BOSTON--Frustrating the state's efforts to certify five ballot questions from the November election, an appeals court judge yesterday delayed his ruling on whether to uphold a restraining order blocking enactment of the state referenda results.

"My instinct is to say we do have before us a serious constitutional challenge," Appeals Court Associate Justice Christopher J. Armstrong said after listening to both sides. Declining to lift the temporary restraining order immediately, Armstrong said he will issue his decision today.

The two attorneys representing four plaintiffs suing the state charged Secretary of State Michael J. Connolly with violating the state constitution by not printing summaries of the nine referenda in voting booths.

No voting booth in the state carried any summaries of the ballot questions. Instead, Connolly provided separate paper summaries at polling sites.

Among the five disputed referenda is Question 9, which would repeal rent control effective January 1, 1995.

Chapter 129, a law passed by the state legislature in August, permitted Connolly, who administered the referendum, to provide the paper summaries, rather than printing them on the ballots, as Article 48 of the state constitution requires.

Ruth A. Bourquin, one of two attorneys representing the plaintiffs, said the conduct of the referenda was unconstitutional. But Assistant Attorney General Peter Sacks argued that in approving Chapter 129, the state redefined a "ballot" to include separate paper summaries.

Citing a case in 1936 in which justices threw out an election with nearly identical circumstances, Suffolk County Superior Court Judge Hiller B. Zobel '53 Tuesday granted a 10-day temporary restraining order preventing Connolly from delivering the five referenda to the Governor's Council for certification.

A certification is the first step in the enactment of state referenda.

Attorney General L. Scott Harshbarger '64 appealed Zobel's ruling Wednesday.

In a statement to the court, Sacks argued that the plaintiffs failed to show "imminent irreparable harm" in seeking emergency relief from the Superior Court ruling.

Along with the rent control referendum, the other affected questions are Question 3, a change in the funding structure of Mass. Student PIRG; Question 4, a term-limits measure; Question 5, an easing of "blue laws," and Question 8, which would raise gasoline-tax spending on highways.

Of the referenda, Question 5--which would permit stores to open Sunday mornings--would be the first to take effect. Retailers have already begun preparations to extend Sunday hours starting December 11.

"[Question 5] permits them to open," Sacks responded in his argument against the need for a restraining order. "It does not require [employees] to work, it allows them to."

Blue-collar workers, including the United Food and Commercial Workers Union, are largely opposed to Question 5.

As for Question 9, Sacks pointed to the State House votes this week on three home-rule petitions from Cambridge, Boston and Brookline--the three communities with rent control. The House of Representatives passed all three petitions Tuesday, and the Senate is expected to vote on them tomorrow.

"The wisdom of pre-empting legislative action is another factor," Sacks told the court.

The assistant attorney general also said Bourquin and Burton A. Nadler, the other attorney, had failed to show that they could successfully challenge the constitutionality of the vote.

Therefore, Sacks said, the Superior Court "abused its discretion" in issuing the order.

Defining a Ballot

Sacks argued that the definition of "ballot" has changed with the development of new voting technologies.

"On a voting machine there is no real 'ballot' in the sense of a piece of paper on which voters mark their choices," Sacks told Armstrong yesterday.

Sacks said the introduction of voting machines in the early 1940s prompted a 1941 act that defined "ballot" to include the strip of paper above the levers in a voting booth.

"Printed material presented to the voter during the voting process was deemed part of the 'ballot,' even if the voter did not mark his or her choices on that printed material," Harshbarger wrote in a 22-page memo accompanying the state's appeal.

Bourquin strongly disagreed.

She said the 1941 case only allowed for two separate votes: one for referenda, one for public officials. "If you can't fit these summaries on the voting machine, then have a separate ballot," she said.

Bourquin said the constitution must be strictly interpreted. "Those are not merely advisory or directory requirements," she told Armstrong. "They are mandatory and must be complied with."

Bourquin, a Cambridge resident, said that certification of the questions would pose an immediate threat to state voters.

"Right now, people throughout the Commonwealth are getting notices their rents will be doubled, tripled or quadrupled," she said. "They're going to have to make decisions about how much rent they're going to pay, where they're going to live, how their children are going to go to school."

She said the temporary restraining order is a needed measure before the constitutionality of the referenda is decided once and for all.

"There is not other preliminary relief that has any possibility of being effective," she told the court.

But Nadler attempted to distance the suit from politics. "This is a case between the voters and the secretary of the Commonwealth," he said.

The plaintiffs--led by Carol R. Tobias, a Dorchester resident--are seeking a new election to decide the questions. Their lawyers have also filed 46 affidavits demonstrating irregularities where voters did not receive the approved summaries at their voting sites.

In a telephone interview Wednesday, Tobias said she was given an editorial from the Boston Herald when she voted.

Ultimately, the plaintiffs are seeking invalidation of the five referenda. "We want the questions to go on the ballot in the form that the constitution provides," Bourquin said.

Armstrong said he would only rule on whether to nullify Zobel's restraining order, not on whether the state law permitting paper summaries is constitutional.

But he recommended that the charges of irregularities be separated from the constitutional challenge.

The justice said it is the job of the Superior Court, which granted the original restraining order, to decide the constitutionality question. However, the issue can also be referred directly to the Supreme Judicial Court (SJC), he said.

About the only thing both sides agree on is that the SJC will almost certainly hear the case. "The case is heading for the SJC one way or another," Sacks said in an interview.

Reactions to the delay were mixed.

"People knew exactly what they were doing," said Jon B. Hurst, president of the Retailers Association of Massachusetts. "We are in the most critical time of the retail year."

"Millions of dollars in lost revenue that cannot be recovered" will result from the halt on Question 5's enactment, Hurst told reporters.

"Never has the electorate in Massachusetts gone to the polls and been so well-informed and well-educated," Connolly said. "There were fewer blanks on the ballot questions than there had been at any time in the past."

"To thwart the will of the people on this issue will be a mistake," the secretary of state added. He insisted that the voter information guides sent to state voters, and the paper summaries, sufficiently informed people at the polls.

"We had over 2.2 million voters who went to vote who knew what they were doing," Connolly said. As for the irregularities, he said only an "incredibly inconsequential number" of voters had not received the correct summaries.

But Nadler said the issue hinges around justice. "If it's only one voter who's deprived of that right [of information], that's not appropriate," he told reporters.

"Our fate was on the line on a ballot question that had no description," agreed Matthew Henzy of the Massachusetts Tenants Organization. "We feel some people voted yes not knowing the harm it would do to the people."

The issue may even extend further than this year's state referenda.

Connolly noted that punch-card machines, which are used in some polling precincts, have had physically separate paper summaries for state referenda since 1986.

"If the court were to invalidate the five questions, they could go all the way back to 1986 and invalidate every election since that time," Connolly said