In re Green

In re Green (2006-309); 180 Vt. 597; 908 A.2d 453

2006 VT 88

[Filed 09-Aug-2006]

                                 ENTRY ORDER

                                 2006 VT 88

                      SUPREME COURT DOCKET NO. 2006-309
    
                              AUGUST TERM, 2006


  In re Appeal of Stephen Green       }          APPEALED FROM:
                                      }
                                      }
                                      }          Washington Superior Court
                                      }  
                                      }
                                      }          DOCKET NO. 413-7-06 Wncv


             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Petitioner Stephen Green appeals a decision of the superior
  court denying his request for extraordinary relief.  We affirm.  Petitioner
  is currently an elected representative to the Vermont House of
  Representatives and desires to run for reelection this November.  As
  petitioner concedes, however, he failed to timely file the consent of
  candidate form required by 17 V.S.A. § 2361 for all candidates who wish to
  appear on the election ballot.  That statute provides:

    A candidate for whom petitions containing sufficient valid
    signatures have been filed shall file with the official with whom
    the petitions were filed a consent to the printing of the
    candidate's name on the ballot.  The secretary of state shall
    prepare and furnish forms for this purpose.  The consent shall set
    forth the name of the candidate, as the candidate wishes to have
    it printed on the ballot, the candidate's town of residence and
    correct mailing address.  The consent shall be filed on or before
    the day petitions are due.  Unless a consent is filed, the
    candidate's name shall not be printed on the primary ballot.

  Petitioner sought extraordinary relief from the superior court in the form
  of an order that his name be listed on the ballot despite his failure to
  timely file the consent of candidate form.  The superior court denied
  relief, and petitioner filed this appeal.

       ¶  2.  Under the plain language of the statute, timely filing of the
  consent of candidate form is a mandatory prerequisite to a candidate being
  listed on the ballot.  See Simpson v. Rood, 2003 VT 39, ¶9, 175 Vt. 546,
  830 A.2d 4 (mem.) (holding that use of word "shall" in statute indicates
  that requirement is mandatory).  In particular, where a statute specifies
  the consequences for failure to comply with its terms, as does § 2361
  (providing that "the candidate's name shall not be printed on the primary
  ballot"), there can be no question but that the requirement is mandatory. 
  See State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616 (2000)
  (recognizing that statutory time limit is mandatory where statute states
  consequence for failing to comply).

       ¶  3.  In light of this unambiguous requirement and petitioner's
  failure to present any authority that would allow us to depart from or
  excuse this requirement, we cannot conclude that the superior court erred
  in denying relief.

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Paul Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
  
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice