Summary 2007 WY 191
Summary of Decision issued December 10, 2007
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Case Name: Smith v. Brito, Jr.
Citation: 2007 WY 191
Docket Number: S-07-0137
Petition for Writ of Review, From the
Representing Appellant (Defendant): Ralph E. Wood, Wood Law Office,
Representing Appellee (Plaintiff): Clark Stith,
Issues: Whether the fact that Appellant was not a registered voter of the Town of Pinedale at the time he filed his application for election make him a person “not eligible to hold the office” when he received the highest number of votes cast in the subject election and was a registered voter of the Town of Pinedale on the date of the subject election and on the date he was sworn in to the position he was elected to. Whether the District Court erred in awarding costs to the Appellee where the Appellee did not archive [sic] the relief prayed for in his Verified Complaint.
Facts/Discussion: In a 2006 municipal election, Smith was elected to the Pinedale Town Council. Brito contested Smith’s election on two grounds, including that Smith was not a registered voter at the time he filed his petition for candidacy for the position.
Standard of Review: Since the order appealed from only granted partial summary judgment and was not certified as immediately appealable by the district court, it was not an appealable order. The Court has the authority to convert a notice of appeal to a writ of review under the most extraordinary of circumstances. The Court did so stating that the issues raised were of significant state importance. The Court reviews an award of costs for an abuse of discretion by the district court.
Annulment of Mr. Smith’s Election: Wyo. Stat. Ann. § 22-23-301 explicitly requires a person be a registered voter on the day the petition is filed. The petition form requires an applicant to swear or affirm they are a registered voter as of the closing of the municipal clerk’s office on the day the petition is filed. Smith did not meet that requirement, therefore he was not eligible to petition for candidacy, his name was not properly on the ballot and the votes he received and the election, must be considered null and void. Smith relied on Rue v. Carter which the Court noted was overruled by the Wyoming Legislature and which the Court discussed indirectly in Hayes v. City of Sheridan.
Costs: Brito was awarded costs pursuant to Wyo. Stat. Ann. § 22-17-104. Smith argued that costs should not have been awarded because the entire election was not annulled. The annulment of the election of a single elected municipal official can form the basis for the award of costs.
Appellate Sanctions: The Court did not believe the appeal warranted sanctions. Smith failed to win but his legal arguments were presented cogently and in good faith.
Holding: Because Smith was not a registered voter at the time he filed his petition for candidacy for office, Smith was not eligible to hold the municipal office to which he was elected. The district court correctly awarded costs to Brito however, the Court declined to award sanctions.
Affirmed.
J. Golden delivered the opinion.
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