The New England Legal Foundation (NELF) Files an “Amicus” Brief: Opposing the State Attorney General’s Certification Of the So-Called “Millionaire’s Tax” 2022 Referendum Ballot Question

BOSTON – The New England Legal Foundation (NELF – has filed an amicus curiae friend-of-the-court brief before the Massachusetts Supreme Judicial Court (SJC) opposing the state Attorney General’s certification of a 2022 ballot question that would, If passed by voters, eliminate the state flat income tax in favor of a graduated income tax.  Proposals to create a graduated income tax have been rejected by voters five times in the past.

In the SJC case, Anderson, et al, v. the Attorney General and Secretary of the Commonwealth, NELF’s brief, written by Staff Attorney John Pagliaro, opposes the AG’s certification because, the brief argues, it inaccurately promises that new revenue will go to education and transportation.  According to Pagliaro, “The truth, as the AG has admitted elsewhere, is that the Legislature may use the new revenues to replace present funding, with no net gain for education or transportation.”

“The misleading ‘Millionaire’s Tax’ that the question proposes is really a graduated income tax,” NELF President Dan Winslow said. The voters have repeatedly rejected a graduated income tax for Massachusetts, so it’s wrong to try to fool voters to support the proposal this time by an inaccurate ballot summary.”

Pagliaro wrote in the new brief, “NELF believes that the summary [certified by the AG for the ballot] … is likely to mislead a substantial proportion of the voters and therefore does not comply with Article 48 [of the Massachusetts Constitution].”  He further argued that the question first appeared in the text of a proposed 2015 Constitutional Amendment “and is word for word the same” and that a graduated income tax has “already been rejected by voters five times decisively. … It is the worst kept secret of this case,” he continued, “that the text proposed in the 2015 initiative was drafted with an eye to finding a way to overcome the historical resistance of voters to abandoning the flat tax”

As certified by the AG, dollars raised by the new tax would be earmarked for transportation and education.  But, the NELF brief argues, “A ‘new’ dollar raised by the tax does not guarantee that there will be budgetary authorization to spend the ‘new’ dollar as an additional dollar on top of all the old dollars.  Proponents sometimes exploit this ambiguity when they use such hopeful expressions as ‘new revenue’ and ‘new investments;’ when they do so, it may be far from clear what exactly the speaker is committing himself to.  That, of course, is the point of the ambiguity.”

While the new brief opposes AG Maura Healey’s certification of this ballot question, NELF has been supportive of Healy’s decisions when lawful; NELF filed an SJC amicus brief less than two weeks ago supporting Healy’s certification of two initiative petitions which would create a new status for workers in the “gig economy” and give them specific new employee benefits.###

A pdf copy of the brief is available on request.

About John Pagliaro

John Pagliaro is a Staff Attorney at New England Legal Foundation and has twenty-five years of experience in civil litigation. Before joining NELF in 2008, John had been an associate at Nixon Peabody and at several Boston boutique law firms. As a trial lawyer, he represented corporations and individuals in all phases of civil litigation and dealt with a wide range of legal disputes, including breach of contract, business torts, securities law, trade secrets, noncompetes, close corporation law, construction law, and consumer class actions. At NELF John has filed amicus briefs in the courts of Massachusetts, New Hampshire, Rhode Island, and Connecticut. His federal practice includes the U.S. Supreme Court and the U.S. Courts of Appeal for the First, Second, and District of Columbia Circuits. His briefs have dealt with such issues as Fifth Amendment takings of private property, federal preemption of state law, federal and state employment law, and insurance law. He frequently focuses on statutory interpretation, especially the significance of statutory silence and the Chevron deference courts grant to agency interpretations of federal statutes. John served in US. Army military intelligence and later received his B.A. from the University of Wisconsin-Madison, an A.M. and Ph.D. from Harvard University, where he was a lecturer in the History and Literature Program for three years, and his J.D. from Boston College Law School. 

About the New England Legal Foundation (NELF)

For nearly 50 years, NELF has been the leading voice of the New England business community and entrepreneurs in advocating for the foundational values of free enterprise, property rights, good and limited government, and inclusive growth in the New England region.  The Foundation has an in-house staff of lawyers who file amicus briefs to help shape judicial decisions to favor these foundational values.  As a non-partisan, non-profit 501c3 organization, membership is open to all law firms, corporate legal departments, and individuals who support NELF’s mission.

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