SJC knocks millionaires tax off November ballot

Court rules provisions of question not sufficiently related

THE SUPREME JUDICIAL ruled that a proposal to raise taxes on high earners in Massachusetts cannot appear on the November ballot because it violates a constitutional provision requiring that all the elements of such a question be “related” or “mutually dependent.”

The eagerly-awaiting ruling is a huge blow to public sector unions and other liberal advocacy groups that pushed the so-called “millionaires tax” as a way to generate badly needed new revenue for schools and transportation projects.

Backers of the measure came together under the umbrella of an organization called Raise Up Massachusetts, which said the new levy was also a way to address growing inequality. The ballot question would have asked voters whether they approved of a new 4 percent surcharge on top of the state’s existing state income tax for all earnings over $1 million.

It was estimated that the levy would generate close to $2 billion a year in new state revenue.

The court ruling will reset debate on Beacon Hill over tax and spending issues, and may have ripple effects on ongoing negotiations over three other possible ballot questions.

The language of the millionaires tax question said the new revenue would be directed to education and transportation needs. But the justices, in a 5-2 ruling, said the question combined unrelated elements in way that runs afoul of the state constitution.

“We conclude that the initiative petition should not have been certified by the Attorney General as ‘in proper form for submission to the people,’” wrote the majority, “because, contrary to the certification, the petition does not contain only subjects ‘which are related or which are mutually dependent,’” as required by the Massachusetts Constitution.

The opinion was authored by Justice Frank Gaziano, who was joined by Justice David Lowy, Justice Elspeth Cypher, and Justice Scott Kafker. Justice Barbara Lenk authored a separate, concurring opinion. Chief Justice Ralph Gants and Justice Kimberly Budd offered a dissenting opinion, authored by Budd, arguing that the question should be allowed on the ballot.

Several business groups opposed to the tax filed the challenge with the SJC, led by the Massachusetts High Tech Council.

“Today, the Massachusetts Supreme Judicial Court affirmed the ongoing importance of the Constitution’s safeguards against citizens’ initiatives to amend the Constitution that combine multiple subjects that are unrelated,” the plaintiffs said in a statement.

The Massachusetts Taxpayers Foundation, one of five plaintiffs challenging the ballot question, hailed the ruling.

“Today is a great day for all Massachusetts taxpayers because the court has upheld the time-honored constitutional principle that limits the initiative process,” Eileen McAnneny, the group’s president, said in a statement. “By rejecting the notion that a small special interest group can usurp legislative power by including unrelated tax and spending provisions in the same ballot initiative, the court has preserved the state’s ability to make deliberative and fiscally sound choices.”

Raise Up Massachusetts expressed disappointment in the decision, and vowed to push ahead on a campaign to raise the state’s minimum wage and guarantee paid family leave to employees in the state.

“We are incredibly disappointed that a few wealthy corporate executives and their lobbyists brought this lawsuit that blocked the right of Massachusetts voters to amend our state’s constitution,” the coalition said in a statement. “It is stunning that these business groups would overturn the will of the more than 157,000 voters who signed petitions to qualify the Fair Share Amendment for the ballot, and of two overwhelming majorities in consecutive Constitutional Conventions.”

Proposals for a graduated income tax have been put on the statewide ballot five times – in 1962, 1968, 1972, 1976, and 1994 – and gone down to defeat each time.

The ballot question considered by the SJC differed from earlier efforts because it included language directing revenue generated by a new tax to specific areas of state spending. The court said that violated a constitutional requirement that an initiative petition “address only related or mutually dependent subjects.”

Justices signaled their doubts about the ballot question during oral arguments in the case in February. They peppered a lawyer for the groups backing the measure with questions that seemed to suggest skepticism over whether the question could properly appear on the ballot.

“Those seem to be three separate policy decisions,” Justice Scott Kafker said during the oral arguments of the idea of a tax on high-earners combined with identifying two areas of state spending that would be funded with proceeds from the levy.

“Typically we don’t view oral arguments as necessarily indicative of which way the court is leaning,” said Lawrence Friedman, a professor at New England Law Boston. “This is one of those rare instances where the discussion at oral arguments really foreshadowed how the court was thinking and how the decision would come down.”

The ruling immediately raised questions about whether the Legislature, which voted overwhelmingly in two successive sessions to allow the question to advance to ballot, would look increase taxes on its own.

House Speaker Robert DeLeo, speaking to reporters at the State House, said that “is something we have to look at, but it won’t be in this session.” The Legislature ends formal sessions for the year at the end of July.

“As we’re preparing for next year’s budget, we’re going to have discussions in terms of where we go next,” DeLeo said.

Asked if that could mean new taxes, he said, “I wouldn’t say that. I would say right now, as I would say at any time this time of year, everything and anything will be discussed.”

Senate President Harriette Chandler, who is set to hand the reins next month to Sen. Karen Spilka, signaled a clearer openness to new taxes.

“I am terribly disappointed in the SJC’s decision to block the Fair Share Amendment,” she said in a statement. “At a fundamental level, this decision impedes the fight for economic equity, as well as the investments we need to make improvements to our schools, our rails and our roads. As I have said since January, without this Fair Share Amendment, we will need to be creative and take a hard look at potential revenues from new sources to address the very real challenges we face as a Commonwealth.”

Spilka, currently the Senate’s Ways and Means Committee chairwoman, said in a statement she “believe[s] in Massachusetts’ bold vision of leadership, and that includes the notion that the wealthiest among us are able to contribute a little bit more to ensure a thriving Commonwealth for all of our residents.”

Gov. Charlie Baker signaled no interest in new taxes.

The administration “will continue to commit record investments in education and transportation, to build on the nearly half-billion dollar increase in public education and $8 billion investment in our rapid transit system over the next five years, all without raising taxes,” Lizzy Guyton, Baker‘s communications director, said in a statement.

The ruling came as lawmakers and representatives of various interest groups have been meeting to try to negotiate what participants have called a “grand bargain” that would settle legislatively three issues that may otherwise be heading to the ballot this fall. At issue are two union-backed initiatives, one to raise the minimum wage and another to guarantee employees paid medical and family leave, and a measure sponsored by the state retailers association to lower the state sales tax from 6.25 percent to 5 percent.

Prior to Monday’s ruling, support for the so-millionaires tax appeared to be strong, with 77 percent of Massachusetts voters saying they favored the idea in a WBUR poll last month.

Lew Finfer, director the Massachusetts Communities Action Network, one of the groups that is part of the Raise Up Massachusetts coalition, said Monday’s SJC ruling was devastating.

“I’ve done this kind of work for 48 years and I can’t think of a worse day in terms of something that could have helped hundreds of thousands of kids get a better education and improved our transportation system – and then it’s all gone,” he said.

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.

He said the business groups had every right to challenge the ballot measure in court, but he questioned their decision to do so.

“It seems disingenuous because those same groups always talk about how important an educated workforce is and how important a reliable transportation is,” said Finfer. “And here they had a chance to do something about it and decided protecting the salaries of millionaire executives was more important.”