Opinion
No. 00-2921-G
July 14, 2000
FINDINGS, RULINGS AND ORDER ON COMPLAINT FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION
In this action, plaintiff seeks review of a decision of the State Ballot Law Commission which overruled plaintiff's objection to two voter signature pages submitted by Stephen Flynn in support of his nomination for County Commissioner for Plymouth County. Plaintiff objected that these signature pages had been altered in violation of M.G.L.c. 53 §§ 7 and 46. It is undisputed that, absent these signature pages, Flynn would not have submitted an adequate number of voter signatures to be placed on the ballot.
This Court has jurisdiction to hear this case pursuant to G.L.c. 56, § 59, which gives the Superior Court power to "enforce the provisions of chapters fifty to fifty-six, inclusive, and [to] award relief formerly available in equity or by mandamus".
Review of a decision of the Ballot Commission under c. 56, moreover, is not limited to a review of the record before the administrative agency. As held in McCarthy v. Secretary of the Commonwealth, 371 Mass. 667, 677 (1977), the Superior Court has "broad equity power" under c. 56, § 59 to enforce the election laws, and can "conduct a completely de novo hearing with respect to the dispute regardless of the action taken by the Commission". See also: Hurst v. State State Ballot Law Commission, 428 Mass. 116, 122 (1998).
Based upon all of the credible evidence at an evidentiary hearing, the Court finds as follows: On June 2, 2000, the plaintiff filed with the State Ballot Law Commission an objection seeking to disqualify two voter nomination sheets submitted by Stephen Flynn, who is a candidate for Plymouth County Commissioner, on the ground that the nomination papers were altered by striking the word "Sheriff" and then inserting the word "Commissioner" on the caption of the papers, after signatures had been placed thereon by registered voters. As noted, it is agreed that, if the objection were allowed, Flynn would have to be stricken from the ballot, as he would not otherwise have the required number of signatures. On June 21, the Ballot Commission overruled the objection on the basis that no voter had been mislead, as Flynn's testimony at the Commission hearing was unrebutted, that the alterations (change in a "Sheriff" to "Commissioner") had been made prior to obtaining any signatures. Thereafter, however, plaintiff was informed by two persons, who had observed Flynn soliciting signatures in Scituate on February 14, 2000, that Flynn had told them he was soliciting signatures for the position of Sheriff (and not County Commissioner). These persons each testified at the hearing before this Court to that effect. While their ability to accurately recall what Flynn had told them in Scituate on February 14 might be called into question (in view of the fact that the signatures had been collected outside the Scituate town hall when many persons were talking and milling about while waiting to enter the hall for a town meeting), a "nomination paper pickup form" was also submitted at the hearing before this Court, which Stephen Flynn admitted he had signed on February 8, 2000, at the Secretary of State's Office, for the position of "Plymouth County Sheriff", thus corroborating the testimony of the two witnesses that he had, indeed, been seeking that position (County Sheriff) in February, 2000. The Commission likewise did not have this form before it for consideration at the Commission hearing.
He admitted he had not signed for nomination papers for County Commissioner, at the Secretary of State's Office, until sometime in May, 2000.
Moreover, at the Commission hearing, Flynn testified that "Sheriff" had originally been placed on the nomination papers, by his daughter or her friend, but that he had noticed it and changed it to "Commissioner" before any voter signatures were affixed. However, it would appear from a simple comparison of the signature and the writing on the "nomination pickup form" (which Flynn admitted was his), with that on the voter lists in question, that the writing, including the word "Sheriff", is the same.
At the hearing before this Court, when this similarity was called to Flynn's attention, he said he was "not sure" whether the writing of "Sheriff" on the voter sheets was in his hand, contrary to what he had testified before the Commission.
As noted above, in McCarthy v. Secretary of the Commonwealth, supra, at 677, n. 11, the Supreme Judicial Court said:
"the Superior Court is not limited by the restrictions on the scope of judicial review of administrative action contained in the State Administrative Procedure Act, G.L.c. 30A. The broad equity powers given to the court by G.L.c. 56, § 59, override those limitations on the scope of judicial review, and most significantly override those provisions limiting the court to consideration of the record before the administrative agency, G.L.c. 30A, § 14(5), and the limitations as to the grounds for overturning an agency decision. G.L.c. 30A, § 14(7)."
ORDER
Accordingly it is ORDERED that the State Ballot Law Commission is to strike the name of "Stephen F. Flynn" from the ballot.
_____________________________ Thayer Fremont-Smith, Justice of the Superior Court.
DATED: July 14, 2000