Mills v. Campbell County Canvassing Board

707 P.2d 747, 1985 Wyo. LEXIS 588
CourtWyoming Supreme Court
DecidedOctober 18, 1985
DocketNo. 84-302
StatusPublished

This text of 707 P.2d 747 (Mills v. Campbell County Canvassing Board) 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
Mills v. Campbell County Canvassing Board, 707 P.2d 747, 1985 Wyo. LEXIS 588 (Wyo. 1985).

Opinions

CARDINE, Justice.

In this appeal we are asked to determine whether appellant was disenfranchised for the 1984 election in Wyoming as a result of his felony check fraud convictions in Kansas. Appellant challenges the district court’s order directing that a special primary election be held on October 2,1984, to determine a Republican nominee for Campbell County commissioner. The basis for the district court’s action was the appearance of appellant’s name on the ballot for the primary election held September 11, 1984, even though he was a convicted felon in the state of Kansas. Appellee contests this court’s jurisdiction and asserts that the case is now moot.

We affirm but order a modification.

In January 1977 appellant pled guilty in a Kansas district court to two counts of felony check fraud, a violation of § 21-3707, Kan.Stat.Ann. (1969). The dollar amounts involved on the two counts were $221.32 and $231.75. Following his guilty plea, appellant was sentenced and placed on probation for a period of two years. Because appellant was not incarcerated, he was not disenfranchised in the state of Kansas. See, § 21-4603(5), Kan.Stat.Ann. (Cum.Supp.1984).

According to appellant’s brief, he was released from probation on January 21, 1979. Prior to that date he had moved to Campbell County, Wyoming, where he cur[749]*749rently resides. The parties stipulated below that appellant has never received a pardon from the governor of Kansas, nor has he received a certificate of restoration of rights from the governor of Wyoming.

On September 11, 1984, a primary election was held to determine the Republican nominee for Campbell County commissioner. Appellant was listed on the ballot as a candidate for that office. He received 338 votes and finished fourth in a field of four candidates. The top two candidates finished within 69 votes of each other. Had appellant not been on the ballot, the 338 votes he received would, in all probability have gone to the other candidates. With just 69 votes separating the top two candidates, these votes could have affected the outcome of the election. Therefore, on September 18, 1984, the Campbell County Canvassing Board for the Primary Election (hereinafter Board) declared “the County Commissioners race on the Republican ticket null and void due to one of the candidates being an unqualified elector.” The Board then called a special election to be held on October 2, 1984.

Following the calling of the special election by the Board, Bill Barkley, the candidate who had received the largest number of votes, filed a Notice of Contest in the Campbell County District Court. Mr. Barkley sought to have the election results declared valid and to stop the scheduled special election.

The Board, in its answer and counter petition to Mr. Barkley’s lawsuit, asserted that the other three primary candidates, including appellant, were necessary parties, should be joined as such, and that the court should enter a declaratory judgment finding that the Board had acted properly in declaring the primary election of a Republican nominee for county commissioner void.

A hearing was held on September 29, 1984. At that time the district court indicated that it believed the primary election must be declared a nullity because of the presence of appellant’s name on the ballot. On October 1, 1984, the court issued a writ of mandamus directing the Campbell County clerk to hold the special primary election October 2, 1984.

On October 11, 1984, appellant filed a motion to amend the writ of mandamus pursuant to Rule 59(e), W.R.C.P. This motion was denied on October 23, 1984. Subsequently, on November 2, 1984, appellant filed his notice of appeal.

The first issue we address is appellee’s contention that we are without jurisdiction to hear this appeal. Appellee maintains that the notice of appeal, filed November 2, was not timely because it was filed more than fifteen days after the issuance of the writ of mandamus.

Appellee’s position is not well taken. Appellant’s motion to amend pursuant to Rule 59, W.R.C.P. tolled the time for filing the notice of appeal. The district court had sixty days to act on the motion once it was filed. Rule 59(f), W.R.C.P. The court denied the motion within the sixty-day period. Upon the district court’s denial of the motion, appellant had fifteen days in which to file his notice of appeal. Rule 2.01, W.R. A.P.; Sun Land & Cattle Co. v. Brown, Wyo., 387 P.2d 1004 (1964). Appellant’s notice of appeal was filed within fifteen days of the denial of his motion to amend and designated with sufficient specificity the October 1, 1984 Writ of Mandamus as the order appealed from. See Rules 2.01 and 2.02, W.R.A.P. This appeal is timely.

Appellee’s second contention is that the case is now moot. This court has previously stated:

“It is settled beyond question in this jurisdiction that when no judgment rendered can be carried into effect the cause is moot and will not be considered.” Belondon v. State, ex rel. Leimback, Wyo., 379 P.2d 828, 829 (1963).

Yet, the court noted in its opinion there that this rule could be relaxed when a question of great public importance was present.

Here we believe the issue is not moot. Though the election is over, the district court’s ruling still affects appellant. The court’s ruling was that appellant was [750]*750disenfranchised and thus ineligible to run for public office. Because the ruling continues to operate as to appellant, we will address the merits of this appeal.

Appellant claims it was error for the district court to conclude that the Kansas felony convictions cost him his ability to vote and run for political office in Wyoming. Appellant’s analysis of the issue assumes that the case presents a eonflicts-of-law question. He argues that since he did not lose his civil rights under Kansas law by virtue of the convictions, Wyoming has no interest in depriving him of those rights.

He also claims that Wyoming would treat appellant’s convictions as misdemeanors if they had occurred here. The crimes with which appellant was charged in Kansas occurred in 1977; and the statutes in effect at that time control. In 1977, § 6-39, W.S. 1957 (recodified and renumbered as § 6-3-110, W.S.1977), provided that it was a high misdemeanor (maximum penalty being one year in the county jail and a $1,000 fine) to issue a fraudulent check in a dollar amount of fifty dollars or more. Arguably appellant might have been charged with a felony under § 6-17, W.S. 1957 (recodified and renumbered as § 6-2-101, W.S. 1977), which provided:

“Every person who shall falsely make, alter, forge or counterfeit any * * * check or draft * * * with intent to prejudice, damage or defraud any person * * shall be deemed guilty of forgery, and upon conviction thereof shall be punished by confinement in the penitentiary for a term not more than fourteen (14) years.”

We need not decide that question here, for he was not charged with anything in Wyoming. He was charged with check fraud in Kansas and the crimes charged were felonies under the statute charged.

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Bluebook (online)
707 P.2d 747, 1985 Wyo. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-campbell-county-canvassing-board-wyo-1985.