Galvin v. Town Clerk of Winchester

• Decision Date: 04 December 1975
• Citation: 369 Mass. 175,338 N.E.2d 834
• Parties: Margaret D. GALVIN et al. v. TOWN CLERK OF WINCHESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 834

338 N.E.2d 834

369 Mass. 175

Margaret D. GALVIN et al.

v. TOWN CLERK OF WINCHESTER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 1975.

Decided Dec. 4, 1975.

Lane McGovern, Boston, for Stephen R. Parkhurst and others, interveners.

Robert S. Frank, Jr., pro se.

Douglas A. Randall, Town Counsel, Quincy, for the Town Clerk of Winchester.

David E. Neitlich, Boston, for Margaret D. Galvin and others.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

BRAUCHER, Justice.

The voters of the town of Winchester adopted a home rule charter on March 3, 1975, and on March 27, 1975, the plaintiffs sought to initiate, pursuant to the new charter, a recall election for four members of the school committee of the town. We hold that the 'affidavits' seeking recall, neither notarized nor signed under penalties of perjury, did not comply with the charter, and that, in any event, no recall election may be held under the charter until after the annual town election for 1976. We therefore direct that this action in the nature of mandamus against the town clerk be dismissed.

We summarize the findings, rulings and judgment of the judge in the Superior Court. The charter contained, for the first time in the history of the town, a procedure for the recall of certain town officers (§ 7--13): 'Two hundred or more voters may file with the town clerk an affidavit containing the name of the officer whose recall is sought and a statement of the grounds upon which the petition is based. At least twenty-five names of voters shall be from each of the eight districts into which the town is divided. The town clerk shall thereupon deliver to said voters petition blanks demanding such recall . . ..' On March 27, 1975, the plaintiff Galvin presented four documents entitled 'affidavit' to the town clerk. Each contained at least 215 signatures, including at least twenty-five from each of the six voting precincts into which the town was then divided. None contained a jurat or a provision that the paper was signed under the penalties of perjury.

The new charter provides that it is fully effective on approval by the voters, except as otherwise provided. There is no exception as to the recall procedure, but there is a provision for division of the town into eight districts no later than November 15, 1975. 'The establishment of the eight districts' is to 'be effective for the purposes of the annual town election' in 1976. § 8--5(b), (c).

The town clerk received an opinion from the town counsel that the recall provisions were not effective, and refused to deliver petition blanks to the plaintiffs. The judge ruled that the recall provisions of the new charter were in effect and that the affidavits were proper, and judgment was entered commanding the town clerk to issue petition blanks to the plaintiffs. The town clerk and the four members of the school committee appealed. A single justice of the Appeals Court ordered expedited handling of the appeal, and we allowed an application for direct appellate review.

1. 'Affidavit.' 'An affidavit is a statement in writing sworn before an officer authorized to administer an oath.' Murphy, petitioner, 321 Mass. 206, 213, 72 N.E.2d 413, 417 (1947), and cases cited. Under G.L. c. 268, § 1A, as appearing in S...