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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.