Petition filed by voters of SAD #43 with the State Board of Education pursuant to 20 M.R.S.A. §301

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD S. COHEN ATTORNEY GENERAL STEPHEN L. DIAMOND JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J. STOLT 79-113 DEPUTY ATTORNEYS GENERAL H. Sawin Millett, Jr. Commissioner Dept. of Educational & Cultural Services State House Augusta, Maine 04333 STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 June 5, 1979 Re: Petition Filed by Voters of SAD #43 with the State Board of Education Pursuant to 20 M.R.S.A. §301. Dear Sawin: This is in response to your oral request made on behalf of the State Board of Education. Specifically, you have inquired as to whether the State Board has jurisdiction to act upon a petition which has been presented to it by voters of .School Administrative District #4 3. The main issue regarding the petition is that it does not contain a sworn, verification statement made by its circulator. It is the opinion of this office that the State Board does have jurisdiction over the petition even though the petition was not acknowledged by its circulator before an oath taking officer so long as the substance of the petition shall not have misled interested parties as to its purpose. There is l:imited case law in the State of Maine dealing with the petition procedures. Those cases, which have been decided by the Law Court, deal with the specific procedures spelled out in either the Constitution (Maine Constitution Article IV, Part 3, Section 18), or in specific statutes. See Opinion of Justices (1951), ll4 Me. 557; Opinion of Justices (1917), ll6 Me. 557; Opinion of Justices (1927), 126 Me. 620; Opinion of Justices (1934), 132 Me. 523. An analysis 0£' 20 M.R.S.A. §301, second paragraph, reveals that the procedure prescribed by the Legislature for this type of petition is that the State Board shall, "upon petition by 10% of the number·of voters for the gubernatorial candidate at the last regular election in all of the rmm:icipalities comprising the District, rrake a finding of fact as to whether the representation of the District is apportioned in accordance with this section." The only requirements set forth in this paragraph is that the State Board receive a petition whigh has been signed by 10% of a specified class of people. There is H. Sawin f.:illett, Jr. June 5, 1979 Page 2 no requirement in section 301 that the petition be acl-::r:owledged by its circulator before subr.ti.tting it to the State Board. Elsewhere in the Maine Revised Statutes, the Legislature has been specific as to what steps :::ust be adhered to before the receiving body shall have jurisdiction over the petit:!.c~. See 30 M.R.S.A. §5353; 21 M.R.S.A. §323.2; 21 M.R.S.A. §445,7(A); and ~.air:e Cc~stitution, Article rv, Part 3rd, §18, all of which require the necessary ad:r:c~'iledgpient by the circulator. Section 301 does not contain the specific, procedural requirements set forth in the above statutes. It would seem tr~t if the Leg:!.slat-ze had intended the petitior.ers to have to cc:::;ily 1dth the requirer.:ents set forth :.:: tte Constitution or in the above enur:.erated sections of the }filne Revised Statutes, then the Legislature would have specifically required it in §301. In 1953 the Sunreme Court of r,fumesota ruled en a auestion similar to the one which you r.ave raised. It had to interpret the pro•risions of M.S.A. §122.28, which stated in part that the County Board could dissolve a school district or any other district on a petition signed by a majority of tte resident free holders of the district. The Court held that "the mere filing with the County auditor of a petition signed by the requisite nur.ber of qualified signers and otherwise conform- ing to law con.fers jurisdiction upon the Board of Coun:y Commissioners." It further ruled that the petition was not defective "because it 1•:as not acknowledged by the signers before an oath taking officer." The Court's reasoning was based on the fact that "section 122.28 simply provides that a petition for dissolution shall be signed by a majority of the resident free holders. It contains no requirerent that the petition be both signed and acl-mowledged. It is elementary that an acknowledgpient is r.:erely evidentiary in its purpose except as it rray by statute be made essential to the validity of the instrument or essential to its admissibility in evidence or as a condition for its recordiri.g. In the atsence of a statutory requirement therefor, a peti tio:-i fer the dissolution of a functioning school district pursuant to §122.28 need not be acknowledged." In Re Dissolution of'School District #33 (Minn., 1953) 60 N.W. 2d, page 60, 66. See State v. :-:or...r (Iowa, 1924), 199 N.W. 278 and Ir. P.e School District #5 of Dcxl.r2:e County (Ei..nn., 1963), 120 N.W. 2d 319. Therefore, the 3oard r1.as jurisdiction over the petiti.on ;:resented to it relative to S.A.D. #43 so long as the language within the petition is not misleading and the requisite me::-.be:r of voters have signed it. WGB:lm Waldemar G. Buschmann Assistant Attorney General