THOMAS G. MORWAY, SR., & others [Note 1] vs. TOWN OF WEBSTER & others. [Note 2]

GILLERMAN, J. Fifteen members of SIN-CERE ("Stop Incineration Now -- Conserve Environmental Resources Efficiently") filed an action in the Superior Court against the town of Webster (the town), its board of selectmen and board of registrars after the clerk of the board of registrars refused to accept the plaintiffs' referendum petition. The defendants claimed that the petition had not been filed in a timely fashion, and their motion for summary judgment was allowed.

The town employs a form of representative town meeting government established under St. 1933, c. 13, as authorized by G. L. c. 43A, Section 1. The town's charter [Note 3] contains a broad referendum provision which permits a challenge to any final vote of the town meeting with certain limited exceptions not applicable here. [Note 4] Section 2-15 of the charter provides that no final vote of a town meeting (other than a vote on an excepted subject) shall become operative until the expiration of

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ten days following the dissolution of the town meeting. See note 4, supra. If within the ten days a petition protesting a vote taken at the meeting, and certified by the board of registrars of voters to have been signed by not less than four percent of the voters, is filed with the board of selectmen, the challenged vote continues to be suspended, and the board of selectmen is required to order a special election for the submission of the question to all of the town's registered voters. [Note 5]

To obtain the required certification of the board of registrars, Section 2-15(c) provides, in part, that:

"Not more than seven days following the dissolution of a town meeting any such petition shall be submitted to the board of registrars of voters which shall within three days following such referral determine whether the petition contains a sufficient number of valid signatures of voters. Said petition shall forthwith be referred by the registrars of voters to the board of selectmen."

The town's charter is carefully designed. Every final vote of the town meeting which is not beyond the reach of a referendum petition is suspended for ten days following the dissolution of the town meeting. Unless a referendum petition is filed with the selectmen within the ten-day period, each vote then becomes effective. The petition must bear the certification

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of the board of registrars that it has been signed by not less than four percent of the voters. By requiring that the petition be submitted to the registrars by the end of the seventh day, the charter allows three days for the verification of signatures. But it is the filing of a certified petition with the selectmen that has the effect of suspending the challenged vote until the outcome of the vote at the special election which must then be called by the board of selectmen.

On January 12, 1988, the town held a meeting at which art. 19 on the town warrant was approved. That article authorized the board of selectmen to enter into a long-term lease of approximately six acres of town land to Vicon Recovery Systems of Webster, Inc. The purpose of the proposed lease was to permit Vicon to build and operate a facility for the disposal of municipal solid waste and to generate energy (steam or electricity, or both) in the process.

The plaintiffs, who had opposed the passage of art. 19, circulated a referendum petition to obtain the signatures required to have art. 19 placed on the ballot at a special referendum election. The parties have stipulated that the board of registrars have verified that the plaintiffs obtained the signatures of more than the required four percent of the registered voters in the town. That percentage translates to more than 1,000 signatures.

The parties have also stipulated that at 7:30 P.M. on January 19, 1988, the seventh day following the town meeting, the plaintiffs presented their referendum petition to the chairman of the board of selectmen, who, according to the stipulation, said he "accepted the petition and that he would send it over to the board of registrars." Finally, it is stipulated that the town clerk (who is also clerk of the board of registrars) was notified on January 20, 1988, that a referendum petition "was at the [s]electmen's office, [but] the [t]own [c]lerk refused to accept the petition [because] it was not filed within seven days of the dissolution of the [t]own [m]eeting as required by [s]ection 2-15 of the [c]harter."

There is no dispute that the plaintiffs did not follow the procedure prescribed by the town charter; at the close of the

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seventh day their petition was delivered to the chairman of the board of selectmen and not to the clerk of the board of registrars. [Note 6] The question to be decided is whether that deviation was fatal to the petition.

The plaintiffs suggest that delivery to the registrars was made on the seventh day because the chairman of the board of selectmen was acting for the board of registrars. There is no basis for that argument. A person cannot appoint himself the agent for another. See Treasurer & Recr. Gen. v. Macdale Warehouse Co., 262 Mass. 588, 593 (1928). So, too, the plaintiffs' argument that the town should be estopped because of the conduct of the chairman must fail. See O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986) (court is reluctant to apply principles of estoppel to public entities); Racette v. Zoning Bd. of Appeals of Gardner, 27 Mass. App. Ct. 617, 620 (1989).

Much firmer ground is to be found by accepting the misstep and calling up the principle that not every error in exercising the right to local self-government guaranteed by art. 2 of the Amendments to the Constitution of Massachusetts, is beyond cure. Here, it is important to recall, more than one thousand voters -- all that the charter requires -- had signed a petition calling for a special election, and both the plaintiffs and the chairman acted in good faith and in the honest belief that there was compliance with the required procedure. In circumstances such as these, "[e]very rational intendment is to be made in favor of the rightful exercise of the franchise. That principle pervades and dominates all our decisions and harmonizes them all." Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277 (1932).

The court in Swift reviewed the Massachusetts decisions in which mistakes, irregularities and omissions in the political process were not fatal to the intended result. Included in the review was Blackmer v. Hildreth, 181 Mass. 29 (1902), where, said the Swift court, "a nomination paper for a candidate

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was filed two days later than the date when by the statute it `shall be filed.' It was found that all the parties including the town clerk and registrars acted in good faith in receiving the nomination paper and printing the name of the candidate on the official ballot. It was held that ballots prepared must be counted notwithstanding the violation of the legislative mandate expressed by `shall.'" Swift, supra at 278-279. See Myers v. Commonwealth, 363 Mass. 843, 846 (1973) (the word "shall" as used in statutes may be construed as permissive). Cf. Hashimi v. Kalil, 388 Mass. 607, 609 (1983).

More recently, and with considerably more illumination, the Supreme Judicial Court considered the problem of procedural errors against claims that the error, however, innocuous, was fatal. In Schulte v. Director of the Div. of Employment Security, 369 Mass. 74 (1975), Justice Kaplan reviewed cases involving "[s]loppiness in following a prescribed procedure for appeal" and found a "coherent rationale." Id. at 79. Some cases, "on their face," call for the dismissal of the appeal, but in other cases, "the judge is to consider how far . . . [the slip] interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice." Id. at 79-80.

While Schulte was concerned with errors in the litigation process, its analytical framework is especially helpful to the assessment of errors in the frequently tricky process of self-government.

Some cases of procedural error in the political process clearly call for dismissal -- such as the addition of needed signatures after the expiration of the statutory period following the dissolution of a town meeting, as in Gastown, Inc. v. Registrars of Voters of Agawam, 361 Mass. 876 (1972), or the filing of a referendum petition beyond the prescribed period following the passage of a protested vote, as in Jackson v. Registrars of Voters of Marlborough, 353 Mass. 747 (1967). See also Capezzuto v. State Ballot Law Commn., 407 Mass. 949 (1990), where the Supreme Judicial Court

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found that an initiative petition which lacked proper subscription by at least ten qualified voters was invalid, although in the course of its opinion the court recognized "the proposition that `exceedingly technical' arguments should not be permitted to block access to the ballot." Id. at 956.

In other cases, however, the result has turned on whether the error had the effect of significantly tainting the political process. Thus in Massachusetts Teachers Assn. v. Secretary of the Commonwealth, 384 Mass. 209 (1981), the court considered a variety of errors in the initiative process involving "Proposition 2." In assessing the importance of the error in the summary of the proposal, the court said that "the magnitude of the error in the summary may properly be measured by an analysis of the extent to which it was likely to have influenced voters." Id. at 235-236. Finding the error not to be significantly misleading, the court held that the summary was fair. Id. at 236. In Gibbons v. State Ballot Law Commn., 387 Mass. 343 (1982), the court considered the importance of errors in the referendum petition involving the "Bottle Bill." There the error was the inclusion on the printed forms of the names of two persons who did not sign the petition and one who was improperly registered, contrary to constitutional requirements. The error was held harmless because it did not materially affect either the number of signatures obtained or the attitude of the persons who signed the forms. Id. at 350. See also Hebert v. State Ballot Law Commn., 10 Mass. App. Ct. 275, 278-279 (1980).

Certainly the case at hand is not a case which, on its face, calls for dismissal. This might be true in a case where a certified petition has not been filed by the registrars with the selectmen prior to the expiration of the ten-day period during which the vote of the town meeting had been automatically suspended. Allowing late filing of the petition would in that situation create an intolerable gap in time during which third parties could reasonably rely on the presumed effectiveness of the vote. The Jackson case, 353 Mass. 747, presented just that problem.

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Failure to comply with the seven-day period within which the petition must be submitted to the registrars is of a totally different order. The votes passed at the town meeting continue to be suspended for the entire ten-day period whether or not a referendum petition is submitted to the registrars by the end of the seventh day. [Note 7] Late submission to the registrars will reduce the three days within which the registrars must verify signatures, but it does not create a time gap during which third-party reliance can occur. Any number of critical events can occur during the three-day period. The registrars could determine that the petition lacked the required number of signatures, see Gibbons v. State Ballot Law Commn., 387 Mass. at 346, or that the number of valid signatures had been diminished below the required level. In either of these events, the petition would not "be referred" by the registrars to the selectmen, and the challenged vote would then become effective immediately following the ten-day period, but not before the date.

Late submission to the registrars, as we have said, may reduce the needed three-day period of examination of signatures, and it is on that account that late submissions may indeed prove to be fatal. But here the selectmen's call to the registrars on the morning of the eighth day did not reduce the three-day period, and it did not present a threat to the integrity of the referendum process.

On the special facts of this case -- by which we mean the good faith delivery of the petition to the chairman on the evening of the seventh day, his acceptance of the petition in good faith and his undertaking to "send it over" to the registrars, and the call to the registrars the following morning -- we conclude that no useful purpose intended by the charter would have been frustrated by the clerk's acceptance of the proffer of the petition by the selectmen on the morning of the eighth day. An "exceedingly technical" construction of the charter, Capezzuto v. State Ballot Law Commn., 407 Mass. at 956, should not be adopted where the consequence is to

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defeat the exercise of the franchise by more than one thousand voters of the town of Webster. See Morris v. Registrars of Voters of E. Bridgewater, 362 Mass. 48, 49-50 (1972) ("The voter is not to be disenfranchised because of minor irregularities").

Since the parties have agreed that all the signatures on the petition were valid, there should be a special election for submission of the question set forth in the referendum petition to the voters.

The judgment is reversed, and a new judgment shall be entered requiring the board of selectmen within twenty days of the entry of judgment after rescript to order a special election to be held on a date fixed by it, not more than twenty-eight days after the date of its order, for the submission of the referendum question to the voters for a final determination. See Section 2-15(c), last par., note 5, supra.

So ordered.