Kibbe v. Town of Milton 736 A.2d 104 700Conn. A.2d 241, 1224736 A.2d 104, 137 Ed. Law Rep. 1019 250 142 N.H. 288, 700 A.2d 1224A.2d 104) (Cite as: 250 Conn. 241, 736 (Cite as: 700 A.2d 1224) Court of Connecticut. domicile,Supreme or incapacitating physical disability," Steven RSA BORTNER RSA 655:38 (1996); 669:22, or death, RSA v. 655:39 (1996); RSA 669:22. Furthermore, RSA TOWN OF WOODBRIDGE al. chapters 669:25 expressly provides that whenetRSA No. 16114. 658 and 659 are applied to town elections, the town clerk shall perform duties delegated to the secretary June 11, RSA 1999.656:21 therefore of state underArgued those chapters; Decided Aug. 17, would allow the town clerk to1999. authorize the use of pasters in the same general circumstances provided Unsuccessful write-in candidate for elementary in RSA 669:22. Construing these provisions in this board of education brought action against town, remanner does not create an absurd result. gistrars of voters, and successful candidates, chalSee O'Brien v. O'Brien, 141 N.H. 435, 436, 684 lenging election results based on alleged voting maA.2d 1352, 1353 (1996). chine malfunctions. The Superior Court, Judicial District of New Haven, J., ordered new [2][3][4] We turn now Pittman, to the plaintiff's argument election. Defendants appealed. The Supreme Court, that the superior court erred in ruling that RSA Borden, heldis that: (1) trial court abused its dis-in 659:65,J., II(b) directory, rather than mandatory, cretion in refusing to open evidence to consider nature. "In matters of statutory interpretation, this election offered by of defendants, (2) legisnew court isrecords the final arbiter the intent and of the election wasexpressed not warranted. lature as in the words of a statute considered as a whole." Gisonni v. State Farm Mut. Reversed and remanded with direction. Auto. Ins. Co., 141 N.H. 518, 519, 687 A.2d 709, 709 (1996) (quotation omitted). We look first to Berdon, J., concurred and filed opinion. the language of the statute, "and where possible, we ascribe the plainWest and Headnotes ordinary meanings to words used." Appeal of8.1 Astro Spectacular, 138 N.H. 298, [1] Elections 300, 639 A.2d 249,Cases 250 (1994) (quotation omitted). 144k8.1 Most Cited Purpose of election statutes is to ensure the true and [5] accurate We conclude the statute is mandatory. But most countthat possible of votes for candidates v. Gerry's Cash Mkt., Inc., 113 N.H. 165, insee theKeene election. 168, 304 A.2d 873, 875 (1973) (statutes regulating form of ballots generally [2] Elections 227(8) are regarded as directory rather thanMost mandatory). As the plaintiff points out, 144k227(8) Cited Cases the use of "shall" indicates the legislature's intent When individual ballot is questioned, no voter is to the statute beonmandatory. Wilkes v. Jackbethat disfranchised a doubtful See construction, and son, 101 N.H. 420, 423, 145 A.2d 169, 170 (1958); statutes tending to limit exercise of ballot should be cf. In re Thomas inM., N.H. 55, 59, 676 A.2d liberally construed his141 or her favor. 113, 116-17 (1996). *1227 Furthermore, by [3] Electionsa specific 298(1) providing remedy for the violation of 144k298(1) Most Cited Cases RSA 659:65, II(b)--that the sticker vote "shall be Election laws generally regarded as defective"vest andprimary "shall responsibility not be tabufor ascertaining intent and willinofthe voters on election lated"--the legislature stated clearest possible officials, subject to court's appropriate scope of statreterms its intent to ensure compliance with the ute's prohibition. See Wilkes, 101 N.H. at 423, 145 A.2d at 170; cf. 26 Am.Jur.2d Elections § 370 Page 1 Page 4 view when officials' determination is challenged in a (1996) judicial(if proceeding. statute specifies that violation will void ballot, statute is mandatory). [4] Elections 227(1) 144k227(1) Most Cases argument that the suWe turn next to Cited the plaintiff's No losing candidate is concluding entitled to the equiperior court erred in thatelectoral the voters' invalent of a "mulligan," which is a free The shot plaintiff sometent should prevail over the statute. times awarded to athat golfer in nontournament play initially contends the superior court had insufwhen preceding was poorly ficient evidenceshot from which to played. conclude that voters who placed the stickers in the write-in space for se[5] Elections lectman intended 298(3) to cast their vote for Ball. This ar144k298(3) Cases gument wasMost not Cited preserved for appeal, see Appeal of (Formerly 144k227(1)) Alton School Dist., 140 N.H. 303, 313, 666 A.2d To secure for newappears municipal election, 937, 944judicial (1995),order and indeed to have been challenger is not required to establish that, but for conceded by the plaintiff in the proceeding below. irregularities that he has established as a factual Accordingly, we proceed in reliance on the superior matter, wouldthat have in of election; incourt's he finding "theprevailed clear intent the voters" stead, court must be persuaded that (1) there were was evident. substantial errors in rulings of election official or officials, substantial in count of votes, [6] We or agree with the mistakes superior court's implicit conand (2) as that a result of those or mistakes, reli-to clusion because theerrors stickers distributed ability election, determined by elecvotersofbyresult Ballofwere not as prepared in accordance tion is seriously in those doubt. C.G.S.A. § withofficials, RSA 656:21, the use of stickers to write 9-328. in votes violated RSA 659:65, II(b). The statute's terms are plain, and we will not look beyond them [6] 305(2) forElections further evidence of legislative intent. See Ap144k305(2) Most Cited Cases peal of Booker, 139 N.H. 337, 341, 653 A.2d 1084, Although underlying facts are the to be established by the a 1087 (1995). By its terms, statute prohibits preponderance of evidence and are subject on apattachment of stickers or other adhesives to the balpeal to it thewas clearly erroneous standard, delot as officially prepared. See ultimate RSA 659:65, termination of whether, based on underlying facts, a II(b). Accordingly, we are not swayed by the denew municipal election is called for, that is, whethfendants' contention that the statute is intended only ertothere were substantialballot violations of statute auprevent pre-election tampering by election thorizing to order new election the thatuse render reofficials court and does not contemplate of stickliability of result of election seriously in doubt, is a ers by voters as a method of casting write-in votes. mixed question of fact and law that is subject to plenary review appeal. C.G.S.A. 9-328; Prac[7][8][9] In on cases involving the §violation of an tice Book law, 1998,we § 60-5. election inquire whether there was substantial compliance with the statute. See, [7] Statutes 181(1) e.g., Bridgham v. Keene, 112 N.H. 84, 86, 289 A.2d 361k181(1) Most CitedWhen Casesthe violation consists of 392, 393-94 (1972). a minor deviation from the statutory requirements, [7] Statutes 188 we may find substantial compliance, and in such a 361k188 Most Cited Cases case we will not invalidate a vote if the voter's intent is clearly evident. See id.; cf. Opinion of the Justices, 114 N.H. 784, 786, 330 A.2d 774, 775 (1974) (strict compliance with technical form of 315 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.