SJC will consider challenges to all four ballot questions

STATE LAW lays out the steps needed to file an initiative petition to put a question before voters on the state ballot: get certified by the attorney general, collect signatures, go to the Legislature. What’s not included, but may as well be, is defend the petition before the Supreme Judicial Court. In what has essentially become a rite of passage, all four potential questions on this November’s ballot will go to court next week.

One case that has gotten significant attention is a proposed constitutional amendment raising the tax rate on income over $1 million. The Massachusetts High Technology Council and others are asking the court to change the summary on the ballot to clarify that there is no guarantee the money raised will go toward increased spending on transportation and education, as the measure’s advocates claim.

Several business-backed or conservative-leaning groups – the Greater Boston Chamber of Commerce, PioneerLegal, the Beacon Hill Institute, and the New England Legal Foundation – weighed in supporting the High Technology Council. James Rooney, president and CEO of the Greater Boston Chamber of Commerce, which opposes the ballot question, said the ballot summary “should be unequivocal in stating that the amendment does not require new revenue be directed to transportation and/or education.” “The voters of the Commonwealth deserve and expect transparent and accurate information,” Rooney said. 

Three other cases aim to have the SJC exclude questions from the ballot. One of the biggest battles this year is over a question that would define drivers for ride-hailing companies as independent contractors while giving them certain benefits like a guaranteed minimum wage.

A group of voters – including ride-sharing drivers, an economist, and a union representative – challenged the question, arguing that it contains two unrelated subjects. Under the state constitution, a ballot question proposed by a citizens’ initiative petition must contain only subjects that are “related or mutually dependent.” The challengers say the petition first creates a presumption that drivers are independent contractors and second, sets minimum standards for compensation and benefits. “Being an independent contractor is not mutually dependent on receiving guaranteed minimum compensation or minimum benefits,” the challengers wrote in a court filing.

Attorneys representing the signers of the Uber and Lyft-backed ballot question responded in a court brief that all sections of the question “share a common purpose: defining and regulating the scope of the legal relationship between Network Companies and App-Based Drivers by creating a new statutory worker classification for App-Based Drivers.”

This case has also attracted outside interest, particularly from labor and business groups, the former opposing the ballot initiative and the latter supporting it. Groups that filed briefs supporting the question’s opponents include the National Women’s Law Center with 25 women’s and legal aid groups; Massachusetts and national civil rights organizations; and the AFL-CIO. The City of Boston supports the plaintiffs, arguing that the petition would “have a negative effect on the City of Boston and its workers.” Individuals injured by ride-hailing drivers, including one whose brother was killed by a driver, filed a brief opposing the question’s limits on driver liability.

On the other side, a group of app-based drivers weighed in supporting the ballot question, as did the New England Legal Foundation, the tech industry coalition Chamber of Progress, and the US Chamber of Commerce.

One question notable for its lack of outside interest would require dental insurers to spend at least 83 percent of premiums on clinical costs and quality improvements, rather than administrative costs, similar to an existing rule for health insurance. The sponsors are a group of four orthodontists, a dentist, and several patients, led by Mouhab Rizkallah, who has been sued by Attorney General Maura Healey for submitting false claims to MassHealth.

An SJC challenge filed by Lory-San Clark and Wendy Sutter argues that the ballot question includes two unrelated public policy goals. One part would establish rules limiting how much insurers can pay for administrative expenses; the second would require insurers to file annual financial reports.

The question’s sponsors say the sections share a common purpose of “implementing a regulatory system that ensures that an adequate amount of dental insurance premiums go toward paying for patient dental care and quality improvement.”

Clark is a former dental practice office manager, while Sutter’s interest is unclear. Their attorney Tad Heuer, a partner at Foley Hoag, called them “concerned citizens” who believe that the question does not meet the legal standard for a ballot question. “They hope the SJC will not place the question on the ballot because it would negatively impact access to dental care,” Heuer said.

The final challenge is to a question that would change the licensing scheme for alcohol licenses. Appellants, led by Cumberland Farms executives, are again relying on a “relatedness” challenge, arguing that the ballot question is unconstitutional because it contains five separate items: increasing the availability of “all alcohol” licenses, decreasing “beer and wine” licenses, changing age identification requirements, prohibiting automated checkout, and imposing new fines.