Dane v. Board of Registrars of Voters of Concord

• Decision Date: 05 January 1978
• Citation: 371 N.E.2d 1358,374 Mass. 152
• Parties: Henry J. DANE v. BOARD OF REGISTRARS OF VOTERS OF CONCORD et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1358

371 N.E.2d 1358

374 Mass. 152

Henry J. DANE v. BOARD OF REGISTRARS OF VOTERS OF CONCORD et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 7, 1977.

Decided Jan. 5, 1978.

Henry J. Dane pro se.

Anne Hoffman, Roxbury, for inmates of Mass. Correctional Inst. at Concord.

John S. Grace, Boston, for Secretary of the Com., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER and ABRAMS, JJ.

QUIRICO, Justice.

The plaintiff Henry J. Dane, a registered voter in the town of Concord (town), by this action seeks declaratory and injunctive relief against the defendant board of registrars of voters of Concord (registrars). The plaintiff questions the validity of the action of the registrars in accepting affidavits of registration and registering to vote approximately 300 individual defendants (inmates) who were imprisoned at the Massachusetts Correctional Institution at Concord (Concord). The complaint alleges that, because the inmates did not reside voluntarily at Concord, they lacked the intent necessary to establish legal domicil in the town, and therefore were not entitled to register as voters in the town. The plaintiff initially sought before a single justice of this court a declaration as to the rights of the parties, as well as preliminary and permanent injunctions ordering the registrars to strike from the list of qualified voters of the town, and enjoin from further inclusion, those inmates who, at hearings conducted under G.L. c. 51, §§ 48 and 49, introduced no evidence of domicil other than the facts of incarceration within the town and "unsubstantiated declaration(s) of intent" that they considered the town to be their home.

The single justice transferred the case to the Superior Court where a motion to dismiss was denied and the inmates were certified as a class under Mass.R.Civ.P. 23, 365 Mass. 767 (1974). A hearing was held on the plaintiff's motion for summary judgment, and a different judge ruled that mere presence through incarceration at Concord and the completion of the affidavits of registration did not require the registrars to add the names of the inmates to the town's current annual register of voters. The registrars, however, were not ordered to strike the inmates' names from the list of voters. ²

The inmates' appeal and the plaintiff's cross-appeal were entered in the Appeals Court. On application, we granted direct appellate review. G.L. c. 211A, § 10(A). There is before us the memorandum of decision and order for judgment on the plaintiff's motion for summary judgment, together with affidavits, exhibits, and a transcript of a hearing held March 19, 1976, before the registrars.

We summarize the facts: On February 1, 1976, the registrars registered the inmates as voters in the town. Each of the inmates executed an affidavit of registration as prescribed by G.L. c. 51, § 36, listing Concord as his address, and stating that he was a resident of the town and considered such residence to be his home. The registrars did not inquire further of the inmates as to their residence, and added the names of the inmates to the list of voters pursuant to G.L. c. 51, § 46. The failure to inquire further as to residence was apparently due to the registrars' reliance on a memorandum dated January 23, 1976, from the deputy State secretary and director of elections to all city and town clerks and election commissioners concerning the registration and voting of mental patients and inmates of correctional institutions. The memorandum contained, in part, the following advice: "(P)risoners may register to vote in the community in which the prison is located if they swear on the affidavit of registration that they consider that residence to be their home." ³

On February 20, 1976, the plaintiff filed a "complaint" with the registrars, in accordance with G.L. c. 51, § 48, alleging that the inmates had been illegally or incorrectly registered because they lacked the intent necessary to establish legal domicil in the town.

The registrars held a hearing on the complaint pursuant to G.L. c. 51, § 49, on March 19, 1976. Each of the nineteen inmates present pursuant to summons ⁴ was examined and each, on advice of his counsel, refused to answer questions concerning domicil except to identify himself and affirm that he had truthfully completed the affidavit of registration.

On March 23, 1976, the registrars met for the purpose of determining the action to be taken on the plaintiff's complaint. On a motion to strike the examined inmates' names from the list of voters, the registrars voted two in favor and two against. The motion thus failed to carry, and the nineteen inmates' names, as well as those of the other defendant inmates, remained on the town's voting list.

In his memorandum of decision, following a summary of the uncontroverted facts as they appeared in the pleadings, affidavits, and exhibits, the judge found jurisdiction pursuant to G.L. c. 56, § 59, which, he held, gave the court power to enforce the provisions of G.L. c. 51. He considered the question before him to be whether the evidence before the registrars was sufficient as matter of law to warrant their decision, and held the applicable standard of review to be one of "substantial evidence."

The judge cited the previous decisions of this court in Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 575-576, 321 N.E.2d 656 (1974), and the Appeals Court in Coulombre v. Registrars of Voters of Worcester, 3 Mass.App.Ct. ---, --- ^a, 326 N.E.2d 360 (1975), and ruled that a determination of residency for voting purposes requires a voter to have his domicil in the city or town in which he seeks to register. Quoting our words in Hershkoff at 576-577, 321 N.E.2d at 663, the judge ruled that "(a) person's domicil is usually the place where he has his home . . . the place where . . . (he) dwells and which is the center of his domestic, social and civil life" (quoting from Restatement (Second) of Conflict of Laws § 12 (1971)) and that "(a) change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least."

Turning to the issue of the defendant inmates' present domicil, the judge relied on the Coulombre decision wherein the Appeals Court said that the fact of involuntary presence created a presumption that a person did not gain a new domicil, and that to rebut the presumption required more than the unsubstantiated declarations of an inmate. COULOMBRE, SUPRA AT --- , 326 N.E.2D 360.^B The judge found that the registrars had not recognized such a presumption, but rather had relied solely on the inmates' verification of residence on their voter registration affidavits. Thus, he ruled that the registrars did not properly determine whether the facts before them were sufficient to satisfy the actual presence and intent requirements for establishing domicil.

Although the judge's order was to the effect that the mere presence through incarceration at Concord along with the completion of an affidavit did not require the registrars to add the name of an applicant to the current annual register of voters, he did not order that the names of the inmates be removed from the town's voting list. It is because of this failure to remove the names from the list that the plaintiff appeals.

The appeal by the inmates is based on alleged error of the judge in denying their motion to dismiss on the claimed grounds of the plaintiff's lack of standing and the Superior Court's lack of jurisdiction. The inmates further argue that the affidavits of registration established on their face that the inmates were qualified to vote as residents of the town, and that their names were properly placed and retained on voting lists. We consider these issues below.

1. Scope of Review.

As stated, supra, the Superior Court judge determined that the question before him was whether the evidence before the registrars was sufficient as matter of law to warrant their decision. The judge stated: "The applicable standard is 'substantial evidence,' or 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' " See Hershkoff, supra at 574, 321 N.E.2d at 661 (1974), quoting from Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92, 242 N.E.2d 868 (1968). We think it also necessary to review the basis of the decision of the registrars as to the legal standards we think they applied. Inasmuch as the votes of two registrars not to strike the inmates' names from the list of voters of the town may have been based on an incorrect interpretation of the election laws regarding the acceptance of affidavits at the time of registration, we are not bound by the judge's ultimate conclusions.

2. Standing.

The plaintiff claims that as a registered voter of the town he has standing to challenge in the Superior Court the registration of the inmates by the registrars and to seek declaratory and injunctive relief. We agree. Although G.L. c. 51, § 48 (as amended by St.1962, c. 437, § 23), does not specifically provide for judicial action, it allows a complaint to be brought before the registrars by a registered voter if he has reason to believe that a person has been illegally or incorrectly registered. Surely the legislative intent was not to create a mechanism whereby a registered voter may challenge before the registrars a registration he believes to be illegal, and yet be barred from seeking judicial review of a final decision of the registrars adverse to his complaint. Such a scheme would close the avenue for review of registrars' decisions only as to the aggrieved voter, but would leave unobstructed judicial review of decisions where complaint has been brought by the person refused registration. E. g., Hershkoff, supra. We thus deem § 48 to confirm implicitly the registered voter's right and...