3 Mass. App. Ct. 206

February 13, 1975 - April 17, 1975

Worcester County

Present: HALE, C.J., ROSE, & KEVILLE, JJ.

It was proper for a party seeking to establish that he was domiciled in a certain town for voter registration purposes to file a petition for declaratory relief pursuant to G. L. c. 231A since the provisions of G. L. c. 30A, the Administrative Procedure Act, do not apply to actions by municipalities and were therefore unavailable to the plaintiff, and since in any case the availability of another remedy does not preclude declaratory relief. [207-208]

A patient living at a mental hospital in Worcester as a condition of probation was a resident of Worcester, within the meaning of G. L. c. 51, Section 1, for the purpose of registering to vote where he was employed in Worcester, maintained a bank account there, and intended to remain in Worcester "for the time at least." [208-209]

Page 207

BILL IN EQUITY filed in the Superior Court on December 4, 1972.

The suit was heard by Meagher, J.

Mel L. Greenberg for the plaintiff.

William F. Scannell, Assistant City Solicitor (Henry P. Grady, City Solicitor, with him) for the defendant.

KEVILLE, J. A patient at Worcester State Hospital filed a petition for declaratory relief in the Superior Court, pursuant to G. L. c. 231A, seeking to establish that he was a resident of Worcester under G. L. c. 51, Section 1, as amended through St. 1972, c. 587, Section 1, and that the refusal of the board of registrars of voters of Worcester to register him as a voter violated the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States; the Voting Rights Act of 1965, 42 U. S. C. Section 1971 (a) (2) (A) (1970); and arts. 1 and 9 of the Declaration of Rights of the Constitution of the Commonwealth. The trial judge concluded that the plaintiff should have sought relief under the Administrative Procedure Act, G. L. c. 30A, or through a petition for a writ of certiorari and that a proceeding under G. L. c. 231A was not the proper remedy. He further concluded that, upon the evidence presented by the plaintiff, the board acted properly in finding that the plaintiff was not a resident of Worcester and in denying him registration. The plaintiff appeals from a final decree dismissing his bill. The judge adopted as a report of material facts his findings of fact contained in his earlier findings, rulings and order for a decree. The evidence is also reported. We may review all questions of law, fact and discretion and make findings in addition to those made by the judge but his findings of fact will not be disturbed unless plainly wrong. Angers v. Adams, 337 Mass. 325, 326 (1958). All Stainless, Inc. v. Colby, 364 Mass. 773, 776 (1974).

It was proper for the plaintiff to have sought relief under G. L. c. 231A. The Administrative Procedure Act does not apply to actions by municipalities and was therefore unavailable to the plaintiff. G. L. c. 30A, Section 1. Boston Edison

Page 208

Co. v. Selectmen of Concord, 355 Mass. 79, 83 (1968). Furthermore, he was not precluded from seeking declaratory relief even though another remedy might have been open to him (e.g., a petition for a writ of certiorari). Meenes v. Goldberg, 331 Mass. 688, 691 (1954). Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High Sch. Bldg. Comm. of Westfield, 345 Mass. 267, 268-270 (1962). Compare Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570 (1974). Contrast Johnson Prod. Inc. v. City Council of Medford, 353 Mass. 540, 544-545 (1968), app. dism. and cert. den. 392 U.S. 296 (1968).

We conclude that the judge erred in ruling that the plaintiff did not qualify as a resident of Worcester for voter registration purposes under G. L. c. 51, Section 1. A determination of residency for voting purposes requires a voter to have his domicil in the city or town in which he seeks to register. Id. at 576. See Putnam v. Johnson, 10 Mass. 488, 501 (1813). Opinion of the Justices, 5 Met. 587, 588 (1843). Opinion of the Justices, 365 Mass. 661, 663 (1974). It has often been said that "domicil is the place of one's actual residence `with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.'. . . `Expressions such as these should not be taken literally.'" Hershkoff case, supra, at 578. "A change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least." Id. at 576-577.

The judge's findings, which are supported by the evidence, reveal that the plaintiff's last known domicil was in Winthrop, the home of his adoptive parents; that he had not been there since 1965; that he had had no contact with his parents for five or six years; that he was a patient at Worcester State Hospital; that his living there was not a result of his own volition but a condition of probation; that he was employed in Worcester and maintained a bank account there; and that his only basis for living in Worcester was to comply with the terms of his probation and earn enough money to leave. In our view of these facts, the

Page 209

plaintiff satisfied the actual presence and intent requirements to establish domicil. He was residing in Worcester. While he intended to leave eventually when he earned enough money to do so, he nevertheless intended to make his home in Worcester "for the time at least." Hershkoff case, supra, at 580. His probation and institutionalization in a State hospital, which compelled him to come to and remain in Worcester, did not preclude him as matter of law from choosing a new domicil for voting purposes. Similar results have been reached in the case of soldiers obliged to remain in a certain place under the orders of superiors. Mooar v. Harvey, 128 Mass. 219, 220 (1880). Carrington v. Rash, 380 U.S. 89, 96 (1965). We follow the reasoning of Stifel v. Hopkins, 477 F. 2d 1116, 1120-1127 (6th Cir. 1973) which recognizes that many forces compelling an individual's relocation, often equate in degree while differing in kind. Id. at 1124. "We recognize the importance of considering physical or legal compulsion in determining whether domicile is gained or lost, but we limit the application of involuntary presence to its operation as a presumption ordinarily requiring more than unsubstantiated declarations to rebut." Id. at 1126. Where, as here, in addition to his statement of intent, the plaintiff worked in the city and otherwise engaged in community activity, he satisfied the residency requirement of G. L. c. 51, Section 1. In light of our decision as to domicil for voting purposes, we need not reach the plaintiff's constitutional contentions. Hershkoff case, supra, at 580-581. The final decree is reversed and a new decree is ordered declaring the plaintiff to be a resident of Worcester within the meaning of G. L. c. 51, Section 1.

So ordered.