Ruling on milllionaire tax right one constitutionally

AS A PLAINTIFF in the lawsuit Anderson v. Attorney General, I applaud the court’s decision, although I don’t consider myself or the Massachusetts Taxpayers Foundation, the organization that I represent, the winner.  The real winner is our democracy.

Despite all the rhetoric, the underlying public policy question about whether the Commonwealth should introduce a marginal tax on income over a million dollars and dedicate those funds to transportation and education was not what this case was about.  It was about whether our government would preserve carefully crafted constitutional tenets regarding the citizen ballot initiative process.

Massachusetts has an indirect ballot initiative process.  When created through a Constitutional Convention in 1918, restrictions were imposed on the process to safeguard individual liberties and balance the rights of citizens with the power vested in the Legislature.  Among those matters excluded from the initiative process are: measures related to religion or religious institutions; appointment and removal of judges or overturning of judicial decisions; specific appropriations; the initiative process itself; and propositions that infringe on the declaration of rights  – the fundamental right to acquire, possess, and protect property being among them.

The Constitution was later amended to require that petitions contain only subjects which are related or which are mutually dependent. As the court held, this change was adopted to avoid “packaging proposed laws in a way that would confuse the voter or otherwise be misleading.”   The question for the Supreme Judicial Court to decide was whether a petition to impose a graduated income tax and give preferential treatment in state spending to two priorities – education and transportation – violated this related matter clause.   And the court found that it did, the right decision in my opinion. The three aspects of the petition, each of which is a substantive issue in its own right, did not present a unified statement of public policy that the voter could accept or reject as a whole.  For example, as Justice Frank Gaziano wrote on behalf of the court, “This [sic] would leave a voter who favored a graduated income tax but disfavored earmarking any funds for a specific purpose in the untenable position of choosing which issue to support and which must be disregarded.”  Had the court found the petition constitutional, it would have broadly interpreted the related matter clause, thus opening the door for additional petitions that packaged disparate policies to maximize the chance of passage.

The decision was independently reached thanks to the robust system of judicial appointment in Massachusetts by which judges are nominated by a Judicial Nominating Committee, appointed by the governor, and vetted by the Governor’s Council.  This system ensures that judges are eminently qualified and insulated from public sentiment, enabling them to decide cases solely on legal grounds.  In the Anderson case, the majority opinion was supported by appointees of both Republicans and Democrats and the same was true for the dissent. This is a fact worth celebrating and in marked contrast to states in which judges are elected, run along party lines, and are not as free to make non-partisan decisions.

The Massachusetts’ constitution is the oldest, continually operating constitution in the world, the model for the United States constitution and the envy of nations because it embodies rights not provided by many other governing doctrines.  As a Commonwealth, we should defend it and safeguard against any infractions. Voters should avoid circumventing it for political ends.  In the face of widespread public support for the petition, the Supreme Judicial Court is to be applauded for its legally sound decision. While the tough work of finding alternative resources to fix the state’s aging infrastructure within the confines of the Constitution remains, let’s pause to appreciate the court’s decision to preserve our constitutional process.

Eileen McAnneny is the president of the Massachusetts Taxpayers Foundation.