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SJC-13361

ROBERT HERRMANN & others1 vs. ATTORNEY GENERAL & another2

(and a consolidated case3).

Suffolk. February 6, 2023. - May 16, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Initiative. Constitutional Law, Initiative petition, Political 

contributions. Elections, Political contributions.

Political Committee. Moot Question. Attorney General.

Civil actions commenced in the Supreme Judicial Court for 

the county of Suffolk on October 24, 2022.

After consolidation, the cases were reported by Wendlandt, 

J.

Lawrence Lessig (Thomas O. Bean also present) for David C. 

Baxter & others.

Ronald A. Fein (Courtney M. Hostetler & John C. Bonifaz

also present) for Robert Herrmann & others.

Anne Sterman, Assistant Attorney General (Adam Hornstine, 

Assistant Attorney General, also present) for the Attorney 

General & another.

1 Lars Mikkelsen, Joshua Redstone, and Graeme Sephton.

2 Secretary of the Commonwealth.

3 David C. Baxter & others vs. Attorney General & another.
2

Thaddeus A. Heuer, for Fiscal Alliance Foundation, amicus 

curiae, submitted a brief.

KAFKER, J. The plaintiffs seek review of the Attorney 

General's decision not to certify their initiative petition.4 

The plaintiffs' proposed law would have instituted limits on

contributions to independent expenditure political action 

committees, more commonly known as "Super PACs." The Attorney 

General determined that the proposed law conflicted with the 

right of free speech protected by the Massachusetts Declaration 

of Rights and that it therefore addressed an excluded subject

under art. 48 of the Amendments to the Massachusetts 

Constitution, which sets out the procedures for the popular 

initiative. See art. 48, The Initiative, II, § 2. In so 

ruling, the Attorney General determined that United States

Supreme Court precedent precludes this type of limitation on 

campaign contributions under the First Amendment to the United 

States Constitution and that the State constitutional right of 

free speech must extend at least as far as the cognate right 

under the Federal Constitution. See 1A Auto, Inc. v. Director 

4 The single justice consolidated two complaints from two 

separate groups of plaintiffs. Each plaintiff was one of the 

ten initial sponsors of the initiative petition. As explained 

infra, the two plaintiff groups seek identical relief but under 

different theories for why the proposed law is constitutional.
3

of the Office of Campaign & Political Fin., 480 Mass. 423, 440 

(2018), cert. denied, 139 S. Ct. 2613 (2019).

After the plaintiffs brought these appeals challenging the 

denial, the Attorney General offered to agree to a stipulated 

order with the initiative proponents that would have allowed

them to gather the initial round of voter signatures required by 

art. 48 during their appeals, despite the Attorney General's 

conclusion that the initiative addressed an excluded subject. 

See Abdow v. Attorney Gen., 468 Mass. 478, 485 (2014). The 

proponents, however, refused to agree to such an order. The 

Attorney General now contends that the appeals are moot, as the 

proponents did not gather the first round of signatures by the 

deadline required by art. 48.

We conclude that the cases are moot. When the petition was 

filed in June 2022, the proponents initiated a streamlined 

governmental process involving numerous State actors, including 

the Attorney General, the Secretary of the Commonwealth, and the 

General Court. The petitioners' filing with the Attorney 

General was timely, as it was submitted "not later" than August 

2022, as required by art. 48, The Initiative, II, § 3, as 

amended by art. 74 of the Amendments. By filing at that

particular time, they established the particular assembling of 

the General Court, and thus the legislative session, into which 

they would have needed to introduce the petition: the 2023 
4

session. It was not then within the control of the petitioners

to stop and restart the process, as they contend. They were 

required to meet the subsequent deadlines. They did not, 

however, meet the December 2022 deadline to file additional 

signatures with the Secretary of the Commonwealth. Thus, the

cases are now moot.

Because the cases are moot and raise constitutional 

questions, including Federal constitutional questions, we 

decline to consider the merits. Lockhart v. Attorney Gen., 390 

Mass. 780, 782 (1984). As a general matter, we avoid resolving

moot questions, unless they are important, likely to recur, and 

otherwise avoid review. See Lynn v. Murrell, 489 Mass. 579, 583 

(2022); Lockhart, supra at 783-784. Whether this issue is 

likely to recur is a matter of speculation. At this point, only 

the ten initial proponents have indicated their support for the 

initiative. They gathered no additional signatures. Thus, it 

is far from clear whether the proponents would, in a future 

year, collect sufficient signatures to make the question a live 

issue. The question, albeit important, is also one of 

constitutional law. We are particularly reluctant to decide 

constitutional questions in moot cases. See Murrell, supra at 

584, quoting Lockhart, supra at 784. Finally, the issue 

presented raises Federal as well as State constitutional issues,

requiring us to review and decide Federal constitutional
5

questions best left to the Federal judiciary. For all these 

reasons, we decline to address the merits in these moot cases.5

Background. According to campaign finance law, political 

action committees (PACs) that make expenditures that are 

uncoordinated with political candidates are known as 

"independent expenditure PACs" or "Super PACs." See G. L. 

c. 55, § 18A (d). In June 2022, proponents of a law that would 

limit individual contributions to independent expenditure PACs

submitted an initiative petition to the Attorney General. The 

Attorney General declined to certify the petition in September 

2022, as she determined that it was inconsistent with the right 

of free speech protected by the Massachusetts Declaration of 

Rights and thus addressed an excluded subject under art. 48.

She relied on Federal cases concluding that the First Amendment 

precluded such limitations. In October 2022, the ten 

proponents, split between two groups of plaintiffs, filed 

complaints in the county court challenging the Attorney 

General's decision not to certify the petition. The two groups

seek identical relief but have different theories for why the 

proposed law is constitutional.

The Attorney General indicated to the plaintiffs that they 

would need to submit additional signatures by December 2022, or 

5 We acknowledge the amicus brief submitted by the Fiscal 

Alliance Foundation.
6

their appeals would become moot. To that end, she offered to 

move for an order allowing the proponents to collect signatures 

in advance of a judicial ruling on her denial, but the 

proponents declined.6 Thus, they have not yet demonstrated 

support from voters beyond the ten initial signers of the 

petition. They contend that, because they intend to have their 

petition considered by the Legislature in January 2024, not 

January 2023, they have until December 2023 to collect 

additional signatures.

The plaintiffs seek judgments under G. L. c. 231A, § 1, 

declaring that they are not required to submit additional 

signatures until December 2023 and that the Attorney General 

erred in declining to certify the petition because the proposed 

initiative does not violate the First Amendment or art. 16 of 

the Massachusetts Declaration of Rights. In November 2022, the 

defendants moved to dismiss, arguing that because the plaintiffs

admitted that they would not gather the required signatures 

before December, their claims were (or would soon become) moot. 

A single justice granted the parties' joint motion to 

consolidate the cases and reserved and reported the cases to the 

6 Such orders are consistent with the long-standing practice 

of the Attorney General and this court. See, e.g., Abdow, 468 

Mass. at 485; Paisner v. Attorney Gen., 390 Mass. 593, 595-596 

(1983).
7

full court. In the meantime, the proponents did not submit the 

required signatures by December 2022.

Discussion. 1. Article 48 time frame. The first issue to 

be decided is the time frame for compliance with the initiative

petition process. Article 48 contains a series of interrelated 

and tightly defined time periods for different governmental 

actors to perform their respective functions regarding the 

proposed law, while simultaneously imposing on proponents 

requirements to gather an increasing number of signatures if 

they want these governmental actors -- and ultimately the voters 

-- to consider the initiative. See Bogertman v. Attorney Gen., 

474 Mass. 607, 610-611 (2016) (describing process).

At issue are three specific deadlines. First, ten 

qualified voters may submit an initiative petition "to the 

[Attorney General] not later than the first Wednesday of the 

August before the assembling of the [G]eneral [C]ourt into which 

it is to be introduced." Art. 48, The Initiative, II, § 3, as 

amended by art. 74. This deadline provides the Attorney General 

time to determine whether the initiative petition is valid, 

including whether it contains excluded matters, before the 

signature gathering process commences. Second, "[a]ll 

initiative petitions . . . shall be filed with the [S]ecretary 

of the [C]ommonwealth not earlier than the first Wednesday of 

the September before the assembling of the [G]eneral [C]ourt 
8

into which they are to be introduced." Id. After this filing, 

the proponents may begin gathering signatures from supporters. 

Then, third, "the remainder of the required signatures shall be 

filed not later than the first Wednesday of the following 

December." Id. By this point, the petition must have voter 

signatures totaling at least "three per cent of the entire vote 

cast for [G]overnor at the preceding biennial [S]tate election." 

Art. 48, The Initiative, V, § 1, as amended by art. 81 of the 

Amendments.

After these three initial steps, the initiative is

transmitted to the Legislature in the following year. Art. 48, 

The Initiative, II, § 4. The Legislature then has until May to 

take action itself:

"If the [G]eneral [C]ourt fails to enact such law before 

the first Wednesday of May, and if such petition is 

completed by filing with the [S]ecretary of the 

[C]ommonwealth, not earlier than the first Wednesday of the 

following June nor later than the first Wednesday of the 

following July, a number of signatures of qualified voters 

equal in number to not less than one half of one per cent 

of the entire vote cast for [G]overnor at the preceding 

biennial [S]tate election, in addition to those signing 

such initiative petition, which signatures must have been 

obtained after the first Wednesday of May aforesaid, then 

the [S]ecretary of the [C]ommonwealth shall submit such 

proposed law to the people at the next [S]tate election."

Art. 48, The Initiative, V, § 1, as amended by art. 81. The 

Legislature may also pass a "legislative substitute" to appear 

on the ballot at the same time as the initiative, but may do so 
9

after the May deadline. See Opinion of the Justices, 370 Mass. 

869, 877 (1976).

The Attorney General interprets these provisions to create

a continuous process of filing and signature gathering during a 

concentrated time period. As the petition in these cases was 

filed with the Attorney General in June 2022, it must be filed

no earlier than September 2022 with the Secretary of the 

Commonwealth. Then, the signatures necessary for legislative 

action must be filed no later than December 2022, with follow-up 

signatures for placement on the ballot by July 2023, even though 

the election would not take place until November 2024.

By contrast, the proponents argue that the two-year 

election cycle provides them more choice and flexibility. They 

contend that because they filed with the Attorney General by 

August 2022, either they can follow the process outlined above, 

or they can start the process and then choose to delay a year, 

either for strategic reasons or, as in these cases, to pursue an 

appeal from the Attorney General's denial of certification. In 

this alternate timeline, if we dispose of these appeals in their 

favor, they would file with the Secretary of the Commonwealth by

September 2023, gather the necessary signatures for legislative 

action by December 2023, and finally (if the Legislature does 

not pass the law by May 2024) gather follow-up signatures by

July 2024 for the November election. The proponents contend
10

that this more relaxed calendar would allow buffer time for 

judicial review of the Attorney General's certification 

decision, so that they would not have to collect signatures 

under a cloud of legal uncertainty.7

"In interpreting any statutory or constitutional provision, 

including [art. 48], the starting point of our analysis is its 

plain language . . . ." Schulman v. Attorney Gen., 447 Mass. 

189, 191 (2006). With regard to the mandatory deadlines in art. 

48, we have also said: "It is not possible to treat these words 

of the amendment as precatory or merely directory. They are an 

explicit command from the people." Opinion of the Justices, 237 

Mass. 589, 590-591 (1921). The key dispute between the parties 

is how to interpret the event to which the three interconnected

deadlines are keyed: the "assembling of the [G]eneral [C]ourt 

into which [the petition] is to be introduced," that is, the 

annual session in which the Legislature will consider the 

initiative.8 Art. 48, The Initiative, II, § 3, as amended by 

art. 74. Under the Attorney General's interpretation, this 

7 This rationale -- that "a contest over the validity of a 

proposed initiative has an adverse effect on efforts to obtain 

the necessary signatures" -- was not found persuasive in 

Lockhart, 390 Mass. at 782.

8 See art. 64, § 2, of the Amendments, as amended by art. 82

of the Amendments ("The general court shall assemble every year 

on the first Wednesday in January"). Thus, the "assembling of 

the [G]eneral [C]ourt" refers to an annual legislative session.
11

session must be the one immediately following the date that she 

receives the filing. The proponents contend instead that they 

can choose the assembling in which they intend the Legislature 

to consider their petition after they file with the Attorney 

General, as long as they meet the August deadline in an evennumbered year (thus allowing two possible opportunities for 

legislative consideration before the next election).

We conclude that the Attorney General's interpretation is 

correct. A close reading of the text establishes that art. 48 

creates a continuous, time-delimited process that occurs from 

the initial filing of the petition no later than the first 

Wednesday in August to the filing of the final round of 

signatures by no later than the first Wednesday in the following 

July. See Opinion of the Justices, 370 Mass. at 875 ("the 

deadline . . . was fixed to permit sufficient time for the 

taking of the additional steps to have the initiative measure 

appear on the ballot at the next State election"). Fixed time 

points in August, September, and December of the same year, and 

not different years, are identified, as well as the following 

May and July. The timing provisions are tightly 

interconnected, identifying a series of actions involving 

different governmental actors that must occur within a 

relatively short period of time. Within that concentrated 

period of time, the petition is evaluated for legality, 
12

sufficient signatures are required to demonstrate significant 

support for the initiative to merit further consideration, and 

the Legislature is provided with the ability to weigh in with a 

substitute proposal. The process thereby provides for a timely 

and efficient governmental review for proposals that demonstrate 

sufficient public support. Stale or outdated interpretations of 

law by the Attorney General and unnecessary decisions by this 

court are thereby avoided. A governmental process that 

petitioners can stop and start without demonstrating sufficient 

public support is inconsistent with this structure. Cf. Unger

v. Rosenblum, 362 Or. 210, 225 (2017) ("the tightly crafted, 

interconnected series of deadlines" in State initiative process 

suggests that proponents may not delay for "an indefinite amount 

of time").

Previously, we relied on the interconnected nature of the 

art. 48 timeline to determine the deadline for the Governor's

approval or veto of an initiative passed by the Legislature. 

Opinion of the Justices, 370 Mass. at 874. We summarized the 

timing requirements, and then explained that

"in order to give effect to these provisions, which set 

forth a timetable for taking the steps necessary to have a 

proposed law placed on the ballot, we conclude that all 

constitutional steps for passage of a law, including the 

Governor's approbation or legislative action after veto of 

the measure, must occur before the first Wednesday of May."
13

Id. at 875. Article 48 thus creates a strict calendar that must 

be adhered to for a proposed law to make it to the ballot.

Once the initial petition is filed, the clock begins to 

tick. By filing in August of a particular year, initiative 

proponents are identifying the particular "assembling of the 

[G]eneral [C]ourt into which [the petition] is to be introduced" 

as the next one that will occur following the filing. If the 

Attorney General denies their petition, they cannot then delay 

by claiming that they now intend to submit a petition into the

"assembling" that will occur a year later.

We recognize that when art. 48 was originally passed and 

the deadlines set out above were established, the Commonwealth 

had annual elections, making the deadlines straightforward and 

simpler to interpret. See Opinion of the Justices, 291 Mass. 

578, 585 (1935) (art. 48 "was framed, approved and voted to be 

submitted to the people by the Constitutional Convention in 1917 

at a time when there were annual elections for the choice of 

members of the General Court. Its words doubtless were adapted 

to that situation"). Today, this process occurs in the context 

of biennial elections. Although the interpretation of art. 48 

is less obvious in this context, the article, read as a whole,

creates a continuous, concentrated governmental process that 

commences with the initial filing. Regardless of which year the 

petition is filed, the governmental process continues unabated. 
14

What results is that proponents who file in an even-numbered 

year have a full year to campaign after they submit their final 

set of signatures, while proponents who file in an odd-numbered 

year (most of them, according to the Attorney General) go 

straight to the election. The petitioners thereby control how 

long they have to campaign but not other aspects of the 

governmental process.

2. Constitutional questions. Because the proponents did 

not submit any signatures to the Secretary of the Commonwealth

by December 2022, these cases are moot. See Lockhart, 390 Mass. 

782. Although this court may decide important moot questions 

that are likely to recur and otherwise avoid review, we are 

particularly reluctant to resolve moot questions of 

constitutional law, especially ones raising Federal as well as 

State constitutional law. As these moot cases raise such 

constitutional questions, we decline to address the merits.

Despite mootness, "where the proceedings raise an issue 

that is of public importance, worthy of decision by an appellate 

court, and is capable of repetition yet evading review, a court 

may in its discretion choose to decide the case." Harmon v. 

Commissioner of Correction, 487 Mass. 470, 471-472 (2021). See 

Murrell, 489 Mass. at 583. Here, however, it is far from clear

that this issue is likely to recur. The proponents have not 

demonstrated that they have the requisite support to satisfy the 
15

different signature gathering obligations set out in art. 48

necessary to make this an issue requiring judicial resolution. 

So far, they have only indicated that they themselves support 

the petition. Thus, "it is not clear that the issues will arise 

again in the same form or in any form." Lockhart, 390 Mass. at 

784.

We have also emphasized that we are particularly reluctant 

to decide moot constitutional questions. As this court 

explained in Lockhart, another case involving the Attorney 

General's declining to certify a petition and the failure of the 

petitioners to gather the necessary number of signatures, we 

have a "long tradition of not unnecessarily deciding 

constitutional questions." Lockhart, 390 Mass. at 784. See

also Massachusetts Gen. Hosp. v. C.R., 484 Mass. 472, 488 (2020) 

("We do not . . . decide constitutional questions unnecessarily 

or prematurely"). When the case is moot, we exercise "'judicial 

restraint,' especially regarding purported constitutional 

claims." Lockhart, supra, quoting Blake v. Massachusetts Parole 

Bd., 369 Mass. 701, 707 (1976).

It is even more important for us to exercise such restraint 

when the moot question that we are asked to decide is one based 

on Federal constitutional law, as it is here. See Breese v. 

Smith, 501 P.2d 159, 166 (Alaska 1972) ("avoidance of the 

federal thicket is the better course"); Portland v. Jacobsky, 
16

496 A.2d 646, 648 (Me. 1985) ("policy of judicial restraint 

impels us to forbear from ruling on federal constitutional 

questions"). While the question whether a proposed law bears on 

an excluded subject under art. 48 is by its terms a question of 

State constitutional law, see Associated Indus. of Mass. v. 

Attorney Gen., 418 Mass. 279, 284 (1994), in the instant cases, 

the question to be decided ultimately revolves around Federal 

constitutional law. This is because we cannot provide less 

protection under the Massachusetts Declaration of Rights for 

political contributions than that provided for such 

contributions under the First Amendment, and at least in regard 

to political contributions by corporations, we have stated: "We 

see no reason to conclude that art. 16 or 19 gives corporations 

greater rights of political participation than they enjoy under 

the First Amendment." 1A Auto, Inc., 480 Mass. at 440. 

Recognizing the significant protections found so far by the 

Federal courts for political contributions, the Attorney General 

therefore turned to Federal constitutional law and the Federal 

courts for guidance on what was precluded by the Federal 

Constitution and thus art. 48 as well. If we were to decide 

this now moot question, we would have to do the same, deciding

unnecessarily a question best left to the Federal judiciary. 
17

Exercising judicial restraint for the reasons explained supra, 

we decline to do so.9

Conclusion. Article 48 requires proponents to collect 

signatures in the months immediately following the proponents'

filing of an initiative petition with the Attorney General. 

Because the plaintiffs in the instant cases did not follow this 

timeline, these cases are moot. We also decline to exercise our 

discretion to resolve a moot issue, as this matter has not been 

demonstrated to be one of those rare issues that are likely to 

recur and yet avoid review. Harmon, 487 Mass. at 471-472. 

Finally and importantly, this court exercises judicial restraint 

and does not unnecessarily resolve State and Federal 

constitutional questions in a moot case. For all of the reasons 

stated supra, these cases are dismissed.

So ordered.

9 We also note that if, in the future, we are required to 

revisit whether limitations on contributions to independent 

expenditure PACs conflict with the Federal right to free speech, 

the United States Supreme Court itself may, by that time, have 

ruled on the exact issue presented.