MULLING A CHALLENGE to a tipped-wage initiative proposed for the November ballot, justices of the Supreme Judicial Court on Wednesday seemed skeptical of arguments that they should keep the measure away from voters.

The potential ballot initiative, which would require businesses to gradually raise the pay of tipped workers until it reaches $15 an hour while still allowing tipping on top of that wage, was the third ballot petition to come before the high court this week. Justices spent much of their Monday docket considering challenges to two sets of app-based driver questions. 

Under current law, employers must ensure that workers earn at least the state minimum wage of $15 an hour, allowing them to set the base rate as low as $6.75 an hour and make up the difference after tips are counted. Along with raising the base rate to $15 an hour over time, the proposed measure would also allow workers to pool tips and divvy them up among employees who do and don’t receive gratuity – waiters and cooks alike.

A coalition organizing in several states – One Fair Wage – is pushing the measure. Advocates say they are impatient with the Massachusetts Legislature’s lack of speed in retooling the state’s tipped wage system.

The Massachusetts Restaurant Association is backing the challenge against the measure, with director Stephen Clark one of the named plaintiffs in the case. Opponents claim that the law could lead to a decline in tips, but their legal challenge rests on the state’s “relatedness” test for ballot initiatives.

“The issue here is that although the petition advertises itself as a question about minimum wage, it’s really presenting two different issues on the menu for voters,” argued Ed Daley, an attorney for the challengers, before the SJC on Wednesday. “And that first issue, of course, is about minimum wage, but the second is about tip pooling.”

Including the tip pool provision is not reasonably related to the minimum wage raise, he said. Workers may like the concept of a higher wage but not support tip pooling, he said, making them “separate questions with separate purposes” for the purpose of the voting booth.

Justices quickly threw cold water on the suggestion, with Justice Scott Kafker telling Daley the challengers were “really swimming upstream here.”

“They’re really substantively interrelated,” Kafker said of the two provisions. “I understand you can tease them apart to a certain extent. You’ve got a restaurant operating, and the people dealing with the public are getting paid tips, and the people doing the dishes are not. The success of the restaurant is interdependent. It just seems to me these are awfully closely related.”

Justices Gabrielle Wolohojian and Dalila Wendlandt critically considered Daley’s claim that the measure’s title – which only refers to the wage component – was a vital signifier to voters that the ballot questions would only involve raising the wage. It may cause voter confusion, Daley said, though the justices suggested the language of the measure itself should be a factor in considering whether voters were confused.

“It’s not just voter confusion we’re focused on,” Kafker noted later in the hearing. “We want them to have a unified policy to vote on. We don’t want them to have to take a vote that’s internally inconsistent with each other.” Unlike a legislature, which is able to amend law, voters can only vote once, Kafker said. “We want to make sure that it’s a coherent vote.”

The state is arguing that Attorney General Andrea Campbell properly certified the question for the ballot. Assistant Attorney General Phoebe Fischer-Groban said the wage increase and tip-pooling are “two closely connected changes to how workers in tipped industries are paid for their work.”

“This proposed law doesn’t present a situation where an important provision is either ambiguous or difficult to understand or buried somewhere in a really long law,” she said. “Here, this is easier for voters to understand and to vote yes or no – ‘Yes, I want all employees in tipped businesses to be paid the state minimum wage, plus have the chance to get a share of tips,’ or ‘No, I don’t want that.’”

Daley further argued that the question doesn’t pass constitutional muster because the pool-tipping provision could exist on its own, independent of changes to the wage rates. 

Wendlandt expressed skepticism that relatedness and mutual dependence were separate considerations, as opposed to parts of one test, asking, “Where is that mutual dependence test separate and apart from the relatedness test articulated in our jurisprudence?”

Daley cited a footnote in a 2018 decision tossing a measure that would impose a tax surcharge on high earners, which was passed as the Fair Share Amendment four years later. The initial ballot question improperly mixed the taxation change and the policy provisions limiting expenditures to education and transportation, the court ruled at the time. 

Justice Kimberly Budd, now Chief Justice, wrote a dissenting opinion at the time asserting that there would be no way to split the subjects into independent questions and retain the meaning of the measure.

Wednesday’s arguments concluded the court’s ballot measure docket, and they now turn to considering the merits and issuing opinions later this spring. Meanwhile, the ballot campaigns hustle to collect their remaining signatures and opposition is ramping up for controversial pitches to remove the MCAS requirements for high school graduation and allow consumption of psychedelics.