Carson v. Reiner

• Decision Date: 23 May 2016
• Docket Number: Supreme Court Case No. 15SA292
• Citation: 370 P.3d 1137
• Parties: Kent CARSON, James "Gil" Tisue, and Dale Pass, Petitioners–Appellants, v. Sheila REINER, as Clerk and Recorder for the County of Mesa, State of Colorado; and Terri Wells, as Designated Election Official for Mesa County Valley School District 51, Respondents–Appellees, and Paul Pitton, Intervenor–Appellee.
• Court: Colorado Supreme Court

370 P.3d 1137

Kent CARSON, James "Gil" Tisue, and Dale Pass, Petitioners–Appellants,

v.Sheila REINER, as Clerk and Recorder for the County of Mesa, State of Colorado; and Terri Wells, as Designated Election Official for Mesa County Valley School District 51, Respondents–Appellees,andPaul Pitton, Intervenor–Appellee.

Supreme Court Case No. 15SA292

Supreme Court of Colorado.

May 23, 2016

Attorneys for Petitioners–Appellants: KBN Law, LLC, Mario D. Nicolais, II, Lakewood, Colorado

Attorneys for Respondent–Appellee Sheila Reiner: J. Patrick Coleman, Mesa County Attorney, Andrea Nina Atencio, Chief Deputy County Attorney—Civil Division, Grand Junction, Colorado.

Attorney for Intervenor–Appellee: Dufford, Waldeck, Milburn & Krohn, L.L.P., William S. DeFord, Barbara R. Butler, Grand Junction, Colorado.

Attorneys for Amici Curiae of Shannon Antonucci, Noelle Westcott, and Wayne Westcott: Tierney Paul Lawrence LLP, Edward T. Ramey, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Secretary of State: Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, LeeAnn Morrill, First Assistant Attorney General, Matthew D. Grove, Assistant Solicitor General, W. Eric Kuhn, Assistant Attorney General, Denver, Colorado.

En Banc

JUSTICE COATS

delivered the Opinion of the Court.

¶ 1 Carson and two other electors of Mesa County Valley School District 51 made application to this court, pursuant to section 1–1–113(3), C.R.S. (2015)

, for review of the district court's order denying their requested relief concerning a school board election. A week before the scheduled election, Carson filed a verified petition, pursuant to section 1–1–113(1), naming as respondents the county clerk and recorder and the school board's designated election official, and seeking a declaration that one of the candidates for the school board was unqualified and had been wrongfully certified to the ballot. In addition, the petition sought an order forbidding the clerk and recorder from counting votes for that candidate. The district court denied the requested relief on the grounds that section 1–1–113(1) did not authorize it to adjudicate the eligibility of a candidate at that stage of the election process.

¶ 2 Because section 1–1–113(1)

does not permit a challenge to an election official's certification of a candidate to the ballot, solely on the basis of the certified candidate's qualification, once the period permitted by section 1–4–501(3), C.R.S. (2015), for challenging the qualification of the candidate directly has expired, the ruling of the district court is affirmed.

I.

¶ 3 On October 27, 2015, one week before the November 3 regular biennial school board election for Mesa County Valley School District 51, three registered electors of the school district, Kent Carson, James "Gil" Tisue, and Dale Pass, filed a verified petition with the district court, challenging as wrongful the certification of one of the candidates. The petition indicated that it was filed pursuant to section 1–1–113(1), C.R.S. (2015)

, and it sought a judicial determination and declaration: (1) that Paul Pitton, a certified candidate for school board director of District B, was unqualified to be a candidate for that office; (2) that the designated election official committed a wrongful act in failing to verify Pitton's residence before certifying him to the ballot; and (3) that the clerk and recorder must not record or tabulate ballots marked for Pitton. The petition named as respondents the Clerk and Recorder for Mesa County, Sheila Reiner, and the district board of education's designated election official, its secretary Terri N. Wells.

¶ 4 The district court heard the petition on November 2, 2015, the day before election day. The underlying facts were stipulated by the parties. The Mesa County Valley School District, which operates under a director district plan of representation requiring school board director candidates to reside in the district the candidate in question seeks to represent, see § 22–31–107(1), C.R.S. (2015)

, is split into five separate, non-overlapping geographic areas within the school district, comprising the director districts known as Districts A–E. In August, intervenor Paul Pitton appeared before Wells, the designated election official, and after signing them, filed various documents, including an Affidavit of School Director Candidate on Qualifications for Office, affirming that he met all qualifications to run for the school director seat for District B. Wells then provided Pitton with nomination petitions.¹ Within the time period permitted by statute, Pitton submitted the completed petitions to Wells, as the designated election official, who determined them to be sufficient, subject to verification of petition signatures. Wells, in turn, submitted the petitions to the Mesa County Elections Division for signature verification, pursuant to an Intergovernmental Agreement with the Mesa County Clerk and Recorder. After receiving notice from the Elections Division that the signatures on all completed nomination petitions for District B candidates had been verified, Wells provided the Division with a list of the candidates, including Pitton, who should appear on the ballot. None of those filing the verified petition in the district court formally challenged Pitton's eligibility to be a candidate before filing their section 1–1–113(1)

petition.

¶ 5 Ruling from the bench, the district court denied the relief requested in the petition, finding that section 1–1–113(1)

did not authorize adjudication of Pitton's eligibility as a candidate at that stage in the election cycle. Instead, it ordered that the election be allowed to proceed. Petitioners immediately filed an application for review in this court, pursuant to section 1–1–113(3).

II.

¶ 6 Section 1–1–113(3), C.R.S. (2015)

, provides that upon application within three days, district court proceedings pursuant to subsection (1) may be reviewed and finally adjudicated by this court, unless the court, in its discretion, declines jurisdiction. We choose not to decline jurisdiction in this case, largely because it represents the third time in less than two years in which we have been presented with a scenario involving a certified candidate in a non-partisan school board election who, before election day, has been discovered to indisputably reside outside the district, but who nevertheless declines to withdraw; and it squarely presents a question concerning the interpretation of section 1–1–113(1), expressly reserved by this court in its earlier cases.

¶ 7 In a pair of cases arising from a single school board election and concerning the qualifications of the same candidate, Speers, we addressed two different attempts to avoid the declaration of a vacancy in the office, which would then be filled by the sitting school board, according to separate statutes governing school board vacancies. See Figueroa v. Speers, 2015 CO 12, 343 P.3d 967

; Hanlen v. Gessler, 2014 CO 24, 333 P.3d 41. As in the case before us today, sometime before election day it was discovered that despite being certified to the ballot, one of the candidates for school board director did not reside within the district in question, as required to be eligible for election to the seat. After that candidate nevertheless refused to withdraw as requested, the Colorado Secretary of State promulgated a rule mandating that "[i]f the designated election official determines, after ballots are printed, that an individual whose name appears on the ballot is not qualified for office, the votes cast for that individual are invalid and must not be counted." Hanlen, ¶ 12, 333 P.3d at 44. The Secretary justified the emergency rule as necessary to fill what he deemed a "gap" in the election code, resulting from the code's silence as to whether election officials may count votes cast for an ineligible candidate when that candidate's ineligibility is discovered prior to election day. Id. at ¶ 20, 333 P.3d at 46.

¶ 8 In upholding the district court's determination that the Secretary acted in excess of his authority, we held that the rule conflicted, at least in part, with a statutory provision requiring, under specified circumstances, votes for a disqualified candidate in a partisan election to be counted, see § 1–4–1002(2.5), C.R.S. (2015)

, but also that the "gap" in the election code postulated by the Secretary did not actually exist. See Hanlen, ¶¶ 39–44, 333 P.3d at 50–51. We reasoned that when read as a whole, the statutory scheme evidences an intent that challenges to the qualifications of a candidate be resolved only by the courts, either immediately after certification to the ballot, permitting an unqualified candidate to be barred from appearing on the ballot in the first place, see § 1–4–501(3), C.R.S. (2015), or after completion of the election, in an election contest challenging the eligibility of the candidate who wins the election to hold the office to which he was just elected, see § 1–11–201(1)(a), C.R.S. (2015). By providing the latter opportunity for an election contest, we found that the legislature expressly contemplated the situation in which an ineligible candidate could be elected to office, and it addressed that scenario by allowing any eligible elector to challenge, after the election, the winning candidate's eligibility to serve.

¶ 9 Given the limited question before us, concerning the validity of the Secretary's emergency rule, we expressly declined to opine on the merits of a post-election challenge to the eligibility of Speers to hold office and, if ineligible, whether the office should be declared vacant or whether the next highest vote-getter should be declared the candidate who was legally elected. We did, however, conclude that this statutory framework "reflects the legislature's recognition that once ballots are printed and distributed, and voting is underway, the election process must be allowed to proceed, and any late-arising...