Fuller v. Board of Education

1994 OK CIV APP 36, 875 P.2d 1156, 65 O.B.A.J. 2099, 1994 Okla. Civ. App. LEXIS 53, 1994 WL 259277
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 1, 1994
DocketNo. 82217
StatusPublished
Cited by1 cases

This text of 1994 OK CIV APP 36 (Fuller v. Board of Education) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller v. Board of Education, 1994 OK CIV APP 36, 875 P.2d 1156, 65 O.B.A.J. 2099, 1994 Okla. Civ. App. LEXIS 53, 1994 WL 259277 (Okla. Ct. App. 1994).

Opinion

OPINION

HUNTER, Presiding Judge:

Appellants filed a petition to enjoin temporarily and permanently the issuance of school bonds, alleging election irregularities sufficient to warrant the injunction. Specifically, Appellants claimed that more than nine voters were not legally qualified voters of the school district; that Appellees actively solicited people to register and vote in the election who were not qualified voters of the district; that the notices of the election did not list the polling places; that the precincts were not established by the County Election Board but rather by the School Superintendent and that the “election was not properly conducted.”

At the hearing for the temporary injunction, the parties agreed that the court should consider that hearing as the hearing on the merits for the permanent injunction. The issue upon which the case turned was whether Appellants could carry their burden of proving that the result of the election, because of election irregularities, could not be determined with mathematical certainty. [1158]*1158The trial court considered the testimony of the witnesses and the documentary evidence submitted. It found that the evidence proved six votes were improperly cast and four other votes were questionable. In denying the injunction, the trial court specifically found that Appellants failed to carry their burden of proving that it was impossible to determine with mathematical certainty the result of the election.

According to the certified results of the election, 208 votes were cast in favor of the issuance of the bonds and 125 votes were cast against the issue. School district indebtedness is not allowed unless approved by three-fifths (⅜) assent of the voters. Okl. Const. Art. 10, § 26.

The issues preserved for review are (1) whether there were improper votes cast by people who were not qualified to vote in the election by virtue of not being residents of the district; (2) whether it was impossible to determine with mathematical certainty that the bond issue passed by a three-fifths majority of the legal votes cast and (3) whether the election notice complied with the law. Appellants raise other issues for review, but we will not address them because they were either not placed before the trial court in the first instance, not briefed or there was a failure to adduce evidence on the allegation at trial. Bane v. Anderson, Bryant & Co., 786 P.2d 1230, 1237 (Okl.1990), DLB Energy Corp. v. Oklahoma Corporation Comm., 805 P.2d 657, 659, fn. 6 (Okl.1991), Rudnicki v. Town of Valley Brook, 424 P.2d 973, 974 (Okl.1967).

We follow the rule that courts must, in resolving the issue of whether the persons seeking to enjoin the issuance of bonds have met their burden of proof, whenever possible, uphold the validity of bond elections. Quinn v. City of Tulsa, 777 P.2d 1331, 1340 (Okl.1989). We indulge every presumption in favor of the validity of a bond election. Jackson v. Maley, 806 P.2d 610, 615 (Okl.1991). Contests about the conduct of special elections proceed in equity. Walker v. Oak Cliff Volunteer Fire Protection District, 801 P.2d 762, 768 (Okl.1990).

I.

Appellants presented the testimony of fifteen witnesses who voted in the bond election but who Appellants alleged were not residents of the school district. After the testimony, the court found six of the voters were not qualified to vote in the election and four other voters had questionable qualifications. Just because a voter is not living in his district, however, does not render his vote illegal. Moore v. Hayes, 744 P.2d 934, 937 (Okl.1987). Whether a person is a resident of the district is a fact question. We will not disturb the trial court’s findings of fact on the issue of a person’s intended residence unless the determination is clearly against the weight of the evidence. Moore at 937. Having read the testimony of the witnesses and examined the exhibits, we find the trial court’s determination conclusive. Although the court did not specify which six voters were not qualified to vote or which four voters it found had questionable qualifications, it is clear that the fact determination is not clearly against the weight of the evidence. One witness, for instance, had always voted in Moyers, had only been registered in that town but was living in Durant, Oklahoma, during the time of the election because he was a student at the University there. This witness was qualified to vote in the election.

II.

Next, we address the question whether it was impossible for the court to determine with mathematical certainty whether the bond issue passed by a three-fifths majority of legal votes east. “Mathematical Certainty” is a phrase used in connection with irregularities alleged to have occurred in elections involving candidates. 26 O.S.1991 § 8-120(2) 1 . Jackson v. Maley, [1159]*1159806 P.2d 610, 614 (Okl.1991), Helm v. State Election Board, 589 P.2d 224, 228 (Okl.1979). In cases involving allegations of election irregularities in noncandidate elections, such as bond issues, the court has stated that the test is whether the irregularities were sufficient to change the ultimate results of the election. Porter v. Oklahoma City, 446 P.2d 384, 391 (Okl.1968). In light of 26 O.S.Supp. 1992 § 13A-101(A), the statute requiring the general election laws to apply to all elections for school districts, with certain exceptions2, we hold that “sufficient to change the ultimate result” means proving that “it is impossible to determine with mathematical certainty” the election result.

Whether an election result can be determined with mathematical certainty, however, requires the use of some formula or calculation. The correct total to use is the one reflecting legal votes, not the total of all votes east, including illegal votes. In Baggett v. State Election Board, 501 P.2d 817, 824 (Okl.1972), the court stated “... the Election Board cannot determine with mathematical certainty which candidate received the majority of the legal votes cast because of the inexcusable conduct of certain precinct election officials ...” Jackson v. Maley, supra, also supports our holding that the correct total from which to determine how many aye votes are necessary to obtain a three-fifths majority is the total of legal votes cast. The Jackson court states, at 615, that the illegal votes must be in sufficient numbers to eliminate the margin of victory and that an illegal vote should be discarded.

In the instant case, the court found six illegal votes and four questionable votes. Counting them as ten illegal votes, the total legal votes east would be 323 instead of 333. Three-fifths of 323, or 60% of 323, yields 193.8 (194) votes required to comprise three-fifths. Subtracting ten from the victors side, 208-10, leaves a difference of 198. Because 198 exceeds the three-fifths margin of 194 by four votes, the election result is determinable with mathematical certainty.

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1994 OK CIV APP 36, 875 P.2d 1156, 65 O.B.A.J. 2099, 1994 Okla. Civ. App. LEXIS 53, 1994 WL 259277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-board-of-education-oklacivapp-1994.