Koussa et al. v. Attorney General and Secretary of the Commonwealth, MA Supreme Judicial Court, No. 13237

The Attorney General has certified two initiative petitions seeking to place on the ballot questions addressing the legal status of drivers working for delivery network companies and transportation network companies.  The latter companies are regulated in G. L. c. 159A1/2; basically, they are businesses like Uber and Lyft.  The latter are companies that work in the same way except that they deliver things, not people; essentially, they provide messenger services.

The legal status of such drivers is a point of ongoing contention in the Commonwealth.  Notably, the AG has a pending lawsuit against Uber and Lyft on this question.  See Civil Action No. 20-1519 (Superior Court for Suffolk County).  She alleges that the companies “misclassif[y] . . . their drivers as independent contractors [and thereby] deprive drivers of many basic rights and benefits that employees in Massachusetts are entitled to receive.”

Using the popular initiative procedures instituted in the Massachusetts Constitution, petitioners have proposed to change Massachusetts law in order to recognize the drivers of transportation and delivery network companies as independent contractors.  To that end, a series of additions would be made to Massachusetts statutes, including changes providing drivers with guarantees of certain minimum forms of compensation and benefits set according to formulas fashioned for this industry.  In essence, the petitions would create a third category of worker who is an independent contractor but with some of the benefits of being an employee.

Initiatives are permitted to deal with more than a single subject.  However, if they do so, all the subjects must be related to each other in a way meaningful enough that the voters would view their vote as affirming or rejecting a single, unified statement of public policy.  The Attorney General is charged with the constitutional task of ensuring that the text of any proposed initiative “contains only subjects . . . which are related or which are mutually dependent.”

In this case, the AG’s certifications of the petitions have been challenged on the grounds that the proposed changes to the law in fact do deal with unrelated subjects.  Identifying three different relationships found in the petitions, the plaintiffs allege that: (i.) “being an independent contractor is not mutually dependent on receiving [the proposed] guaranteed minimum compensation or minimum benefits” (focus on company-driver relationship); (ii.) changes that would affect the companies’ tort liability to the public for the actions of their drivers involve the relationship between the companies and the public and are not mutually dependent on the company-driver relationship; and (iii.) changes that would allow drivers to participate in the entitlements of the Massachusetts Paid Family and Medical Leave Act “regulate the relationship between the Commonwealth and its citizens” and are not mutually dependent on the company-driver relationship.

The AG will defend her certifications against the challenge, as that office has against numerous past challenges to initiative petitions.  In addition, ten signers of the petitions have intervener status, which enables them to file a brief defending the petitions.

Over the decades, in deciding these kinds of cases, the SJC has employed a host catch phrases and formulations, which it ritually repeats in most cases.  Recently, it has tried to connect them to one another in various ways (not always doing do in a consistent fashion), in order create a more orderly, coherent, methodical approach to analyzing the relatedness issue.

In 2018 NELF briefed the issue of relatedness in Anderson v. Attorney General, 479 Mass. 780 (2018), which dealt with an initiative petition proposing a so-called millionaire’s tax amendment to the state Constitution.  We argued that the AG’s certification of that petition was wrong because the surtax envisioned by the petition was unrelated to public education and transportation, which were the proposed recipients of the new revenues.  Hence, we said, three unrelated public policies were involved: taxation, education, and transportation.  A majority of the justices agreed.

Here, we are focused on the plaintiffs’ enunciation of the judicial standard for determining the relatedness of subjects, and we have some concerns about whether the plaintiffs have adequately stated the proper principles on the basis of which relatedness should be analyzed in this case.  Our amicus brief, attached, lays out the arguments in support of our position to provide a helpful framework for decision by the Supreme Judicial Court.


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