Mary Lankford, in her official capacity as Sublette County Clerk v. Paul Rock, Dari Quirk, & Ernest Kawa

2013 WY 61, 301 P.3d 1075, 2013 WL 2130187, 2013 Wyo. LEXIS 66
CourtWyoming Supreme Court
DecidedMay 17, 2013
DocketS-12-0216, S-12-0217
StatusPublished
Cited by33 cases

This text of 2013 WY 61 (Mary Lankford, in her official capacity as Sublette County Clerk v. Paul Rock, Dari Quirk, & Ernest Kawa) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mary Lankford, in her official capacity as Sublette County Clerk v. Paul Rock, Dari Quirk, & Ernest Kawa, 2013 WY 61, 301 P.3d 1075, 2013 WL 2130187, 2013 Wyo. LEXIS 66 (Wyo. 2013).

Opinion

DAVIS, Justice.

[T1] 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.

[12] 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 Lank-ford that the May 2012 election was proper, and granted her summary judgment.

[13] 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 govérning increases and decreases in county commissions in Case No. §-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- *1078 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

[T4] 1. Did Appellants' claim amount to an election contest of a May 2012 ballot proposition under Wyoming Statute § 22-17 1057

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

[T5] 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.

[16] Wyoming Statute § 18-3-501(b) 1 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.

[17] Lankford determined that the see-ond ballot proposition eliminated the two additional commission seats created by the first proposition. It would appear that she concluded that the 2012 ballot proposition can-celled 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.

[T8] 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 Appel-lees 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.

[T9] Appellants asked the district court to declare that three commission seats (the *1079 two additional seats authorized by the 2011 vote plus one seat which came up for election from the preexisting 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.

[110] 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.

[111] 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).

[112] The parties also filed eross-motions for summary judgment.

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Bluebook (online)
2013 WY 61, 301 P.3d 1075, 2013 WL 2130187, 2013 Wyo. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mary-lankford-in-her-official-capacity-as-sublette-county-clerk-v-paul-wyo-2013.