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01/05/78 HENRY J. DANE v. BOARD REGISTRARS VOTERS

January 5, 1978

HENRY J. DANE
v.
BOARD OF REGISTRARS OF VOTERS OF CONCORD & OTHERS *FN1



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 7, 1976. On transfer to the Superior Court, the case was heard by Adams, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, & Abrams, JJ.

SYLLABUS BY THE COURT

Domicil. Elections. Practice, Civil, Parties, Class action. Jurisdiction, Election. Prisoner.

The opinion of the court was delivered by: Quirico

Under the provisions of G. L. c. 51, § 48, a registered voter of a town had standing to resort to judicial proceedings to challenge the registration of inmates of a prison in the town by the board of registrars of voters. [157-158]

The Superior Court had jurisdiction under G. L. c. 56, § 59, to review the inclusion by a town's board of registrars of prison inmates on the voting list. [158-159]

The fact that certification of a class of defendants was error was not fatal to appellate review where this court's decision was not dispositive of the rights of each member of the class. [159-160]

Under the Constitution of the Commonwealth every inmate of a Massachusetts correctional institution who is a duly qualified, registered voter in a Massachusetts municipality has the right to vote in State elections. [160-161]

Although there is a presumption that prisoners, by reason of their involuntary presence at the place of incarceration, have retained their former domicil for voting purposes, prisoners may rebut the presumption by a showing that they have formed the requisite intent to make the city or town of the place of their incarceration their domicil. [161-166]

Amendment of the election laws by St. 1973, c. 1137, did not compel the registrars of voters of a town to accept a prison inmate's claim of domicil in the town solely on the basis of the inmate's affidavit of registration or prevent the registrars from questioning a prison inmate at the time of registration with respect to his residence. [166-173]

General Laws c. 51, § 49, places the burden on a registrant who is challenged to satisfy a board of registrars of voters that he is qualified to be registered. [174-175]

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 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. *fn2

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: "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." *fn3

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 *fn4 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, ยง 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 ...


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