In re The Contest of Election, 090718 IDSCCI, 46304

Docket Nº:46304
Opinion Judge:PER CURIAM
Party Name:In Re: THE CONTEST OF THE ELECTION (primary election-Republican nomination) FOR STATE REPRESENTATIVE IN LEGISLATIVE DISTRICT NO. 7, POSITION 'B'. v. PAUL SHEPHERD, Contestee-Respondent, PHIL HART, Contestor-Appellant, and LAWERENCE B. DENNEY, Idaho Secretary of State, Intervenor-Respondent.
Attorney:Thomas J. Katsilometes, P.L.L.C., Boise and Macomber Law, PLLC, Coeur d'Alene, for Appellant. Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Intervenor-Respondent.
Case Date:September 07, 2018
Court:Supreme Court of Idaho

In Re: THE CONTEST OF THE ELECTION (primary election-Republican nomination) FOR STATE REPRESENTATIVE IN LEGISLATIVE DISTRICT NO. 7, POSITION "B".

PHIL HART, Contestor-Appellant,

v.

PAUL SHEPHERD, Contestee-Respondent,

and

LAWERENCE B. DENNEY, Idaho Secretary of State, Intervenor-Respondent.

No. 46304

Supreme Court of Idaho, Boise

September 7, 2018

Appeal from the District Court of the Second Judicial District of the State of Idaho, Idaho County. Hon. Gregory FitzMaurice, District Judge.

The judgment of the district court is affirmed.

Thomas J. Katsilometes, P.L.L.C., Boise and Macomber Law, PLLC, Coeur d'Alene, for Appellant.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Intervenor-Respondent.

PER CURIAM

Phil Hart appeals from the Idaho County district court's grant of summary judgment dismissing his action contesting the results of a primary election for a legislative seat. The district court ruled that Hart had failed to demonstrate that any irregularities in the election were "sufficient to change the result"-an essential component of an election challenge under the Elections Contests Act, Idaho Code sections 34-2101-34-3128.1 Hart timely appealed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2018, Hart filed a declaration of candidacy seeking the Republican nomination for the office of State Representative for the Seventh Legislative District, Position B. On March 12, 2018, the Secretary of State certified his candidacy. Later, the Secretary of State's Office sent Hart a letter dated April 24, 2018, informing him that he did "not meet the qualifications to be an Idaho Legislator" and his "name, therefore, should not appear on the primary ballot, but since they have already been printed, [his] name will be marked out and no votes will be counted." Local and statewide media reported that Hart had been declared ineligible. The Secretary of State's Office subsequently reversed its position as to Hart's eligibility for the legislative seat after an adverse ruling in a lawsuit filed by another candidate who had also been deemed ineligible to have her name on the ballot.

The primary election was held on May 15, 2018. Hart lost to Paul Shepherd by a margin of 944 votes out of the 5, 450 votes cast.2 There were 424 absentee ballots cast in the election, 101 of which had Hart's name stricken out and 39 ballots in which no vote was cast for either Hart or Shepherd. On June 4, 2018, Hart brought this action contesting the results of the primary election, relying on Idaho Code section 34-2104(7) ("When illegal votes have been received or legal votes rejected at the polls sufficient to change the result") and Idaho Code section 34-2104(10) ("For any other cause or allegation which, if sustained, would show that a person other than the contestee was the person duly elected to the office in question").3

On July 16, 2018, the Secretary of State moved to intervene in the contest and to dismiss Hart's action. The district court received argument on the motions on July 30, 2018, and entered its order granting the motions[4] on August 16, 2018. Hart timely appealed.

II. STANDARD OF REVIEW

"In an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment." Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 13, 175 P.3d 172, 175 (2007) (quoting Lockheed

Martin Corp. v. Idaho State Tax Comm'n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006)). Disputed facts are resolved in favor of the non-moving party, but [w]hen an action will be tried before the court without a jury, the judge is not constrained to draw inferences in favor of the party opposing a motion for summary judgment but rather the trial judge is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts.

Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266, 1269 (2018) (quoting Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272, 1275 (1991)). When opposing a motion for summary judgment, the non-moving party "may not rest upon mere allegations . . . ." Gem State Ins. Co., 145 Idaho at 13, 175 P.3d at 175.

III. ANALYSIS

The district court determined that summary judgment dismissing Hart's claim under Idaho Code section 34-2104(7) was appropriate, reasoning: Hart has not provided any evidence to support his claim that any of the absentee voters who received the ballot with his name crossed off would have voted for him. Nor has he presented any evidence to show that but for the controversy about his name being on the ballot, he would have received more total votes than his opponent.

Hart contends that the district court dismissed the case prematurely "without taking any evidence whatsoever." We note that Hart did not ask the district court to defer ruling on the Secretary of State's motion to dismiss. Thus, we will first consider the propriety of the district court's consideration of the results of the election before addressing each of Hart's claims of error.

A. The district court properly took judicial notice of the results of the election.

The Secretary of State asked the district court to take judicial notice of the results of the election. The district court did not explicitly rule on the motion in its written opinion, but its decision was based on Shepherd's margin of victory. The district court observed: "Considering the margin of Shepherd's election win, it is mere speculation that results would have been different." The district court's opinion concluded that Hart "has not shown that any irregularities in the voting process would have caused 945 votes to be cast in his favor." Although Hart has not challenged the district court's reliance on the election results, because this is the sole material fact upon which the district court relied in granting the Secretary of State's motion, we will first consider whether the district court properly took judicial notice of the votes cast.

Idaho Rule of Evidence 201 governs judicial notice of adjudicative facts. "The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." I.R.E. 201(b). We are persuaded that the approach taken by the Mississippi Supreme Court in an appeal from an election contest is correct. There, the court held that "[t]he fact that the general election . . . took place is both 'common knowledge in the jurisdiction of the trial court' and 'capable of accurate and ready determination.'" Thompson v. Jones, 17 So.3d 524, 528 (Miss. 2008) (quoting Miss. R. Evid. 201). "Furthermore, the fact that there was a general election and the results of that election can be accurately and readily determined by the certified election results located on the Secretary of State's website." Id. For the reasons articulated in Thompson, the district court properly took judicial notice of the results of the primary election. We likewise do so.[5]

B. There was no genuine issue of material fact which precluded the district court from granting summary judgment.

The district court recognized that there was an unresolved question of fact as to whether Hart was qualified to be on the ballot. On appeal, Hart argues that the district court prematurely dismissed his claim based on the district court's determination that there was an unresolved question of material fact. In yet another reversal of its position as to Hart's eligibility, the Secretary of State responds that Hart was not eligible to have his name placed on the ballot.

The Supreme Court of the United States has stated: "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that...

To continue reading

FREE SIGN UP