Becker v. Pfeifer

• Decision Date: 07 January 1999
• Docket Number: No. 20633,20633
• Parties: Larry BECKER, Plaintiff and Appellant, v. Julie PFEIFER, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 913

588 N.W.2d 913

1999 SD 17

Larry BECKER, Plaintiff and Appellant, v. Julie PFEIFER, Defendant and Appellee.

No. 20633.

Supreme Court of South Dakota.

Considered on Briefs Jan. 7, 1999.

Decided Feb. 4, 1999.

Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, for plaintiff and appellant.

James A. Wyly of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for defendant and appellee.

SABERS, Justice.

¶1 Larry Becker appeals from an order quashing and dismissing his application for writ of certiorari to review a recount of a municipal election. He also appeals from the judgment determining the election was valid and declaring Julie Pfeifer the winner in an election contest. We affirm the order and the judgment of the trial court.

FACTS ¹

¶2 Becker and Pfeifer were candidates for the office of city commissioner of the City of Aberdeen in its general election held June 2, 1998. Six candidates vied for this position and voters were instructed to cast their votes for only one candidate. Ballots determined to be marked for more than one candidate were not counted as a vote for any of the candidates. Election returns showed Becker the winner by two votes.

¶3 Pfeifer requested a recount pursuant to SDCL 9-13-27.3. ² A recount board was established according to this statute. It consisted of three persons, a representative of each candidate and an additional person, appointed by the finance officer, who was mutually agreeable to the two candidates.

¶4 The votes were recounted and ballots on which the voter had blackened the oval next to Pfeifer's name and placed an "X" in the oval beside another candidate's name were counted as a vote for Pfeifer. Another ballot, that showed an "X" in the oval beside Pfeifer's name and a filled oval and circle around Becker's name, was not counted as a vote for Becker. None of these nine overvoted ballots had originally been counted as a vote for any of the candidates. Four ballots originally counted for Pfeifer were disputed by Becker as having identifying marks; these ballots were counted by the recount board as votes for Pfeifer. The recount gained two votes for Pfeifer with the result being that Pfeifer and Becker each had an equal number of votes. Lots were drawn to determine the winner. Pfeifer won the draw and was named the winning candidate. She was issued a certificate of election under SDCL 9-13-27.2.

¶5 Becker petitioned for writ of certiorari, which was granted, and the matter set for hearing. Becker also filed a complaint contesting the election pursuant to SDCL ch 12-22. Following a hearing, the trial court concluded the election was valid and declared Pfeifer the winning candidate. The court quashed Becker's petition for writ of certiorari to review the proceedings of the recount board. Becker appeals raising three issues:

1. Whether the certiorari provisions of SDCL ch 12-21 governing recounts apply to municipal elections.

2. Whether the recount board exceeded its jurisdiction.

3. Whether irregularities in the election, ballot counting, and recount resulted in the free and fair expression of the will of the voters.

Additional facts will be presented as they are relevant to the discussion of the issues in this appeal.

ANALYSIS AND DECISION

¶6 1. Whether the certiorari provisions of SDCL ch 12-21 governing recounts apply to municipal elections.

¶7 Becker petitioned for writ of certiorari to review the proceedings of the recount board. The trial court quashed the writ and dismissed on grounds that municipal recount board proceedings may not be reviewed by writ of certiorari and on grounds that there was no evidence the board exceeded its jurisdiction sufficient to invoke SDCL ch 21-31 governing certiorari (see issue two below). Becker argues the trial court erred and that SDCL ch 12-21 provides a basis for granting certiorari in municipal elections.

¶8 SDCL ch 12-21 governs election recounts and provides for certiorari proceedings under SDCL 12-21-47 through 12-21-59. SDCL 12-21-6 provides where this chapter shall apply:

Except in school and municipal elections and as provided in § 12-21-18, the provisions of this chapter apply to the recount of ballots cast in any election conducted.

This statutory language clearly excludes municipal elections but Becker argues the exclusion relates only to "recounts of ballots" and not to the appeal process following a recount.

¶9 Becker's argument fails to consider the well-established rules of statutory construction that language of the statute is given its plain meaning and must be considered as a whole.

Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Taylor Properties, Inc. v. Union County, 1998 SD 90, p 14, 583 N.W.2d 638, 641 (quoting Moss v. Guttormson, 1996 SD 76, p 10, 551 N.W.2d 14, 17; US West Communications, Inc. v. Public Utilities Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993)).

¶10 By plain language, the provisions of SDCL ch 12-21, including SDCL 12-21-47 through 12-21-59 regarding certiorari, do not apply to municipal elections. Therefore, Becker is limited to the remedies regarding recounts provided by SDCL ch 9-13 governing municipal elections. Examination of the legislative history of SDCL 9-13-27.4 shows this was the legislature's intent. Effective July 1, 1984, the South Dakota legislature added a new section to SDCL ch 9-13. This new section, SDCL 9-13-27.4, provided that "[n]otwithstanding any other provisions of law, recounts of municipal ballot questions, initiatives, referendum and recall shall be conducted pursuant to the provisions set forth in chapter 12-21." (emphasis added). During the 1995 legislative session, this statute was amended to its current version as follows:

Notwithstanding any other provisions of law, recounts of municipal ballot questions shall be conducted when, within five days after completion of the official canvass of a municipal ballot question election at which a question is approved or disapproved by a margin not exceeding two percent of the total votes cast in the election, any three registered voters of the municipality file a petition duly verified by them, setting forth that they believe a recount will change the outcome. A recount board shall be appointed by the finance officer who shall appoint one person on each side of the question and one person who shall be mutually agreed upon by the other two appointed. The recount shall be conducted according to the provisions of § 9-13-27.3.

So, effective July 1, 1995, the legislature demonstrated its intent that certiorari under SDCL ch 12-21 not be available to challenge a recount of ballots in a municipal election.

¶11 SDCL 9-13-27.3 provides that "[a]ny question arising on the recount shall be determined by majority vote of the recount board." The legislature did not specifically provide for certiorari in a municipal election dispute. ³ The trial court did not err in determining that certiorari was not available under SDCL ch 12-21.

¶12 2. Whether the recount board exceeded its jurisdiction.

¶13 As noted above, the trial court's order was also based on grounds that there was no evidence the recount board exceeded its jurisdiction sufficient to invoke the general certiorari provisions in SDCL ch 21-31. SDCL 21-31-1 provides:

A writ of certiorari may be granted by the Supreme and circuit Courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

This Court's scope of review is confined to questions regarding the jurisdiction of the board and whether the board regularly pursued the authority conferred upon it. SDCL 21-31-8; Save Centennial Valley Ass'n, Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979). Writ of certiorari is not the proper remedy for review of alleged errors or irregularities in a proceeding. Burlington Northern R. Co. v. Circuit Court, 497 N.W.2d 440, 442 (S.D.1993).

¶14 Before we address Becker's specific claim under this issue, we note that in two prior cases involving municipal elections, this Court has declared that a writ is an extraordinary remedy and not available to challenge municipal elections because another adequate remedy exists, namely the election contest statutes in SDCL ch 12-22. In Cormick v. Ramsey, 27 S.D. 302, 130 N.W. 768 (1911), Cormick filed a petition for writ of certiorari supported by an affidavit alleging that votes that should have been counted in an election for sale of intoxicating liquors in the city of Woonsocket were rejected by election officials. We affirmed the order quashing and dismissing the petition on grounds that the election contest statutes provided Cormick with a plain, speedy and adequate remedy. More recently, in Sorenson v. Rickman, 486 N.W.2d 259, 261 (S.D.1992), which reaffirmed Cormick, we reversed an order issuing a writ of prohibition that would have prohibited submission of an annexation question to the voters of the city of Deadwood. A stay of this order was granted and the voters of Deadwood defeated the proposed annexation. We held an adequate remedy existed in the election contest statutes to challenge the election results and that Sorenson was not entitled to the issuance of the extraordinary writ.

¶15 Notwithstanding this legal precedent, Becker seeks a writ claiming that the recount board exceeded its jurisdiction by misapplication of the law, specifically by not applying this Court's holding in McIntyre v. Wick, 1996 SD 147, 558 N.W.2d 347 regarding the...