Herrmann v. Attorney General ( 2023 )

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SJC-13361
ROBERT HERRMANN & others1 vs. ATTORNEY GENERAL & another2
(and a consolidated case3).
Suffolk. February 6, 2023. - May 16, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Initiative. Constitutional Law, Initiative petition, Political
contributions. Elections, Political contributions.
Political Committee. Moot Question. Attorney General.
Civil actions commenced in the Supreme Judicial Court for
the county of Suffolk on October 24, 2022.
After consolidation, the cases were reported by Wendlandt,
J.
Lawrence Lessig (Thomas O. Bean also present) for David C.
Baxter & others.
Ronald A. Fein (Courtney M. Hostetler & John C. Bonifaz
also present) for Robert Herrmann & others.
Anne Sterman, Assistant Attorney General (Adam Hornstine,
Assistant Attorney General, also present) for the Attorney
General & another.
1 Lars Mikkelsen, Joshua Redstone, and Graeme Sephton.
2 Secretary of the Commonwealth.
3 David C. Baxter & others vs. Attorney General & another.
2
Thaddeus A. Heuer, for Fiscal Alliance Foundation, amicus
curiae, submitted a brief.
KAFKER, J. The plaintiffs seek review of the Attorney
General's decision not to certify their initiative petition.4
The plaintiffs' proposed law would have instituted limits on
contributions to independent expenditure political action
committees, more commonly known as "Super PACs." The Attorney
General determined that the proposed law conflicted with the
right of free speech protected by the Massachusetts Declaration
of Rights and that it therefore addressed an excluded subject
under art. 48 of the Amendments to the Massachusetts
Constitution, which sets out the procedures for the popular
initiative. See art. 48, The Initiative, II, § 2. In so
ruling, the Attorney General determined that United States
Supreme Court precedent precludes this type of limitation on
campaign contributions under the First Amendment to the United
States Constitution and that the State constitutional right of
free speech must extend at least as far as the cognate right
under the Federal Constitution. See 1A Auto, Inc. v. Director
4 The single justice consolidated two complaints from two
separate groups of plaintiffs. Each plaintiff was one of the
ten initial sponsors of the initiative petition. As explained
infra, the two plaintiff groups seek identical relief but under
different theories for why the proposed law is constitutional.
3
of the Office of Campaign & Political Fin., 480 Mass. 423, 440
(2018), cert. denied, 139 S. Ct. 2613 (2019).
After the plaintiffs brought these appeals challenging the
denial, the Attorney General offered to agree to a stipulated
order with the initiative proponents that would have allowed
them to gather the initial round of voter signatures required by
art. 48 during their appeals, despite the Attorney General's
conclusion that the initiative addressed an excluded subject.
See Abdow v. Attorney Gen., 468 Mass. 478, 485 (2014). The
proponents, however, refused to agree to such an order. The
Attorney General now contends that the appeals are moot, as the
proponents did not gather the first round of signatures by the
deadline required by art. 48.
We conclude that the cases are moot. When the petition was
filed in June 2022, the proponents initiated a streamlined
governmental process involving numerous State actors, including
the Attorney General, the Secretary of the Commonwealth, and the
General Court. The petitioners' filing with the Attorney
General was timely, as it was submitted "not later" than August
2022, as required by art. 48, The Initiative, II, § 3, as
amended by art. 74 of the Amendments. By filing at that
particular time, they established the particular assembling of
the General Court, and thus the legislative session, into which
they would have needed to introduce the petition: the 2023
4
session. It was not then within the control of the petitioners
to stop and restart the process, as they contend. They were
required to meet the subsequent deadlines. They did not,
however, meet the December 2022 deadline to file additional
signatures with the Secretary of the Commonwealth. Thus, the
cases are now moot.
Because the cases are moot and raise constitutional
questions, including Federal constitutional questions, we
decline to consider the merits. Lockhart v. Attorney Gen., 390
Mass. 780, 782 (1984). As a general matter, we avoid resolving
moot questions, unless they are important, likely to recur, and
otherwise avoid review. See Lynn v. Murrell, 489 Mass. 579, 583
(2022); Lockhart, supra at 783-784. Whether this issue is
likely to recur is a matter of speculation. At this point, only
the ten initial proponents have indicated their support for the
initiative. They gathered no additional signatures. Thus, it
is far from clear whether the proponents would, in a future
year, collect sufficient signatures to make the question a live
issue. The question, albeit important, is also one of
constitutional law. We are particularly reluctant to decide
constitutional questions in moot cases. See Murrell, supra at
584, quoting Lockhart, supra at 784. Finally, the issue
presented raises Federal as well as State constitutional issues,
requiring us to review and decide Federal constitutional
5
questions best left to the Federal judiciary. For all these
reasons, we decline to address the merits in these moot cases.5
Background. According to campaign finance law, political
action committees (PACs) that make expenditures that are
uncoordinated with political candidates are known as
"independent expenditure PACs" or "Super PACs." See G. L.
c. 55, § 18A (d). In June 2022, proponents of a law that would
limit individual contributions to independent expenditure PACs
submitted an initiative petition to the Attorney General. The
Attorney General declined to certify the petition in September
2022, as she determined that it was inconsistent with the right
of free speech protected by the Massachusetts Declaration of
Rights and thus addressed an excluded subject under art. 48.
She relied on Federal cases concluding that the First Amendment
precluded such limitations. In October 2022, the ten
proponents, split between two groups of plaintiffs, filed
complaints in the county court challenging the Attorney
General's decision not to certify the petition. The two groups
seek identical relief but have different theories for why the
proposed law is constitutional.
The Attorney General indicated to the plaintiffs that they
would need to submit additional signatures by December 2022, or
5 We acknowledge the amicus brief submitted by the Fiscal
Alliance Foundation.
6
their appeals would become moot. To that end, she offered to
move for an order allowing the proponents to collect signatures
in advance of a judicial ruling on her denial, but the
proponents declined.6 Thus, they have not yet demonstrated
support from voters beyond the ten initial signers of the
petition. They contend that, because they intend to have their
petition considered by the Legislature in January 2024, not
January 2023, they have until December 2023 to collect
additional signatures.
The plaintiffs seek judgments under G. L. c. 231A, § 1,
declaring that they are not required to submit additional
signatures until December 2023 and that the Attorney General
erred in declining to certify the petition because the proposed
initiative does not violate the First Amendment or art. 16 of
the Massachusetts Declaration of Rights. In November 2022, the
defendants moved to dismiss, arguing that because the plaintiffs
admitted that they would not gather the required signatures
before December, their claims were (or would soon become) moot.
A single justice granted the parties' joint motion to
consolidate the cases and reserved and reported the cases to the
6 Such orders are consistent with the long-standing practice
of the Attorney General and this court. See, e.g., Abdow, 468
Mass. at 485; Paisner v. Attorney Gen., 390 Mass. 593, 595-596
(1983).
7
full court. In the meantime, the proponents did not submit the
required signatures by December 2022.
Discussion. 1. Article 48 time frame. The first issue to
be decided is the time frame for compliance with the initiative
petition process. Article 48 contains a series of interrelated
and tightly defined time periods for different governmental
actors to perform their respective functions regarding the
proposed law, while simultaneously imposing on proponents
requirements to gather an increasing number of signatures if
they want these governmental actors -- and ultimately the voters
-- to consider the initiative. See Bogertman v. Attorney Gen.,
474 Mass. 607, 610-611 (2016) (describing process).
At issue are three specific deadlines. First, ten
qualified voters may submit an initiative petition "to the
[Attorney General] not later than the first Wednesday of the
August before the assembling of the [G]eneral [C]ourt into which
it is to be introduced." Art. 48, The Initiative, II, § 3, as
amended by art. 74. This deadline provides the Attorney General
time to determine whether the initiative petition is valid,
including whether it contains excluded matters, before the
signature gathering process commences. Second, "[a]ll
initiative petitions . . . shall be filed with the [S]ecretary
of the [C]ommonwealth not earlier than the first Wednesday of
the September before the assembling of the [G]eneral [C]ourt
8
into which they are to be introduced." Id. After this filing,
the proponents may begin gathering signatures from supporters.
Then, third, "the remainder of the required signatures shall be
filed not later than the first Wednesday of the following
December." Id. By this point, the petition must have voter
signatures totaling at least "three per cent of the entire vote
cast for [G]overnor at the preceding biennial [S]tate election."
Art. 48, The Initiative, V, § 1, as amended by art. 81 of the
Amendments.
After these three initial steps, the initiative is
transmitted to the Legislature in the following year. Art. 48,
The Initiative, II, § 4. The Legislature then has until May to
take action itself:
"If the [G]eneral [C]ourt fails to enact such law before
the first Wednesday of May, and if such petition is
completed by filing with the [S]ecretary of the
[C]ommonwealth, not earlier than the first Wednesday of the
following June nor later than the first Wednesday of the
following July, a number of signatures of qualified voters
equal in number to not less than one half of one per cent
of the entire vote cast for [G]overnor at the preceding
biennial [S]tate election, in addition to those signing
such initiative petition, which signatures must have been
obtained after the first Wednesday of May aforesaid, then
the [S]ecretary of the [C]ommonwealth shall submit such
proposed law to the people at the next [S]tate election."
Art. 48, The Initiative, V, § 1, as amended by art. 81. The
Legislature may also pass a "legislative substitute" to appear
on the ballot at the same time as the initiative, but may do so
9
after the May deadline. See Opinion of the Justices, 370 Mass.
869, 877 (1976).
The Attorney General interprets these provisions to create
a continuous process of filing and signature gathering during a
concentrated time period. As the petition in these cases was
filed with the Attorney General in June 2022, it must be filed
no earlier than September 2022 with the Secretary of the
Commonwealth. Then, the signatures necessary for legislative
action must be filed no later than December 2022, with follow-up
signatures for placement on the ballot by July 2023, even though
the election would not take place until November 2024.
By contrast, the proponents argue that the two-year
election cycle provides them more choice and flexibility. They
contend that because they filed with the Attorney General by
August 2022, either they can follow the process outlined above,
or they can start the process and then choose to delay a year,
either for strategic reasons or, as in these cases, to pursue an
appeal from the Attorney General's denial of certification. In
this alternate timeline, if we dispose of these appeals in their
favor, they would file with the Secretary of the Commonwealth by
September 2023, gather the necessary signatures for legislative
action by December 2023, and finally (if the Legislature does
not pass the law by May 2024) gather follow-up signatures by
July 2024 for the November election. The proponents contend
10
that this more relaxed calendar would allow buffer time for
judicial review of the Attorney General's certification
decision, so that they would not have to collect signatures
under a cloud of legal uncertainty.7
"In interpreting any statutory or constitutional provision,
including [art. 48], the starting point of our analysis is its
plain language . . . ." Schulman v. Attorney Gen., 447 Mass.
189, 191 (2006). With regard to the mandatory deadlines in art.
48, we have also said: "It is not possible to treat these words
of the amendment as precatory or merely directory. They are an
explicit command from the people." Opinion of the Justices, 237
Mass. 589, 590-591 (1921). The key dispute between the parties
is how to interpret the event to which the three interconnected
deadlines are keyed: the "assembling of the [G]eneral [C]ourt
into which [the petition] is to be introduced," that is, the
annual session in which the Legislature will consider the
initiative.8 Art. 48, The Initiative, II, § 3, as amended by
art. 74. Under the Attorney General's interpretation, this
7 This rationale -- that "a contest over the validity of a
proposed initiative has an adverse effect on efforts to obtain
the necessary signatures" -- was not found persuasive in
Lockhart, 390 Mass. at 782.
8 See art. 64, § 2, of the Amendments, as amended by art. 82
of the Amendments ("The general court shall assemble every year
on the first Wednesday in January"). Thus, the "assembling of
the [G]eneral [C]ourt" refers to an annual legislative session.
11
session must be the one immediately following the date that she
receives the filing. The proponents contend instead that they
can choose the assembling in which they intend the Legislature
to consider their petition after they file with the Attorney
General, as long as they meet the August deadline in an even-
numbered year (thus allowing two possible opportunities for
legislative consideration before the next election).
We conclude that the Attorney General's interpretation is
correct. A close reading of the text establishes that art. 48
creates a continuous, time-delimited process that occurs from
the initial filing of the petition no later than the first
Wednesday in August to the filing of the final round of
signatures by no later than the first Wednesday in the following
July. See Opinion of the Justices, 370 Mass. at 875 ("the
deadline . . . was fixed to permit sufficient time for the
taking of the additional steps to have the initiative measure
appear on the ballot at the next State election"). Fixed time
points in August, September, and December of the same year, and
not different years, are identified, as well as the following
May and July. The timing provisions are tightly
interconnected, identifying a series of actions involving
different governmental actors that must occur within a
relatively short period of time. Within that concentrated
period of time, the petition is evaluated for legality,
12
sufficient signatures are required to demonstrate significant
support for the initiative to merit further consideration, and
the Legislature is provided with the ability to weigh in with a
substitute proposal. The process thereby provides for a timely
and efficient governmental review for proposals that demonstrate
sufficient public support. Stale or outdated interpretations of
law by the Attorney General and unnecessary decisions by this
court are thereby avoided. A governmental process that
petitioners can stop and start without demonstrating sufficient
public support is inconsistent with this structure. Cf. Unger
v. Rosenblum, 362 Or. 210, 225 (2017) ("the tightly crafted,
interconnected series of deadlines" in State initiative process
suggests that proponents may not delay for "an indefinite amount
of time").
Previously, we relied on the interconnected nature of the
art. 48 timeline to determine the deadline for the Governor's
approval or veto of an initiative passed by the Legislature.
Opinion of the Justices, 370 Mass. at 874. We summarized the
timing requirements, and then explained that
"in order to give effect to these provisions, which set
forth a timetable for taking the steps necessary to have a
proposed law placed on the ballot, we conclude that all
constitutional steps for passage of a law, including the
Governor's approbation or legislative action after veto of
the measure, must occur before the first Wednesday of May."
13
Id. at 875. Article 48 thus creates a strict calendar that must
be adhered to for a proposed law to make it to the ballot.
Once the initial petition is filed, the clock begins to
tick. By filing in August of a particular year, initiative
proponents are identifying the particular "assembling of the
[G]eneral [C]ourt into which [the petition] is to be introduced"
as the next one that will occur following the filing. If the
Attorney General denies their petition, they cannot then delay
by claiming that they now intend to submit a petition into the
"assembling" that will occur a year later.
We recognize that when art. 48 was originally passed and
the deadlines set out above were established, the Commonwealth
had annual elections, making the deadlines straightforward and
simpler to interpret. See Opinion of the Justices, 291 Mass.
578, 585 (1935) (art. 48 "was framed, approved and voted to be
submitted to the people by the Constitutional Convention in 1917
at a time when there were annual elections for the choice of
members of the General Court. Its words doubtless were adapted
to that situation"). Today, this process occurs in the context
of biennial elections. Although the interpretation of art. 48
is less obvious in this context, the article, read as a whole,
creates a continuous, concentrated governmental process that
commences with the initial filing. Regardless of which year the
petition is filed, the governmental process continues unabated.
14
What results is that proponents who file in an even-numbered
year have a full year to campaign after they submit their final
set of signatures, while proponents who file in an odd-numbered
year (most of them, according to the Attorney General) go
straight to the election. The petitioners thereby control how
long they have to campaign but not other aspects of the
governmental process.
2. Constitutional questions. Because the proponents did
not submit any signatures to the Secretary of the Commonwealth
by December 2022, these cases are moot. See Lockhart, 390 Mass.
782. Although this court may decide important moot questions
that are likely to recur and otherwise avoid review, we are
particularly reluctant to resolve moot questions of
constitutional law, especially ones raising Federal as well as
State constitutional law. As these moot cases raise such
constitutional questions, we decline to address the merits.
Despite mootness, "where the proceedings raise an issue
that is of public importance, worthy of decision by an appellate
court, and is capable of repetition yet evading review, a court
may in its discretion choose to decide the case." Harmon v.
Commissioner of Correction, 487 Mass. 470, 471-472 (2021). See
Murrell, 489 Mass. at 583. Here, however, it is far from clear
that this issue is likely to recur. The proponents have not
demonstrated that they have the requisite support to satisfy the
15
different signature gathering obligations set out in art. 48
necessary to make this an issue requiring judicial resolution.
So far, they have only indicated that they themselves support
the petition. Thus, "it is not clear that the issues will arise
again in the same form or in any form." Lockhart, 390 Mass. at
784.
We have also emphasized that we are particularly reluctant
to decide moot constitutional questions. As this court
explained in Lockhart, another case involving the Attorney
General's declining to certify a petition and the failure of the
petitioners to gather the necessary number of signatures, we
have a "long tradition of not unnecessarily deciding
constitutional questions." Lockhart, 390 Mass. at 784. See
also Massachusetts Gen. Hosp. v. C.R., 484 Mass. 472, 488 (2020)
("We do not . . . decide constitutional questions unnecessarily
or prematurely"). When the case is moot, we exercise "'judicial
restraint,' especially regarding purported constitutional
claims." Lockhart, supra, quoting Blake v. Massachusetts Parole
Bd., 369 Mass. 701, 707 (1976).
It is even more important for us to exercise such restraint
when the moot question that we are asked to decide is one based
on Federal constitutional law, as it is here. See Breese v.
Smith, 501 P.2d 159, 166 (Alaska 1972) ("avoidance of the
federal thicket is the better course"); Portland v. Jacobsky,
16
496 A.2d 646, 648 (Me. 1985) ("policy of judicial restraint
impels us to forbear from ruling on federal constitutional
questions"). While the question whether a proposed law bears on
an excluded subject under art. 48 is by its terms a question of
State constitutional law, see Associated Indus. of Mass. v.
Attorney Gen., 418 Mass. 279, 284 (1994), in the instant cases,
the question to be decided ultimately revolves around Federal
constitutional law. This is because we cannot provide less
protection under the Massachusetts Declaration of Rights for
political contributions than that provided for such
contributions under the First Amendment, and at least in regard
to political contributions by corporations, we have stated: "We
see no reason to conclude that art. 16 or 19 gives corporations
greater rights of political participation than they enjoy under
the First Amendment." 1A Auto, Inc., 480 Mass. at 440.
Recognizing the significant protections found so far by the
Federal courts for political contributions, the Attorney General
therefore turned to Federal constitutional law and the Federal
courts for guidance on what was precluded by the Federal
Constitution and thus art. 48 as well. If we were to decide
this now moot question, we would have to do the same, deciding
unnecessarily a question best left to the Federal judiciary.
17
Exercising judicial restraint for the reasons explained supra,
we decline to do so.9
Conclusion. Article 48 requires proponents to collect
signatures in the months immediately following the proponents'
filing of an initiative petition with the Attorney General.
Because the plaintiffs in the instant cases did not follow this
timeline, these cases are moot. We also decline to exercise our
discretion to resolve a moot issue, as this matter has not been
demonstrated to be one of those rare issues that are likely to
recur and yet avoid review. Harmon, 487 Mass. at 471-472.
Finally and importantly, this court exercises judicial restraint
and does not unnecessarily resolve State and Federal
constitutional questions in a moot case. For all of the reasons
stated supra, these cases are dismissed.
So ordered.
9 We also note that if, in the future, we are required to
revisit whether limitations on contributions to independent
expenditure PACs conflict with the Federal right to free speech,
the United States Supreme Court itself may, by that time, have
ruled on the exact issue presented.