August 29. 1990 Number 1

August 29. 1990 Number 1 The Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: In a letter dated August 2. 1990, 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. 1990 state election ballot. I have pre- viously had occasion to conclude that one of these questions was a question of public policy, and I reaffirm that conclusion now.- As to the remaining questions, I have analyzed each which may appear, in the form provided herein, on the November ballot. The principles relevant to my review of proposed ballot questions may be simply summarized.^ The term "public policy" as used in G.L. c. 53, § 19. should be construed broadly. See 1986/87 Op. Att'y Gen. No. 2, Rep. AG.. Pub. Doc. No. 12 at 55 (1986); 1954/55 Op. Att y Gen.. Rep. AG.. Pub. Doc. No. 12 at 51-52 (1954). Matters of public policy involve determinations of what governmental action is desirable or necessary for the public interest, as opposed to individual concerns. See 1988/89 Op. Att y Gen. No. 1, Rep. AG., Pub. Doc. No. 12 at 103 (1988) (slip op. 3). See also 1966/67 Op. Att'y Gen. No. 32, Rep. AG., Pub. Doc. No. 12 at 76, 77 (1966). Generally, a ' Twelve questions were submitted, several of which are proposed to appear on the ballot in more than one district. ^ In 1988. 1 concluded that a question which concerned the establishment of a new city out of various wards and precincts of the City of Boston was a public policy question, and I provided an appropriate form for the question to appear on the ballot. See 1988/89 Op. Att'y Gen. No. 1 . Rep. A.G., Pub. Doc. No. 1 2 at 108 (1988). The question has been resubmitted this year for placement on the ballot in the Seventh Suffolk Representa- tive District, and you have made a determination, which is currently under court challenge, that it is barred from the ballot both because it failed to receive a sufilcient number of signatures, see G.L. c. 53. § 19, and because it is substantially the same as the 1988 ballot question, see G.L. c. 53, § 21 (prohibiting questions from appearing on a ballot more than once in three years). If a court subsequently determines that the ques- tion should be included on this year's ballot the form of the question which I have previously provided will suffice. See 1988/89 Op. Att'y Gen. No. 1. supra (slip op. at 14). ' For a more detailed canvassing of the relevant law concerning public policy questions. I refer you to my opinion reviewing the ballot questions proposed for the 1988 ballot. See 1988/89 Op. Att'y Gen. No. 1, supra. P.D. 12 79 question of public policy must concern an important public matter in which every citizen of the Commonwealth would have an interest and not be simply a matter of local concern. See 1988/1989 Op. Att y Gen. No. 1. supra (slip op. at 3-4). 1984/85 Op. Att y Gen. No. 2. Rep. A.G., Pub. Doc. No. 12 at 75 (1984): 1982/83 Op. Att y Gen. No. 3. Rep. A.G.. Pub. Doc. No. 12 at 84 (1982). Moreover, the instruction contained in each question must be consistent with the powers of the legislature, and the subject matter must be fit for legislative action. See 1986/87 Op. Att y Gen. No. 2. supra, at 55: 1984/ 85 Op. Att y Gen. No. 2. supra, at 75. 77: 1978/79 Op. Att'y Gen. No. 8. Rep. AG.. Pub. Doc. No. 12 at 114 (1978). Several of the questions this year require analysis in light of the require- ment that public policy questions must involve matters in which every citizen of the Commonwealth would have an interest. In conducting this analysis. I have kept in mind that this requirement should not be applied in a restrictive way. See 1988/890p. Atty Gen.No. 1. supra (slip op. at 4): 1984/ 85 Op. Att y Gen. No. 2.. supra, at 75. It has been repeatedly recognized that questions affecting a small geographic area often address problems which are of concern to the Commonwealth in general. See e.g.. 1974/75 Op. Atty Gen. No. 11. Rep. A.G.. Pub. Doc. No. 12 at 54. 55 (1974): 1982/83 Op. Att'y Gen. No. 3. supra, at 84. Even a question which, viewed narrowly, would be difficult to characterize as of wide concern, should be approved if. viewed in a larger context, it can be articulated in terms broad enough to encompass the general public interest. "* See 1984/85 Op. Att y Gen. No. 2.. supra, at 75. See. e.g.. id. (question of where representative district boundaries should be drawn in Allston-Brighton seen to implicate general concern in "how the representative districts of the General Court are drawn"): 1978/79 Op. Att'y Gen. No. 16. Rep. A.G.. Pub. Doc. No. 12 at 121 (1978) (question whether a trash incinerator should be buiU in the town of Amesbury seen as "an important environmental issue" of general interest): 1978/79 Op. Att'y Gen. No. 18, Rep. AG.. Pub. Doc. No. 12 at 122. 123 (1978) (question whether MBTA Red-Line should be extended to Alewife approved because "the Indeed. I am aware of only one instance in which a proposed ballot question has been rejected on the ground that it was of purely local concern. That question, however, asked voters whether their legislator should oppose revisions to the Saugus town charter, and it was impossible to articulate any broad statewide concern since the question made no reference to the subject matter of the proposed charter changes. See 1978/79 Op. Att'y Gen. No. 8. .supra, at 114. Moreover, the Attorney General did not rely solely on that ground in rejecting the question, since the question, as posed, also violated the requirement that ballot questions concern matters fit for legislative action. Id.: see post at n. 5. 80 P.D. 12 problem of public transportation is one of great concern to the Common- wealth in general"). Four of the questions which I have approved this year deal with specific geographic areas. None, however, may be said to be of purely local concern. One question, for example, proposes a Cape Cod-wide beach parking pro- gram. The general interest of Massachusetts citizens in Cape Cod. par- ticularly in the utilization of its coastline resources, is well established. See 1988/89 0p. Atty Gen. No. 1. supra, (slip op. at 6-7). Another question pro- poses the establishment of a commission to study the feasibility of establishing a new city out of certain wards and precincts of the City of Bos- ton. I have already recognized the public policy status of the formation of such a city. id. (slip op. at 7 n. 5). and it follows that the establishment of a commission to study the issue is likewise a matter of public policy. A third question seeks legislation prohibiting the Massachusetts Municipal Wholesale Electric Company from conveying property it owns in Ludlow to the Commonwealth for the construction of the Hampden County Jail. If nothing else, the wide public interest in the siting of corrections facilities, an interest ofwhich I am permitted to take note, see 1968/69 Op. Att y Gen. No. 5. Rep. A.G.. Pub. Doc. No. 12 at 37. 38 (1968). would qualify this as a public policy question. Finally, a fourth question proposes legislation to adopt a charter for Essex County which would abolish the elected offices of com- missioner and treasurer. This question, viewed broadly, relates to the com- position of county government, a question which is of general interest. See 1976/77 Op. Atfy Gen. No. 7. Rep. A.G.. Pub. Doc. No. 12 at 89. 91 (1976) (approving public policy question seeking the abolition of the county level of government).-'' '' 1 note that in a 1978 opinion, a proposed question was rejected which would have asked. "Should the State Representative be instructed to oppose the Charter Revision changes as proposed by the town meeting and support the development of a charter commission for the town of Saugus?" 1978/79 Op. Atty Gen. No. 8. supra, at 1 14. Because the question was posed in terms of the process of charter revision by a town charter commission, a process which does not contemplate legislative involvement, the question violated the requirement that a proposed public policy question must concern a matter appropriately subject to some type of legislative action. Id. Here, by contrast, the question asks that a charter for Essex County be adopted by legislation, a matter which is on its face fit tor legislative action. P.D. 12 81 The remaining questions I have approved for placement on the ballot are clearly public policy questions under the relevant principles and do not require extended discussion.^ I turn then to the two questions which I have determined must be disapproved. The first question I must disapprove asks: Should the town of Chelmsford activate a traffic safety operation? Primary function is to issue traffic tickets as a municipal revenue source. This question is not necessarily deficient because it concerns only a single town. Viewed generally, it appears to concern traffic safety and municipal revenues, subjects which may be viewed as of state-wide concern. On its face, however, the question, by asking whether ''the town [should] activate a traffic safety operation" (emphasis added), appears to seek action from town officials rather than action from the state legislature. See 1968/69 Op. Att y Gen. No. 5. supra, at 38 (Attorney General may draw reasonable inferences from the form of the statement of the question in the petition). This view, moreover, is confirmed by information, including news accounts, provided by the proponent of the quesUon. which indicate that the question concerns a budget proposal before the Chelmsford Town Meedng to fund a traffic safety unit of police officers. See id. (in reviewing public policy questions. Attorney General may rely on such facts of com- mon knowledge, actual or presumed, in the voting district concerned as may be reasonable). The question, therefore, clearly violates the require- ment that public policy questions pursuant to G.L. c. 53. § 19. instruct state legislators on matters fit for legislative action. See 1986/87 Op. Att'y Gen. No. 2. supra, at 55: 1984/85 Op. Att'y Gen. No. 2. supra, at 76-77: 1978/79 Op. Two questions, for example, would instruct legislators to vote in favor of resolutions memorializing the Congress and the President of the United States, and another question would seek in part to require the elec- tion of legislative committee chairpersons by the full membership of the Massachusetts Senate. Although these questions do not involve the passage of laws, it is well established that matters fit for legislative action are not limited to the passage of laws and mav include both the passage of resolutions, see 8 Op. Att'y Gen. 490, 491-492 (1928). 1984/85 Op. Atty Gen. No. 2., supra, at 77. as well as the ordering of the internal pro- cedures of the legislature, see id.: 1978/79 Op. Atty Gen. No. 14, Rep. A.G., Pub. Doc. No. 12 at 1 19 (1978). These questions, therefore, clearly meet the requirement that public policv questions concern matters which are fit for legislative action. See 1986/87 Op. Att'v Gen. No. 2. supra, at 55; 1 984/85 Op. Att'y Gen. No. 2, supra. at 76-77; 1978/79 Op. Att'y Gen. No. 8. supra, at 1 14. 82 P.D. 12 Att'y Gen. No. 8. supra, at 1W The second proposed question which I must disapprove asks the voters to provide a definition ofwhen human life begins. A similar question was sub- mitted for my review in 1988, and in the opinion I issued at that time. I dis- cussed at length my reasons for disapproving the question. See 1988/89 Op. Att'y Gen. No. \. supra. The quesfion proposed in 1988 would have inquired of the voter: "In biological terms, when does an individual human life begin?" (emphasis in original); and would have instructed the voter to answer by selecting one of three choices: "conception." "viability." or "birth." or by writing in a "different biological term." Id. (slip op. at 7). The question as currently proposed is phrased in substantially similar terms as the 1988 version except that the query as to when life begins is followed by the phrase "so that the Representative from this district may be instructed to vote for legislation that protects human life, insofar as permit- ted by the United States Constitution."^ I need not determine whether the addition of this clause cures certain of the failings I identified with the pre- vious question.^ because the current question retains intact from the 1988 version another flaw which clearly bars it from the ballot. As with the 1988 version, this year's question utilizes a multiple choice format which would not allow voters to choose that no instruction on the issue be given. For the reasons discussed in my 1988 opinion, a multiple choice quesfion which fails to allow voters to reject enfirely any instrucfion to their legislator on the subject of the quesfion. is impermissible, see 1988/89 Op. Att'y Gen. No. 1. ^ Although the procedure provided by G.L. c. 53. § § 19 ef seq.. is not an appropriate means for voters to advise local officials, citizens wishing to express their views to local officials through the use of the ballot are not without the means to do so. General Laws c. 53. § 18A. provides a method for placing a "nonbinding public opinion advisory question" on the ballot for a regular municipal election in any city or town. * The full question (including emphasis as in the original) is as follows: Which of the following biological terms most accurately de/ines when an individual human life begins. so that the Representative from this district may be instructed to vote for legislation that protects such human life, insofar as permitted by the United States Constitution? To vote on this question, mark a cross X in the square at the right of the answer you select. Only vote for one. A. Conception (the moment of fertilization) B. Viability (approximately 24-28 weeks into pregnancy, when the fetus can survive outside the womb, with or without artificial aid) C. Birth D. Write-in: Specify a different biological term ' Those failings included the absence from the question either of any indication to the voters of what public policy would be affected by their vote or of any instruction or direction to a legislator regarding some governmental action. See 1988/89 Op. Att'y Gen. No. 1. supra (slip op. at 5. 8-9). P.D. 12 83 supra (slip op. at 9-10 & n. 9). and I conclude on that basis that the question cannot be included on the ballot."^ For those questions which 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. In keeping with that responsibility. I provide the following form, in which, in my opinion, the questions should appear on the ballot: Representative Districts: Barnstable, Dukes and Nantucket: Sixth Essex Shall the Representative from this district be instructed to vote in favor of a resoultion memorializing the Congress and the President of the United States to immediately reduce the military budget by ten percent, leading to at least a fifty percent reduction in the next five years, the savings to be spent on civilian needs, especially housing, education, health care, day care, environmental clean-up. infrastructure repair, and the conversion from a military to a peacetime economy? Representative District: 26th Middlesex Shall the Representative from this district be instructed to submit a resolution calling upon the United States Congress: 1) to enact reductions in military expenditures each year for the next five years that decrease the total military budget by at least fifty percent from the 1991 to the 1996 budget year: (2) to provide assistance to communities and employers in converting from military to peacefime production: and (3) to reallocate funds from military uses to reduction of the federal deficit and to increased revenue- sharing with state and local governments in support of revitalized programs in health, housing, law enforcement, environmental protection, education, and other pressing domesdc needs? '" I note that my rejection ofthe question on this ground was. based on my 1988 opinion, entirely foreseeable. 1 reiterate the view expressed in that opinion that the requirements for public policy questions do not pro- hibit a properly posed public policy question that involves a theory of when life begins. See 1988/89 Op. Atty Gen. No. 1. supra (slip op. at 10 n. 9). See. e.g.. 1976/77 Op. Atty Gen. No. 7. supra, at 90 (approving question asking whether representative should vote to support and ratify an amendment to the IJnited States Con- stitution permitting states to prohibit abortions and affirm the right to life ofthe unborn). " I note that G.L. c. 53. §§ 19. 20. and 21. contain additional requirements which must be .satisfied before a public policy question may appear on the ballot. These requirements involvedeterminationsof fact, which you. as Secretary ofthe Commonwealth, arc in a better position than I to make. See 1984/85 Op. Atty Gen. No. 2 supra, at 77-78. 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 public policy questions in proper form for presentation on the ballot. 84 P.D. 12 Representative District: Seventh Essex. Senatorial District: First Essex Shall the Senator/Representative from this district be instructed to vote in favor of legislation adopting a charter for Essex County providing for the abolition of the elected offices of county commissioner and treasurer? Representative District: Seventh Hampden Shall the Representative from this district be instructed to vote in favor of legislation prohibiting the Massachusetts Municipal Wholesale Electric Company from conveying any of its property in Ludlow to the Common- wealth for the purpose of constructing the Hampden Count} Jail'.' Senatorial District: Eirst Hampden Shall the Senator from this district be instructed to vote in favor of legisla- tion abolishing the state welfare system? Representative District: Sixth Suffolk Shall the Representative from this district be instructed to vote in favor of legislation establishing a commission for the purpose of examining the feasibility of establishing a new city within the boundaries of the following wards and precincts of the City of Boston: ward 4. precincts 3 and 4: all of wards 8. 9. 12. and 14; ward 10. precincts 1.2. 6. and 7: ward 1 1. precincts 1.2. 3.4. 5. and 6: ward 13. precincts 1. 2. 4. and 5; ward 15. precincts 1. 2. and 5; ward 17. precincts 1.2.3.5.7.8, 10. and 12: and ward 18. precincts 1.2.3.4.5. 6. and 21? Senatorial District: Fourth Middlesex Shall the Senator from this district be instructed to vote in favor of requir- ing the election of committee chairpersons by the full membership of the Senate and allowing the State Auditor and the Inspector General to have access to the records of the Legislature? Representative Districts: First, Second, Third, and Fourth Barnstable: Barnstable, Dukes and Nantucket Shall the Representative from this district be instructed to vote in favor of legislation that would create a Cape Cod-wide beach sticker system whereby: (1) Cape Cod towns which elect to participate would share beach parking facilities; (2) Cape Cod-wide beach stickers would be available for optional purchase by any resident who possesses a beach sticker for his or her own town; and (3) the sticker system would be put into effect for a one P.D. 12 85 year trial period and stickers would be valid for use Monday through Friday only? Representative District: Fifth Essex Shall the Representative from this district be instructed to vote for legisla- tion that would permit public policy questions to be posed to the voters in the form of multiple choice questions? Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL 86 PD. 12