Dumas v. Gagner
| Decision Date | 06 April 1999 |
| Docket Number | No. 66563-0,66563-0 |
| Citation | 137 Wn.2d 268,971 P.2d 17 |
| Parties | Nicholas DUMAS, Respondent, v. Bobbie GAGNER, Benton County Auditor, and Sue Frost, Appellants |
| Court | Washington Supreme Court |
Andrew K. Miller, Benton County Prosecutor, Terry Tanner, Jr., Deputy, Kennewick, for Appellant Bobbie Gagner.
Terry Miller, Kennewick, for Respondent Nicholas Dumas.
Christine Gregoire, Atty. Gen., Jeffrey Even, Asst. Atty. Gen., Olympia, for amicus Secretary of State.
Appellant Sue Frost seeks direct review of a Benton County Superior Court order annulling and setting aside her election as Commissioner of Port District Number One of the Port of Kennewick because she is not a resident of that District but is a resident of District Number Two. 1 We granted review. We reverse.
The question presented in this case is whether the trial court was correct in granting the petition of Respondent Nicholas Dumas to annul and set aside the election of Appellant Sue Frost as a Commissioner of District One of the Port of Kennewick.
On November 26, 1997, Respondent Nicholas Dumas filed in the Benton County Superior Court a petition claiming that Appellant Bobbie Gagner, Benton County Auditor, as an election officer, committed a wrongful act by certifying the election of Appellant Sue Frost to the office of Commissioner for District Number One of the Port of Kennewick. 2 On December 15, 1997, the court allowed Appellant Frost to intervene. 3
In his petition, Respondent claims that Appellant Gagner, as Benton County Auditor, erroneously assigned Appellant Frost to voter precinct W2-P636 in Port Commissioner District One, when Appellant's residence at 4107 West 43rd Avenue is on a lot situated completely within voter precinct W2-P690 and Port Commissioner District Number Two. 4 Respondent contends that, because of the erroneous assignment, the Benton County Auditor committed a wrongful act in certifying Appellant Frost's election as Commissioner for District Number One because RCW 53.12.010(1)(a) provides that " '[o]nly a registered voter who resides in a commissioner district may be a candidate for, or hold office as, a commissioner of the commissioner district....' " 5
The election was certified on November 19, 1997, 6 and Respondent Dumas filed his petition on November 26, 1997. 7
The following diagram illustrates the relative locations of Appellant Frost's three lots on West 43rd Avenue in Kennewick, indicating (1) residential property on Lot One at 4107 West 43rd Avenue and (2) contiguous unimproved property designated as Lots Six and Five at 4105 and 4103 West 43rd Avenue:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Respondent asked for a declaratory judgment that the Benton County Auditor committed a wrongful act in placing Appellant Frost in the wrong precinct and that Appellant Frost was not qualified to hold office. 8 In addition, Respondent asked the court to set the election aside. 9 On December 18, 1997 and January 16, 1998, a hearing on the merits was held in the Benton County Superior Court before the Honorable Dennis D. Yule. 10 On February 17, 1998, the court issued a memorandum decision granting the petition. 11 On February 25, 1998, Appellant Frost filed a motion to stay enforcement of the judgment. 12 A hearing on the motion was held on February 26, 1998. 13
On March 2, 1998, the trial court entered its order setting aside and annulling the election of Appellant Frost to the office of Port Commissioner for District Number One. 14 The court concluded, as a matter of law, that Appellant Frost resides in Port Commission District Number Two, and not in District Number One; and consequently the Benton County Auditor erroneously issued a certificate of election to Appellant Frost. 15 The court also allowed a thirty-day stay to permit the parties to seek a stay of the judgment pending appeal. 16
On March 3, 1998, the court signed Amended Findings of Fact and Conclusions of Law as follows: 17
Findings of Fact
1. At all pertinent times the western boundary of that portion of Port of Kennewick Commissioner District Number One which includes section 15, TBN, R29E, WM, has been and is the section line between sections 15 and 16, T8N, R29E, Wm.
2. At all pertinent times the western boundary of voting precinct W2-P636, separating it from voting precinct W2-P690 immediately to the west, has been and is the section line between sections 15 and 16.
3. Union Street in the city of Kennewick runs north and south; its center line is the section line separating sections nine and ten immediately north of sections 15 and 16 and separating sections 15 and 16 to the point where Union Street ends at its intersection with 27th Avenue. If Union Street were extended as a straight line south from that intersection it would run along the western boundary of section 15 and voting precinct W2-P636.
4. During or before 1992 Frost acquired Lots five and six, block four, Canyon Lakes Number 11, Phase Two, and Lot one, Canyon Lakes South Hill, Phase One. The three lots are adjacent to each other, forming a row of three lots running east and west, so that the eastern boundary of Lot one is the western boundary of Lot six, and the eastern boundary of Lot six is the western boundary of Lot five. The three lots are bounded on the north by West 43rd Avenue. The section line separating sections 15 and 16 constitutes the boundary line which separates Lot one from Lot six. Lot one is in section 16; Lots six and five are in section 15.
5. In 1992 Frost began planning and construction of houses on the above described property. Early preliminary plans called for a house (variously referred to as an office/maid's quarters and as a guest house) to be constructed principally on Lot six with a portion extending westerly onto Lot one and a larger, main house to be constructed on Lot one. The plans were later modified to locate both houses entirely on Lot one.
6. When construction began on the houses, West 43rd Avenue extended west only to approximately the boundary between Lots one and six, where it terminated in a turn around. No completed street then bordered Lot one. Access to construction of the houses on Lot one was by a temporary driveway from West 43rd Avenue entering the property at approximately the boundary between Lots six and five and proceeding across Lot six to the construction sites.
7. During or after construction of the houses, West 43rd Avenue was extended west along the northern boundary of Lot one. Since then access to the three lots has been provided solely by a driveway from West 43rd Avenue onto Lot one.
8. Frosts's [sic] property lies within the city limits of the City of Kennewick, and the Kennewick billing official responsible for determining and assigning street addresses to new properties assigned the addresses 4103 West 43rd Avenue, 4105 West 43rd Avenue and 4107 West 43rd Avenue to Lots five, six and one, respectively.
9. At the time that building and utility permits for construction of the houses on Lot one were initially issued by the City of Kennewick, the street address used for those permits was 4105 West 43rd Avenue, the street address assigned by the city to Lot six, at which access to the construction on Lot one was provided. The title report for Frost's residence stated the street address to be 4103 West 43rd Avenue.
10. Frost has lived in the houses on Lot one since 1992, first in the smaller of the two and then, upon its later completion, in the larger, main house.
11. Frost's entire property, consisting of the three lots, has been enclosed by a three strand barbed wire fence. At her expense, Frost constructed a sidewalk adjacent to West 43rd Avenue along the northern boundary of the three lots. Following construction, those portions of Lots five and/or six which had been utilized for access to the house construction sites were reseeded for the purpose of returning them to their natural condition.
12. The immediate area surrounding the two houses is artificially landscaped with lawns and shrubbery, an outdoor swimming pool, rock walls, a paved driveway, concrete landscaping strips, black rock and an underground sprinkler system. This improved area lies almost entirely within Lot one. Beyond that area the property is maintained in its natural state of flora and fauna.
13. The only improvements or alterations on Lot five are the barbed wire boundary fencing and the sidewalk along its northern boundary.
14. The only improvements or alterations on Lot six are the boundary fencing and sidewalk along its northern boundary and some concrete landscaping strip and rock and shrubbery extending its farthest point approximately 24.5 feet east from the west boundary of Lot six.
15. Frost's current plans are for the addition, within the next year or two, of additional parking, a croquet court and a ramada on Lot six and/or five.
16. Since her acquisition of the property Frost has considered the three lots to be a single parcel forming an enclosed, residential compound. The two houses were located with the intent of their being in approximately the center of such compound.
17. Lots, one, six and five have never been legally consolidated into a single legal parcel and remain three legally separate and distinct parcels of property.
18. In 1992 Frost registered to vote by providing the Auditor with the information requested, consisting principally of the street address assigned by the City of Kennewick to the houses, 4107 West 43rd Avenue. Based upon that address and its application by Auditor's office personnel to a Kennewick street grid map provided by the city and utilized by the Auditor as a city voting precinct map, Frost was registered in voting precinct W2-P636. W2-P636 is in Port...
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