Bogertman v. Attorney General

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SJC-12063

TIMOTHY BOGERTMAN & others1 vs. ATTORNEY GENERAL & another.2

Suffolk. May 2, 2016. - June 28, 2016.

Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines,
JJ.

Initiative. Constitutional Law, Initiative petition. Attorney
General. Gaming.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 7, 2015.

The case was reported by Cordy, J.

Matthew S. Cameron for the plaintiffs.
Elizabeth N. Dewar, Assistant State Solicitor, for the
defendants.
Jeffrey S. King & Hayley Trahan-Liptak, for Eugene McCain,
amicus curiae, submitted a brief.

GANTS, C.J. In this appeal, we decide whether the Attorney

General properly certified an initiative petition that seeks to

1
Matthew Cameron, Joseph Catricala, Meagan Catricala, Brian
Gannon, Jesse Kollins, Gail Miller, Celeste Myers, Sandra Nijar,
and John Ribeiro.
2
Secretary of the Commonwealth.
 2

amend G. L. c. 23K to authorize the Gaming Commission

(commission) to award one additional license for a slot machine

parlor. Article 48 of the Amendments to the Massachusetts

Constitution, which governs the process for presenting proposed

laws directly to Massachusetts voters through popular

initiatives, sets forth certain standards for initiative

petitions. In this case, the plaintiffs contend that the

petition violates two of art. 48's restrictions, which prohibit

initiative petitions that are (1) limited to local matters, or

(2) substantially the same as those presented at either of the

two preceding biennial State elections. See art. 48, The

Initiative, II, §§ 2, 3, of the Amendments to the Massachusetts

Constitution, as amended by art. 74 of the Amendments. We

conclude that the petition complies with these provisions and

was therefore properly certified by the Attorney General.

Background. In 2011, the Legislature enacted the Expanded

Gaming Act, St. 2011, c. 194, which established the commission

and a highly structured process for introducing, licensing, and

regulating casino and slots gambling in the Commonwealth under a

new statute, G. L. c. 23K. See Abdow v. Attorney Gen., 468

Mass. 478, 480-483 (2014) (describing Expanded Gaming Act).

Chapter 23K authorizes the commission to award up to three

"category 1" licenses for gaming establishments "with table

games and slot machines" (i.e., casinos) in certain specified
 3

regions of the Commonwealth, and no more than one "category 2"

license for a gaming establishment "with no table games and not

more than 1,250 slot machines" (i.e., a slots parlor). See

G. L. c. 23K, § 2 (defining category 1 and 2 licenses); G. L.

c. 23K, § 19 (a) (specifying number and regional locations of

category 1 licenses); G. L. c. 23K, § 20 (a) (specifying number

of category 2 licenses). Chapter 23K also requires the

commission to request applications for category 2 slots parlor

licenses before requesting applications for category 1 casino

licenses. See G. L. c. 23K, § 8 (a).

On August 5, 2015, the proponent, Eugene McCain,3 filed an

initiative petition for "An Act relative to expanded gaming,"

(petition 15-34 or petition), pursuant to art. 48.4 This

petition seeks to amend G. L. c. 23K in two ways. First, the

petition would amend G. L. c. 23K, § 20, by adding a new

subsection (g) that would authorize, but not require, the

commission to award one additional category 2 slots parlor

license to a qualified applicant, but only for a location that

meets the following qualifications:

"The proposed location of the gaming establishment shall be
at least 4 acres large, and shall be adjacent to, and
within 1500 feet of, a race track, including the track,

3
We acknowledge the amicus brief submitted by Eugene
McCain.
4
The full text of petition 15-34 is set out in the
Appendix.
 4

grounds, paddocks, barns, auditorium, amphitheatre and/or
bleachers, if any, where a horse racing meeting may
physically be held, which race track shall have hosted a
horse racing meeting, provided that said location is not
separated from said race track by a highway or railway."

Second, the petition would eliminate the timing requirement in

G. L. c. 23K, § 8, so that the commission may solicit

applications for a category 2 slots parlor license concurrently

with or after the solicitation of applications for category 1

casino licenses.5

In a letter to the Secretary of the Commonwealth

(Secretary) dated September 2, 2015, the Attorney General

certified that

"this measure is in proper form for submission to the
people; that the measure is not, either affirmatively or
negatively, substantially the same as any measure which has
been qualified for submission or submitted to the people at
either of the two preceding biennial state elections; and
that it contains only subjects that are related or are
mutually dependent and which are not excluded from the
initiative process pursuant to Article 48, the Initiative,
Part 2, Section 2."

On December 7, 2015, the plaintiffs, ten registered voters

and residents of Suffolk County, commenced an action against the

Attorney General and the Secretary in the county court, seeking

5
Specifically, the proposed amendment would delete the
first sentence from G. L. c. 23K, § 8 (a), which currently
states: "The commission shall issue a request for applications
for category 1 and category 2 licenses; provided, however, that
the commission shall first issue a request for applications for
the category 2 licenses." The amendment would replace the
deleted language with a new sentence that simply states, "The
commission shall issue a request for applications for category 1
and category 2 licenses."
 5

relief in the nature of certiorari and mandamus under G. L.

c. 249, §§ 4 and 5, and requesting declaratory relief under

G. L. c. 231A. The plaintiffs allege in their complaint that

the petition concerns an excluded local matter in violation of

art. 48, because it would "restrict the newly-available license

to gaming establishment proposals in the immediate vicinity of

Suffolk Downs, a thoroughbred horse racing track which spans two

municipalities (Boston and Revere) in Suffolk County." In

connection with that allegation, the plaintiffs submitted a

September 12, 2015, Boston Globe article reporting that McCain,

"the man who is driving the campaign" for the initiative

petition, had an agreement to buy a mobile-home property near

Suffolk Downs in Revere. According to the article, McCain

raised with Revere officials the prospect of putting slot

machines at the site, although the city did not support the

proposal. The plaintiffs also allege that the petition violated

art. 48's prohibition on presenting "substantially the same"

measure as had been proposed within the two preceding biennial

State elections, because in the November, 2014, election the

voters had considered ballot question 3, entitled "Expanding

Prohibitions on Gaming."

On February 25, 2016, a single justice of the county court

reserved and reported the case for determination by this court.
 6

Discussion. Article 48 of the Amendments to the

Massachusetts Constitution establishes the process and standards

for enactment of a law by "popular initiative, which is the

power of a specified number of voters to submit constitutional

amendments and laws to the people for approval or rejection."

Art. 48, I. Article 48 requires that, before the proponents of

an initiative petition can start the process of soliciting

signatures from additional voters, submitting the petition to

the Legislature for possible action, and placing it on the

ballot, they must submit the petition by a certain date to the

Attorney General for review. Art. 48, The Initiative, II, § 3,

as amended by art. 74. The Attorney General must then decide

whether to

"certify that the measure and the title thereof are in
proper form for submission to the people, and that the
measure is not, either affirmatively or negatively,
substantially the same as any measure which has been
qualified for submission or submitted to the people at
either of the two preceding biennial state elections, and
that it contains only subjects not excluded from the
popular initiative and which are related or which are
mutually dependent."

Id. If the Attorney General certifies that the initiative

petition meets these criteria, and the proponents submit the

required number of additional signatures of qualified voters to

the Secretary by a certain date, the Secretary will then

transmit the initiative petition to the House of Representatives

for consideration. See id. § 4; art. 48, The Initiative, V,
 7

§ 1, as amended by art. 81 of the Amendments to the

Massachusetts Constitution; Lincoln v. Secretary of the

Commonwealth, 326 Mass. 313, 317-318 (1950). If the Legislature

fails to enact the proposed law by a certain date,6 and the

proponents succeed in obtaining and timely submitting the

required number of further additional signatures, then the

Secretary will submit the initiative petition to the voters at

the next State election. Art. 48, The Initiative, V, § 1, as

amended by art. 81.

Thus, the Attorney General acts as the gatekeeper for the

initiative process, ensuring that a proposed petition meets

certain constitutional requirements before it can be submitted

to the Legislature and the voters. The Attorney General's

review does not involve, however, an "inquiry into [the]

substance" of a proposed measure; she is to be "not the censor,

but the aid and interpreter of the people's will," allowing "the

people [to] speak freely," with "as little restraint as

possible." Nigro v. Attorney Gen., 402 Mass. 438, 446-447

(1988), quoting 2 Debates in the Massachusetts Constitutional

Convention 1917-1918, at 728 (1918) (Constitutional Debates).

6
The legislative process is somewhat different for
constitutional amendments proposed in an initiative petition.
See art. 48, The Initiative, IV, §§ 1-5, of the Amendments to
the Massachusetts Constitution, as amended by art. 81 of the
Amendments.
 8

See Yankee Atomic Elec. Co. v. Secretary of the Commonwealth,

403 Mass. 203, 211 (1988) (Yankee II).

We have long held that "the certificate of the Attorney

General" concerning an initiative petition "is open to inquiry

as to its conformity to the Constitution in appropriate

proceedings." Horton v. Attorney Gen., 269 Mass. 503, 508

(1929). We review the Attorney General's certification of an

initiative petition de novo, Abdow, 468 Mass. at 487,

"consider[ing] anew what facts are implicit in the language of

the petition or are subject to judicial notice, but . . .

defer[ring] to the Attorney General's reasonable determinations

concerning facts subject to [her] official notice,"7 Associated

Indus. of Mass. v. Attorney Gen., 418 Mass. 279, 286 (1994). In

undertaking our review, we also bear in mind "the firmly

established principle that art. 48 is to be construed to support

the people's prerogative to initiate and adopt laws." Abdow,

supra, at 487, quoting Carney v. Attorney Gen., 451 Mass. 803,

814 (2008) (Carney II). We do not weigh the wisdom of the

policies underlying a proposed measure, but only whether the

petition conforms to the constitutional requirements of art. 48.

See Buckley v. Secretary of the Commonwealth, 371 Mass. 195,

202-203 (1976).

7
See part 1.c, infra, for further discussion of official
notice.
 9

1. Local matters exclusion. Article 48 provides that

"[n]o measure . . . the operation of which is restricted to a

particular town, city or other political division or to

particular districts or localities of the commonwealth . . .

shall be proposed by an initiative petition." Art. 48, The

Initiative, II, § 2. The plaintiffs contend that petition 15-34

violates this "local matters" exclusion because the petition is

so narrowly drawn that only one existing site in the

Commonwealth could meet its specifications while also being

legally eligible for a new slots parlor license. Our review of

the Attorney General's certification of the petition is informed

by the general principle favoring certification of proposed

initiatives: "unless it is reasonably clear that a proposal

contains an excluded matter, neither the Attorney General nor

this court on review should prevent the proposal from appearing

on the ballot" (emphasis added). Associated Indus. of Mass.,

418 Mass. at 287.

a. Purpose and scope. We begin by reviewing the purpose

and scope of the local matters exclusion in art. 48. "The

purpose of the local matters exclusion is to ensure that only

matters of Statewide concern are put before the voters in an

initiative petition," because "[m]atters of purely local or

regional concern are not appropriately decided by all

Massachusetts voters." Abdow, 468 Mass. at 496, citing Carney
 10

II, 451 Mass. at 811. See Thompson v. Attorney Gen., 413 Mass.

21, 23 (1992); Massachusetts Teachers Ass'n v. Secretary of the

Commonwealth, 384 Mass. 209, 224 (1981). As stated by a member

of the committee on initiative and referendum that proposed art.

48 during the Massachusetts constitutional convention of 1917-

1918:

"Under the heading 'Excluded Matters', . . . the intention
was to exclude purely local matters, matters that were not
State wide matters. A matter relating to a city or town
should be dealt with by the Legislature or by that city or
town, or by the Legislature referred to that city or town.
It is clear that a matter referring to a particular city is
not a matter of State wide interest that should be dealt
with by the State wide initiative and referendum."

Constitutional Debates, supra at 693 (comments of Joseph Walker

of Brookline).8 In discussing the language of the local matters

exclusion, Walker distinguished between "[l]aws that relate to a

particular district or locality" and those that relate "to the

Commonwealth as a whole." Id. As these comments suggest, the

local matters exclusion serves to prevent the entire

Massachusetts electorate from deciding issues involving

particular municipalities or other political subdivisions that

8
"It is permissible to examine the debates of the
Constitutional Convention for the purpose of ascertaining the
views presented to the Convention and the understanding of its
members, although the plain meaning of the words used in the
Amendment cannot be thereby controlled." Yont v. Secretary of
the Commonwealth, 275 Mass. 365, 369 (1931). See Buckley v.
Secretary of the Commonwealth, 371 Mass. 195, 198-199 (1976).
 11

do not concern them and that are more properly decided by the

government or voters of those localities, or by the Legislature.

Our previous decisions concerning the local matters

exclusion have distinguished between two types of petitions.

Where "the restriction to a particular town, city or other

political subdivision or to particular districts or localities

[is] specified in the law itself in terms which expressly or by

fair implication are geographically descriptive of territorial

divisions of the Commonwealth," the petition is barred by the

local matters exclusion. Mount Washington v. Cook, 288 Mass.

67, 74 (1934), cited with approval in Abdow, 468 Mass. at 497;

Carney II, 451 Mass. at 811; Ash v. Attorney Gen., 418 Mass.

344, 348 (1994); and Massachusetts Teachers Ass'n, 384 Mass. at

224. For example, this court has advised the Legislature on

many occasions that proposed laws were not proper subjects for

an initiative or a referendum9 where they explicitly targeted

particular counties, regions, or municipalities. See, e.g.,

Opinion of the Justices, 334 Mass. 721, 724, 733, 743-744 (1956)

(bill creating Massachusetts Port Authority to take over,

9
Article 48 contains a local matters exclusion for
referendum petitions that is nearly identical to the exclusion
for initiative petitions. See art. 48, The Referendum, III,
§ 2. We therefore consider decisions applying the local matters
exclusion to referendum petitions in deciding how to apply the
local matters exclusion to initiative petitions. See
Massachusetts Teachers Ass'n v. Secretary of the Commonwealth,
384 Mass. 209, 223 (1981).
 12

finance, and operate Sumner tunnel in Boston, State-owned

airports in East Boston and Bedford, Mystic River Bridge, and

other port properties in Boston not subject to referendum due to

local matters exclusion); Opinion of the Justices, 303 Mass.

615, 618, 626 (1939) (bill for establishment of representative

districts in counties that did not apply to Dukes and Nantucket

Counties, and that operated differently in Suffolk County, not

subject to referendum due to local matters exclusion); Opinion

of the Justices, 294 Mass. 607, 608, 609 (1936) (initiative

proposal requiring taxicab stands only in cities improper due to

local matters exclusion); Opinion of the Justices, 261 Mass.

523, 541, 554 (1927) (bill concerning Boston Elevated Railway

Company not subject to referendum due to local matters

exclusion, where assessment of costs and operation of bill were

restricted to cities and towns where the railway operated). See

also Massachusetts Teachers Ass'n, supra at 223 (discussing

application of local matters exclusion in these opinions).

Where the proposed laws concerned Statewide issues and, on

their face, applied Statewide, we have held that initiative

petitions were not barred by the local matters exclusion even

though, in practice, the laws might affect some localities

significantly more than others. See Abdow, 468 Mass. at 497-498

(petition to prohibit various forms of gaming not barred by

local matters exclusion, because it involved matter of Statewide
 13

concern and applied Statewide, even though economic impact of

Statewide ban would be greatest in existing or prospective host

communities); Carney II, 451 Mass. at 810-813 (petition to

eliminate parimutuel dog racing not barred by local matters

exclusion, because it involved matter of Statewide concern and

applied Statewide, even though opponents alleged it took "'dead

aim' at the only two localities where dog racing . . . exist[ed]

or [was] likely to exist in the foreseeable future"); Ash, 418

Mass. at 347-349 (petition to ban rent control not barred by

local matters exclusion, because it applied Statewide and

involved issue of Statewide concern, even though rent control

was only in effect in small number of municipalities);

Massachusetts Teachers Ass'n, 384 Mass. at 224-225 (Proposition

2½ not barred by local matters exclusion because it addressed

matter of Statewide concern and applied in all areas of the

Commonwealth, even though it had different consequences in

various municipalities).

b. Application in this case. Applying these principles to

petition 15-34, we note, first, that it falls within a subject

matter area -- gaming -- that is regulated by the State, not by

municipalities or other political subdivisions, and is plainly

an issue of Statewide concern.10 See Abdow, 468 Mass. at 497

10
The plaintiffs concede in their brief that "the general
question of an additional gaming license might . . . be a
 14

(proposal to prohibit casinos, slot machines, all games

conducted under G. L. c. 23K, and parimutuel wagering was

"plainly a matter of Statewide . . . concern"); Carney II, 451

Mass. at 806, 812-813 (proposal to eliminate parimutuel dog

racing involved issue of Statewide concern, since it was

regulated at State level); Commonwealth v. Wolbarst, 319 Mass.

291, 294-296 (1946) (discussing Commonwealth's "long established

policy of dealing with gambling on a State wide basis").

Wherever the second slots parlor license might be awarded, its

economic "impact would be Statewide." See Abdow, supra at 498.

The construction workers who would build such a slots parlor,

the employees who would operate it, and the visitors who would

play the slots would not be limited to those residing in the

host community, and the tax revenues anticipated from its

operation would benefit State coffers. See id. The adverse

consequences of slots parlor gambling claimed by gambling

opponents, "including an increase in those suffering the

psychological, social, and economic effects of 'gambling

disorder,' . . . and higher crime rates, if they were to occur,"

would also not be limited to the host community. Id. These

factors support submission of the petition to the entire

Massachusetts electorate.

suitable subject for a statewide ballot question in and of
itself."
 15

We further observe that, on its face, there is nothing in

the language of the proposed law that explicitly refers, or

restricts its operation, to any "particular town, city or other

political division or to particular districts or localities of

the commonwealth." Art. 48, The Initiative, II, § 2. To be

sure, it contains a set of relatively narrow specifications:

the location of the new slots parlor must be at least four acres

large; it must be within 1,500 feet of a race track where a

horse race may be physically held and in fact has been held; and

it cannot be separated from the race track by a highway or

railway. But on their face, these requirements do not refer to

any particular geographical location, and the plaintiffs have

not demonstrated why a developer could not create a new

entertainment complex that meets these specifications at any one

of many possible locations across the Commonwealth where horse

races have been held or could be conducted, and then proceed to

apply for the new slots parlor license.

We thus consider whether, even if the proposed law is not

expressly limited to a particular locality, it contains terms

that "by fair implication are geographically descriptive of

territorial divisions of the Commonwealth," and thereby

improperly restrict its application to local matters. Mount

Washington, 288 Mass. at 74. The plaintiffs urge us to take

judicial notice that the petition's "proponent Eugene McCain has
 16

a property interest in land which . . . is the only site in the

Commonwealth which meets these carefully-drafted specifications

while also being legally eligible for a new license application"

(footnote omitted). These asserted facts are not appropriate

for judicial notice, and, even if they were, they would not

suffice to show that the proposed law is limited to local

matters.

We may take judicial notice of facts of common knowledge

that are indisputably true. See Provencal v. Commonwealth

Health Ins. Connector Auth., 456 Mass. 506, 515 n.16 (2010),

citing Nantucket v. Beinecke, 379 Mass. 345, 352 (1979). See

also Mass. G. Evid. § 201(b) (2016) ("The court may judicially

notice a fact that is not subject to reasonable dispute because

it [1] is generally known within the trial court's territorial

jurisdiction or [2] can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned").

Here, it is certainly not a matter of common knowledge that

McCain has an interest in a property that meets the

specifications in the proposed law, still less that it is the

only property in the Commonwealth that could meet those

specifications while also being eligible for the proposed slots

parlor license. Nor have the plaintiffs brought to our

attention unimpeachable records that would unquestionably

establish these alleged facts. Although the plaintiffs have
 17

proffered a newspaper article in support of their claims, the

article does not definitively state all of these allegations

and, in any event, we must disregard it as hearsay.11 See Costa

v. Fall River Hous. Auth., 453 Mass. 614, 628 (2009).

Nor can we say that all of the plaintiffs' allegations are

indisputably true. See Provencal, 456 Mass. at 515 n.16. The

record indicates that there is a dispute over how many locations

with existing race tracks nearby might be eligible for a slots

parlor license under the specifications in the proposed law. As

the plaintiffs stipulated, "[t]he proponent and opponents of

petition 15-34, in their various memoranda on certification to

the Attorney General, debated which, and how many, currently-

existing race tracks in the Commonwealth could meet the specific

site requirements set forth in the proposed law." A memorandum

submitted by counsel for the proponent asserts that the proposed

siting criteria would "apply to at least [ten] municipalities

containing horse race tracks scattered throughout the

Commonwealth, which have already hosted horse racing meetings."

An opposition memorandum disputes that assertion, but presents

11
The article states that "[t]he language of the ballot
petition . . . seemed tailor-written for Suffolk Downs," and
that McCain "has an agreement to buy the mobile-home property
down the parkway from Suffolk Downs." But it does not
unequivocally state that the property meets the specifications
in the proposed law or that it is the only property in the
Commonwealth that would be eligible for the proposed slots
parlor license.
 18

specific arguments challenging only two of the potential sites

listed. Even the plaintiffs acknowledge in their brief that

there are "three presently identifiable sites in the

Commonwealth" -- Brockton Fairgrounds, Plainridge Park, and

Suffolk Downs -- near which the proposed slots parlor might be

located. The plaintiffs argue that the Brockton Fairgrounds and

Plainridge Park locations would not be eligible for the proposed

slots license, leaving Suffolk Downs as the only possible

choice, but those arguments are open to question. The

plaintiffs ask us to take notice that the city of Brockton has

entered into an agreement under which the city has pledged to

work with Mass Gaming & Entertainment, LLC, to support that

entity's application for a category 1 casino license at the

Brockton Fairgrounds. But it appears that application was

rejected by the commission on April 28, 2016.12 The plaintiffs

also assert that Plainridge Park is already the holder of a

category 2 license and therefore would not be eligible for a

second license under G. L. c. 23K, § 23 (d). But the

proponent's memorandum argues that Plainville, the town where

Plainridge Park is located, would not be excluded as a location

12
See Gaming Commission, Transcript, Public Meeting no.
188, vol. 3, at 121-122 (Apr. 28, 2016), http://massgaming.com/
wp-content/uploads/Transcript-4-28-16-REGION-C-UPDATE.pdf
[https://perma.cc/9QGF-PVCD].
 19

by this provision; only the actual license holder or its

affiliates would be barred from seeking a second license.

Even if we were to accept as true all of the plaintiffs'

allegations that the petition's specifications would limit the

slots parlor license to a single site among existing race

tracks, i.e., Suffolk Downs, that still would not render the

petition improper under the local matters exclusion because

nothing would prohibit a developer from building a new race

track in the Commonwealth, holding a horse race there (subject

to licensing),13 and then seeking to license an adjacent slots

parlor that fits within the terms of the proposed law. Although

we acknowledge that there might be considerable practical

economic obstacles to such an undertaking, "[t]hat the present

economic realities of the industry might make this prospect

unlikely to materialize is irrelevant" (emphasis in original).

Carney II, 451 Mass. at 812. The initiative petition does not

run afoul of the local matters exclusion where the second slots

parlor license it proposes could potentially be awarded to a

site in many localities, even if it were most likely that it

would be awarded to a site near Suffolk Downs. See id. at 810-

812 (rejecting argument that proposed law outlawing dog racing

13
The plaintiffs have not directed us to any limitation on
the number of horse racing licenses available in the
Commonwealth; nor are we aware of any. See G. L. c. 128A, § 2,
as amended through St. 2011, c. 194, § 38.
 20

should be excluded from initiative process because there were

only two localities where dog racing currently existed or was

likely to exist in foreseeable future).

The plaintiffs also contend that the initiative is improper

because it automatically excludes all cities and towns that lack

sufficient developable acreage to meet the size requirements of

the proposed law. We do not find this argument persuasive. The

four-acre size requirement is not prohibitively large, amounting

to only 0.00625 square miles, and cities and towns that are

fully developed might still choose to redevelop a parcel. And

even assuming that the four-acre requirement might favor some

cities or towns over others, the local matters exclusion "does

not require that a proposed statute have uniform, Statewide

application" (emphasis added). Massachusetts Teachers Ass'n,

384 Mass. at 224.

It may well be true that this petition was motivated by one

person's desire to profit from the Commonwealth's developing

gaming industry, based on his ownership interest in a particular

property; the interests that propel both proponents and

opponents of initiative petitions may often involve self-

interest rather than the public interest. But our focus in

deciding whether an initiative petition reaches the voters must

be on the actual law proposed by the petition, not on the

motives that may lie behind it; the voters may consider those
 21

motives in deciding how they vote on the petition. Because the

language of the proposed law would permit the additional slots

parlor to be located at many potential sites in the

Commonwealth, it is not reasonably clear that the petition

contains terms that "by fair implication are geographically

descriptive of territorial divisions of the Commonwealth."

Mount Washington, 288 Mass. at 74. The petition, if approved by

the voters of Massachusetts, would not require that the

additional slots parlor license be awarded only to an applicant

located near Suffolk Downs.

c. Factual examination by Attorney General. The

plaintiffs also contend that the Attorney General failed to

conduct an adequate factual inquiry concerning the petition's

alleged inclusion of excluded local matters. We have previously

held, however, that "the Attorney General is not to become

involved with holding extensive hearings to determine the full

factual impact of a petition." Yankee Atomic Elec. Co. v.

Secretary of the Commonwealth, 402 Mass. 750, 758 (1988) (Yankee

I). Rather, "the factual examination required of the Attorney

General is limited to matters implicit in the language of the

petition and to matters of which the Attorney General may

properly take official notice." Yankee II, 403 Mass. at 205.

"Official notice includes matters subject to judicial notice, as

well as additional items of which an agency official may take
 22

notice due to the agency's established familiarity with and

expertise regarding a particular subject area." Id., quoting

Yankee I, supra at 759 n.7. Such facts, we have said, can be

"quickly determined," so that the Attorney General's

"determinations w[ill] not involve undue delay which might

frustrate the initiative process." Yankee I, supra at 759.

In this case, the Attorney General has stipulated that she

did not take official notice of how many race tracks currently

existing in the Commonwealth would meet the requirements set

forth in the proposed law. But she was not obligated to do so

where the facts alleged by the plaintiffs are not appropriate

for judicial notice. See Mass. G. Evid. § 201(b). Nor have the

plaintiffs demonstrated that there were any additional matters

that the Attorney General should have officially noticed based

on her office's established familiarity and expertise. In light

of the deference due the Attorney General's reasonable

determinations concerning facts subject to her official notice,

see Associated Indus. of Mass., 418 Mass. at 286, we conclude

that the Attorney General was not required to undertake further

factual investigation.

2. Exclusion of "substantially the same" matters. Article

48 also requires the Attorney General to certify that "the

measure is not, either affirmatively or negatively,

substantially the same as any measure which has been qualified
 23

for submission or submitted to the people at either of the two

preceding biennial state elections." See art. 48, The

Initiative, II, § 3, as amended by art. 74. This provision

appears to have been intended especially to prevent "the

constant forcing of . . . questions which have been rejected."

Constitutional Debates, supra at 673. But it also prohibits

hasty efforts to repeal laws previously enacted by initiative.

See Opinion of the Justices, 422 Mass. 1212, 1225 (1996) (art.

48 "prohibit[s] initiative proposals relating to measures the

substance of which were enacted in either of the two prior

State-wide elections").

The plaintiffs contend that the Attorney General improperly

certified the petition because it is "substantially the same" as

question 3 on the 2014 ballot, which sought to prohibit casinos,

slots parlors, and wagering on simulcast greyhound races. To

address this issue, we must construe the meaning of the phrase

"substantially the same," which we have not previously

interpreted in this context.14

We have previously interpreted "substantially," in other

contexts, as meaning "really or essentially." See Bennett v.

14
In Opinion of the Justices, 422 Mass. 1212, 1224 (1996),
the justices considered an initiative petition that would have
revised a term limits law that had just been enacted through the
initiative process. They concluded that the new petition was
substantially the same as the previously enacted initiative
petition but did not specifically analyze or construe the phrase
"substantially the same." See id. at 1224-1225.
 24

Newell, 266 Mass. 127, 131 (1929), citing Commonwealth v.

Wentworth, 118 Mass. 441, 442 (1875). See also Hollinger Inc.

v. Hollinger Int'l, Inc., 858 A.2d 342, 377 (Del. Ch. 2004)

("Substantially conveys the same meaning as 'considerably' and

'essentially' because it means 'to a great extent or degree' and

communicates that it is very nearly the same thing . . ."

[footnote omitted]). We have also said that where two matters

are "substantially the same," there is "no substantive

difference between" them. Haran v. Board of Registration in

Med., 398 Mass. 571, 574-575 (1986).

We also note that an earlier version of the "substantially

the same" provision of art. 48, as presented at the

constitutional convention, required the Attorney General to

certify that "the measure petitioned for is not, either in form

or in essential substance, either affirmatively or negatively,

the same as any measure which has been submitted to the people"

(emphasis added). Constitutional Debates, supra at 675-676.

The committee on form and phraseology subsequently revised this

provision and adopted the language that currently appears in

art. 48, requiring the Attorney General to certify that the

measure "is not, either affirmatively or negatively,

substantially the same as any measure which has been qualified

for submission or submitted to the people." Id. at 953. In so

doing, the committee commented that "[n]o change has been made
 25

in the document that affects its meaning one way or the other."

Id. at 959.

Accordingly, we interpret the phrase "substantially the

same" in art. 48 to mean "essentially the same," or "with little

or no substantive difference." Thus, a measure would be

"affirmatively or negatively, substantially the same" as a

previous measure where it affirms or negates essentially the

same provisions, with little or no substantive difference.

With that standard in mind, we now compare question 3 and

petition 15-34. The law proposed in question 3, which was

rejected by the voters in the November, 2014, election,

contained two elements. First, it would have revised the

definition of "illegal gaming" under G. L. c. 4, § 7, Tenth, to

prohibit casinos, slots parlors, and parimutuel wagering on

simulcast greyhound races. Second, it would have added a new

§ 72 to G. L. c. 23K, prohibiting any "illegal gaming" as

redefined in G. L. c. 4, § 7, Tenth, and barring the commission

from accepting or approving any application to conduct "illegal

gaming." Thus, it would have effectively nullified all of the

other provisions of G. L. c. 23K. See Abdow, 468 Mass. at 483-

484 (describing initiative petition that resulted in question

3). By contrast, petition 15-34 merely seeks to make one

incremental change in the licensing scheme for slots parlors by

authorizing the commission to award a second license.
 26

We conclude that these two measures are not substantially

the same, either affirmatively or negatively. Question 3 asked

whether the voters wanted to prohibit casinos, slots parlors,

and wagering on simulcast greyhound races. Petition 15-34 asks

whether the voters want to permit the licensing of a second

slots parlor adjacent to a horse racing track.

Nor is there any actual overlap in the specific legal

provisions of the two proposed measures. Question 3 would have

amended G. L. c. 4, § 7, Tenth, and added a new § 72 to G. L.

c. 23K. Petition 15-34 would amend G. L. c. 23K, §§ 8 and 20.

Therefore, petition 15-34 does "not propose (or seek to repeal

or change) a law that has been voted on in either of the last

two State-wide elections." Opinion of the Justices, 422 Mass.

at 1224. The two measures overlap only insofar as, at the

highest level of generality, they both concern slots parlors.

We do not think that is enough to establish that question 3 and

petition 15-34 are substantially the same, where they are

otherwise so different in scope and subject matter. We

therefore conclude that the Attorney General correctly certified

that petition 15-34 is not, either affirmatively or negatively,

substantially the same as any measure that has been qualified

for submission or submitted to the people at either of the two

preceding biennial State elections.
 27

Conclusion. Having determined that the Attorney General

properly certified petition 15-34 pursuant to art. 48, The

Initiative, II, § 3, as amended by art. 74, we remand the case

to the county court for entry of a declaratory judgment to that

effect.

So ordered.
 Appendix.

An Act Relative To Expanded Gaming

Be it enacted by the People, and by their authority:

SECTION 1. Subsection (a) of Section 8 of Chapter 23K of
the General Laws, as appearing in the 2012 Official Edition is
hereby amended by striking out the first sentence and inserting
in place thereof the following sentence:- The commission shall
issue a request for applications for category 1 and category 2
licenses.

SECTION 2. Section 20 of said Chapter 23K of the General
Laws, as so appearing, is hereby amended by adding the following
subsection:-

(g) Notwithstanding any general or special law, rule, or
regulation to the contrary, the commission may issue 1
additional category 2 license; provided, however, that the
additional category 2 license shall only be issued to
applicants who are qualified under the criteria set forth
in this chapter as determined by the commission and that
the additional category 2 license meet the following
additional qualification:

(1) The proposed location of the gaming establishment
shall be at least 4 acres large, and shall be adjacent to,
and within 1500 feet of, a race track, including the track,
grounds, paddocks, barns, auditorium, amphitheatre and/or
bleachers, if any, where a horse racing meeting may
physically be held, which race track shall have hosted a
horse racing meeting, provided that said location is not
separated from said race track by a highway or railway.