345 P.3d 689 (Utah 2015), 20140764, Cox v. Laycock

Docket Nº:20140764
Citation:345 P.3d 689, 2015 UT 20
Opinion Judge:Nehring, Associate Chief Justice.
Party Name:SPENCER J. COX, in his official capacity as Lieutenant Governor for the State of Utah, Petitioner, v. THE HONORABLE CLAUDIA LAYCOCK, in her official capacity as District Court Judge in the Fourth Judicial District, Millard County, State of Utah, Respondent. JIM DYER, STEVE MAXFIELD, T.J. LOVATO, SCOTT BLACKBURN, RUSSELL JONES, WENDY LEATHUM, and TO
Attorney:Sean D. Reyes, Att'y Gen., Thom D. Roberts, Asst. Att'y Gen., Salt Lake City, for petitioner. Brent M. Johnson, Salt Lake City, for respondent. Steven Maxfield, Kanosh, Utah, for real party in interest, Pro se. Dwight G. Beckstrand, Kanosh, Utah, for real party in interest Jim Dyer. Kathleen M. L...
Judge Panel:ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the Court with respect to Parts I, IV, and VI, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined, and the opinion of the Court with respect to Part V, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and ...
Case Date:January 30, 2015
Court:Supreme Court of Utah
 
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Page 689

345 P.3d 689 (Utah 2015)

2015 UT 20

SPENCER J. COX, in his official capacity as Lieutenant Governor for the State of Utah, Petitioner,

v.

THE HONORABLE CLAUDIA LAYCOCK, in her official capacity as District Court Judge in the Fourth Judicial District, Millard County, State of Utah, Respondent. JIM DYER, STEVE MAXFIELD, T.J. LOVATO, SCOTT BLACKBURN, RUSSELL JONES, WENDY LEATHUM, and TODD MACFARLANE, Third-Party Cross-Petitioners,

v.

NORMA BRUNSON, in her official capacity as Millard County Clerk; THE HONORABLE CLAUDIA LAYCOCK, in her official capacity as District Court Judge in the Fourth Judicial District, Millard County, State of Utah; and SPENCER J. COX, in his official capacity as Lieutenant Governor for the State of Utah, Third-Party Cross-Respondents

No. 20140764

Supreme Court of Utah

January 30, 2015

Released for Publication April 13, 2015.

As Corrected May 21, 2015.

Page 690

Fourth District, Fillmore Dep't. The Honorable Claudia Laycock. No. 140700025.

Sean D. Reyes, Att'y Gen., Thom D. Roberts, Asst. Att'y Gen., Salt Lake City, for petitioner.

Brent M. Johnson, Salt Lake City, for respondent.

Steven Maxfield, Kanosh, Utah, for real party in interest, Pro se.

Dwight G. Beckstrand, Kanosh, Utah, for real party in interest Jim Dyer.

Kathleen M. Liuzzi, Salt Lake City, for real party in interest James I. Withers.

Todd MacFarlane, Kanosh, Utah, for real parties in interest T.J. Lovato, Russell Jones, Wendy Leathum, Scott Blackburn, Todd MacFarlane.

Richard Waddingham, Delta, Utah, for real party in interest Millard County.

ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the Court with respect to Parts I, IV, and VI, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined, and the opinion of the Court with respect to Part V, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE PARRISH joined, and the opinion of the Court with respect to Part III, in which JUSTICE DURHAM and JUSTICE PARRISH joined. ASSOCIATE CHIEF JUSTICE NEHRING authored a dissent with respect to Part II, in which JUSTICE PARRISH joined. JUSTICE LEE authored the opinion of the Court with respect to Part II of his opinion, in which CHIEF JUSTICE DURRANT and JUSTICE DURHAM joined, an opinion dissenting in part with respect to Part I of his opinion, in which CHIEF JUSTICE DURRANT joined, and an opinion concurring in part with respect to Part III of his opinion.

OPINION

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Nehring, Associate Chief Justice.

INTRODUCTION

[¶1] This matter comes before us by a petition for extraordinary writ filed by Utah Lieutenant Governor Spencer Cox regarding the Republican primary election for Millard County Commissioner Seat A. The lieutenant governor challenges an August 14, 2014 district court order that set aside the election and ordered the Millard County Clerk to hold a new election as soon as possible.

[¶2] In an order issued September 5, 2014, we granted the lieutenant governor's petition and affirmed in part and vacated in part the district court's order. We affirmed that portion of the order that set aside the election. However, we vacated the part of the district court order requiring the Millard County Clerk to hold a new election. Recognizing that the election code does not address the specific circumstances presented here, we concluded that it was not the intent of the legislature that a political party be without a candidate on the general election ballot when the primary election has been set aside. We therefore looked to the most analogous provisions of the Code to guide us. Utah Code section 20A-1-501 supplies procedures for filling candidate vacancies in various situations, and we ordered that the Republican candidate be filled according to the procedures in subsection (1)(c)(iii). We explain our order more fully here.

BACKGROUND

[¶3] On June 24, 2014, Millard County held its Republican primary election for the position of County Commissioner Seat A. Mr. Dyer challenged Mr. Withers, the incumbent. According to Mr. Dyer, the unofficial vote count on the evening of June 24, 2014, yielded 1,004 votes for Mr. Dyer and 1,003 votes for Mr. Withers. The official canvass was conducted on July 1, 2014, at which Mr. Dyer alleged the County Clerk's office produced additional ballots that had not previously been disclosed to the candidates. The canvass tally resulted in 1,014 votes for Mr. Withers and 1,009 votes for Mr. Dyer, and Mr. Withers was declared the winner.

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[¶4] On July 7, 2014, Mr. Dyer requested an official recount under Utah Code section 20A-4-401, specifically challenging nine ballots as well as all provisional ballots because they had not been disclosed to him until after the official canvass. County Clerk Brunson conducted the recount on July 15, 2014. She certified the results of the recount as 1,014 votes for Mr. Withers and 1,009 votes for Mr. Dyer.

[¶5] The county commissioners met the same day to sit as the official canvassing board. Mr. Withers sat on the canvassing board in his official capacity as a county commissioner. The board discussed the recount, heard Mr. Dyer's arguments, and took public comments. In the end, the three-member canvassing board voted to certify the clerk's count and declared Mr. Withers the winner.

[¶6] On July 16, 2014, Mr. Dyer together with concerned voters T.J. Lovato, Russell Jones, and Wendy Leathum (collectively, Voters)1 filed a petition under Utah Code sections 20A-4-402 and 20A-4-403 contesting the results of the election. The petition named Mr. Withers, in his capacity as a candidate, as the sole respondent. The petition specifically challenged twenty-one votes: three absentee ballots, two voter forms, one potentially non-Republican voter, ten provisional ballots, four ballot affidavits, and one voter prevented from voting.

[¶7] On August 1, 2014, the district court held a hearing on the matter in which Mr. Dyer, the Voters, and Mr. Withers were present and represented by counsel. Millard County Clerk Brunson also appeared as a witness.

[¶8] The district court issued its Memorandum Decision, Ruling, and Order on August 14, 2014. At the outset, the court noted that " petitioners had probably filed this case against the wrong respondent." Nonetheless, the court heard and ruled on the case because neither party raised the issue of improper parties. The court discussed each of Mr. Dyer's allegations in turn and ultimately concluded that " the validity of this election cannot be established." The court determined that at least seven ballots were incorrectly counted and one voter was prevented from legally voting; therefore, because only five votes separated the candidates, the eight votes in question were sufficient to grant relief. The court explained that it could not determine for whom those illegal votes had been cast, and thus could not ascertain which candidate received the highest number of votes in order to declare a winner. Instead, the district court set aside the election results and ordered the county clerk to organize a new election immediately. Neither party appealed the district court's order.

[¶9] On August 26, 2014, the lieutenant governor filed a petition for extraordinary writ with this court challenging the district court order. The lieutenant governor petitions this court because he asserts that, as chief elections officer for the state of Utah, he " is substantially impacted by" the district court order. And because he was not named as a party below and cannot appeal the order, he therefore contends that he has no other plain, speedy, and adequate remedy. The lieutenant governor seeks to vacate the district court order and affirm the certified results of the primary election.

[¶10] The lieutenant governor raises three arguments in his petition. First, he contends that the district court did not have jurisdiction to adjudicate Mr. Dyer's petition due to a lack of standing. Second, the lieutenant governor alleges that Mr. Dyer's challenge did not meet the statutory requirement for election contests because the lieutenant governor reads the statute to " require[] proof" of a different result " if you added or subtracted the actual votes." He asserts that because the district court could not determine for whom the erroneous votes were cast, there is no proof that the illegal votes would have changed the result. Thus, in the absence of a final determination that Mr. Dyer would have won, he argues that there can be no valid contest of the election and the district court had no basis to issue its

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order. Third, the lieutenant governor argues that the district court acted outside its powers when it ordered the clerk's office to hold a new election.

[¶11] On September 3, 2014, Judge Laycock filed a response to the lieutenant governor asking this court to affirm the district court order. The response asserts that the district court had jurisdiction below and that it properly set aside and ordered a new election.

[¶12] Mr. Dyer also filed a response and opposition to the lieutenant governor as a real party in interest. Mr. Dyer argues that he had standing because he was not required to name the county clerk as a party to the action below. Additionally, he asserts that the lieutenant governor is not an appropriate party to file a writ in this matter because his role as chief election officer is purely supervisory. He further argues that the lieutenant governor's filing of the petition amounts to improper advocacy on the part of Mr. Withers's candidacy.

[¶13] Millard County and the Millard County Clerk also entered the fray, agreeing with the lieutenant governor's petition that the...

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