From the pages of
Pinedale Roundup
Volume 103, Number 23 - February 8, 2007
brought to you online by Pinedale Online

Town council candidate case may be headed for partial summary judgment
P&Z Chairman sues council members, town clerk over eligibility
by Annie O’Brien

The lawsuit brought by Loretta Deats and Robert Brito, Pinedale Planning and Zoning Board Chairman, against four individuals involved in last May’s town council election will likely receive a partial summary judgment, or a ruling from a judge. Brito and Deats filed suit against council members Dave Smith and Chris House, candidate Erik Ashley and town clerk Patty Racich, claiming Smith and Ashley were ineligible for candidacy because they were not registered voters on the day they filed petitions to be run for town council and their inclusion on the ballot rendered the entire town council election invalid. Brito and Deats first filed a complaint on May 17, 2006, just over two weeks after the election.

Seven candidates competed for the two open seats on the council. Dave Smith earned 183 votes, followed by Chris House, who received 125. Dave Hohl came in third with 108 votes, trailed by Barbara Boyce, Brito, Tony Fagnant and Erik Ashley. In their complaint, Brito and Deats alleged Smith and Ashley were not “qualified electors,” or eligible contenders for public office because they were not registered voters when they petitioned for candidacy, in violation of Wyoming statute.

The plaintiffs argued in their complaint that the combined 236 votes Ashley and Smith received “could have gone to other candidates, which could have enabled any of the other five proper candidates for the office of council member to have received more votes and to have been elected.”

In the second part of their case, which will not be included in the upcoming partial summary judgment, the plaintifffs also maintain that Deats and other Pinedale residents were turned away from voting booths on the day of the town council elections because they had registered less than 30 days before the May 2 election. Deats registered to vote on April 26, 2006. Smith and Ashley were able to vote even though they did not register until the day of the election. Deats’ inability to vote was not only illegal, the plaintiff’s argued, but also may have altered the election because Deats, and the other, unnamed voters who were turned away, might have affected the outcome of the election.

Racich, the town clerk is accused of skewing the election results “due to her failure to properly determine if a person seeking nomination is a qualified candidate,” the plaintiffs’ first amended verified complaint states, and for denying Deats the opportunity to vote.

Brito and Deats acknowledge Chris House, the second place finisher in the town council election, possessed all the proper credentials for candidacy in the race, but his current position on the council may be the result of a fraudulent electoral process. “By all rights, Chris House did nothing wrong,” Brito said, but insisted that a ballot carrying ineligible candidates rendered his victory null.

In a memorandum in support of their motion for partial summary judgment, the plaintiffs asked the court to either void Smith’s election and give Dave Hohl, the third place finisher, Smith’s seat on the council. Alternatively, the claimants are asking the canvassing board to declare the entire election null and order the county clerk to call for a special election. The defendants, who either declined or could not be reached for comment, claim neither man knew his registration status until the day of the election. In the May 25, 2006 issue of the Pinedale Roundup, Smith said he was registered to vote for recent presidential elections.

It also maintains the town of Pinedale has chosen, by charter ordinance, “not to conduct its elections in the same manner as state wide elections,” according to Smith’s affadavit. While state statute requires a candidate for municipal office must be a registered voter and resident of the place he seeks office, in its charter ordinance, Pinedale excluded itself from the part of Wyoming’s Election Code dealing with “nominations and primary elections.”

The defense also cites a Wyoming Supreme Court case, Rue v. Carter, in which Carter, a candidate for Cheyenne’s city council discovered she was not a registered voter after petitioning to run for the council. She registered to vote and won the primary and general election, but her victory was challenged on the grounds that she was not a qualified elector when she applied for nomination.

Her nomination petition contained the final sentence, “I hereby declare that if nominated and elected, I will qualify for the office.” Both Smith and Ashley signed petitions with the final sentence, “I hereby declare that if elected, I will qualify for office.” These similar sentences, the defense argues, suggests candidates have the duty to meet the requirements of their sought office as soon as possible before being elected. The plaintiff’s attorney, Clark Stith, countered that Rue v. Carter could not be used in the defense because shortly after the Carter decision, in 1997, the state legislature amended its laws to overrule the ruling. And in the state supreme court ruling Hayes v. City of Sheridan, the judges found a candidate must be a registered voter on the day he files his petition to be included on the ballot.

Ed Wood, counsel for the defendants, also claimed that ruling in favor of the plaintiff’s could unfairly override popular will, by forcibly removing the most widely supported elected official. “Dave Smith was by far the largest votegetter. Why would you disenfranchise all those voters?” Wood asked.

Brito said he learned Smith was not registered to vote prior to the election when Brito’s grandfather observed Smith standing in the voter registration line on May 2. Brito claims he approached Smith privately and asked if he would withdraw from the election, and received a rude refusal. He insists the lawsuit is not the result of sour grapes.

“I ran my race the way it was. If people don’t want me on town council, I’m happy,” Brito stated, adding, should the court decide to call for a new election, he would not include his name on the ballot.

The case, Brito said, has been difficult for himself and his family. “A lot of people didn’t want me to go through with this lawsuit. They said let it go,” he claimed. But he felt compelled to file the suit.

“Am I supposed to live for four years in Pinedale knowing he’s not supposed to be there? As P & Z chairman, I have to work with him everyday,” Brito added. Brito also thought the town council election had deprived Pinedale citizens of their right to vote in a fair, straightforward election. “Voting is free speech,” he said.

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