Margaret D. Galvin & others vs. Town Clerk of Winchester

Massachusetts Supreme Judicial Court1975-12-04

369 Mass. 175

Summary · law.co

Holding. The court reversed the judgment and ordered the complaint dismissed, holding that the recall affidavits failed to comply with legal requirements for affidavits and that the recall procedure was not effective until after the 1976 annual town election.

Winchester voters approved a home rule charter in March 1975 that included a recall procedure for certain town officers. Shortly after, citizens filed documents titled 'affidavits' with the town clerk seeking to recall four school committee members. These documents contained over 215 signatures each, meeting the numerical requirements, but were neither notarized nor signed under penalties of perjury. The Superior Court judge ruled the recall provisions were effective and the affidavits complied with the charter, ordering the town clerk to issue petition blanks.

The court reversed, finding two independent grounds to reject the recall effort. First, the documents did not constitute valid affidavits under state law. The charter required an 'affidavit,' which demands either an oath administered by an authorized officer or a written declaration made under penalties of perjury. Simply labeling the documents as affidavits was insufficient. Second, the recall procedure itself was not yet effective. The charter required the town to establish eight voting districts by November 1975, with those districts becoming effective for the 1976 annual town election. Because the recall procedure explicitly references these eight districts, it could not operate until after that 1976 election.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether documents labeled 'affidavits' without a notarization or perjury declaration satisfy statutory affidavit requirements
When recall procedures in a home rule charter become effective relative to the establishment of voting districts
Validity of the recall petition documents presented to the town clerk

Procedural posture

The town clerk refused to issue recall petition blanks based on town counsel's opinion that recall provisions were ineffective; the Superior Court judge ruled for the plaintiffs; the town clerk and school committee members appealed and received expedited appellate review followed by direct review by the Supreme Judicial Court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Braucher, J.

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 approvál 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 swo.rn before an officer authorized to administer an oath.” Murphy, petitioner, 321 Mass. 206, 213 (1947), and cases cited. Under G. L. c. 268, § 1A, as appearing in St. 1947, c. 106, a statement containing “a written declaration that it is made under the penalties of perjury” satisfies a requirement of an affidavit. The judge ruled that the use of the word “affidavit,” which appeared twice over the signatures in the present case, was sufficient. This was error.

The judge relied in part on Donahue v. Selectmen of Saugus, 343 Mass. 93 (1961), although no question as to the requirement of an oath was presented in that case. We there cited two cases to show that the requirement of an affidavit “is not unique.” Id. at 95 n.l, citing State v. Turney, 97 Conn. 496, 499-502 (1922), and State v. Edmonds, 150 Ohio St. 203, 204, 218 (1948). Each involved an affidavit of a single elector. Cf. Newman v. Secretary of the Commonwealth, 339 Mass. 749, 752 (1959). Here 200 or more voters must file the affidavit. We think the requirement may be satisfied without inconvenience by a declaration under G. L. c. 268, § 1A. But an oath or its equivalent is required.

2. Effective date. The recall procedure requires at least twenty-five names from each of eight districts. The establishment of those districts is to be effective for the annual town election in 1976. We think, as did the town counsel, that this means that the recall procedure is not effective until after that election.

The judgment is therefore reversed. The complaint is to be dismissed.

So ordered.