Ellis v. Swensen

• Decision Date: 22 December 2000
• Docket Number: No. 981782.,981782.
• Citation: 2000 UT 101,16 P.3d 1233
• Parties: Arlene ELLIS, Plaintiff and Appellee, v. Sherrie SWENSEN, Salt Lake County Clerk, Defendant and Appellant.
• Court: Utah Supreme Court

16 P.3d 1233

2000 UT 101

Arlene ELLIS, Plaintiff and Appellee, v. Sherrie SWENSEN, Salt Lake County Clerk, Defendant and Appellant.

No. 981782.

Supreme Court of Utah.

December 22, 2000.

Joann Shields, Salt Lake City, for plaintiff.

Gregory G. Skordas, Stephanie Ames, Rebecca C. Hyde, Salt Lake City, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 Defendant Sherrie Swensen ("Swensen") appeals from a district court order granting plaintiff Arlene Ellis's ("Ellis") verified petition for equitable relief pursuant to Utah Code Ann. § 20A-1-404. The petition in this matter was filed to resolve an election controversy that had arisen regarding whether a county clerk is prohibited from including an "official endorsement"—consisting of the clerk's name, facsimile signature, and official title as incumbent county clerk—on every page of the ballot booklet used in regular general elections.

BACKGROUND

¶ 2 Swensen was at all times pertinent hereto the elected county clerk for Salt Lake County. During the November 3, 1998, Salt Lake County regular general election,¹ Swensen ran for reelection as the incumbent Democratic candidate for Salt Lake County clerk. Swensen was opposed by Ellis, the Republican candidate.

¶ 3 By statutory definition, Swensen, as county clerk, was the "election officer" for the November 1998 election. See Utah Code Ann. § 20A-1-102(24)(b) (Supp.2000). Pursuant to her statutory duties as election officer, Swensen was required to prepare the regular general election ballot in a manner consistent with the Utah Election Code,² specifically those provisions governing the content and format of the ballot. See id. §§ 20A-6-301, -303 (1998).

¶ 4 At the time of the November 1998 general election, Salt Lake County used an automatic voting system which utilized "machine-counted ballots." This system consisted of a ballot booklet that was placed in a voting booth. Each page of the ballot booklet contained a "ticket" that described the type of election, the candidates' names and party affiliations, or in the case of state or county proposals or bond elections, a description of the proposal or bond. See id. § 20A-1-102(68) (Supp.2000). Unlike the previous voting system, which utilized paper ballots, the voter made no marks in the ballot booklet itself.³ Instead, the voter was given a "ballot card," see id. § 20A-1-102(4), upon which the voter indicated his or her vote by punching a hole in the card that corresponded to his or her choice as indicated by the ballot booklet. The punched card was then used to tally votes using automatic tabulating equipment. Each polling booth required only one ballot booklet for the entire election day.

¶ 5 The statutory requirements for machine-counted ballots used in regular general elections were, and still are, contained in section 20A-6-303 of the Election Code. However, section 20A-6-303 does not contain the ballot booklet's copy format, but rather, refers to section 20A-6-301, which contains the content and format requirements for paper ballots used in regular general elections. It is the interpretation of section 20A-6-301 that is at issue in this appeal.

¶ 6 Section 20A-6-301 requires that the following endorsement appear in 18-point bold type immediately below the perforated ballot stub on paper ballots used in regular general elections:

(i) "Official Ballot for ____________ County, Utah";

(ii) the date of the election; and

(iii) a facsimile of the signature of the county clerk and the words "county clerk."

Id. § 20A-6-301(c)(i)-(iii) (1998).

¶ 7 On each page of the multi-page ballot booklet used in the November 1998 general election, including the page listing candidates for Salt Lake County clerk, Swensen placed the above-described endorsement. Accordingly, Swensen's name appeared in the ballot booklet thirty-nine times—three times on the ticket for Salt Lake County clerk on which Swensen was listed as a candidate.

¶ 8 On September 25, 1998, Swensen prepared a sample ballot⁴ in accordance with Utah law, see id. § 20A-5-405(1)(h)-(j)(iii) (1998), and distributed a copy of the sample ballot to all candidates, including Ellis. On October 22, 1998, nearly a month after receiving the sample ballot, and twelve days prior to the election, Ellis sent a letter to the lieutenant governor's office concerning the appearance of Swensen's name on each page of the ballot booklet. In the letter, Ellis complained that by including her name, facsimile signature, and official title as incumbent county clerk on each page of the ballot booklet, Swensen had used the ballot for "personal campaign purposes" and had violated her duty as the election officer to insure an "impartial and unbiased election process." Ellis made no attempt during this time to contact Swensen directly regarding the ballot booklet's format, which was the proper procedure pursuant to section 20A-1-402 of the Election Code.

¶ 9 Five days later, on October 27, 1998, the lieutenant governor's office forwarded Ellis's complaint to Swensen, stating that as the election officer in Salt Lake County, Swensen was required to "render all interpretations and make all initial decisions about [election] controversies or other matters." See id. § 20A-1-402. However, neither Swensen nor Ellis contacted the other regarding the lieutenant governor's referral. Instead, Ellis filed a verified petition in the district court requesting equitable relief pursuant to section 20A-1-404 of the Election Code. Ellis's verified petition was filed on October 29, 1998, two working days prior to the November 3, 1998, election.

¶ 10 In her petition, Ellis argued that Swensen had violated section 20A-6-301 of the Election Code by placing her "official endorsement" on each page of the ballot booklet, and requested that Swensen's name be obliterated from all but the cover page of the ballot booklet before the election. By the time Ellis had filed her petition, absentee ballots had already been cast, sample ballots had been published in local newspapers, and official ballots had been distributed to 3350 voting devices at 384 polling locations throughout Salt Lake County.

¶ 11 The next day, October 30, 1998, Swensen filed an answer and motion to dismiss Ellis's petition. Swensen argued that Ellis's petition should be dismissed because (1) Ellis failed to comply with the procedural requirements of the Election Code by bringing the matter initially to the lieutenant governor's office rather than bringing the matter directly to the election officer, as required by section 20A-1-402 of the Election Code; and (2) Ellis improvidently delayed her petition until the midnight hour before the election, and therefore, her petition was barred by the doctrine of laches. Moreover, Swensen argued that even if Ellis's petition was not substantively or procedurally barred, section 20A-6-301 of the Election Code did not prohibit the county clerk from including an official endorsement on each page of the ballot booklet.

¶ 12 The same day Swensen filed her motion to dismiss—October 30, 1998—the trial court heard oral argument from both parties. Following oral argument, the trial court entered an order granting Ellis's verified petition. The trial court concluded that Swensen had improperly endorsed the ballot by including her official endorsement on each page of the ballot booklet and therefore ordered Salt Lake County to obliterate Swensen's name from each page of the ballot booklet prior to distribution at the polls. The trial court further ordered Salt Lake County to provide a form at each of the 688 precincts for the election judge's signature, certifying that the trial court's order had been followed. However, the trial court did not make any findings of fact or conclusions of law regarding Swensen's argument that Ellis's petition was barred by laches.

¶ 13 Swensen filed a notice of appeal with this court on November 30, 1998. In this appeal, Swensen raises two arguments. First, Swensen argues that the trial court erred by failing to bar Ellis, under the doctrine of laches, from petitioning for the removal of Swensen's official endorsement from the ballot booklet only two working days prior to the election. Second, Swensen argues that the trial court erred in holding that section 20A-6-301 of the Election Code prohibited the county clerk from endorsing each page of the ballot booklet.

¶ 14 In response, Ellis argues that Swensen's appeal should be dismissed on several grounds: (1) section 20A-1-404 of the Election Code does not afford Swensen a right of appeal; (2) Swensen's appeal is untimely under section 20A-5-405(3)(c)(iii) of the Election Code; (3) Swensen's appeal is nonjusticiable for mootness because the election is over; and (4) Swensen did not preserve the issues she raises in this appeal. Moreover, assuming Swensen's appeal is not dismissed on any of the above-mentioned grounds, Ellis argues that the trial court did not err in refusing to dismiss Swensen's complaint under the doctrine of laches, or in its finding that Swensen violated the Election Code by including her name on each page of the ballot booklet. Finally, Ellis argues that she should be awarded attorney fees incurred in defending against Swensen's appeal.

PRELIMINARY ISSUES

¶ 15 Before addressing the substantive issues that Swensen raises in this appeal, we must resolve four preliminary issues: (1) whether section 20A-1-404 of the Election Code affords Swensen a right of appeal; (2) whether Swensen's appeal was timely filed; (3) whether Swensen's appeal is nonjusticiable for mootness; and (4) whether Swensen properly preserved the issues she raises in this appeal.

I. RIGHT OF APPEAL

¶ 16 We first address Ellis's argument that Swensen's appeal should be dismissed because Swensen has no right of appeal. Ellis brought her verified petition for equitable relief before the trial court pursuant to section 20A-1-404 of the Election Code, which is entitled "Election...