From the pages of
Sublette Examiner
Volume 7, Number 5 - April 26, 2007
brought to you online by Pinedale Online

Smith intends to appeal election suit judgment

by Janet Montgomery and Trey Wilkinson

David Smith, who was removed from his seat on the Pinedale Town Council by the partial summary judgment in the civil action against the 2006 municipal election, filed a notice to appeal the judgment last week.

Dated April 19, the court documents indicate the intent of the defendant in the Ninth Judicial District Court’s findings from March 20.

With the filing of the notice of appeal, the case will be prepared for the Wyoming Supreme Court review after the transcripts from the hearing are received with Smith filing the appeal in the high court.

On March 20, Judge Norman Young signed the formal partial judgment on the civil action against the 2006 election and did not grant the requested stay but rather ordered the judgment to become effective immediately.

“District Court Judge Norman Young entered his formal order today. He did not issue a stay of the Judgment as previously requested. As a result, Councilman David Smith will be replaced by the candidate with the third highest votes, Dave Hohl, in accordance with state statute Wyoming Statute 22-17-108,” said Pinedale Mayor Stephen Smith of no relation in a statement release issued in March. “We are sorry to see Councilman Smith go, and I personally appreciate his dedication and service to the town. We will all continue working productively with our new councilman, to continue solving the many pressing issues facing our town.”

Young noted in the court documents, “In this case, ... the more likely irreparable damage would result from granting a stay.”

Young ruled from the bench on March 8 that Councilman Smith was not a qualified candidate at the time of the Pinedale Municipal Election. Young then annulled the election of Dave Smith and declared Dave Hohl the elected official for the Town Council of Pinedale.

The civil action filed on May 30 challenged the May 2, 2006, town election, claiming that two of the candidates, Dave Smith and Erik Ashley, were not qualified electors as they failed to meet the registered voter requirement and should not have been on the ballot. With the most votes of any candidate at 183, Dave Smith was elected to the Pinedale Town Council along with Chris House, who is also named as a defendant in the suit along with Ashley and Pinedale Town Clerk Patty Racich.

The plaintiffs, Robert Brito, who was also a candidate in the election, along with fellow Pinedale resident Loretta Deats, filed the civil action asking the May 2 municipal election to be annulled and David Hohl, the candidate with the third highest number of votes, take the council seat, according to court documents.

“The fact that defendant David M. Smith and defendant Erik Ashley were not registered voters or electors when they executed their election applications obviously had no impact on the outcome or validity of the election,” according to the defenses’ Jan. 8 filed objection to the plaintiffs’ motion for partial summary judgment. “The will of the people should not be overturned on the mere irregularities upon which plaintiff bases the suit and his motion.”

Filed on Jan. 29, the plaintiffs’ reply, prepared by Rock Springs attorney Clark D. Stith, argued that the state plainly requires that a candidate must be a registered voter on the day the petition was filed and that because Smith was not a registered voter on that day, he was not eligible to be a candidate for Town Council.

The plaintiffs claim that if Smith and the other defendants were correct, there would be no qualifications for candidates for municipal office based on age, residency or citizenship.

“Under their view, Arnold Schwarzenegger, Fidel Castro, Vladimir Putin, convicted felons, illegal aliens and the entire fourth grade class of Pinedale Elementary School could all appear on the ballots as candidates for Town Council for the Town of Pinedale,” according to the document. “It is indeed surprising and disappointing that the Town of Pinedale and Dave Smith would take such a cavalier attitude toward public office.”

The plaintiff’s reply surmises that the defense opposition to the plaintiffs’ motion for a partial summery judgment is based upon three false assumptions: that the defense is relying on case law from the 1996 Rue V. Carter decision in its argument that has been legislatively overturned, that the Town of Pinedale is exempt from state law establishing elections, and that because Smith’s error was “apparently unintentional, his ineligibility to be a candidate for municipal office was ‘mere informality or irregularity’ that should be overlooked.”

In a reply brief, the plaintiffs argued back that during the 1997 Wyoming legislative session, which immediately followed the Rue V. Carter decision by the Supreme Court, the election law was amended. The law was changed to state, “In order to be eligible, a candidate must be a registered voter and a resident of the municipality and ward which he seeks to represent on the day the petition is filed...”

The reply also pointed out the town’s apparent power to exempt candidates from state mandated qualifications for office through application of the statutes allows for an optional mode of elections for towns.

The document reads “contrary to the assertions of the Town, this statute does not authorize a municipality to set different qualifications for candidates for public office. Rather, it authorizes alternative procedures for the election of candidates who are qualified as provided by state law.”

The plaintiffs also asserted that the town ordinance, “which purports to exempt the Town entirely from Wyoming (Statutes) ..., is unconstitutional to the extent that it attempts to eviscerate all candidate qualifications for municipal office ...”

While the plaintiffs recognized the Home Rule amendment of the Wyoming Constitution, which allows a town to exempt itself from certain statutes, the document says that a town is not allowed to exempt itself from those statutes, which are “uniformly applicable to all cities and towns.”

“Thus, the Home Rule Act makes constitutional statutes that allow for an optional mode of election, ... but it does not allow towns to repeal state statutes that have uniform application.”

The document further argued, “because the Town of Pinedale cannot exempt itself from uniform state laws, the Pinedale Charter Ordinance is unconstitutional to the extent that it purports to exempt the Town from the application of the candidate qualification requirements of (Wyoming Statutes).”

Further arguing, the reply reads, “Candidates eligibility requirements are strict, not mere formalities, and they do not depend upon the candidate’s state of mind.”

The plaintiff stated that the defense’s reliance upon the case of Anselmi v. Rock Springs to support the theory that Smith’s failure to be a qualified voter was a mere informality is misplaced as the case argues stipulated an erroneous point of percentage of indebtedness in a ballot proposition.

“Unlike (Anselmi v. Rock Springs), which involved the scope of information disseminated to voters in a bond election, candidate qualifications for public office are either-or propositions. A person is either a resident of a municipality or not. A person is either a town employee or not. A person has either been convicted of a felony or not. A person is either registered to vote on the day he signs his petition or he is not. There is no middle ground. A person either meets the minimum qualifications or he does not.”

Brito was in attendance at Monday’s town council meeting voicing two concerns relating to the lawsuit and town elections.

“I spoke with Ed Wood, who was first the town’s attorney and is now Dave Smith’s individual attorney,” Brito said. “I don’t want my tax dollars going to this lawsuit for an individual person.”

Mayor Steve Smith informed Brito that the town was not involved and citizen’s tax dollars were not going to the lawsuit.

Brito also brought up the fact that the Town of Pinedale had a lot of outdated election laws that he would like to see update – some that dated back to 1988, he said.

“The council has every intention of reviewing those laws before the next election,” Mayor Smith said.

Brito thanked the mayor and council for their time and responses to his concerns.

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