Eturriaga v. Valdez

Decision Date19 December 1989
Docket NumberNo. 18081,18081
Citation784 P.2d 24,1989 NMSC 80,109 N.M. 205
PartiesJose Damian ETURRIAGA and Jacobo "Jake" Salazar, Contestants-Appellants, v. Cecilia R. VALDEZ and Joe B. Romero, Contestees-Appellees.
CourtNew Mexico Supreme Court

RANSOM, Justice.

This is an appeal from the dismissal of an election contest brought by Jose Damian Eturriaga and Jacobo "Jake" Salazar (contestants) against Cecilia R. Valdez and Joe B. Romero (contestees) following a primary election in Rio Arriba County on June 8, 1988. We primarily address a conflict between the Election Code, NMSA 1978, Sections 1-1-1 to 1-22-19 (Repl.Pamp.1985), and the Rules of Civil Procedure promulgated by this Court concerning proceedings to contest the validity of a primary election. See SCRA 1986, 1-087.

Additionally, we must decide what relief is available to the contestants in this case when, although we conclude the district court erred in dismissing the action, the general election long since has passed and the challenged candidates have been elected to public office. We conclude that the contest action is now moot and we affirm the dismissal of the action by the district court. However, we will address the merits of the points raised in this appeal as they involve important questions of New Mexico law.

Eturriaga opposed Valdez, and Salazar opposed Romero in the democratic primary for the office of county commissioner. Following the tabulation of ballots, the contestants obtained an order of the district court impounding the ballots pursuant to Section 1-14-9. After certificates of nomination were issued to Valdez and Romero on July 8, 1988, see Section 1-13-13(B), the contestants filed a verified complaint of contest with the district court on Monday, August 8, 1988, within the thirty days provided by Section 1-14-3. The complaint filed with the district court alleged that numerous unlawful irregularities and fraudulent acts had been permitted or committed by election officials and county employees in connection with absentee voting. The contestants asserted that the court should reject the votes of the entire absentee precinct, and then declare that the contestants had won the primary and were entitled to the certificates of nomination.

On August 17, 1988, contestees filed a motion to dismiss the complaint for (1) failure to state a claim upon which relief could be granted because the complaint did not allege that each contestant received more legal votes than the contestee, and (2) failure to timely file notices of contest within fifteen days of the issuance of the certificates of nomination as required by Rule 1-087(B). The contestants filed an amended complaint on August 24, 1988, which was answered the following day. Although not important to our decision, the amended complaint set out the number of votes each candidate received, and showed that the contestants would have the greater number of votes if all of the absentee ballots were to be excluded.

On September 23, the district court granted contestees' motion to dismiss the case. On October 3, contestants filed a motion to reconsider, which was denied on October 17. Thereafter, the contestants filed a notice of appeal with the district court on October 21, and later filed a docketing statement with this Court on November 21. The case was assigned to the Court's general calendar and was submitted for decision after oral argument on May 9, 1989. The general election was held on November 8, 1988, as scheduled, and Valdez and Romero were elected to office. Romero ran unopposed while Valdez faced competition from a write-in candidate only.

The district court based its dismissal, in part, upon the lack of any specific allegation in the original complaint that the contestants had received the majority of the legal votes cast. Contestees argue that under Heth v. Armijo, 83 N.M. 498, 494 P.2d 160 (1972), a complaint which fails to allege that the contestant received more legal votes than the contestee is not a claim showing that the contestant is entitled to relief. Heth should not be read so narrowly. As Heth recognized, in 1971 the legislature made the Rules of Civil Procedure applicable to election contests. Id. at 499, 494 P.2d at 161. Under these rules, technical forms of pleading are not required. SCRA 1986, 1-008(E)(1). In Heth we stated that "the gist of a successful election contest [is] that the contestant 'is legally entitled to the office.' " Id. at 499, 494 P.2d at 161 (quoting Rogers v. Scott, 35 N.M. 446, 300 P. 441 (1931)). Assertion of that factor was completely lacking in the notice of contest in that case.1 We stated:

Viewing the notice of contest as a whole, it contains neither allegation nor inference that contestants were lawfully elected to the offices they seek, or that by reason of the asserted illegality of certain votes, the results of the election would be changed, or even that the contestants are entitled to the offices for which they were candidates.

Heth, 83 N.M. at 499, 494 P.2d at 161.

Heth concluded that in order to state a valid claim the notice of contest should allege that the contestant "received more legal votes than the contestee." Id. at 500, 494 P.2d at 162. However, that language should not be construed to be the exclusive manner of stating a contest claim. An allegation that the results of the election were changed by the alleged irregularities, or that the contestant was entitled to the certificate of nomination, is sufficient to state a claim for contest. Either of these assertions can be true only if the contestant received the greater number of the legal votes cast. In the instant case the original complaint contained allegations of numerous specific irregularities in connection with the absentee voting. The complaint then alleged the following:

16. Contestants Eturriaga and Salazar, at all times mentioned herein were, and now are, registered voters of Rio Arriba County, Districts Three and Two, respectively, and were candidates duly nominated for the offices of County Commissioner, District Three and District Two, respectively, were duly nominated for those offices at the June 7, 1988 primary election, and are entitled to the nominations thereto. But for the fraudulent acts and misconduct in regard to the absentee voting set forth above, Contestants' nominations to the offices and entitlement would be manifest, and certificates of nomination would properly have been issued to Contestants.

17. By reason of the above, the Court should reject the votes of the entire absentee precinct of Rio Arriba County, New Mexico, or in the alternative, the Court should determine those votes which were cast legally, that Contestants had more legal votes than Contestees and that by reason thereof Contestants Eturriaga and Salazar are entitled to certificates of nomination to the office of County Commissioner of Rio Arriba County, Districts Three and Two, respectively, rather than Contestees.

We are of the opinion that the above statements sufficiently put the ultimate outcome of the election at issue, and did not just contest the legality of certain votes whose exclusion would have no effect on the final result. The contestants are alleged to have been "duly elected," "entitled to the nomination," and "entitled to the certificate of nomination." Further, paragraph seventeen of the complaint does allege "that Contestants had more legal votes than Contestees." A motion to dismiss pursuant to SCRA 1986, 1-012(B)(6) merely tests the legal sufficiency of the claim and not the facts that support it. Environmental Imp. Div. v. Aguayo, 99 N.M. 497, 660 P.2d 587 (1983); McCasland v. Prather, 92 N.M. 192, 585 P.2d 336 (Ct.App.1978). The original complaint as filed was sufficient to state a claim for contest.

The district court also found the filing of the original complaint to be untimely. At issue is a conflict between the Election Code and this Court's rules concerning initiation of election contest proceedings. Under Section 1-14-3, a party is directed to commence an action to contest an election by filing a verified complaint of contest in the district court no later than thirty days from the issuance of a certificate of nomination or certificate of election to the successful candidate. Under Rule 1-087(B), in order to contest the results of any primary election, notice of contest must be filed and served on the adverse party within fifteen days of the issuance of the certificate of nomination to the successful candidate.

The right of an unsuccessful candidate to contest the results of a primary election of political candidates was created by the legislature in 1943. See 1943 N.M.Laws, ch. 86, Sec. 10. Like the right to contest a general election, such a right was unknown at common law and existed only under statutory provisions. See Dinwiddie v. Board of County Comm'rs, 103 N.M. 442, 445, 708 P.2d 1043, 1046 (1985), cert. denied, 476 U.S. 1117, 106 S.Ct. 1974, 90 L.Ed.2d 658 (1986). However, the 1943 legislation only provided the substantive right of contest in the district court and the right of appeal to this Court. The legislation directed this Court to establish under our rule-making power the necessary procedural framework for the full implementation of the statute. See N.M. Const. art. VI, Sec. 3; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). This Court then promulgated Rule of Civil Procedure 1-087.2

When the legislature passed the 1943 primary election contest statute, other statutes extensively regulated the practice and procedure involved in the contest of a general election. See NMSA 1941, Secs. 56-601 [109 N.M. 209] to 56-608 (in general, providing specific time periods for the filing of a notice of contest, answer, reply, and the taking of testimony). Contest actions under these...

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