In The Matter Of The Petition For An Alternative Or Peremptory Writ Of Prohibition.Patrick Brian Henry v. The Honorable Ben Ysursa

• Decision Date: 24 September 2008
• Docket Number: No. 35580.,35580.
• Citation: 148 Idaho 913,231 P.3d 1010
• Parties: In the Matter of the Petition for an Alternative or Peremptory writ of Prohibition.Patrick Brian HENRY, Chris L. Henry, Vince E. Carlson, Cole Shane Odom, Eugene L. Rice, Al Holl, Doug Bunch, Royce Neil Fifer, David Parrie, and Bob Prigg, qualified electors of the State of Idaho, for and on behalf of themselves and all qualified electors of the State of Idaho, Petitioners,v.The Honorable Ben YSURSA, Secretary of State of the State of Idaho, Respondent.andIdaho Republican Party, Intervenor,
• Court: Idaho Supreme Court

148 Idaho 913

231 P.3d 1010

In the Matter of the Petition for an Alternative or Peremptory writ of Prohibition.Patrick Brian HENRY, Chris L. Henry, Vince E. Carlson, Cole Shane Odom, Eugene L. Rice, Al Holl, Doug Bunch, Royce Neil Fifer, David Parrie, and Bob Prigg, qualified electors of the State of Idaho, for and on behalf of themselves and all qualified electors of the State of Idaho, Petitioners,

v. The Honorable Ben YSURSA, Secretary of State of the State of Idaho, Respondent.andIdaho Republican Party, Intervenor No. 35580.

Supreme Court of Idaho, Boise, September 2008 Term.

Sept. 24, 2008.

Dennis J. Sallaz, Boise, for petitioners.

Charles F. McDevitt, Boise, for intervenor.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Michael S. Gilmore, Deputy Attorney General, argued.

EISMANN, Chief Justice.

This is a petition for a writ of prohibition to keep the Secretary of State from placing the name of Rex Rammell on the 2008 general election ballot for the office of United States Senator. Because the Secretary of State is required by statute to place Rammell's name on the ballot, the Secretary will not be exceeding his powers in doing so. Therefore, we deny the petition for a writ of prohibition.

I. FACTS AND PROCEDURAL HISTORY

On March 19, 2008, Rex Rammell filed with the Secretary of State a declaration of candidacy as an independent candidate for the office of United States Senator in the general election to be held on November 4, 2008. The requirements for being placed on the ballot as an independent candidate include that Rammell state that he has no political party affiliation and that he provide petitions signed by at least one thousand qualified electors. I.C. § 34-708(2). The petitions signed in each county are submitted to the county clerk of that county, who must then certify to the Secretary of State the number of signatures thereon that are those of qualified electors. I.C. §§ 34-708(3) & 34-1807. A “qualified elector” is “any person who is eighteen (18) years of age, is a United States citizen and who has resided in this state and in the county at least thirty (30) days next preceding the election at which he desires to vote, and who is registered as required by law.” I.C. § 34-104.

In his declaration of candidacy, Rammell stated under oath that he was “not a member of any Political Party.” He submitted 159 petitions in support of his candidacy, and the respective county clerks certified a total of 1007 signatures as being those of qualified electors.

On August 4, 2008, Patrick Brian Henry, Chris L. Henry, Vince E. Carlson, Cole Shane Odom, Eugene L. Rice, Al Holl, Doug Bunch, Royce Neil Fifer, David Parrie, and Bob Prigg (Petitioners) petitioned the Secretary of State in writing asking him to refrain from placing Rammell's name on the 2008 general election ballot for the office of United States Senator. They alleged he was not qualified to be an independent candidate for two reasons: (1) less than 1,000 of the signatures on Rammell's petitions were actually those of qualified electors and (2) Rammell had consistently stated that he was affiliated with the Republican Party.

The petitions were pre-printed forms provided by the Secretary of State. Each petition consisted of one page with lines for up to ten signatures. Each line had a space designated for the person's signature, his or her printed name, his or her residence address, and the date he or she signed the petition. The person obtaining signatures on a petition was required to sign an affidavit at the bottom of the petition stating:

That I am a resident of the State of Idaho and at least eighteen (18) years of age: that every person who signed this sheet of the foregoing petition signed his or her name thereto in my presence: I believe that each has stated his or her name, post-office address and residence correctly, that each signer is a qualified elector of the State of Idaho, and the county of __________.

In support of their allegation that Rammell had not obtained the signatures of 1,000 qualified electors, the Petitioners presented documents showing: that three signatures on the petitions were forgeries; that ten signers were not registered to vote when they signed the petitions; that eighteen signers were not registered to vote at their respective addresses written on the petitions; that one person had signed twice and been counted both times; that five signers failed to list a residence address on the petition; that one signer had failed to list his complete residence address; and that county clerks had miscounted the number of qualified electors on two petitions, resulting in them certifying two signers too many. The Petitioners also alleged that two petitions containing a total of fifteen signatures should be disqualified because the persons collecting the signatures had falsely stated that all of those signing had done so in their presence. In addition, they alleged that seven petitions containing sixty-three signatures should be disqualified because the petitions had not been properly filled out regarding the candidate's name, office sought, and date of the election.

In support of their allegation that Rammell was affiliated with the Republican Party, the Petitioners presented documents showing that Rammell declared himself to be a Republican both before and after he filed his declaration as an independent. In FEC Form 2 filed with Secretary of the United States Senate on October 17, 2007, Rammell stated that his party affiliation was Republican. On October 22, 2007, Rammell filed FEC Form 1 with the Secretary of the Senate to form the “Rex Rammell for United States Senate” election committee, again stating that his party affiliation was Republican. Rammell continued using that election committee to solicit donations and finance his campaign after filing his declaration as an independent candidate on March 19, 2008. On June 6, 2008, Rammell filed new FEC Forms 1 and 2 stating that his party affiliation was independent. The Petitioners also provided copies of Rammell's campaign materials that included the Republican Party logo and a television interview on June 28, 2008, during which Rammell stated, “I'm the real Republican in the race but I'm not the nominee” and “I'm not really a traditional independent. I am really a Republican running as an independent.”

After first consulting with the Attorney General, the Secretary of State denied the Petitioners' request in a letter dated August 6, 2008, in which he stated that he lacked statutory authority to keep Rammell's name off the ballot. On August 12, 2008, Petitioners filed in this Court a petition for an alternative or peremptory writ of prohibition asking this Court to prohibit the Secretary of State from placing Rammell's name on the general election ballot. The Idaho Republican Party sought and was granted permission to intervene, and it argued in support of the requested writ of prohibition. The Secretary of State filed a written response, and the parties presented oral argument on September 3, 2008. The same day, this Court issued an order denying the requested writ of prohibition. In that order, we stated that a written opinion would follow.

II. ANALYSIS

This Court has original jurisdiction to issue writs of prohibition. Idaho Const. Art. V, § 9. “The writ of prohibition is not a remedy in the ordinary course of law, but is an extraordinary remedy.” Maxwell v. Terrell, 37 Idaho 767, 774, 220 P. 411, 413 (1923). Before this Court will issue such writ, two contingencies must be shown: “the tribunal, corporation, board, or person is proceeding without or in excess of the jurisdiction of such tribunal, corporation, board, or person, and that there is not a plain, speedy, and adequate remedy in the ordinary course of law.” Olden v. Paxton, 27 Idaho 597, 600, 150 P. 40, 41 (1915). The word “jurisdiction” when used in reference to a writ of prohibition includes power or authority conferred by law. Crooks v. Maynard, 112 Idaho 312, 319, 732 P.2d 281, 288 (1987) (where administrative orders were within the “power and authority” of the administrative district judge, a writ of prohibition would not issue); Stein v. Morrison, 9 Idaho 426, 455, 75 P. 246, 256 (1904) (quoting from Maurer v. Mitchell, 53 Cal. 289, 292 (1878)) (“The word ‘jurisdiction,’ when used in connection with ‘prohibition,’ would be at once understood as being employed in the sense of the legal power or authority ‘to hear and determine causes.’ ”). Jurisdiction is a question of law over which this Court exercises free review. State v. District Court, 143 Idaho 695, 699, 152 P.3d 566, 570 (2007).

The issue presented to this Court is not whether Rammell lied on his declaration of candidacy as an independent candidate, nor is it whether the county clerks incorrectly certified the number of registered voters who signed Rammell's petitions. The issue is simply whether the Secretary of State will be exceeding his powers if he places Rammell's name on the general election ballot.

The Secretary of State's obligation to place the name of an independent candidate on a general election ballot is spelled out in Idaho Code § 34-708.¹ That statute provides that an independent candidate for statewide office is entitled to have his or her name placed on a general election ballot if: (a) the candidate has timely filed in the appropriate place a declaration of candidacy stating that he or she is an independent, declaring that he or she has no party affiliation, and declaring the office he or she seeks, and (b) the declaration is accompanied by petitions that county clerks have certified as containing at least 1,000 signatures of qualified electors. If these requirements have been met, “the proper officer [the Secretary of State in this instance] shall cause the name of each independent candidate who has qualified to be placed on the general election ballot.” I.C. § 34-708(4) (emphasis added). “This Court...