Facer v. Allen
| Decision Date | 12 May 1998 |
| Docket Number | No. 960463,960463 |
| Citation | 958 P.2d 919 |
| Parties | 343 Utah Adv. Rep. 3 Lorin FACER, Plaintiff and Appellant, v. R. Lee ALLEN, Allen L. Jensen, James J. White, and Box Elder County, Defendants and Appellees. |
| Court | Utah Supreme Court |
Phillip W. Dyer, Salt Lake City, for plaintiff and appellant.
Karra J. Porter and Nathan D. Alder, Salt Lake City, for defendants and appellees.
Lorin Facer, a former justice court judge, complains that the Box Elder County Commission abolished the precinct in which he held office within ninety days before the 1994 general election in violation of Utah Code Ann. § 17-5-212(3) (1994), 1 and thereby deprived him of the right to run as a candidate in an unopposed retention election as provided by Utah Code Ann. § 78-5-134(4) (1993). The trial court found no violation and granted summary judgment in favor of the County. The judge appeals.
In 1991, plaintiff Lorin Facer was appointed to a four-year term as justice court judge of the Box Elder County South Precinct. His term ended in February of 1995, and he decided to run for another term in the general election to be held on November 8, 1994. Accordingly, in January of 1994, the Judicial Council certified him to stand unopposed in a retention election. In February, the County published a notice of the upcoming retention election. Judge Facer filed his candidacy and paid his filing fee on March 7, 1994.
On September 6, 1994, only sixty-two days before the November 8 election, the Box Elder County Commission passed a resolution combining the north and south precincts into one, effective the first Monday in February 1995, thus eliminating one justice court judgeship. On September 29, the County officially notified Judge Facer that his name had been removed from the ballot and refunded his filing fee. The next day he requested the county clerk reinstate his name on the ballot. Acting on the advice of the county attorney, the clerk denied the request. Judge Facer then petitioned the district court to have his name included on the ballot, arguing that the County violated section 17-5-212(3), which provided: "No precinct or election district shall be established or abolished, nor may the boundaries of any precinct or district be altered or changed in the ninety days prior to any election." The court heard oral arguments and denied his petition in a memorandum decision on October 20, 1994, stating:
[Section] 17-5-212(3) was intended to prevent the re-drawing of election district lines in such a manner as to influence the outcome of votes in contested elections. However, to the extent this section applies to justice court precincts, the changes contained in the ordinance do not abolish the precinct, nor alter or change its boundaries, within 90 days before the election.
Judge Facer then moved for and was granted leave to amend his complaint to pursue a claim for wrongful discharge. He then sought to depose the county commissioners in order to show bad faith in his dismissal. The County subsequently moved for summary judgment, which the district court granted, stating that the court "interprets the doctrine of legislative immunity to bar an inquiry into the motives for a commissioner's vote."
Summary judgment is proper only where there are no disputed issues of material fact, and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); Wilcox v. Geneva Rock Corp., 911 P.2d 367, 368 (Utah 1996). "The interpretation of statutes poses a question of law, which this court reviews for correctness and without deference to the lower court's conclusions." Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 593 (Utah 1997) (citing Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1989)).
The parties do not dispute that the County passed the resolution to combine the two precincts on September 6, 1994, less than ninety days before the November 8, 1994, election. The County contends, however, that section 17-5-212(3)'s prohibition against abolishing "precincts" within ninety days prior to an election applies only to "voting or election precincts" (sometimes referred to as voting or election districts) and does not refer to precincts in which justice courts are established. The County further argues that the September 6 resolution did not violate section 17-5-212(3) because the effective date of the resolution combining the precincts was the first Monday of February 1995, after the November 8, 1994, election. We will address these contentions in turn.
Section 17-5-212(3) had a forerunner in the statutes of the Utah Territory. The Compiled Laws of Utah of 1888, ch. VI, § 187, subsection 4, provided that the county courts (the equivalent of today's County Commissions) shall have the power "[t]o establish, abolish and change county election precincts, but no such precinct shall be established or abolished, or the boundaries of any precinct changed within thirty days prior to any election." Later, the first state legislature enacted a statute which empowered the Board of County Commissioners in each county "[t]o establish, abolish and change election precincts, ... but no election precinct shall be established or abolished, or the boundaries of any precinct or district changed within ninety days prior to any election." 1896 Utah Laws CXXXI, § 21(3). In both of these statutes, the terminology used was "election precincts," which meant a small geographical unit where a person could register to vote and where there would be a polling place. See generally ch. CXXV (governing elections) and ch. CXXXI (), Laws of Utah 1896 which refer to "election precincts."
However, beginning in 1898, the terminology changed. Section 12-3-511(2) of the Revised Statutes of Utah (1898) provided that the Board of County Commissioners in each county had the power:
To establish, abolish, and change election districts ...; provided, that no precinct or election district shall be established or abolished or the boundaries of any precinct or district changed, within ninety days prior to any election; provided further, that no election district shall be divided between two or more precincts or municipals wards.
(Emphasis in original.) It is important to observe that the 1898 statute no longer employed the terminology "election precincts," which had been used in the 1888 and the 1896 statutes. Instead, the terminology used is consistent with the statutes governing elections in the Revised Statutes of Utah (1898) in which the small units which had previously been referred to as "election precincts" were now referred to as "election districts." See Revised Statutes of Utah § 18-4-44 (1898). The last proviso in section 12-3-511(2) (1898), "that no election district shall be divided between two or more precincts," clearly indicates that an election district and a precinct are different political units.
The officers of a precinct were named in Revised Statutes of Utah § 12-4-544 (1898), which provided:
The officers of a precinct are one justice of the peace and one constable. The Board of county commissioners of each county, as public convenience may require, shall divide their respective counties into precincts for the purpose of electing justices of the peace and constables.
All of these aforementioned statutes in the 1898 Revision are in accord with article XI, section 1 of the Utah Constitution which provides that "[t]he several counties of the Territory of Utah, existing at the time of the adoption of this Constitution, are hereby recognized as legal subdivisions of this State, and the precincts, and school districts, now existing in said counties, as legal subdivisions thereof...." The article makes no mention of election districts but speaks instead of precincts as legal subdivisions of the county.
Section 17-5-212(3)(1994) contains the identical prohibition that was contained in section 12-3-511(2) (1898). Both statutes refer to "precinct or election district," making it clear that these terms are not merely alternative designations for the same unit. Indeed, such an assumption would contradict the constitutional definition of precinct. Furthermore, from 1898 down to 1993, our statutes on elections used the term "election district" or sometimes "voting district" to refer to that small unit where voters cast their ballots at a polling place. See Utah Code Ann. §§ 20-2-1 to -30 (1991) 2 and 20-7-1 to -43 (1991).
In State v. Beasley, 22 Utah 2d 423, 454 P.2d 880 (1969), a criminal defendant appealed her conviction contending that the jury had been selected from a master jury list that had been compiled in violation of Utah Code Ann. § 78-46-18 (1953), which provided that "[n]ames shall be selected as far as practicable from the several precincts of the county in proportion to the number of votes cast therein." In affirming defendant's conviction, this court wrote:
It would appear that the term "precinct" as used in the Constitution and the statute was meant to apply to a political subdivision originally having to do with law enforcement and maintenance of the peace.... However, the precinct is not synonymous with the voting district, and in fact the precinct may embrace two or more voting districts.
22 Utah 2d at 426, 454 P.2d at 881 (emphasis added) (footnote omitted).
We therefore hold that the prohibition against abolishing precincts within ninety days preceding an election contained in section 17-5-212(3) applies to that subdivision of the county referred to in the Constitution and the statutes as a precinct in which a constable and justice court judge (formerly justice of the peace) serve, and that precincts are separate and...
To continue reading
Request your trial
-
Esquivel v. LABOR COM'N OF UTAH
...1997); see also Jeffs v. Stubbs, 970 P.2d 1234, 1240 (Utah 1998); Pappas v. Richfield City, 962 P.2d 63, 65 (Utah 1998); Facer v. Allen, 958 P.2d 919, 921 (Utah 1998). In addition, "[w]here the issue is a question of law, ... appellate review gives no deference to the trial judge's or agenc......