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

The Massachusetts Supreme Judicial Court Faults a Popular Initiative that Would Have Created a New Form of Employment Relationship, Despite NELF’s Defense of It

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

The Attorney General 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 businesses are regulated in G. L. c. 159A1/2; basically, they are businesses like Uber and Lyft.  The former work in the same way, except that they deliver things, not people; essentially, they provide messenger services.  The legal status of such drivers has been a point of contention in the Commonwealth.

Using the popular initiative procedures of the Massachusetts Constitution, petitioners proposed to enact laws that would recognize such drivers as independent contractors.  The new laws would also require certain minimum forms of compensation and benefits, somewhat as an employee must receive. In essence, the petitions aimed to create a third category of worker.

Initiative petitions may deal with more than a single subject.  However, if they do so, all the subjects must be related to each other. The Attorney General is charged with the constitutional task of ensuring that this is the case. In this case, the AG’s certifications of the petitions were challenged on the grounds that the numerous proposed changes to the law dealt with unrelated subjects.

In its amicus brief defending the petitions, NELF criticized the plaintiffs for their mistaken belief that the petitions merely sought to enshrine in statutes a traditional, common law independent contractor status for the drivers.  Rather, NELF explained, the petitions would put before voters a new form of employment relationship hitherto unknown in Massachusetts law, one possessing its own distinctive legal features and adapted to a specific new technology-based industry.  For this reason, the petitioners defined this novel legal status in the only way they could, i.e., through a lengthy series of legal restrictions, rights, benefits, obligations, and the like.  In other words, they set out for voters an integrated scheme of legal changes.

Next, NELF examined the plaintiffs’ belief that the test for the relatedness of an initiative’s subjects requires that they must be not only related but must also be mutually dependent on one another.  Tracing the development of the Court’s tests for relatedness, NELF focused on the source of the plaintiffs’ putative test, Anderson v. Attorney General, 479 Mass. 780 (2018); through careful textual analysis NELF showed how badly the plaintiffs misread the case.

Finally, expanding on its initial discussion, NELF repeated that the plaintiffs entertained a far too constricted view of what mix and scope of subjects an initiative may deal with.  The Court has repeatedly recognized that petitioners have the discretion to choose the scope of their own proposals, i.e., how extensively or thoroughly they develop the proposed changes of law.  NELF argued that the petitioners here plainly intended to deal exhaustively with the new employment relationship they proposed.  The choice of such an enlarged scope was theirs to make, as the Court has recognized was true in earlier cases in which it found a “detailed plan” or “integrated scheme” acceptable in an initiative petition.

On June 15, 2022, the Court issued its decision.  Accepting the argument that the initiative may permissibly set out a detailed scheme of laws, it nonetheless faulted a few specific portions of the proposed changes for being unclear and not sufficiently related to the main purpose of the proposal.  The Court therefore ordered that the question not appear on the ballot.


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