Carson v. Reiner

2016 CO 38, 370 P.3d 1137, 2016 WL 2996939, 2016 Colo. LEXIS 521

• Court: Supreme Court of Colorado
• Decided: May 23, 2016
• Docket: Supreme Court Case No. 15SA292
• Status: Published

Opinions

JUSTICE COATS

delivered the Opmlon of the Court.

{1 Carson and two other electors of Mesa County Valley School District 51. made application to this court, pursuant to section 1-1-1188), C.R.S. (2015), for review of the district court's order denying their requested relief concerning a school board election. A week before the scheduled election, Carson filed a verified petition, pursuant to section 1-1-118(1), naming as respondents the county clerk and recorder and the school board's designated election official, and seeking a declaration that one of the candidates for the school board was unqualified and had been wrongfully certified to the ballot. In addition, the petition sought an order forbidding the clerk and recorder from counting votes for that candidate. The district court denied the requested relief on the grounds that seetion 1-1-113(1) did not authorize it to adjudicate the eligibility of a cand1date at that stage of the election process.

{2 Because section 1-1-118(1) does not permit a challenge to an election official's certification of a candidate to the ballot, solely on the basis of the certified candidate's qualification, onee the period permitted by section 1-4-501(8), C.R.S. (2015), for challenging the qualification of the candidate directly has expired, the ruling of the district court is affirmed.

I. -

13 On October 27, 2015, one week before the November 8 regular biennial school board election for Mesa County Valley School District 51, three registered electors of the school district, Kent Carson, James "Gil" Tisue, and Dale Pass, filed a verified petition with the district court, challenging as wrongful the certification of one of the candidates. The petition indicated that it was filed pursuant to section 1-1-118(1), C.R.S. (2015), and it sought a judicial determination and declaration: (1) that Paul Pitton; a certified candidate for school board director of District B, was unqualified to be a candidate for that office; (2) that the dealgnated election official committed a wrongful act in failing to verify Pitton's residence before certifying him to the ballot; and (8) that the clerk and recorder must not record or tabulate ballots marked for Pitton. The petition named as respondents the Clerk and Recorder for Mesa County, Sheila Reiner, and the district board of education's designated election official, its secretary Terri N. Wells.

4 4 The district court heard the petition on November 2, 2015, the day before election day. The underlying facts were stipulated by the parties, The Mesa County Valley School District, which operates under a director district plan of representation requiring school board director candidates to reside in the district the candidate in question seeks to represent, see § 22-31-107(1), C.R.S. (2015), is split into five separate, non-overlapping geographic areas within the school district, comprising the director districts known as Districts A-E. In August, interve-nor Paul Pitton appeared before Wells, the designated election official, and after signing them, filed various documents including an Affidavit of School Director Candidate on Qualifications for Office, affirming that he met all qualifications to run for the school director seat for District B. Wells then provided Pitton with nomination petitions¹ Within the time period permitted by statute, Pitton submitted the completed petitions to Wells, as the designated election official, who determined them to be sufficient, subject to verification of petition signatures. Wells, in turn, submitted the petitions, to the Mesa County Elections Division for signature verification, pursuant to an Intérgovernmental Agreement with the Mesa County Clerk and, Recorder. After receiving notice from the Elections Division that the signatures on all completed nomination petitions for District B candidates had been verified, Wells provided the Division with alist of the candidates, including Pitton, who should appear on the ballot. 'None of those filing the verified petition in the district court formally challenged Pitton's eligibility to be a candidate before filing their section 1-1-113(1) petition.

{5 Ruling from the bench, the district court denied the reliefrequested in the petition, finding that section 1-1-118(1) did not authorize adjudication of 'Pitton's ehglblhty as a candidate at that stage in the election cyele. Instead, it ordered that the election be allowed to proceed. Petitioners immediately filed' an application for review in this court, pursuant to section 1-1-118(8).

' IL.

6 Section 1-1-118(8), C:.R.S. (2015), provides that upon application within three days, district court proceedings pursuant to subsection (1) may be reviewed and finally adju-dlcated by this court, unless the court, in its dlscretlon, declines jurisdiction. We choose not to decline jurisdiction in this case, largely Because it represents the third time in less than two years in which we have been presented with a scenario involving a certified candidate in a non-partisan school board election who, before election day, has been discovered to indisputably reside outside the district, but who nevertheless declines to withdraw; and it squarely presents a question concerning the interpretation of section 1-1-118(1), expressly reserved by this court in its earlier cases.

~T7 In a pair of cases arising from a single school board election and concerning the qualifications of the same candidate, Speers, we addressed two different attempts to avoid the declaration of a vacancy in the office, which would then be filled by the sitting school board, according to separate statutes governing school board vacancies See Fi-guerogw v. Speers, 2015 CO 12, 348 P.3d 967; Honien v. Gessler, 2014 CO 24, 388 P.3d 41. As in the case before us today, sometime before election day it was discovered that despite being certified to the ballot, one of the candidates for school board director did not reside within the district in question, as required to be eligible for election to the seat, After that candidate nevertheless refused to withdraw as requested, the Colorado Secretary of State promulgated a rule mandating that "[1lf the designated election official determines, after ballots are printed, that an individual whose name appears on the ballot is not qualified for office, the votes cast for that individual are invalid and must not be counted." 112, 888 P.8d at 44. The Secretary justified the emergency rule as necessary to fill what he deemed a "gap" in the election code,. resulting from the code's silence as to whether election officials may count votes cast for an ineligible candidate when that candidate's ineligibility is discovered prior to election day, Id. at T 20, 883 P.3d at 46.

{8 In upholding the district court's determination that the- Secretary acted in excess of his authority, we held that the rule conflicted, at least in part, with a statutory provision requiring, under specified cireum-stances, votes for a disqualified candidate in a partisan election to be counted, see § 1-4-1002(2.5), C.R.S. (2015), but also that the "gap" in the election code postulated by the Secretary did not actually exist. See Hamilen, 489-44, 388 P.3d at 50-51. We reasoned that when read as a whole, the statutory scheme evidences an intent that challenges to the qualifications of a candidate be resolved only by the courts, either immediately after certification to the ballot, permitting an unqualified candidate to be barred from appearing on the ballot in the first place, see § 1-4-5018), C.R.S. (2015), or after completion of the election, in an election contest challenging the eligibility of. the candidate who wins the election to hold the office to which he was just elected, see §.1-11-201(1)(a), C.R.S. (2015). By providing the latter opportunity for an election contest, we found that the legislature expressly contemplated the situation in which an ineligible candidate could be elected to office, and it addressed that -seenario by allowing any eligible elector to. challenge, after the election, the winning candidate's eligibility to serve.

T9 Given the limited question before us, concerning the validity of the Secretary's emergency rule, we expressly declined to opine on the merits of a post-election challenge to the eligibility of Speers to hold office and, if ineligible, whether the office should be declared vacant or whether the next highest vote-getter should be declared the candidate who was legally elected, We did, however, conclude that this statutory framework "reflects the legislature's recognition that once ballots are printed and distributed, and voting is underway, the election process must be allowed to proceed, and any late-arising issues regarding a candidate's eligibility are to be resolved through a post-election contest." Haonien, I 44, 388 P.8d at 51.

10 With regard to the questions whether Speers was eligible to hold office and, if not, whether Figueroa, the other candidate on the ballot, was instead the one who was legally elected, Figueroa filed a separate election contest in the district court, pursuant to seetion 1-11-201. Figueroa asserted that Speers's failure to reside in the district made her ineligible to hold office, and because she was ineligible to hold office, she could not be considered "legally elected" within the contemplation of the statute, despite having received the most votes. ¶6, 348 P.3d at 969. Rather than declaring a vacancy in office, which would be filled by the sitting board, see § 22-81-129(2), CRS. (2015), Figueroa argued that the votes for Speers should therefore be nullified and that he, as the runner-up, should be found to have been legally elected. Figueroa, ¶ 6, 343 P.3d at 969. .

In that case, Where Speers had not sought to take the oath of office and had made clear her intent not to cure the defect in her residency, the district court voided her election, but rather than finding Figuerog to have been legally elected instead, it declared a vacancy in the contested office of school board director. In Figueroa, we upheld the district court's vacancy declaration, reasoning that notwithstanding Speers being unqualified for office, by not being successfully challenged prior to the election and by receiving the highest number of votes, she, rather than Figueroa, was legally © elected Id. at 1 12, 348 P.3d at 971.

12 In recounting the district court’s ruling, however, we noted its statement that the failure of the designated election official to confirm Speers's residency prior to determining the sufficiency of Speers's nominating petition was a failure to discharge her statutory duty, as contemplated by section 1-1-118(1), and therefore had Figueroa not "slept on his rights," the certification of Speers to the ballot could have been challenged in the district. court, pursuant to that provision, up to the end of election day. Id. at 16, 343 P.S3d at 969. Although we also noted the availability of certain vehicles for judicial challenge prior to election day, we took pains to make clear that we expressed no opinion "as to whether section 1-1-1138 could provide a definitive avenue to remove an unqualified candidate from the ballot after the five-day windows [of sections 1-4-501(8) and -909(1), C.R.S. (2015) ] to challenge certification have passed," Id, at 112 n.4, 848 P.3d at 971 n, 4. In the case before us today, Carson and the other qualified electors sought a declaration, prior to the election and by the authority of section 1-1-118(1), to the effect that the designated election official violated her duty by wrongfully certifying Pitton to the ballot, as well as an order mandating that the clerk and recorder not count the votes cast in the election for Pitton.

118 The nature and seope of proceedings permitted by section 1-1-118(1) is clearly a matter of statutory interpretation. A statute finds meaning according to the legislative intent expressed in the language chosen for the statute by the legislature itself. People v. Jones, 2015 CO 20, ¶10, 346 P.3d 44, 48 (citing Phom v. State Farm Auto, Ins, Co., 2018 CO 17, ¶13, 296 P.3d 1038, 1043), When the language of a statute is susceptible of more than one reasonable interpretation, and is therefore considered ambiguous, or when there ig conflicting language in different provisions, intrinsic and extrinsic aids may be employed to determine which reasonable interpretation actually reflects the legislative intent. Id. (citing Fronk M. Hall & Co., Inc. v, Newsom, 125 P.3d 444, 448 (Colo.2005)).

4 14 Among these interpretative aids are a number codified by the legislature to explain its own intent for resolving apparent conflicts among the statutes it has promulgated. See §§ 24-101 to -402, C.R.S. (2015), With regard to statutes, one of which treats an issue specifically while another can be said to govern it as- a particular species of a more generic class, the legislature has prioritized its own preferences. Where a general statutory provision conflicts with a special or local provision, it should be construed, whenever possible, so that effect is given to both. § 2-4-205, C.R.S. (2015)² However, where the apparent conflict between: such provisions proves to be irreconcilable, the special or local provision is to be understood as an exception to, and therefore as prevailing over, the general provision, unless the general provision is the later adoption and the manifest intent of the legislature is that the general provision prevail. Id. '

115 Section 11-118 does not purport to impose any duty or function upon any election official, but rather provides a procedural vehicle or method-in fact, except as otherwise provided in part 1 of article 1 of title 1 of the revised statutes, the exclusive method-for the adjudication of controversies arising from a breach or neglect of duty or other wrongful act that occurs prior to the day of an election., More particularly, as relevant to this case, it requires the district court, upon a finding of good 'cause, to issue an order requiring substantial compliance with the provisions of the election code whenever any eligible elector files a verified petition alleging that a person charged with a duty under the code has committed a breach or neglect of that duty or other wrongful act.

{16 By contrast, section 1-4-501 actually does impose a duty on the designated election official not to certify the name of any candidate who fails to swear or affirm under oath that he or she will fully meet the qualifications of the office if elected and who is unable to provide proof that he or she meets any requirements of the office relating to, among other things, residence. In addition, however, subsection (8) of section 501 specifically provides for a challenge to the qualification of any candidate by an eligible elector within five days after the designated election official issues a statement certifying the candidate; and it sets out a very specific and abbreviated timeframe within which the district court must determine whether the candidate is or is not qualified for office.

T 17 To the extent that a candidate whose residence does not fall within the current boundaries of the district may be considered "unable to provide proof" that he meets the residency requirements of the office, and the designated election official who certifies that candidate to the ballot could be said, for that reason and that reason alone, to do so wrong fully and in breach of a duty with which she is charged, any such challenge to the actions of the designated election official in certifying the candidate necessarily rests on a successful challenge to the qualifications of that candidate. And to the extent that section 113, which clearly comprehends challenges to a broad range of wrongful acts committed by officials charged with duties under the code, comprehends a specific challenge to a designated election official's certification of a candidate and the county clerk and recorder's tabulation of validly-cast votes for him, for the sole reason that he was unqualified, seetion 118 stands in relation to section 1-4-501(8) as a general to a special, or specific, provision. Furthermore, because the former provision permits the adjudication of controversies arising from any wrongful act that occurs prior to the day of an election, without further limitation, while the latter provides a specific challenge to the qualification of a candidate if made by filing a verified petition with the district court within five days of his certification to the ballot, the two provisions very much appear to be in conflict.

¶18 The legislature's own preference for resolving such an apparent conflict is to construe the statutes, whenever possible, to give effect to both. Any reading, however, that would either treat the five-day period of section 1-4-501(8) as other than a limitation on the time for filing a challenge to the candidate's qualifications, or permit an elector to challenge a candidate's qualifications indirectly through section 118 when he would be expressly barred from doing so directly by section 1-4-501(3), would effectively render the specific five-day provision simply superfluous, serving no purpose whatsoever. See § 2-4—201(1)(b), C.R.S. (2015) ("The entire statute is intended to be effective...."); see also Qwest Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 16, 304 P.3d 217, 221 (citing Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo.2008)) ("[Wle strive to interpret statutes in a manner that avoids rendering any provision superfluous."). Because we do not believe effect can reasonably be given to both provisions and because section 113 is not the later adopted of the two, see ch. 258, see, 8, § 1-1-118(1), 1998 Colo, Sess. Laws 1898, 1896 (amending and reenacting section 1-1-118(1)); ch. 187, see. 27, § 1-4-501, 1995 Colo. Sess. Laws 819, 829-30 (adding subsection 1-4-501(8)), the legislative prescription for this conflict is to give effect to section 1—4—501(3), as the spe-clal, or more specific, provision.

1 19 Limiting pre-election challenges to the qualifications of a certified candidate in this way hardly leaves a gap in the election process or suggests a dilemma for which the legislature has failed to provide a solution. As we have already reasoned in Hanien and Figueroa, the legislature expressly contemplated the situation in which an. ineligible candidate could be elected, and it addressed that scenario, without allowing for disruption of the election process once underway, by providing for a post-election challenge to a winning candidate's qualifications, resulting, if successful, in a vacancy in office rather than a declaration that the next-highest vote getter was legally elected. While our precise holdings in Hanlen and Figueroa may have been limited, our construction of the election scheme upon which those holdings rested clearly foreshadowed our resolutmn of today's application. |

120 Onee a candidate who is. ineligible to take office is certified to the ballot, without challenge, and the election is underway, there may simply be no cost-free solution. Rather than effectively disenfranchising those voting for a winning, but ultimately ineligible, candidate, or incurring the practical problems and expense of an entirely new'election, the legislature has chosen, with its existing statutory scheme, to have a va-cancey declared and, in the case of a school board director, have the vacancy filled by the currently sitting board. Apart from possible constitutional limitations, none of which has been asserted here, that choice belongs to the legislature.

IH.

{21 Because section 1-1-118(1), C.RS. (2015), does not permit a challenge to an election official's certification of a candidate to the ballot, solely on the basis of the certified candidate's qualification, onee the period permitted by section 1-4-501(8), : C.R.S. (2015), for challenging the qualification of the candidate directly has expired, the ruhng of the d1stnct court is affirmed

J USTICE EID dlssents

1 . P1tton contends he and the designated election official referred 'to an outdated director district boundary map, and neither realized that Pitton's ' address was not within the District B boundaries; during argument pentloners counsel asserted to the district court that he, likewise, did not believe Pitton had intentionally misrepresented his qualifications in his candidate affidavit,

2 , The provision provides, in full:

If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.

§ 2-4-205, C.R.S. (2015) (emphasis added).