SJC Appears Likely to Provide Guidance on Appropriate Timing for Filing Challenges to Ballot Initiatives

In a departure from its typical schedule — hearing oral arguments during the first full week of every month from September through May — the Massachusetts Supreme Judicial Court will hear challenges to two proposed ballot initiatives on June 8, 2016. The first case, Hensley v. Attorney General, concerns Petition 15-27 which would permit those 21 and older to possess, use, distribute, and cultivate limited amounts of marijuana without criminal penalty, and would allow licensed retailers to sell marijuana for recreational use. The second case, Dunn v. Attorney General, challenges Petition 15-11, which would make it unlawful for farms to “knowingly cause any [breeding pig, calf raised for veal, or egg-laying hen] to be confined in a cruel manner” and for businesses to knowingly engage in the sale of pork, veal, or eggs from an animal “that was confined in a cruel manner.”

The plaintiffs in each case argue that the respective petitions should be left off of the November 2016 ballot for failing to meet the requirements of Amendment Article 48 of the Massachusetts Constitution, which governs the ballot initiative process. Procedurally, these challenges are commenced by filing a complaint with the “single justice” of the SJC, who then “reserves and reports” the challenge to the full Court for consideration. While the “reservation and report” is usually pro forma, the procedural orders in these two cases suggest that the plaintiffs will have to justify the timing of the filing of their complaints before being able to address their substantive arguments. (Links to the dockets with the text of the reservations and reports are here and here).

As the Attorney General’s overview explains, the formal ballot initiative process typically begins during the summer before an election year when proponents submit a petition, along with ten voter signatures, to the Attorney General by the first Wednesday in August. If the Attorney General determines that the petition satisfies the requirements of Article 48, she certifies it and files it with the Secretary of the Commonwealth. While challenges to decisions to certify may be filed immediately, opponents will typically wait until after the first Wednesday of December, the deadline by which proponents must file a certain number of signatures with the Secretary of the Commonwealth (currently 64,750) to continue the process. (See the Secretary of the Commonwealth’s Guide to State Ballot Question Petitions detailing the signature requirements here.)

The complaints in these cases, however, were not filed until late April. In her reservations and reports, the single justice noted that challenges to ballot initiatives are usually filed much earlier, and directed the plaintiffs to explain in their briefs why the actions were filed so late in the process. As a result of the delayed filings, the SJC was left with little time to both schedule oral arguments and decide the matters before July 6, 2016 — the date by which proponents of the petitions must file additional voter signatures (currently 10,792) with the Secretary of State to ensure placement on the November ballot. In order to avoid similar time constraints in future cases, the Court appears likely take the opportunity to provide clear guidance on the appropriate time to file challenges to ballot initiatives. We will update when the matters are decided.

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