Hershkoff v. Board of Registrars of Voters of Worcester

• Citation: 366 Mass. 570,321 N.E.2d 656
• Parties: Lanny J. HERSHKOFF v. BOARD OF REGISTRARS OF VOTERS OF WORCESTER (and two companion cases 1 ).
• Decision Date: 31 December 1974
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 656

321 N.E.2d 656

366 Mass. 570

Lanny J. HERSHKOFF v. BOARD OF REGISTRARS OF VOTERS OF WORCESTER (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 19, 1974.

Decided Dec. 31, 1974.

Henry P. Grady, City Sol., Worcester, for Bd. of Registrars of Voters of Worcester.

James E. Wallace, Worcester (Mel L. Greenberg and James H. Barnhill, Worcester, with him) for plaintiff.

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

BRAUCHER, Justice.

During October, 1971, and February, 1972, three students at colleges in Worcester sought to register to vote in Worcester. After hearings in March, 1972, the board of registrars of voters (board) denied the applications on the grounds that the domicils of two of the students were New York and that the domicil of the third was Pennsylvania. On petitions for writs of certiorari, a judge of the Superior Court ordered that the decisions be quashed and that the board be ordered to cause the students to be registered as voters in Worcester. We direct modification of the orders to provide for registration under the procedures currently in effect, and affirm the orders as so modified.

The board attached to its answers an 'attested copy of transcript of record' of its meetings held on March 3 and 13, 1972. The so called 'transcript' consists primarily of a purported summary of the sworn testimony of each student. The summary of each student's testimony is followed by a statement of a motion and a unanimous decision by the board. Thus Hershkoff's testimony is followed by a statement of a motion that 'on the evidence presented by Mr. Hershkoff,' he was domiciled in New York and 'therefore should be refused registration in Worcester,' and a statement that the board 'unanimously agreed that his domicile was New York and that he be notified in writing, of the Board's decision.'

The judge allowed motions to extend the board's returns by admitting in evidence, over the board's objections, stenographic transcripts of the testimony of the three students before the board. Over the students' objections, he excluded other extrinsic evidence. Since the students assert that the board's 'transcript' is not an accurate reflection of what actually occurred, we summarize the stenographic transcript rather than the board's 'transcript.'

Hershkoff. Hershkoff at one time lived in Nassau County, New York. His family was 'split up, basically.' He leased an apartment in New York city in his own name. His father lived there on some occasions; his father worked on Long Island and came to visit during the weekend. Hershkoff left the country for six months, using a passport issued in New York, and registered for the draft in Bombay, India. After returning he was on vacation in California. In the fall of 1970 he registered as a student at Clark University in Worcester, using the address of the New York apartment. At the time of the board hearing in March, 1972, he was twenty years old and was still a student at Clark University, living in a dormitory there. His father was living in Nassau County, but Hershkoff had never lived at his father's current home and for more than two years had not been living in New York city. His tuition was being paid in major part by the university; his father was aiding in his support and claimed him as an exemption on his Federal income tax return. He had never registered tovote, and had no driver's license, and no longer had a bank account, but had had a bank account in Worcester. He did not regard New York as his home; he considered Worcester his home, was active in a political campaign there, and hoped to run for public office there. He had no present intention of leaving Worcester; he planned on staying there at least one more year, probably longer.

Steinberg. Steinberg at one time lived in Pennsylvania with his parents. Beginning in September, 1969, he attended Clark University in Worcester. In December, 1970, he registered to vote in Norristown, Pennsylvania; he never voted there but did not request that his name be removed from the voting list. He registered for the draft through the Worcester office. At the time of the board hearing in March, 1972, he was twenty years old, was in his third college year, and was living in an apartment in Worcester. He had a Pennsylvania driver's license, but he had an automobile registered in Massachusetts. He had a bank account in Worcester and he, not his father, paid for his automobile insurance. His parents supplied part of the funds for his education; he did not know whether his father claimed an exemption for him on Federal income tax returns. He considered Worcester, not Pennsylvania, his home, and intended to run for office in Worcester that year. He had no intention to return to his parents' home or to go to graduate school. His plans were to stay in Worcester, but his intentions as to employment on graduation had not crystallized.

Brontoli. Brontoli was born in New York city, and had lived with his family in various parts of the world. His parents were living overseas and had no permanent residence in the United States; they voted only in national elections, through arrangements made by his father's employer, a corporation with headquarters in New York city. He came to Worcester in September, 1969, to attend Worcester Polytechnic Institute. During vacations he visited his grandparents in Hunter, New York. At the time of the board hearing in March, 1972, he was twenty years old and lived in an apartment in Worcester. He paid for rent and food with money received from R.O.T.C. He owned a car bought in New York in the summer and insured and registered there; he also had a New York driver's license. After he was refused voter registration in Worcester, he tried to register in Hunter, New York, but could not because he had never lived there and did not intend to live there. His intention was to stay in Worcester until graduation in June, 1973; he would then go where the army sent him for three or four years of military service. He considered Worcester his permanent residence, but did not have a present intention to remain there indefinitely.

After a hearing on September 14, 1972, the judge entered orders for judgment on September 29, 1972, that the board's decisions be quashed and that the board be ordered to cause the three students to be registered as voters. The board requested reports of material facts, and appealed. G.L. c. 213, § 1D, as amended by St.1957, c. 155 (repealed effective July 1, 1974, by St.1973, c. 1114, § 60). On May 29, 1973, the judge filed reports of material facts based on 'the respondents' return and all of the evidence submitted at the hearing, including reasonable inferences drawn therefrom.' The cases were consolidated for the purposes of appeal, and were transferred to this court pursuant to G.L. c. 211A, § 10(A).

1. Review procedure. Contrary to the board's contention, there was no error in extending the board's return to include the stenographic transcript. G.L. c. 249, § 4, as amended through St.1963, c. 661, § 1. G.L. c. 213, § 1A, as amended through St.1962, c. 722, § 3. Rule 119 of the Superior Court (1954). See Southwick Birds & Animals, Inc. v. County Commrs. of Worcester County, 360 Mass. 133, 134, fn. 1, 273 N.E.2d 581 (1971). The question before the judge was whether the evidence before the board was as matter of law sufficient to warrant its decisions. The applicable standard is 'substantial evidence,' or 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92, 242 N.E.2d 868 (1968). Bunte v. Mayor of Boston, --- Mass. ---, ---, ^a 278 N.E.2d 709 (1972).

Under G.L. c. 213, § 1D, as amended by St.1957, c. 155, all questions of fact, law, and discretion which were open before the trial judge are open to us on appeal. Ouellette v. Building Inspector of Quincy,--- Mass. ---, ---, ^b 285 N.E.2d 423 (1972). The appeal is also subject to G.L. c. 214, §§ 19, 22--28 (repealed effective July 1, 1974, by St.1973, c. 1114, § 62), relative to appeals in equity suits. Thus the practice in equity, including reports of evidence and of material facts, is made applicable. Feener Business Schs. Inc. v. Board of Collegiate Authy., 329 Mass. 170, 171--172, 107 N.E.2d 434 (1952). But where the issue is the sufficiency of the evidence before the board, findings of the judge which do not bear on that issue must be disregarded. Cf. Loranger v. Martha's Vineyard Regional High Sch. Dist. Sch. Comm. 338 Mass. 450, 453, 155 N.E.2d 791 (1959). Accordingly, we rest our decision on the reported evidence before the board rather than on the findings of the judge.

The students apparently sought to introduce evidence in the Superior Court, consisting of testimony of a member of the board and one of its clerical assistants, to show that the board had policies and practices which discriminated against 'non-native students.' The record before us shows that the judge excluded extrinsic evidence other than the stenographic transcript of testimony before the board, but it does not include an offer of proof or other statements of the nature of the evidence. An affidavit of one of the students, executed after the board hearing and appended as an exhibit to his petition, asserts that when he attempted to register to vote a clerk stated, 'We do not register students.' Exclusion of such evidence, not presented at the board hearing, is supported by the Loranger case, supra, and cases cited. In view of our decision on other grounds, we do not pursue this point further.

2. Domicil for voting purposes. The Twenty-sixth Amendment to the Constitution of the United States, promulgated in July, 1971, provides, 'The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State...