SJC justices mull millionaires’ tax

Ballot question decision may hinge on whether court thinks elements are sufficiently related

SUPREME JUDICIAL COURT justices peppered lawyers with questions on Tuesday morning on an appeal challenging a proposed state ballot question to raise taxes on high earners, with judges repeatedly questioning whether it met a requirement that the elements of ballot measures be “related” or “mutually dependent.”

The proposed constitutional amendment is sponsored by a coalition of labor unions and community groups under the umbrella of an organization called Raise Up Massachusetts. The challenge was brought by a group of business organizations opposed to the so-called millionaires’ tax, which would add a 4 percent surcharge on all income over $1 million and direct the proceeds to education and transportation needs.

Justice Scott Kafker wondered how a tax on high earners and the two big spending areas could be considered related. “Those seem to be three separate major policy decisions,” he said to Kate Cook, an attorney for the petition sponsors.

“We see this as a unified public policy,” Cook said, citing the petitioners’ belief that the tax revenue is needed to support new spending on the two areas they see as “the key to social mobility.”

Justice Elspeth Cypher seemed unconvinced. “Whose unified public policy is it?” she asked, saying a voter might have very different views on the need for spending for education or transportation.

Cook said past court decisions have allowed ballot questions as long as their components have some “operational relationship” to each other.

Kafker wondered if that meant almost anything state government spends money on could be lumped together in a ballot question. “Could they have added pensions?” he asked. “Or solar energy?”

Cook said including such spending would pass muster as long as the ballot question doesn’t confuse voters or “misuse voter assent.”

Kafker said the standard requires not just that a question be comprehensible, but that it also be “coherent.”  “They absolutely have to understand it,” he said of voters. “But that’s the beginning of the analysis, not the end of it.”

Discussion during the oral arguments of the standard on related and mutually dependent elements frequently cited two recent SJC cases: A 2016 ruling that knocked off the ballot a question that would have repealed the state’s Common Core education standards and a 2006 ruling against a question to ban greyhound racing.

In the Common Core case, justices ruled the ballot question out of bounds because it also would have required annual release of the full MCAS exam given to students, something the court said was unrelated to curriculum standards.

In the greyhound case, the ballot question would have not only banned racing, but also established new criminal penalties for dog fighting and abuse of dogs. The court ruled those provisions were not related closely enough to the dog racing ban to be folded into a single ballot question.

Cypher questioned how the millionaires’ tax could pass the court’s test when those two questions did not.

Cook said the dog racing question was a classic example of misuse of voter assent because it packaged together separate proposals when at least one of them would not be approved standing alone. Six years before the case, she said, voters had rejected a ballot question focused only on banning greyhound racing. The only thing that changed, she said, was “packaging on a very popular provision which enhanced the criminal penalties for dog abuse.”

Justices also raised questions about the ballot question wording that directs spending to education and transportation. Because the state constitution prohibits ballot questions from making “specific appropriations,” the question says revenue from the measure for schools and transportation “shall be expended, subject to appropriation, only for these purposes.”

Cook and Juliana Rice, the lawyer representing Attorney General Maura Healey and Secretary of State William Galvin who was also defending the ballot question, said that wording leaves the ultimate power to appropriate money generated by the surcharge in the hands of the Legislature. But the two attorneys agreed, under questioning from the justices, that language requiring the money be used “only” for those two purposes also means the Legislature’s only choice, if the measure were allowed on the ballot and approved by voters, would be to appropriate the money for those two uses or not spend it at all.

The most sympathy for the arguments by Cook and Rice that the ballot question contains related elements came from Chief Justice Ralph Gants.

“Why is that not a single question?” he asked Rice. “Do you want tax increase to be devoted to one of two purposes?”

She agreed with his framing. “As long as a coherent public policy is presented that [voters] can evaluate and understand, they have to decide on the whole, which do they prefer, a yes or no vote,” said Rice. She said past court rulings have found that ballot questions can contain elements that could pull voters in opposite directions. “It’s up to the voter to weigh those competing impulses,” she said.

The 4 percent surcharge on high earners would generate approximately $1.9 billion from 19,500 individuals, according to the Department of Revenue.

Among those filling the gallery for the closely watched case were Lew Finfer, co-chair of the Raise Up Massachusetts coalition backing the measure, and Christopher Anderson of the Massachusetts High Tech Council and Dan O’Connell of the Massachusetts Competitiveness Partnership, two of the business groups filing the SJC challenge.

Also watching the arguments were Gov. Charlie Baker’s chief counsel, Lon Povich, and Rep. Jay Kaufman, the House revenue committee chairman, who has been a leading backer of the tax in the Legislature.

Only six of the seven justices heard the arguments. Justice Barbara Lenk was absent.

Meet the Author

Michael Jonas

Executive Editor, CommonWealth

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

The court is expected to issue a ruling within a few months. A footnote to the court brief filed by Healey and Galvin says that in order to meet printing deadlines for the voter information guide published by his office, Galvin “respectfully requests that this Court issue an order resolving this case by July 1.”