Dunn v. Attorney General

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SJC-12107

JAMES H. DUNN & another1 vs. ATTORNEY GENERAL & others.2

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. Animal.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 25, 2016.

The case was reported by Duffly, J.

Katherine J. Spohn, of Nebraska (Mary Jacobson, of
Nebraska, with her) for the plaintiffs.
Elizabeth N. Dewar, Assistant Attorney General, for the
defendants.
Thomas O. Bean for the interveners.

1
Diane Sullivan.
2
Secretary of the Commonwealth. Three of the first ten
signers of the initiative petition at issue (Stephanie J.
Harris, Joann M. Lindenmayer, and Sharon B. Young) were allowed
to intervene as defendants. We acknowledge the brief submitted
by the interveners.
 2

GANTS, C.J. In this appeal, we consider whether the

Attorney General properly certified an initiative petition

proposing a new law that would prohibit (1) confinement of egg-

laying hens, calves raised for veal, and breeding pigs on a

commercial farm "in a cruel manner," i.e., under conditions that

prevent them from lying down, standing up, fully extending their

limbs, or turning around freely; and (2) the sale by any

business within the Commonwealth of "shell" eggs, "whole veal

meat," and "whole pork meat" that the business owner or operator

"knows or should know" was produced from animals so confined.

The plaintiffs contend that this initiative petition was not

properly certified because the animal confinement restriction

and the prohibition against sale are not related or mutually

dependent subjects, and because the petition is not in "proper

form" insofar as it contains a statement of purpose that does

not constitute a "law" to be voted upon by the people. See art.

48, The Initiative, II, §§ 2, 3, of the Amendments to the

Massachusetts Constitution, as amended by art. 74 of the

Amendments. We conclude that the subjects contained in the

petition are sufficiently related to meet the requirements of

art. 48, and that the brief statement of purpose in the proposed

measure does not render it unfit for submission to the voters.

We therefore conclude that the initiative petition was properly

certified by the Attorney General.
 3

Background. In August, 2015, the Attorney General received

a signed initiative petition entitled "An Act to prevent cruelty

to farm animals," which she numbered as Initiative Petition 15-

11 (petition 15-11 or petition). The petition contains two

principal provisions, which we shall refer to as the "farm

provision" and the "sales provision."

The farm provision, contained in section 2 of the petition,

would make it "unlawful for a farm owner or operator within the

Commonwealth of Massachusetts to knowingly cause any covered

animal to be confined in a cruel manner." "Covered animal" is

defined in section 5(D) as "any breeding pig, calf raised for

veal, or egg-laying hen that is kept on a farm."3 "Confined in a

cruel manner" is defined in section 5(E) as "confined so as to

prevent a covered animal from lying down, standing up, fully

extending the animal's limbs, or turning around freely."4

The sales provision, contained in section 3 of the

petition, would make it "unlawful for a business owner or

3
Section 5(H) of Initiative Petition 15-11 (petition)
defines a "[f]arm" as "the land, building, support facilities,
and other equipment that are wholly or partially used for the
commercial production of animals or animal products used for
food; and does not include live animal markets or establishments
at which inspection is provided under the Federal Meat
Inspection Act."
4
Under section 4 of the petition, transportation,
exhibitions and 4-H programs, slaughter, medical research,
veterinary examination and treatment, and certain breeding and
birthing practices are exempted from the definition of "confined
in a cruel manner."
 4

operator to knowingly engage in the sale within the Commonwealth

of Massachusetts of any:

"(A) Shell egg that the business owner or operator knows or
should know is the product of a covered animal that was
confined in a cruel manner.

"(B) Whole veal meat that the business owner or operator
knows or should know is the meat of a covered animal that
was confined in a cruel manner.

"(C) Whole pork meat that the business owner or operator
knows or should know is the meat of a covered animal that
was confined in a cruel manner, or is the meat of the
immediate offspring of a covered animal that was confined
in a cruel manner."5

"Sale," as defined in the proposed measure, refers only to

commercial sales by a business.6 The sales provision is not

limited to the sale of eggs, veal, and pork from Massachusetts

farms; the sale of such products would be barred regardless of

the location of the farms that produced the eggs, veal, and

pork. Under section 7, the proposed law would provide a defense

for business owners and operators who rely "in good faith upon a

5
"Whole veal meat" and "[w]hole pork meat" are defined in
sections 5(T) and 5(S), respectively, as "any uncooked cut . . .
that is comprised entirely" of those meats, respectively; they
do not include "combination food products," such as "soups,
sandwiches, pizzas, hot dogs, or similar processed or prepared
food products."
6
Under section 5(M) of the petition, "[s]ale" means a
commercial sale by a business that sells any item covered by
section 3, but does not include any sale undertaken at an
establishment at which inspection is provided under the Federal
Meat Inspection Act. For purposes of this section, a sale is
deemed to occur at the location where the buyer takes physical
possession of an item covered by section 3.
 5

written certification or guarantee by the supplier" that the

eggs, veal, or pork at issue did not come from animals confined

in a cruel manner.

Section 6 of the proposed law confers sole enforcement

authority on the Attorney General, who is authorized to seek

civil fines of up to $1,000 per violation, as well as injunctive

relief. Under section 10, the Attorney General would also be

responsible for promulgating, by January 1, 2020, rules and

regulations to implement the new law. The law's operative

provisions would take effect, pursuant to section 11, on January

1, 2022.

On September 2, 2015, the Attorney General certified to the

Secretary of the Commonwealth (Secretary) that the measure

proposed in petition 15-11

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

On April 25, 2016, the plaintiffs commenced an action

against the Attorney General and the Secretary in the county

court, seeking relief in the nature of certiorari and mandamus

under G. L. c. 249, §§ 4 and 5, and requesting declaratory

relief under G. L. c. 231A. The plaintiffs sought declarations
 6

that petition 15-11 fails to meet the requirements of art. 48

and that the Attorney General erred in certifying it, and

further requested a direction that the Secretary take no further

steps to advance the petition or submit it to the voters. A

single justice of the county court reserved and reported the

case to this court.

Discussion. When a new law is proposed by initiative

petition, it cannot be presented to the Legislature and the

voters for their consideration unless and until the Attorney

General reviews it and certifies that it meets the requirements

of art. 48 of the Amendments to the Massachusetts Constitution.

See art. 48, The Initiative, II, § 3, as amended by art. 74.

The plaintiffs contend that the Attorney General's certification

of petition 15-11 was improper because the petition does not

meet two of art. 48's requirements: (1) that a proposed measure

"contain[] only subjects . . . which are related or which are

mutually dependent" (related subjects requirement); and (2) that

the proposed measure be "in proper form for submission to the

people" (proper form requirement). Id. We review the Attorney

General's certification decision de novo, bearing in mind "the

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

support the people's prerogative to initiate and adopt laws."
 7

Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014), quoting

Carney v. Attorney Gen., 451 Mass. 803, 814 (2008) (Carney II).7

1. Related subjects requirement. The related subjects

requirement in art. 48 was adopted during the constitutional

convention of 1917-1918 in response to delegates' concerns about

voter confusion and the dangers of "log-rolling" in the

initiative process, i.e., the "practice of including several

propositions in one measure or proposed constitutional amendment

so that the . . . voters will pass all of them, even though

these propositions might not have passed if they had been

submitted separately." Carney v. Attorney Gen., 447 Mass. 218,

219 n.4 (2006) (Carney I), quoting Black's Law Dictionary 960

(8th ed. 2004). See Carney I, supra at 227-228; 2 Debates in

the Massachusetts Constitutional Convention 1917-1918 at 12,

537, 567, 701-702 (1918) (Constitutional Debates).8 To prevent

initiative petitions from being exploited in this manner, the

7
The scope of this review is limited solely to whether the
petition meets art. 48's requirements, and does not extend to
other potential challenges to the proposed law's validity or to
its interpretation. See Hensley v. Attorney Gen., 474 Mass.
, n.13 (2016); Abdow v. Attorney Gen., 468 Mass. 478, 507-
508 (2014).
8
We consider the proceedings of the constitutional
convention "not for the purpose of controlling the plain meaning
of words written into the Rearrangement of the Constitution but
of understanding the conditions under which it came into
existence and how it appears then to have been received and
understood by the convention." Cohen v. Attorney Gen., 357
Mass. 564, 572 (1970).
 8

delegates considered potential limitations on their subject

matter. See Carney I, supra; Constitutional Debates, supra at

537, 856-857. One delegate offered an amendment to require that

"[n]o proposed law shall contain more than one subject," which

another delegate proposed modifying to state that a proposed law

"shall not contain unrelated subjects." See Carney I, supra;

Constitutional Debates, supra at 856-857. This modified

amendment was adopted by the convention, and, after some

reworking by the committee on form and phraseology, ultimately

was approved as the provision in art. 48, The Initiative, II,

§ 3, requiring the Attorney General to certify that a proposed

measure "contains only subjects . . . which are related or which

are mutually dependent." See Carney I, supra; Constitutional

Debates, supra at 953, 1051.

In light of this history, there is no single "bright-line"

test for determining whether an initiative meets the related

subjects requirement. See Abdow, 468 Mass. at 500, quoting

Carney I, 447 Mass. at 226. 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
 9

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.

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 to be considered in addressing 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
 10

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, supra at 230-231. See Gray v.

Attorney Gen., 474 Mass. , (2016) (discussing related

subjects requirement).

In this case, the plaintiffs argue that petition 15-11 does

not meet the related subjects requirement because the farm

provision prohibiting confinement of covered animals in a cruel

manner and the sales provision prohibiting sales of products

from animals so confined address different public policies.

They contend that the farm provision aims to prevent animal

cruelty, whereas the sales provision seeks to mitigate the

health and safety risks of animal confinement to Massachusetts

consumers and to regulate the sale of products derived from

these animals. They assert that the petition unfairly asks

voters to decide simultaneously whether to ban certain animal

farming methods and whether to require retailers to alter their

purchasing decisions. The plaintiffs also argue that the

petition contains unrelated subjects because it concerns three

different species of animals: egg-laying hens, calves raised

for veal, and breeding pigs. The plaintiffs contend that voters

may believe that certain confinement practices are beneficial

for one species but detrimental for another, so that voters
 11

would not be able to affirm or reject the entire petition as a

unified statement of public policy.

We are not persuaded by these arguments. Both the farm

provision and the sales provision share a common purpose of

preventing farm animals from being caged in overly cramped

conditions, consistent with the statement of purpose in

section 1 of the proposed law, "to prevent animal cruelty by

phasing out extreme methods of farm animal confinement." The

two provisions also complement each other in the means of

accomplishing this common purpose. The farm provision bars farm

owners and operators in Massachusetts from confining hens,

calves, and pigs in a cruel manner, and the sales provision

prevents businesses in Massachusetts from selling eggs, veal,

and pork from animals that were confined in a cruel manner. The

latter provision protects Massachusetts farmers who comply with

the law by preventing Massachusetts businesses from selling

eggs, veal, and pork obtained from out-of-State farmers who

confine their animals in a cruel manner and who, by doing so,

may be able to underprice their Massachusetts competitors. It

also protects hens, calves, and pigs in other States (and other

nations) by providing non-Massachusetts farmers with an economic

incentive not to confine their animals in a cruel manner if they

wish to sell their eggs, veal, and pork in the Massachusetts

market. See Massachusetts Teachers Ass'n, 384 Mass. at 220-221
 12

(all provisions of Proposition 2½ were germane to common purpose

where they all related "directly or indirectly to the limitation

of State and local taxation"). If the confinement of hens,

calves, and pigs were to pose a health and safety risk to

consumers, the sales provision would also serve the purpose of

protecting Massachusetts consumers from that risk, but we do not

see that as unrelated to the purpose of preventing the cruel

confinement of farm animals; it would simply be an ancillary

benefit from the prevention of that cruel confinement. Because

the petition's provisions share a common purpose and are related

in the accomplishment of that purpose, we conclude that a

reasonable voter may affirm or reject the entire petition as a

unified statement of public policy.

Finally, although the proposed law covers three different

species of farm animals, the petition treats all three species

similarly, applying the same prohibition against confinement in

a cruel manner to each of them. It is conceivable, as the

plaintiffs argue, that a voter might view the law's prohibition

against confinement in a cruel manner as appropriate for one

species but not for another. But that objection pertains to the

scope of the law, i.e., whether it was appropriate to include

all three species. "Provided the subjects are sufficiently

related," as we believe they are, "the choice as to the scope of
 13

an initiative petition is a matter for the petitioners, not the

courts." Abdow, 468 Mass. at 503.

Accordingly, we conclude that the Attorney General properly

certified that petition 15-11 contains only subjects that are

related or are mutually dependent. It is therefore fair to ask

the people of the Commonwealth to vote "yes" or "no" on a single

petition containing both the farm and the sales provisions.

2. Proper form requirement. Under art. 48, only laws and

constitutional amendments can be presented through the

initiative process. See art. 48, The Initiative, I (defining

"the popular initiative" as "the power of a specified number of

voters to submit constitutional amendments and laws to the

people for approval or rejection"); art. 48, The Initiative, II,

§ 1 ("An initiative petition shall set forth the full text of

the constitutional amendment or law . . . , which is proposed by

the petition"); Paisner v. Attorney Gen., 390 Mass. 593, 598

(1983) ("the popular initiative is confined to laws and

constitutional amendments"). Accordingly, an initiative

petition that proposes neither a law nor a constitutional

amendment is not "in proper form for submission to the people."

Art. 48, The Initiative, II, § 3, as amended by art. 74. See

Paisner, supra ("the Attorney General has . . . the duty,

pursuant to his review of the 'form' of the initiative petition,
 14

to apply his legal judgment to the issue whether a law is

proposed").

"Although we have avoided a precise construction of the

term 'law' for purposes of art. 48, we have described it as

including a measure with binding effect . . . ." Mazzone, 432

Mass. at 530. An initiative petition that "merely invites a

declaration of opinion by voters" does not present a "law" in

proper form for submission to the voters. Opinion of the

Justices, 262 Mass. 603, 605 (1928). For example, the Justices

of this court have opined that an initiative petition did not

present a "law" where it asked Massachusetts voters simply to

decide whether their senators and representatives in the United

States Congress should be requested to repeal Prohibition. See

id. at 604, 606. We have also held that an initiative was not a

"law" that could be submitted to the people for approval or

rejection where it asked voters whether to call a constitutional

convention. See Cohen v. Attorney Gen., 357 Mass. 564, 578

(1970). And we have concluded that an initiative did not

propose a "law" where it sought to prescribe rules for the

Legislature's internal operations that could not bind the

Legislature absent a constitutional amendment, and therefore, if

enacted, "would be no more than a nonbinding expression of

opinion." Paisner, 390 Mass. at 601.
 15

In the present case, the plaintiffs contend that petition

15-11 does not properly present a law due to its statement of

purpose in section 1, which provides:

"The purpose of this Act is to prevent animal cruelty by
phasing out extreme methods of farm animal confinement,
which also threaten the health and safety of Massachusetts
consumers, increase the risk of foodborne illness, and have
negative fiscal impacts on the Commonwealth of
Massachusetts."

The plaintiffs assert that inclusion of this "argumentative"

policy statement is improper, taints the entire petition, and

results in the petition not being in proper form for submission

to the people. The plaintiffs further argue that such policy

statements are not contemplated under art. 48 and should not be

permitted in initiative petitions.

We disagree. As a general matter, there is nothing

inherently improper about including a statement of purpose in an

initiative petition. Laws enacted by the Legislature frequently

include statements of purpose, which we have in turn used to

understand the intent of the enacting Legislature when called

upon to interpret those laws. See, e.g., Galenski v. Erving,

471 Mass. 305, 311 (2015) (citing statement of purpose in G. L.

c. 32B, § 1); R.D. v. A.H., 454 Mass. 706, 714 (2009) (citing

statement of purpose in G. L. c. 209C, § 1); Beale v. Planning

Bd. of Rockland, 423 Mass. 690, 695-696 (1996) (citing statement

of purpose in G. L. c. 41, § 81M). The people's power to enact
 16

laws through popular initiatives is "coextensive with the

Legislature's law-making power under Part II, c. 1, § 1," of the

Massachusetts Constitution. Paisner, 390 Mass. at 601. See

Opinion of Justices, 375 Mass. 795, 817 (1978) ("except as to

matters expressly excluded, the scope of the power of the people

to enact laws directly is as extensive as that of the General

Court"). Statements of purpose are therefore appropriately

included in laws proposed by initiative petitions, just as they

are in legislative enactments.

Indeed, where we have been called upon to interpret the

meaning of laws adopted by initiative petition, we have been

guided by statements of purpose. Just last year, in

Commonwealth v. Canning, 471 Mass. 341 (2015), we cited the

statement of purpose in the new medical marijuana law, which had

been adopted by initiative petition, in analyzing whether the

law affected the requirements for a search warrant where the

crime alleged was the defendant's cultivation of marijuana

plants. See id. at 344, 352. See also Bates v. Director of the

Office of Campaign & Political Fin., 436 Mass. 144, 165-166

(2002).

The plaintiffs cite the Attorney General's Web site warning

to initiative proponents that it may be safer not to include

statements of purpose and declarations of public policy, because

they may result in a conclusion that the proposed law is not in
 17

proper form for submission to the people. In response, the

Attorney General states that this warning was prompted by

concerns that a petition consisting solely of such statements

would not propose a proper law, or that a petition containing

wide-ranging policy statements might violate the related

subjects requirement. The Attorney General further states that

the statement of purpose in section 1 of petition 15-11 does not

raise these kinds of concerns. We agree.

The plaintiffs also contend that, even if a statement of

purpose does not always render the form of a petition improper,

it does here because it is "argumentative." The plaintiffs

have not called to our attention any case where we have found

error in the Attorney General's certification because of the

"argumentative" nature of the statement of purpose. Nor need we

determine whether a statement of purpose may be so argumentative

that it could make the form of a petition improper, because we

do not find the statement of purpose in this petition to be

unduly argumentative.

Accordingly, we conclude that an initiative petition

presenting a proposed law with binding effect may properly

include a statement of purpose. We therefore conclude that the

Attorney General correctly certified that petition 15-11 is in

proper form for submission to the people.
 18

We now address two matters that do not affect our holding

in this case: first, the timing of the filing of this action;

and second, the one-sentence statements describing the effect of

a "yes" and "no" vote on petition 15-11.

3. Timing of actions challenging the Attorney General's

certification decisions. Article 48 requires that proposed

initiative petitions be submitted to the Attorney General by the

first Wednesday in August before the assembly of the Legislature

in which it is to be introduced. See art. 48, The Initiative,

II, § 3, as amended by art. 74. According to public information

provided by the Attorney General, this is typically done in an

odd-numbered year, i.e., in the year before an election year.

See Initiative Petition Process, 2015-2016: An Overview for

Interested Members of the Public,

http://www.mass.gov/ago/government-resources/initiatives-and-

other-ballot-questions/initiative-petition-process.html

[https://perma.cc/PR4Y-BZC9]. The Attorney General usually

determines whether a measure proposed by initiative meets the

requirements of art. 48 by the first Wednesday in September,

i.e., about one month later. Id. Decisions not to certify are

usually challenged within days. Id. Decisions to certify are

usually challenged after it is known whether the proponents have

gathered enough additional signatures by the first Wednesday in
 19

December to move forward with the process. Id. See art. 48,

The Initiative, II, § 3, as amended by art. 74.

The plaintiffs commenced this action on April 25, 2016. In

her order reserving and reporting the case for consideration by

the full court, the single justice asked the plaintiffs to

"explain why this action was filed so late," and invited the

defendants to comment as well on the timing of this action and

"what they consider to be reasonable and appropriate time

guidelines for the filing of cases like this in the future."9

We share the single justice's concern with the timing of

the complaint. The Secretary is responsible for distributing an

Information for Voters guide (guide) describing initiative

petitions in advance of an election. See art. 48, General

Provisions, IV, as amended by art. 108 of the Amendments to the

Massachusetts Constitution; G. L. c. 54, § 53. This guide

includes the text of the proposed measures, the Attorney

General's summaries, the ballot question titles prepared by the

Attorney General and the Secretary, the one-sentence statements

describing the effect of a "yes" or "no" vote, statements

prepared by the Secretary of Administration and Finance

concerning the fiscal consequences of each measure for State and

municipal government finances, and arguments for and against

9
In response, the plaintiffs simply stated that they filed
the action "as expeditiously as possible."
 20

each measure. See art. 48, General Provisions, IV, as amended

by art. 108; G. L. c. 54, §§ 53, 54. The Attorney General and

the Secretary report that the printing deadline for the guide

usually falls in early July. When an initiative petition is

challenged, this court endeavors to decide the case before the

July printing deadline to avoid the need for the printing of the

guide to be postponed or redone. But, if adequate time is to be

allowed for the parties to brief the issues and agree on a

statement of facts, if required, and for the county court or

this court to review the case, hear argument, and issue a

decision before the printing deadline, there should be a

deadline for the filing of a complaint challenging an Attorney

General's certification decision.

There is presently no such deadline in our Constitution or

laws, and we have previously held that an action alleging that

an initiative petition failed to meet art. 48's requirements was

not barred by laches, even though it "could have been brought at

earlier stages in the initiative process and before thousands of

signatures had been obtained and the measure had been submitted

to the people." Sears v. Treasurer & Receiver Gen., 327 Mass.

310, 326 (1951). We reasoned that "[f]ailure to comply" with

art. 48 "will mean that no valid law has been enacted, no matter

how great the popular majority may have been in its favor," and

that "[a]n unconstitutional law cannot be made valid by the
 21

laches of anyone or by any lapse of time." Id. at 321, 326-327.

See Massachusetts Teachers Ass'n, 384 Mass. at 213, 231 n.19),

citing Sears, 327 Mass. at 326-327 (laches did not bar actions

claiming that initiative failed to meet art. 48's requirements,

even though actions were commenced after initiative was adopted

by voters; "The doctrine of laches has no significant role in

prompt, postelection challenges to the process by which an

initiative measure was adopted").

The Attorney General and the Secretary propose that actions

challenging the Attorney General's certification decisions

should be commenced in the county court by February 1 of an

election year. We agree this is a reasonable deadline, and

therefore strongly urge plaintiffs to file such challenges by

this date. As in a marriage ceremony, it is not unfair to ask

those who object to the Attorney General's certification of an

initiative petition to "speak now or forever hold your peace."

Filing a complaint by February 1 should ordinarily permit the

parties to brief the issues for a May hearing, and enable this

court to issue a decision by the end of June.10 Plaintiffs who

delay filing beyond this date should bear in mind that such

delay may make it impossible for this court to render a decision

before the guide is distributed, and may risk causing voter

10
We had to convene a special June sitting of the full
court to hear oral argument in this and two other challenges to
initiative petitions.
 22

confusion and additional costs for the Commonwealth if the court

were to conclude that the Attorney General erred in certifying

an initiative petition.

4. The one-sentence "yes" and "no" statements. The

election ballot will contain only the summary of petition 15-11

written by the Attorney General and the one-sentence statements

jointly written by the Attorney General and the Secretary

describing the effect of a "yes" or "no" vote. See art. 48,

General Provisions, III, as amended by art. 74; G. L. c. 54,

§§ 42A, 53. The summary describes both the farm and the sales

provisions. The one-sentence statements, however, refer only to

the farm provision; they are silent as to the sales provision.11

General Laws c. 54, § 53, provides in relevant part:

"The secretary shall make available for public examination
a copy of the ballot question titles, [one]-sentence
statements describing the effect of a yes or no vote and
fiscal effect statements and shall publish them in the
Massachusetts register by the second Wednesday in May. Any
[fifty] voters may petition the supreme judicial court for
Suffolk county to require that a title or statement be
amended; provided, however, that the petition shall be
filed within [twenty] days after the publication of the
title and statement. The court may issue an order
requiring amendment by the attorney general and the state

11
The one-sentence statements inform voters as follows:

"A YES VOTE would prohibit any confinement of pigs, calves,
and hens that prevents them from lying down, standing up,
fully extending their limbs, or turning around freely.

"A NO VOTE would make no change in current laws relative to
the keeping of farm animals."
 23

secretary only if it is clear that the title, [one]-
sentence statement or fiscal effect statement in question
is false, misleading or inconsistent with the requirements
of this section."

Neither the plaintiffs nor any other voters filed a petition

seeking to amend the one-sentence statements prepared by the

Attorney General and the Secretary for petition 15-11.

We, however, recognized that the one-sentence statements

might be clearly misleading to voters because they make no

reference to the sales provision, even though the initiative

petition includes only two primary provisions and, in contrast

with the farm provision, the sales provision will potentially

affect every Massachusetts consumer of eggs, veal, and pork.12

We therefore invited the parties and interveners at oral

argument to provide supplemental briefs as to whether we have

the legal authority to order the Attorney General and Secretary

12
We also recognize that the one-sentence statements
cannot, and should not, attempt to describe all the elements of
a proposed measure. That would undermine their usefulness as a
shorthand reference for voters. We also recognize that
deference is due the Attorney General's and the Secretary of the
Commonwealth's reasonable judgments in deciding what to include
in the one-sentence statements, as evidenced by the statute
permitting the court to order amendment "only if it is clear"
that the statement "in question is false, misleading or
inconsistent with" the statute's requirements (emphasis added).
G. L. c. 54, § 53. And we acknowledge that the one-sentence
statements are supplemented by other information provided to
voters, most importantly the Attorney General's summary, which
clearly describes the sales provision.
 24

to amend the one-sentence statements where no complaint was

filed under § 53.13

We conclude that, even if we were to find that the one-

sentence statements are clearly misleading, we have no power to

order their amendment where no petition has been filed under

§ 53. Where a statute requires that a certain claim can only be

brought by a stated number of specified plaintiffs in a

particular court, we have treated these requirements as

jurisdictional, and we have been reluctant to infer jurisdiction

on some other basis. See Litton Business Sys., Inc. v.

Commissioner of Revenue, 383 Mass. 619, 621-622 (1981) (statute

that permits "ten taxable inhabitants" to petition court to

enjoin municipality from unlawfully raising or expending money

imposes jurisdictional requirements; action did not come within

general jurisdiction of court of equity, and could be maintained

only in accordance with statute); Carlton v. Salem, 103 Mass.

141, 143 (1869) (where statutes expressly confer jurisdiction in

particular circumstances, they "create a strong implication

against the existence of . . . general equity jurisdiction").14

13
We also invited the supplemental briefs to address
whether the one-sentence statements were clearly misleading and,
if they were and if we had the authority to order amendment,
what language the parties and interveners would recommend we
adopt.
14
In particular, the requests in the plaintiffs' complaint
for relief in the nature of certiorari and mandamus, and for
 25

Because we conclude that we lack jurisdiction to order amendment

of the one-sentence statements, we do not reach the question

whether they are clearly misleading.

Conclusion. Having determined that the Attorney General

properly certified petition 15-11 pursuant to art. 48, The

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

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

effect.

So ordered.

declaratory relief, do not provide an alternative basis for us
to exercise jurisdiction to order amendment of the one-sentence
statements. It is well settled that certiorari and mandamus
cannot be employed as alternative routes to relief where another
avenue already exists. See, e.g., Picciotto v. Superior Court
Dep't of the Trial Court, 436 Mass. 1001, 1001 (2002), cert.
denied, 537 U.S. 820 (2002), quoting G. L. c. 249, § 4
("Certiorari simply does not provide an additional or
alternative avenue of appellate review. . . . [T]he purpose of
a civil action in the nature of certiorari is to correct errors
that 'are not otherwise reviewable by motion or by appeal'");
Callahan v. Superior Court, 410 Mass. 1001, 1001 (1991) ("It is
well settled that relief in the nature of mandamus is
extraordinary and may be granted only to prevent a failure of
justice in instances where there is no alternative remedy").
Nor can a declaratory judgment action create jurisdiction where
none exists. "General Laws c. 231A, § 1, does not expand the
jurisdiction of the courts upon which it confers power to render
declaratory decrees; the statute makes it clear that this power
is conferred on the courts 'within their respective
jurisdictions'" (footnote omitted). Sisters of Holy Cross of
Mass. v. Brookline, 347 Mass. 486, 491 (1964).