No. 98/99-1

September 4, 1998

Honorable William F. Galvin
Secretary of the Commonwealth
One Ashburton Place

Boston, MA 02108

Dear Secretary Galvin:

You recently transmitted to me a series of proposed ballot questions and requested my opinion whether those questions are ones of "public policy" within the meaning of M.G.L. c. 53, § 19, and, if so, what simple, unequivocal and adequate form is best suited for presentation of these questions on the November, 1998, ballot. I have reviewed the proposed questions and have concluded that, with two exceptions, each is a public policy question that 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 two exceptions, each of the questions proposed here meets these standards.

The first question I must disapprove asks:

Do you approve of the construction of a new high school at Legion Field, East Weymouth?

Viewed generally, this question appears to concern the construction of public educational facilities, a subject that may be viewed as of state-wide concern. The question is not necessarily deficient, therefore, because it concerns only a single town. On its face, however, the question does not contain an instruction to a State Senator or Representative on a matter that is appropriate for legislative action; rather, it contemplates only action at the local level--a decision by the town of Weymouth regarding the siting of a new high school. See 1968-69 Op. Att'y Gen. No. 5, Rep. A.G., Pub. Doc. No 12 at 38 (1968) (Attorney General may draw reasonable inferences from the form of the statement of the question in the petition). This view is confirmed by information, including news accounts, indicating that the decision regarding the siting of the new school will be determined at a special town meeting in Weymouth. See id. (in reviewing public policy questions, Attorney General may rely on such facts of common knowledge, actual or presumed, in the voting district concerned as may be reasonable). The question, therefore, clearly violates the requirement that public policy questions pursuant to M.G.L. c. 53, § 19, instruct state legislators on matters fit for legislative action. See 1990-91 Op. Att'y Gen. No.1 at 81 (rejecting proposed question asking whether town should institute a traffic safety operation on ground that it sought action from town officials rather than the state legislature).

The second proposed ballot question I must disapprove states:

We call for the removal of the chain link fence from the A. Piatt Andrew Bridge. We believe this project should not have gone forward without public input and approval. Though the motivation for the fence was well intentioned, the fence is ineffective and is aesthetically unacceptable.

On its face, this proposal (which, I am informed, concerns a bridge in Gloucester) does not take the form of an instruction to a State Senator or Representative. Voters considering this question, therefore, would not be informed that they are instructing their legislator, as M.G.L. c. 53, § 19, contemplates. Moreover, the proposal fails to include a sufficient description of a law for 1 which a legislator should vote; rather, it comments on the perceived inadequacies of the fence and on the circumstances regarding its origination. Public policy questions properly "involve 2 determinations of what governmental action is desirable or necessary for the public interest, as . . . contrasted to statements of fact," 1988-89, Op. Att'y Gen. No. 1 at 103.

In addition, one other ballot question merits discussion. That question asks:

Shall the state representative from this district be instructed to vote in favor of legislation requiring that the nuclear reactor presently operating in Cambridge on Albany Street near Mass Ave and MIT, be removed forthwith out of Cambridge to a safer and less densely populated area?

The question arises whether this legislation, if enacted, would be preempted by the federal Atomic Energy Act of 1954. See, e.g., English v. General Elec. Co., 496 U.S. 72, 80-82 (1990) (issues regarding radiological safety of nuclear plants are preempted by federal government), and, consequently, whether the subject matter of the question would be fit for state legislative action.

Prior opinions of Attorneys General have established not only that traditionally a broad view has been taken of what constitutes an appropriate question of public policy under M.G.L. c. 53, §§ 19-21, see 1988-89 Op. Att'y Gen. No. 1 at 102, but also that "in ascertaining whether a question is one of 'public policy,'" the Attorney General's review "does not and cannot extend to a consideration of the constitutionality of any legislation that might eventually be enacted as a result of the voters' instruction." 1986-87 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at 55 (1986). For the same reasons, my review does not and cannot extend to a consideration of the possibility that legislation enacted as a result of a public policy instruction might be preempted by federal law: the exact form of the action that might be taken by the Legislature based on the result of the voters' instruction cannot now be foreseen; and, like questions of constitutionality, questions of federal preemption that might result from one form of action might not be presented if that action took another form. See 1994-95 Op. Att'y Gen.No. 2, Rep. A.G., Pub. Doc. No. 12 at 199-200 (1994). 3

In conclusion, each of the proposed questions may appear on the ballot, in the district(s) indicated, in the following form, which had been developed in consultation with your staff:

First Berkshire, Second Berkshire,
Third Berkshire and Fourth Berkshire Representative Districts

Shall the state representative from this district be instructed to vote in favor of legislation that would change the Berkshire County Commission, enabling it to become a stronger, more effective, and more locally controlled agency with a mission to develop and implement regional policies regarding economic development, transportation, environmental protection, land use, water, sewage, education and other county services?

Third Berkshire Representative District

Shall the state representative from this district be instructed to vote in favor of legislation prohibiting state action in support of the Environmental Protection Agency's designation of the General Electric plant, the Housatonic River, and off-site PCB landfill areas as a Superfund site?

Berkshire, Franklin, Hampden & Hampshire Senatorial District

Shall the state senator from this district be instructed to vote against the elimination of county government, which elimination would allow the state to take over the county courthouses, the Berkshire County House of Correction, and the county's Registries of Deeds?

Ninth Essex and Twenty-third Middlesex Representative Districts

Shall the state representative from this district be instructed to vote in favor of legislation allowing capital punishment for persons convicted of first degree murder?

Second Norfolk and Tenth Suffolk Representative Districts

Shall the state representative from this district be instructed to vote in favor of legislation to create a health care system for all the residents of Massachusetts that provides universal coverage for comprehensive health care services that includes the freedom to choose doctors and other health care professionals, facilities and services; eliminates the role of insurance companies in health care and creates an insurance trust fund that is publicly administered and fairly funded; and, in order to safeguard the availability of quality health care, stops the buying, selling, managing and closing down of health care facilities by for-profit corporations?

Twenty Eighth Middlesex Representative District

1. Shall the state representative from this district be instructed to vote in favor of legislation requiring that the nuclear reactor presently operating in Cambridge on Middlesex near Massachusetts. Ave. and the Massachusetts Institute of Technology be removed immediately out of Cambridge to a safer and less densely populated area?

2. Shall the state representative from this district be instructed to vote in favor of legislation stimulating increased production and availability of affordable housing for middle class and low income residents of Massachusetts, including rental and home ownership?

3. Shall the state representative from this district be instructed to vote in favor of legislation providing for universal, affordable, comprehensive health insurance for all residents of Massachusetts, and providing for a health care bill of rights for all residents of Massachusetts?

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 (1996 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

1An informational booklet prepared by the Secretary of the Commonwealth on State Ballot Question Petitions recommends that public policy questions take the following form: "Shall the (senator or representative) from this district be instructed to vote in favor of legislation (describe the legislation you wish to be enacted)?"

2Thus, it is unclear, for example, whether the law should provide for the removal of the fence, for the removal of the fence until the public has had its opportunity for review, for the removal of the fence and its replacement by a fence that is more effective or aesthetically acceptable, or some other variation. For the Attorney General and the Secretary of State to alter materially the substance of a question when drafting it would be contrary to M.G.L. c. 53, § 19, and could interfere with proponents' right to put an instruction before the Legislature. Moreover, revisions that materially change a proposed question would raise serious doubt whether the signature requirements of § 19 have been satisfied, because the question is no longer substantially the same as what was originally presented by petition to the voters. The authority of the Attorney General and Secretary of State to draft an approved question in "such simple, unequivocal and adequate form as shall be deemed best suited for presentation upon the ballot," M.G.L. c. 53, § 19, does not encompass the kind of substantive revisions that this proposed question would require. See 1988-89 Op. Att'y Gen. No. 1 at 105, n.7.

3A prior Opinion of the Attorney General did disapprove one public policy question, and suggested the possibility of disapproval of another, on constitutional grounds. See 1984-85 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at 76 (1984). However, I believe that more recent opinions declining to engage in such analysis are more persuasive for the reasons set forth in this opinion. Moreover, public policy questions regarding the subject of nuclear power have been approved in prior Opinions of the Attorney General. See, e.g., 1980-81 Op. Att'y Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 110-11 (1980).