Malinou v. LaFrance

271 A.2d 808 (1970)

Martin S. MALINOU v. August P. LaFRANCE, Secretary of State.

No. 1144-Appeal.

Supreme Court of Rhode Island.

December 21, 1970.

*809 Martin S. Malinou, pro se, Providence, for petitioner.

Moore, Virgadamo, Boyle & Lynch, Salvatore L. Virgadamo, Francis J. Boyle, Laurent L. Rousseau; Maurice W. Hendel, Stephen F. Achille, John Quattrocchi, Jr., Herbert F. DeSimone, Attorney General, W. Slater Allen, Assistant Attorney General, for respondents.

KELLEHER, Justice.

This is an appeal by the plaintiff from a judgment of the Superior Court denying and dismissing a civil action wherein the plaintiff alleged that certain portions of G.L. 1956, chap. 15 of title 17 dealing with the positioning and placing of candidates on the primary election ballot were in violation of the equal protection clause of the fourteenth amendment of the United States Constitution. The plaintiff here is the petitioner in Malinou v. Board of Elections, 108 R.I. 20, 271 A.2d 798. His complaint was brought on the assumption that he would be a candidate in the Democratic Party Primary of September 15, 1970. Since we have affirmed the Board of Elections' finding that the plaintiff failed to qualify as a candidate in the primary, the issues raised in this appeal are moot.

The plaintiff's appeal is denied and dismissed.

JOSLIN, Justice (concurring).

I concur with the result reached by the majority, but for a different reason.

The challenge is to the fundamental fairness of a system which entitles the names of an endorsed candidate for a party nomination to be marked with an asterisk and to first-column listing on the voting machine, [G.L. 1956 (1969 Reenactment) § 17-15-8]; and which also requires that the names of all candidates for state and local offices be listed in the same first column, even if there are no primary contests for those offices § 17-15-12 (1969 Reenactment).

The question raised, while serious and one which some day must be answered, cannot be resolved in this case. Here, during oral argument, the court inquired of and was advised by the Secretary of State that to remedy the complaints would necessitate a postponement of the primary election. I am not convinced that this court has the power to do that. De Stefanis v. Board of Elections, 107 R.I. 625, 627, 268 A.2d 819, 820.