Town appeals Smith council election ruling

by Annie O’Brien

On March 8, Judge Norman Young ruled in a Lander court that Pinedale Town Council member Dave Smith was improperly elected to the council last May because he was not registered to vote in Pinedale when he petitioned to be included on the town council ballot.

Defense attorney Ed Wood, Pinedale’s town attorney, requested a stay that would suspend Smith’s removal from the council while he appealed the case in Wyoming’s Supreme Court. Judge Young took Wood’s request for a stay under advisement, and is expected to make a decision this week. In a press release, Pinedale Mayor Steve Smith said Dave Smith would remain on the council until the judge decided to grant or deny the stay.

Robert Brito, a town council candidate and current chairman of the town’s planning and zoning board, and Loretta Deats filed a lawsuit against Smith, Patty Racich, Erik Ashley and Chris House after the May 2, 2006 town election, charging that the election was fraudulent and invalid because Smith and Ashley were not qualified electors, or were not registered to vote in Pinedale, when they filed their petitions to be placed on the town ballot in April. Smith was the top vote getter, earning 183 votes. Chris House, who was named in the suit even though he was registered to vote when he petitioned to be included on the town council ballot, took 125 votes, and Dave Hohl earned 108 votes. Brito came in fifth.

The plaintiffs’ attorney, Clark Stith, argued that had Smith and Ashley been excluded from the ballot, their combined 236 votes would have gone to other candidates, possibly changing the results of the election. In their motion for a partial summary judgment, or a ruling from a judge, the plaintiffs requested the court either declare Hohl the winner in the place of Smith or order a special election because the number of “miscast” votes exceeded the number of votes received by any candidate.

The defense countered that Pinedale’s charter ordinance exempts the town from conducting its elections “in the same manner as statewide elections,” according to Smith’s affadavit. Wyoming statute requires candidates for municipal office to be a resident of and registered voter in the place he seeks office. Pinedale, the defense argued, exempted itself from the part of Wyoming’s Election Code involving “nominations and primary elections.”

The defense also referenced a Wyoming Supreme Court case, Rue v. Carter. Carter, a candidate for Cheyenne’s City Council was not registered to vote on the day she petitioned to run for the council. She registered and won the primary and general election, but her victory was contested. The state Supreme Court ultimately found that she had fulfilled her obligation to be a qualified elector as quickly as possible, and should not be removed from the council.

Ultimately, Judge Young sided with the plaintiffs. According to Stith, the Wyoming Legislature tightened its statutes after Carter, declaring that all candidates must be registered to vote on the day they petition to be included on the ballot. A later state Supreme Court case, Hayes v. the City of Sheridan, confirmed the statute, Stith said.

Stith said he agreed with Young’s decision to declare Hohl the winner. Wyoming statute 22.17.108 states that the person to receive the highest number of legal votes should be deemed the winner of the election. However, Stith added, “Perhaps it would have been more democratic to have a new election.”

Stith also questioned the wisdom of allowing Smith to remain on the town council pending an appeal. The council’s decisions could be challenged on the grounds that Smith was illegally voting on municipal matters, Stith stated.

It remains unclear what would happen if Hohl chooses not accept the council seat. Wood speculated that the position could pass to Barbara Boyce, the fourth place finisher in the election, or might be specially appointed by the council. However, Wood stressed that there was no case law specifically addressing such a situation, and his ideas were only the result of preliminary “brainstorming.”

Hohl told the Casper Star-Tribune, “I am pleased to have the opportunity to be on the council again . . . Having the issue settled on legal grounds, rather than public opinion pleases me.”

Smith and Hohl declined to comment to the Roundup.

Brito said he was “ecstatic” at the judge’s ruling, but insisted the lawsuit was not a vendetta against Smith. Nor does he harbor any future ambitions to serve on the council. “I will not run for town council ever again,” Brito said.