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SJC-12064

STEPHANIE GRAY & others[1]  vs.  ATTORNEY GENERAL & another.[2]

Suffolk.     May 2, 2016. – July 1, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Initiative.  Constitutional Law, Initiative petition.  Attorney General.  Education, Standards.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 22, 2016.

The case was reported by Cordy, J.

Thaddeus A. Heuer (Andrew M. London with him) for the plaintiffs.

Juliana deHaan Rice, Assistant Attorney General (Michael B. Firestone, Assistant Attorney General, with her) for the defendants.

BOTSFORD, J.  The Attorney General has certified an initiative petition that concerns, and seeks to end, the use of the Common Core State Standards (common core standards) in defining the educational curriculum of publicly funded elementary and secondary students in the Commonwealth.  The petition also concerns the standardized testing process used in Massachusetts school districts:  it would require the Commissioner of Elementary and Secondary Education (commissioner) to publicly release each year all of the questions and other “test items” included in the prior year’s comprehensive assessment tests that all publicly funded students in elementary and secondary schools are required to take.  The plaintiffs, a group of Massachusetts voters, challenge the Attorney General’s certification of the petition and seek to enjoin the Secretary of the Commonwealth (Secretary) from placing the proposed measure on the 2016 Statewide ballot on a number of grounds.  We conclude, as the plaintiffs argue, that the Attorney General’s certification of Initiative Petition 15-12 did not comply with art. 48, The Initiative, II, § 3, of the Amendments to the Massachusetts Constitution because it contains provisions that are not related or mutually dependent.[3]  It is therefore unnecessary to consider the plaintiffs’ other challenges.

1.  Background.[4]  The common core standards were developed in 2009 as part of a State-led initiative that included governors and commissioners of education from forty-eight States, two territories, and the District of Columbia working as members of the National Governors Association Center for Best Practices and the Council of Chief State School Officers.  The purpose of the initiative was to create consistent learning goals to ensure that all students graduate from high school with the requisite preparation for “college, career, and life.”  See Development Process, Common Core State Standards Initiative, http://www.corestandards.org/about-the-standards/development-process/ [https://perma.cc/ULU2-CG62].  The common core standards define learning objectives for each elementary and secondary school grade level through the final year of high school, with the goal that every student will be able to meet expectations for what every child should know by the time he or she graduates from high school.  See Frequently Asked Questions, Common Core State Standards Initiative, http://www.corestandards.org/wp-content/uploads/FAQ.pdf [https://perma.cc/W3VR-PQLN].

On July 21, 2010, the Board of Elementary and Secondary Education (board) voted, pursuant to its authority under G. L. c. 69, §§ 1D and 1E, to adopt the common core standards and replace the then-current Massachusetts curriculum frameworks in English language arts and mathematics; the vote to adopt was contingent on “augmenting and customizing” the common core standards “within the [fifteen] percent allowance”[5] for State-specific content (July vote).  The board directed the commissioner to present recommendations for modifying and augmenting the common core standards with State-specific content within the permissible fifteen per cent range no later than October, 2010, after which the commissioner was to solicit public comment.  The commissioner also was directed to propose to the board a final version of the standards, including State-specific content, and upon the board’s approval, they would become the new “Massachusetts Curriculum Frameworks for English Language Arts and Mathematics.”  On December 21, 2010, following a public comment period, the board voted unanimously to adopt the proposed new “Massachusetts Curriculum Framework for English Language Arts and Literacy, Incorporating the Common Core State Standards,” and the proposed new “Massachusetts Curriculum Framework for Mathematics, Incorporating the Common Core State Standards” (December vote).

On or before August 5, 2015, sixteen qualified voters (petitioners) submitted Initiative Petition 15-12 to the Attorney General.  On September 2, 2015, the Attorney General certified to the Secretary that the petition is in the proper form and meets the requirements of art. 48; that the measure is not substantially the same as any measure that had been qualified for submission to the people at either of the two preceding biennial State elections; and that the initiative petition contains only subjects that are related or mutually dependent and which are not excluded from the initiative process pursuant to art. 48, The Initiative, II, § 2.  The Attorney General also prepared a summary of the initiative petition to be used in the process for gathering additional signatures, and provided the summary to the Secretary.  On or before December 2, 2015, the petitioners submitted to the Secretary forms containing sufficient additional signatures to require that the Secretary transmit the petition to the Legislature.  The Secretary then transmitted the petition to the Clerk of the House of Representatives, and the petition was assigned bill No. H.3929, entitled “An Act relative to ending common core education standards.”  The Legislature has not enacted the measure that the petition proposes.  If the petitioners submit the requisite number of signatures to the Secretary by July 6, 2016, the Secretary intends to include the petition in the Information for Voters Guide and to include the substance of the proposed measure on the November, 2016, ballot.

On January 22, 2016, the plaintiffs filed their complaint in the county court, seeking relief in the nature of certiorari and mandamus; specifically, they seek to quash the certification of the petition and to enjoin the Secretary from including the substance of the proposed measure on the November, 2016, Statewide ballot.  After the parties filed a statement of agreed facts, the single justice reserved and reported the case for consideration by the full court.

The petition contains six sections.[6]  Section 1 would rescind the board’s July vote to adopt, contingently, the common core standards, and would immediately “restore” the Massachusetts curriculum frameworks in English language arts and mathematics that were in effect prior to July 21, 2010.  Section 2 of the petition would amend the second paragraph of G. L. c. 69, § 1D (§ 1D),[7] to require that (1) the board include, in the process for developing academic standards, committees comprised of “teachers and academics” from Massachusetts public and private colleges and universities; and (2) the commissioner copyright the “frameworks,” granting permission for use only for noncommercial, educational uses.

Section 3 of the petition would further amend the second paragraph of § 1D by adding a provision that would (1) require the board to create three review committees — one for mathematics, one for science and technology, and one for English — with the members of each committee to be appointed by the Governor from public and private research universities in Massachusetts; and (2) prohibit the board from approving any “frameworks” unless the pertinent review committee “warrant[s] by a two-thirds vote that the frameworks are equivalent to the standards of the most educationally advanced nations as determined by the Trends in Mathematics and Sciences Study.”[8]

Section 4 of the petition would amend the third paragraph of G. L. c. 69, § 1I (§ 1I),[9] to require, with respect to the comprehensive diagnostic assessments of individual students conducted on an annual basis,[10] the annual release, before the start of each school year, of all of the previous academic year’s test items, including all test questions, all constructed responses, and all essays, for each grade in which the diagnostic assessment tests were administered and for each subject tested, “[i]n order to better inform the teachers and administrators about the diagnostic assessments.”[11]

The plaintiffs allege in their complaint that Initiative Petition 15-12 was improperly certified by the Attorney General because the petition does not comply with art. 48 in several respects.  In particular, the plaintiffs claim that (1) the petition contains subjects that are neither related nor mutually dependent in violation of art. 48, The Initiative, II, § 3; (2) the petition does not propose a “law” as required by art. 48, The Initiative, II, § 1, insofar as it proposes to rescind the board’s July vote, a vote that had no operative effect because final board approval of the common core standards did not occur until the December vote; and (3) it does not include the requisite enacting language prescribed by G. L. c. 4, § 3.

2.  Discussion.[12]  a.  Standard of review.  A challenge to the decision by the Attorney General to certify an initiative petition is reviewed de novo.  See Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014).  See also Opinion of the Justices, 262 Mass. 603, 606 (1928) (“The certificate of the Attorney General concerns merely matters of form. . . .  Whatever fails to possess elements indispensable for enactment or for submission to the people cannot be made into a ‘law’ by such certificate”).  In conducting our review, we bear in mind “the firmly established principle that art. 48 is to be construed to support the people’s prerogative to initiate and adopt laws.”  Carney v. Attorney Gen., 451 Mass. 803, 814 (2008) (Carney II), quoting Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203, 211 (1988).

b.  Relatedness.  Pursuant to art. 48, The Initiative, II, § 3, the Attorney General may only certify petitions that contain subjects “which are related or which are mutually dependent” (related subjects requirement).  The plaintiffs argue that the petition does not comply with this requirement.  We agree.  In Carney v. Attorney Gen., 447 Mass. 218, 225-232 (2006) (Carney I), the court, informed by review of the proceedings of the State Constitutional Convention of 1917-1918, summarized the purpose of the related subjects requirement.  We stated:

“The relatedness limitation requires the Attorney General to scrutinize the aggregation of laws proposed in the initiative petition for its impact at the polls.  At some high level of abstraction, any two laws may be said to share a ‘common purpose.’  The salient inquiry is:  Do 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?

“. . .

“The language, structure, and history of art. 48 all suggest that any initiative presenting multiple subjects may not operate to deprive the people of a ‘meaningful way’ to express their will. . . .  It is not enough that the provisions in an initiative petition all ‘relate’ to some same broad topic at some conceivable level of abstraction. . . .  To clear the relatedness hurdle, the initiative petition must express 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.  A broader interpretation of the common purpose requirement would undercut the very foundations of the relatedness limitation.”  (Emphases added; citations omitted.)

Id. at 226, 230-231.  See Abdow, 468 Mass. at 499.[13]  See also Albano v. Attorney Gen., 437 Mass. 156, 161 (2002); Mazzone v. Attorney Gen., 432 Mass. 515, 528-529 (2000); Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, 384 Mass. 209, 219-220 (1981); Opinion of the Justices, 309 Mass. 555, 560-561 (1941).

These cases indicate that at the core of the related subjects requirement is the condition that the initiative petition’s provisions share a “common purpose,” see Massachusetts Teachers Ass’n, 384 Mass. at 219-220;[14] put slightly differently but making the same point, the petition’s provisions, considered together, must present a “unified statement of public policy” that the voters can accept or reject as a whole.  See Carney I, 447 Mass. at 231.

In two cases, we have concluded that the provisions contained in a particular initiative petition do not share a common purpose or reflect a uniform statement of public policy, and, therefore, did not satisfy the related subjects requirement.  In Opinion of the Justices, 422 Mass. 1212, 1213, 1220-1221 (1996), in response to questions propounded by the House of Representatives, we considered an initiative petition that included several provisions designed to reduce and limit compensation paid to Massachusetts legislators and also one that would permit the Inspector General to access the records of the General Court and records kept by the commissioner of veterans’ services.  One of the questions posed to the court was whether the provision relating to the records of the commissioner of veterans’ services was sufficiently related to a subject to which the initiative petition’s other provisions also related.  The petition’s drafters asserted that the common purpose among the provisions was “to make Massachusetts government more accountable to the people”; counsel to the House of Representatives proposed that the common purpose might be legislative accountability.  Id. at 1220.  We determined that the common purpose asserted by the drafters was “unacceptably broad,” given that “[o]ne could imagine a multitude of diverse subjects all of which would ‘relate’ to making government more accountable to the people.”  Id. at 1221.  We accepted the alternative proposed purpose of legislative accountability as reflecting a common purpose that also was consistent with the title of the initiative petition at issue, but concluded that “[p]ermitting the Inspector General access to the records of the commissioner of veterans’ services does not relate in any meaningful way to improving legislative accountability.”  Id.  Accordingly, because these provisions were not “related or mutually dependent,” the initiative petition did not satisfy the related subjects requirement.  Id.

In the second case, Carney I, the petition proposed to (1) amend certain criminal statutes to punish those who abused or neglected dogs, and (2) ban parimutuel dog racing.  Carney I, 447 Mass. at 219-220 & n.7.  We rejected as too broad the Attorney General’s argument that these were sufficiently related subjects based on a mutual connection to the goal of promoting more humane treatment of dogs, see id. at 224, and concluded that these provisions lacked a sufficient “operational relationship” between them to permit a reasoned vote on a uniform public policy question.  See id. at 231-232.  In that regard, we observed:

“The voter who favors increasing criminal penalties for animal abuse should be permitted to register that clear preference without also being required to favor eliminating parimutuel dog racing.  Conversely, the voter who thinks that the criminal penalties for animal abuse statutes are strong enough should not be required to vote in favor of extending the reach of our criminal laws because he favors abolishing parimutuel dog racing.”

Id. at 231.  As a result, the related subjects requirement was not satisfied and the Attorney General’s certification of the petition did not comply with art. 48.  Id. at 231-232.

With this background in mind, we turn to Initiative Petition 15-12.  Sections 1 through 3 may be said to share a common purpose:  redefining the contents of the academic standards and curriculum frameworks for the Commonwealth’s public schools.  Section 4, however, which would amend § 1I to require annual publication of all the previous year’s questions, constructed responses, and essays for each grade and core subject included in the mandatory diagnostic assessment tests, has the explicitly stated purpose of better informing educators about the assessment tests.  Thus, the apparent goal of section 4 is to make more transparent the standardized diagnostic assessment tests and testing process required to be used in public education, and it is a goal that comes with a significant price tag:  as the Attorney General agreed in oral argument before this court, implementing section 4 will require the development and creation of a completely new comprehensive diagnostic test every year, which means a substantial increase in annual expense for the board — an expense to be borne by taxpayers and to be weighed by voters in determining whether increased transparency is worth the cost.[15]

An initiative petition properly may contain only subjects “which are related or which are mutually dependent.”  Art. 48, The Initiative, II, § 3.  The two subjects in this petition are clearly not “mutually dependent.”  In fact, the opposite seems true.  That is, whether the diagnostic assessment tests are based on the common core standards or some previous set of academic standards — the focus of sections 1 through 3 of the petition — will not affect in any way the commissioner’s obligation under section 4 to release before the start of every school year all of the previous year’s test items in order to inform educators about the testing process; the commissioner’s obligation will exist independently of the specific curriculum content on which the tests are based.

Nor do the two subjects have sufficient operational connection, see Carney I, 447 Mass. at 230-231, to be “related” within the meaning of art. 48.  The Attorney General argues that sections 1 through 3 are “operationally related” to section 4 in that all four sections serve a common purpose of imposing “new procedural requirements on the development and implementation of educational standards,” and because “the twin educational facets of curriculum and assessment are inextricably coupled:  assessments exist to measure the extent to which students are learning and schools are teaching the material, concepts, and strategies set forth in the academic standards.”  We agree that at a conceptual level, curriculum content and assessment are interconnected, but the related subjects requirement is not satisfied by a conceptual or abstract bond.  See Carney I, supra at 230-231.  At the operational level, this petition joins a proposed policy of rejecting a particular set of curriculum standards, common core, with a proposed policy of increasing transparency in the standardized testing process at what is likely to be a greatly increased cost, regardless of the content of the curriculum standards used.  These are two separate public policy issues.

There is significant public debate in Massachusetts and the nation about the value of the common core standards; there is also a great deal of debate about the value of standardized testing.[16]  That both may be controversial public issues in the domain of elementary and secondary education, however, does not, by itself, bring them within the related subjects requirement of art. 48, The Initiative, II, § 3.  The combination of these two issues in one initiative petition does not offer the voters a “unified statement of public policy” (emphasis added).  See Carney I, 447 Mass. at 231.  In other words, we cannot say that “the similarities of [the petition’s] provisions dominate what each [provision] provides separately” so that the petition, considered as a whole, “is sufficiently coherent to be voted on ‘yes’ or ‘no’ by the voters.”  Id. at 226. Rather, because the issues combined in the petition are substantively distinct, it is more likely that voters would be in the “untenable position of casting a single vote on two or more dissimilar subjects,” Abdow, 468 Mass. at 499, which is the specific misuse of the initiative process that the related subjects requirement was intended to avoid.  See Carney I, supra at 229-231.

Our conclusion that Initiative Petition 15-12 fails to satisfy the related subjects requirement of art. 48 will prevent the proposed measure in the petition from being placed on the 2016 Statewide ballot.  Because this is so, we need not consider the plaintiffs’ additional claims that the petition fails to propose a “law,” see art. 48, The Initiative, II, § 1, and that the necessary enacting language required by G. L. c. 4, § 3, is absent.

3.  Conclusion.  We remand the case to the county court for entry of a judgment declaring that the Attorney General’s certification of Initiative Petition 15-12 is not in compliance with the limitations of art. 48 and enjoining the Secretary from taking steps to place the measure on the ballot in the 2016 Statewide election.

So ordered.