Civil action commenced in the Supreme Judicial
Court for the county of Suffolk on February 1, 2024.
The case was reported by Kafker, J.
Jennifer Grace Miller for the plaintiffs.
Anne Sterman, Assistant Attorney General,
for the Attorney General & another.
Thaddeus Heuer (Seth Reiner also present)
for the interveners.
The following submitted briefs for amici
curiae:
Stevan E. Johnson, pro se.
Alfred Gordon O'Connell for United Food
and Commercial Workers International Union.
Michael T. Anderson for Economic Policy
Institute.
Joel Fleming for Open Markets Institute.
Gary J. Lieberman for Chamber of Progress.
Nicole J. Daro & Travis S. West, of
California, Bryan Decker, & Jennifer Rubin for National Nurses United.
Jason Salgado, MaryGrace Menner, &
Ilana B. Gelfman for Massachusetts Worker Centers.
Daniel A. Rubens & Eliza A. Lehner, of
New York, Eric A. Shumsky, of the District of Columbia, & James Anglin
Flynn for Retailers Association of Massachusetts & others.
Jonathan B. Miller for Public Rights
Project & others.
Matthew Ginsburg, Raven L. Hall, &
Leila Ouchchy, of the District of Columbia, for American Federation of Labor
and Congress of Industrial Organizations.
Adam Cederbaum, Corporation Counsel, &
Randall Maas, Assistant Corporation Counsel, for city of Boston.
Michael A. Feinberg for International
Brotherhood of Teamsters.
Shannon Liss-Riordan for Justice at Work.
Rhonda T. Maloney, Thomas R. Murphy, Kevin
J. Powers, & Jennifer A. Denker for Massachusetts Academy of Trial
Attorneys.
Michael Holecek, of California, &
Joshua S. Lipshutz for Awet Teame & others.
Jonathan D. Newman & Jacob J. Demree,
of the District of Columbia, & Thomas R. Landry for North America's
Building Trades Unions.
Stacie Sobosik for Massachusetts Coalition
for Occupational Safety and Health & another.
Matthew Carrieri for National Employment
Law Project.
Kevin P. Martin, William E. Evans, &
Jesse Lempel for Chamber of Commerce of the United States of America &
another.
Amira Mattar, of New York, John Bonifaz,
Ben Clements, & Courtney Hostetler for Free Speech for People.
Lori A. Jodoin, Rebecca Pontikes, &
Nafisa Bohra for Massachusetts Employment Lawyers Association.
WOLOHOJIAN, J. This mandamus action concerns five cognate
ballot initiative petitions. All five
petitions are designed to ensure that "app-based drivers" (drivers)[3]
are not classified as employees of delivery network companies[4] or
transportation network companies (collectively, companies),[5] thereby to
exclude them from the rights, privileges, and protections that our General and
Special Laws confer on employees. Three
of the five petitions couple this deprivation with "minimum compensation,
healthcare stipends, earned paid sick time, and occupational accident
insurance." The other two do
not. This case calls upon us to decide
whether the Attorney General properly certified the petitions under art. 48 of
the Amendments to the Massachusetts Constitution and whether the Attorney
General's summaries of the petitions are fair and concise. Seeing no error, we remand the case to the
county court for entry of a declaration that the Attorney General's
certifications and summaries comply with the requirements of art. 48.[6]
Background. In August 2023, a group of Massachusetts
voters (proponents) submitted to the Attorney General for approval five
initiative petitions seeking to establish that drivers are not employees of the
companies for purposes of the General and Special Laws.[7] The Attorney General thereafter certified
that each petition met art. 48's requirements and prepared a summary for each
initiative. The plaintiffs, a different
group of registered voters, then brought this mandamus action to challenge the
Attorney General's certifications and summaries.[8]
The proponents consistently and repeatedly
have represented, including to this court through their counsel, that although
they have not yet determined which petition it will be, only one of the five
petitions will be placed on the November ballot -– a representation
upon which we rely and upon which this decision depends.[9] Accordingly, we assess each petition singly
to determine whether it was properly certified and summarized by the Attorney
General. That said, because the
petitions share certain common salient features that bear on the art. 48
analysis, we group them in the same way as the parties: the so-called short-form petitions (which do
not provide the drivers with any benefits) and the so-called long-form
petitions (which do).
1.
Short-form petitions. There are
two short-form petitions: petition
23-29, designated Version F by the Attorney General (Version F); and petition
23-32, designated Version I by the Attorney General (Version I). The stated purpose of each short-form
petition is to "clarify that app-based drivers are not employees, and
network companies are not employers, . . . guaranteeing app-based
drivers the freedom and flexibility to choose when, where, how, and for whom
they work." Version F seeks to
accomplish this aim by declaring as a general proposition that drivers are not
employees for purposes of G. L. cc. 149, 151, 151A, and 152. Version I seeks to accomplish the same goal
but does so by amending specific provisions of cc. 149, 151A, and 152 so
as to take drivers outside the definition of employees for purposes of those
chapters as well as c. 151. In addition,
both short-form petitions would create a new proposed law, G. L.
c. 159AA, to establish defined terms governing the relationship between
the drivers and the companies.
Both short-form petitions would exclude
drivers from the broad protections, rights, and privileges to which employees
are entitled under G. L. cc. 149, 151, 151A, and 152, including those
pertaining to fair wages, workers' compensation insurance, unemployment
insurance, and protections against discrimination by employers based on age and
gender. See G. L. cc. 149
("Labor and Industries"), 151 ("Minimum Fair Wages"), 151A
("Unemployment Insurance"), and 152 ("Workers
Compensation").
2.
Long-form petitions. There are
three long-form petitions: petition
23-25, designated Version B by the Attorney General (Version B); petition
23-30, designated Version G by the Attorney General (Version G); and petition
23-31, designated Version H by the Attorney General (Version H). The stated purpose of the three long-form
petitions is to "define and regulate the relationship between network
companies and app-based drivers."
Like the short-form petitions, the long-form petitions would operate to
exclude the drivers from the rights, protections, and privileges afforded to
employees under the General and Special Laws, although they do so differently
and to different degrees:
* Version B would
exclude drivers from being deemed employees for all purposes under all the
General and Special Laws. No other
version has the same operative breadth and effect on existing law as does
Version B.
* Version G would
declare as a general proposition that drivers are not employees for purposes of
G. L. cc. 149, 151, 151A, and 152.
In this sense, Version G is similar in operative scope to short-form
Version F.
* Version H would
amend specific provisions of G. L. cc. 149, 151A, and 152 so as to
take drivers outside the definition of employees for purposes of those chapters
as well as G. L. c. 151.
Version H is similar in this sense to the operative scope of short-form
Version I.
Like the
short-form petitions, the long-form petitions would create a new proposed law,
G. L. c. 159AA, to establish defined terms governing the relationship
between the drivers and the companies.
Unlike the short-form petitions, however,
the long-form petitions establish some defined benefits for drivers, such as a
guaranteed net-earning floor, a healthcare stipend, paid sick time, and
occupational accident insurance. The
long-form petitions would give drivers fewer benefits and protections than employees
receive under our current laws. For
example, each of the petitions excludes drivers from the antidiscrimination
protections afforded employees under G. L. c. 149 and also, in the
case of Version B, under G. L. c. 151B, without providing any similar
protection in exchange.
Discussion. The plaintiffs argue that the petitions do
not meet the related subjects requirement of art. 48 because they lack a common
purpose. In addition, they argue that
Version B "inappropriately asks voters for an exemption from the entirety
of Massachusetts law." The
plaintiffs also argue that the three long-form versions contain prohibited
"sweeteners" that are misleadingly described. They also argue that the petitions are
designed to confuse by using dense and technical language. Finally, the plaintiffs challenge the
Attorney General's summaries of the five petitions on the ground that they do
not adequately describe the scope and effect of the petitions, including the
breadth of the employment rights and protections they would displace.
1.
Certifications; related subjects requirement. As we have already noted, the Attorney
General certified that the petitions were in proper form for submission to
Massachusetts voters and, among other things, that they contain only subjects
that are related or mutually dependent.
See art. 48, The Initiative, II, § 3, as amended by art. 74. We review the Attorney General's
certifications de novo. Anderson v.
Attorney Gen., 479 Mass. 780, 785 (2018).
In conducting this review, we are guided by the "firmly established
principle that art. 48 is to be construed to support the people's prerogative
to initiate and adopt laws" (citation omitted), Abdow v. Attorney Gen.,
468 Mass. 478, 487 (2014), while keeping in mind that 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," Anderson,
479 Mass. at 785-786.
To determine whether an initiative
petition contains only related subjects, we ask whether "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 v. Secretary of the Commonwealth, 384 Mass.
209, 219-220 (1981). "At some high
level of abstraction, any two laws may be said to share a 'common
purpose,'" Carney v. Attorney Gen., 447 Mass. 218, 226 (2006), S.C., 451
Mass. 803 (2008), but "the related subjects requirement is not satisfied
by a conceptual or abstract bond," Gray v. Attorney Gen., 474 Mass. 638,
648 (2016). "There is no
bright-line rule to follow in making such a determination. Rather, the question is a matter of
degree." Colpack v. Attorney Gen.,
489 Mass. 810, 814 (2022).
All five petitions at issue in this case
seek to define and govern the relationship between drivers and companies. The short-form petitions do so by ensuring
that drivers would not be considered employees for purposes of G. L.
cc. 149, 151, 151A, and 152. This
unitary purpose is focused and cohesive, and we therefore conclude that each
short-form petition has a common purpose.
See, e.g., Craney v. Attorney Gen., 494 Mass. (2024) (affirming certification of
petition proposing "integrated scheme by which drivers may organize and
collectively bargain with companies").
Although the short-form petitions would have the effect of excluding
drivers from the broad panoply of rights, protections, and privileges afforded
"employees" under cc. 149, 151, 151A, and 152, the effect of the
petitions is not determinative.
"[W]e have never held that relatedness is to be evaluated in terms
of an initiative's effect on existing law." Weiner v. Attorney Gen., 484 Mass. 687, 693
(2020).
The long-form petitions are different in
the sense that they have two major aspects:
the first ensures that drivers would not be considered employees for
various or all (depending on the petition version) of the General and Special
Laws; the second makes available to the drivers certain limited benefits to
which they would not otherwise be entitled as nonemployees. Although the first excludes drivers from the
important and far-reaching rights, privileges, and protections to which
employees are entitled under existing law while the second gives limited benefits
in return, this paired "take and give" serves a common purpose: the regulation of the relationship between
the drivers and the companies. "An
initiative petition may simultaneously broaden and restrict an
entitlement," in this case the rights and benefits associated with the
relationship between drivers and companies, and still meet the related subjects
requirement. Craney, 494 Mass. at
. See Colpack, 489
Mass. at 819 ("an initiative petition need not focus solely on loosening
[or tightening] restrictions in order to meet the related subjects requirement
of art. 48"); Weiner, 484 Mass. at 694, quoting Mazzone v. Attorney Gen.,
432 Mass. 515, 528-529 (2000) ("[t]he provisions of an initiative petition
need not be 'drafted with strict internal consistency'").
"[I]n addition to considering whether
the subjects of an initiative petition share a common purpose,
we . . . examine[] two more specific questions." Colpack, 489 Mass. at 815. First, we consider 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,' [and s]econd, we consider
whether the proposed initiative 'express[es] 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'" (citation
omitted).
Id., quoting
Hensley v. Attorney Gen., 474 Mass. 651, 658 (2016).
The provisions of the short-form petitions
are clearly sufficiently coherent and operationally related because they have
only a single function: to prevent
drivers from being deemed "employees" under G. L. cc. 149,
151, 151A, and 152. The two functions of
the long-form petitions are also sufficiently coherent and operationally
related. Excluding drivers from the
benefits employees receive under existing laws is operationally related to
giving them benefits as nonemployees under the proposed law; the two functions
have the common purpose of establishing the terms of the driver-company
relationship. We see no risk that voters
would be unable to affirm or reject each petition as a whole; each petition is
sufficiently coherent to be voted on "yes" or "no" by the
voters. See Colpack, 489 Mass. at 815;
Dunn v. Attorney Gen., 474 Mass. 675, 682 (2016) (operational relatedness
satisfied where proposed law's "provisions share a common purpose and are
related in the accomplishment of that purpose").
Although the five petitions before us have
the same general goal as the two petitions examined in El Koussa v. Attorney
Gen., 489 Mass. 823 (2022) (El Koussa I), they do not contain the unrelated
provisions seeking to abrogate companies' tort liability to third parties that
led us to reverse the Attorney General's certifications of those earlier
petitions.
The plaintiffs argue that Version B
"inappropriately asks voters for an exemption from the entirety of
Massachusetts law" and on that basis violates art. 48. Although there is no doubt that Version B
would work a change across the entirety of our General and Special Laws,
"[a] measure does not fail the relatedness requirement just because it
affects more than one statute, as long as the provisions of the petition are
related by a common purpose."
Albano v. Attorney Gen., 437 Mass. 156, 161 (2002). That is the situation we confront here;
Version B seeks to ensure that drivers will not be classified as employees
under any existing law. Despite the
reach of Version B, its provisions share a single common purpose: establishing and defining the relationship
between the drivers and the companies.
The plaintiffs also argue that the
long-form petitions "contain prohibited sweeteners" by pairing
unrelated popular provisions (benefits) with unpopular ones (depriving drivers
of the rights, privileges, and protections enjoyed by employees). Logrolling is the prohibited "practice
of including popular unrelated provisions with unpopular ones to ensure the
passage of those provisions that would not otherwise garner the necessary
votes." Clark v. Attorney Gen., 494
Mass. 187, 196 (2024). But even
accepting the plaintiffs' contention that providing drivers with some benefits
is "designed to allay the fears of concerned voters and sway support in
favor of the more objectionable [aspects of the] proposals," that alone is
not enough to constitute prohibited logrolling.
See id. "[F]or there to be
logrolling . . . , the so-called popular and unpopular
items must be unrelated," and we are particularly attentive when the
unpopular items are concealed. Id. Neither concern is present here. As we have already discussed, the benefits
are part and parcel of the petitions' purpose of defining the relationship
between the drivers and the companies.
And where the description of the details of those benefits consumes the
bulk of the petitions, it can hardly be said that they are concealed.
Finally, the plaintiffs challenge the
"highly technical legal language" and long length of the
petitions. It is true that the petitions
before us now are "dense" in the sense that they are
detailed -- particularly with respect to the description of benefits
they seek to create. But art. 48 does
not prohibit dense or detailed language in and of itself; what is prohibited is
the use of language that obscures from voters the meaning or operation of a
petition. See El Koussa I, 489 Mass. at
829 (controversial unrelated provisions should not be concealed "in murky
language" as "way of burying" them). Where, as here, a petition seeks to establish
a complicated scheme of benefits and entitlements, it should be described in as
much detail as required to permit voters to understand all its features. The fact that the resulting description is
dense or uses technical or legal language does not alone bar a conclusion that
the petition satisfies the requirements of art. 48. Contrast id. at 828 (holding petitions
violated relatedness requirement where they buried at least two substantively
distinct policy decisions in obscure language).
2.
Summaries. The plaintiffs argue
that the Attorney General's summaries are not fair, as required by art. 48,
because they do not sufficiently detail the implications of classifying drivers
as nonemployees and do not refer to the statutory protections that the
petitions would displace.[10] Article 48
requires the Attorney General to prepare a summary of each ballot measure that
is not only fair but also concise. Art.
48, The Initiative, II, § 3, as amended by art. 74. In reviewing a summary, "we give deference
to the Attorney General's exercise of discretion . . . and
will not substitute our judgment for that of the Attorney General's over a
matter of degree" (quotations and citation omitted). Anderson v. Attorney Gen., 490 Mass. 26, 32
(2022). For a summary to be fair, it
"must not be partisan, colored, argumentative, or in any way one sided,
and it must be complete enough to . . . giv[e] the
voter . . . a fair and intelligent conception of the main
outlines of the measure" (citation omitted). Id. at 31.
A summary need not be a "comprehensive legal analysis of the
measure." Id., quoting Hensley, 474
Mass. at 660. Here, the Attorney
General's summaries "closely track[] the language of the proposed [acts
and] amendment[s]." Anderson, 490
Mass. at 33.
The long-form summaries follow the
substance and organization of the long-form petitions, and accurately describe
them. As to Version B, the Attorney
General's summary gives the following overview statement:
"This
proposed law would specify that rideshare and delivery drivers who accept
requests through an online-enabled application are not 'employees' and that
rideshare and delivery companies are not 'employers' for purposes of
Massachusetts laws. This proposed law
would also specify alternative minimum compensation and benefits for rideshare
and delivery drivers."
The summary then
has two additional pages outlining the alternative minimum compensation and
benefits the drivers would receive. The
summaries of the other long-form petitions state that the proposal would modify
"certain Massachusetts laws regarding workplace conditions, minimum wages,
unemployment insurance, and workers' compensation." Like Version B, they also contain an
additional two-page description of the alternative minimum compensation and
benefits the drivers would receive.
The short-form summaries likewise follow
the substance and organization of the short-form petitions. The summary of Version F contains an over-all
description that
"This
proposed law would specify that rideshare and delivery drivers who accept
requests through an online-enabled application are not 'employees' for purposes
of certain Massachusetts laws regarding workplace conditions, minimum wages,
unemployment insurance, and workers' compensation. This proposed law would also specify that
rideshare and delivery companies are not 'employers' for purposes of those
laws."
Version I
contains an almost identical description but states that the proposed law would
apply "for purposes of certain Massachusetts labor and employments laws,
including laws regarding workplace conditions, minimum wages, unemployment
insurance, and workers' compensation."
In addition, the short-form summaries describe the so-called rights the
drivers would receive under the proposed new law:
"The
proposed law would apply to drivers for rideshare and delivery companies who
use digital applications and who are (1) not required to work specific days or
hours; (2) not required to accept specific requests; (3) not restricted from working
with multiple rideshare or delivery companies; and (4) not restricted from
working in any other lawful occupation or business."
Although it is true, as the plaintiffs
point out, that none of the summaries lays out all of the implications of
classifying drivers as nonemployees nor do they make detailed references to the
statutory protections being displaced, the summaries are not required to
explain the full sweep of the potential legal ramifications at that level of
detail. See Anderson, 490 Mass. at
34. It is important in this context to
remember that art. 48 requires the Attorney General only to draft a fair and
concise summary; it does not empower the Attorney General to advocate for or
against a petition or to intrude into the important educational and advocacy
role proponents and opponents of the petitions have "to the voters in the
public discourse leading up to election day." Hensley, 474 Mass. at 663 n.19.
Conclusion. We remand the case to the county court for
entry of a declaration that the Attorney General's certifications and summaries
comply with the requirements of art. 48.
However, we retain jurisdiction to revisit our rulings and conclusions
and, if appropriate, to withdraw this opinion in the event the proponents seek
to place more than one petition on the November ballot.
So ordered.
footnotes
[1] Yessenia
Alfaro; Francis X. Callahan, Jr.; Melody Cunningham; Adam Kaszynski; Katie
Murphy; Juliet Schor; and Alcibiades Vega, Jr.
[2] Secretary of the
Commonwealth; Charles Ellison, Abigail Kennedy Horrigan, Brian Gitschier,
Daniel Svirsky, Sean Rogers, Caitlin Donovan, Brendan Joyce, Troy McHenry, Kim
Ahern, and Christina M. Ellis-Hibbett, interveners.
[3] An
"[a]pp-based driver" is defined as "a person who is a [delivery
network company] courier, a [transportation network company] driver, or both,
who has a contract with a network company, and for whom" various
requirements are met.
[4] As defined by
the three long-form petitions, a delivery network company is "a business
entity that (a) maintains an online-enabled application or platform used to
facilitate delivery services within the Commonwealth and (b) maintains a record
of the amount of engaged time and engaged miles accumulated by [its]
couriers." The two short-form
petitions omit clause (b) from the definition.
[5] The petitions
incorporate the definition of "transportation network company"
contained in G. L. c. 159A 1/2, § 1, which is "a corporation, partnership,
sole proprietorship or other entity that uses a digital network to connect
riders to drivers to pre-arrange and provide transportation."
[6] We
acknowledge the amicus briefs submitted by Stevan E. Johnson; United Food and
Commercial Workers International Union; Economic Policy Institute; Open Markets
Institute; Chamber of Progress; National Nurses United; Massachusetts Worker
Centers; Retailers Association of Massachusetts, Marketplace Industry
Association, and United Regional Chamber of Commerce; civil rights
organizations and legal scholars; American Federation of Labor and Congress of
Industrial Organizations; city of Boston; International Brotherhood of
Teamsters; Justice at Work; Massachusetts Academy of Trial Attorneys; Awet Teame,
Dave Beyna, Joe Lucacio, Lisa McRobbie, Luis Ramos, Octavio Mejia-Suarez, and
Jacqueline Grappi; North America's Building Trades Unions; Massachusetts
Coalition for Occupational Safety and Health and Workers' Injury Litigation
Group; National Employment Law Project; Chamber of Commerce of the United
States of America and Associated Industries of Massachusetts; Free Speech for
People; and Massachusetts Employment Lawyers Association.
[7] While the
proponents originally put forth nine petitions, they later informed the
Secretary of the Commonwealth that they would not seek voters' signatures on
four of the nine. The remaining five are
the petitions at issue in this case.
[8] The complaint
was filed in the county court, and a single justice reserved and reported the
matter to the full court.
[9] At oral
argument, the Attorney General and counsel for the plaintiffs stated that they
have no reason to doubt the proponents' counsel's representation.
[10] Given the
proponents' representation that only one petition will be put on the ballot, we
do not -- and need not -‑ reach the plaintiffs' additional
contention that the summaries do not distinguish between the multiple
petitions, thereby depriving voters of context and of the ability to
distinguish among the five versions.