DeCesare v. Board of Elections

• Decision Date: 05 June 1968
• Docket Number: No. 66-M,66-M
• Citation: 104 R.I. 136,242 A.2d 421
• Parties: Pasco DeCESARE et al. v. BOARD OF ELECTIONS et al. P.
• Court: Rhode Island Supreme Court

Page 421

242 A.2d 421

104 R.I. 136

Pasco DeCESARE et al. v. BOARD OF ELECTIONS et al.

No. 66-M.P.

Supreme Court of Rhode Island.

June 5, 1968.

[104 R.I. 149] Robert S. Ciresi, Town Sol, Michael A. Abatuno, Providence, for Thomas ryan.

William G. Gilroy, Providence, for members of District Committee.

Aram A. Arabian, John A. Notte, III, Providence, for appellants.

OPINION

POWERS, Justice.

The petitioner, John A. Notte, III, is one of 93 electors who qualified as candidates for election to the North Providence democratic town committee, which election was held at the party primary in North Providence on September 13, 1966. Also qualifying was Roland J. Godin who died August 13, exactly one month prior to the holding of the primary.

Pursuant to the provisions of G.L.1956, § 17-12-12, as amended by P.L.1958, chap. 18, sec. 1, now § 17-12-11, ¹ the then encumbent North Providence democratic town committee seasonably endorsed 60 of the 93 qualified candidates, this being the number to be elected. The candidate Godin was one of those endorsed, his death not occurring until after the time fixed for the filing of endorsements. The general assembly made provisions for such a contingency by enacting P.L.1958, chap. 18, sec. 1, now § 17-14-17, as amended. ² It authorizes the committee making the original endorsement to substitute any other qualified elector as an endorsed candidate in the event of a death as here occurred. However, in the instant case the chairman and secretary of the North Providence democratic town committee were advised by the secretary of state's office that there was insufficient time to print new ballots and the town committee took no action. Thus, at the primary, the name of the deceased candidate Godin appeared on the ballot in the column where the names of the 60 endorsed candidates were listed, while that of petitioner was listed among those unendorsed.

When the final tally of votes was completed on the day following the primary, the North Providence board of canvassers, hereinafter called the local board, ascertained that all 60 candidates listed as endorsed had a plurality over those candidates unendorsed. Numerically the name of Godin ranked 59th in the balloting and another endorsed candidate ranked 60th. The petitioner Notte led all unendorsed candidates and ranked 61st.

On that evening, namely September 14, 1966, the local board consulted the town solicitor on the question of whether petitioner was entitled to receive a certificate of election as having been one of the 60 candidates to receive a plurality within the intendment of P.L.1958, chap. 18, sec. 1, now § 17-15-29. ³ Presumably advised that petitioner had not been elected, the local board on September 15 issued certificates of election to the 59 candidates whose elections were not in question. That same day, petitioner hand-delivered to the chairman of the local board a demand that a certificate of election be delivered to him. Later the same day, he hand-delivered a copy of this demand to an official of the state board of elections, hereinafter called the state board.

Also on September 15, the clerk of the local board wrote to the chairman of the democratic town committee, informing him that a vacancy existed and should be filled. Acting on this information, the chairman on September 16 wrote to the successful candidates, related the information received from the local board's clerk, and gave notice of a meeting to be held September 22 for the purpose of filling the vacancy. This meeting was held and one Thomas Ryan was chosen by a quorum of the other 59 to fill the vacancy ⁴ reported by the clerk of the local board.

Meanwhile, petitioner, having received no response from the local board by September 21, on that day officially appealed to the state board for a review of the local board's inaction, pursuant to the provisions of P.L.1962, chap. 201, sec. 1, now § 17-7-5(d). ⁵ The state board held a hearing on petitioner's appeal and thereafter rendered a decision which held, in substance, that Roland J. Godin having died prior to the primary was not a person within the meaning of § 17-15-29, supra, and that as a consequence petitioner did qualify as the 60th candidate to be elected. Consistent with its decision the state board ordered the local board to issue a certificate of election to petitioner.

Thereafter, the members of the local board, acting in their official capacities together with the aforesaid Thomas Ryan, filed a complaint in the superior court seeking judicial review of the state board's decision pursuant to the provisions of now G.L.1956, § 42-35-15, enacted by P.L.1962, chap. 112, sec. 1, known and cited as the Administrative Procedures Act. ⁶ This act governs administrative remedies determinable by all state agencies not expressly exempted. The state board is a state agency not so exempted. When petitioner Notte filed his appeal with the state board, it became a 'contested case' as defined by § 42-35-1(b). ⁷

It was in recognition of this that the members of the local board and Ryan sought judicial review pursuant to § 42-35-15, supra. After a hearing in the superior court, held in accordance with the provisions of the Administrative Procedures Act, a justice of that court rendered a decision reversing the decision of the state board and ordering the local board to issue a certificate of election to Ryan. A judgment was accordingly entered.

Within seven days, as provided by and pursuant to P.L.1966, chap. 213, sec. 1, now § 42-35-16, as amended, petitioner applied to this court for a discretionary writ of certiorari. The writ issued and the records in the case were certified to this court for our examination.

After the case had been orally argued in this court, it became apparent from an examination of the record that there existed a serious question which the parties had neither orally argued nor briefed. This question was of such overriding importance as to be raised sua sponte by us and further argument was ordered on the question which was directed to the parties as follows:

'* * * whether the members of the board of canvassers, acting in their official capacity, and/or Thomas Ryan, purportedly elected to fill an alleged vacancy in the town committee by the remaining members who were committee members elect until organized pursuant to the applicable statute, are persons aggrieved in a contested case within the meaning of G.L.1956, § 42-35-15, as amended, so as to give their appeals standing in the superior court.'

At the further argument as thus ordered, no serious contention was made that the members of the local board were aggrieved persons within the meaning of § 42-35-15, supra, so as to give them standing in the superior court. Indeed, it is difficult to see how they could be in light of the question at issue. They have no legal interest in the outcome of the appeal taken by petitioner from their failure to issue him a certificate of election, having no duty to themselves or to the public to persuade the superior court that their view of petitioner's status was correct. Their position is analogous to that of a probate judge who, as respondent in a petition for mandamus, was held by this court to have no right of appeal as a person aggrieved by a judgment of the superior court out of which the writ issued. Bowles v. Dannin, 62 R.I. 36, 2 A.2d 892. ⁸

The case of the plaintiff Ryan, however, presents a different question. It is argued on his behalf that he is a person aggrieved within the intendment of § 42-35-15, supra, because on September 23, 1966, the local board issued a certificate of election to him on notice to it that at the September 22 meeting Ryan had been elected to fill the vancancy declared existent by the local board. Having been issued a certificate of election, they argue, he was entitled to judicial review of the state board's decision by reason of the provisions of § 42-35-15(c). It provides:

'The filing of the complaint does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.'

He invoked this provision by filing an affidavit in the superior court, which affidavit relates that he was elected by the remaining members of the town committee and by reason thereof was issued a certificate of election. On the strength of his complaint and accompanying affidavit, the superior court justice stayed the decision of the state board and admitted Ryan as a party in interest.

Whether he had standing to be heard in the superior court turns on the affirmative resolution of two questions. First: is § 42-35-15(c), supra, applicable to a person not privy to the contest upon which the state agency is passing? In this regard it is to be noted that at the time the state board acquired jurisdiction of petitioner's appeal from the local board, Ryan could claim not even a theoretical interest adverse to petitioner.

Because of the view we take of the second question, however, we leave the determination of said first question to a case in which it will be the ultimate issue. The remaining question may be briefly stated as follows: did the 59 candidates elected to the town committee at the September 13 primary constitute a legal entity of which it could be said that a vacancy therein existed within the meaning of § 17-12-12, supra?

Public Laws 1958, chap. 18, sec. 1, which in September 1966, was cited as § 17-12-9, as amended, provides that town and city political committees were to organize biennially in the month of October in every even year; and § 17-12-8 as enacted by P.L.1958, chap. 18, sec. 1, provides that such committees when organized shall hold office until their successors are elected, qualified and organized. See Martell v. Board of Canvassers & Registration, 86 R.I. 390, 135 A.2d 265, and Gallant v. LaFrance, 101 R.I. 299, 222 A.2d 567.

Although the cited cases are not exactly in...