de Koning v. Mellema, 94-412
| Citation | 534 N.W.2d 391 |
| Decision Date | 19 July 1995 |
| Docket Number | No. 94-412,94-412 |
| Parties | 101 Ed. Law Rep. 1106 Robert de KONING, As Designated Member of the Contest Court, Appellant, v. Ken MELLEMA, Lyon County Auditor and Commissioner of Elections, Appellee. |
| Court | Iowa Supreme Court |
Maurice B. Nieland and Jeffrey D. Garreans of Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser, Sioux City, for appellant.
Daniel E. DeKoter and Dale S. Honken of Zito, Dekoter, Thole, Dawson & Honken, P.L.C., Sibley, for appellee.
Considered by McGIVERIN, C.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.
On behalf of some eligible electors and as part of their effort to contest a successful school bond election, plaintiff Robert de Koning brought this mandamus action in equity asking the district court to order defendant Ken Mellema, Lyon county auditor and commissioner of elections, to designate a member to a contest court pursuant to Iowa Code section 57.7 (1993).
Defendant filed a motion for summary judgment. The district court sustained defendant's motion on the basis that the electors had not timely filed a bond as required by Iowa Code sections 62.5 and 62.6, and therefore had not properly initiated a contest court proceeding. After reviewing the record in the light most favorable to plaintiff, we conclude that the district court correctly sustained defendant's motion for summary judgment. Accordingly, we affirm the district court's judgment on plaintiff's appeal, making defendant's cross appeal moot.
I. Background facts and proceedings. Central Lyon school district held a school bond election. The public measure passed by a slim margin, which was confirmed when the results were certified on December 14, 1992.
After the certification, several electors concerned with alleged irregularities in the election decided to contest the election results. See Iowa Code § 57.1. On December 31, 1992, they concurrently filed a petition or statement to that effect in the clerk of district court's office, Meiburg v. Mellema, No. 11, 790 (Lyon County, filed Dec. 31, 1992), and in the county auditor's office against the Central Lyon school district and defendant Ken Mellema, county auditor and commissioner of elections. The contestants did not file a bond in the office of either the clerk of court or the auditor. See id. §§ 62.6, 62.7.
A. The prior decision. Regarding the petition filed in the clerk's office, on January 11, 1993, the district court entered a sua sponte order. The order underscored the requirements of Iowa Code section 57.7 which pertinently provides:
The court for the trial of a contested election on a public measure shall consist of one person designated by the petitioners who are contesting the election, who shall be designated in writing by the petitioners at the time the contest is filed, one person designated by the county commissioner of elections to represent the interests adverse to those of the petitioners, and a third person who shall be chosen jointly by the designees of the petitioners and of the commissioner.
In light of this section, the district court proposed to dismiss the contestants' action unless they designated by January 25, 1993 one person as a member of the contest court for the trial of the contested election. See id.
On January 22, 1993, the contestants designated plaintiff Robert de Koning as a member of the contest court, and subsequently the district court found that the contestants had thus complied with its January 11, 1993 sua sponte order.
The district court then held that it lacked subject matter jurisdiction over the contestants' action in district court because section 57.7 confers jurisdiction only upon the contest court. The district court sustained defendant's motion to dismiss and thereby dismissed the contestants' petition in equity, No. 11,790. This order was not appealed. 1
B. The present action. Plaintiff de Koning, relying on the statement that the contestants had filed in the county auditor's office, made demand on defendant auditor Mellema to name his member of the contest court. See id. When Mellema did not name a member to the contest court, de Koning filed the present action in district court for an order of mandamus, requesting that the court order Mellema to appoint a member to the contest court pursuant to section 57.7. See id. ch. 661.
Auditor Mellema filed a motion for summary judgment, alleging that he had no duty to designate a contest court member under section 57.7 because no contest court proceeding had been properly initiated. See Iowa R.Civ.P. 237(b). The auditor advanced two reasons in support of his contention: (1) that the contestants did not file a bond as required by Iowa Code sections 62.5 and 62.6, and (2) that the contestants did not timely designate de Koning as a contest court member pursuant to section 57.7. The district court sustained defendant's motion, ruling that no valid contest court had been created due to the contestants' failure to file a bond pursuant to sections 62.5 and 62.6 of the Iowa Code. However, the district court overruled defendant's motion on the ground that de Koning had not been timely designated.
de Koning appealed the district court's ruling and alternatively contends that: (1) the bond requirement does not apply in this public measure contest, (2) the defendant auditor waived the bond requirement, and (3) the failure to post bond did not prejudice defendant auditor and thus should not have resulted in dismissal of this action.
Mellema cross-appealed, contending that the district court erred in refusing to also conclude that the contest court proceeding had not been properly initiated because de Koning had not been timely designated.
The record consists of the petition, the motion for summary judgment, resistance thereto, exhibits, and affidavits. See id. 237(c).
II. Scope of review. We will uphold a grant of summary judgment when no material fact is at issue and the moving party is entitled to judgment as a matter of law. Id.; Hoffnagle v. McDonald's Corp., 522 N.W.2d 808, 811 (Iowa 1994). When we review the propriety of a grant of summary judgment, the moving party is required to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Hoffnagle, 522 N.W.2d at 811 (citation omitted). In determining whether the movant has met this burden, we review the record in the light most favorable to the party opposing summary judgment. Id.
III. Validity of contestants' initiation of contest court proceedings. In support of his summary judgment motion, defendant Mellema contends as a matter of law that he has no duty under Iowa Code section 57.7 to designate a member to the contest court because no valid contest court has been initiated. Specifically, Mellema contends that the electors did not satisfy the bond requirement set forth in Iowa Code sections 62.5 and 62.6, 2 and we agree. In view of this conclusion, we do not address the issue raised in defendant's cross-appeal because it is thereby rendered moot.
A. Applicable legal principles and statutory provisions. The rule is quite generally recognized that to initiate special proceedings, such as election contest proceedings, the statutory provisions necessary to confer jurisdiction must be strictly complied with by the contestants. See Stafford v. Bailey, 282 Ky. 528, 532, 138 S.W.2d 999, 1002 (1940); Sutton v. Anderson, 176 Neb. 543, 545, 126 N.W.2d 836, 838 (1964); Wilson v. Matson, 110 Neb. 630, 634, 194 N.W. 735, 736 (1923); see also Haas v. Contest Court, 221 Iowa 150, 162, 164-65, 265 N.W. 373, 379, 380 (1936) (Richards, J., dissenting). See generally 26 Am.Jur.2d Elections § 318, at 143 (1966) (). The basis for the rule is that "statutes, conferring the right to contest an election, grant only a privilege to the defeated [contestants], where none existed at the common law, and that the contestant[s] acquir[e] under such statutes only such expressly limited and conditional privileges as the [l]egislature [has seen] fit to extend." Haas, 221 Iowa at 162, 265 N.W. at 379; accord Sutton, 176 Neb. at 547, 126 N.W.2d at 839; Wilson, 110 Neb. at 634, 194 N.W. at 736. As one court has put it: Sutton, 176 Neb. at 547, 126 N.W.2d at 839.
In conferring the right to electors to contest a public measure, such as the school bond election in this case, the Iowa legislature has outlined the procedures in Iowa Code chapters 57 and 62 which the electors must follow in order to have a contest court convene to hear their allegations. Iowa Code sections 62.5 and 62.6 require the contestant or contestants to file a statement of intention to contest the election and to file a bond. Section 62.5 sets forth the requirement of filing a statement of intention as follows:
The contestant shall file in the office of the county auditor, within twenty days after the day when the incumbent was declared elected, a written statement of intention to contest the election, setting forth the name of the contestant, and that the contestant is qualified to hold such office, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest, which statement shall be verified by the affidavit of the contestant, or some elector of the county, that the causes set forth are true as that person verily believes.
(Emphasis added.)
Section 62.6 regarding the bond requirement further provides:
The contestant must also file with the county auditor a bond, with security to be approved by said auditor, conditioned to pay all costs in case the election...
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