Simmons v. McDaniel

680 P.2d 977, 101 N.M. 260
CourtNew Mexico Supreme Court
DecidedApril 13, 1984
Docket15364
StatusPublished
Cited by11 cases

This text of 680 P.2d 977 (Simmons v. McDaniel) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. McDaniel, 680 P.2d 977, 101 N.M. 260 (N.M. 1984).

Opinion

OPINION

FEDERICI, Chief Justice.

Petitioner Wray Simmons (Simmons) appeals from the Santa Fe County District Court’s decision which denied Simmons’ challenge to the sufficiency of the number of signatures on nominating petitions filed by James McDaniel (McDaniel) for the Republican Party candidacy for the office of State Corporation Commissioner. We affirm.

Simmons, in the trial court, challenged 107 signatures on varying grounds. According to the exhibits attached to his complaint the basis for challenging the validity of the signatures was as follows:

GROUNDS NUMBER OF SIGNATURES
No record of registration: 10
Not registered as Republicans: 14
Addresses not as registered: ll(three listed also as among “not registered" names).
GROUNDS NUMBER OF SIGNATURES
Illegible writing: 3
Signed by someone other than proper signator: 49
Two signatures on one line: 2
Name signed different than as registered: 5
Names not printed in second column: 17

In its letter of decision the trial court wrote:

McDaniel claims to have submitted 707 names on his petitions. The file reflects less than 600 names. However, McDaniel’s claim was not contested and so the court accepts it as true. The 707 names are in excess of the 656 required to gain him a position on the ballot.

On appeal, Simmons contests the undisputed nature of McDaniel’s claim of 707 signatures, pointing to Paragraph 11 in his complaint which alleged that “after excluding the signatures on respondent’s nominating petition precluded by Sections 1-8-30 and 31 ... there remain insufficient valid signatures to qualify the respondent as a candidate for the Republican Party Primary for State Corporation Commissioner, in that 700 minus 86 equals 614, which figure falls short of the required 656 by some 42 signatures.” Simmons contends that this allegation prevented the trial court from assuming that 707 signatures were filed.

We are told in an exhibit attached to Simmons’ brief that the Secretary of State accepted only 688 ' signatures for filing. Other than this statement by Simmons, we have no proof that the 707 signatures we have counted on the petitions filed were not accepted by the Secretary of State, nor do we have a transcript of any testimony that may have been offered before the trial court in the hearing on this matter. Clearly, the trial court’s statement that the file reflects less than 600 names is incorrect. We have verified by our own count the number of signatures contained in the petitions, and there are 707 signatures appearing on the xeroxed copies of the petitions presented to the trial court.

Of the challenges made by Simmons and listed above, the trial court made the following findings:

1. Unregistered voters: 9 of the challenges were sustained on the “testimony of the Bernalillo County Clerk.”
2. Not registered as Republicans: all 14 signatures were disallowed.
3. Addresses not as registered: 0 (three already having been listed as “unregistered”).
4. Writing illegible: 1
5. Signed by someone other than signator: 20
6. Two signatures on one line: 0
7. Names different than as registered: 2
8. Names not printed in second column: 4

The total of the number of signatures stricken by the trial court was 50.

I.

In his brief, Simmons contends that 11 signers gave addresses different than the addresses shown on their voter registration cards, and contends that NMSA 1978, Section l-8-30(C), “prescribes that a signature shall not be counted unless the ‘address as registered’ accompanies the signature.” That portion of the section prescribes only the size of the paper upon which the nominating petitions shall appear, and its form. On the other hand, NMSA 1978, Section l-8-31(B) (Cum.Supp. 1983), clearly provides:

A signature shall be counted on a nominating petition unless there is evidence presented that the person signing:
(1) is not a voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate;
(2) has signed more than one petition for the same office, except as provided in Subsection A of this section, or has signed one petition more than once;
(3) is not of the same political party as the candidate named in the nominating petition as shown by the signer’s affidavit of registration; or
(4) is not the person whose name appears on the nominating petition. (Emphasis added.)

The “address as registered” requirement urged by Simmons is not among the disqualifying causes stated by Section 1-8-31(B).

II.

Simmons next claims that two signatures different from the name as registered were allowed by the trial court because “[t]he law allows a married woman to use her given name or her married name, as she wills.” He asserts this to be an erroneous conclusion of law. We dispose of this argument upon the same grounds as above: Section l-8-31(B) does not disqualify a person signing unless it be shown that he or she is not the person whose name appears on the nominating petition. On the meager record before us, we cannot say that as a matter of law the trial court committed error or that it reached an erroneous conclusion of law, since there is nothing to review regarding the lack of name identity of the persons challenged.

III.

Simmons, in his third point on appeal, argues that since three names were deleted because all of the blanks on the nominating petitions were not filled in, the trial court should have likewise deleted other signatures where blanks appeared following those signatures and that the court “erred in overlooking” those allegedly deficient signatures.

There is nothing in the record to indicate to us that those other lines containing blanks were called to the attention of the trial court, and error may not be predicated upon matters not raised in the trial court. Koran v. White, 69 N.M. 46, 363 P.2d 1038 (1961).

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Bluebook (online)
680 P.2d 977, 101 N.M. 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-mcdaniel-nm-1984.