Number 2 September 11. 1979

Number 2 September 11. 1979 Mr. Dean P. Amidon Commissioner Department of Public Works 100 Nashua Street Boston, MA 021 14 Dear Mr. Amidon: You' have requested my opinion on whether the Department of Public Works (the Department) has authority to manage real property it has acquired for the 9lf any support for this mterpretation is necessary, il can be found in the Report of the Special Commission, House Rep No. 6164 (May 1974) at 9 (references to various reducible loads, such as petroleum and concrete). lOThe act provided that the effective date of certain sections of the act would be extended beyond the normal nmcty-day period. St 1974, c. 851. §12. These sections are not relevant to the present concerns, however. "The operation of portions of c. 851 , as amended by c. 494. was further suspended by St. 1975. c. 593 SI and again suspended by St. 1976. c. 5. §1. The portion of c. 851 relevant to the present issues went mto effect on September I, iv/s. 'The opinion request actually originated from your predecessor. Acting Commissioner Donadio. 96 P.D. 14 new state Department of Transportation building, provided for in St. 1975, ch. 859, §7A (Section 7A) as amended by St. 1977? ch. 356. §24 (Section 24), and whether the Department may provide relocation services for persons displaced when property is acquired for this purpose. As part of both of these questions, you have also asked whether such management and relocation services may be financed by funds designated for the Department of Transportation building. It is my conclusion, for the reasons set forth below, that the Department has authority to manage the property and to provide relocation services, and that funds authorized under Section 7A may be used for these purposes. Section 7A directs the expenditure of funds for the acquisition of property and for the planning and design of a Department of Transportation building to be located in Park Square, Boston. That building is to house, to the extent possible, the various state agencies which administer transportation programs. Apparently the Department has already begun acquisitions by eminent domain and additional acquisitions are in process. You have, however, informed me that the Comptroller of the Commonwealth has questioned the authority of the Department to expend further funds to provide relocation assistance^ and to manage the property' and has aked you to seek my opinion. In order to resolve these legal questions.^ cf. G.L. c. 30. §5. I shall first consider whether property management services are authorized under Section 7A. Section 24 of Chapter 356 of the Acts of 1977 amended Section 7A of Chapter 859 of the Acts of 1975 by adding a paragraph directing the Depart- ment to acquire "and to hold, lease, otherwise deal with, sell, transfer or otherwise dispose of" property as needed to accomplish the purposes of that section. It is a fundamental principle of legislative interpretation that an enact- ment must be construed according to the common usage of the language. Board of Assessors of Amherst v. State Tax Commission, 357 Mass. 505, 507 (1970). In order to "hold, lease or otherwise deal with" the acquired property, the Department must necessarily also manage it.^ It is my opinion, then, that the Department is authorized to manage the property acquired for the Department of Transportation building, and to apply the funds appropriated under Section 7 A to the costs of such management. I turn now to the question of whether relocation services may be provided under Section 7A of Chapter 859 of the Acts of 1975. In my opinion the Department is authorized to provide relocation assistance and payments by G.L. c. 79A§§3, II. General Laws Chapter 79A, Section 3 provides: Any public agency, or any other person authorized to take by emi- nent domain, . . . shall provide relocation assistance and payments ^See G.L. c 81 . §7J. and G.L. c. 79A, S3. ^This "management" function is typically performed between the time property is acquired and (until business and residential occupants are relocated) the structures are readied for demolition. See St. 1966. ch. 427. § I *The Department submitted various statutory and case citations in support of its position. Although mvited to do so. the Comptroller did not submit a legal memorandum setting forth his position on the questions raised. ^Moreover, the Department is authorized to perform management services for property acquired in connection with the accelerated highway program, by St. 1966, ch. 427. §1. The legislature must have been aware of this authority when it enacted the amendment adding the authorization to "hold, lease or otherwise deal with" acquired property. See Selectmen of Topsfield v. Stale Racing Commission. 324 Mass 309, 313 (1949). I believe this acquisition can be considered an acquisition in connection with the accelerated highway program for purposes of St. 1966, ch 427, §1. See note 6 infra. Indeed, the Act authonzing the taking of property for the Department of Transportation building. Chapter 859 of the Acts of 1975, refers to accelerated highway improvement and maintenance in both the title and preamble. .D. 14 97 under this act upon undertaking a project which results in displace- ment of occupants by the acquisition of real property or by the issuing of a written order to vacate for purposes of rehabilitation, demolition or other improvement. Section 1 1 of the chapter provides: Funds appropriated or otherwise available to any public agency for the acquisition, rehabilitation or demolition of real property or any interest therein for a particular program or project shall be available also for obligation and expenditures to carry out the provisions of this act as applied to that program or project. Reading Sections 3 and 1 1 together, I conclude that funds designated for the acquisition of property for the Department of Transportation building by Section 7A of Chapter 859 of the Acts of 1975 may be used for relocation payments and services. See Department of Community Affairs v. Massachusetts State College Building Authority, Mass. Adv. Sh. (1979) 1681. As the Court there noted, [t]he Legislature's primary motive in providing relocation assistance to a property owner who is forced to sell or whose property is taken from him is probably the realization that merely paying him for his real estate does not fully compensate him, even if he is paid an amount sufficient to purchase comparable new premises .... By enacting G.L. c. 79A, the Legislature has decided, as a matter of public policy, that a person incurring relocation expenses when dis- placed for the construction of a program or project undertaken by a public agency ought to be compensated therefor. Id. at 1694-95. Accordingly, relocation benefits under Section 7A are statu- torily authorized.^ In summary, it is my opinion that the Department of Public Works may use funds designated under Section 7A of Chapter 859 of the Acts of 1975 for management and relocation services with respect to property acquired under that Act. Very truly yours. FRANCIS X. BELLOTTI ATTORNEY GENERAL ^An alternative source of authontv is G.L. c. 81. §7J which requires the Department to provide relocation payments and services in connection with acquisitions -for highway puqxjses." The acquisition of property for the Department of Transportation building appears to fall within the concept of -highwav purpose." Supreme Judicial Court opinions have given the term 'highway expansive scope. In Opinion of the Justices. 530 Mass. 713 (1953). the Court explained that the modem highway cannot merely be constfucted and opened to the public. /( musi be operated. This involves inspections, supervision and a constant preparedness to remove obstructions and make necessary repairs. . . Id. at 722-23 (emphasis added). Observing that "Itlhis enterprise must be envisioned as a whole in its larger aspects " «/.. the court concluded that garages, gasoline stations and restaurants serving highway travelers are included within the tcnn ' highway. M. See also Opinion of the Justices. 370 Mass. 895 (1970) (bikeway is included in term •highway") A building designed to house virtually all highwav administration similarly fits within the broad definition of "highway." Moreover, it appears that the Oeneral Court c'ontemplated'the applicability of the relocation provisions of c. 8 1 . S7J to this acquisition, for it authorized the Depanment to "exercise such powers as mav be' necessary under chapter|l eighty-one of the General Laws, in furtherance ol the purpose ol Section 7A St 1977, ch. 356.'§24. Accordingly G.C. c. 81. §7J is another source of authority for relocation payments and services. 98 P.D. 14 Numbers October 29. 1979 Honorable Michael Joseph Connolly Secretary- of State State House Boston. MA 02133 Dear Secretan. Connolly: You have requested my opinion concerning the operation and effect of G.L. c. 51 §1F (Section IF).' which provides that certain unregistered persons may vote by absentee ballot in a presidential election. Your questions arise from your statutory obligation to print ballots (G.L. c. 54. §40) and to prepare absentee voting information and instructions for the presidential election (G.L. c. 54, §102). As a general matter, your questions require me to construe Section IF and to determine whether it is consistent with the federal Voting Rights Act Amend- ments of 1970. 42 U.S.C. §1973aa-l. et seq. (1976). Specifically, you have posed six separate questions concerning various aspects of the statute which I will answer separately and in turn. Before providing those specific answers, my overall conclusions are as follows. To apply under Section IF. an individual must be absent from the city or town during the registration sessions or be unable to register in person for the presidential election, but I believe that such an applicant need not be absent or otherwise unable to vote in person at the election. It is my opinion that an application under Section IF must be received by the local clerk on or before ten o'clock in the evening of the twenty-eighth day preceding the presidential election. Those who have applied under this section should be provided with a "short ballot" listing only the candidates for president and vice president. The ballot itself may be cast either in person at the office of the clerk or by mail. Interpreting the statutes in this manner. I am of the opinion that Massachusetts is in complete compliance with 42 U.S.C. §1973aa-l(0 ( 1976). You first ask whether an individual who seeks to make application under Section IF must be absent from the city or town or otherwise unable to register in person prior to the time registration closes for a presidential election. The terms of Section IF do not expressly contain such a requirement. However, the election laws, as all statutes of the Commonwealth, must be viewed as a uni- form and consistent body of law such that no provision is viewed as surplusage. Commonwealth v. Mercy Hospital, 364 Mass. 515, 521, (1974); Com- monwealth V. Woods Hole, Martha' s Vineyard and Nantucket Steamship Au- thority, 352 Mass. 617, 618 (1967). Persons who are present in a city or town during the registration sessions preceeding a presidential election and who de- sire to vote at that election, may make application in accordance with the 'Section IF provides: Any person, otherwise qualified to vote under the provisions of section one A but whose name is not included in the current annual registrar of voters of the city or lovrn where he claims the right to vote, may qualify for voting upon application to the registrars of voters of said city or town. Any form of wntten communication containing the name. age. citizenship, former residence and present residence of such person shall cause the registrars to make an investigation relative to the qualifications of such person to vote and. for the purpose of such investigation, the officer in charge of the police force of each city and town shall give the registrars such assistance as they may require. Upon determining that such person is qualified to vote under the provisions of this section, the registrars shall forward an absentee ballot to him and shall include his name on a list of persons registered under this section which shall be sent to the city or town clerk. The provisions of sections ninety-four to ninety-six. inclusive, of chapter fifty-four shall apply to such ballots which shall be cast in the polling places designated under the provision of section twenty-four. '.D. 14 99 provisions of G.L. c 51. §1A (Section lA). It is an express requirement that these applicants appear in person and make an affidavit of registration before a registrar or assistant registrar. G.L. c. 51. §42. I believe Section lA. which is substantially more restrictive than Section IF, is the exclusive vehicle for the registration of those able to appear in person. If Section IF were construed to present an alternative whereby applicants who were able to appear need not do so. as a practical matter Section lA would be eviscerated. There would be no logical reasons for any individual seeking to register to subject himself to the more rigorous procedures of Section lA. Because construing Section IF as providing an alternative method of registra- tion to that contained in Section lA would render the latter statute ineffective. I conclude Section IF was meant to apply only to those individuals who are absent from the city or town, or unable to register in person for reason other than physical disability.^ at the time registration closes before a presidential election.^ You next ask whether an applicant under Section IF must be absent or otherwise unable to vote in person at the polls on election day. Neither the expressed nor the implied terms and provisions of Section IF impose such a requirement. As will be discussed more fully below, this section was enacted to allow those citizens who are absent during the registration periods to qualify to vote for president and vice president. Citizens who are absent during the regis- tration sessions, but who will be present on election day. should not be pre- cluded from casting a ballot. The statute sets up no such barrier. However, a person qualified under Section IF would only be entitled to cast an absentee ballot, since the statute specifically provides: . . . Upon determining that such person is qualified to vote under the provision of this section, the registrars shall forward an absentee ballot tohim .... G.L. c. 51. §1F. (Emphasis added.) I therefore conclude that an applicant under Section IF need not be absent or otherwise unable to vote in person at the polls on election day. but the applicant is only entitled to an absentee ballot which must be cast in accordance with the laws governing absentee ballots. Your third question asks if there is any deadline for applying for a presiden- tial ballot under Section IF. To qualify under that section, a person must be otherwise qualified to vote under Section lA of chapter 51, which requires a person to make an application as required and to otherwise comply "with the requirements of this chapter [G.L. c. 51]." Section 26 of that chapter governs the time when applications under Section lA must be received by the local registrars. It requires that they be received before ten o'clock in the evening on the twenty-eighth day preceding the election. Because this is a requirement to qualify under Section lA. it is incorporated by reference into Section IF. I therefore answer your third question in the affirmative: an application under Section IF must be received no later than ten o'clock in the evening of the twenty-eighth day preceding the presidential election. ^ose individuals who are unable to reeister in person due lo physical disability . may register pursuant to the pro* isions of G.L. c. 51.§42A. ^'This conclusion is further buttressed bv the leeislauve history of Section IF. That history is more fully set forth at pp. 7-8. infra 100 P.D. 14 Your fourth question is whether a voter qualified under Section IF is to receive a regular absentee ballot or a special "short ballot" listing only electors of president and vice president. To answer this question, it is necessary to briefly review the legislative history pertaining to voter qualifications for presi- dential elections. General Laws chapter 51, §1A was enacted in 1962, and provides that per- sons who have resided within the Commonwealth for twenty-eight days are entitled to vote for presidential electors. At the time this statute was enacted. Massachusetts required that citizens reside within the Commonwealth for at least six months before they were qualifed to vote in state elections. This residency requirement was subsequently abolished (St. 1972, c. 587, §2) and the election laws currently provide that: Except as otherwise provided in section one A, every citizen eighteen years of age or older, not being a person under guardian- ship and not being temporarily or permanently disqualified by law because of corrupt practices in respect to elections, who is a resident in the city or town where he claims the right to vote at the time he registers, and who has complied with the requirements of this chap- ter, may have his name entered on the list of voters in such city or town. . . . G.L. c. 51, §1. Because voter registration ceases as of twenty-eight days before the election (G.L. c. 51, §26), there is no longer a disparity between the residency require- ment for state voting and for voting at presidential elections. Before the uniform residency requirement was effected however, statutory provision was made so that those qualifying under Section 1 A would receive a ballot only for presiden- tial and vice presidential electors. G.L. c. 54, §42, as amended by St. 1962, c. 437, §38. This ballot is referred to as the "short ballot," as it does not contain the other election contests to be voted on at the election or the various questions that may be submitted to the voters. The questions that you have posed is whether this "short ballot" is to be provided to those citizens qualifying to vote under Section IF. The legislative history of Section IF makes it clear that the legislature in- tended the statute to apply only to presidential elections. It was enacted as St. 1972, c. 637, §2, as a result of the Federal Voting Rights Act Amendments of 1970, which contain a declaration that; [l]t is necessary (1) to completely abolish the durational resi- dency requirement as a precondition to voting for President and Vice President, and (2) to establish nationwide, uniform standards relative to absentee registration and absentee balloting in presiden- tial elections. 42 U.S. C. §1973aa-l(b)(1976). Massachusetts was in complete conformity with this legislation in 1970, having provision for absentee balloting for presidential elections (G.L. c. 54, §92) and having abolished its residency requirement for voting (G.L. c. 51, §1, as amended by St. 1972, c. 587, §1). Provision had also been made for absen- tee registration for disabled voters (G.L. c. 51, §42A) and for those citizens who were outside the territorial limits of the nation (G.L. c. 54, §103J). How- ever, the Massachusetts election laws made no provision for those citizens who were residents of Massachusetts, but who were absent or otherwise unable to register to vote for Presidential elections. V.D. 14 101 In response, a bill was introduced which was entitled, "An Act Relative to Conforming the Short Presidential Ballot in Massachusetts to the Voting Rights Act of 1970 and to the Attorney General's Opinion Thereon."^ This bill was eventually enacted as St. 1972 c. 637, with the title "An Act Expediting the Right of Certain Persons to Vote for Presidential Electors." It is a well-settled principle that the legislative history of a law may be considered in order to ascertain its purpose and meaning, and that a statute's "title . . . may be considered in determing its construction." Silverman v. Wedge, 339 Mass. 244, 245 (1959). There can be little doubt that the legislation was meant to extend only to presidential elections, and I therefore conclude that you should provide those citizens qualifying under the provisions of Section IF with the special "short ballot." Your fifth question is whether those provisions of the absentee voting law concerning delivery by mail or voting in the office of the clerk apply to absentee ballots cast pursuant to Section IF. A voter who requests an absentee ballot under G.L. c. 54, §§87-92, specifies whether he will return his ballot by mail or will cast his ballot at the city or town clerk's office. There are separate proce- dures which apply to ballots cast by mail and ballots which are cast in person. G.L. c 54, §92. The terms of Section IF do not specify which method of voting is to be employed by persons who qualify under that section. The statute merely pro- vides: "... such ballots . . . shall be cast in the polling places designated under the provisions of section twenty-four.'"' This language should be contrasted with the more specific language con- tained in G.L. c. 54, §87, which makes specific provision for the voter to request that the ballot be mailed or to vote in person. Further comparison with the provisions of G.L. c. 54, §92, governing the method of voting by absentee ballots, is also instructive. That section differentiates between "a voter who has received by mail an official absent voting ballot" and "a voter whose ballot is delivered to him in person." G.L. c. 54, §92. Section IF simply provides that the registrars of voters "shall forward an absentee ballot" and does not specify the manner for delivery. It is the normal rule of statutory construction that the statute must be so construed as to provide an effective piece of legislation in harmony with com- mon sense and sound reasoning, Morrison v. Selectmen of Weymouth, 279 Mass. 486, 492 (1932), and that it be interpreted in the light of pre-existing law and the main objective to be accomplished. A. Belanger & Sons, Inc. v. Joseph M. Concannon Corp., 333 Mass. 22, 25 (1955). 1 conclude, therefore, that Section IF contemplates casting absentee ballots, provided thereunder, either in person at the office of the clerk or by mail.*^ ^The Opimon of the Attorney General referred to m the title of the bill was Issued on December 2 1970 and concerned the literacy and age requirements for voter registration. 1970/71 Op. Atty. Gen. No. 23. Rep. A.G. Pub. Doc. No. 12 at 70 ( 19/1 ). ^General laws c. 54, §24 provides for the designation of polling places where ballots provided under G.L. c. 51 . §1 A are to be cast. SSection IF expressly provides that the provisions of G L. c 54. S§94-96, shall apply to ballots cast thereunder Those statutes deal with processing absentee ballots and challenges that may be made to their validity. 102 P.D. 14 The final question which you posed is whether the Commonweahh is in compliance with Section 202(0 of the Voting Rights Act Amendments of 1970, 42 U.S.C. 1973aa-l(f) (1976). That section provides: No citizen of the United States who is otherw ise qualified to vote by absentee ballot in any State or political subdivision in any election for President and Vice President shall be denied the right to vote for the choice of electors for President and Vice President, or for Presi- dent and Vice President, in such election because of any require- ment of registration that does not include a provision for absentee registration. As I have interpreted the provisions of Section IF, it provides an effective manner by which every citizen of the Commonwealth, who is otherwise quali- fied, may vote for presidential and vice presidential electors. It is therefore my opinion that the Commonwealth is in full compliance with the Federal Voting Rights Act. Very truly yours, FRANCIS X. BELLOTTI Attorney General