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Paul Rock, Dari Quirk & Ernest Kawa v. Mary Lankford

May 17, 2013

PAUL ROCK, DARI QUIRK & ERNEST KAWA, APPELLANTS (PLAINTIFFS),
v.
MARY LANKFORD, IN HER OFFICIAL CAPACITY AS SUBLETTE COUNTY CLERK, APPELLEE (DEFENDANT). MARY LANKFORD, IN HER OFFICIAL CAPACITY AS SUBLETTE COUNTY CLERK, APPELLANT (DEFENDANT),
v.
PAUL ROCK, DARI QUIRK, & ERNEST KAWA, APPELLEES (PLAINTIFFS).



Appeals from the District Court of Sublette County The Honorable Dennis L. Sanderson, Judge

The opinion of the court was delivered by: Davis, Justice.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] In August of 2011, the voters of Sublette County approved a ballot proposition increasing the size of the county commission from three to five. Before the proposed change could be implemented in the primary and general elections to be held in 2012, a second ballot proposition reducing the size of the commission from five back to three was submitted to the voters in May of 2012. The proposition passed, and Sublette County Clerk Mary Lankford determined that the second proposition returned the size of the commission to three, and therefore held an election for the one commission seat which would have been open if there had been no ballot propositions.

[¶2] Appellants Rock, Quirk, and Kawa challenged Lankford's decision, claiming that the additional seats permitted by the August 2011 ballot proposition could not be eliminated until they were filled, and that the May 2012 special election decreasing the number of seats was improper and void. Lankford disagreed with Appellants' interpretation of the applicable statutes, and she moved to dismiss the complaint because it was untimely and brought by an insufficient number of electors under statutes governing ballot proposition contests. The trial court denied the motion to dismiss, but agreed with Lankford that the May 2012 election was proper, and granted her summary judgment.

[¶3] The case came to us as two separate appeals. Appellants Rock, Quirk, and Kawa challenge the district court's decision as to the interpretation of the statute governing increases and decreases in county commissions in Case No. S-12-0216. Lankford appeals the district court's decision denying her motion to dismiss in Case No. S-12-0217, and raises the same issue as an alternative ground for affirmance in Case No. S-12-0216. We find that Appellants' claims are an election contest, that they were not timely filed or brought by a sufficient number of electors, and that the district court lacked jurisdiction to consider the claims. Although our decision upholds the 2012 election as did that of the district court, we find its decision to be void, and we remand for dismissal.

ISSUES

[¶4] 1. Did Appellants' claim amount to an election contest of a May 2012 ballot proposition under Wyoming Statute § 22-17-105?

2. If so, did Appellants meet the requirements to maintain a ballot contest pursuant to the above statute so that the district court had jurisdiction over the dispute?

FACTS

[¶5] Sublette County has historically been governed by a three-member Board of County Commissioners. In 2011, a group of citizens submitted a valid petition for a ballot proposition to increase the number of commissioners from three to five as permitted by Wyoming Statute § 18-3-501(b) (LexisNexis 2011). The ballot proposition was submitted to the voters at a special election held on August 16, 2011. Voter turnout was 28.67%, and the ballot proposition passed by thirty-one votes.

[¶6] Wyoming Statute § 18-3-501(b)*fn1 requires that additional commissioner seats created in odd-numbered years be filled at the next general election, meaning that the voters would have chosen the new commissioners in the primary and general elections to be held in August and November of 2012 if other events had not transpired. However, a valid petition to decrease the number of commissioners from five back to three as arguably permitted by Wyoming Statute § 18-3-501(f) was filed on March 1, 2012. Sublette County Clerk Mary Lankford (Lankford) certified the petition and placed the proposition on the ballot in a special election held on May 8, 2012. The percentage of registered voters exercising their franchise was 45.88%, and the proposition passed by 142 votes.

[¶7] Lankford determined that the second ballot proposition eliminated the two additional commission seats created by the first proposition. It would appear that she concluded that the 2012 ballot proposition cancelled the 2011 proposition. She released a proclamation indicating that one county commissioner seat occupied by a sitting commissioner and open without regard to the ballot propositions would be submitted to the voters at the 2012 primary and general elections.

[¶8] After a false start involving the filing of a soon-dismissed petition for review of Lankford's action, Paul Rock, Dari Quirk, and Ernest Kawa filed a complaint for declaratory relief and for a writ of mandamus in the District Court within and for Sublette County on June 18, 2012. We will refer to the plaintiffs below as "Appellants" for the sake of brevity, although they are also Appellees as to Lankford's appeal. All three claimed to be citizens injured by deprivation of their right to vote for three county commission candidates. Rock and Kawa also claimed somewhat enigmatically to have suffered additional injury because they could not both be elected in 2012, apparently meaning that they were or would have been candidates for the two additional seats authorized by the 2011 ballot proposition.

[¶9] Appellants asked the district court to declare that three commission seats (the two additional seats authorized by the 2011 vote plus one seat which came up for election from the pre-existing three-member commission) had to be filled in the 2012 election. They also asked the district court to declare the May 2012 special election void ab initio. They sought a writ of mandamus directing Lankford to issue a proclamation that three seats (one already in existence and two new ones) would be voted upon in the 2012 primary and general elections. Appellants also sued Secretary of State Max Maxfield in his official capacity, seeking the same relief. Secretary Maxfield was subsequently dismissed from the case, and that dismissal has not been challenged in these appeals.

[¶10] Lankford filed a motion to dismiss the complaint, arguing that the only remedy available to the plaintiffs was to have the May 2012 vote set aside in an election contest under Wyoming Statute § 22-17-105, which permits electors to contest a successful ballot proposition. She contended that the Appellants' complaint was in substance an election contest, and that the district court lacked jurisdiction to hear such a contest because the complaint was not filed within fifteen days of certification of the election results by the canvassing board, and because it was filed by three rather than five electors as required by statute. She also contended that mandamus was not available in proceedings of this kind.

[¶11] Appellants' brief in response to the motion to dismiss is not part of the appellate record. However, as discussed below, they argue here that their action was not an election contest governed by § 22-17-105, but that it was instead an effort to determine the effect of the successful 2011 ballot proposition. They therefore contend that their action did not have to be brought by five electors rather than three. They also argue that the applicable statute of limitations or repose is four years rather than fifteen days, because this is an action for injury to their rights "not arising in contract and not herein enumerated" under Wyoming Statute § 1-3-105(a)(iv)(C).

[¶12] The parties also filed cross-motions for summary judgment. Appellants claimed that § 18-3-501(b) and (f) governing increase and decrease in commission membership required Lankford to implement the 2011 ballot proposition when the two subsections are read together. They contended that she was therefore required to issue a proclamation for the election of two additional commissioners in the 2012 primary and general elections, that it was improper to hold the 2012 special election concerning a decrease in the number of commissioners, and that the results of that election were therefore void ab initio.

[¶13] Lankford responded that § 18-3-501(f) required her to hold the May 2012 special election upon presentation of a proper petition. She contended that the successful ballot proposition returned the commission to a three-member body, and that she therefore properly planned to hold an election for the one commission seat which would have been open in that year if neither proposition had been submitted to the voters.

[¶14] The district court expedited briefing and argument because of the imminent 2012 primary election. It entered a brief order dismissing Appellants' complaint for declaratory relief on July 25, 2012. On August 6, 2012, it entered a second order granting Lankford's motion to dismiss as to Appellants' mandamus claim, but denying it as to her claim that the complaint was barred because it was an election contest filed after the passage of fifteen days and not on behalf of five electors. The court concluded that Lankford "did not meet her burden of establishing that Plaintiffs' Complaint constitutes an election contest pursuant to W.S. §22-17-105 and §22-17-106."

[¶15] On August 10, 2012, the court entered yet another order explaining and conforming its decision of July 25, 2012. It found that the decision to implement the 2012 special election and to proclaim only one seat open for election was proper, explaining succinctly as follows:

Subsection (f) [of § 18-3-501] addresses the situation where the voters decide to decrease of [sic] the membership of the Board of Commissioners. The term "decrease the membership" has been argued by the Plaintiffs to indicate that the legislature intended that no vote to decrease the membership could occur unless those offices have been filled with members. Until then, they argue, there is no membership to decrease. Admittedly, this logic has some appeal. But the term "increase the membership" is used in subsections (b) and (c) along with the term "additional offices created". Obviously the term "increase the membership" is nothing more than a synonym for "creating additional offices". Similarly, decreasing the membership as contained in subsection (f) means to decrease the number of offices previously created. Because the number of offices [sic] were created or membership increased by the vote of the 2011 election, the increased number of offices created by the 2011 election could be decreased by the voters after that.

The court also concluded that the timing of the election was proper under § 18-3-501.

[ΒΆ16] Appellants appealed the foregoing decision in Case No. S-12-0216. Lankford raised the election contest statute as an alternative ground for affirmance in that case, but also filed a separate appeal challenging the district court's denial of the motion to dismiss on those same grounds in ...


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