Hensley v. Attorney General Allen v. Attorney General

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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."