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City of Casper v. Holloway

Supreme Court of Wyoming

July 17, 2015

CITY OF CASPER, and V.H. MCDONALD, CPA, in his capacity as the Administrative Services Director of the City of Casper, Appellants (Respondents),
KIMBERLY HOLLOWAY, individually and as a citizen of Casper, Wyoming, and as a member of the Smoke Free Committee, Appellee (Plaintiff)

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Appeal from the District Court of Natrona County. The Honorable Daniel L. Forgey, Judge.

Affirmed in part and reversed in part.

For Appellants: William C. Luben, City Attorney, Casper, Wyoming.

For Appellee: Mary Ann Budenske, Attorney at Law, Casper, Wyoming.

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


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DAVIS, Justice.

[¶1] Appellants City of Casper and City Clerk V.H. McDonald[1] appeal from a district court summary judgment order interpreting statutes regulating municipal referendum petitions in favor of Appellee Kimberly Holloway. We affirm in part and reverse in part.


[¶2] While Appellants present several issues for our review, because this matter is one for declaratory judgment arising from agency interpretation and application of certain statutes, our review calls for us to distill the issues into three controlling questions:

1. Was the district court's jurisdiction limited to issuing a declaratory judgment under W.R.A.P. 12.12 and Wyo. Stat. Ann. § 1-37-101 et seq. (LexisNexis 2013) concerning the interpretation of certain statutes related to a municipal ordinance referendum?

2. Did the district court err when it interpreted Wyo. Stat. Ann. § 22-23-1005 (LexisNexis 2013) to mean that qualified electors registered in a city for purposes of a municipal ordinance referendum petition remain so even if they have moved to a different address within the city without updating their address with the county clerk as required by Wyo. Stat. Ann. 22-3-114 (LexisNexis 2013)?

3. In discharging his duties under Wyo. Stat. Ann. § 22-23-1006, was the City Clerk statutorily permitted to automatically reject a signature on the municipal referendum petitions if the signatory's address stated on the petition was different than that on the county clerk's voter registration list?


[¶3] In June 2012, the Casper City Council passed an ordinance (Ordinance No. 17-12) repealing and replacing the existing ordinance that governed smoking in public places. The 2012 ordinance generally prohibited smoking in all enclosed areas of public places within the City of Casper. A year later, in June 2013, the Council passed another ordinance (Ordinance No. 15-13) amending the 2012 ordinance to loosen some of the restrictions on where smoking was permitted. The principal change was to allow smoking in bars and taverns.

[¶4] A group of individuals took exception to the 2013 ordinance and formed the Smoke Free Committee, which sought to subject the ordinance to a referendum vote pursuant to Wyo. Stat. Ann. § 22-23-1005. The Committee worked with the City Clerk to develop the form of a referendum petition. As a result of this joint effort, a final form of the referendum petition was accepted and used by the Committee in its referendum drive to place the 2013 ordinance on the ballot.

[¶5] The City Clerk for Casper, V.H. McDonald, required the statement in the form that names and addresses " must be exactly the same as it appears on the current voter registration rolls" so that his staff (acting as reviewers) could apply clear standards to determine whether signatories were qualified electors registered with the City of Casper as required by Wyo. Stat. Ann. § 22-23-1005. With the form agreed upon, the Committee began to seek signatures of qualified voters.

[¶6] The Committee ultimately and timely submitted 59 petitions to the City Clerk for his review and determination in accordance with Wyo. Stat. Ann. § 22-23-1006. There were a total of 3,078 signatures on the petitions submitted.

[¶7] Upon receiving the petitions, the City Clerk obtained the voter registration list from the County Clerk for Natrona County and supervised the review and verification of the referendum petitions by his staff. To facilitate the review, the City Clerk developed " Petition Review Guidelines" for the reviewers to compare the signatures and addresses contained in the petitions to the names and addresses as set forth in the voter

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registration list. Specifically, the guidelines set forth the following:

o Address matches with the Natrona County Clerk's registered voter list were required.
o The general form of the first name was not critical if the address matched (e.g. John and Jonathon).
o Street addresses did not require apartment numbers.
o The middle name or initial was not critical if the address matched.
o No post office box addresses were allowed.
o Suffixes were to be carefully reviewed.

The City Clerk's guidelines relaxed the requirement on the petition that names and addresses " must be exactly the same" as they appear on the then-current voter registration list somewhat.

[¶8] With the voter registration list in hand and guidelines in place, four staff members of the City Clerk's office began a methodical process of verifying the signatures on the petitions.[2] Ultimately, the City Clerk found that there were 2,393 valid signatures out of 3,078.

[¶9] Pursuant to Wyo. Stat. Ann. § 22-23-1005, a referendum petition must be signed by at least 10% of the qualified electors in the city. Based on the then current voter registration list, there were 24,543 registered voters within Casper when the petition was submitted. As a result, 2,454 valid signatures were required in order to subject the ordinance to a referendum vote.

[¶10] In light of the City Clerk's determination that the petitions contained 2,393 valid signatures, the referendum was 61 valid signatures short. The City Clerk then certified the results to Casper's City Manager.

[¶11] Undeterred, Holloway and others from the Committee sent a letter that included a list of rejected signatures they felt ought to have been considered valid to the City Clerk. The Clerk responded by letter, explaining why some of the signatures were considered invalid. While he reviewed certain signatures on the list provided by the Committee, he did not reconsider the signatures where the address on the petitions did not match the address on the voter registration list as the committee asked him to do. More correspondence followed, reaching an impasse when the Clerk stated that he would rely on the initial review of the petition signatures and would not perform a recount.

[¶12] Holloway filed a complaint in the district court challenging the City Clerk's determination. She sought declaratory and referred to injunctive relief, attempting to invoke jurisdiction pursuant to Wyo. Stat. Ann. § § 22-24-122 and 22-23-101.[3] Appellants answered, generally denying the claims, and including inter alia, a jurisdictional defense that the district court " lacks jurisdiction to hear Plaintiff's Complaint for the review and determination of declaratory and injunctive relief."

[¶13] After Holloway filed her complaint, the Committee provided the Clerk another list of an additional 102 signatures, which it claimed were wrongfully disallowed. The Clerk reviewed and compared the list of signatures, and found most had already been brought to his attention by the Committee in its previous correspondence. Nevertheless, he and his staff re-reviewed those signatures and found as follows: 4 should have been verified as valid signatures for the petition drive; 11 had previously been counted in favor of the Committee; 67 of the signatory's addresses did not match the voter registration list; 10 of the signatures were illegible; 9 of the signatories were not on the voter registration list; one signatory did not provide sufficient information; and the given names of two did not match the voter registration list.

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[¶14] The parties filed cross-motions for summary judgment. The district court held a hearing at which the parties agreed that there were no genuine issues of material fact; that is, the facts were undisputed. Thus, the district court faced only questions of law, and it entered an oral ruling in favor of Holloway, determining that:

o Jurisdiction to consider the case was derived from Wyo. Stat. Ann. § 22-24-122, which deals with statewide referenda and provides that " [a]ny person aggrieved by any determination made under this article, by the secretary of state or by the attorney general, may bring an action in the district court of Laramie county to have the determination reviewed by filing application within thirty (30) days of the date on which notice of the determination was given." [4] The district court reasoned that while the matter before the district court was a municipal referendum, the City Clerk's role was functionally equivalent to that of the Secretary of State in statewide referenda. In addition, it noted that the statutes that apply to municipal referenda appear in the Wyoming Election Code in the chapter on municipal elections, which precedes the chapter on statewide referenda.
o The standard of review to be applied to the undisputed facts should be the same as this Court applied in reviewing the Secretary of State's determination on a statewide initiative petition--i.e., whether or not that action was arbitrary and capricious. The district court found support for its position in Thomson v. Wyoming In-Stream Flow Comm., 651 P.2d 778, 791 (Wyo. 1982). It also reasoned that the arbitrary and capricious standard of review applies to administrative proceedings which were not conducted as trial-type adjudications or contested cases, citing N. Laramie Range Found. v. Converse Cnty. Bd. of Cnty. Comm'rs, 2012 WY 158, ¶ 10, 290 P.3d 1063, 1070 (Wyo. 2012).
o The City Clerk's requirement that the signatory's address match the address on the voter registration list was " legally incorrect." After reviewing the applicable statutes, the district court reasoned that " one could move lawfully to a different address within the city of Casper without updating their address and still legally be a qualified elector registered in the city of Casper." It further determined that the City Clerk's decision to automatically disqualify a signor if the address listed on the petition did not match the voter registration list " not only arbitrarily excluded signors based on an incorrect legal principle . . . it arbitrarily excluded the signors without considering and in disregard of the other information about the signor that was listed on the petition." The City Clerk should have " considered the totality of the information available as to each signor in reviewing the petitions, including the ...

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