Boucher v. Begin

688 A.2d 295, 1997 R.I. LEXIS 20, 1997 WL 29330

• Court: Supreme Court of Rhode Island
• Decided: January 27, 1997
• Docket: No. 96-422-M.P.
• Status: Published

Opinions

OPINION

BOURCIER, Justice.

This ease came before us on a petition for certiorari filed by Robert Paul Boucher (Boucher), in his capacity as a Republican candidate for the General Assembly (sixty-second House Representative District), and John A. Holmes, Jr. (Holmes), in his capacity as Chairman of the Rhode Island Republican State Central Committee. On August 30, 1996, after a hearing wherein counsel for all parties presented oral arguments to this Court, we issued an order granting the petition for certiorari and quashing the decision of the State Board of Elections. In that order we also indicated that an opinion would follow setting forth the reasons for said order. The facts insofar as pertinent to this petition for certiorari are as follows.

Barbara Burlingame (Burlingame) is the current representative of the sixty-second House Representative District of the State of Rhode Island. On July 10,1996, she submitted to the Boards of Canvassers for the Town of North Smithfield and the City of Woonsocket (collectively, the boards) her nomination papers for reelection to her General Assembly office. An affidavit signed by Burlingame accompanied the nomination papers, as required by G.L.1956 § 17-14-10. By her signature on the affidavit, Burlin-game certified, under oath, that all of the signatures appearing on the nomination papers were signed in her presence. The affidavit and the nomination papers were submitted to the boards prior to the statutory filing deadline of July 12, 1996. See § 17-14^11 (statutory deadline is the sixtieth day before the primary).

On July 15,1996, after the statutory deadline for the filing of nomination papers had passed, two additional affidavits were filed with the boards in connection with Burlin-game’s nomination papers. An affidavit signed by Esther R. Hutnak (Hutnak) was filed with the Board of Canvassers for the City of Woonsocket. That affidavit asserted that twenty signatures had been witnessed by Hutnak and not by Burlingame, contradicting Burlingame’s affidavit originally filed with her nomination papers. An affidavit signed by Paula S. Kelly (Kelly) was submitted to the Board of Canvassers for the Town of North Smithfield, and that affidavit also asserted that several signatures had been witnessed by Kelly and not by Burlingame. As a result of the discrepancy between Bur-lingame’s affidavit and the affidavits filed by Kelly and Hutnak, petitioner Boucher filed an objection to the validity of Burlingame’s nomination papers.¹

In response to the filed objection, the Board of Canvassers for the City of Woon-socket met on July 16,1996, and the Board of Canvassers for the Town of North Smithfield met on July 18, 1996. The conclusion reached by both boards was that the subsequently filed affidavits contradicted the affidavit submitted originally by Burlingame, thereby establishing that a large number of signatures had not been signed in the presence of Burlingame. However, those subsequently filed affidavits had not been filed within the statutory filing date deadline and consequently could not retroactively serve to validate the voter signatures in question because of the earlier false affidavit. As a result, the boards found that only forty-eight valid signatures on Burlingame’s nomination papers had been timely filed in support of her nomination, that number being two fewer than the fifty attested-to signatures necessary to qualify a person as a Democratic candidate for the sixty-second Representative District of the Rhode Island General Assembly. See § 17-14-7(e).

Burlingame appealed both board decisions to the State Board of Elections. Counsel for Burlingame admitted at a hearing held on July 22, 1996, before the State Board of Elections that there was a “discrepancy” between her affidavit and the two subsequently filed affidavits and that Burlingame’s affidavit originally filed was partially “erroneous.” Despite those admissions, the State Board of Elections found that the General Laws permit latitude in the filing of affidavits with nomination papers. It consequently overruled the decisions of the Boards of Canvassers for the City of Woonsocket and the Town of North Smithfield and found that the filing of the Hutnak and the Kelly affidavits after the statutory deadline constituted sufficient compliance with the General Laws. A petition for writ of certiorari to this Court followed therefrom.

Burlingame as well as Roger N. Begin, William Shields, Rita Johnson, Judith Bailey, and Leo D. Blais in their capacities as members of the State Board of Elections (collectively, the respondents) assert before us that Burlingame complied with the “spirit” of the law as expressed in chapter 14 of title 17, pertaining to the nomination of party and independent candidates. They contend that the subsequently filed Kelly and Hutnak affidavits were only corrective affidavits and that the filing of the original affidavit together with the nomination papers constituted sufficient technical compliance with the law. The respondents are incorrect in their assertions.

Section 17-14-11 requires that “[e]ach nomination paper for party and independent candidates shall be submitted before four o’clock (4:00) p.m. on the sixtieth (60th) day before the primary to the local board of the city or town where the signers appear to be voters.” Thus, the statutory deadline for the filing of nomination papers with the required number of voter signatures with the local boards is sixty days before the primary. Section 17-14-10 requires that

“[e]very person who shall obtain signatures of voters upon nomination papers shall under oath sign the following statement:

T, _, of_, under oath, make affidavit and say that the signers of the within nomination paper (or papers) did so sign the paper (or papers) in my presence. * * * Subscribed and sworn * * *

Notary Public’ ” (Emphasis added.)

The statutory requirement that the gatherer of nomination signatures attest to the “within nomination paper (or papers) ” clearly and unambiguously signifies that the affidavit/attestation be submitted to the canvassers at the same time as the submission of the nomination signatures. This Court has consistently held that the clear and unambiguous language of a statute must be applied literally, and we do so in this case. Marran v. Baird, 635 A.2d 1174, 1180 (R.I.1994).

Although there is no specific time requirement in § 17-LL-10, a plain reading of § 17-14-10 together with § 17-14-11 compels the conclusion that the affidavits required by § 17-14-10 must be filed before the statutory deadline set for the filing of nomination papers in § 17-14-11. The statutory deadline is a mechanism to ensure that all nomination papers are administratively processed before the primary. The apparent legislative intent behind § 17-14-10 is to provide a method by means of which the validity of the signatures appearing on the nomination papers can be established. Thus, there can be no verification of the signatures on nomination papers until the affidavits are actually filed, which event, if one follows the interpretations of the State Board of Elections and the respondents, can take place at any time, even long after the statutory filing deadline. Under that interpretation of the law, the eligibility of a candidate and the sufficiency of the nomination papers would be indefinitely delayed until the affidavits were actually filed, thereby defeating the purpose of the statutoiy deadline for the filing of nomination papers. It is obviously necessary, therefore, that the affidavits attesting to the validity of the signatures appearing on the nomination papers be filed at the same time as the nomination papers themselves, or before the deadline for filing the nomination papers, as we noted in Vlasaty v. Rhode Island State Board of Elections, 119 R.I. 52, 376 A.2d 320 (1977) (per curiam).

Accordingly, § 17-14-10 is not merely a procedural statute that can be waived so long as a potential candidate complies with the “spirit” of the law. It is a substantive statute that provides the necessary requirements for the filing of affidavits. That statute must be complied with, in fact and not in spirit, if a potential candidate’s nomination papers are to be accepted and validated by a local board of canvassers.

The dissent interprets the statute differently. It believes the statute would permit the filing of nomination papers without any affidavit, using as example that in the event that “nomination papers are left with a family or at a nursing home for other voters to endorse,” the required affidavits could be filed at any time thereafter. We. believe that § 17-14-10 mandating the attestation affidavit was enacted to prevent that very occurrence.

Although all agree that there is no specific statutory direction contained in § 17-14-11 that specifically requires the nomination paper affidavit mandated by § 17-14 — 10 to be filed with or prior to the deadline for the filing of a candidate’s nomination paper or papers, we find that specific legislative omission to be inconsequential when § 17-14-10 is read, as it must be, in conjunction with the particular sequential placement of the six statutory sections² prescribing the manner by which a candidate’s nomination paper or papers are to be prepared and completed. Those sequential statutory sections, §§ 17-14r-7,-8,-9,-10,-ll, and -12 collectively provide for the clearly envisioned statutory candidate nomination procedure that a candidate must follow, beginning with the nomination paper itself, and the signing thereof, the number of voter signatures required therein in order to qualify the candidate, the affidavit (including the specific wording thereof) required of any person obtaining the voter signatures that appear on the nomination paper, and the filing of the nomination paper prior to the statutory filing date and time deadline. We note in particular that the affidavit required of the person obtaining voter signatures is actually printed on the nomination paper itself, and requires that person to attest, under oath, that the persons whose signatures appear on that particular nomination paper did actually affix their signatures to the paper in the presence of the person executing the attestation affidavit.

We believe that the sequential statutory nomination paper, signature, affidavit, and filing time requirements should be read and construed together and with reference to one another. State v. Austin, 462 A.2d 359, 365 (R.I.1983). The dissent concludes otherwise and asserts that the required affidavit from the person obtaining the nomination paper signatures is simply evidentiary and can be filed at any time, including long after the deadline for filing the candidate’s nomination paper. We disagree, and believe that in this particular case, the dissent appears to take, read, and apply each section in our election laws as being entirely unrelated to and independent of all other sections, notwithstanding their continuous and sequential placement in our election laws.

Our conclusion herein, based on the facts as presented in this petition, is consistent with our opinion in Vlasaty. In that case, we held that although one affidavit, filed with a potential candidate’s nomination papers was false, that false affidavit did not taint the other additional affidavits that were also timely filed with the nomination papers. 119 R.I. at 58, 376 A.2d at 323. The additional affidavits in Vlasaty were all filed within the required statutory deadline and, considered together, provided sufficient verification for the required number of signatures thereon. We stated in a footnote, however, that “[i]f the additional affidavits had been submitted after the statutory deadline, the issue would be entirely different. We express no opinion as to that situation.” Id. at 56 n. 2, 376 A.2d at 322 n. 2. That situation, singled out but not addressed in Vlasaty, is precisely the issue that now presents itself to this Court on this petition.

Contrary to the respondents’ assertions and the decision of the State Board of Elections, Dahl v. Begin, 660 A.2d 730 (R.I.1995), is not at all relevant to this present opinion. Dahl involved potential candidates who had entirely missed the deadline for the filing of their nomination papers, a materially different set of facts from those in the petition before us. Thus, only the footnote in Vlasaty is relevant as well as persuasive here.

Accordingly, because the Hutnak and the Kelly affidavits were filed after the deadline for the filing of Burlingame’s nomination papers, those corrective affidavits could not be used to retroactively validate any of the signatures improperly appearing on her previously timely filed nomination papers. Since those affidavits were in direct contradiction to Burlingame’s affidavit, Burlin-game’s admittedly false affidavit could not be then used to validate the signatures appearing thereon that were not offered in her presence. As a result, Burlingame did not have the requisite number of validated signatures to qualify her candidacy.

Although the only issue before this Court is whether an affidavit is valid if it is filed after the proper filing of nomination papers and after the statutory deadline set for the filing of nomination papers, we feel it is of significance, for purposes of future guidance, to highlight G.L.1956 § 17-23-17(a)(2), enacted after Vlasaty was decided. That statute provides that “(a) Any person shall be guilty of a felony who: * * *(2) Knowingly or without reasonable and proper investigation makes any substantial misstatement in any declaration of candidacy, nomination paper, or affidavit provided for in this title.” Id. We decline to give our opinion as to whether that statute is applicable to Burlingame’s situation because that particular issue is not squarely before us. However, we point out that the Hutnak and the Kelly affidavits directly contradict the affidavit that Burlin-game signed under oath. As a legislator, Burlingame is presumed to know the law.³ We leave to another forum the determination of whether any violation of § 17-23-17(a)(2) has occurred.

In our previous order of August 30, 1996, in which we granted the petition for certiora-ri filed by Boucher and Holmes and quashed the decision of the State Board of Elections, we noted therein that an opinion giving our reasons for doing so would follow. This opinion setting forth those reasons augments that order.

The papers in this case may be remanded to the State Board of Elections with our opinion endorsed thereon.

1 . In addition to objecting to Burlingame's nomination papers because the Hutnak and the Kelly affidavits contradicted Burlingame’s affidavit, Boucher also objected to the fact that Kelly was a minor and was therefore not eligible to witness signatures on nomination papers. That issue is not before this Court, however, and we need not, and do not, address it here.

2 . We believe that G.L.1956 §§ 17-14-8-9, -10, - 11, and -12 should be interpreted in their sequential entirety to ascertain the intention expressed therein.

3 . See Benner v. J.H. Lynch & Sons, Inc., 641 A.2d 332 (R.I.1994); Bakalakis v. Women & Infants' Hospital, 619 A.2d 1105 (R.I.1993); Bishop v. Laworski, 524 A.2d 1102 (R.I.1987).