2006-231, STATE OF NH v. CHRISTOPHER DOYLE

the checklist, Webster was the “election official,” checklist for the Town of Windham’s annual town election. As supervisor of

statement. On March 8, 2005, Gail Webster was acting as supervisor of the

(

the election for “Trustee of Cemetery.” see RSA 652:15 (1996). At the same time, however, Webster was running in responsible for registering voters and maintaining the town’s voter checklist,

The trial court approved the following facts in the interlocutory appeal

affirm and remand. Coffey, J.) denial of the defendant’s motion to dismiss the indictment. We DUGGAN, J. This is an interlocutory appeal from the Superior Court’s

and orally), for the defendant. Sherman & Ricker, PLLC, of Portsmouth (Michael A. Ricker on the brief

general, on the memorandum of law and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (James W. Kennedy, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-231 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as remains protected under RSA 659:41 as, at minimum, a

her office at the time of the assault. The State contends that Webster therefore as a whole.

as written. meaning to the words used and discern the legislative intent from the statute

statute, RSA 658: p. 2 24. In pertinent part, RSA 658:24 provides: With these principles in mind, we turn first to the disqualification

whether she should have been disqualified, Webster was discharging duties of Id. Checklist at the Windham election, in reality she was not.” under RSA 659:41. The State disagrees and emphasizes that, regardless of the legislature’s intent as it is expressed in the words of the statute considered discharging “a duty of h[er] office” at the time of the alleged assault as required legislature did not see fit to include. Id. However, we are the final arbiters of by Webster at the election were void, and, as a result, Webster was not will not consider what the legislature might have said, or add language that the

ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 697 ( p. 2 2007). We

In interpreting the language of a statute, we ascribe the plain and ordinary Resolution of this case requires an analysis of RSA 658: p. 2 24 and 659:41.

Ms. Webster ought to have been disqualified from acting as Supervisor of the defendant’s prosecution under RSA 659:41 because, “[w]hile as a matter of law court denied the motion, ruling that RSA 658: p. 2 24 did not prevent the Windham election. Therefore, according to the defendant, all acts conducted automatically disqualified from acting as supervisor of the checklist at the cannot carry this burden because, pursuant to RSA 658:24, Webster was office at any election.” RSA 659:41. The defendant argues that the State at the time of the assault, said officer was “in the discharge of any duty of his prove that: (1) the defendant assaulted a “town, city, or ward officer”; and (2) acting in her official capacity as a town officer at an election.” To obtain a conviction for assault upon a town officer, the State must Webster by striking her in the chest with his hand or hands while she was that the defendant “did knowingly cause unprivileged physical contact to Gail

officer “discharging a duty of h[er] office” as required by RSA 659:41. The trial acting as an election official, see RSA 658: p. 2 24 (1996), and thus was not a town Webster was on the ballot for trustee of the cemetery she was disqualified from The defendant moved to dismiss the indictment, arguing that because

upon a town officer pursuant to RSA 659:41 (1996). The indictment alleged defendant. As a result, the State charged the defendant with felonious assault officer to quell this skirmish and, the State alleges, was pushed by the between his father and a third party. Webster attempted to locate a police At the election, the defendant allegedly became involved in a fight p. 3 3 legally the officer is absent.

disqualified officer retains possession of his or her respective office even though rather only to be absent therefrom.” RSA 658:24. In other words, a that a disqualified town officer is not “considered to have vacated any office but to the contrary notwithstanding. never less than a class B felony, other provisions of the law shall be guilty of a class A felony or a class B felony, but . . . in the discharge of any duty of his office at any election Any person who shall assault a town, city, or ward officer

the specific language of the assault statute, RSA 659:41:

RSA 658:24 is found in the second sentence. There, the legislature explains We believe that for purposes of this appeal, the most salient language of

RSA 658:24 appears to be more limited in its effects than the defendant urges. from registering voters at this particular Windham election. “temporary replacement” for any disqualified officer. RSA 658:24. On its face, be appointed as provided in RSA 658:19-658:22. disqualification statute explicitly provides for is the appointment of a have chosen more permissive language, such as “may” or “might.” proposition in the language of RSA 658:24. Indeed, the only remedy that the by her at the election were null and void ab initio. We find no support for this intent that the statute is mandatory.” it necessarily follows from Webster’s disqualification that all duties performed checklist. See RSA 652:15. We do not believe, as the defendant suggests, that she was nevertheless performing duties customary for a supervisor of the compulsory by using the auxiliary verb “shall.” disqualification has on Webster’s status at the time of the election, considering The more difficult question posed by this appeal is what effect this

Webster’s candidacy for trustee of the cemetery automatically disqualified her Rochester only to be absent therefrom. A temporary replacement shall, 15 p. 3 3 N.H. at 574. We therefore agree with the defendant that shall not be considered to have vacated any office but rather See City of (2005). Had the legislature intended disqualification to be conditional, it would an election official in that election. A person so disqualified

as a command; although not controlling, it is significant as indicating the Corpening, 15 p. 3 3 N.H. 571, 574 (2006). “[T]he word ‘shall’ is generally regarded

executing. The legislature clearly evidenced its intent to make disqualification At the outset, we agree with the defendant that RSA 658:24 is self-

position . . . shall be disqualified from performing duties as Any person whose name appears on a ballot for an elective p. 4 4

have stated previously, the de facto officer doctrine is: 1968); see also State v. Oren, 627 A.2d 337, 339 (Vt. 1993). Moreover, as we office.” duties in full view of the public. State v. Porter, 158 S.E.2d 626, 628 (N.C. officer de facto, though he . . . has subsequently become disabled to hold the but she must be in unobstructed possession of her office and discharging its performance of the duties thereof by virtue of an election or appointment, is an To qualify as a de facto officer, the officer’s title need not be good in law

Officers and Public Employees § 3 p. 4 49 (2002). de jure officer insofar as the public and third persons are concerned. 67 C.J.S. of the doctrine is to remove any distinction between the acts of a de facto and a valid as the acts of an officer de facto.” (quotation omitted)). The practical effect absolutely ineligible to hold” public office, his official acts while in office “are Resources, 233 S.E.2d 351, 352 (Ga. 1977) (“[A]lthough a person may be (quotation omitted); see also Health Facility Inv. v. Ga. Dept. of Human Center Hill Sch. Dist. No. 32 v. Hunt, 110 S.W.2d 523, 525 (Ark. 1937)

Under the doctrine, “[a] person who enters into an office and undertakes the officer in point of law.” 67 C.J.S. Officers and Public Employees § 339 (2002). reputation of being the officer he or she assumes to be, and yet is not a good facto officer. “Broadly speaking, an officer de facto is one who has the duties, Webster would nevertheless remain protected because she acted as a de charge under RSA 659: p. 4 41 requires analysis of the individual town officer’s However, even if we were to agree with the defendant that a criminal

since she was still discharging duties of “her office.” RSA 659: p. 4 41. RSA 652:15. That Webster was disqualified to so act is of no consequence supervisor of the checklist, she was also engaged in a duty of her office. See administration of the checklist, a responsibility customarily assigned to the ignoring the legislature’s inclusion of the word “office” in RSA 659:41. officer despite her legal absence. See id. Because Webster was aiding in the the particular town officer. Were we to say that it did, we would in essence be the checklist. See RSA 658:24. She therefore retained her title as a town been disqualified to act, she was still in possession of the office of supervisor of officer was discharging duties customarily assigned to his office. Webster meets this standard. As discussed above, although Webster had

ordinarily assigned to their office. protection under RSA 659: p. 4 41 when they are assaulted while discharging a duty than the duties of the officer. We therefore find that town officers are afforded to include.”). The legislature chose to focus on the duties of the office rather language of the legislation nor add words which the lawmakers did not see fit State v. Rix, 150 N.H. 131, 132 (2003) (“Courts can neither ignore the plain

statute does not, as the defendant urges, turn upon the individualized duties of

means that the focus in applying this criminal statute is upon whether the (Emphasis added.) The legislature’s use of the phrase “any duty of his office” p. 5 5

the court upheld the defendant’s conviction. typographical error in the recording of the expiration date of her appointment,

was charged. officer’s commission had expired seven days prior to the incident with which he

acting in the “unobstructed possession” of the office. Id. As a result, the court was a de facto officer at the time of the incident because, in part, she was reasoned that, regardless of the technical lapse of her appointment, the officer

evidence indicating that the officer’s commission had lapsed because of a and therefore the case against him should be dismissed. Id. After considering could not prove that his victim was an officer, a material element of the charge,

Oren, 627 A.2d at 338. The defendant asserted that the State

“hindering a law enforcement officer” after discovering that the purported lawful duty.” Similarly, in State v. Oren, the defendant appealed his conviction for

collaterally in a criminal suit. Id. the court held that the defendant was barred from challenging the officer’s title operating under color of law and was thus a de facto officer. Id. Accordingly, whether he had the required qualifications for the position, the victim had been unnecessary to pass upon the defendant’s argument because, irrespective of “performing a lawful duty” as required by the statute. Id. The court found it defendant asserted that his victim had not been a law enforcement officer thus his appointment as deputy sheriff was void. Id. at 1090. As a result, the that his victim had failed to complete a statutorily-required training course and

Mitchell, 4 p. 5 58 A.2d at 1089-90. The defendant argued on appeal

enhanced penalty for assaults upon “a law enforcement officer performing a Mitchell, the defendant was convicted under a statute providing for an Mitchell, 4 p. 5 58 A.2d at 1090; State v. Oren, 627 A.2d at 340. In State v. has addressed cases similar to this one and applied the doctrine. See State v. officer doctrine, possession of their powers and functions. see Boiselle, 83 N.H. at 341-42, the Supreme Court of Vermont While we have rarely considered the precise contours of the de facto

proceeding. See, e.g., State v. Mitchell, 4 p. 5 58 A.2d 1089, 1090 (Vt. 1983). officer’s title is a suit in which the officer is a party, such as a quo warranto been universally accepted that the regular mode for challenging such an prescribed by law [her] title is investigated and determined.” Id. at 341. It has society [her] authority is to be respected and obeyed until in some regular mode once a person is deemed a de facto officer, “[f]or the good order and peace of State v. Boiselle, 83 N.H. 339, 341-42 (1928) (quotation omitted). Accordingly,

persons clothed with the evidence of such offices and in apparent and private parties are not permitted to inquire into the title of affected thereby. Offices are created for the benefit of the public, protection of the public and individuals whose interests may be founded upon considerations of policy and necessity, for the p. 6 6

Webster, as a

BRODERICK, C.J.