§ 33 — Election petitions for corrupt practices; procedure

Section 33. (a) If the attorney general or five or more voters have reasonable cause to believe that a corrupt practice, as defined in section thirty-two, has been committed by any successful candidate, other than a candidate for the United States Congress, or for the general court, for whom such voters had the right to vote, with reference to his election, or by any other person in his interest or behalf with reference thereto, the attorney general or such voters may apply to a justice of the superior court, sitting in equity within and for Suffolk county, for leave to bring an election petition against such candidate praying that the election of such candidate be declared void. Such application shall be subscribed and sworn to by the petitioners and it shall be heard ex parte by the justice of the superior court upon such evidence as he may require; and if the petitioners shall establish to his satisfaction that there is reasonable cause to believe that a corrupt practice has been committed with reference to the election of the candidate in question, which materially affected the results of the election, and that upon the evidence obtainable there is reasonable cause to believe that such violations may be proved, he shall make an order granting leave to the petitioners to bring an election petition against such candidate.(b) After the entry of such order, and within two months after the election to which it relates, the election petition may be filed in the superior court within and for Suffolk county.Notice of the petition shall be by writ of subpoena according to the usual course of proceedings in equity and shall be returnable fourteen days after the date on which the petition is filed.A subpoena issued upon an election petition shall be served not less than seven days before the return day.A defense to an election petition shall be by answer, filed within seven days after the return day, and no replication need be filed.Election petitions shall be entered on the equity docket.(c) Election petitions and all motions and other applications, whether interlocutory or final, and all hearings on the merits or upon the making, entering or modifying of decrees therein shall be heard and determined by three justices of the superior court who shall, immediately following the filing of an election petition, be assigned by the administrative justice of said court for the hearing and determination of all matters arising under election petitions prior to the next state election. No reference to a master shall be had upon any matter arising under an election petition, except in matters of fact relating to financial statements and the examination of accounts and vouchers. All proceedings under election petitions shall have precedence over any case of a different nature pending in any court, and the justices of the superior court may from time to time make such rules regulating the practice and proceedings in matters of such election petitions, not inconsistent with this chapter, as they deem expedient. In the absence of any such rules, the practice and procedure in election petitions shall be governed by such laws or rules of court, not inconsistent with this chapter, as may from time to time be in force relating to the practice and proceedings in matters of equity.(d) Upon an election petition the decision of the three justices of the superior court assigned as aforesaid, or of a majority of them, shall be final and conclusive upon all matters in controversy, whether interlocutory or final, and whether in matters of fact or matters of law. But the said justices, or a majority of them, may, after a finding of facts, either of their own motion or at the request of either party, report the case to the supreme judicial court for determination by the full court; and thereupon like proceedings shall be had as upon a report after a finding of facts by a justice of the superior court in equity proceedings.(e) If upon an election petition one or more violations of section thirty-two are proved, it shall be a defense to the petition if the defendant establishes to the satisfaction of a majority of the justices hearing the same, with reference to all said violations, the following:As to every such violation, either that(1) Such violation was not committed by the candidate, but was committed contrary to the orders and without the sanction or connivance of the candidate;(2) The participation, if any, of the candidate in such violation, arose from inadvertence or from accidental miscalculation, or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith;(3) The candidate took all reasonable means for preventing the commission of violations of this chapter with reference to the election in question;(4) The violation in question was of a trivial, unimportant and limited character;(5) The violation in question did not materially affect the results of the election.(f) The court may by an order make the final disposition of an election petition conditional upon the filing of a statement required by this chapter in a modified form, or within an extended time, and upon compliance with such other terms as the court may deem best calculated to carry into effect the objects hereof, and in such case the court shall require, within a time certain, further proof as to the compliance with the conditions of such order, whereupon a final decree shall be entered.(g) If upon the hearing of an election petition a majority of the justices hearing the same shall find that in relation to the election of the candidate in question a corrupt practice, as defined in section thirty-two, was committed by the defendant, a decree shall be entered subject to the limitations and conditions hereinbefore prescribed, declaring void the election of the defendant to the office in question, and ousting and excluding him from such office and declaring the office vacant.(h) No person called to testify upon an election petition shall be excused from testifying or producing any papers on the ground that his testimony may tend to criminate him or subject him to a penalty; but he shall not be prosecuted or subjected to any penalty or forfeiture except forfeiture of election to office, for or on account of any action, matter or thing concerning which he may so testify, except for perjury committed in such testimony.(i) No decree entered upon an election petition shall be a bar to or affect in any way any criminal prosecution of any candidate or other person, or any inquest in accordance with sections thirty-five to forty-one, inclusive.(j) A certified copy of any final decree entered upon an election petition, as provided by this chapter, shall forthwith be transmitted by the clerk to the director; and any vacancy in any office created by any such decree shall be filled in the manner provided by law in case of the death of the incumbent, but in no case shall the candidate so excluded from the office be eligible therefor.(k) If upon the hearing of an election petition it shall appear to a majority of the justices hearing the same that with reference to the election in question there is a reasonable presumption that any violation of this chapter was committed, they shall cause notice of the facts to be given by the clerk of said court to the district attorney for the county where the violation appears to have been committed, with a list of the witnesses to establish the violation, and any other information which they may consider proper; and thereupon the district attorney shall cause complaint therefor to be made before a court or magistrate having jurisdiction thereof, or shall present the evidence thereof to the grand jury. If it shall appear that a successful candidate for district attorney has been guilty of any such violation, a majority of said justices shall order the notice of the facts to be given to the attorney general, who shall designate a district attorney to make such complaint or presentment. A majority of said justices may issue process for the apprehension of any person so appearing to have committed a violation of this chapter, and may bind over, as in criminal prosecutions, such witnesses as they deem necessary to appear and testify at the court having jurisdiction of the crime.