Clark v. Att'y Gen.

234 N.E.3d 953

Stephen CLARK & others¹

v.ATTORNEY GENERAL & another.²

SJC-13560

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 2024

Decided June 13, 2024

Initiative. Constitutional Law, Initiative petition. Attorney General. Tips. Minimum Wage.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 7, 2024.

The case was reported by Kafker, J.

Edmund P. Daley (Elissa Flynn-Poppey also present), Boston, for the plaintiffs.

Phoebe Fischer-Groban, Assistant Attorney General, for the defendants.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Wolohojian, JJ.

KAFKER, J.

The plaintiffs, a group of Massachusetts registered voters, challenge the Attorney General’s certification of Initiative Petition 23-12 (petition or initiative) proposing "a Law Requiring the Full Minimum Wage for Tipped Workers with Tips on Top." The plaintiffs contend that the petition violates the requirement under art. 48 of the Amendments to the Massachusetts Constitution that initiative petitions contain only related or mutually dependent subjects.

We conclude that the petition, which would require that employers pay the full minimum wage to tipped employees and would permit tip pooling among both tipped and nontipped employees, forms a "unified statement of public policy on which the voters can fairly vote ‘yes’ or ‘no.’ " Weiner v. Attorney Gen., 484 Mass. 687, 695, 144 N.E.3d 886 (2020). Accordingly, we affirm the Attorney General’s certification of the petition as in proper form to be submitted to voters.

1. Background. In 2023, an initiative petition signed by at least ten registered Massachusetts voters was filed with the Attorney General. The petition proposes a law, titled "An Act to Require the Full Minimum Wage for Tipped Workers with Tips on Top." The Attorney General designated the petition as Initiative Petition 23-12.

Under current State law, the minimum wage for most workers is set at fifteen dollars per hour. See G. L. c. 151, § 1. However, a separate law permits employers to pay their tipped employees an hourly wage of $6.75. See G. L. c. 151, § 7, third par. The employer can then use any customer tips to cover the remaining $8.25 per hour owed to the employee to reach fifteen dollars. Id. Often referred to as a "tip credit," the statute allows employers to, in effect, subsidize an employee’s minimum wage with customer tips. Any tips above the minimum wage that a tipped employee receives may increase his or her pay above the minimum wage. Employers must make up any shortfall if the amount of tips received plus the cash wage of $6.75 is below fifteen dollars per hour. Thus, tipped employees are guaranteed the statutory minimum wage of fifteen dollars per hour, but not all their tips are "on top of’ that minimum wage. A separate provision limits the distribution of customer tips to • only "wait staff employees," "service employees," and "service bartenders."³ See G. L. c. 149, § 152A (c). The law prohibits the pooling and distribution of tips to employees other than those in the three defined employee categories. Federal law also prohibits the distribution of tips to "managers and supervisors."⁴ 29 C.F.R. § 531.52(b)(2).

The result of the current legal scheme is that many service workers in tipped industries are sorted into two separate compensation structures. Tipped employees can be paid $6.75 per hour, supplemented by tips. Nontipped employees are paid the full statutory minimum wage by their employer but cannot share in any customer tips that tipped employees receive. This compensation structure is common in particular in the restaurant industry, where employees can roughly be divided into "front-of-house" or "back-of-house" workers. "Front-of-house" employees -- e.g., waiters, hosts, bussers, etc. -- have direct contact with customers, whereas "back-of-house" employees -- e.g., cooks, kitchen staff, dish washers, etc. -- do not usually interact with or serve customers. See Betancourt, Hunt, Kwong, & Lopez, Building a Better Plate: Promoting Workplace Equity and Worker Satisfaction in the Los Angeles County Restaurant Industry 5 (2023) (student report, University of California, Los Angeles). Reflecting the division between customer-facing and noncustomer-facing roles, front-of-house staff typically receive tips but are paid lower hourly wages, whereas back-of-house staff receive higher (at least minimum) hourly wages but are usually not tipped. Id. at 21.

The petition proposes a law that would change this compensation structure. First, the proposed law amends G. L. c. 151, § 7, to increase gradually the hourly wage employers must pay tipped employees up to the full statutory minimum wage. Starting January 1, 2025, the required wage would be sixty-four percent of the statutory minimum wage and increase by nine percent increments each year until reaching the full statutory minimum wage on January 1, 2029. Second, the proposed law amends G. L. c. 149, § 152A, to allow employers, if they so choose, to pool and distribute tips to all employees, not just "wait staff employees," "service employees," and "service bartenders," provided the employer pays all employees the full statutory minimum wage.⁵ In sum, all employees would be guaranteed the full statutory minimum wage, and tipped employees are guaranteed that any tips they receive are always on top of the full statutory minimum wage. By permitting tip pooling among tipped and nontipped employees, the proposed law also allows employers to distribute tips among all employees, including back-of-house employees who generally do not receive customer tips.

In September 2023, the Attorney General certified the petition as compliant with the requirements of art. 48 and issued a summary of the petition as required under art. 48, The Initiative, II, § 3, as amended by art. 74 of the Amendments. By January 2024, the proponents of the petition had timely gathered and filed sufficient signatures to require the Secretary of the Commonwealth to transmit the petition to the Legislature, which the Secretary then did.

In February 2024, the plaintiffs commenced this action in the county court, claiming that the Attorney General’s certification of the petition was in error because the petition did not, as required by art. 48, contain only related or mutually dependent subjects. On the joint motion of the parties and a statement of agreed facts, the single justice reserved and reported the case to the full court.

[1] 2. Discussion. Before a petition can be presented to the Legislature and then put before voters, the Attorney General must certify that it meets the requirements of art. 48. See El Koussa v. Attorney Gen., 489 Mass. 823, 827, 188 N.E.3d 510 (2022), citing art. 48, The Initiative, II, § 3, as amended by art. 74. We review the Attorney General’s decision to certify an initiative petition de novo, keeping in mind "the firmly established principle that art. 48 is to be construed to support the people’s prerogative to initiate and adopt laws." Colpack v. Attorney Gen., 489 Mass. 810, 814, 188 N.E.3d 501 (2022), quoting Oberlies v. Attorney Gen., 479 Mass. 823, 829, 99 N.E.3d 763 (2018).

[2] a. Related subjects requirement. Article 48 requires that a law proposed by an initiative petition "contain[ ] only subjects … which are related or which are mutually dependent." Ait. 48, The Initiative, II, § 3, as amended by art. 74. The relatedness requirement, as we have previously explained, is carefully designed.⁶ It allows voters to "express [their] will apart from the process of representative democracy," but it also recognizes that voters, unlike legislators, cannot "modify, amend, or negotiate the sections of a law proposed by popular initiative." Carney v. Attorney Gen., 447 Mass. 218, 230, 850 N.E.2d 521 (2006), S.C., 451 Mass. 803, 890 N.E.2d 121 (2008). Voters casting a ballot on an initiative petition "cannot ‘sever the unobjectionable from the objectionable’ and must vote to approve or reject an initiative petition in its entirety." Anderson v. Attorney Gen., 479 Mass. 780, 786, 99 N.E.3d 309 (2018), quoting Carney, supra. Therefore, the related subjects requirement ensures that "voters are not placed ‘in the untenable position of casting a single vote on two or more dissimilar subjects.’ " El Koussa, 489 Mass. at 827, 188 N.E.3d 510, quoting Weiner, 484 Mass. at 691, 144 N.E.3d 886.

[3–5] To determine whether the subjects of an initiative petition satisfy the relatedness requirement, we ask whether "one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane." Weiner, 484 Mass. at 691, 144 N.E.3d 886, quoting Hensley v. Attorney Gen., 474 Mass. 651, 657, 53 N.E.3d 639 (2016). For there to be a common purpose, there must be more than an abstract connection. See Gray v. Attorney Gen., 474 Mass. 638, 648, 52 N.E.3d 1065 (2016). More particularly, "[r]elatedness cannot be defined so broadly that it allows the inclusion in a single petition of two or more subjects that have only a marginal relationship to one another," but neither can it be construed "too strictly," as doing so would "risk limiting initiative petitions to a single subject, a requirement rejected by the constitutional convention that approved art. 48." Weiner, supra, quoting Abdow v. Attorney Gen., 468 Mass. 478, 499, 11 N.E.3d 574 (2014).

[6] "Accordingly, in order to balance these concerns, in addition to considering whether the subjects of an initiative share a common purpose, we have examined two more specific questions." Colpack, 489 Mass. at 815, 188 N.E.3d 501. We first ask whether "the similarities of an initiative’s provisions dominate what each segment provides separately so that the petition is sufficiently coherent to be voted on ‘yes’ or ‘no’ by the voters." El Koussa, 489 Mass. at 828, 188 N.E.3d 510, quoting Weiner, 484 Mass. at 691, 144 N.E.3d 886. Second, we consider "whether the proposed...