Opinion
11-P-1822
11-01-2011
DANIEL L. FAHEY & another [FN1] v. NEWTON ELECTION COMMISSION & others. [FN2]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Daniel L. Fahey and James W. Bueche (plaintiffs) sought judicial review in the Superior Court of a decision by the Newton election commission (commission) which determined that Jonathan Yeo was domiciled in Ward 2 for the purposes of his school committee candidacy. Reviewing the matter pursuant to G. L. c. 249, § 4, and G. L. c. 56, § 59, the judge allowed the plaintiffs' motion for judgment on the pleadings and ordered Yeo's name struck from the ballot. A single justice of this court, pursuant to G. L. c. 231, § 118, (first par.), vacated the judgment of the Superior Court, and ordered the city
The plaintiffs also sought relief from a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. As final judgment had entered in the Superior Court, the single justice determined that the plaintiffs had a right to appeal in this court.
to not strike Yeo's name. The plaintiffs' appeal of the single justice's order was dismissed by a panel of this court. When final judgment entered for the defendants in the Superior Court, the instant appeal followed. [FN3] We affirm.
1. Standard of review. We review de novo a decision on a motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974). Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010). We will affirm administrative determinations challenged under G. L. c. 249, § 4, if the record meets the substantial evidence test; that is, if 'evidence exists in the administrative record that a reasonable mind might accept as adequate to support a conclusion.' Allen v. Department of Correction, 69 Mass. App. Ct. 682, 684 (2007) (quotations and citation omitted). In addition, pursuant to G. L. c. 56, § 59, the Superior Court has jurisdiction to review the decision of the commission to determine whether the evidence 'was sufficient as matter of law to warrant [its] decision.' Dane v. Board of Registrars of Voters of Concord, 374 Mass. 152, 157 (1978). Again, the question presented is whether the commission had 'substantial evidence.' Hershkoff v. Board of Registrars of Voters of Worcester, 366 Mass. 570, 574 (1974).
2. Burden of proof. The Superior Court judge had determined that the commission erred, as a matter of law, by assigning the burden of proof to the plaintiffs. We disagree. In general, the burden of showing a change of domicile is upon the party asserting the change. Commonwealth v. Davis, 284 Mass. 41, 49 (1933). But Davis can be understood to put the burden on the party making the challenge. In Mellon Natl. Bank & Trust v. Commissioner of Corps. and Taxn., 327 Mass. 631, 638 (1951), the Supreme Judicial Court placed the burden of proof on the tax commissioner because he had brought the challenge to the decedent's estate's claim that the decedent was not domiciled in the Commonwealth.
The plaintiffs claim that the single justice of this court lacked jurisdiction under G. L. c. 231, § 118 (first par.) because the Superior Court judge's memorandum and order constituted a final order for purposes of Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), and Mass.R.Civ.P. 58(a)(2), as amended, 371 Mass. 908 (1977). However, we need not resolve the issue of the single justice's jurisdiction because final judgment has entered, and the propriety of that judgment is properly before us without regard to the single justice's order.
The judge relied on Commonwealth v. Davis, supra, but there it was the defendant who made the assertion that he was not domiciled in the Commonwealth to avoid the payment of taxes. Having made that challenge, he bore the burden of proof.
What emerges from these cases is that the burden of proof 'falls where general principles of law would naturally and logically cause it to fall.' New England Trust Co. v. Commissioner of Corporations and Taxation, 315 Mass. 639, 642 (1944), cited in Mellon, supra. Here, it is the plaintiffs who have brought the challenge to Yeo's domicile in Ward 2. That domicile had been accepted by the city clerk when Yeo filed the necessary documentation to be a school committee candidate from Ward 2. General principles of law would place the burden of proof on the party bringing the challenge to support the allegation, not on the party against whom the challenge is made. The administrative decisions of the State Ballot Commission are in accord with our conclusion.
Finally, even if the burden of proof was allocated to Yeo, we conclude that the commission's decision was properly supported by substantial evidence. In addition to the deference that is owed to the commission in its interpretation of the operation of the city charter, see Capezzuto v. State Ballot Law Commn., 407 Mass. 949, 952 (1990), the determination of a person's domicile is primarily a question of fact. Tuells v. Flynt, 282 Mass. 106, 109 (1933). Without rehearsing the facts, that are largely not disputed, the commission was supplied with substantial evidence to have supported a conclusion, reached by reasonably minded people, that once Yeo had acquired the new home in Ward 2, and sold his old home in Ward 4, the old home became a temporary residence and no longer his domicile. Ibid. The judge's conclusion to the contrary was in error.
3. Compelling evidence. 'Domicil once acquired is not lost until a new one is obtained . . . and the original domicil is presumed to have continued in the absence of compelling evidence that it was changed.' Dane v. Board of Registrars of Voters of Concord, 374 Mass. 152, 162 (1978). Horvitz v. Commissioner of Rev., 51 Mass. App. Ct. 386, 395 (2001). From this statement of the law, the plaintiffs argue, and the judge accepted, that 'compelling evidence' is quantifiably greater than 'substantial evidence.' We disagree. Had the Supreme Judicial Court or this court intended to endorse a heightened burden of proof, the opinions surely would have done so in a less oblique way. A far more reasonable explanation of the phrase 'compelling evidence' is that it refers to the quality and not the quantity of evidence required to prove a change in domicile.
4. Application of the Newton charter. Because the material subsidiary facts of the case are not disputed, an independent and adequate ground of decision is the correctness, as a matter of law, of the commission's application of charter section 4-1(b) requiring that a school committee 'candidate shall have continuously been a resident of the ward from which he is elected from the date [of the availability of nomination papers from the commission, here March 7, 2011] until and including the first day of the term for which he is elected.' In the very unusual circumstances of this case, the commission concluded that Yeo resided at the Ward 2 home as of March 7, 2011, within the meaning of the charter provision. If the commission had concluded that he had continued to reside at his former house (sold on January 31, 2011, but still occupied by him by special arrangement until renovations of his newly purchased house in Ward 2 reached completion in June, 2011), his residency would have become irretrievably split between the former house on March 7 and the later house on the day of office taking (if elected) after June, 2011. That conclusion would have precluded the continuous residency necessary for candidacy despite his substantial presence at the later house throughout the first six months of 2011. It would have deprived him of access to the ballot and deprived the voters of the opportunity to consider his candidacy.
Yeo purchased a house in Ward 2 as of December 27, 2010, paid for its taxes, insurance, utilities, and substantial renovations throughout the first six months of 2011; regularly visited the house and supervised its renovation and upkeep; and shifted his mailing address there; but by special arrangement occupied his former house in Ward 4 until completion of the renovations in June of 2011.
Amid these circumstances, the commission functions as the competent local body charged with implementation of the election provisions of the charter. Its application and interpretation of those provisions, although not binding, are entitled to consideration by a reviewing court. Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 515-516 (1975). Taylor v. Housing Appeals Comm., 451 Mass. 149, 154 (2008). If its interpretation of the provision is reasonable, the court should not supplant it. Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004). In particular, the court will reject an application producing an irrational or ineffectual result. Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189 (1969). Commonwealth v. Millican, 449 Mass. 298, 303-304 (2007). In this instance the commission chose against an interpretation casting Yeo into an anomalous residential vacuum barring him from the ballot and the voters from his candidacy. That determination was not irrational and will receive our respect.
We respect, as well, the rigorous analysis of the rules and case law of domicile conducted by the motion judge. The unprecedented circumstances of this dispute and the role of the commission as a first-hand arbiter of access between candidate and electorate have led us to a different conclusion.
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Conclusion. The commission's decision was based on a correct application of the law, and supported by substantial evidence. The Superior Court judgment for the defendants is affirmed. The clerk of the city of Newton shall not strike Jonathan Yeo's name from the ballot for election for school committee from Ward 2.
So ordered.
By the Court (Meade, Sikora & Hanlon, JJ.), Clerk