice, I have made no independent inquiry to determine whether the proposed questions are statutorily defective for any reason other than a failure to qualify as a public policy question in proper form for presentation on the ballot. 8A review of past questions reveals no Massachusetts ballot question that offered multiple choices with no opportunity for a voter to reject the entire proposition, except for a question regarding the Vietnam War that was placed on the ballot in 1970 by a Special Act of the General Court. Chapter 588 of the Acts of 1970. This 1970 question is inapposite here because it was not placed on the ballot as a public policy question under article 19 and G.L. c. 53. In analyzing public policy questions, it bears noting that the applicable statutes assume that a question may be "negatived". G.L. c. 53, § 22, and militate against multiple choices by requiring that a response receive a majority of all votes cast to be deemed to constitute an instruction. G.L. c. 53, § 22. 9 It bears noting that the deficiencies of this question are not necessarily fatal to posing a public policy question that involves a theory of when life begins. The consequences of such a theory could conceivably affect public policy on many important issues, including laws governing abortion, tort liability, homicide, and prenatal care programs. This Opinion does not bar the placement on the ballot of future questions on any of these issues, provided that the question is properly posed to provide instruction to a legislator on a matter of public policy within the meaning of article 19 and G.L. c. 53, § 19. P.D. 12 107 With the aforementioned considerations in mind, it is my opinion that the questions I have determined to be properly ones of public policy should appear on the ballot in the following form: Representative Districts: 5th Essex and three other Representative Districts 1 ° Shall the Representative from this district be instructed to vote in favor of a resolution calling upon the United States Congress to adopt rules prohibiting members of Congress from accepting speaking fees from business and special interest groups? Representative District: 7th Worcester Shall the Representative from this district be instructed to vote in favor of legislation that would transfer the operation of that portion of the Massachusetts Turnpike, between the New York State line and its junction with Route 495 in Westborough, from the Massachusetts Turnpike Authority to the Department of Public Works, and also make that portion toll-free? Representative District: 10th Worcester Shall the Representative from this district be instructed to vote in favor of legislation authorizing a war memorial to be located in Draper Park in the Town of Milford, Massachusetts? Representative District: 2nd Suffolk Shall the Representative from this district be instructed to vote in favor of legislation that would establish a state holiday in honor of the late President John F. Kennedy to be observed on the day of the state election held in November in every even-numbered year? Representative Districts: 1st Barnstable and four other Representative Districts 1 1 Shall the Representative from this district be instructed to vote in favor of legislation establishing the Cape Cod Commission, a regional land use planning agency and regulatory body with authority to: prepare a regional policy plan; regulate developments of regional impact; designate districts of critical planning concern, including fragile environmental areas; regulate, in conjunction with the towns, developments within such districts; and foster the preparation, adoption, and implementation of local comprehensive plans consistent with the regional policy plan? 10 6th and 9th Essex; 22nd Middlesex District. 1 * 2nd, 3rd, and 4th Barnstable; Barnstable, Dukes, and Nantucket District 1U8 r.u. 1Z Representative Districts: 1st Barnstable and four other Representative Districts 12 Shall the Representative from this district be instructed to vote in favor of legislation that would impose a temporary moratorium on development on Cape Cod, suspending the approval, endorsement, or recording of land division plans creating additional lots, and suspending the issuance of building permits for construction or reconstruction, with exemptions for construction or improvement of owner-occupied single-family dwellings on single approved lots and other exemptions to be determined by municipal regulatory authorities for public projects and affordable housing; this moratorium to continue for a period of one year or until municipal, county, or state legislation and regulations have been adopted for controlling development and preserving Cape Cod's environment? Representative District: 5th Suffolk and five other Representative Districts 1 * Shall the Representative from this district be instructed to vote in favor of legislation forming the following wards and precincts of the City of Boston into a new city of the Commonwealth: Ward P.D. 12 109 stopping all expenditure of U.S. taxpayers' money for Israel's occupation of the West Bank and Gaza; and favoring the establishment of an independent Palestinian state in the West Bank and Gaza with peace for all states in the region including Israel? Representative District: 1st Norfolk Shall the Representative from this district be instructed to vote in favor of legislation to restore commuter railroad service from Boston to the South Shore on the so-called "Old Colony" railroad right of way running adjacent to existing Massachusetts Bay Transportation Authority (MBTA) Red Line tracks? Representative District: 5th Norfolk Shall the Representative from this district be instructed to vote in favor of legislation to reactivate the Middleborough, Plymouth and Greenbush Old Colony Commuter Railroad Lines which run through Braintree? Representative District: 5th Norfolk Shall the Representative from this district be instructed to vote in favor of authorizing the construction of a temporary or permanent transfer station in Braintree for commuter railroad passengers to board the Massachusetts Bay Transportation Authority (MBTA) trains from the proposed Old Colony commuter railroad? Senatorial District: Franklin and Hampshire nine Representative Districts 15 Shall the Senator (or Representative) from this district be instructed to vote in favor of a resolution calling upon the United States Congress and the President of the United States to adopt a policy of: preserving outer space as an arena for peaceful, cooperative exploration and scientific discovery among all nations; halting the militarization of outer space and the development, testing and deployment of the Strategic Defense Initiative (so-called "S.D.I." or "Star Wars"); and reinvesting taxpayers' money to support such needs as housing, education, health care and environmental protection? Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL 15 3rd and 4th Berkshire; 1st and 2nd Franklin; 1st, 2nd and 3rd Hampshire; 5th Hampden; and 8th Plymouth Representative District§ 110 r.u. iz