This criminal law case is noteworthy for two reasons: First of all, it deals with a statute that makes it a felony to assault a town election official. More generally, it discusses the helpful doctrine of de facto officers.
Gail Webster was a supervisor of the checklist. The defendant Doyle allegedly became involved in a fight at the polling place during the annual town election and pushed Webster. The State indicted Doyle for felonious assault under RSA 659:41, a statute which makes it a particularly serious offense to attack “a town, city or ward officer ... in the discharge of any duty of his office at any election.”
The defendant moved to dismiss the indictment on the grounds that Webster was disqualified to act as an election officer at the time. Webster was also a candidate for cemetery trustee, and RSA 658:24 disqualifies an election official from performing election duties at an election where the official’s name appears on the ballot for another elective position. Apparently no one spotted the disqualification issue until after the indictment. The defendant argued that Webster was automatically disqualified from acting as a supervisor of the checklist; all her acts at the election were void; and she was, therefore, not discharging a duty of her office when she was assaulted. The State argued that, regardless of whether she should have been disqualified, Webster was discharging duties of the office and is covered by the statute as a de facto officer. Under the doctrine of de facto officers, the acts of a person who is elected or appointed to office and appears to hold the office in good standing will be held valid even though the person turns out to have been ineligible for the office for some reason. The trial court denied the motion to dismiss and, before trial, the issue was sent to the Supreme Court by interlocutory appeal.
The Supreme Court held that Webster was, indeed, disqualified to act as a supervisor of the checklist at the particular election. Nevertheless, she was protected by RSA 659:41 while she was carrying out the duties assigned to that office. In discussing the purpose of the de facto officer doctrine, the Supreme Court quoted the case of State v. Boiselle, 83 N.H. 339, 341-42 (1928), to explain that it is “founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions.” The defendant had no valid reason to rely on Webster’s disqualification.
One need only consider the list of tasks performed by elected and appointed municipal officers to realize the important role the de facto officer doctrine can play. Citizens should not have to worry, say, that the town clerk secretly moved out of town last week or that a zoning board of adjustment member neglected to take the oath of office.
De facto officer status is not always a valid defense, of course. For example, a land use board decision can be overturned if a member, unbeknownst to the applicant, was disqualified by reason of bias. In such a case the reason for disqualification is not merely a technicality but directly affects the rights of the applicant. Nor does the doctrine of de facto officers prevent the removal of an ineligible officer from office by a direct lawsuit for the purpose, known as a quo warranto action.