Simpson v. Dixon

• Decision Date: 16 March 1993
• Parties: Sheila G. SIMPSON, Petitioner, v. The Honorable Bryan C. DIXON, Presiding Judge over the Petition for Irregularities in the
• Court: Oklahoma Supreme Court

Page 176

853 P.2d 176

1993 OK 71

Sheila G. SIMPSON, Petitioner, v. The Honorable Bryan C. DIXON, Presiding Judge over the Petition for Irregularities in the March 16, 1993 Primary Election for Ward Three Councilman for the City of Oklahoma City; Marti Hayes, Oklahoma County Election Board Secretary; Jack W. Cornett, Contestant of the March 16 1993 Primary Election for Ward Three, Councilman for the City of Oklahoma City, Respondents.

No. 81318.

Supreme Court of Oklahoma.

May 21, 1993.

Original Proceeding for A Prerogative Writ.

Petitioner's quest for a certificate declaring her the successful candidate for the Ward 3 seat on the City Council of Oklahoma City and to prohibit the County Election Board of Oklahoma County from notifying the governor, in compliance with the provisions of 26 O.S.1991 § 8-122, that the election winner cannot be identified. ¹

Original Jurisdiction Assumed; Petition for Writs of Prohibition and Mandamus Denied.

Brian M. Dell, Oklahoma City, for petitioner.

Robert L. Mitchell, Oklahoma City, for respondent Marti Hayes.

Thomas L. Spencer, Thomas E. Prince, York & Slater, Oklahoma City, for respondent Jack W. Cornett.

OPALA, Justice.

In this original proceeding two issues are tendered for our consideration: (1) Is Art. 10, § 7 of the Oklahoma City Charter contrary to the statutory procedure for filing an election protest? and (2) Is protest time for municipal elections controlled by the

                state law that governs the issuance of a certificate of election?   We take original cognizance of the case, answer the first question in the negative and the second in the affirmative, and deny the writs, leaving undisturbed the trial judge's order
                

I THE ANATOMY OF LITIGATION

Petitioner Sheila Simpson was initially determined the successful candidate at the primary election held Tuesday, March 16, 1993 for the office of City Council, Ward 3, in Oklahoma City. According to the announced results, Simpson received 2,005 votes and her only opponent, respondent Jack W. Cornett, received 1,994. On Friday following the election Cornett at 2:00 p.m. filed a protest challenging irregularities in the conduct of the election. ² Simpson moved to dismiss Cornett's petition as untimely. She argued that Art. 10, § 7 ³ of the City Charter prescribes a two-day deadline for challenging the election results and that Cornett's petition, which was filed on the third day in conformity to state law, 26 O.S.1991 § 8-109, ⁴ came too late.

At the hearing on the petition Cornett presented proof of irregularities. Simpson stood on her objection to the district court's "jurisdiction"; she offered no evidence. The trial court found that the election irregularities made it mathematically impossible to determine a winner and directed the county election board to notify the governor in compliance with the provisions of § 8-122. ⁵ The trial judge Simpson seeks this court's command (a) prohibiting the county election board from notifying the governor and (b) directing that a certificate of election be issued to her by the county election board. Our pronouncement leaves the trial judge's ruling undisturbed.

overruled Simpson's dismissal quest, concluding that (1) the City Charter is silent on the conduct of election protests and does not prescribe a deadline for a candidate's challenge, (2) Art. 10, § 5 ⁶ of the City Charter makes the general laws of the State applicable to municipal election contests except as otherwise provided in the Charter, (3) election contests are conducted by a state district judge and are "run through" the county election board, (4) the state has a paramount interest in conducting uniform election contests throughout the state and (5) contests "must be uniform so that the public will have confidence in knowing that their elections are conducted properly...." This court stayed the trial judge's order pending disposition of this original proceeding.

II

SECTION 7 OF THE CITY CHARTER CANNOT BE CONSTRUED AS

CONTRARY TO THE 3-DAY PROTEST PERIOD PRESCRIBED BY

STATE LAW

Facially, Art. 10, § 7 of the City Charter ⁷ is not intended to limit the time for bringing an election protest. Its main function is to coordinate the actions of the election boards in the several counties where Oklahoma City is located ⁸ with respect to the issuance of a single certificate of election to the successful candidate. Section 7 is trifurcated into separate

                post-election stages:  (1) certificate of election returns, (2) certificate of nominations and (3) certificate of elections.   None of its provisions conflicts with the State's three-day statutory time limit for election protests. 9
                

A. The Certificate of Election Returns

The first paragraph of § 7 provides that every county election board charged with conducting the election is to give any other county election board that participates in the election a copy of the certificate of election returns. ¹⁰ These certificates Nothing in the language dealing with the issuance of the certificate of election returns abridges the statutory period for filing an election protest. The terms of the second paragraph of § 7 are:

are to be issued to the other respective county election boards within two days of the day the primary election is held. ¹¹

"Said Certificate of Election Returns to be issued, unless stayed by a timely filed application and notice of contest or challenge to correctness of the announced results, within two (2) days next following said primary and general elections." (Emphasis added.)

The third clause, which pertains to the two-day limit for issuance of the certificate of election returns, modifies the verb "issued" found in the first clause. The second clause, which is set off by commas, contains the only reference to election protests. The phrase "timely filed" has reference to other law that regulates the time for filing a protest. Whether a certificate of election returns is issued before or after ¹² an election protest is utterly irrelevant to and has no bearing upon the time an election protest must be filed. We hence conclude that paragraphs 1 and 2 of § 7 do not prescribe a limit contrary to the State's three-day protest period.

B. The Certificate of Nomination

The purpose of certificate of nomination, described in the third paragraph of § 7, is to designate the two candidates who have garnered the most votes in a primary election and will compete in a general election. The primary election in this case was, for all intents and purposes, a general election. Simpson and Cornett were the only candidates.

Although no issue concerning the certificate of nomination is before this court, it is significant to note that this paragraph also contains the same "unless stayed" clause. This paragraph provides in part:

" * * * Said Certificate of Nomination to be issued, unless stayed by a timely filed application and notice of contest or challenge to the correctness of the announced results, within two (2) days next following said primary election." (Emphasis added.)

If the drafters intended the clause to be a limitation on the time an election protest is to be filed, it would not have been necessary to mention this twice in § 7, for one of

                the two clauses is clearly surplusage.  The more correct and better interpretation of the two "unless stayed" clauses is hence that they refer to law other than the Charter for the time an election protest is to be filed. 13  Because paragraph three does not address when an election protest is to be filed for a primary election, it cannot be construed as abridging the statutory protest period
                

C. The Certificate of Election

The certificate of election is the official vote tally. This is the critical document. The § 7 procedure for the issuance of that instrument does not conflict with the state procedure. According to the fourth paragraph in § 7, the certificate of election is to be issued jointly by all participating county election boards four days after the certificate of election returns is issued. ¹⁴ It is clear from Art 10, § 1(b) of the Charter ¹⁵ that the issuance of a certificate of election is not necessarily contingent upon the issuance of the certificate of election returns. Section 1(b) simply states that a certificate of election may be issued within six days after the election. These Charter provisions are consistent with the state election procedure, which requires the county election board to wait until the time period for filing contests has expired, i.e. at 5:00 p.m. on the Friday after the election. ¹⁶

A conflict exists between a state enactment and a municipal charter or ordinance when both contain either express or implied provisions that are inconsistent or irreconcilable with one another. There is no conflict if one is silent on the issue and the other speaks to it. ¹⁷ No provision in § 7 that deals with (1) certificate of election When a statute or city law is susceptible to more than one construction, it must be given that interpretation which frees it from constitutional doubt rather than one that would make it fraught with fundamental-law infirmities. ¹⁸ Placing on § 7 the meaning that Simpson presses upon us--namely that paragraph two of § 7 contains a two-day time limit for an election protest--would make that section vulnerable to a constitutional challenge. We must and will give the City Charter a construction that is consistent with our fundamental law's uniformity mandate for a "free and equal" election. ¹⁹

returns, (2) certificate of nomination or (3) certificate of election can be read as in conflict with the state election law regulating the time for filing an election protest. Since none of the paragraphs in § 7 speaks to the time for filing an election protest, there is no conflict with state law.

In sum, if § 7 was meant to vary from rather than to track the pertinent state statutes (26 O.S.1991 § 8-106, supra note 14, § 8-109, supra note 4, § 13-106, supra note 16), the...