McCorkle v. Town of Falmouth

GLASSMAN, J.,

with whom NICHOLS, J., joins, concurring.

I concur with the court’s holding that McCorkle has standing in the Superior Court to contest the action of the Falmouth Town Council. However, I reach that conclusion on purely statutory grounds and find no occasion to apply the “special injury” and “preventive/remedial” analysis on which the court relies.

At issue here is the propriety of the procedures employed in the recount. 30 M.R.S.A. § 2065 (Supp.1986), that governs referendum ballot inspection and recount procedure, provides as follows:

Upon written application of 10% or 100, whichever is less, of the persons whose names were checked on the voting list at any municipal referendum or ballot question under section 1915 or 2061, a ballot inspection or a recount hearing shall be granted. The same limits, rules and all other matters applying to candidates shall apply equally to applicants for either the inspection or recount.

By its plain language section 2065 indicates that whatever procedural or substantive rules would govern a candidate’s challenge to the propriety of recount procedures in the electoral context apply equally to a voter’s challenge to the propriety of recount procedures employed in the referendum context. Accordingly, the standing requirements with which a candidate for office would have to comply to contest procedures employed in a recount apply with equal force to McCorkle. I do not understand the plural word “applicants” to mean that every signatory of the recount application must join in a class action to contest the recount itself.1

Turning to those standing requirements, 30 M.R.S.A. § 2252 (Supp.1986) provides that a candidate for municipal office who claims to have been elected “may proceed against another who claims title to the office within 15 days after election day by following the procedure outlined in title 21-A, section 746.” In turn, 21-A M.R.S.A. § 746 (Supp.1986) provides that a claimant to a disputed county office “must bring a complaint in the Superior Court within 15 days after the certificate of election is issued.” 21-A M.R.S.A. § 746(1). After the Superior Court renders its decision, “[t]he party against whom the judgment is rendered may appeal to the Supreme Judicial Court within 10 days after entry of the judgment.” 21-A M.R.S.A. § 746(2).

Purely as a matter of statutory entitlement McCorkle had standing to contest in the Superior Court the action of the Fal-mouth Town Council, and also has standing to contest in the Law Court the Superior Court’s dismissal of her action.

. Indeed, the separate statutory track established by 21-A M.R.S.A. § 738 (Supp.1986) for contesting statewide referendum ballots provides that "[a]ny resident of the State affected by the results of a statewide referendum may request an appeal in the same manner as a candidate....” 21-A M.R.S.A. § 742(2) (Supp. 1986).