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SJC-12106
SJC-12117
JOSEPHINE HENSLEY & others1 vs. ATTORNEY GENERAL & another.2
MATTHEW JOHN ALLEN & others3 vs. ATTORNEY GENERAL & another.4
Suffolk. June 8, 2016. - July 6, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Initiative. Constitutional Law, Initiative petition. Attorney
General. Marijuana.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 22, 2016.
The case was reported by Duffly, J.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 10, 2016.
The case was reported by Spina, J.
1
Fifty-eight registered Massachusetts voters.
2
Secretary of the Commonwealth.
3
Sixty-two registered Massachusetts voters.
4
Secretary of the Commonwealth.
2
John S. Scheft for Josephine Hensley & others.
Robert E. Toone, Assistant Attorney General, for the
defendants.
Thomas R. Kiley for Matthew John Allen & others.
David G. Evans, of New Jersey, for Massachusetts Hospital
Association & others, amici curiae, submitted a brief.
GANTS, C.J. We have before us two cases involving an
initiative petition that, if approved by the voters in the
November, 2016, election, would legalize, regulate, and tax
marijuana and products that contain marijuana concentrate. The
plaintiffs in the first case (Hensley case) claim that the
Attorney General erred in certifying the petition for inclusion
on the ballot under art. 48 of the Amendments to the
Massachusetts Constitution because it contains subjects that are
not related or mutually dependent. They also claim that the
Attorney General's summary of the measure is not fair. Finally,
they contend that, if the question is to be included on the
ballot, we should require the Attorney General and the Secretary
of the Commonwealth (Secretary) to amend the title and the one-
sentence statements they prepared because they are clearly
misleading, in violation of G. L. c. 54, § 53. The plaintiffs
in the second case (Allen case) include eleven of the original
fifteen signers of the initiative petition. They challenge only
the title and the one-sentence "yes" statement prepared by the
Attorney General and the Secretary, but on grounds different
from those alleged by the Hensley plaintiffs.
3
We conclude that the Attorney General did not err in
certifying the petition for inclusion on the ballot under art.
48 because the petition contains only related subjects. We also
conclude that her summary of it is fair. Finally, we conclude
that it is clear that the title assigned to the petition and the
one-sentence statement describing the effect of a "yes" vote are
misleading, in violation of § 53, and we therefore order the
Attorney General and the Secretary to amend the title and
statement.5
Description of the petition. The petition proposes
comprehensive statutory changes in the law governing marijuana
in what its proponents have entitled, "The Regulation and
Taxation of Marijuana Act" (proposed act). The stated purpose
of the proposed act is "to control the production and
distribution of marijuana under a system that licenses,
regulates and taxes the businesses involved in a manner similar
to alcohol and to make marijuana legal for adults [twenty-one]
years of age or older." Its stated intent is "to remove the
production and distribution of marijuana from the illicit market
and to prevent the sale of marijuana to persons under [twenty-
5
We acknowledge the two amicus briefs submitted in the
first case (Hensley case), one from the Massachusetts Hospital
Association and seventy-two other individuals and organizations,
and the other from the plaintiffs in the second case (Allen
case).
4
one] years of age by providing for a regulated and taxed
distribution system."
The centerpiece of the proposed act is the addition of a
new chapter of the General Laws (chapter 94G), comprising
fourteen detailed sections, that would legalize under
Massachusetts law the possession, use, and transfer of marijuana
and products containing marijuana concentrate (including edible
products) and the cultivation of marijuana, all in limited
amounts, by individuals twenty-one years of age or older.6 Among
other things, the new chapter 94G would permit an individual
lawfully to purchase and possess one ounce or less of marijuana,
not more than five grams of which may be in the form of
marijuana concentrate.7 It would also permit the possession in
one's home of up to ten ounces of marijuana, the cultivation of
a limited number of marijuana plants in one's home for personal
use, and the private transfer without remuneration of up to one
6
"Marijuana products" are defined in the proposed act as
"products that have been manufactured and contain marijuana or
an extract from marijuana, including concentrated forms of
marijuana and products composed of marijuana and other
ingredients that are intended for use or consumption, including
edible products, beverages, topical products, ointments, oils
and tinctures."
7
"Marijuana concentrate" is defined in the proposed act as
"the resin extracted from any part of the plant of the genus
Cannabis and every compound, manufacture, salt, derivative,
mixture or preparation of that resin but shall not include the
weight of any other ingredient combined with marijuana to
prepare marijuana products."
5
ounce of marijuana, not more than five grams of which could be
marijuana concentrate, to another individual age twenty-one or
older. It would not permit the public consumption of marijuana.8
The proposed act also contains detailed provisions for the
licensing, operation, and regulation of the various types of
"marijuana establishments" that would be engaged in marijuana-
related business in Massachusetts, including marijuana
cultivators, product manufacturers, retailers, and testing
facilities. It would amend G. L. c. 10 by adding two new
sections, §§ 76 and 77, that would create new authorities within
the Department of the State Treasurer: a "cannabis control
commission" and a "cannabis advisory board." The cannabis
control commission would consist of three members appointed by
the Treasurer, and would "have general supervision and sole
regulatory authority over the conduct of the business of
marijuana establishments" in the Commonwealth. The cannabis
8
The proposed act would impose civil penalties for certain
violations of the new law. For example, the possession of more
than one ounce but not more than two ounces of marijuana outside
of one's residence, or the cultivation of more than six but not
more than twelve plants, would be "subject only to a civil
penalty of not more than [one hundred dollars] and forfeiture of
the [excess] marijuana . . . , but shall not be subject to any
other form of criminal or civil punishment or disqualification
solely for this conduct." Civil penalties would also be imposed
for, among other things, the public consumption of marijuana,
the possession of an open container of marijuana or marijuana
products in a motor vehicle, and the purchase or attempted
purchase of marijuana or marijuana products by individuals under
the age of twenty-one.
6
advisory board would consist of fifteen members appointed by the
Governor, and "study and make recommendations" to the commission
"on the regulation of marijuana and marijuana products."
The proposed act would also add a new chapter to the
General Laws (chapter 64N) that would provide for the taxation
of the retail sale to consumers of marijuana and marijuana
products. Specifically, chapter 64N would impose on each such
sale, in addition to whatever sales tax may be due under
existing State law, an excise equal to 3.75 per cent of the
total sales price. The new law would also authorize cities and
towns to impose an additional local sales tax of up to two per
cent.9
Chapter 94G of the proposed act states that "[t]his chapter
shall not be construed to affect the provisions of chapter 369
of the acts of 2012, relating to the medical use of marijuana as
enacted by the people in the state election of 2012." See St.
2012, c. 369 (medical marijuana law). However, several
provisions concern medical marijuana and medical marijuana
treatment centers. First, the sale of medical marijuana and
medical marijuana products would be exempt from the new 3.75 per
9
Monies collected from the State excise would be placed
into a newly created Marijuana Regulation Fund, to be used,
subject to appropriation by the Legislature, to offset the costs
of implementing, administering, and enforcing the new law; any
excess would be transferred annually to the State's General
Fund. Monies collected from a local sales tax would be
distributed to the taxing city or town.
7
cent excise tax. Second, the proposed act would permit a
registered medical marijuana treatment center also to obtain a
license to operate as a marijuana retailer and, if separately
licensed, to operate both a medical and retail operation at a
shared location. Cities and towns would not be allowed to
prohibit a retailer under the new law from operating in any
zoned area in which a medical marijuana treatment center is
already registered. Third, although the proposed act requires
the commission to promulgate its initial regulations no later
than September 15, 2017, and to begin accepting license
applications shortly thereafter, it also provides, in the event
regulations are not promulgated by January 1, 2018, that
existing medical marijuana treatment centers may begin to
cultivate, manufacture, and sell marijuana and marijuana
products until the commission promulgates the necessary
regulations and issues licenses for establishments under the new
law. Finally, medical marijuana treatment centers would be
allowed to apply for licenses under the new law earlier than
other applicants and, in certain circumstances, would be given
preference in receiving licenses under the new law.
Procedural history. The initiative petition was filed with
the Attorney General in August, 2015, for her consideration
pursuant to art. 48, The Initiative, II, § 3, of the Amendments
to the Massachusetts Constitution, as amended by art. 74 of the
8
Amendments. The Attorney General determined that the proposed
act "contains only subjects not excluded from the popular
initiative and which are related or which are mutually
dependent," and therefore that it was "in proper form for
submission to the people." Id. She also prepared a summary of
the proposed act to be printed at the top of the petition forms
that the proponents would use to gather the requisite
signatures.10 The proponents thereafter filed the petition with
the Secretary, collected more than the necessary number of
additional signatures, and in December, 2015, timely filed the
signed petition forms with the Secretary, all as required by
art. 48. The Secretary transmitted the petition to the House of
Representatives in accordance with art. 48, The Initiative, II,
§ 4.11 The parties agree that if the proponents gather and
submit sufficient additional signatures by July 6, 2016, as
required by art. 48, The Initiative, V, § 1, the Secretary
intends to take the necessary steps to place the proposed law on
the November ballot.
In addition to the Attorney General's summary, the Attorney
General and the Secretary, in accordance with G. L. c. 54, § 53,
jointly prepared a title for the question and two one-sentence
10
The text of the Attorney General's summary is reprinted
in the Appendix to this opinion.
11
The Legislature has not enacted the measure.
9
statements describing, respectively, the effect of a "yes" vote
and the effect of a "no" vote on the ballot question.
The plaintiffs in the Hensley case, who are fifty-nine
registered Massachusetts voters, commenced their action in the
county court on April 22, 2016, alleging, among other things,
that the proposed act contains two unrelated subjects -- the
legalization of marijuana for adult use and a change in the
restrictions on medical marijuana treatment centers. They also
allege that the Attorney General's summary is not fair as
required by art. 48 because it does not adequately explain that
the proposed act would also legalize "hashish" and food products
containing tetrahydrocannabinol (THC). Finally, they allege
that the title and one-sentence "yes" statement prepared by the
Attorney General and the Secretary are misleading because they
do not mention hashish or edible products containing THC. They
request a declaration that the Attorney General's certification
and summary are improper, and an order enjoining the Secretary
from placing the matter on the ballot. They also ask the court
to exercise its power under § 53 to order the Attorney General
and the Secretary to amend the title and the one-sentence "yes"
statement.12 A single justice of this court reported the Hensley
case to the full court without decision.
12
Under G. L. c. 54, § 53, any action seeking an amendment
of the title or one-sentence statements must be commenced in the
10
The plaintiffs in the Allen case, sixty-three registered
Massachusetts voters, commenced their action in the county court
on May 10, 2016. They allege that the title given to the
initiative by the Attorney General and Secretary, "Marijuana
Legalization," is false and misleading because the proposed act
would not "fully legalize marijuana," and because it makes no
mention of the proposed act's "regulation" and "taxation" of
marijuana. They also claim that the inclusion of the words
"including tetrahydrocannabinol (THC)" in the "yes" statement is
neither fair nor neutral. They also allege, among other things,
that the one-sentence "yes" statement is misleading because it
incorrectly states that "marijuana accessories" would be taxed
under the new law. They ask the court for an order pursuant to
G. L. c. 54, § 53, amending the title and the "yes" statement.
A single justice of this court reported the Allen case to the
full court without decision.
Discussion. 1. Related subjects. We first address the
Hensley plaintiffs' claim that the Attorney General's
certification of the proposed act violated art. 48, The
county court within twenty days after their publication in the
Massachusetts register. Here, the plaintiffs commenced their
action before the title and statements were published. That
misstep is of no consequence, however, because the draft
versions of the title and one-sentence statements that were
available at the time the plaintiffs commenced their action were
no different from the final versions published in the
Massachusetts Register a few days later.
11
Initiative, II, § 3, as amended by art. 74, because it combines
two unrelated subjects: marijuana legalization and a
"preferential licensing system that turns non-profit, medical
marijuana treatment centers into profit-making businesses."
There is no single "bright-line" test for determining
whether an initiative meets the related subjects requirement.
See Abdow v. Attorney Gen., 468 Mass. 478, 500 (2014), quoting
Carney v. Attorney Gen., 447 Mass. 218, 226 (2006) (Carney I),
S.C., 451 Mass. 803 (2008). We do not construe the requirement
so narrowly as to "frustrate the ability of voters to use the
popular initiative as 'the people's process' to bring important
matters of concern directly to the electorate" by effectively
confining each petition to a single subject; we recognize that
the delegates to the constitutional convention that approved
art. 48 permitted more than one subject to be included in a
petition. Abdow, supra at 499. Nor do we construe the
requirement "so broadly that it allows the inclusion in a single
petition of two or more subjects that have only a marginal
relationship to one another, which might confuse or mislead
voters, or . . . place them in the untenable position of casting
a single vote on two or more dissimilar subjects." Id. See
Dunn v. Attorney Gen., 474 Mass. , (2016) (describing
adoption of related subjects requirement in art. 48 at
constitutional convention of 1917-1918).
12
Balancing these concerns, the related subjects requirement
is met where "one can identify a common purpose to which each
subject of an initiative petition can reasonably be said to be
germane." Abdow, 468 Mass. at 499, quoting Massachusetts
Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209,
219-220 (1981). "We have not construed this requirement
narrowly nor demanded that popular initiatives be drafted with
strict internal consistency." Abdow, supra at 500, quoting
Mazzone v. Attorney Gen., 432 Mass. 515, 528-529 (2000). But we
have also cautioned that "[a]t some high level of abstraction,
any two laws may be said to share a 'common purpose.'" Abdow,
supra, quoting Carney I, 447 Mass. at 226. Consequently, we
have posed two questions in considering whether an initiative
petition meets the related subjects requirement: First, "[d]o
the similarities of an initiative's provisions dominate what
each segment provides separately so that the petition is
sufficiently coherent to be voted on 'yes' or 'no' by the
voters?" Abdow, supra, quoting Carney I, supra. Second, does
the initiative petition "express an operational relatedness
among its substantive parts that would permit a reasonable voter
to affirm or reject the entire petition as a unified statement
of public policy"? Abdow, supra at 501, quoting Carney I, 447
Mass. at 230-231. See Gray v. Attorney Gen., 474 Mass. ,
(2016) (discussing related subjects requirement).
13
The initiative petition in this case easily satisfies the
related subjects requirement of art. 48. It lays out a detailed
plan to legalize marijuana (with limits) for adult use and to
create a system that would license and regulate the businesses
involved in the cultivation, testing, manufacture, distribution,
and sale of marijuana and that would tax the retail sale of
marijuana to consumers. The possible participation of medical
marijuana treatment centers in the commercial distribution of
marijuana is adequately related to this over-all detailed plan.
At present, medical marijuana treatment centers in
Massachusetts are governed by St. 2012, c. 369, the medical
marijuana law adopted by the voting public in an initiative
petition in November, 2012, and by the extensive regulations
promulgated thereunder by the Department of Public Health. See
105 Code Mass. Regs. §§ 725.000 (2013). The proposed act would
not revise the language of the medical marijuana law or its
regulations. It would, however, permit an entity registered to
operate a medical marijuana treatment center under the medical
marijuana law also to apply for and obtain a license under the
new law to operate a commercial marijuana establishment, and
would allow the commercial operation to be at the same location
as the medical marijuana center. The co-location of a
commercial marijuana retail operation and a medical marijuana
center would not relieve the center of its obligations under the
14
medical marijuana law and regulations; it would, however,
subject the retail operation to the provisions of the new law
and the new regulations. "A measure does not fail the
relatedness requirement just because it affects more than one
statute, as long as the provisions of the petition are related
by a common purpose." Albano v. Attorney Gen., 437 Mass. 156,
161 (2002).13
The inclusion of medical marijuana treatment centers as
potential retailers in the commercial market is simply one piece
of the proposed integrated scheme. The fact that the
initiative's proponents might have chosen instead to prohibit
medical marijuana treatment centers from participation in the
retail market does not affect the coherence of the proposal as a
unified statement of public policy that is a proper subject for
a "yes" or "no" vote. See Massachusetts Teachers Ass'n, 384
Mass. at 220 ("It is not for the courts to say that logically
13
We need not resolve, at this juncture, any conflicts or
inconsistencies between the differing statutory schemes if the
proposed act were to pass (or, indeed, whether it would be
possible for an entity simultaneously to comply with both
schemes). The sole question before us is whether the subjects
included in the proposed act are related for art. 48 purposes.
"[A]rguments regarding the validity of an initiative petition,
not based on failure to comply with art. 48, cannot be pursued
unless and until the measure has been enacted." Ash v. Attorney
Gen., 418 Mass. 344, 350 (1994), quoting Yankee Atomic Elec. Co.
v. Secretary of the Commonwealth, 402 Mass. 750, 754 (1988)
(declining to address contention that "if approved and enacted
as law, the act will be invalid, independent of the requirements
of art. 48").
15
and consistently other matters might have been included or that
particular subjects might have been dealt with differently"). A
voter who favors the legalization of marijuana but not the
participation in the retail market of entities registered as
medical marijuana treatment centers is free to vote "no" if he
or she thinks that the dangers of mixing medical marijuana
distribution with retail distribution overcome the benefits of
the proposal, but the proposed act does not place anyone "in the
untenable position of casting a single vote on two or more
dissimilar subjects" (emphasis added). Abdow, 468 Mass. at 499.
2. Attorney General's summary. The plaintiffs in the
Hensley case also challenge the Attorney General's summary of
the proposed act. Article 48, The Initiative, II, § 3, as
amended by art. 74, requires the Attorney General to prepare a
"fair, concise summary" of each certified initiative petition.
The summary is one of the key pieces of information available to
voters both when they are asked to sign an initiative petition
and when they ultimately vote on an initiative that has made its
way onto the ballot. It is printed at the top of the blank
petition forms used by the initiative's proponents to gather
signatures. Id. It also appears in the Information for Voters
guide (guide) that is prepared by the Secretary and sent to each
16
registered voter before the election.14 Finally, it appears on
the ballot itself.15
The basic legal principles used to evaluate whether a
summary is "fair" for art. 48 purposes were set out two years
ago in the Abdow case, as follows:
"To be 'fair,' a summary 'must not be partisan, colored,
argumentative, or in any way one sided, and it must be
complete enough to serve the purpose of giving the voter
who is asked to sign a petition or who is present in a
polling booth a fair and intelligent conception of the main
outlines of the measure.' Sears v. Treasurer & Receiver
Gen., 327 Mass. 310, 324 (1951). 'The Attorney General is
14
The Information for Voters guide prepared by the
Secretary of the Commonwealth (Secretary) is a single,
comprehensive collection of the information that is officially
available to voters in advance of the election. For each ballot
question, the guide contains (i) the title given to the question
by the Attorney General and the Secretary; (ii) the Attorney
General's summary in full; (iii) the two one-sentence statements
prepared by the Attorney General and the Secretary describing
the effect of a "yes" and a "no" vote; (iv) a statement prepared
by the Secretary of Administration and Finance describing the
fiscal impact of the proposed act; (v) any legislative committee
majority reports, together with the names of the majority and
minority members of the committees that may have considered the
proposed act; (vi) a statement of votes of the General Court on
the proposed act, if any; (vii) arguments, not exceeding 150
words each, for and against the proposed act submitted by its
proponents and opponents; and (viii) the full text of the
proposed act itself. See art. 48, General Provisions, IV, of
the Amendments to the Massachusetts Constitution, as amended by
art. 108 of the Amendments; G. L. c. 54, §§ 53, 54.
15
For each ballot question, the ballot contains a question
number, the Attorney General's summary, and the two one-sentence
"yes" and "no" statements prepared by the Attorney General and
the Secretary. See art. 48, General Provisions, III, of the
Amendments to the Massachusetts Constitution, as amended by art.
74 of the Amendments; G. L. c. 54, § 42A. For polling places
where voting machines are used, see G. L. c. 54, § 35A (last
sentence).
17
not required to conduct a comprehensive legal analysis of
the measure, including possible flaws. All the
Constitution demands is a summary.' Mazzone, 432 Mass. at
532. See Ash [v. Attorney Gen., 418 Mass. 344, 349-350
(1994)]; Associated Indus. of Mass. v. Secretary of the
Commonwealth, 413 Mass. 1, 12 (1992) ('Nothing in art. 48
requires the summary to include legal analysis or an
interpretation'). Moreover, as we review the summary to
determine whether the Attorney General has fulfilled her
constitutional obligation, we keep in mind that '[t]he
Attorney General's judgment concerning the form and content
of the summary is entitled to some deference.' Id. at 11.
'Obviously, an element of discretion is involved in the
preparation of a summary -- what to include, what to
exclude, and what language to use. The exercise of
discretion by the Attorney General, a constitutional
officer with an assigned constitutional duty, should be
given weight in any judicial analysis of the fairness and
adequacy of a summary.' Massachusetts Teachers Ass'n, 384
Mass. at 230."
Abdow, 468 Mass. at 505-506.
The summary must be not only "fair" but "concise." Before
its amendment by art. 74 in 1944, the original art. 48 required
the Attorney General to provide a "description" of the proposed
act, not a "fair, concise summary." "The word 'description' had
been interpreted as implying a very substantial degree of detail
and had resulted in very long and cumbersome statements of
details of proposed laws." Sears, 327 Mass. at 324. When art.
48 was amended and the word "description" was replaced with the
phrase "fair, concise summary," "the intention was to relax the
requirements which had been found implicit in the word
description. Conciseness is emphasized in [art. 48 as amended],
and conciseness and completeness are often incompatible." Bowe
18
v. Secretary of the Commonwealth, 320 Mass. 230, 243 (1946).
See Massachusetts Teachers Ass'n, 384 Mass. at 227 ("Economy of
language and fairness are now emphasized"). Where, as here, the
initiative petition is twenty-five single-spaced pages in
length, drafting a fair summary that is also concise is a
challenging task. "Nevertheless, there must be a real
'summary.' . . . The word carries with it the idea that,
however much the subject matter may be condensed, the sum and
substance of it must remain. No doubt details may be omitted or
in many instances covered by broad generalizations, but mention
must be made of at least the main features of the measure."
Sears, 327 Mass. at 324. See Mazzone, 432 Mass. at 531.
a. Concentration of THC. The Hensley plaintiffs' first
challenge to the summary is that it does not use the words
"hashish" or "marijuana concentrate" or otherwise make clear
that the proposed act would legalize marijuana with a
concentration of THC that exceeds two and one-half per cent.
They are correct that the proposed act would have this effect.
They are incorrect, however, in suggesting that a reasonable
voter could not fairly infer that from the language of the
summary as written.
THC is the chemical "found in resin produced by the leaves
and buds primarily of the female cannabis plant" that is
"responsible for most of the intoxicating effects" of marijuana.
19
National Institute on Drug Abuse, Research Report Series:
Marijuana, at 1 (rev. Mar. 2016). Under existing law,
"marihuana," as defined in G. L. c. 94C, § 1,16 is prosecutable
as a class D substance under G. L. c. 94C, §§ 31 and 32C.
Marijuana that contains a THC concentration that exceeds two and
one-half per cent is prosecutable as a class C substance under
G. L. c. 94C, §§ 31 and 32B, because it falls within the
definition of THC under G. L. c. 94C, § 1.17 However, because
the definition of "marihuana" in G. L. c. 94C, § 1, makes no
mention of THC, marijuana with a concentration of THC above two
and one-half per cent is both "marihuana" and THC.
Under the proposed act, the definition of "marijuana" in
chapter 94G, section 1 (g), makes explicit what is implicit in
16
General Laws c. 94C, § 1, defines "marihuana" in relevant
part as "all parts of the plant Cannabis sativa L., whether
growing or not; the seeds thereof; and resin extracted from any
part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds or
resin."
17
General Laws c. 94C, § 1, defines tetrahydrocannabinol
(THC) as "excluding marihuana except when it has been
established that the concentration of [THC] in said marihuana
exceeds two and one-half per cent.
20
the definition in G. L. c. 94C, § 1: it includes THC.18 But the
inclusion of THC in the definition is no more consequential than
a definition of liquor that specifically includes mention of
alcohol. And a summary that speaks only of the legalization of
the possession of marijuana in limited amounts by persons over
the age of twenty-one, without making clear that it also
legalizes the possession of the THC found in marijuana is no
more unfair than a summary of a law ending a prohibition on
liquor that speaks of the legalization of the possession of
liquor by persons over the age of twenty-one without making
clear that it also legalizes the possession of the alcohol found
in liquor. The average voter will understand that marijuana
contains a chemical that gives it intoxicating effects (many may
know that the chemical is called THC), that marijuana will vary
in potency, and that all marijuana -- lower potency and higher
potency alike -- is being proposed for legalization.19,20
18
Under the proposed new chapter 94G, section 1 (g),
marijuana would be defined in relevant part as "all parts of any
plant of the genus Cannabis . . . whether growing or not; the
seeds thereof; and resin extracted from any part of the plant;
and every compound, manufacture, salt, derivative, mixture or
preparation of the plant, its seeds or resin including
tetrahydrocannabinol as defined in section 1 of chapter 94C of
the General Laws" (emphasis added).
19
The Hensley plaintiffs' focus on marijuana and marijuana
products with higher concentrations of THC -- and their desire
to have terms such as "hashish," "marijuana concentrate," or
"tetrahydrocannabinol" included in the Attorney General's
summary -- appears to be intended to lay the groundwork for an
21
b. Marijuana products. The plaintiffs next challenge the
summary on the ground that it does not adequately communicate
the array of items, in addition to marijuana in its ordinary
plant form, that would be legalized for adult use under the
proposed act. As earlier noted,21 the "marijuana products" and
"marijuana concentrate" covered by the proposed act would
argument that higher potency marijuana and marijuana products
pose a potentially greater risk to a user's health. This is an
argument that the plaintiffs can present to the voters in the
public discourse leading up to election day; it is not a matter
that is essential to a fair summary.
Including a reference to "hashish" would be especially
problematic. That word is not defined in our General Laws or
used in the proposed act. While it appears in some of the
decided cases, it has no single, fixed meaning in Massachusetts
law.
20
We note that there is no limit on the permissible
concentrations of THC in medical marijuana under our existing
medical marijuana law. See St. 2012, c. 369; 105 Code Mass.
Regs. §§ 725.000 (2013). See also Report of the Special Senate
Committee on Marijuana § 2.6, at 28 (2016) ("Status of Medical
Marijuana Implementation"; "There are currently no THC potency
limits for medical marijuana . . ."). We also note that the
initiative petition for medical marijuana that was passed in
2012, and the Attorney General's summary of it, made no mention
of "hashish," "marijuana concentrate," or THC.
We also note that "marijuana" is defined in the medical
marijuana law, St. 2012, c. 369, § 2 (G), as having "the meaning
given 'marihuana' in Chapter 94C of the General Laws," without
an added reference to THC such as we have in the initiative
petition in this case. This underscores our assertion that
marijuana does not stop being marijuana when its THC
concentration exceeds two and one-half per cent. This is true
under the controlled substances statute, the medical marijuana
law, and proposed chapter 94G in this case.
21
See notes 6 and 7, supra.
22
encompass, among other things, marijuana-infused edible
products, beverages, ointments, oils, and concentrated marijuana
resin in a variety of forms. The summary does not itemize, or
even give a representative sample of, the specific types of
items that would be covered. It speaks only generically in
terms of "marijuana products."22
We are disappointed that the Attorney General's summary did
not include a fair and neutral statement that marijuana products
under the proposed act include, among other things, food and
drink items that contain marijuana or marijuana concentrate to
ensure that the electorate understands that "marijuana products"
include edible products. We recognize that the Attorney General
was faced with a challenging task in crafting a fair summary
that met the art. 48 mandate of being "concise" for an
initiative that was unusually detailed and complex, but we also
recognize that a summary of even a detailed initiative proposal
ought to be written in plain English that a reasonable voter can
22
The summary refers to "marijuana products" in three
places: (1) it alerts the reader in the second sentence of the
opening paragraph that the proposed act will create, regulate,
and tax "commerce in marijuana . . . and marijuana products";
(2) it states in the second sentence of the fourth paragraph
that cities and towns may "determine whether to permit the
selling of marijuana and marijuana products for consumption on
the premises at commercial establishments," effectively
informing the reader that marijuana products are something to be
consumed; and (3) it states in the first sentence of the fifth
paragraph that "retail sales of marijuana and marijuana
products" would be taxed.
23
readily comprehend. The use of a term of art whose meaning is
unclear on its face, such as "marijuana products," although
accurate, invites the risk that voters may not understand the
meaning of the term and, therefore, the consequence of approval
of the petition.23
We do not, however, find that risk so substantial in this
case as to render the summary constitutionally inadequate. We
reach this conclusion for two reasons. First, the summary
clearly indicates that there will be commerce in both
"marijuana" and "marijuana products," see note 22, supra, which
informs the reader that "marijuana" and "marijuana products" are
not the same thing. A reasonable reader should understand that
a "marijuana product" is something produced with or from
marijuana. The summary also informs the reader that a marijuana
product is something to be "consumed," possibly on the premises
where it is purchased. See note 22, supra. Many voters will
have at least a general awareness that marijuana can appear in
baked products such as cookies and "brownies," and therefore
will likely recognize that the consumption of "marijuana
products" will include edible products.
23
We do not suggest that a summary must include terms that
do not already appear in the initiative petition. The proposed
act in this case specifically defines "marijuana products" as
including "edible products, beverages, topical products,
ointments, oils, and tinctures." See note 6, supra.
24
Second, the summary is not the only source of information
for voters. They will have available, both in their information
guide and on the ballot, the "yes" and "no" statements prepared
by the Attorney General and the Secretary. In part 3, infra, we
require the Attorney General and the Secretary to amend the
"yes" statement so that it makes an explicit reference to edible
marijuana products. The voters will also have in the
information guide the "for" and "against" statements prepared by
the petition's supporters and opponents, and the full text of
the proposed act. And, in light of the controversy both here
and in other States surrounding the legalization of marijuana,
they will have the benefit of what will surely be a spirited
public debate on the petition generally and on the legalization
of edible marijuana products in particular. The availability of
other information does not relieve the Attorney General of her
duty to prepare a constitutionally adequate summary, but it does
give us confidence that the electorate will likely understand
that the scope of the petition includes edible marijuana
products.24
24
With respect to edible marijuana products, we also reject
any suggestion by the Hensley plaintiffs that the summary is
deficient because it does not mention existing food safety laws
and the effect of the proposed act on them. The proposed act
states that chapter 94G "shall not exempt marijuana or marijuana
products from [G. L. c. 94, §§ 186-195], relating to
adulteration and misbranding of food, drugs and various
articles. Marijuana included in a marijuana product
25
c. Effect on medical marijuana law. The Hensley
plaintiffs' third and final challenge to the summary is that it
misrepresents the effect that the proposed act will have on
medical marijuana treatment centers. The summary states that
the proposed act "would not affect existing law regarding
medical marijuana treatment centers."
The Attorney General correctly points out that the
plaintiffs did not make this claim in their complaint and raise
it now for the first time before the full court. It is
therefore waived. In any event, this statement in the summary
does not make it unfair under art. 48.
The statement is technically correct -- nothing in the
existing law on medical marijuana would change. Medical
marijuana treatment centers are currently governed by St. 2012,
c. 396, and they would continue to be so even if this proposed
act were to be adopted. Neither the language of c. 396 nor its
strict requirements would be changed. Although entities
registered as medical marijuana treatment centers could also
obtain a license to operate a commercial marijuana establishment
under the proposed act, they would not thereby be relieved of
their obligations under the medical marijuana law.25
manufactured in compliance with the regulations under this
chapter shall not be considered an adulterant."
25
The proposed new chapter 94G would provide, as stated
above, that "[t]his chapter shall not be construed to affect the
26
We recognize that the statement in the summary poses some
risk of confusion because medical marijuana treatment centers
would be potential licensees in the new commercial market if the
petition were approved, and therefore the proposed act would
affect medical marijuana centers even if it does not affect the
"existing law" regarding them. Saying that the proposed act
"would not affect existing law" regarding medical marijuana
centers might be read (albeit mistakenly) to mean that its
passage would have no effect on medical marijuana centers. As
with the language regarding "marijuana products," the Attorney
General could have done a better job to avoid this risk of
confusion. But we do not think that this unfortunate phrasing
provisions of chapter 369 of the acts of 2012, relating to the
medical use of marijuana as enacted by the people in the [S]tate
election of 2012." The plaintiffs correctly point out that the
proposed act states that it would not affect the existing law on
"the medical use of marijuana," whereas the summary states that
the proposed act would not affect the existing law on "medical
marijuana treatment centers." This is not a meaningful
distinction. Under the medical marijuana law, the phrase
"medical use of marijuana" is defined in such a way that it
refers to the activities of medical marijuana treatment centers,
and not just to "use" in the colloquial sense of consumption by
qualifying patients. St. 2012, c. 369, § 2 (I) (defining
"medical use of marijuana" as "the acquisition, cultivation,
possession, processing (including development of related
products such as food, tinctures, aerosols, oils, or ointments),
transfer, transportation, sale, distribution, dispensing, or
administration of marijuana, for the benefit of qualifying
patients in the treatment of debilitating medical conditions, or
the symptoms thereof"). The summary is therefore accurate in
this regard.
27
makes the summary unfair for art. 48 purposes, especially where
it is a true statement as written.
In determining whether a summary is "fair," an error or
omission "must be assessed in the context of the entire proposal
and its likely impact on the voters." Massachusetts Teachers
Ass'n, 384 Mass. at 234. The summary here, despite the risk of
confusion arising from the phrasing of the sentence regarding
marijuana treatment centers, gives "a fair and intelligent
conception of the main outlines of the measure." Abdow, 468
Mass. at 505, quoting Sears, 327 Mass. at 324. See, e.g.,
Massachusetts Teachers Ass'n, supra at 226-236 (summary was fair
despite multiple omissions and one clear error that affected
many municipalities); Opinions of the Justices, 357 Mass. 787,
798-801 (1970) (five Justices found summary to be fair despite
omission of certain details in summary of proposed
constitutional amendment). If the plaintiffs believe that the
proposed act's provisions would adversely affect the operation
of medical marijuana treatment centers by permitting them also
to engage in commercial sales, and that this is important to the
voters, they are free to say so in the "against" statement and
in their public campaign to defeat the initiative petition.
3. Title and "yes" and "no" statements. We now turn to
the title ("Marijuana Legalization") and the one-sentence "yes"
and "no" statements prepared jointly by the Attorney General and
28
the Secretary pursuant to G. L. c. 54, § 53. The one-sentence
statements assert:
"A YES VOTE would allow the possession, use,
distribution, and cultivation of marijuana, including
tetrahydrocannabinol (THC), in limited amounts by persons
21 and older and would provide for the regulation and
taxation of commercial sale of such marijuana, marijuana
accessories, and marijuana products.
"A NO VOTE would make no change in current laws
relative to marijuana."
Section 53 requires that the one-sentence statements be
"fair and neutral." It further provides that, in an action
timely brought by at least fifty registered voters, "[t]he court
may issue an order requiring amendment by the attorney general
and the state secretary only if it is clear that the title [or]
[one]-sentence statement . . . is false, misleading or
inconsistent with the requirements of this section."
The Hensley plaintiffs claim that it is clear that the
title and one-sentence statements are misleading because they
fail to mention that the proposed measure would legalize the
possession, use, distribution, and cultivation of "hashish," and
the possession, use, and distribution of edible products
containing THC.26 The Allen plaintiffs contend that the title is
26
The Hensley plaintiffs also ask that we order changes be
made to the summary. They cite no authority for us to do so,
and we are not aware of any instance in which the court has done
so in the past. Our authority to order an amendment of the
title and one-sentence "yes" and "no" statements derives from
G. L. c. 54, § 53; the statute does not authorize us to order an
29
false and misleading because the proposed measure does not
legalize the possession or use of marijuana by persons under the
age of twenty-one, or legalize the possession of marijuana by
adults in amounts in excess of stated limits. They also claim
that the title is misleading because it makes no mention of the
regulation and taxation of marijuana. The Allen plaintiffs
further contend that the one-sentence description of the effect
of a "yes" vote is not fair and neutral because it specifically
added the words, "including tetrahydrocannabinol (THC)," at the
suggestion of the petition's opponents, even though THC is an
active ingredient in all marijuana. They also contend that the
"yes" statement is misleading because it incorrectly states that
"marijuana accessories" would be taxed under the new law.
This is the first time a challenge to a title and the one-
sentence statements has come before the full court. In two
previous cases in which a title or one-sentence statement has
amendment of the summary. Nor are we granted such authority
under art. 48, which governs the summary. In the absence of
statutory or constitutional authority, we conclude that we have
no authority to order an amendment of a summary. Cf. Dunn v.
Attorney Gen., 474 Mass. , (2016) (court has no power to
order amendment of one-sentence statements unless action seeking
amendment is brought under § 53). We also note that any
revision of the summary at this late stage of the initiative
process would pose formidable practical problems because the
summary has appeared at the top of the petition forms that have
been used to collect tens of thousands of signatures, so any
revision would call into question the validity of those
signatures.
30
been challenged, the matter was resolved in the county court by
a single justice.27
We do not, however, write on a clean slate. Section 53
plainly states that we may order amendment of the title or one-
sentence statements "only if it is clear" that it is false,
misleading, or otherwise inconsistent with the requirements of
§ 53, which suggests that the joint effort of the Attorney
General and Secretary in crafting the title and statements is
entitled to some deference. Such deference is entirely
appropriate, given the challenge of creating a title that fairly
characterizes a sometimes complex petition and of drafting a
single sentence that fairly and neutrally describes the
consequence of a "yes" or "no" vote regarding such a petition.
Deference, of course, does not mean abdication, so we will
exercise our statutory authority where needed to ensure that the
title and one-sentence statements are neither false nor
misleading, and that the one-sentence statements are fair and
neutral. In doing so, we recognize that the title and one-
sentence statements are only two of the pieces of information
that will be provided to voters, and we must consider whether
they are false or misleading in the context of the other
information that will be furnished to voters in the information
27
See Heilman vs. Attorney Gen., SJ-2012-0211 (June 28,
2012); Fifty Registered Voters vs. Attorney Gen., SJ-2000-0212
(July 18, 2000).
31
guide prepared by the Secretary and on the ballot. Ultimately,
we shall endeavor to ensure that the information provided to
voters in the title and one-sentence statements is fair,
neutral, and accurate so that all sides to the ballot question
do battle on an even playing field and so that the election is
not marred by misunderstanding or confusion.
With these thoughts in mind, we conclude that both the
Hensley plaintiffs and the Allen plaintiffs have identified
fundamental flaws in the title and one-sentence statements that
require our revision. As to the title, we agree with the Allen
plaintiffs that the proposed measure has three main features --
legalization, regulation, and taxation -- and that it is unfair
and clearly misleading to characterize the measure solely as
"Marijuana Legalization." We therefore order that the title be
amended to read, "Legalization, Regulation, and Taxation of
Marijuana."28
28
We reject the argument of the Allen plaintiffs that the
title should also include a reference to "adult use." Nothing
about the word "legalization" in this context implies that the
legalization would be unlimited. The average voter understands,
for example, that alcohol is "legal," but not for underage
drinkers. The one-sentence "yes" statement and the summary also
make it abundantly clear that the proposed act applies only to
persons who are twenty-one and older. We also reject the
argument of the Hensley plaintiffs that specific references to
"hashish" and "food products with tetrahydrocannabinol (THC)"
must appear in the title in order to make it fair.
32
With respect to the "yes" statement, we conclude that it is
clearly misleading in some respects and order that it be amended
as follows:
"A YES VOTE would allow persons 21 and older to possess,
use, and transfer marijuana and products containing
marijuana concentrate (including edible products) and to
cultivate marijuana, all in limited amounts, and would
provide for the regulation and taxation of commercial sale
of marijuana and marijuana products."
The amended statement makes five changes in the statement that
was prepared by the Attorney General and the Secretary. The
most significant change is the replacement of the phrase
"marijuana, including tetrahydrocannabinol (THC)" with the
phrase "marijuana and products containing marijuana concentrate
(including edible products)." The original statement is
misleading in that it fails to make clear that the new law will
allow, in limited amounts, not only the possession and use of
marijuana but also the possession and use of products containing
marijuana concentrate, including edible products. The reference
to "marijuana products" in the second clause of the sentence
("and would provide for the regulation and taxation of
commercial sale of such marijuana, marijuana accessories, and
marijuana products") does not adequately inform voters that the
proposed act would legalize the sale of edible marijuana
products, especially where the summary fails to make this as
clear as it could. We struck the phrase, "including
33
tetrahydrocannabinol (THC)" because it is both redundant, in
that all marijuana includes THC, and potentially misleading,
because it might erroneously suggest that the new law will
legalize the possession and use of synthetic THC that did not
derive from the Cannabis plant.
The other four changes are as follows:
i. We changed the word "distribution" to "transfer,"
to match the actual word used in the proposed act. The
word "distribution" has a connotation in criminal narcotics
law that is not appropriate here.29
ii. Because "products containing marijuana
concentrate (including edible products)" cannot be
"cultivated," we added a separate phrase referring to the
cultivation of marijuana.
iii. We added the word "all" to the phrase "in
limited amounts" so as to make clear that the phrase refers
to all of the mentioned activities, i.e., possession, use,
transfer, and cultivation.
iv. We struck the words "marijuana accessories." The
original statement incorrectly suggests that the new law
would impose an additional tax on marijuana accessories,
which it does not. Accessories would be taxed only under
the existing sales tax statute, not under the new law.
We reject the parties' requests for other changes in the
statement.
We have considered the alternative of issuing an order
requiring the Attorney General and the Secretary to amend the
29
We reject the argument by the Allen plaintiffs that the
words "without remuneration" should also be added. That level
of detail is not needed in the one-sentence statement in order
to make it fair, and the point is adequately made in the
summary.
34
statement in light of our concerns rather than redrafting it
ourselves, but there is simply not time to pursue that
alternative if the guide and the ballot are to be sent to be
printed as scheduled in early July. We are satisfied that the
statement is fair and neutral, and neither false nor misleading,
as we have amended it.
4. Timing of actions under G. L. c. 54, § 53. In her
reservation and report in the Hensley case, the single justice
commented on the lateness of the plaintiffs' constitutional
challenges to the Attorney General's certification and summary.
Their action was brought inexcusably late. In Dunn, 474 Mass.
at , which we also decide today, we discuss the importance of
commencing actions raising art. 48 challenges to a petition much
earlier in the initiative process, preferably not later than
February 1 of the election year, so that the action can proceed
at a more orderly pace. We now take this opportunity to address
the timing of the Allen action, which was brought pursuant to
§ 53.
Under § 53, after the Attorney General and the Secretary
jointly prepare the ballot question title and the one-sentence
"yes" and "no" statements, the Secretary is required to publish
them in the Massachusetts Register no later than "the second
Wednesday in May" of the election year. Challenges to the title
and statements must be commenced in the county court no more
35
than twenty days after publication. This means that such
actions may be commenced in late May or, in some years, early
June, and that there inevitably will be a mad scramble to have
the cases briefed, argued, and decided, because we make every
effort to resolve ballot cases before the voter information
guide and ballots are sent for printing in early July.30
Section 53 sets a deadline for publication; it does not bar
earlier publication. To avoid this mad scramble, we ask the
Attorney General and the Secretary to consider preparing and
publishing the title and one-sentence statements under § 53 no
later than twenty days in advance of February 1 of the election
year, so that parties who commence an action asserting
constitutional challenges under art. 48 might also bring a
statutory claim under § 53, in the same case at the same time.
If that were done, challenges brought under the statute would
proceed in the normal course, at a more orderly pace, and not,
as here, at the proverbial eleventh hour.
Alternatively, we ask the Legislature to consider amending
the statute, either along the lines described above or in some
other reasonable fashion, so that statutory actions challenging
30
The parties in the Allen case acted timely under the
statute. Nothing we say is intended as criticism of their
conduct. Indeed, the title and statements in this case were
published a few days before the statutory deadline, and the
Allen plaintiffs commenced their action in the county court a
few days after that.
36
titles and statements can be brought earlier in the initiative
process to allow the court to give them the full attention they
deserve in a more manageable time frame.
Conclusion. A judgment shall enter in the county court in
the Hensley case (1) declaring that the initiative petition
contains only related subjects within the meaning of art. 48,
and that the Attorney General's certification of the measure was
therefore correct; and (2) declaring that the Attorney General's
summary of the petition was "fair" under art. 48. An order
shall enter in the county court in both the Hensley case and the
Allen case, pursuant to G. L. c. 54, § 53, requiring the
Attorney General and the Secretary of the Commonwealth to amend
the title so that it provides, "Legalization, Regulation, and
Taxation of Marijuana"; and requiring them to amend the
one-sentence "yes" statement so that it reads as follows:
"A YES VOTE would allow persons 21 and older to possess,
use, and transfer marijuana and products containing
marijuana concentrate (including edible products) and to
cultivate marijuana, all in limited amounts, and would
provide for the regulation and taxation of commercial sale
of marijuana and marijuana products."
So ordered.
Appendix.
"SUMMARY OF 15-27
"The proposed law would permit the possession, use,
distribution, and cultivation of marijuana in limited amounts by
persons age 21 and older and would remove criminal penalties for
such activities. It would provide for the regulation of
commerce in marijuana, marijuana accessories, and marijuana
products and for the taxation of proceeds from sales of these
items.
"The proposed law would authorize persons at least 21 years
old to possess up to one ounce of marijuana outside of their
residences; possess up to ten ounces of marijuana inside their
residences; grow up to six marijuana plants in their residences;
give one ounce or less of marijuana to a person at least 21
years old without payment; possess, produce or transfer hemp; or
make or transfer items related to marijuana use, storage,
cultivation, or processing.
"The measure would create a Cannabis Control Commission of
three members appointed by the state Treasurer which would
generally administer the law governing marijuana use and
distribution, promulgate regulations, and be responsible for the
licensing of marijuana commercial establishments. The proposed
law would also create a Cannabis Advisory Board of fifteen
members appointed by the Governor. The Cannabis Control
Commission would adopt regulations governing licensing
qualifications; security; record keeping; health and safety
standards; packaging and labeling; testing; advertising and
displays; required inspections; and such other matters as the
Commission considers appropriate. The records of the Commission
would be public records.
"The proposed law would authorize cities and towns to adopt
reasonable restrictions on the time, place, and manner of
operating marijuana businesses and to limit the number of
marijuana establishments in their communities. A city or town
could hold a local vote to determine whether to permit the
selling of marijuana and marijuana products for consumption on
the premises at commercial establishments.
"The proceeds of retail sales of marijuana and marijuana
products would be subject to the state sales tax and an
additional excise tax of 3.75%. A city or town could impose a
2
separate tax of up to 2%. Revenue received from the additional
state excise tax or from license application fees and civil
penalties for violations of this law would be deposited in a
Marijuana Regulation Fund and would be used subject to
appropriation for administration of the proposed law.
"Marijuana-related activities authorized under this
proposed law could not be a basis for adverse orders in child
welfare cases absent clear and convincing evidence that such
activities had created an unreasonable danger to the safety of a
minor child. The proposed law would not affect existing law
regarding medical marijuana treatment centers or the operation
of motor vehicles while under the influence. It would permit
property owners to prohibit the use, sale, or production of
marijuana on their premises (with an exception that landlords
cannot prohibit consumption by tenants of marijuana by means
other than by smoking); and would permit employers to prohibit
the consumption of marijuana by employees in the workplace.
State and local governments could continue to restrict uses in
public buildings or at or near schools. Supplying marijuana to
persons under age 21 would be unlawful.
"The proposed law would take effect on December 15, 2016."