No. 96/97-1

August 29, 1996

The Honorable William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Room 1705
Boston, MA 02108

Dear Secretary Galvin:

You recently transmitted to me a series of proposed ballot questions and requested my opinion whether these questions are one of "public policy" within the meaning of M.G.L. c. 53, § 19 (1994 ed.) and, if so, what simple, unequivocal and adequate form is best suited for presentation of these questions on the November 1996 ballot. I have received the proposed questions and have concluded that, with one exception, each of them is a public policy question which may appear, in the form provided herein, on the November ballot.

The principles governing my review of proposed ballot questions are well settled, have been reviewed in prior Opinions of the Attorney General, and accordingly need not be extensively reviewed here. See, e.g., 1990-91 Op. Att'y Gen. No. 1, Rep. A.G., Pub. Doc. No. 12 at 78 (1990); 1988-89 Op. Att'y Gen. No. 1, Rep. A.G., Pub. Doc. 12 at 102 (1988). It is sufficient to say that each question must (1) involve a determination of what governmental action is desirable or necessary for the public interest, as opposed to individual concerns; (2) relate to an important public matter in which every citizen of the Commonwealth would have an interest, even if the direct impact of the question is confined in some way to a specific geographic area; and (3) be consistent with the powers of the Legislature and involve a subject matter that is fit for legislative action. With one exception, each of the questions proposed here meets these standards.

The exception is a question proposed for the First Franklin and Second Hampshire representative districts, identical to one rejected by my predecessor as Attorney General in 1988 and almost identical to one rejected by him in 1990, that provides (with emphasis in the original) as follows:

In biological terms, when does an individual human life begin?

Mark a cross "X" in the square next to the answer you prefer. Only vote for one.

[ ] A. Conception.
[ ] B. Viability.
[ ] C. Birth.
[ ] D. Write-in: Specify a different biological term

This same question was proposed in 1988 and was determined by the Attorney General not to be appropriate for presentation on the ballot as a question of public policy. See 1988-89 Op. Att'y Gen. No. 1 at 104-06. That determination was challenged in court in a suit against the Attorney General and the Secretary, and the Supreme Judicial Court declined to overturn or even review the determination, adhering to the longstanding rule that "the Attorney General's decision, in the absence of bad faith, is final." New England Christian Action Council, Inc. v. Secretary of the Commonwealth, 403 Mass. 671, 673 (1989) (citing Thompson v. Secretary of the Commonwealth, 265 Mass. 16, 19 (1928)). Two years later, the Attorney General disapproved another, slightly different question concerning when an individual human life begins. 1990-91 Op. Att'y Gen. No.1 at 82.

The principal basis for the Attorney General's 1988 ruling was that the question was not phrased as, and did not purport to provide, an instruction to a legislative representative regarding governmental action. Indeed, the question did "not indicate whether any governmental action at all is contemplated," and it "fail[ed] to notify voters what public policy, if any, would be changed or established by a representative seeking to follow their instruction." Id. at 105. Providing such instruction "is fundamental to properly posing a 'question of public policy' under Massachusetts law," specifically Article 19 of the Massachusetts Constitution's Declaration of Rights and M.G.L. c. 53, § 19. 1988-89 Op. Att'y Gen. No. 1 at 105. This principle was followed again in 1990 when my predecessor disapproved a question concerning a local traffic safety issue on the ground that the question did not concern any proposed action by the state Legislature. 1990-91 Op. Att'y Gen. No.1 at 81-82.

The 1988 question concerning when an individual human life begins was also determined to be flawed because, unlike any other public policy question that had ever appeared on the ballot under M.G.L. c. 53, § 19, it did "not allow for affirmatively voting that no instruction on this issue should be given." 1988-89 Op. Att'y Gen. No. 1 at 105-06 & n.8 (emphasis in original). This principle was again followed in 1990 when another, slightly modified question concerning when an individual human life begins was rejected by my predecessor on the ground that "a multiple choice question which fails to allow voters to reject entirely any instruction to their legislator on the subject of the question [ ] is impermissible." 1990-91 Op. Att'y Gen. No.1 at 82.

Attorneys General have historically been extremely reluctant to depart from the legal opinions of prior Attorneys General. When an Attorney General is asked to revisit an earlier opinion, that opinion "is entitled to great weight and is subject to reversal only if there has been a substantive change in the law, or if the original interpretation was clearly erroneous." 1979-80 Op. Att'y Gen. No. 11, Rep. A.G., Pub. Doc. No. 12 at 120 (1980); see 1978-79 Op. Att'y Gen. No. 21, Rep. A.G., Pub. Doc. No. 12 at 131 (1978). I see no reason to depart from the earlier determination, left undisturbed by the Supreme Judicial Court in 1988 and followed in 1990, that the proposed question concerning when an individual human life begins is not a question of public policy under M.G.L. c. 53, § 19 and therefore may not appear on the ballot. I note, however, as did my predecessor in 1990, that in light of the Attorney General's 1988 determination, "the rejection of the question on this ground was . . . entirely foreseeable" and that "the requirements for public policy questions do not prohibit a properly posed public policy question that involves a theory of when life begins." 1990-91 Op. Att'y Gen. No.1 at 83 n.10 (emphasis added).

I conclude that each of the other proposed questions may appear on the ballot, in the district(s) indicated, in the following form, which has been developed in consultation with your staff.

First Barnstable, Second Barnstable, Fourth Barnstable, First Berkshire, Second Berkshire, Fourth Berkshire, First Bristol, Seventh Bristol, First Essex, Seventh Essex, Second Franklin, Second Hampden, Fourth Hampden, First Hampshire, Second Hampshire, Third Hampshire, Thirteenth Middlesex, Fifteenth Middlesex, Sixteenth Middlesex, Twenty-Seventh Middlesex, Twelfth Norfolk, Twelfth Suffolk, Nineteenth Suffolk, and Thirteenth Worcester Representative Districts

Shall the state representative from this district be instructed to vote in favor of legislation that:

[ ] Limits spending on political campaigns;
[ ] Removes the influence of contributions by large donors; and
[ ] Creates a level playing field for candidates and voters,

By providing the option of public financing to candidates who agree to strict spending limits? 1

Third Berkshire

Shall the state representative from this district be instructed to vote in favor of legislation providing that restaurants must designate at least 60% of their seating capacity as a non-smoking area but may designate up to 40% of their seating capacity as a smoking area if the restaurant ventilation meets code requirements and signs indicating smoking and non-smoking sections and capacity are prominently displayed?

Fifth Hampden

Shall the state representative from this district be instructed to vote in favor of a rule requiring bills to be in print for at least 24 hours before consideration by the House of Representatives?

Fifth Hampden

Shall the state representative from this district be instructed to vote in favor of a rule requiring any bill relative to taxation to be on the legislative calendar for at least seven days before being passed by the House of Representatives?

Third Berkshire, Fourth Berkshire

Shall the state representative from this district be instructed to vote against legislation enabling the merger of Berkshire Medical Center and Hillcrest Hospital of Pittsfield?

Tenth Middlesex, Twelfth Middlesex

Shall the state representative from this district be instructed to vote in favor of a bill to reduce the size of the Newton Board of Aldermen from 24 members to 16 members? 2

In accordance with the practice of prior Attorneys General, I have not made any independent inquiry whether the above questions meet the additional requirements for public policy questions set forth in M.G.L. c. 53, §§ 19-21 (1994 ed.). These requirements involve factual determinations which are more appropriately made by you as Secretary of the Commonwealth. I conclude only that the questions are ones of public policy and may, if these other requirements are met, appear on the ballot in the form set forth above.

Sincerely,
Scott Harshbarger

1 In the Second Franklin, Second Hampden, and Fourth Hampden districts, the last phrsae should read "candidates who agree not to accept or spend any private money?"

2 This question may approach the limit of the principle followed by my predecessors that "[e]ven when a question appears to affect a small geographic area, if the problem it addresses is one of concern to the Commonwealth in general, the question may be considered one of public policy." 1988-89 Op. Att'y Gen. No. 1 at 103 (citing prior Opinions). But "[i]t has rarely been concluded that a matter is solely of local concern." Id.; see id. at 104 n.5 (citing approval of earlier locally-focused questions). I also note that a similar question, concerning legislation affecting the size and make-up of the Boston City Council, was approved in 1980. 1980-81 Op. Att'y Gen. No.6, Rep. A.G., Pub. Doc. No. 12 at 111. Other questions seeking to instruct legislators on issues of local governmental structure have also been approved. 1990-91 Op. Att'y Gen. No.1 at 78 n.2, 84. I therefore approve this question.