Anderson v. Attorney General

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SJC-12422

CHRISTOPHER ANDERSON & others1 vs. ATTORNEY GENERAL & others.2

Suffolk. February 6, 2018. - June 18, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Initiative. Constitutional Law, Initiative petition, Taxation,
Income tax. Attorney General. Taxation, Income tax.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 3, 2017.

The case was reported by Gants, C.J.

Kevin P. Martin (David J. Zimmer & Joshua J. Bone also
present) for the plaintiffs.
Kate R. Cook (Lisa C. Goodheart also present) for the
interveners.
Juliana deHaan Rice, Assistant Attorney General (Daniel J.
Hammond, Assistant Attorney General, also present) for the
defendants.

1 Christopher Carlozzi, Richard Lord, Eileen McAnneny, and
Daniel O'Connell.

2 Secretary of the Commonwealth; and Angel M. Cosme, Rebecca
A. Cusick, Jose A. Encarnacion, Deborah L. Frontierro, Rebekah
L. Gewirtz, Arnold Hiatt, Mary Clare Higgins, Marven-Rhode
Hyppolite, Barbara Ann Mann, Kirsis Rafaela Nina, Kimberly
Selwitz, and Mary Ann Stewart, interveners.
 2

The following submitted briefs for amici curiae:
Francis X. Wright, Jr., City Solicitor of Somerville, David
P. Shapiro, Assistant City Solicitor of Somerville, Charles D
Boddy, Jr., City Attorney of Lawrence, George Markopoulos,
Assistant City Solicitor of Lynn, Mark Rumley, City Solicitor of
Medford, Mikaela A. McDermott, City Solicitor of New Bedford, &
Alan Seewald, City Solicitor of Northampton, for mayor of
Somerville & others.
Joseph E. Sandler & Dara Lindenbaum, of the District of
Columbia, Ben T. Clements, & Jessica Dormitzer for Ballot
Initiative Strategy Center.
Thomas O. Bean for Alliance for Business Leadership.
Andrea C. Kramer for Center on Budget and Policy Priorities
& another.
John Pagliaro & Martin J. Newhouse for New England Legal
Foundation.
Mark G. Matuschak, Robert K. Smith, & Colleen McCullough
for Pioneer Institute, Inc., & another.
Steven P. Lehotsky, Dan Himmelfarb, & John T. Lewis, of the
District of Columbia, for Chamber of Commerce of the United
States of America.
Richard Juang for Adela Gonzalez & others.

GAZIANO, J. The Attorney General certified as suitable for

printing on the 2018 Statewide ballot an initiative petition

that would ask voters in the Commonwealth to decide whether to

amend the existing flat tax rate mandated by the Massachusetts

Constitution in order to impose a graduated tax on residents

with incomes in excess of $1 million. The language of

Initiative Petition 15-17 also provides that, "subject to

appropriation" by the Legislature, all revenues received from

the proposed tax "shall" be earmarked for two budgetary

purposes: education and transportation.

The plaintiffs, registered voters in the Commonwealth, seek

to exclude the petition from the ballot on the ground, inter
 3

alia, that it does not meet the related subjects requirement of

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

addition, the plaintiffs contend that the petition would

constitute a "specific appropriation of money from the treasury

of the commonwealth," contrary to the explicit prohibition in

art. 48, The Initiative, II, § 2, of the Amendments to the

Massachusetts Constitution against such appropriations, and that

the drafters of art. 48, at the Constitutional Convention of

1917-1918, did not intend that tax rates be set by initiative

petitions.3 The plaintiffs filed a complaint in the county court

challenging the Attorney General's certification of the

initiative petition and seeking to enjoin the Secretary of the

Commonwealth (Secretary) from placing the petition on the 2018

Statewide ballot. The single justice reserved and reported the

case for consideration by the full court.

We conclude that the initiative petition should not have

been certified by the Attorney General as "in proper form for

submission to the people," because, contrary to the

certification, the petition does not contain only subjects

"which are related or which are mutually dependent," pursuant to

3 See Bates v. Director of the Office of Campaign &
Political Fin., 436 Mass. 144, 155-156 (2002), citing D.B.
Magleby, Direct Legislation: Voting on Ballot Propositions in
the United States 20–25 (1984), and 2 Debates in the
Massachusetts Constitutional Convention 1917–1918, at 3-16
(1918) (Constitutional Debates).
 4

art. 48, The Initiative, II, § 3, of the Amendments to the

Massachusetts Constitution, as amended by art. 74 of the

Amendments.4

1. Background. a. Article 44. To place the issue in

context, a brief description of the mandatory flat tax rate in

the Massachusetts Constitution is necessary. Article 44 of the

Amendments to the Massachusetts Constitution, ratified in 1915,

allows the Legislature to levy a State income tax on

Massachusetts residents at a "uniform rate." See Drapkin v.

Commissioner of Revenue, 420 Mass. 333, 336 (1995). Article 44

provides, in relevant part:

"Full power and authority are hereby given and granted
to the general court to impose and levy a tax on income in
the manner hereinafter provided. Such tax may be at
different rates upon income derived from different classes
of property, but shall be levied at a uniform rate
throughout the commonwealth upon incomes derived from the
same class of property."

Pursuant to art. 44, the State income tax "must be calculated by

applying a single, flat rate percentage to a particular class of

4 We acknowledge the amicus briefs of the New England Legal
Foundation; the Pioneer Institute, Inc., and the Tax Foundation;
and the Chamber of Commerce of the United States of America, in
support of the plaintiffs. We acknowledge the amicus brief of
the mayors of Somerville, Lawrence, Lynn, Medford, New Bedford,
and Northampton; the amicus brief of the Ballot Initiative
Strategy Center; the amicus brief of the Alliance for Business
Leadership; and the amicus brief of the Center on Budget and
Policy Priorities and the Institute on Taxation and Economic
Policy, in support of the defendants. We also acknowledge the
amicus brief of Adela Gonzalez; Zuleyka Hernandez; Ayomide
Olumuyiwa, Greenroots, Inc.; and Alternatives for Community &
Environment, Inc.
 5

income." Peterson v. Commissioner of Revenue, 441 Mass. 420,

427 (2004). As a result of this provision, therefore, the

Legislature is precluded from imposing a graduated income tax on

Massachusetts taxpayers. See Opinion of the Justices, 383 Mass.

940, 941-942 (1981); Opinion of the Justices, 266 Mass. 583, 588

(1929).

Over the past fifty years, a number of initiative petitions

seeking to amend art. 44, in order to permit a graduated income

tax, have been certified and presented to the voters. In 1962,

1968, 1972, and 1976, proposals to amend the flat tax rate were

placed on the ballot by the Legislature; in 1994, the ballot

initiative seeking to amend the flat tax was the product of a

voter-initiated petition. In all five of these measures, the

graduated income tax, alone, was the sole subject of the ballot

question. In 1994, for example, the ballot question stated:

"This proposed constitutional amendment would require
Massachusetts income tax rates to be graduated, in order to
distribute the burden of the tax fairly and equitably. The
proposed amendment would require the rates for taxpayers in
higher income brackets to be higher than the rates for
taxpayers in lower income brackets. The proposed amendment
would also allow the state Legislature to grant reasonable
exemptions and abatements and establish the number and
range of tax brackets. The proposed amendment would
eliminate from the Massachusetts Constitution the present
requirement that income taxes must be levied at a uniform
rate throughout the state upon incomes derived from the
same class of property."

Voters rejected this petition by a margin of sixty-five to

twenty-eight per cent of votes cast. On the same ballot, voters
 6

also rejected, by a margin of sixty-five to twenty-seven per

cent of votes cast, an initiative petition that a statute be

enacted requiring graduated income tax rates.

b. Initiative Petition 15-17. By August 5, 2015, at least

ten registered voters had filed with the Attorney General the

initiative petition at issue here, entitled, "An Initiative

Petition for An Amendment to the Constitution of the

Commonwealth to Provide Resources for Education and

Transportation through an additional tax on Incomes in excess of

One Million Dollars." The petition would amend art. 44 by

adding the following:

"To provide the resources for quality public education
and affordable public colleges and universities, and for
the repair and maintenance of roads, bridges and public
transportation, all revenues received in accordance with
this paragraph shall be expended, subject to appropriation,
only for these purposes. In addition to the taxes on
income otherwise authorized under this Article, there shall
be an additional tax of 4 percent on that portion of annual
taxable income in excess of $1,000,000 (one million
dollars) reported on any return related to those taxes. To
ensure that this additional tax continues to apply only to
the commonwealth's highest income residents, this
$1,000,000 (one million dollar) income level shall be
adjusted annually to reflect any increases in the cost of
living by the same method used for federal income tax
brackets. This paragraph shall apply to all tax years
beginning on or after January 1, 2019."

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

Secretary that the petition "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
 7

qualified for submission 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 II, Section 2."

After the Attorney General's certification, the proponents

of the initiative petition gathered and submitted sufficient

additional signatures to the Secretary so that the Secretary

transmitted the measure to the Legislature. See art. 48, The

Initiative, II, §§ 1, 3, 4, as amended by art. 74. On May 18,

2016, more than one-quarter of the members of both houses of the

Legislature voted in favor of the proposed constitutional

amendment, and it was referred to the next legislative session.

See art. 48, The Initiative, IV, § 4. On June 14, 2017, more

than one-quarter of the members of both houses again voted to

approve the proposed amendment. This litigation followed.

On October 3, 2017, the plaintiffs filed a complaint in the

county court seeking a declaration pursuant to G. L. c. 214,

§ 1, that the initiative petition does not comply with the

requirements of art. 48; they also sought an order quashing the

Attorney General's certification and an injunction preventing

the Secretary from placing the initiative petition on the

general election ballot to be put before the voters in

November, 2018. Ten registered voters who support the petition
 8

were allowed to intervene in the case. The single justice then

reserved and reported the matter for decision by the full court.

The plaintiffs contend that the Attorney General's

certification of the petition was improper for three reasons.

First, they argue that the petition combines "three very

different subject matters: whether to impose a graduated income

tax, and whether to give preferential treatment in state

spending to two unrelated subject matters -- education and

transportation," contrary to the requirement of art. 48, The

Initiative, II, § 3, as amended by art. 74, that an initiative

petition address only related or mutually dependent subjects.

Second, the plaintiffs maintain that the earmarking of the tax

revenues that would be raised by the new tax would violate the

prohibition of art. 48 against imposing "specific

appropriation[s]" by initiative petitions. See art. 48, The

Initiative, II, § 2. Third, the plaintiffs assert that an

initiative petition may not be used to usurp the Legislature's

authority to tax, and that a petition to modify the

Massachusetts Constitution is on a different footing in this

regard from a petition to create a statute.

2. Standard of review. A challenge to the Attorney

General's decision to certify an initiative petition is reviewed

de novo. See Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014).

In reviewing a challenge to an initiative petition proposed by
 9

at least ten registered voters in the Commonwealth, we construe

art. 48 in a manner "mindful that art. 48 establishes a

'people's process,'" Bates v. Director of the Office of Campaign

& Political Fin., 436 Mass. 144, 154 (2002), quoting Buckley v.

Secretary of the Commonwealth, 371 Mass. 195, 199 (1976), that

"gives the people of Massachusetts the opportunity 'to enact

statutes regardless of legislative opposition'" and to "move

forward on measures which they deem[] necessary and desirable,"

regardless of legislative opposition. Bates, supra, quoting

Citizens for a Competitive Mass. v. Secretary of the

Commonwealth, 413 Mass. 25, 30 (1992). See Carney v. Attorney

Gen., 451 Mass. 803, 814 (2008).

At the same time, however, we are obligated to safeguard

the integrity of the initiative petition process by requiring

that those seeking to change the law strictly comply with

art. 48. "[T]he provisions of art. 48 are mandatory rather than

directory. . . . [W]hen [the people] . . . seek to enact laws

by direct popular vote they must do so in strict compliance with

those provisions and conditions" (citations omitted). Opinion

of the Justices, 422 Mass. 1212, 1219 (1996). See Hurst v.

State Ballot Law Comm'n, 427 Mass. 825, 828 (1998) ("The State

Constitutional Convention of 1917-1918 sought a balance between

competing impulses toward direct versus representative

democracy. The proper form and use of petitions is an important
 10

aspect of the balance art. 48 represents, and our review must

respect that balance").

3. Discussion. The plaintiffs challenge the Attorney

General's certification that Initiative Petition 15-17 contains

only subjects "which are related or which are mutually

dependent." Art. 48, The Initiative, II, § 3, as amended by

art. 74.

a. Related subjects requirement. In deciding whether an

initiative petition contains subjects "which are related or

which are mutually dependent," we examine whether "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[.] That is

the crux of the relatedness controversy." Carney v. Attorney

Gen., 447 Mass. 218, 226 (2006) (Carney I). The mandate that an

initiative petition contain a single "common purpose" arises

because a voter, unlike a legislator, "has no opportunity to

modify, amend, or negotiate the sections of a law proposed by

popular imitative." Id. at 230, 231. A voter cannot "sever the

unobjectionable from the objectionable," and must vote to

approve or reject an initiative petition in its entirety. Id.

at 230. Accordingly, to avoid "abuse" of the process and

confusion among voters, while an initiative petition may contain

numerous subjects, it must embody one purpose, and "must express
 11

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." Id. at 230-

231.

The language of art. 48 emerged from the Constitutional

Convention of 1917-1918, "from which we may discern the

conditions under which art. 48 came into existence, and how it

appears then to have been received and understood by the

convention, and ultimately, by the voters" (citation and

quotations omitted). Carney I, 447 Mass. at 226. The

requirement of art. 48 that an initiative petition must

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

mutually dependent" was intended to balance the "interests of

initiative petitioners and the interests of those who would

ultimately vote on the petition." Abdow, 468 Mass. at 499.

The convention adopted the related subjects requirement in

response to two concerns raised by the delegates: the potential

for voter confusion and "the dangers of 'log-rolling,'"5 which

had given rise to harms in other States. Dunn v. Attorney Gen.,

474 Mass. 675, 679-680 (2016). See Carney I, 447 Mass. at 226-

"Logrolling" is the "practice of including several
5

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." Dunn v. Attorney Gen., 474 Mass. 675,
679 (2016), quoting Carney v. Attorney Gen., 447 Mass. 218, 219
n.4 (2006) (Carney I).
 12

227. Otherwise put, the relatedness requirements were intended

to protect against petitions which include "as alluring a

combination of what is popular with what is desired by selfish

interests as the proposers of the measures may choose."

Carney I, supra at 227, quoting 2 Debates in the Massachusetts

Constitutional Convention 1917-1918, at 12 (1918)

(Constitutional Debates). See Dunn, supra; Hensley v. Attorney

General, 474 Mass. 651, 652, 658 (2016); Gray v. Attorney

General, 474 Mass. 638, 644-647 (2016); Abdow, 468 Mass. at 498-

499.

The relatedness requirement was imposed in its current

form, mandating that initiative petitions contain only subjects

that are "related" or "mutually dependent," after much debate

among the delegates about how best to avoid "packaging proposed

laws in a way that would confuse the voter," Carney I, 447 Mass.

at 228, or otherwise be "misleading." See id. at 225, 227-230 &

n.21.6 "To prevent initiative petitions from being exploited in

As an example of impermissible log-rolling, the delegates
6

to the convention debated a provision placed before voters in
Oregon through an initiative process:

"But, sir, you now invite the self-seekers who cannot
get their legislation through the General Court to turn to
the people whom they may wheedle or deceive into granting
the privileges that our representatives never would permit.
I have time to refer but incidentally to the measures that
become law through the blind wording of titles or to catchy
provisions, as illustrated by a case in Oregon, where, in
order to secure the passage of the single tax, there was
 13

this manner, the delegates considered potential limitations on

their subject matter. . . . 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.' . . . 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 . . . , requiring the Attorney General to certify that a

proposed measure 'contains only subjects . . . which are related

or which are mutually dependent.'" Dunn, 474 Mass. at 679-680,

citing Carney I, 447 Mass. at 227-228; Constitutional Debates,

supra at 12, 537, 567, 701-702.

We were first called upon to construe the "related subjects

requirement" in 1941, in a petition involving education about

birth control for married couples. See Opinion of the Justices,

309 Mass. 555, 560-561 (1941). In that case, we determined that

the requirement that initiative petitions contain "only

hitched to the front of it, like a locomotive to the front
of a freight train, a proposal that there should be no more
poll or head taxes. The important part of them had been
abolished for years, but nevertheless that proposal hauled
the heavy freight through and put into the Constitution of
Oregon the single-tax proposition that the people had
previously rejected."

Carney I, 447 Mass. at 227 n.20, quoting Constitutional Debates,
supra at 567.
 14

subjects . . . which are related or which are mutually

dependent" was met because "[t]he particular subjects of the

proposed law appear[ed] to be germane to the general subject of

prevention of pregnancy or conception, to such an extent, at

least, that they [could not] rightly be said to be unrelated."

Id. at 561.

Forty years later, we relied on that test in Massachusetts

Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209,

221 (1981), quoting Opinion of the Justices, 309 Mass. at 561,

in discussing the related subjects requirement of art. 48, The

Initiative, II, § 3, as amended by § 74, where we concluded that

the requirement that an initiative petition contain "only

subjects . . . which are related or which are mutually

dependent," would be satisfied if "one can identify a common

purpose to which each subject of an initiative petition can

reasonably be said to be germane." Massachusetts Teachers

Ass'n, supra at 219-220. We cautioned, however, that while

"[i]t is not for the courts to say that logically and

consistently other matters might have been included or that

particular subjects might have been dealt with differently,"

"the general subject of an initiative petition cannot be so

broad as to render the 'related subjects'" limitation

meaningless. Id., citing Opinion of the Justices, supra. In

1996, in considering whether an initiative petition met the
 15

requirement of "relatedness," defined as whether it violated

"the art. 48 requirement that all subjects of an initiative be

related or mutually dependent," the Justices again relied upon

the test in Massachusetts Teachers Ass'n, supra, whether "one

can identify a common purpose to which each subject of an

initiative petition can reasonably be said to be germane."

Opinion of the Justices, 422 Mass. at 1220.

Ten years later, in Carney I, 447 Mass. at 220, 226, 228,

we examined the history of the constitutional debates on the

"relatedness limitation," as it was enacted in its final form,

requiring that an initiative petition "contain[] only subjects

. . . which are related or which are mutually dependent," and

held that "[t]he plain wording of art. 48 and the context in

which it was enacted demonstrate that the relatedness limitation

is one of many restrictions on the popular initiative process

intended to avoid confusion at the polls and to permit citizens

to exercise a meaningful choice when voting to accept or reject

a proposed law."

In our subsequent decisions, we have continued to follow

what has been known as the "related subjects" requirement or the

"relatedness requirement." In Dunn, 474 Mass. at 679-680, we

analyzed the "related subjects requirement," which we defined as

the requirement of art. 48 that "a proposed measure 'contain[ ]

only subjects . . which are related or which are mutually
 16

dependent," in terms of whether the two distinct provisions in

the petition shared a "common purpose" as defined in Carney I,

447 Mass. at 226. In Hensley, we determined that an initiative

petition "easily satisfie[d] the related subjects requirement of

art. 48" because, first, its provisions met the requirements

that their "similarities . . . dominate what each segment

provides separately so that the petition is sufficiently

coherent to be voted on 'yes' or 'no' by the voters." Hensley,

474 Mass. at 658, quoting Carney I, supra. Second, the multiple

provisions in the petition expressed "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." Hensley, 474 Mass. at 658, quoting Abdow,

468 Mass. at 501. We concluded that the petition met the

relatedness requirement of art. 48 because it "[laid] out a

detailed plan to legalize marijuana . . . for adult use" and to

create a system that would license, regulate, and tax retail

sales. Hensley, supra.

Similarly, in Gray, 474 Mass. at 644-649, in considering

the "related subjects requirement," we determined that the

subjects of the petition were not mutually dependent because

they could "exist independently," and then decided the matter

relying on the "relatedness limitation" as defined in Carney I,

447 Mass. at 226, and concluded that the subjects had no "common
 17

purpose." In Abdow, 468 Mass. at 498-499, we concluded that the

"proposed measure" did not violate the "so-called 'relatedness'

or 'related subjects' requirement of art. 48, which states that

an initiative petition must 'contain[] only subjects . . .

which are related or which are mutually dependent." We

determined that the petition contained "a significant 'common

purpose,'" and its provisions were "not so loosely tied together

as to render the related subjects requirement meaningless, and

[were] operationally related in a way that would 'permit a

reasonable voter to affirm or reject the entire petition as a

unified statement of public policy.'" Id. at 501. See Albano

v. Attorney General, 437 Mass. 156, 161 (2002) (discussing "the

relatedness requirement" as whether "a petition contains only

subjects 'which are related or which are mutually dependent'"

and deciding that "entire petition" [with several distinctly

separate provisions] shared "[a] common purpose" that was not

"so broad as to render the 'related subjects' limitation

meaningless" [citations omitted]); Mazzone v. Attorney Gen., 432

Mass. 515, 529 (2000) (under subheading "[r]elated or mutually

dependent subjects," discussing and determining that subjects of

petition were "related to a single, common purpose" of expanding

scope of drug treatment and drug abuse prevention programs).

As mentioned, in Gray, 474 Mass. at 648, one of the few

occasions in which we have concluded that a petition did not
 18

meet the related subjects requirement, we did discuss briefly,

under the subheading of "[r]elatedness," whether two subjects

were mutually dependent, and concluded that they were not. In a

lengthy discussion under the same subheading, we also considered

"the core of the related subjects requirement," that is, whether

the "initiative petition's provisions share a 'common

purpose,' . . . put slightly differently but making the same

point, . . . a 'unified statement of public policy' that the

voters can accept or reject as a whole" (footnote omitted). Id.

at 645-646, quoting Massachusetts Teachers Ass'n, 384 Mass. at

219-220, and Carney I, 447 Mass. at 231. Since then, other than

in quoting the language of art. 48, we have not had cause to

address separately whether the subjects of a petition are

"mutually independent." See Gray, supra at 644-649.

As these cases demonstrate, the language "or which are

mutually dependent" in the relatedness requirement does not

lessen the limitation that an initiative petition under art. 48,

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

single common purpose and express a unified public policy. Nor

does it impose a separate requirement that may be satisfied even

if the subjects of a petition are not related. The questions

whether "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
 19

voters," and whether two or more provisions in an 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," are two sides of the same coin. See Carney I, 447

Mass. at 226, 230-231. See also Dunn, 474 Mass. at 680;

Massachusetts Teachers Ass'n, 384 Mass. at 219.

"A constitutional amendment should be 'interpreted in the

light of the conditions under which it . . . [was] framed, the

ends which it was designed to accomplish, the benefits which it

was expected to confer and the evils which it was hoped to

remedy.'" Mazzone, 432 Mass. at 526, quoting Tax Comm'r v.

Putnam, 227 Mass. 522, 524 (1917). "'Its words are to be given

their natural and obvious sense according to common and approved

usage at the time of its adoption,' although the historical

context should not 'control[] the plain meaning of the

language.'" Mazzone, supra, quoting General Outdoor Advertising

Co. v. Department of Pub. Works, 289 Mass. 149, 158 (1935).

In its dictionary definition, "mutual" means "directed by

each toward the other or others; reciprocal." Black's Law

Dictionary 1178 (10th ed. 2014). In common usage, "mutual" is

defined as "having the same relation each toward the other" and

"of or pertaining to each of two or more; held in common;

shared." Webster's New Universal Unabridged Dictionary 1270
 20

(2003). A "dependent" is defined as "[s]omeone who relies on

another for support; one not able to exist or sustain oneself

without the power or aid of someone else," and "dependence" is

defined as "[a] relationship between two . . . things whereby

one is sustained by the other or relies on the other for support

or necessities." Black's Law Dictionary, supra at 531. In

common usage, "dependent" also means "conditioned or determined

by something else"; "contingent"; and "not used in isolation;

used only in connection with other forms." Webster's New

Universal Unabridged Dictionary, supra at 534.

While the word "or" is often used as a disjunctive, it also

has a number of other meanings. The word "or" may be "used to

correct or rephrase what was previously said." Webster's New

Universal Unabridged Dictionary, supra at 1360. It is

fundamental to statutory construction that the word "or" is

disjunctive "unless the context and the main purpose of all the

words demand otherwise."7 Eastern Mass. St. Ry. v. Massachusetts

7 In Gaynor's Case, 217 Mass. 86, 89-90 (1914), the court
observed:

"It is argued that 'or' in the clause quoted from [St.
1911, c. 751,] Part V, § 2, should be construed to mean 'to
wit,' or identity with or explanation of that which goes
before. Sometimes it is necessary to attribute this
signification to the word in order to effectuate the plain
legislative purpose. Commonwealth v. Grey, [2 Gray 501
(1854)]. Brown v. Commonwealth, 8 Mass. 59 [(1811)]. It
often is construed as 'and' in order to accomplish the
intent manifested by the entire act or instrument in which
 21

Bay Transp. Auth., 350 Mass. 340, 343 (1966), citing

Commonwealth v. Keenan, 139 Mass. 193, 194 (1885). See, e.g.,

Miller v. Miller, 448 Mass. 320, 329 (2007) (same); Bleich v.

Maimonides Sch., 447 Mass. 38, 46–47 (2006) (same); Nuclear

Metals, Inc. v. Low–Level Radioactive Waste Mgt. Bd., 421 Mass.

196, 212 (1995) (same). "Although the disjunctive 'or' may

suggest separate meanings for the two terms . . . , it does not

require mutual exclusivity. The word 'or' commonly introduces a

synonym or 'definitional equivalent.'" McCarthan v. Director of

Goodwill Indus. Suncoast, Inc., 851 F.3d 1076, 1087 (2017),

quoting A. Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts 122 (2012). See 1A N.J. Singer &

J.D. Shambie Singer, Statutes and Statutory Construction § 21.14

(7th ed. 2009). See also United States v. Harris, 838 F.3d 98,

105 (2d Cir. 2016), cert. denied, 137 S. Ct. 840, (2017),

quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) ("In

any event, even when striving to ensure separate meanings, the

it occurs. . . . It is not synonymous with 'and' and is to
be treated as interchangeable with it only when the obvious
sense requires it, or when otherwise the meaning is
dubious. But the word 'or' in its ordinary use and also in
accurate meaning is a disjunctive particle. It marks an
alternative and not a conjunctive. It indicates one or the
other of two or several persons, things or situations and
not a combination of them. . . . It is construed as having
a different meaning only when the context and the main
purpose to be accomplished by all the words used seems to
demand it."
 22

disjunctive canon does not apply absolutely, particularly where

'the context dictates otherwise'").

In other words, while operationally related subjects need

not be mutually dependent, "we need not pause to consider

whether any subjects which are mutually dependent could ever be

said not also to be related." Massachusetts Teachers Ass'n, 384

Mass. at 218 n.8. As discussed, the provision the delegates

referred to as the "unrelated matters" provision, Constitutional

Debates, supra at 960, was approved by the delegates, under that

designation, when it comprised the phrase "shall not contain

unrelated subjects." Id. at 856. The provision was adopted

after much debate by the delegates on how to prevent particular

misuses of the initiative process, and whether initiative

petitions should be limited to a single subject. Id. at 12,

537, 567, 701-702. The words "or which are mutually dependent"

were added at the last moment, when the "related subjects"

language was "referred back" to the committee on form and

phraseology. Constitutional Debates at 953. The committee "on

its own initiative, moved the relatedness limitation from its

'isolated' position and incorporated it into the section of the

final draft initiative amendment concerning the Attorney

General's certification duties" that the committee reported back

to the delegates. See Carney I, 447 Mass. at 228, citing

Constitutional Debates, supra at 1051. These changes were
 23

described by the delegates themselves as "unimportant" and as

not affecting the meaning of the provision. Constitutional

Debates, supra at 773, 911, 959-960. The delegates then adopted

the final language without further debate. Id. at 1050-1051.

Thus, the words "or which are mutually dependent" were added as

a means of assisting, first, the Attorney General and,

thereafter, the court, in language that was then well

understood, to examine a petition to determine if its core

purpose "dominate[s] what each segment provides separately so

that the petition is sufficiently coherent to be voted on 'yes'

or 'no' by the voters." Carney I, supra at 226. See Ashley v.

Three Justices of the Superior Court, 228 Mass. 63, 81 (1917);

County of Berkshire v. Cande, 222 Mass. 87, 90-91 (1915);

Edwards v. Bruorton, 184 Mass. 529, 530-531 (1904); Nolan's

Case, 122 Mass. 330, 332-333 (1877); Warren v. Mayor & Aldermen

of Charlestown, 2 Gray 84, 99 (1854).

To construe the phrase "or which are mutually dependent" as

eliminating the requirement of relatedness would be to vitiate

the purpose of protecting the voters from misuse of the

petitioning process for which it was enacted. "An amendment to

the Constitution is one of the most solemn and important of

instruments. . . . Its words should be interpreted in 'a sense

most obvious to the common understanding at the time of its

adoption,' because it is proposed for public adoption and must
 24

be understood by all entitled to vote." Carney I, 447 Mass.

at 224, quoting Opinion of the Justices, 324 Mass. 746, 749

(1949). "We reject any restrictive reading of art. 48, as

amended, that results in a failure to give effect to the purpose

for which its words were chosen." Carney I, supra at 225,

quoting Hurst v. State Ballot Law Comm'n, 427 Mass. 825, 828

(1998). This is no doubt why, since its introduction, our

jurisprudence construing art. 48, The Initiative, II, § 3, as

amended by art. 74, has focused largely, or almost exclusively,

on the question of "relatedness," rather than on "mutual

dependence."

b. Application. With this guidance in mind, we turn to

the petition at issue. Initiative Petition 15-17 contains three

provisions on three distinct subjects presented as a single

ballot question. First, the petition would amend the flat tax

rate mandated by art. 44 to impose a graduated income tax on

certain high-income taxpayers. Second, the petition would

prioritize spending for public education by earmarking revenues

raised by the new tax for "quality public education and

affordable public colleges and universities." Third, the

petition would prioritize spending for transportation by

earmarking revenues raised by the new tax for "the repair and

maintenance of roads, bridges and public transportation."
 25

The parties understandably do not raise any arguments

specifically concerning whether the provisions of the petition

are mutually dependent. It is immediately apparent, however,

that the three provisions are not mutually dependent. As

discussed, petitions seeking to impose a graduated tax rate or a

tax on specific high-income earners previously have been

presented to the voters of the Commonwealth as stand-alone

initiatives. It is also evident that funds for "quality public

education" and "affordable public colleges and universities"

could be raised and provided to educational institutions

separately from any expenditures on transportation, and that

raising funds for "repair and maintenance of roads, bridges and

public transportation" could proceed without any expenditures on

education, at any grade level. Indeed, the dissent states as

much when it notes that a differently worded petition, directing

one-half of the funds raised to transportation and the other

one-half to education, would remove from the Legislature "the

latitude accorded it by the original proposed law to spend on

the two identified areas as it saw fit, and instead would be

limited to spending the funds raised specifically for each area

regardless of the particular needs in each area." Post at .

Because the provisions here can "exist independently," they are

not "mutually dependent," just as in Gray, 474 Mass. at 648,

where the diagnostic assessment tests and the reporting of the
 26

prior year's test results were not "mutually dependent" because

they could "exist independently."8

8 Even if we were to accept the argument that the proposed
spending provisions are dependent upon a particular funding
mechanism -- the proposed tax -- that would not change the
evident fact that the proposed tax can stand on its own, and
neither spending provision depends upon the other. Moreover,
that the two funding provisions rely on a particular source of
funds does not make the provisions "mutually dependent." At the
time of the Constitutional Debates of 1917-1918, it was well
established that the source of funds for a desired public
expenditure could be severed from the purpose of the
expenditure, and that the two were not mutually dependent. See
Edwards v. Bruorton, 184 Mass. 529, 530-532 (1904), citing
Warren v. Mayor & Aldermen of Charlestown, 2 Gray 84, 99, 100
(1854), and compiling cases ("In statutes providing for the
expenditure of money for the benefit of the public, containing
an unconstitutional provision for raising money by taxation, it
has been held in different jurisdictions that the invalid part
may be disregarded and the substantial part enforced, leaving
payment to be provided for in a constitutional way").

By the same token, in Mazzone v. Attorney General, 432
Mass. 515, 517 (2000), we considered a petition proposing an
"[a]ct to expand the scope of the commonwealth's drug treatment
program and provide funding through fines for drug violations
and the forfeiture of assets used in connection with drug
offenses." We concluded that the distinct taxing and funding
provisions of the petition were "related to a single, common
purpose. All provisions of the petition relate directly or
indirectly to expanding the scope of the Commonwealth's drug
treatment programs and, as the Attorney General aptly describes
it, 'fairly' funding those programs. To that end, the various
provisions of the petition expand the class of individuals
entitled to diversion into the Commonwealth's drug treatment
programs, provide a source of funds, 'fairly' obtained, for
those programs, and direct the development of drug abuse
prevention programs." Id. at 529. Accordingly, because the
"fines" and "other proceeds" to be raised and the drug
rehabilitation programs to be funded served the single common
purpose of expanding access to drug treatment programs, the
petition met the "relatedness" requirement of art. 48. See id.
at 524, 529.
 27

Although she certified the subjects as sufficiently

related, the Attorney General has not articulated a common

purpose between these spending priorities, beyond the abstract

determination that both purposes are "broad areas of public

concern." The interveners, for their part, assert that

prioritizing spending for education and transportation will

"strengthen[] the Massachusetts economy and set[] a foundation

for inclusive growth." Some of the amici characterize the

petition as intended "for economic advancement and social

mobility" of specific groups within the Commonwealth. The

difficulty the proponents have in stating the purported purpose

of the initiative petition is itself telling.

As a general matter, we agree with the Attorney General's

observation that the subjects of education and transportation

are areas of broad public concern, and efforts to improve them

may be characterized as socially beneficial and for the common

good. We also agree that education and transportation are among

the many keys to "inclusive growth." Nonetheless, as we

emphasized in Gray, 474 Mass. at 648, the related subjects

requirement is not satisfied by the ability to articulate a

"conceptual or abstract bond" between diverse subjects, such as

"broad areas of public concern" and "keys to inclusive growth."

See Carney I, 447 Mass. at 230 ("It is not enough that the

provisions in an initiative petition all 'relate' to some same
 28

broad topic at some conceivable level of abstraction"). See,

e.g., id. at 226, citing Opinion of the Justices, 422 Mass. at

1220 (parties disputed whether common purpose of initiative

petition was characterized broadly as "to make Massachusetts

government more accountable to the people" or more narrowly as

"legislative accountability"). As we have cautioned, a common

purpose cannot be so overbroad as to "render the 'related

subjects' limitation meaningless." Massachusetts Teachers

Ass'n, 384 Mass. at 219.

There is "no single 'bright-line' test for determining

whether an initiative meets the related subjects requirement."

See, e.g., Dunn, 474 Mass. at 680; Hensley, 474 Mass. at 657;

Abdow, 468 Mass. at 500; Carney I, 447 Mass. at 226. "On the

one hand, the requirement must not be construed 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; the delegates to the constitutional

convention that approved art. 48 did, after all, permit more

than one subject to be included in a petition, and we ought not

be so restrictive in the definition of relatedness that we

effectively eliminate that possibility and confine each petition

to a single subject." Abdow, supra at 499, citing Massachusetts

Teachers Ass'n, 384 Mass. at 219-229 and nn.9, 10. "On the

other hand, relatedness cannot be defined so broadly that it
 29

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 which could place them

in the untenable position of casting a single vote on two or

more dissimilar subjects." Abdow, supra, citing generally

Carney I, supra at 224-232.

In Gray, 474 Mass. at 640-643, for example, the Attorney

General certified an initiative petition which purported to

address related subjects in the area of educational reform. The

petition sought to end the use of "Common Core" educational

standards, and also would have required the annual release of

the prior year's comprehensive assessment tests. Id. at 640-

643. Finding "the twin educational facets of curriculum and

assessment . . . inextricably coupled," the Attorney General

determined that the provisions were "operationally related" to

serve a "common purpose of imposing 'new procedural requirements

on the development and implementation of educational

standards.'" Id. at 648. In considering whether the questions

were sufficiently related for purposes of art. 48, we noted that

the two subjects of curriculum content and comprehensive

assessments -- which test knowledge of the curriculum -- were

connected at a "conceptual level." Id. Aside from this

theoretical connection, however, we concluded that the two

provisions addressed separate public policy issues: the
 30

elimination of Common Core curriculum standards and the

publication of assessment tests. We determined that it would be

unfair to place voters in the untenable position of casting a

single vote on two dissimilar subjects, which each happened

broadly to pertain to aspects of educational reform.

Similarly, in Carney I, 447 Mass. at 224, 232, we rejected

the Attorney General's certification of two unrelated subjects

that had been grouped together and designated as a provision to

promote "the more humane treatment of dogs." The initiative

petition in that case, entitled "An Act to protect dogs,"

proposed to expand criminal sanctions against those who abuse

dogs, and to dismantle the dog racing industry. Id. at 219-222.

We concluded that the provisions did not "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." Id. at 230-231. As for

the likely impact of that initiative petition at the polls, we

observed, "The voter who favors increasing criminal penalties

for animal abuse should be permitted to register that clear

preference without also being required to favor eliminating

parimutuel dog racing. Conversely, the voter who thinks that

the criminal penalties for animal abuse statutes are strong

enough should not be required to vote in favor of extending the

reach of our criminal laws because he favors abolishing
 31

parimutuel dog racing." Id. at 231. Likewise, in Opinion of

the Justices, 422 Mass. at 1220-1221, we concluded that the

stated common purpose of "legislative accountability" was

insufficient to bind together disparate provisions in a petition

that was designed to address compensation for legislators and

the inspection of records kept by the commissioner of veterans'

services.

By contrast, in Dunn, 474 Mass. at 676, 682, we concluded

that an initiative petition prohibiting (1) the confinement of

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

farm "in a cruel manner," and (2) the sale of eggs or meat

produced from animals so confined contained matters that were

sufficiently related to satisfy art. 48. The opponents of the

initiative petition in that case maintained that the Attorney

General's certification of the petition was improper because the

farm provisions and the sales provisions addressed different

public policies. Id. at 681. They argued that it would be

unfair to ask voters to choose between banning certain farming

methods and requiring retailers to alter their purchasing

decisions. Id. We determined that "[b]oth the farm provision

and the sales provision share a common purpose of preventing

farm animals from being caged in cramped conditions." Id.

Moreover, the two provisions complemented each other "in the

means of accomplishing this common purpose." Id.
 32

Examination of the diverse subjects of Initiative

Petition 15-17, by contrast, discloses no "operational

relatedness among its substantive parts" (citation omitted),

Dunn, 474 Mass. at 680, and we are unable to discern a common

purpose or unified public policy that the voters fairly could

vote up or down as a whole. The two subjects of the earmarked

funding themselves are not related beyond the broadest

conceptual level of public good. In addition, they are entirely

separate from the subject of a stepped rather than a flat-rate

income tax, which, by itself, has been the subject of five prior

initiative petitions. Because a reasonable voter could not

fairly accept or reject the petition as a unified statement of

public policy, Initiative Petition 15-17 does not meet the

relatedness requirement set forth in art. 48, The Initiative,

II, § 3, as amended by art. 74.9 Including it on the ballot

would place a reasonable voter in the "untenable position of

9 Given the result we reach, we need not address the
plaintiffs' argument that the petition violates the provision in
art. 48, The Initiative, II, § 2, that "[n]o measure . . . that
makes a specific appropriation of money from the treasury of the
commonwealth . . . shall be proposed by an initiative petition."
See Associated Indus. of Mass. v. Secretary of the Commonwealth,
413 Mass. 1, 6-8 (1992) (prohibition on initiative petition that
"removes public monies, and the decision how to spend them, from
the control of the Legislature" is not violated where language
of petition concerned raising of public revenues and petition
included provision that such funds were designated for specific
purposes "subject to" appropriation by Legislature). For
similar reasons, we do not address the claim that the delegates
to the Constitutional Convention of 1917-1918 did not intend
that tax rates be set by initiative petition.
 33

casting a single vote on two or more dissimilar subjects." See

Abdow, 468 Mass. at 499.

The Attorney General maintains that "[t]he reasonably

cognizant voter, simply by reading the text of the petition, is

on alert that, if she objects to how this new revenue will be

raised or spent, she should vote 'no' on the measure." This

view would leave a voter who favored a graduated income tax but

disfavored earmarking any funds for a specific purpose, for

example, in the untenable position of choosing which issue to

support and which must be disregarded. A voter who favored

designating specific State funds for schools and transportation

(subject to legislative appropriation), but not a graduated

income tax, would be confronted with the same conundrum. A

voter who commuted to work on an unreliable subway line, but who

did not have school-aged children and was unconcerned about

public education, might want to prioritize spending for public

transportation, without devoting additional resources to public

education, but would be unable to vote for that single purpose.

A parent of young children, who lived in a rural part of the

Commonwealth and did not own a motor vehicle, would be unable to

vote in favor of prioritizing funding for early childhood

education without supporting spending for transportation.10 See

10We are not entirely unaware of the possibility that, as
the plaintiffs argue, these "broad areas of public concern" were
 34

Carney I, 447 Mass. at 231. Placing voters in the untenable

position of either supporting or rejecting two important, but

diverse, spending priorities, accompanied, in either case, by a

major change in tax policy, is "the specific misuse of the

initiative process that the related subjects requirement was

intended to avoid." See Gray, 474 Mass. at 649. "We are not

free to temper the stringent formal limitations adopted by the

people to ensure the integrity of the initiative process."

Carney I, 447 Mass. at 224-225.

In essence, the dissent raises three issues. The dissent

argues that: (1) a taxing proposition and a funding proposition

cannot be separated and are always mutually dependent; (2) if

added to the initiative petition as a means to "sweeten the pot"
for voters. In discussing the differences between the prior,
unsuccessful, petitions for constitutional amendments to the
flat tax rate that were presented as single-issue petitions and
this petition, then Senate President Stanley Rosenberg remarked,
"In the past, constitutional amendments have been very
differently constructed. This one because it is focused
specifically on money for education and transportation will
stand a better chance of being approved. And, also because it
is very clear that it (affects) people who make more than $1
million in taxable income." See Tuthill, Backers of Proposed
Tax Hike on Massachusetts Millionaires File Signatures, WAMC
Northeast Public Radio (Dec. 2, 2015), http://wamc.org/post
/backers-proposed-tax-hike-massachusetts-millionaires-file-
signatures [https://perma.cc/6UR3-NHP6]. Thus, the focus of
legislators, like Rosenberg, was specifically on proposals to
appropriate funds for education and transportation, because
those proposals would stand a better chance of being approved by
voters who would be forced to disregard the elimination of the
flat tax in order to approve publicly beneficial funding
initiatives. This, of course, is precisely what art. 48, The
Initiative, II, § 3, as amended by art. 74, seeks to prevent.
 35

the subjects of a petition are mutually dependent, there is no

concern about the possibility of misleading or confusing the

voters, and thus no need for consideration whether the petition

expresses a single common purpose; and (3) the decision in this

case that the provisions are neither related nor mutually

dependent deprives the voters of their right to express an

opinion on the petition.

The gravamen of the dissent's argument is that any

collection of provisions that would tax any number of different

sources, and would provide funds to some indeterminate list of

distinct entities and purposes, should be placed before the

voters, because the list of provisions would be "mutually

dependent," and therefore inseparable; in this view, removing

any one of the taxing sources or funding priorities would

fundamentally alter the proposed law. The problem with this is

that, at the time of the 1917-1918 Constitutional Convention,

this court had established that a taxing provision establishing

a source of funds, and a spending provision, could be separated.

See Edwards, 184 Mass. at 530-532.

In addition, in this view, there is no requirement of a

common purpose or a coherent statement of public policy that the

voters can accept or reject as a whole. Because the provisions

are inseparable, the dissent would have it, there is no concern

about logrolling, or that the voters would be confused, misled,
 36

or placed in the untenable position of having to choose between

two or more dissimilar subjects in casting a single vote. Thus,

petitions that contain only "mutually dependent" provisions, as

crafted by the proponents of the petitions, would be insulated

from the protections that art. 48 was intended to provide. In

particular, any petition containing provisions for both taxing

and spending would be shielded from review by the Attorney

General and, thereafter, the courts, to determine whether the

proposed law presented a single statement of public policy,

suitable to be placed before the voters. Taken to its logical

conclusion, merely by adding to each provision a statement that

the provision is intended to be part of a particular package,

and cannot stand on its own, petitioners would be able to

guarantee that none of their petitions were subject to any sort

of meaningful review. This would leave the question of

relatedness, which was so intensely debated by the delegates to

the 1917-1918 Constitutional Convention, on the cutting room

floor.

Lastly, the dissent argues that construing the requirement

of related or mutually dependent subjects as required under

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

therefore, concluding that the petition is not suitable to be

placed on the ballot, deprives the voters of the Commonwealth of

the right to "express their opinion on a one-section, four-
 37

sentence petition." Post at . To the contrary, however, a

decision to place before the voters three distinct policy

provisions, yet permit them only to accept, or reject, all three

as a package, would deprive the voters of the Commonwealth of

their right "to exercise a meaningful choice when voting to

accept or reject a proposed law." Carney I, 447 Mass. at 220.

They would be unable to express a reasoned view on each distinct

provision, independently, and on its own merits.

Moreover, while the dissent asserts that the petitioners

have an absolute "right" to place before the voters "this

petition," in contrast to some other law that would be proposed

if any of the provisions were not included, there is no such

right. Article 48 was designed precisely to prevent any

conceivable collection of provisions from being presented to the

voters. See Carney I, 447 Mass. at 220-222. The relatedness

requirement of the language in art. 48, The Initiative, II, § 3,

as amended by art. 74, was intended to balance the "interests of

initiative petitioners and the interests of those who would

ultimately vote on the petition." Abdow, 468 Mass. at 499. In

other words, art. 48 was designed to safeguard the rights of the

voters to be presented with a coherent, single statement of

public policy, rather than be misled by efforts to "wheedle or

deceive [them] into granting the privileges that our

representatives never would permit" by presenting "measures that
 38

become law through the . . . wording of titles or . . . catchy

provisions . . . that the people had previously rejected."

Carney I, 447 Mass. at 227 n.20, quoting Constitutional Debates,

supra at 567. It is hard to view a proposed "constitutional

amendment" that one of its proponents said was deliberately

"very differently constructed" from prior similar amendments,

and where "because it is focused specifically on money for

education and transportation will stand a better chance of being

approved," as other than the precise type of wheedling and

deceiving that the delegates had in mind when they adopted the

relatedness requirement. See note 10, supra.

"Neither the Attorney General nor this court is required to

check common sense at the door when assessing the question of

relatedness. The relatedness limitation of art. 48 must not be

permitted to drift from its intent to secure to voters the right

to enact a uniform statement of public policy through exercising

a meaningful choice in the initiative process." Carney I, 447

Mass. at 232.

Conclusion. The matter is remanded to the county court,

where a judgment shall enter declaring that the Attorney

General's certification of Initiative Petition 15-17 is not in

compliance with the related subjects requirement of art. 48 and

the petition is not suitable to be placed on the ballot in the

2018 Statewide election.
 39

So ordered.
 LENK, J. (concurring). I concur with the result and with

much of the court's reasoning as to whether Initiative Petition

15-17 contains related subjects. I write separately because I

agree with the dissent's view that the mandate in art. 48 of the

Amendments to the Massachusetts Constitution requiring that a

petition contain "only subjects . . . which are related or which

are mutually dependent" is disjunctive in nature; it sets out

two alternatives and calls for two different analyses. I agree,

further, with the dissent that the court should consider the

phrase "mutually dependent" as it would have been understood at

the time of the 1917-1918 Constitutional Convention, as

discussed in the court's then extant jurisprudence concerning

the severability of statutory provisions. Although this case

presents squarely the question whether unrelated subjects may be

mutually dependent -- they can be, if rarely -- I disagree with

the dissent that Initiative Petition 15-17 contains subjects

which are in fact mutually dependent.

In the years leading up to the Constitutional Convention,

to decide whether statutory provisions were severable, this

court would consider whether they were "mutually dependent and

must stand or fall together." See Nolan's Case, 122 Mass. 330,

333 (1877). Where each provision of a statute could "stand

independently," the provisions were not considered mutually

dependent and, accordingly, were deemed severable. See
 2

Commonwealth v. Petranich, 183 Mass. 217, 220 (1903). See also

County of Berkshire v. Cande, 222 Mass. 87, 90-91 (1915)

(statutory parts that are "wholly independent of each other" are

severable).1

Although severability analysis concerns statutory

provisions, art. 48, The Initiative, II, § 3, of the Amendments

to the Massachusetts Constitution, as amended by art. 74 of the

Amendments, speaks of "subjects . . . which are mutually

dependent." To determine whether Initiative Petition 15-17

satisfies this constitutional requirement, we must ask whether

the subjects of Initiative Petition 15-17 can "stand

independently" and, if not, whether they must instead "stand or

fall together." See Petranich, 183 Mass. at 220; Nolan's Case,

122 Mass. at 333. That, in turn, requires us to ascertain what

those subjects are. While the number of provisions in a statute

turns on how the statute is written, discerning the subjects

contained therein is a question of substance. Compare Century

Dictionary and Cyclopedia 4806 (1904) (defining "provision" as

"a distinct clause in an instrument or statute") with id. at

1 The dissent cites Warren v. Mayor & Alderman of
Charlestown, 2 Gray 84, 100 (1854), for the proposition that
"'mutually dependent' subjects are those which, if separated
from one another, would no longer convey the meaning or purpose
of the proposition." Post at . This, however, too broadly
construes the Warren court's view of mutual dependence. Only
statutory parts which were "conditions, considerations or
compensations for each other" could be deemed mutually
dependent. Warren, supra at 99.
 3

6020 (defining "subject" as "[t]hat on which any mental

operation is performed; that which is thought, spoken, or

treated of"). See 2 Debates in the Massachusetts Constitutional

Convention 1917-1918, at 567-568 (1918) (chair of committee on

rules and procedure using "matters" and "subjects"

interchangeably).

If Initiative Petition 15-17 is viewed as containing two

subjects -- a tax on millionaires and how to spend it -- as

framed, the two are not severable and are mutually dependent.

This is so because, although the tax could "stand

independently," see Petranich, 183 Mass. at 220, the spending

matter could not. The latter merely places conditions on the

revenue raised by the tax; without the tax, it would be

ineffectual.

There is no requirement, however, that our analysis be

controlled by the structure of the petition imposed by its

proponents. As discussed, art. 48, The Initiative, II, § 3, as

amended by art. 74, speaks of subjects, rather than provisions;

a provision may be drafted to concern multiple subjects. In

this regard, Initiative Petition 15-17 contains three subjects,

insofar as the spending matter consists of two: education and

transportation. These two subjects have no apparent

interaction, and are "distinct and in their nature separable the

one from the other." Ashley v. Three Justices of the Superior
 4

Court, 228 Mass. 63, 81 (1917). Nor can they be deemed

"conditions, considerations or compensations for each other."

Warren v. Mayor & Alderman of Charlestown, 2 Gray 84, 99 (1854).

A tax on millionaires, dedicated to funding education, could

"stand independently" as its own petition, with an internal

mutual dependence. See Petranich, 183 Mass. at 220. The same

is true of a tax on millionaires that funded transportation

projects. In addition to a taxing provision without spending

provisions, therefore, Initiative Petition 15-17 could be

severed into two stand-alone petitions, each containing two of

its three subjects. Because Initiative Petition 15-17 could be

severed in this way, its three subjects need not all "stand or

fall together," Nolan's Case, 122 Mass. at 333, and there is no

mutual dependence shared among them.

Given that the three subjects in Initiative Petition 15-17

are neither related nor mutually dependent, I am constrained to

agree with the court that the petition may not be put before the

people.
 BUDD, J. (dissenting, with whom Gants, C.J., joins).

Disregarding the plain text of art. 48, The Initiative, II, § 3,

of the Amendments to the Massachusetts Constitution, as amended

by art. 74 of the Amendments, which requires that an initiative

petition contain "only subjects . . . which are related or which

are mutually dependent," the court concludes that, in drafting

this language the delegates to the Constitutional Convention of

1917-1918 inserted the words "or which are mutually dependent"

as superfluous text. Ante at , . The court goes on to

conclude that the people may not express their opinion on a one-

section, four-sentence petition because it contains subjects

that are not related. Ante at , . That analysis is

flawed.

The constitutional text is the written expression of the

Constitutional Convention's intent to ensure that ballot

questions containing multiple severable distinct, independent,

and unrelated subjects cannot be asked of voters together in one

ballot question, but instead must be severed and asked of voters

independently.1 The court's analysis ignores the meaning of

1 Without the "subjects . . . which are related or which are
mutually dependent" requirement, nothing would prohibit a group
of petitioners from placing before the electorate the type of
omnibus legislation that is commonly considered by the
Legislature. As an example, on April 13, 2018, the Governor
signed into law an omnibus criminal justice reform package sent
to him by the Legislature. The law consists of 239 different
sections. See St. 2018, c. 69. Among its numerous provisions,
 2

"mutually dependent" as it was understood at the time art. 48

was drafted and ratified. Despite the fact that Initiative

Petition 15-17's subjects are mutually dependent and are not

distinct, independent, and severable, the court incorrectly

concludes that the petition cannot be asked of voters even

though it falls under no "excluded matter" listed under art. 48,

The Initiative, II, § 2, of the Amendments.2 Prohibiting the

it repeals various mandatory minimum sentence requirements for
certain crimes, including those relating to some retail drug
offenses and drug paraphernalia. Id. at §§ 47-48, 55. At the
same time, it expands mandatory minimum sentences for fentanyl
and carfentanil trafficking. Id. at §§ 50-51. It also creates
a Statewide sexual assault evidence kit tracking system. Id. at
§ 11. The bill includes numerous other provisions that could
have been voted on separately but instead were packaged together
for a single vote. It raises the minimum age a child can be
tried in the Juvenile Court, §§ 77-79; reforms the drug-free
school zone law, § 57; establishes a process for expunging
criminal records, §§ 18, 104, 195; permits survivors of human
trafficking to vacate convictions of certain crimes, § 132;
limits the use of restrictive housing for prisoners, §§ 85-87,
93-94, 230, 236; prohibits prisons from unreasonably limiting
in-person visits between prisoners and families, § 92; raises
the felony threshold for malicious destruction of property,
§ 154; removes the penalty of license suspension from the
offense of vandalism, § 152; requires the availability of high
school equivalency certificate programming to inmates, § 95; and
requires prisons to provide reentry preparation programming at
least six months before prisoners' release date, § 93.

2 Excluded matters under art. 48 include measures that
"relate[] to religion, religious practices or religious
institutions; or to the appointment, qualification, tenure,
removal, recall or compensation of judges; or to the reversal of
a judicial decision; or to the powers, creation or abolition of
courts; or the operation of which is restricted to a particular
town, city or other political division or to particular
districts or localities of the commonwealth; or that makes a
specific appropriation of money from the treasury of the
 3

people from voting on this petition undermines the legislative

power given to the people to draft and enact laws in a manner

that is incompatible with the separation of powers principles

set forth in art. 30 of the Massachusetts Declaration of Rights.

For these reasons I dissent.

1. The meaning of "mutually dependent" in art. 48. We

have recently held that a petition is not mutually dependent if

its provisions can "exist independently." Gray v. Attorney

Gen., 474 Mass. 638, 648 (2016). However, while clarifying the

circumstances where a petition's subjects are not mutually

dependent, our modern jurisprudence provides little explanation

for the reverse, i.e., the circumstances in which a petition's

subjects are "mutually dependent."

"A constitutional amendment['s] . . . 'words are to be

given their natural and obvious sense according to common and

approved usage at the time of its adoption.'" Mazzone v.

Attorney Gen., 432 Mass. 515, 526 (2000), quoting General

Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass.

149, 158 (1935). A review of case law prior to and during the

time that art. 48 was ratified demonstrates that, contrary to

commonwealth" and matters relating to art. 18 of the Amendments
to the Massachusetts Constitution, art. 48 itself, provisions in
the Constitution specifically excluding matters from popular
initiative and referendum, and certain rights in the
Massachusetts Declaration of Rights. Art. 48, The Initiative,
II, § 2.
 4

the court's interpretation, "mutually dependent" has a specific

meaning distinct from "related." See, e.g., Ashley v. Three

Justices of the Superior Court, 228 Mass. 63, 81 (1917).

The concept of mutual dependence as applied to legislation

has its roots in the doctrine of severability. Whenever a court

determines that a portion of a statute is unconstitutional, it

must consider whether that portion is severable from the rest

and determine whether the remainder of the statute may be left

intact. Prior to 1854, many courts simply severed

unconstitutional provisions from statutes, assuming that "full

effect will be given to such as are not repugnant to the

[C]onstitution." Bank of Hamilton v. Lessee of Dudley, 27 U.S.

492, 526 (1829). See Shumsky, Severability, Inseverability, and

the Rule of Law, 41 Harv. J. on Legis. 227, 232 (2004)

(Shumsky); Stern, Separability and Separability Clauses in the

Supreme Court, 51 Harv. L. Rev. 76, 79 (1937) (Stern).

However, Warren v. Mayor & Aldermen of Charlestown, 2 Gray

84, 99 (1854), was "particularly important to the development of

modern severability doctrine," providing a "vexing exception" to

the general rule permitting the severability of constitutional

clauses from those held to be unconstitutional. Shumsky, supra

at 233. See Stern, supra at 79-80. In Warren, the court held

that the part of a State statute annexing Charlestown to Boston

was invalid because it conditioned the annexation on the
 5

maintenance of representation in the Legislature in a manner

that violated the Massachusetts Constitution. The court

reasoned that the presumption of severability

"must be taken with this limitation, that the [statute's]
parts, so held respectively constitutional and
unconstitutional, must be wholly independent of each other.
[For] if they are so mutually connected with and dependent
on each other, as conditions, considerations or
compensations for each other, as to warrant a belief that
the legislature intended them as a whole, and that, if all
could not be carried into effect, the legislature would not
pass the residue independently, and some parts are
unconstitutional, all the provisions which are thus
dependent, conditional or connected, must fall with them"
(emphasis added).

Warren, supra at 99. The court concluded that because the

"various provisions of the act, . . . all providing for the

consequences of . . . annexation, . . . are connected and

dependent[,] . . . look to one object and its incidents, and are

so connected with each other," the drafters and enactors of the

legislation could not have intended the dysfunctional but

constitutionally valid statutory remnant to stay in force and

struck down the entire statutory enactment. Id. at 100, 107.

After 1854, the court sometimes simplified the language

originally used in Warren to refer to portions of statutes that

were not distinct and independent. Over time, the phrase

originally expressed as "mutually dependent and connected" was

sometimes expressed as "mutually dependent." See Ashley, 228

Mass. at 81; Nolan's Case, 122 Mass. 330, 332-333 (1877).
 6

Thus, based on Warren and its progeny, "mutually dependent"

subjects are those that, if separated from one another, would no

longer convey the meaning or purpose of the proposition.3 See

Ashley, 228 Mass. at 81 ("the two parts are distinct and in

their nature separable the one from the other and are not so

interwoven and mutually dependent" [emphases added]); Warren, 2

Gray at 100 ("various provisions of the act . . . , all

providing for the consequences of [another provision], more or

less immediate or remote, are connected and dependent; the

different provisions of the act look to one object and its

incidents, and are so connected with each other"). Each

mutually dependent provision is reliant on the others to express

its singular meaning. In other words, there is no way to

separate the provisions in legislation with mutually dependent

subjects and still have the law. See Commonwealth v. Petranich,

183 Mass. 217, 220 (1903) (provisions dependent where severance

would mean "so chang[ing] the character of the original"

legislation "that the [drafters and enactors] would not be

3 The court cites to Warren v. Mayor & Alderman of
Charlestown, 2 Gray 84, 99 (1854), signaling that it understands
the relationship between the severability of portions of
statutes deemed to be unconstitutional, and the term "mutually
dependent" in art. 48. However, its application of the case is
flawed. As explained infra, Warren supports the conclusion that
all aspects of the instant petition are mutually dependent.
 7

presumed to have enacted [one provision] without the other").4

2. Mutual dependence in modern art. 48 case law. As

discussed infra, in most of the cases interpreting art. 48's

requirement that petitions contain only "subjects . . . which

are related or which are mutually dependent," the court has

concluded that a petition met the relatedness test, and

therefore has not necessarily discussed the mutual dependence

prong. However, where the court has concluded that the petition

does not meet either prong (and, therefore, cannot be asked of

voters), it has either expressly or implicitly considered

whether the petition "contains only subjects . . . which are

mutually dependent" in a manner consistent with the term as it

was understood in 1917.

For example, in Gray, 474 Mass. at 648, separately from our

4 The regular use of the term "mutually dependent" by courts
to describe severability of statutes at the time of the 1917-
1918 Constitutional Convention alone is sufficient to connect
the term as used in art. 48 with the debates among the delegates
regarding the danger of combining of numerous unrelated,
distinct, and independent proposals into a single ballot
question for an up or down vote. However, it is interesting to
note that this court applied the "mutually dependent" test to
determine if provisions of a statute were severable in an
opinion that was released during the Constitutional Convention.
See Ashley v. Three Justices of the Superior Court, 228 Mass.
63, 66 (1917). Further, John W. Cummings, who represented the
petitioner in the Ashley case, was also the chair of the
Constitutional Convention's committee on initiative and
referendum. 2 Debates in the Massachusetts Constitutional
Convention 1917-1918, at ix, 2 (1918) (Constitutional Debates).
As chair of that committee, he would have played a major role in
seeing the written expression of what would become art. 48
through the Constitutional Convention's proceedings.
 8

determination that the petition contained subjects that were not

related, we analyzed whether it contained subjects that were

mutually dependent:

"An initiative petition properly may contain only
subjects 'which are related or which are mutually
dependent.' Art. 48, The Initiative, II, § 3[, as amended
by art. 74]. The two subjects in this petition are clearly
not 'mutually dependent.' In fact, the opposite seems
true. That is, whether the diagnostic assessment tests are
based on the common core standards or some previous set of
academic standards -- the focus of sections 1 through 3 of
the petition -- will not affect in any way the
commissioner's obligation under section 4 to release before
the start of every school year all of the previous year's
test items in order to inform educators about the testing
process; the commissioner's obligation will exist
independently of the specific curriculum content on which
the tests are based."

The "exist independently" test is the same as the mutual

dependence requirement from Warren and its progeny. See, e.g.,

Ashley, 228 Mass. at 81 (no mutual dependence where "the two

parts are distinct and in their nature separable"); Petranich,

183 Mass. at 220 (one part of statute not dependent on another

where other parts "may well stand independently of it").

In Carney v. Attorney Gen., 447 Mass. 218, 226 (2006),

S.C., 451 Mass. 803 (2008), the court stressed that the

relatedness limitation only "requires the Attorney General to

scrutinize the aggregation of laws proposed in the initiative

petition for its impact at the polls" (emphasis added). In

other words, because each law in an "aggregation of [proposed]

laws" could inherently "exist independently," Gray, 474 Mass. at
 9

648, the different proposed laws that make up the aggregation

are not mutually dependent and therefore must be related in

order to survive the two-prong test. See Massachusetts Teachers

Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 218

(1981) (where it is obvious that there is packaging of

independent proposals, proper question is whether those

proposals are sufficiently related).

The court's conclusion that relatedness and mutual

dependence are one and the same appears to stem partially from a

misinterpretation of cases in which mutual dependence is not at

issue.5 In many cases where we concluded that a petition

contained related subjects and therefore met the first prong of

the two-pronged disjunctive test, we used a "related subjects"

or "relatedness requirement" heading. See, e.g., Dunn v.

Attorney Gen., 474 Mass. 675, 679 (2016); Hensley v. Attorney

Gen., 474 Mass. 651, 657 (2016); Abdow v. Attorney Gen., 468

Mass. 478, 498 (2014); Albano v. Attorney Gen., 437 Mass. 156,

161 (2002); Massachusetts Teachers Ass'n, 384 Mass. at 218.

The court did not evaluate the "mutually dependent"

requirement in these cases; thus, the court should not look to

these cases for an analysis of mutual dependence, nor should it

assume that the two prongs mean the same thing. In Gray, supra

5 The court's conflation of relatedness and mutual
dependence is discussed further, in part 4, infra.
 10

at 644, the court used the heading "relatedness" in analyzing

the subjects in the petition before the court. There, whether

the subjects were related was the operative question because the

petition's provisions were plainly not mutually dependent, but

instead, distinct and independent. Id. at 648.

The same is true in Carney, where the court considered the

"relatedness limitation" in art. 48 because the provisions of

the petition were not mutually dependent. See Carney, 447 Mass.

at 226 ("relatedness limitation requires the Attorney General to

scrutinize the aggregation of laws proposed in the initiative

petition for its impact at the polls" [emphasis added]). The

court's suggestion that we can read "or which are mutually

dependent" out of the Constitution based on the headings in

cases in which there was no need to discuss mutual dependence in

any detail if at all is hazardous and has no jurisprudential

support.

3. This petition "contains only subjects . . . which are

mutually dependent." The subjects in this one-section, four-

sentence petition are mutually dependent because the subjects

cannot be severed without changing the meaning of the petition.

Cf. Warren, 2 Gray at 99-100. Standing alone, each provision

means something different from the provisions together. Cf. id.

Attempting such a separation proves the point. It is

possible to ask voters: "Should the people adopt a tax on
 11

incomes exceeding one million dollars?" But the remaining

portions of the petition, regarding how the money should be

spent, cannot stand on their own. See Gray, 474 Mass. at 648

(rejecting petition after considering whether propositions could

"exist independently"). What is left is a portion of a

proposition regarding whether the people should dedicate some

nonexistent revenue to education and transportation. This

remaining partial proposition would not propose a

"constitutional amendment" or "law," as required by art. 48, but

instead would be no more than a policy question, which would not

be a valid exercise of the legislative power under art. 48. See

Paisner v. Attorney Gen., 390 Mass. 593, 601 (1983), citing

Cohen v. Attorney Gen., 357 Mass. 564, 578 (1970) ("nonbinding

expression of opinion . . . [is] a plebiscite or declaration

. . . and is not an appropriate subject for the popular

initiative").

If the remaining partial proposition were to be refashioned

so as to ask questions that would propose a "constitutional

amendment" or "law," they would necessarily be different from

the question presented by the petitioners. For example,

questions regarding whether voters would like an additional

amount of existing revenue (without a new source of revenue) to

go toward education or to transportation, or both, would be

entirely different from the one presented by the petitioners.
 12

Similarly, separating the question so as to ask about two

separate taxes, one to fund education and one to fund

transportation, also would fundamentally alter the question

contained in the original petition. For example, rather than

one four per cent tax to fund both education and transportation,

the proposal could be severed to ask voters (1) whether to

impose a two per cent tax on incomes over $1 million to fund

education spending; and (2) whether to impose a separate two per

cent tax on incomes over $1 million in order to fund

transportation spending. Assuming both passed, the Legislature

would not have the latitude accorded it by the original proposed

law to spend on the two identified areas as it saw fit, and

instead would be limited to spending the funds raised

specifically for each area regardless of the particular needs in

each area.

Thus, there is no way to separate the question into

subjects and still have the same question -- the petition does

not have the same meaning if its subjects are separated. See

Petranich, 183 Mass. at 220 (provisions dependent where

severance would mean "so chang[ing] the character of the

original statute that the [drafters and enactors] would not be

presumed to have enacted [one provision] without the other").

As in Warren, 2 Gray at 100, the various provisions of the

instant petition all "look to one object and its incidents."
 13

They are "mutually connected with and dependent on each other,

as conditions, considerations or compensations for each other."

Id. at 99. See Ashley, 228 Mass. at 81 ("the two parts are

distinct and in their nature separable the one from the other

and are not so interwoven and mutually dependent as to require

the belief that the Legislature would not have enacted the one

without the other"); Nolan's Case, 122 Mass. at 333, citing

Warren, supra at 84 ("the two parts of this enactment are not

distinct and independent, but . . . are mutually dependent and

must stand or fall together" [emphasis added]).

The court relies on Edwards v. Bruorton, 184 Mass. 529

(1904), for the proposition that "the source of funds for a

desired public expenditure could be severed from the purpose of

the expenditure." Ante at , . However, a close reading of

Edwards reveals that the opinion does not go that far. In

Edwards, the court was called upon to determine the severability

of parts of an 1891 special act. The act sought to "provid[e]

for the expenditure of money for the benefit of the public" by

granting the city of Boston the power to take land by eminent

domain and to issue bonds for public works projects. Edwards,

supra at 531. See St. 1891, c. 323, §§ 1-3, 10, as amended by

St. 1892, c. 418, §§ 1, 5. The act also provided the city with

the power to make an assessment on property abutting certain new

road construction projects that could be spent to pay for the
 14

improvements. Edwards, supra. See St. 1891, c. 323, §§ 10, 14-

17, as amended by St. 1892, c. 418, §§ 5, 7-10. The taxing

provision had been held unconstitutional in an earlier case, and

the court concluded that the remaining provisions could stand on

their own, "leaving payment to be provided for in a

constitutional way." Edwards, supra.

Unlike the provisions in the ballot question at issue in

this case, a State's grant of powers to a municipality to take

land, to float bonds, and to make special assessments on certain

properties could plainly exist independently of one another.

See Loeb v. Columbia Township Trustees, 179 U.S. 472, 489

(1900), cited in Edwards, 184 Mass. at 531 ("The power to issue

bonds to raise the money, and the mode in which the township

should raise the necessary sums to pay the bonds when due . . .

are distinct and separable matters" [emphasis added]). In

contrast, although one part of the instant petition (and the

statute at issue in Warren) could stand alone, the remainder

could not; the remainder acts only as a modifier, changing the

meaning of that which could stand independently.6

6 To the extent that the reasoning in Edwards v. Bruorton,
184 Mass. 529 (1904), is inconsistent with the reasoning of
Warren, the inconsistency may be explained by the context in
which Edwards was decided. At the time of Edwards, many States
had authorized cities to make public improvements, engage in
planning, and, on occasion, tax abutters in a manner later
determined to be unconstitutional, to help pay for street
improvements. See, e.g., Loeb v. Columbia Township Trustees,
 15

Based on the language of the petition, rather than seeking

to impose a tax combined with the broad authority to spend the

associated revenue on all areas of State government, the ballot

initiative grants the Legislature with power to assess a

particular tax and limits the areas where the revenue from that

tax can be spent. The petitioners want to ask the electorate

whether this question should be law, and the electorate has the

179 U.S. 472, 489 (1900). When the same statute made such an
assessment and also provided the authority to float bonds to pay
for infrastructure projects, many courts first concluded that
all of these provisions were mutually dependent. See, e.g.,
Loeb v. Trustees of Columbia Township, Hamilton County, Ohio, 91
F. 37, 45 (S.D. Ohio 1899). See also Loeb, 179 U.S. at 489
("There is some ground for saying that the legislature would not
have passed the act without the [assessment] section").

The Edwards court acknowledged that its decision in the
case regarding mutual dependence was "not free from difficulty,"
Edwards, 184 Mass. at 533, and described the case as one
"present[ing] difficulties of determination upon the question,"
id. at 531. However, the court ultimately followed the
reasoning of the United States Supreme Court and concluded that
the assessment provisions were not mutually dependent on the
power to take land and the power to issue bonds. Id., citing
Loeb, 179 U.S. 472. In the intervening thirteen years between
the enactment of the statute and the court's conclusion that a
special benefit assessment was unconstitutional, the city of
Boston would have issued many bonds and taken many parcels of
land from property owners. Had the court concluded, years
later, that all of the provisions of the 1891 special act, as
amended, were invalid, the transactions would have been
difficult if not impossible to undo. See Loeb, supra at 488-
489; A. Scalia & B.A. Garner, Reading Law: The Interpretation
of Legal Texts 66 (2012) (Scalia & Garner) (describing
presumption of validity as one that "disfavors interpretations
that would nullify the provision or the entire instrument -- for
example, an interpretation that . . . would cause a statute to
be unconstitutional"). Similar considerations are not present
in considering whether the provisions of Initiative Petition 15-
17 are mutually dependent.
 16

right under art. 48 to consider whether this question should be

law -- not a different question.

4. The court's conflation of relatedness and mutual

dependence in art. 48. Disregarding the second half of art.

48's requirement that a petition contain "only subjects . . .

which are related or which are mutually dependent," the court

concludes that the subjects of the petition are unrelated, and

thus holds that the ballot question cannot be put before voters.7

In explaining its view that "or which are mutually

dependent" is surplusage,8 the court stresses that "[t]he words

. . . were added at the last moment, when the 'related subjects'

language was 'referred back' to the committee on form and

phraseology," ostensibly to show that the addition was not given

much thought. Ante at , quoting 2 Debates in the

Massachusetts Constitutional Convention 1917-1918, at 953 (1918)

(Constitutional Debates). Yet, as the chair of that committee

explained when they released the draft, the changes were "made

purely and simply to carry out what the committee believed to be

7 The court asserts that this test in art. 48 does not
"impose a separate requirement that may be satisfied even if the
subjects of a petition are not related." Ante at .
Nonetheless, the court asserts that the provisions of the
petition are not mutually dependent. Ante at .

8 This view ignores a basic tenet of statutory
interpretation that every word is to be given effect and none
should needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence. Scalia &
Garner, supra at 174.
 17

the wishes of the Convention." Constitutional Debates, supra at

960 (remarks of Augustus P. Loring). Far from adding

surplusage, that committee "cut down [by] about [fifteen] per

cent" the text of the document. Id. at 959. "Unnecessary words

were cut out," not put in. Id. at 960.

In redrafting the text, the committee on form and

phraseology worked closely with those who had been active in the

earlier debates, including the sponsor of the initiative and

referendum, Joseph Walker, as well as Robert Luce and Josiah

Quincy. Id. The Committee also worked closely with the advisor

to the Convention, Lawrence B. Evans. Id. Evans explained that

the role of that committee was to reduce "the amount of

litigation which is due entirely to the careless drafting of

constitutions or statutes." Evans, The Massachusetts

Constitutional Convention, 11 Law. Libr. J. 51, 56 (1918).

Evans explains that, instead of adding unnecessary words, the

committee's role was to counter the insistence among delegates

"who have not had the benefit of legal training and are afraid

to trust the concise and exact language of the Committee" to

insert "clauses which add nothing to the amendment except

superfluous words." Id.

Our cases have explained that the requirement that a

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

which are mutually dependent" was put in place in order to limit
 18

the dangers of logrolling. See Dunn, 474 Mass. at 679; Carney,

447 Mass. at 227-229. Reasonable minds may disagree as to the

precise definition of "logrolling"; however, based on the

language of the constitutional text, we know that by enacting

and ratifying art. 48, the delegates were concerned about the

inclusion of multiple severable distinct, independent, and

unrelated proposals combined together to be asked of voters

together in one ballot question. See art. 48, The Initiative,

II, § 3, as amended by art. 74. This written expression is

consistent with the definition of "logrolling" that we have used

in our cases, which also reference the severability element,9 as

well as the understanding of the delegates who were concerned

9 "'Logrolling' . . . is defined as '[t]he legislative
practice of including several propositions in one measure or
proposed constitutional amendment so that the legislature or
voters will pass all of them, even though these propositions
might not have passed if they had been submitted separately'"
(emphasis added). Carney v. Attorney Gen., 447 Mass. 218, 219
n.4 (2006), quoting Black's Law Dictionary 960 (8th ed. 2004).
See Dunn v. Attorney Gen., 474 Mass. 675, 679 (2016) (same);
Abdow, v. Attorney Gen., 468 Mass. 478, 502 n.19 (same).

"Logrolling" has also been defined as "the practice of
several minorities combining their several proposals as
different provisions of a single bill and thus consolidating
their votes so that a majority is obtained for the omnibus bill
where perhaps no single proposal of each minority could have
obtained majority approval separately" (emphasis added). Ruud,
No Law Shall Embrace More Than One Subject, 42 Minn. L. Rev.
389, 391 (1958). Ruud contended that, in States that have
single subject rules, "[t]he disposition of money raised by a
tax or fee is clearly germane to the subject of the tax and so
is an appropriation to administer the tax." Id. at 428, citing
Winter v. Barrett, 352 Ill. 441 (1933).
 19

about logrolling.10

5. The court's relatedness analysis. The court's holding

rests upon its conclusion that the subjects of the petition are

not related, and correctly notes that our jurisprudence has

similarly focused on relatedness rather than on mutual

dependence. However, that is because, before now, each time

that we have concluded that a ballot question was not in

compliance with art. 48 because it failed to contain "only

subjects . . . which are related or which are mutually

dependent," the petition comprised provisions that contained

more than one proposition that could have been severed and

"submitted separately" to be considered by voters without

fundamentally altering the proposed laws. See Gray, 474 Mass.

at 647; Carney, 447 Mass. at 231-232; Opinion of the Justices,

422 Mass. 1212, 1221 (1996). Cf. Ashley, 228 Mass. at 81;

Petranich, 183 Mass. at 220. In other words, the petitions were

not mutually dependent, hence there was little, if anything,

10See, e.g., Constitutional Debates, supra at 537 (remarks
of Francis N. Balch) (suggesting that there be special body to
review ballot questions for seven different requirements as to
proper form, including one stating that "[t]he measure touches
only one subject-matter, or on subject-matters so related as not
fairly to require separation" [emphasis added]). Furthermore,
it is consistent with the examples given by delegates concerned
about logrolling such as the Oregon example provided by Robert
Luce. Id. at 567 (discussing "a case in Oregon, where, in order
to secure the passage of the single tax, there was hitched to
the front of it, like a locomotive to the front of a freight
train, a proposal that there should be no more poll or head
taxes").
 20

said about mutual dependence in our art. 48 cases.

a. Relatedness in art. 48 jurisprudence. For example, in

Carney, 447 Mass. at 219, the court considered whether a

petition that (1) would prohibit dog racing in the Commonwealth

and (2) would broaden criminal statutes penalizing dog fighting

and neglect of dogs met the requirements of art. 48. These two

sections of the petition are distinct and could be severed and

asked of voters independently without altering their meanings:

(1) whether the people should prohibit the practice of legalized

dog racing and live betting, and (2) whether the people should

broaden the criminal statutes penalizing animal abuse. See id.

The court referred to this as an "aggregation of these two very

different sets of laws into one petition." Id. at 220. As the

two subjects (in separate sections) were severable, i.e., not

mutually dependent, the court analyzed the propositions to

determine whether they were sufficiently related. Id. at 231.

Determining that there was no operational relationship between

the provisions and that the petition could not give voters a

meaningful choice when voting yes or no, the court concluded

that the severable propositions in the petition were not

sufficiently related under art. 48, The Initiative, II, § 3, as

amended by art. 74, and must be asked of voters separately. Id.

at 231-232 & n.23.

Similarly in Gray, 474 Mass. at 638, the court considered
 21

an initiative petition that concerned the use of certain

educational standards in defining the educational curriculum of

public school students and also concerned the standardized

testing process used in school districts. The petition

comprised six sections, many of which contained propositions

that could have been severed and asked of voters separately.

See id. at 641-643. For example, at least two separate

questions could have been asked without altering their meanings:

(1) whether the people should repeal the "Common Core" academic

standard; and (2) whether the people should require the annual

publication of all the previous year's questions, constructed

responses, and essays included in mandatory standardized

performance assessment tests. See id. Here again, upon

determining that the provisions were not mutually dependent, we

analyzed whether they were nonetheless sufficiently related to

be asked of voters together. See id. at 644-649. We concluded

that the first few sections (sections 1-3), which essentially

sought to rescind a vote of the Board of Elementary and

Secondary Education and modify the process for developing and

reviewing academic standards, were sufficiently related to a

common purpose. Id. at 647. However, the section requiring

annual publication of test items (section 4) had a different

purpose. Id. at 647-648. We thus determined that sections 1-3

and 4 were not sufficiently related to be asked of voters
 22

together; the petitioners were required to sever them and ask

them of voters independently to satisfy the requirements of art.

48. Id. at 649.

Finally, in Opinion of the Justices, 422 Mass. at 1213-

1214, 1220, the court considered an initiative petition that

would have (1) reduced compensation for members of the

Legislature, (2) required that they receive all of their

compensation in the first six months of any year, (3) tied

future compensation to Massachusetts median household income,

"(4) eliminate[d] or reduce[d] additional compensation for

legislative leadership positions, . . . (5) permit[ted] the

State Auditor and Inspector General to oversee legislative

financial accounts and purchasing activities," and (6) permitted

the Inspector General to have oversight power over the

commissioner of veterans' services.

Many of these propositions could have been severed from the

others and asked of voters independently without changing their

meanings, thus they were not mutually dependent. See id. For

example, at least four separate questions could have been asked:

(1) whether the people should reduce compensation for members of

the Legislature; (2) whether the people should eliminate

additional compensation for legislative leadership positions;

(3) whether the people should permit the State Auditor and

Inspector General to oversee legislative financial accounts and
 23

purchasing activities; and (4) whether the people should permit

the Inspector General to oversee the commissioner of veterans'

services. See id. Therefore, the court considered whether

these separate questions were related to a common purpose. Id.

at 1220-1221. The court concluded that, at the least,

permitting the Inspector General to access the records of the

commissioner of veterans' services was not related to

legislative accountability and therefore the proposition

regarding Inspector General oversight of the commissioner of

veterans' services should have been severed from the petition's

other propositions and asked of voters separately in order to be

valid under art. 48. See id. at 1221.

Thus, although our case law has properly focused on

relatedness, the tests articulated to determine whether the

subjects of a petition are related need not be applied to this

petition, which is not severable.11 See art. 48, The Initiative,

11I take no position whether the subjects of the petition
are related, except to note that subjects can be both related
and mutually dependent. See Massachusetts Teachers Ass'n v.
Secretary of the Commonwealth, 384 Mass. 209, 218 n.8 (1981)
("We need not pause to consider whether any subjects which are
mutually dependent could ever be said not also to be related").
Further, the question whether subjects are related is often a
subjective one. See Dunn, 474 Mass. at 680 ("there is no single
'bright-line' test for determining whether an initiative meets
the related subjects requirement"); R. Luce, Legislative
Procedure 551 (1922) (discussing difficulty in interpreting
single subject rules and noting that "[p]erhaps our language
does not permit a more accurate statement of what is meant");
Cooter & Gilbert, A Theory of Direct Democracy and the Single
 24

II, § 3, as amended by art. 74.

b. The fairness inquiry. The fairness inquiry the court

undertakes when it asks if it is fair to voters to be asked this

question is part of the relatedness analysis. See Gray, 474

Mass. at 644-645, quoting Carney, 447 Mass. at 226, 230-231. It

attempts to answer the question: "Do 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?" Gray, supra, quoting

Carney, supra at 226. Any petition that cannot be severed into

different questions (like this one) is inherently fair to be

voted up or down because there is no other way to ask the

question presented. Inherently, the "similarities of [the]

initiative's provisions dominate what each segment provides

separately" because, of the three "segment[s]" identified by the

court, only the segment providing for a tax on high incomes

separately "provide[s]" anything at all. See Gray, supra,

quoting Carney, supra. The other two "segment[s]," if separated

from the first, do not "provide" or stipulate anything; they are

merely a condition modifying the consequences of the first

segment. See Gray, supra, quoting Carney, supra. It is worth

noting that, in fact, contrary to the court's conclusion

regarding the "fairness" of asking this question to voters, the

Subject Rule, 110 Colum. L. Rev. 687, 709-712 (2010).
 25

ballot question at issue here is no different from any proposal

for a law; that is, it suggests a particular means to achieve a

particular end.

Drafters of proposed laws (and constitutional amendments)

designed to achieve goals (such as increasing spending on public

investments) must choose a means by which to do so. Here the

drafters chose a tax on incomes over $1 million. They could

have chosen any number of other ways to reach this goal:

alternative means to achieve a desired end in any proposed law

are always available. If voters do not like the proposed means

to achieve a particular end within a ballot question (or do not

agree with the particular end proposed), they are, as always,

free to vote against the question.

Here, if opponents of the petition wish to achieve

increased spending on education and transportation but dislike

the proposed means, or wish to provide the Legislature with

discretion to invest the revenue on more or fewer areas of

public investment than education and transportation, they are

free to express their opinion that voters should reject the

question, just like in any other ballot question proposal. We

should not stifle the policy debate by preventing the people

from considering the petition altogether.

The court also suggests that the petition violates the

spirit of logrolling because ballot questions seeking to amend
 26

art. 44's prohibition on a graduated income tax were defeated

numerous times in the past (most recently in 1994).12 In fact,

art. 48 is designed to allow petitioners to modify a previously

rejected proposal, just as was done here, so that it might be

more appealing to voters, provided that it meets art. 48's mode

of origination requirements.

Although the requirement in art. 48, The Initiative, II,

§ 3, as amended by art. 74, that initiative petitions only

contain "subjects . . . which are related or which are mutually

dependent" prohibits petitioners from tacking on an unrelated,

distinct, independent and separate proposal for a law or

constitutional amendment to their original proposal as part of

one petition, art. 48 in no way prohibits petitioners from

attempting to modify or limit a proposal with conditions until

they are successful. In other words, if a majority of voters

did not like a certain proposition because of its breadth, but a

majority of voters would support the proposition if it were more

limited, the more limited proposal may of course be asked.13

12This view ignores the canon of statutory interpretation
providing that a "determination of statutory meaning [cannot] be
overridden by a judicially perceived, at-large 'spirit' of the
law that overcomes its letter." Scalia & Garner, supra at 343.

13The court's opinion appears to allow a ballot question
permitting a graduated income tax to be asked of voters alone
such that any associated revenue would be available for
legislators to spend on all areas of government spending. But
by the court's logic, a question that called for the same tax
 27

For example, a hypothetical gun safety advocacy group that

advanced a previously rejected petition to outlaw automatic

weapons could not return with a different petition that both

outlawed automatic weapons and legalized recreational marijuana

because the two subjects are severable and unrelated. That same

group, however, could advance a new petition to regulate (rather

than prohibit) automatic weapons.

The court contends that this reading of mutual dependence

would permit "any collection of provisions that would tax any

number of different sources, and would provide funds to some

indeterminate list of distinct entities and purposes, should be

placed before voters, because the list of provisions would be

'mutually dependent.'" Ante at . This is a misunderstanding

of mutual dependence. To the extent that a petition contained

numerous distinct taxes, they would not necessarily be mutually

dependent. Also, to the extent that a petition removed the

Legislature's spending discretion, the provisions of this

question would not likely be mutually dependent, but severable.

Furthermore, the delegates to the 1917-1918 Constitutional

Convention expressly considered and rejected the contention that

the initiative petition process could be used to "provide funds

but enumerated each area of government spending in the text
would violate art. 48 because it would contain "unrelated
subjects" despite the fact that it would be fundamentally the
same question with the same outcome.
 28

to some indeterminate list of distinct entities," id., by

including "specific appropriation[s]" on the list of matters

excluded from the initiative process. Art. 48, The Initiative,

II, § 2.

Article 48 permits the people to adopt laws through the

initiative process that are properly narrowed to the popular

will. To prohibit advocates from asking more limited

propositions than others previously rejected by the people

ignores the purpose of art. 48 and interferes directly with the

democratic process.

6. Article 30 and the people's legislative power under

art. 48. Finally, by ratifying art. 48, the people extended the

legislative power from the General Court to the people. See

art. 48, The Initiative, II; Bowe v. Secretary of the

Commonwealth, 320 Mass. 230, 243-247 (1946); Horton v. Attorney

Gen., 269 Mass. 503, 514 (1929). With the exception of a list

of enumerated "excluded matters" expressly prohibited in Part

II, art. 48 provides the people with broad authority to create

laws.14 See art. 48, The Initiative, I, of the Amendments (art.

14In fact, the Constitutional Convention's decision to move
the requirement that a petition contain "only subjects . . .
which are related or which are mutually dependent" to the "Mode
of Originating" section, art. 48, The Initiative, II, § 3, as
amended by art. 74, and away from the "Excluded Matters" section
reflects the conscious intent that the provision was not
designed to prohibit certain proposed laws from being asked of
voters. Constitutional Debates, supra at 960; Convention Doc.
 29

48 provides "the power of a specified number of voters to submit

constitutional amendments and laws to the people for approval or

rejection").

"The principle of the initiative and referendum in its

purity means that the people of this Commonwealth may have such

laws and may have such a Constitution as they see fit themselves

to adopt." Buckley v. Secretary of the Commonwealth, 371 Mass.

195, 199 (1976), quoting Constitutional Debates, supra at 16

(remarks of Joseph Walker). By citing Warren, the court

acknowledges that the correct lens to look at mutual dependence

is through severability. Ante at note 8. As mentioned supra,

until now, in every case in which we have declared that a

petition could not be submitted to the people, the provisions

were severable and could be asked separately without changing

the meaning of each provision.

By reversing the Attorney General's decision to certify the

instant petition, the court fundamentally interferes with the

ability of the people to exercise the constitutionally granted

legislative power under art. 48. Because the proposed question

is not severable, the effect of the court's holding is to turn

art. 48's mode and form requirements into absolute

disqualifiers; that is, rather than having the option of putting

the question into what the court considers proper form, the

No. 370, at 2-3.
 30

question cannot be asked at all. See Horton, 269 Mass. at 514

("The popular initiative relates to legislation. . . . The

judicial department of government cannot interfere with the

ordinary processes of legislation"). The court's opinion unduly

operates to "deprive the people of a 'meaningful way' to express

their will." Carney, 447 Mass. at 230.15 I cannot support an

interpretation that results in such an intrusion by the judicial

power into the legislative power without a clearer expression in

art. 48 providing the judicial department with that authority.

7. Conclusion. "[W]hether [the substance of this

petition] is wise as a matter of economic and social policy is,

of course, not subject to judicial review." Town Taxi Inc. v.

Police Comm'r of Boston, 377 Mass. 576, 585 (1979).16 The

15Although the delegates at the 1917-1918 Constitutional
Convention expressly rejected a single subject rule, instead
opting for a rule requiring there to be "related" or "mutually
dependent" subjects, the court's opinion is written as if our
Constitution does in fact provide a single subject rule. See
Massachusetts Teachers Ass'n, 384 Mass. at 220.

16It is well worth noting that at the time of the debates
over art. 48, many proponents of the initiative and referendum
favored it because it would let voters vote on the exact type of
question being posed by the ballot question in this case, and
opponents opposed it for that same reason. However, the
opponents lost. Albert E. Pillsbury was one of the most hard-
line opponents of the initiative and referendum provisions.
Pillsbury viewed the debate as "between the believers in
constitutional representative government on the one hand and
socialistic democracy on the other." Constitutional Debates,
supra at 604. He believed that "[t]he ultimate effect if not
the object of the initiative and referendum, say what you will,
is to enable a majority at the polls to appropriate the property
 31

court's holding overrides the Constitution's text, which limits

matters excluded from the initiative petition only to those

thoughtfully and specifically enumerated under art. 48, The

Initiative, II, § 2, and permits an initiative petition that

"contains only subjects . . . which are mutually dependent."

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

I see nothing in art. 48, The Initiative, II, § 3, as

amended by art. 74, that prohibits the power of the people to

accept or reject this ballot question in November; therefore, I

dissent.

of those who have it to the use of those who want it. With this
weapon in their hands they can do . . . anything." Id. at 613.

On the other side of the issue was Grenville S. MacFarland,
an editorial writer for the Boston American, who was once
referred to as "the most influential force for the [initiative
and referendum provisions]." R.L. Bridgman, The Massachusetts
Constitutional Convention of 1917, at 42 (1923). MacFarland
sent a personal letter to all candidates for the Legislature
expressing concerns about economic inequality in the industrial
era:

"In my judgment, and I hope in yours, that convention
will be a failure if it does not enable us to obtain the
initiative and referendum by which the direct power of the
whole body of citizens may supplement the present form of
representative government and keep it free from those vices
which the unequal distribution of wealth and the resulting
concentration of financial and political power, through the
rise of powerful public service and industrial
corporations, have introduced into our body politic and are
now threatening our representative form of government."

Id. at 42-43.