White v. Edgar

• Decision Date: 07 May 1974
• Citation: 320 A.2d 668
• Parties: John Joseph WHITE, Jr., et al. v. Joseph T. EDGAR, Secretary of State, et al.
• Court: Maine Supreme Court

Page 668

320 A.2d 668

John Joseph WHITE, Jr., et al. v. Joseph T. EDGAR, Secretary of State, et al.

Supreme Judicial Court of Maine.

May 7, 1974.

Neville Woodruff, Portland, Donald F. Fontaine, Presque Isle, for plaintiffs.

John W. Benoit, Jr., Deputy Atty. Gen., Courtland Perry, William Kelleher, Asst. Attys. Gen., Augusta, Hugh Calkins, Portland, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

The District Court of the United States, District of Maine, convened as a three-judge Court pursuant to 28 U.S.C. § 2281, has 'certified' two questions to us for our 'instructions' concerning the law of Maine. ¹

In the certificate

'. . . the nature of the case and the circumstances out of which . . . questions of law of the State of Maine arise'

are described as follows. '. . . On October 3, 1972, the plaintiffs John Joseph White, Jr., Donald Everett Cunningham, Timothy Francis Flaherty, Peter D. Riddell, Louis George Fournier, all persons serving sentences at the Maine State Prison, filed a complaint under the civil rights jurisdiction of the federal district court alleging that the defendant, the Secretary of State of the State of Maine, the Commissioner of the Maine Department of Mental Health and Corrections, and the Clerk of the City of Portland, had together deprived the plaintiffs of their right to vote in federal, state, and local elections. On December 18, 1972, the plaintiffs filed their 'Amended and Supplemental Complaint,' adding as parties defendant the Director of the Bureau of Corrections and the Warden of Maine State Prison, and setting out new facts relating to the November 7 elections of 1972. The Fourth claim for relief was based on an alleged violation of the Constitution of the State of Maine. . . .

'. . . In the the month of January, 1973, each of the defendants filed ANSWERS to the Amended and Supplemental Complaint, denying many of the plaintiffs' allegations. . . .

'. . . On February 5, 1973, Judge Edward T. Gignoux granted, without objection, plaintiffs' request for leave to maintain the action as a class action on behalf of persons who are registered voters of Portland, Maine, who have been or will be absolutely precluded from voting by the administrative actions of the defendants and by the enforcement of 21 M.R.S.A. § 1(1) during their service of a sentence at the Maine State Prison. . . .

'. . . On July 17, 1973, the parties entered into thirty-five 'STIPULATIONS OF FACT.' They were filed with the United States District Court on that day and constitute the complete factual record in this case. . . ..'

The 'Stipulations of Fact' add the further details that the present controversy began in late September, 1972. All of the plaintiffs, while serving sentences at the Maine State Prison, ² were legal residents of Portland. They wished to vote in the general elections to be held in November, 1972. ³

Having received legal advice, plaintiffs obtained appropriate voter registration forms. On September 21, 1972 their attorney took the forms to the Board of Voter Registrars of the City of Portland and tendered them to the then chairperson of the Board, Mrs. Harriet Petersen (now deceased). She refused to accept the registration cards. When the attorney insisted that his clients were entitled to register, Mrs. Petersen, by telephone, consulted the Elections Division of the office of the Secretary of State. The Division informed her that she was legally authorized, if she chose, to refuse registration to the plaintiffs. Accordingly, Mrs. Petersen adhered to her original position.

Plaintiffs' attorney thereupon wrote to Secretary of State, Joseph T. Edgar, explaining the reasons for his opinion that plaintiffs were entitled to register to vote, and to vote. The letter requested of Mr. Edgar that he advise, first, Mrs. Petersen that she was under legal duty to register plaintiffs and, second, the Clerk of the City of Portland, Arthur Duffett, that he must afford to plaintiffs some means by which, once registered, they would be enabled to vote. The attorney suggested, as alternatives, establishment of a polling place at the Prison or furnishing plaintiffs with absentee ballots.

Writing to Portland City Clerk Duffett, plaintiffs' attorney directly requested him to establish a polling place at the Prison or provide absentee ballots to plaintiffs. In a letter to the Commissioner of the Department of Mental Health and Corrections, William F. Kearns, the attorney for plaintiffs offered a third alternative:-that Commissioner Kearns direct the Warden of the Maine State Prison, Garrell S. Mullaney, to transport plaintiffs to the polls under State Prison escort.

The letter received by Secretary of State Edgar induced him to confer with the office of the Attorney General. On September 28, 1972, Mr. Edgar informed Mrs. Petersen that (1) contrary to prior information given her, Mr. Edgar's present opinion was that plaintiffs must be allowed to register as voters; and (2) except as to the voting for the offices of President and Vice President of the United States, absentee ballots should be withheld from plaintiffs. Mr. Edgar reasoned that the Federal Voting Rights Act Amendments of 1970, 42 U.S.C.A. § 1973aa-1 control voting for the offices of President and Vice President of the United States, requiring that plaintiffs be given absentee ballots to enable them to vote for those offices. Otherwise, the State law of Maine governs, and 21 M.R.S.A. § 1(1) plainly and explicitly states:

'A person who is serving a sentence in a jail or penal institution is not an absentee voter.'

Subsequently, Peter Damborg, Deputy Secretary of State, Elections Division, gave the same advice to all city, town, and plantation Clerks, Registers of Voters, and Boards of Registrars. They were notified, too, that concerning the voting for the offices of President and Vice President of the United States special absentee ballots were being printed to be available, as needed, upon request addressed to Mr. Damborg's office.

On October 2, 1972 Mrs. Petersen accepted the registration cards of the plaintiffs and duly registered them.

Portland City Clerk Duffett and Commissioner Kearns persisted in disavowing legal authority and practical ability to provide the means to enable plaintiffs to cast their votes. ⁴ Mr. Duffett's position was that (1) he lacked legal authority to establish a voting place at the Maine State Prison and (2) except as to voting for offices of President and Vice President of the United States, he was required by law under 21 M.R.S.A. § 1(1) to deny 'absentee voter' status to plaintiffs. Commissioner Kearns and Warden Mullaney stated that they would be willing to have a polling place established at the Prison but they believed that they lacked the legal authority to do it. They considered transporting prisoners to the polls practically unrealistic, especially as to a state-wide general election, since it would entail financially prohibitive costs and the physical unmanageability incident to transporting on a single day prisoners to polling places situated throughout the State. ⁵

It thus eventuates, as the practical reality, that the obstacle to voting by the plaintiffs is the ostensible validity of 21 M.R.S.A. § 1(1). ⁶ By definitionally excluding plaintiffs as absentee voters, the statute deprives them of a mechanism easily administered and capable of ready availability to plaintiffs (if not denied to them by law) by which plaintiffs would be enabled to vote even though confined in the State Prison.

In their Amended and Supplemental Complaint of December 18, 1972 plaintiffs undertook to eliminate 21 M.R.S.A. § 1(1) as the bar to their voting by having it nullified as violative of the First, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States. In addition, calling upon the federal Court's 'pendent' jurisdiction to decide questions of state law, plaintiffs asked an adjudication that the statute transgresses Article II, Section 1 of the Constitution of Maine.

One of the two questions certified is directed to this provision of the Maine Constitution explicitly mentioned by plaintiffs in their pleadings. It is:

'. . . Is 21 M.R.S.A. § (1) inconsistent with Article II, § 1 of the Constitution of the State of Maine?' ⁷

The other certified question concerns another provision of the Constitution of Maine-Article II, Section 4-not invoked by plaintiffs in their pleadings. It is, however, a question capable of falling within the federal Court's 'pendent' jurisdiction to decide insofar as the 'single cause of action' standard of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933) has been refashioned by United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) into the expanded criterion that

'(t)he state and federal claims . . . derive from a common nucleus of operative fact'

and

'. . . if, considered without regard to their federal or state character, . . . plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, . . ..' (p. 725 of 383 U.S., p. 1138 of 86 S.Ct.)

See also: Concurring opinion of Mr. Justice Douglas in Rosado v. Wyman, 397 U.S. 397, 423, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). This second certified question is: '. . . Is 21 M.R.S.A. § 1(1) inconsistent with Article, II, § 4 of the Constitution of the State of Maine?' ⁸

It is our decision to respond to each of the questions certified. To each question we answer in the negative.

2.

As more fully explained hereinafter, the instant certification is substantially different in kind from those we have previously encountered. For this reason, we have approached the present situation cautiously. We have arrived at our decision to answer only after having explored in depth the nature and the objectives of 'certification' as a state-proferred instrumentality of...