NOW THERE’S A NAME for ballot questions that improperly combine different, unrelated elements — they’re called Frankensteins.
Business groups last year succeeded in blocking a ballot question proposing a millionaire’s tax by convincing the Supreme Judicial Court that the question tried to do too many unrelated things at once — hike taxes on the rich, apportion some of the money to transportation, and apportion the rest of the money to education.
Now the Massachusetts Package Stores Association is using the same argument to challenge a ballot question put forward by Cumberland Farms and approved by Attorney General Maura Healey. The proposed question would create a new beer and wine liquor license for food retailers, remove the statewide cap on how many licenses a company could hold, require retailers to verify every customer’s age, and provide additional funding to the Alcoholic Beverage Control Commission.
The package store association is calling it a “Frankenstein-like ballot initiative certain to create voter confusion,” according to a brief filed by a legal team including Robert Cordy, a former SJC justice himself.
Frankenstein, according to movies loosely based on Mary Shelley’s novel, was a hideous monster made up of parts of different cadavers brought to life by electricity. As Cordy sees it, the Cumberland Farms petition, like Frankenstein, is made up of bits and pieces of policies that fail the legal litmus test of being “related” or “mutually dependent.”
In their decision on the millionaire’s tax, the SJC concluded that “we are unable to discern a common purpose or unified public policy that the voters fairly could vote up or down as a whole.” Indeed, voters were faced with deciding whether they wanted a higher tax on the rich and whether the money should go to education and transportation. The court concluded those were three separate decisions that could not be combined into one ballot question.
With the Cumberland Farms proposal, there are again multiple policy decisions at play. But it’s conceivable they all stem in some fashion or another from the primary purpose of the question — the creation of a beer and wine license for food stores.
The package store association is trying to head the ballot question off in court to avoid the much higher cost of fighting it at the ballot box. In 2006, when supermarkets tried to expand their reach in wine sales, the package store owners fought them off but the war cost the two sides a total of $12 million. Since then, a number of other potential fights have been averted, but it’s unclear whether that will happen again.
Cumberland Farms has gathered signatures for its ballot question and seems poised to do battle. The convenience store chain, which operates 567 convenience stores in seven Northeastern states and Florida, was sold to EG Group of the United Kingdom in October.
Benjamin Weiner, the president of the package stores association whose family owns Sav-Mor Spirits, issued a statement saying the Cumberland Farms ballot question has turned the alcoholic beverages industry upside down. “This appeal is a Strength in Unity moment for all locally owned retailers of beer, wine and spirits against a retail Goliath from the UK that is trying to dupe voters into giving them unparalleled control of the Massachusetts marketplace,” the statement said. “One only needs to look at the unrestrained alcohol problems that are plaguing the UK to see where this will lead. The Cumberland Farms Initiative is an abuse of the initiative petition process that never should have gotten this far.”
Jon Hurst, the president of the Retailers Association of Massachusetts, told the Boston Business Journal there may be another way out of the situation. He raised the possibility the Legislature could deal with issues raised by the Cumberland Farms question as well as the operation of beer gardens next year.
“We may wait to see if there’s a ‘grand bargain’ to be had,” he said.