Peck v. Monson

652 P.2d 1325, 1982 Utah LEXIS 1035

• Court: Utah Supreme Court
• Decided: August 23, 1982
• Docket: No. 18646
• Status: Published

Opinions

HALL, Chief Justice:

The petition in this matter was filed pursuant to the provisions of U.C.A., 1953, 20-1-11 to resolve a controversy that has arisen regarding the candidacy of Catherine Peck (Peck) for the Democratic nomination for Representative to the Utah State House of Representatives, District 69.

David S. Monson, Secretary of State/Lieutenant Governor of the State of Utah (Monson), appeals from the order of the district court which directed him to accept the candidacy of Peck, and which directed the appropriate county clerks to place the name of Peck on the primary election ballot.

The facts of this case, as found by the trial judge, are not in dispute. On April 26, 1982, one Janet Prazen filed her declaration of candidacy for the Democratic nomination for the Utah House of Representatives, State Legislative District No. 69, believing that she was a resident of that district and that she was fully qualified as a candidate for said office. The fact that Prazen was not a resident of District 69, but resided across the street in District 70, was not discovered until after the filing deadline had passed. Thereupon, the Utah State Democratic Central Committee submitted their certification of Peck, pursuant to U.C.A., 1953, 20 4 11, to fill the vacancy occasioned by Prazen’s disqualification for lack of residency within the district. Peck does reside in District 69 and is otherwise qualified, but Monson has declined to accept her as a replacement candidate.

It is further undisputed, and the trial judge so found, that all parties to this proceeding have acted in a good faith belief that their actions were legal and proper.

The trial judge accepted jurisdiction and viewed the facts of this case in the light of U.C.A., 1953, 20-4-11, supra. He concluded that Prazen was disqualified as a candidate within the meaning thereof, and that Mon-son was therefore required to accept Peck as a duly certified replacement candidate. The said statute reads as follows:

When there are If no more than two candidates have filed for a nomination and one or both shall die, resign dies. resigns because of becoming physically or mentally disabled as certified by a physician or become is disqualified y after the close of the filing period r-and but before the primary election or if after the primary convention and before the general election ? a candidate shall die, resign dies, resigns because of becoming physically or mentally disabled as certified bv a physician or beceme is disqualified, the proper state or county central committee, as the case may be, of that party shall certify the name of another candidate or candidates , if available, to the proper filing election officers.¹

Monson’s sole contention on this appeal is that the trial judge erred in interpreting the foregoing statute as having application to a disqualification that existed at the time of filing for office, and which persisted after the filing deadline had passed. He asserts that the disqualification contemplated by the statute is one that arises after the filing deadline, and since Prazen’s lack of residency disqualified her as a candidate at the time she filed for office, the statute affords no basis upon which a replacement candidate may be certified. For several reasons, we do not agree.

It is first to be observed that the statute in question does not contain language that expressly limits the disqualification of a candidate to an occurrence which comes after the filing deadline has passed. On the other hand, the fact that the present tense verb “is” precedes the term “disqualified” each time it appears in the statute fully supports the contrary conclusion of the trial judge that the statute contemplates a disqualification whether it existed prior to the filing deadline or not. This is to be seen in that the phrase “is disqualified” simply connotes the ascertainment of a state of being. In the absence of any limiting language in the statute, it matters not whether the state of being disqualified arose before or after the deadline for filing.

It is also to be observed that in each instance where the phrase “is disqualified” appears in the statute, it is preceded by the disjunctive “or” following the phrase, “dies, resigns because of becoming physically or mentally disabled as certified by a physician.” The latter phrase clearly contemplates a disqualification that occurs after the filing deadline. However, when contrasted with the general phrase which follows, “or is disqualified,” an alternative basis for disqualification is provided for. The legislative intent thus emerges to encompass within the statute any and all disqualifications, irrespective of the time of their occurrence. Particularly is this so in light of the 1981 amendment which substituted “is” for “shall . . . become” preceding the word “disqualified.” That language change negatives the concept of a legislative intent to limit the disqualification of a candidate to an' occurrence after the filing deadline.

Monson advances the contention that should the ruling of the district court be left to stand, it would invite abuse by those seeking to manipulate the electoral process. We view the contention to be without merit, particularly in light of the provisions of U.C.A., 1953, 20-4-9 which require those filing as candidates for public office to swear or affirm under the penalties of perjury as to their place of residence, qualifications for office, willingness to accept nomination and not withdraw, and that they will not violate the election laws. We deem those statutory provisions as adequate safeguards against any potential for abuse of the statute that may exist.

Affirmed. No costs awarded.

STEWART, HOWE and DURHAM, JJ., concur.

1 . As amended, 1981.