Dumas v. Gagner
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 66563-0
Title of Case: Nicholas Dumas
v.
Bobbie Gagner
File Date: 02/04/1999
Oral Argument Date: 12/08/1998
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Benton County
Docket No: 97-2-01841-0
Judgment or order under review
Date filed: 00/00/2000
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: Barbara Durham
James M. Dolliver
Richard P. Guy
Charles W. Johnson
Barbara A. Madsen
Visiting Judge
Philip A. Talmadge
Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
Terry M. Tanner Jr
Benton Co Proc Atty Ofc
7320 W Quinault
Kennewick, WA 99336
Counsel for Respondent(s)
Terry E. Miller
7409 W. Grandridge
Suite C
Kennewick, WA 99336
Amicus Curiae on behalf of Secretary of State
Jeffrey T. Even
Ofc of Atty Gen
PO Box 40100
Olympia, WA 98504-0100
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
NICHOLAS DUMAS, ) Number 66563-0
)
Respondent )
)
v. ) En Banc
)
BOBBIE GAGNER, )
BENTON COUNTY AUDITOR, )
AND SUE FROST, )
)
Appellants )
) Filed February 4, 1999
)
SMITH, J. Appellant Sue Frost seeks direct review of a Benton
County Superior Court order annulling and setting aside her election as
Commissioner of Port District Number One of the Port of Kennewick because
she is not a resident of that District but is a resident of District Number
Two.1 We granted review. We reverse.
QUESTION PRESENTED
The question presented in this case is whether the trial court was
correct in granting the petition of Respondent Nicholas Dumas to annul and
set aside the election of Appellant Sue Frost as a Commissioner of District
One of the Port of Kennewick.
STATEMENT OF FACTS
On November 26, 1997, Respondent Nicholas Dumas filed in the Benton
County Superior Court a petition claiming that Appellant Bobbie Gagner,
Benton County Auditor, as an election officer, committed a wrongful act by
certifying the election of Appellant Sue Frost to the office of
Commissioner for District Number One of the Port of Kennewick.2 On
December 15, 1997, the court allowed Appellant Frost to intervene.3
In his petition, Respondent claims that Appellant Gagner, as Benton
County Auditor, erroneously assigned Appellant Frost to voter precinct W2-
P636 in Port Commissioner District One, when Appellant's residence at 4107
West 43rd Avenue is on a lot situated completely within voter precinct W2-
P690 and Port Commissioner District Number Two.4 Respondent contends that,
because of the erroneous assignment, the Benton County Auditor committed a
wrongful act in certifying Appellant Frost's election as Commissioner for
District Number One because RCW 53.12.010(1)(a) provides that "'{o}nly a
registered voter who resides in a commissioner district may be a candidate
for, or hold office as, a commissioner of the commissioner district . . .
.'"5
The election was certified on November 19, 1997,6 and Respondent
Dumas filed his petition on November 26, 1997.7
The following diagram illustrates the relative locations of
Appellant Frost's three lots on West 43rd Avenue in Kennewick, indicating
(1) residential property on Lot One at 4107 West 43rd Avenue and (2)
contiguous unimproved property designated as Lots Six and Five at 4105 and
4103 West 43rd Avenue:
Respondent asked for a declaratory judgment that the Benton County
Auditor committed a wrongful act in placing Appellant Frost in the wrong
precinct and that Appellant Frost was not qualified to hold office.8 In
addition, Respondent asked the court to set the election aside.9 On
December 18, 1997 and January 16, 1998, a hearing on the merits was held in
the Benton County Superior Court before the Honorable Dennis D. Yule.10 On
February 17, 1998, the court issued a memorandum decision granting the
petition.11 On February 25, 1998, Appellant Frost filed a motion to stay
enforcement of the judgment.12 A hearing on the motion was held on
February 26, 1998.13
On March 2, 1998, the trial court entered its order setting aside
and annulling the election of Appellant Frost to the office of Port
Commissioner for District Number One.14 The court concluded, as a matter
of law, that Appellant Frost resides in Port Commission District Number
Two, and not in District Number One; and consequently the Benton County
Auditor erroneously issued a certificate of election to Appellant Frost.15
The court also allowed a thirty-day stay to permit the parties to seek a
stay of the judgment pending appeal.16
On March 3, 1998, the court signed Amended Findings of Fact and
Conclusions of Law as follows:17
Findings of Fact
1. At all pertinent times the western boundary of that
portion of Port of Kennewick Commissioner District Number One which
includes section 15, TBN, R29E, WM, has been and is the section line
between sections 15 and 16, T8N, R29E, Wm.
2. At all pertinent times the western boundary of voting
precinct W2-P636, separating it from voting precinct W2-P690 immediately to
the west, has been and is the section line between sections 15 and 16.
3. Union Street in the city of Kennewick runs north and
south; its center line is the section line separating sections nine and ten
immediately north of sections 15 and 16 and separating sections 15 and 16
to the point where Union Street ends at its intersection with 27th Avenue.
If Union Street were extended as a straight line south from that
intersection it would run along the western boundary of section 15 and
voting precinct W2-P636.
4. During or before 1992 Frost acquired Lots five and six,
block four, Canyon Lakes Number 11, Phase Two, and Lot one, Canyon Lakes
South Hill, Phase One. The three lots are adjacent to each other, forming
a row of three lots running east and west, so that the eastern boundary of
Lot one is the western boundary of Lot six, and the eastern boundary of Lot
six is the western boundary of Lot five. The three lots are bounded on the
north by West 43rd Avenue. The section line separating sections 15 and 16
constitutes the boundary line which separates Lot one from Lot six. Lot
one is in section 16; Lots six and five are in section 15.
5. In 1992 Frost began planning and construction of houses
on the above described property. Early preliminary plans called for a
house (variously referred to as an office/maid's quarters and as a guest
house) to be constructed principally on Lot six with a portion extending
westerly onto Lot one and a larger, main house to be constructed on Lot
one. The plans were later modified to locate both houses entirely on Lot
one.
6. When construction began on the houses, West 43rd Avenue
extended west only to approximately the boundary between Lots one and six,
where it terminated in a turn around. No completed street then bordered
Lot one. Access to construction of the houses on Lot one was by a
temporary driveway from West 43rd Avenue entering the property at
approximately the boundary between Lots six and five and proceeding across
Lot six to the construction sites.
7. During or after construction of the houses, West 43rd
Avenue was extended west along the northern boundary of Lot one. Since
then access to the three lots has been provided solely by a driveway from
West 43rd Avenue onto Lot one.
8. Frosts's {sic} property lies within the city limits of
the City of Kennewick, and the Kennewick billing official responsible for
determining and assigning street addresses to new
properties assigned the addresses 4103 West 43rd Avenue, 4105 West 43rd
Avenue and 4107 West 43rd Avenue to Lots five, six and one, respectively.
9. At the time that building and utility permits for
construction of the houses on Lot one were initially issued by the City of
Kennewick, the street address used for those permits was 4105 West 43rd
Avenue, the street address assigned by the city to Lot six, at which access
to the construction on Lot one was provided. The title report for Frost's
residence stated the street address to be 4103 West 43rd Avenue.
10. Frost has lived in the houses on Lot one since 1992,
first in the smaller of the two and then, upon its later completion, in the
larger, main house.
11. Frost's entire property, consisting of the three lots,
has been enclosed by a three strand barbed wire fence. At her expense,
Frost constructed a sidewalk adjacent to West 43rd Avenue along the
northern boundary of the three lots. Following construction, those
portions of Lots five and/or six which had been utilized for access to the
house construction sites were reseeded for the purpose of returning them to
their natural condition.
12. The immediate area surrounding the two houses is
artificially landscaped with lawns and shrubbery, an outdoor swimming pool,
rock walls, a paved driveway, concrete landscaping strips, black rock and
an underground sprinkler system. This improved area lies almost entirely
within Lot one. Beyond that area the property is maintained in its natural
state of flora and fauna.
13. The only improvements or alterations on Lot five are
the barbed wire boundary fencing and the sidewalk along its northern
boundary.
14. The only improvements or alterations on Lot six are the
boundary fencing and sidewalk along its northern boundary and some concrete
landscaping strip and rock and shrubbery extending its farthest point
approximately 24.5 feet east from the west boundary of Lot six.
15. Frost's current plans are for the addition, within the
next year or two, of additional parking, a croquet court and a ramada on
Lot six and/or five.
16. Since her acquisition of the property Frost has
considered the three lots to be a single parcel forming an enclosed,
residential compound. The two houses were located with the intent of their
being in approximately the center of such compound.
17. Lots, one, six and five have never been legally
consolidated into a single legal parcel and remain three legally separate
and distinct parcels of property.
18. In 1992 Frost registered to vote by providing the
Auditor with the information requested, consisting principally of the
street address assigned by the City of Kennewick to the houses, 4107 West
43rd Avenue. Based upon that address and its application by Auditor's
office personnel to a Kennewick street grid map provided by the city and
utilized by the Auditor as a city voting precinct map, Frost was registered
in voting precinct W2-P636. W2-P636 is in Port District No. 1. Frost has
remained registered and regularly voted in that precinct since then.
19. The Auditor's assignment of Frost to precinct W2-P636
was based solely upon the street address provided and was premised upon the
inference drawn by Auditor's office personnel that street number 4107
signified the address was located east of the north-south 4400 grid line
formed by Union Street on the map, as extended southward to West 43rd
Avenue, and west of
the north-south 4000 grid line formed by Quillan Street on the map, as
extended southward to West 43rd Avenue, thereby placing 4107 West 43rd
Avenue within the boundaries of precinct W2-P636.
20. The street grid map provided by the City of Kennewick
implies that street numbers are assigned consistent with the general north-
south and east-west grid pattern of the city's arterial streets. However,
the city in fact assigns street numbers with reference to the actual
location of streets rather than by a grid system. Consequently, when Union
Street, a north-south street, deviates from the grid where it emerges as
South Union just north of West 43rd Avenue and curves to the southwest, it
is not possible to determine solely from the assigned street number, 4107,
where that address lies with reference to the 4400 grid line generally
represented on the map by Union Street.
21. Lot one, and the street number 4107 assigned to it, are
located in section 16, voting precinct W2-P690 and Port Commissioner
District Number Two. Lots six and five, and the street numbers 4105 and
4103 assigned respectively to them, are located in section 15, voting
precinct W2-P636, and Port Commissioner District Number One.
22. When the Port of Kennewick established the current port
commission district boundaries in 1992, the western terminus of West 43rd
Avenue was a turnaround at approximately the west boundary of Lot six. At
that time, it was the intention of Port District personnel drawing proposed
boundaries to include the entire Canyon Lakes neighborhood in Port
Commissioner District Number One. Lots one, six and five are in the Canyon
Lakes neighborhood. Frost pays dues to the Canyon Lakes Home Owners
Association.
23. In July 1997, Frost filed a declaration of candidacy
for the position of Port of Kennewick Commissioner, Commissioner District
Number One with the Auditor. In doing so, Frost provided the Auditor with
her street address and confirmed that the Auditor's records showed her to
be registered in precinct W2-P636 and to accordingly be within Port
Commissioner District Number One. Frost relied in good faith upon the
Auditor's records and determination and such reliance was reasonable.
24. In the primary election conducted only in Port
Commissioner District Number One, Frost received the most votes of the
three candidates. At least one of the other candidates publicly raised the
issue of location of her residence before the primary election.
25. Prior to the general election, Frost's opponent, Wally
{sic} Hickerson, filed a legal action seeking to have Frost removed from
the ballot on the basis of the location of her residence. That action was
dismissed as untimely under the appropriate statute.
26. In the general election conducted throughout the three
Port Commissioner Districts, Frost received 60 percent of the total vote
and a majority of the votes cast in each precinct.
27. Dumas did not hire his attorney and is not responsible
for payment of his fees.
Based on these Findings of Fact, the court enters its:
Conclusions of Law
1. Frost resides in Port Commissioner District Number Two.
2. The Auditor erred in issuing Frost a Certificate of
Election to the office of Port Commissioner for Port Commissioner District
Number One.
3. The election of Frost to the office of Port Commissioner
for Port Commissioner District Number One should be annulled and set aside.
4. Dumas should be awarded such statutory costs as he has
paid, if any.{18}
None of the parties take exception to the findings of fact, but the
case is nevertheless before us on a challenge to the conclusions of law.19
On March 31, 1998, this Court granted Appellant Frost's motion to
stay the trial court's judgment pending appeal.20 Appellant Frost sought
direct review by this Court which was granted September 3, 1998. She
contends the trial court erroneously concluded she resides in Port
Commissioner District Number Two because she in fact resides in Port of
Kennewick District Number One and that filing of the challenge by
Respondent Dumas was untimely.21
Respondent Dumas asks this Court to amend the trial court judgment
setting aside the election to also declare Appellant Frost's opponent,
Wallace W. Hickerson, the duly elected Commissioner for Port of Kennewick
District Number One.22
DISCUSSION
Standard of Review
Appellant Frost has assigned no error to any finding of fact by the
trial court. Those findings are thus accepted as verities.23 Conclusions of
law based on those facts, however, are reviewable by this Court, and the
facts must justify the decision of the trial court.24
TIMELINESS
Under RCW 29.65.010, a registered voter may contest, on several
grounds, the right of a person elected to an office to be issued a
certificate of election.25 Election contests are subject to time
limitations set forth in RCW 29.04.030.26
Appellant Frost contends that because the action by her opponent,
Wallace W. Hickerson, challenging her name on the primary ballot was
dismissed as untimely under RCW 29.04.030(3),27 no other person could bring
such an action,28 inferring that the petition now before this Court was
brought under the same section. Appellant claims that any action
challenging her certification after the election would interfere with "the
intent of the legislature to insure the sensible and effective exercise of
the right to vote by the people of the state."29
Under RCW 29.04.030(3), an affidavit claiming that the name of a
person was wrongfully placed on a ballot must be filed no later than three
days following certification of the primary election.30 However, Respondent
Dumas' petition does not rely specifically on that section, nor does he ask
for the relief available under it. The fact that the legislature has
specified grounds for contesting an election in RCW 29.65.010 is a contrary
response to Appellant Frost's claim that such a challenge is contrary to
the legislative purpose.
In addition, Appellant Frost argues that because Respondent's
petition employs the words "wrongful act" found in RCW 29.04.030(4), the
election cannot be set aside because that relief is not available under RCW
29.04.030 which makes no reference to setting aside an election.31
Appellant relies on this Court's holding in Becker v. County of Pierce that
the appropriate relief under RCW 29.04.030(4) is a court order directing a
person charged under the section to "'correct the error, desist from the
wrongful act, or perform the {neglected} duty and to do as the court
orders.'"32
Respondent Dumas did not cite RCW 29.04.030(4) in his petition, but
he did ask the court to set aside the election of Appellant Frost.33 In
Becker, this Court focused on the relief sought, that is, setting aside an
election, to determine whether the action constituted an election contest
under RCW 29.65.010.34
While Respondent does not cite a specific subsection of either RCW
29.65.010 or RCW 29.04.030, it is apparent from the facts stated in his
petition that issuance of the certificate of election is the specific
ground of his challenge.35 Under this Court's rules of procedure,
"pleadings are primarily intended to give notice to the court and the
opponent of the general nature of the claim asserted . . . ."36 Although
Respondent's petition did not cite specific subsections of the statute,
sufficient facts and law were stated concerning the nature of the claim to
bring the petition under the statute. Although the petition is not a model
of pleading, it is nevertheless adequate so long as it is sufficient to
satisfy necessary legal requirements.37
Under RCW 29.65.020, the affidavit charging an error in issuance of
a certificate of election "must be filed with the appropriate court no
later than ten days following the issuance of a certificate . . . ." The
Benton County Auditor issued a certificate of election on November 19,
1997.38 Respondent filed his petition and affidavit on November 26, 1997
within the ten-day limit.39
ELIGIBILITY FOR OFFICE
The unique facts in this case present a rather narrow question:
what is the proper designation and location of the residence of a candidate
for the position of port commissioner when a political boundary line
transects contiguous properties owned and physically occupied as a
permanent residence by the candidate?
Election contests are governed by several general principles.
Chief among them is the principle, long followed by this Court, that the
judiciary should "exercise restraint in interfering with the elective
process which is reserved to the people in the state constitution."40
Unless an election is clearly invalid, "when the people have spoken, their
verdict should not be disturbed by the courts . . . ."41 In adhering to
this principle of judicial restraint, this Court has adopted the rule that
an "informality or irregularity" in an election which did not affect the
result is not sufficient to invalidate the election.42 Statutory provisions
relating to conduct of an election, such as requirements for notice, have
been held to be directory only, and even though not followed precisely,
will not render an election void.43 But provisions which affect the merits
are mandatory, and, if not followed, will void an election.44
Statutory provisions regarding qualifications of candidates, such
as a residence requirement, directly and substantively affect an election
because they place restrictions upon who can be a candidate, and,
consequently, are not mere technicalities. However, this Court has stated
the "general rule" that "election statutes are considered remedial and
should be liberally construed."45 In particular, statutes establishing
qualifications for office are to be construed to "unfetter the process of
election" rather than "curtail the freedom to stand for office."46
In State ex rel. O'Connor v. Dubuque this Court declared, "{a}
strong public policy exists in favor of eligibility for public office, and
the constitution, where the language and context allows, should be
construed so as to preserve this eligibility."47 In holding
unconstitutional an ordinance requiring candidates for a board which would
draft
a new city charter to be freeholders, this Court stated, "A fundamental
principle in our democracy is 'the people should choose whom they please to
govern them' and 'this principle is undermined as much by limiting whom the
people can select as by limiting the franchise itself.'"48
In State ex rel. Weston v. Schragg,49 a county auditor refused to
accept a declaration of candidacy from a person desiring to run for county
treasurer. Construing both constitutional and statutory provisions to hold
the candidate was entitled to file, this Court stated:
Since the right to participate in the government is the common
right of all, it is the unqualified right of any eligible person within the
state to aspire to any of these offices, and equally the unqualified right
of the people of the state to choose from among those aspiring the persons
who shall hold such offices. It must follow from these considerations that
eligibility to an office in the state is to be presumed rather than to be
denied, and must further follow that any doubt as to the eligibility of any
person to hold an office must be resolved against the doubt.{50}
Other than these general principles governing election statutes and
statutes regarding qualifications for office, we have found no Washington
statutes nor cases relating to the issue of residency where the residential
property of a candidate is transected by the line between two districts as
under the facts of this case.
The statutory provision regarding the qualifications for port
commissioners states: "Only a registered voter who resides in a
commissioner district may be a candidate for, or hold office as, a
commissioner of the commissioner district."
RCW 53.12.010(2)(a).51 The meaning of the word "resides" is a principal
focus of the dispute in this case. Appellant Frost contends that residency
is an expansive concept, relying upon cases defining residency in the
context of service of process52 and upon out-of-state cases defining the
concept of curtilage in certain civil settings,53 both factually
distinguishable from the dispute in this case.
Respondent contends that the word "resides" should be narrowly
interpreted to mean the actual physical location of Appellant Frost's house
on one of the three contiguous lots she owns.54
The concept of residency arises in several contexts such as
adoption, dissolution of marriage, service of process, and validity of
wills, as well as voting and holding office.55 The Restatement 2d, Conflict
of Laws, states: "Residence is an ambiguous word whose meaning in a legal
phrase must be determined in each case."56 This Court has observed that
"'{e}ach of the terms "reside," "residing," "resident," and "residence" is
elastic. To interpret the sense in which such a term is used, we should
look to the object or purpose of the statute in which the term is
employed.'"57 Because the meaning of the word is to be derived from the
applicable statute, Appellant Frost's reliance on service of process and
curtilage cases is without merit.
In construing statutes in one context, this Court has stated that
the "spirit and intent of the statute should prevail over the literal
letter of the law and . . . there should be made that interpretation which
best advances the perceived legislative purpose."58 In its memorandum
decision in this case, the trial court found that the residence requirement
for port commissioners existed to achieve "geographic balance" on the port
commission.59 Although the court did not expand on that concept, achieving
"geographic balance" assumes, as does districting in the first place, that
"geographic units reflect a common or group identity . . . ."60 In holding
that a one-year residence requirement for the office of city council member
was constitutional, this Court stated that the requirement allowed the
candidate "to be exposed to the needs and problems of the people" of the
particular city.61
The question arises whether, given the limited factual context
presented by this case, the purpose of RCW 53.12.010(a) is served by a
narrow construction of the word "resides." The trial court construed the
word narrowly and held that Appellant Frost did not reside in Port of
Kennewick Commissioner District One. The trial court
found it significant that Appellant Frost's three contiguous residential
lots were not legally consolidated, stating that the lots "represent
legally separate and distinct parcels, not legally joined in any way to lot
one {the lot on which Appellant Frost's house is located} and against which
there exist no impediments to their separate and individual use,
development and enjoyment."62 The court cited no legal authority to support
its attachment of significance to this fact.
Reliance on the absence of consolidation of contiguous properties
is misplaced. The Benton County Assessor testified she did not think the
three lots could ever be consolidated even if Appellant Frost wanted to
consolidate them because the parcels lie on two sides of the section line
and lie in different plats.63 Although not legally consolidated, the three
lots do have only one owner Appellant Frost. In findings of fact the court
concluded that Appellant Frost treats the three lots as a "single parcel
forming an enclosed, residential compound,"64 a fact that diminishes the
possibility she would use her three lots in three separate and distinct
ways in the future.65
The trial court also found it significant that improvements (house,
landscaping, swimming pool, paved driveway, underground sprinkler system)
lie "almost entirely within Lot one" and "{b}eyond that area the property
is maintained in its natural state of flora and fauna."66 The court
determined that the absence of improvements on the other two lots, combined
with the three lots being legally separated, made Appellant Frost a
resident only of voting precinct W2-P690, and, therefore, a resident of
Port Commissioner District Two instead of District One.
The trial court, however, made a finding of fact that Appellant
Frost purposely maintains lots five and six in their more natural state.67
Hence the few improvements. Appellant did fence lots five and six with
barbed wire and also put in a single continuous sidewalk in front of all
three lots.68 The trial court's ruling implies that the presence of
additional improvements may have provided reason to consider all three lots
together as Appellant's residence. But the court did not elaborate further
and cited no legal authority for that suggestion.
The trial court concluded that the purpose of the requirement that a
port commissioner reside in the district from which the commissioner is
nominated is to achieve geographic balance.69 Since 1992, Appellant Frost
has owned three contiguous lots, all of which are in the Canyon Lakes
residential neighborhood.70 At the time of the general election on November
4, 1997 when she was elected Port Commissioner for District One, she had
been residing in that neighborhood for five years. The trial court found
that when the Port of Kennewick Commission redrew district boundary lines
in 1992, the Commission intended to include all of Canyon Lakes within one
district, District One.71 Under that finding, we can conclude the
Commission satisfied the requirements of RCW 29.70.100(4)(e) which states:
To the extent feasible and if not inconsistent with the basic
enabling legislation for the municipal corporation, county, or district,
the district boundaries shall coincide with existing recognized natural
boundaries and shall, to the extent possible, preserve existing communities
of related and mutual interest.
(emphasis added).
In addition, the trial court found that Appellant Frost pays dues
to the Canyon Lakes Home Owners Association.72 She has also been a
registered voter in precinct
W2-P636 since 199373 and has voted regularly since that date.74 Despite
these ties to the Canyon Lakes community and her voter registration in
precinct W2-P636, under the trial court's ruling she cannot hold the office
of Port Commissioner in District One to which she was elected.
The justification for the residence requirement provided by the
trial court to achieve geographical balance is diminished by the fact that
in the general election voters in all precincts in the Port of Kennewick
are able to vote for all commissioners and not just for candidates from
their own districts. There was testimony the public was aware of the
dispute about residency,75 but despite that, Appellant Frost still won the
election by a wide margin and with a majority in each precinct.76 The result
of the election supports a conclusion the voters did not question whether
Appellant Frost could represent their interests as a Commissioner of the
Port of Kennewick.
Through no fault of her own, Appellant Frost was registered in the
wrong precinct because of the physical location of the address the City of
Kennewick assigned to her residence. She did all the law required her to
do: register to vote and file a declaration of candidacy. Under RCW
29.07.070(4),77 when she registered to vote, she indicated her residence
address as that assigned to her by the City of Kennewick, 4107 West 43rd
Avenue, the permanent address at which she physically resides and maintains
her abode. RCW 29.01.140 states: "'Residence' for the purpose of
registering and voting means a person's permanent address where . . . {the
person} physically resides and maintains . . . {the person's} abode . . .
." Under RCW 29.15.010(1), a candidate filing for office must state that
the candidate "is a registered voter within the jurisdiction of the office
for which {the candidate} is filing, and the address at which {the
candidate} is registered . . . ." Appellant Frost met this requirement.
Even though the trial court concluded that the county auditor erred
in issuing Appellant Frost a certificate of election, the county auditor
fulfilled her statutory duty by comparing Appellant Frost's residence
address with the precinct grid map she normally used and which was provided
her by the City of Kennewick. RCW 29.15.025(2) states in part: "{T}he
officer with whom declarations and affidavits of candidacy must be filed
under this title shall review such declaration filed regarding compliance
with this subsection." When Appellant Frost filed her declaration of
candidacy, the location of her residence was questioned. Not only did the
county auditor consult with her assistant who confirmed Appellant was in
the right precinct, 78 but twice the Executive Director of the Port of
Kennewick verified that Appellant Frost's residence address placed her in
Commissioner District One.79 The trial court found that, although the
street address of Appellant Frost, from the maps available to the Benton
County Auditor at the time, appeared to be situated within precinct W2-
P636, an actual survey of the property showed that Appellant's house
instead lies within precinct W2-P690.80 That survey was not before the
County Auditor.81
In State ex rel. McCaffrey v. Superior Court,82 this Court held
that, because the county auditor is only an administrative officer "insofar
as the filing of declarations of candidacy and the preparation of ballots
are concerned," the auditor could not determine a complex question
concerning eligibility of a candidate.83 In State ex rel.
McAulay v. Reeves,84 this Court found that the county auditor had no power
to determine the eligibility of candidates as to whose eligibility a
colorable question can be raised, and to determine it according
to . . . {the county auditor's} individual findings of fact, with the added
danger that, in times of stress, . . . {the county auditor's} determination
might be influenced by . . . {the county auditor's} prejudices or by
partisan considerations . . . . The right to exercise a power so sovereign
in its nature as the judicial power cannot be successfully spelled out by
mere inference or conferred by judicial decision.{85}
The Benton County Auditor could not have rejected the declaration of
candidacy of Appellant Frost based upon any extrinsic factual information
or interpretations of statutory provisions, but was required to rely upon
official records.86
In State ex rel. Hubbard v. Lindsay87 this Court held that a county
auditor could not make an independent investigation and go beyond the
registration records to determine whether a petition to merge a part of one
fire district with another had the sufficient number of signers required by
statute.88 The statute specified precinct registration records. The
legislature did not authorize the auditor to contradict those records by
personal visits.89
Implicit in the trial court's decision in this case is that the
street grid map used by the City of Kennewick to assign addresses is the
controlling map for the registration of voters, despite the fact the map
used by the county auditor was furnished by the city.90 During the hearing,
Appellant Gagner (the Benton County Auditor) was shown a plat map and
testified that she does not use it to assign a precinct, but utilizes
instead the precinct map supplied by the city.91 RCW 29.15.026(1) states:
"The legislative authority of each county and each city, town and special
purpose district which lies entirely within the county shall provide the
county auditor accurate information describing its geographical boundaries
and boundaries of its director, council, or commissioner districts and
shall ensure that the information provided to the auditor is kept current."
There is no statutory basis for the court to hold that one map controls
over another. The county auditor relied on the map furnished by the City
of Kennewick.
The final vote count in the election was 14,421 for Appellant Frost
and 9,496 for her opponent.92 Appellant Frost won a majority in each
precinct in the general election.93 The voters of the Port of Kennewick
clearly expressed their preference. Appellant's opponent in the general
election, Wallace W. Hickerson, testified the title report for Appellant's
property listed her address as 4103 West 43rd Avenue, the same address he
obtained from the county assessor's rolls.94 However, he conceded that
address is located within precinct W2-P636 and Port Commissioner District
One.95
Because of the strong public policy in favor of eligibility for
office, the statutory authority of the county auditor, and the findings of
fact that Appellant Frost relied in good faith on the county auditor's
assignment of precinct and that Appellant Frost treats her three adjacent
lots as one property, a "residential compound," we conclude that the
election of Appellant Sue Frost as Commissioner of Port District Number One
of the Port of Kennewick was valid and should not be annulled and set
aside.
Attorney Fees
Appellant Frost has requested attorney fees and expenses under RAP
18 and RCW 29.65.055 which provides for costs in election contests.96 RCW
29.65.055 states: "If the proceedings are dismissed for insufficiency,
want of prosecution, or the election is by the court confirmed, judgment
shall be rendered against the party contesting such election for costs, in
favor of the party charged with error or omission." Costs are defined
under RCW 4.84.010 as including statutory attorney fees and expenses such
as filing fees and fees for service of process. However, RCW 29.65.010
makes no mention of attorney fees, but refers only to costs. "{T}he
general rule is that counsel fees are not costs either in suits in equity
or actions at law."97 Consequently, Appellant Frost, as the prevailing
party, is entitled only to costs under RCW 4.84.010 and RCW 29.65.010.98
SUMMARY AND CONCLUSIONS
The Benton County Superior Court ordered the election of Appellant
Sue Frost as Commissioner of Port District Number One of the Port of
Kennewick annulled and set aside, finding that she did not physically
reside in District Number One as required by the statute. As a result, the
trial court concluded as a matter of law that Appellant Bobbie Gagner, as
Benton County Auditor, erroneously issued a certificate of election to
Appellant Frost. The trial court determined that Appellant Frost resided
in Port District Number Two and did not reside in District One because the
three contiguous lots she owns are not legally consolidated and two of her
three lots (those situated in District One) have few improvements. We do
not agree with the conclusion of law reached by the trial court.
Courts are to exercise restraint in election contests, and election
statutes are to be liberally construed. In addition to these general
principles, there is a strong public policy which favors eligibility for
public office.
Among its findings of fact, the trial court determined that
Appellant Frost relied in good faith on the county auditor's assignment of
precinct which placed Appellant Frost in District One. In making the
assignment, the county auditor fulfilled her statutory duty. The trial
court also found that Appellant Frost treats her three contiguous lots as
one property, a "residential compound."
Considering these facts and the strong public policy in favor of
eligibility for office, we conclude the trial court was not correct in
ordering the election of Appellant Frost annulled and set aside.
We reverse the order of the Benton County Superior Court which
annulled and set aside the election of Appellant Sue Frost to the office of
Port Commissioner of District Number One for the Port of Kennewick.
1 Appellant Bobbie Gagner, Benton County Auditor, although designated as
an appellant, has not appealed the trial court's decision, as she neither
supports nor opposes it. Br. of Appellant Bobbie Gagner, Benton County
Auditor at 2-3. She has requested an interpretation from this Court
concerning the responsibility of a county auditor in determining the
correctness of a residence address in the absence of a legislative remedy.
Id. at 3-4. We decline to answer that question under the limited facts
of this case.
2 Clerk's Papers at 249-50.
3 Id. at 247-48.
4 Id. at 249-50.
5 Id.
6 Id. at 46, 244.
7 Id. at 207.
8 Id. 250-51
9 Id. at 251.
10 Id. at 8.
11 Id. at 71.
12 Id. at 44.
13 Report of Proceedings at 440.
14 Clerk's Papers at 30-31.
15 Id. at 29.
16 Id. at 18-19.
17 Id. at 29 (emphasis added).
18 Id. at 21-29.
19 Br. of Appellant Bobbie Gagner, Benton County Auditor at 1;
Appellant's Br. at 12; Br. of Resp't Dumas at 3.
20 Ruling Granting Mot. to Stay at 4.
21 Appellant's Br. at 8-9, 11.
22 Br. of Resp't Dumas at 10. Respondent testified he is the stepson of
Wallace W. Hickerson, Appellant Frost's opponent and that Mr. Hickerson
asked him to sign the petition instituting this legal action. Report of
Proceedings at 261-62.
23 Riley v. Rhay, 76 Wn.2d 32, 33, 454 P.2d 820 (1969); State v. Hill,
123 Wn.2d 641, 644, 870 P.2d 313 (1994). See also Union Local 1296, Int'l
Ass'n Firefighters v. City of Kennewick, 86 Wn.2d 156, 161, 542 P.2d 1252
(1975).
24 State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981).
25 RCW 29.65.010 provides, in part, that "{a}ny registered voter may
contest the right of any person declared elected to an office to be issued
a certificate of election for any of the following causes: . . . .(2)
Because the person whose right is being contested was not at the time he
was declared elected eligible to that office ; . . ."
26 RCW 29.65.010 (final unnumbered paragraph); see also Becker v. County
of Pierce, 126 Wn.2d 11, 21, 890 P.2d 1055 (1995).
27 RCW 29.04.030 provides, in part, that an elector may file an affidavit
with a justice or judge charging certain election frauds and errors. Such
a charge may claim that "{t}he name of any person has been or is about to
be wrongfully placed upon the
ballots . . . ." RCW 29.04.030(3). As to time limits, the statute
states, "An affidavit of an elector under subsections (1) and (3) of this
section when relating to a general election must be filed with the
appropriate court no later than three days following the official
certification of the primary election returns and shall be heard and
finally disposed of by the court not later than five days after the filing
thereof. An affidavit of an elector under subsection (6) of this section
shall be filed with the appropriate court no later than ten days following
the issuance of a certificate of election." RCW 29.04.030 (final
unnumbered paragraph).
28 Appellant's Br. at 36.
29 Id. at 36-37.
30 RCW 29.04.030 (final unnumbered paragraph).
31 Clerk's Papers at 37.
32 126 Wn.2d 11, 21, 890 P.2d 1055 (1995).
33 Clerk's Papers at 251.
34 126 Wn.2d at 20-21.
35 Clerk's Papers at 249-50.
36 Lightner v. Balow, 59 Wn.2d 856, 858, 370 P.2d 982 (1962).
37 Chen v. State, 86 Wn. App. 183, 193, 937 P.2d 612 (1997), review
denied, 133 Wn.2d 1020, 948 P.2d 387 (1997).
38 Clerk's Papers at 46, 244.
39 Id. at 207.
40 McCormick v. Okanogan County, 90 Wn.2d 71, 75, 578 P.2d 1303 (1978)
(holding that a recall statement filed with an auditor was sufficient
notwithstanding that it did not specify certain details required by the
statute).
41 Murphy v. City of Spokane, 64 Wash. 681, 684, 117 P. 476 (1911)
(holding a bond election valid despite certain irregularities in conducting
the election).
42 McCormick, 90 Wn.2d at 75.
43 Murphy, 64 Wash. at 684.
44 Id. (citing McCrary on Elections sec. 225). See also State ex rel.
Lysons v. Ruff, 4 Wash. 234, 240 P. 999 (1892).
45 Gold Bar Citizens for Good Government v. Whalen, 99 Wn.2d 724, 728,
665 P.2d 393 (1983) (holding that votes cast by nonresidents in an election
for mayor were illegal votes).
46 State ex rel. O'Connell v. Dubuque, 68 Wn. 2d 553, 568, 413 P.2d 972
(1966).
47 Id. at 566 (holding that where a salary increase takes effect during
the term for which a legislator is elected does not prevent the legislator
from standing for election, since no part of the salary increase will be
earned during the legislator's term). See also State ex rel. Bickford v.
Jacobson, 16 Wn. App. 473, 558 P.2d 292 (1976), review denied 88 Wn.2d 1011
(1976).
48 Sorenson v. City of Bellingham, 80 Wn.2d 547, 552, 496 P.2d 512 (1972)
(quoting Powell v. McCormack, 395 U.S. 486, 547, 89 S. Ct. 1944, 23 L. Ed.
2d 491 (1969).
49 158 Wash. 74, 291 P. 321 (1930).
50 Id. at 78.
51 It is noted that the indefinite article "a" precedes the phrase
"commissioner district" the first time those words are used in the
subsection. This contrasts with the specific language describing the
residency requirement for county commissioners: "{T}he qualified electors
of each county commissioner district, and they only, shall nominate from
among their own number, candidates for the office of county commissioner of
such commissioner district to be voted for at the following general
election." RCW 36.32.040(2). (emphasis added).
52 Appellant's Br. at 29-31.
53 Id. at 26-28.
54 Br. of Resp't Dumas at 8.
55 Restatement (Second) of Conflict of Law, sec. 11, cmt a (1971).
56 Id. at cmt k.
57 Wichert v. Cardwell, 117 Wn.2d 148, 151, 812 P.2d 858 (1991) (quoting
McGrath v. Stevenson, 194 Wash. 160, 102, 77 P.2d 608 (1938)).
58 Wichert, 117 Wn.2d at 151 (citing In re R., 97 Wn.2d 182, 187, 641
P.2d 704 (1982); Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258
(1990)).
59 Clerk's Papers at 59.
60 Lani Guinier, Groups, Representation, and Race-Conscious Districting:
A Case of the Emperor's Clothes, 71 Tex. L. Rev. 1589, 1603 (1993). The
idea that geography approximates political interests has feudal origins.
Id.
61 Lawrence v. City of Issaquah, 84 Wn.2d 146, 150, 524 P.2d 1347 (1974).
See also Fischnaller v. Thurston County, 21 Wn. App. 280, 584 P.2d 483
(1978), review denied, 91 Wn.2d 1013 (1979).
62 Clerk's Papers at 59.
63 Report of Proceedings at 140-41.
64 Clerk's Papers at 25.
65 Common ownership of separate parcels of land is significant in the law
of eminent domain. If a city condemns part of an owner's property for
public use, the owner would have the opportunity to prove that the
condemned parcel is part of a single tract in order to receive just
compensation. State v. Wandermere Company, 89 Wn. App. 369, 377, 949 P.2d
392 (1997), review denied, 135 Wn.2d 1012, 960 P.2d 939 (1998). The
"larger parcel test" requires unity of ownership, unity of use, and
contiguity. Doolittle v. City of Everett, 114 Wn.2d 88, 94-95, 786 P.2d
253 (1990). In Doolittle, this Court used the "larger parcel test" from
the law of eminent domain to decide whether separate lots should be
combined into one tract for a special tax assessment. Id. In Caine-
Grimshaw Company v. White, a company sought recovery by mechanic's lien for
repairs on a house. 136 Wash. 98, 238 P. 980 (1925). The lien was filed
not only against the house located on one lot, but against adjacent lots
also owned by the owner of the house. This Court stated, "The three lots
are contiguous to each other and manifestly constitute a single ownership
by appellants for home purposes." Id. at 100.
66 Clerk's Papers at 59.
67 Id. at 24. See also Report of Proceedings at 173, 332-33.
68 Clerk's Papers at 24.
69 Id. at 59, Memorandum Decision.
70 Id. at 21.
71 Id. at 27.
72 Id.
73 Id. at 25.
74 Id. at 86.
75 Report of Proceedings at 43.
76 Clerk's Papers at 28.
77 RCW 29.07.070 states in part: "Except as provided under RCW
29.07.260, an applicant for voter registration shall complete an
application providing the following information concerning his or her
qualifications as a voter in this state: . . . (4) The address of the
applicant's residence for voting purposes . . . ."
78 Clerk's Papers at 239.
79 Id. at 240-41. The Benton County Auditor testified that before the
primary she received a letter from Wallace W. Hickerson, Appellant's
opponent, stating that Appellant did not reside in District One. She
further testified that her office contacted the Port District about the
matter, checked the maps in the auditor's office, and "found that by all
the tools that we use in the auditor's office that she {Appellant} was in
the district." Report of Proceedings at 71.
80 Clerk's Papers at 25-26.
81 There was conflicting testimony whether Appellant Gagner (the Benton
County Auditor) checked the location of the address utilizing solely the
precinct map. When asked if she checked with the Benton County Assessor,
Appellant Gagner testified she had not and was not required by law to do
so. Report of Proceedings at 221. The Benton County Assessor testified the
auditor did sometimes consult that office about the actual physical
location of a candidate's address. Id. at 354. The assessor further
testified that the county auditor did come to her office to check on the
location of Appellant Frost's address. They checked a "hard copy map" (a
plat map) and a Geographical Information Systems (G.I.S.) map and located
the address in Section 16, in Port Commissioner District Two. Id. at 355.
However, Appellant Frost's opponent, Mr. Hickerson, testified that when he
checked with the county assessor's office for the address of Appellant
Frost he was informed the address was 4103 West 43rd Avenue, an address
that placed her residence in Commissioner District One. Id. at 292-93.
82 20 Wn.2d 704, 149 P.2d (1944).
83 Id. at 709.
84 196 Wash. 1, 81 P.2d 860 (1938).
85 Id. at 7-8. See also Br. Amicus Curiae Secretary of State Ralph Munro
at 7-8.
86 See Fischnaller v. Thurston County, 21 Wn. App. 280, 285, 584 P.2d 486
(1978), review denied, 91 Wn.2d 1013, (1979).
87 52 Wn.2d 397, 326 P.2d 47 (1958).
88 Id. at 406-07.
89 Id. at 407.
90 Clerk's Papers at 25. Benton County Election Supervisor Susie
Christopher testified she does not use a plat map to assign precincts and
does not use section lines. Report of Proceedings at 213-14, 216.
91 Id. at 211, 214.
92 Clerk's Papers at 241.
93 Id. at 28.
94 Report of Proceedings at 292-93.
95 Id. at 293. This address, 4103 West 43rd Avenue, was also the one
referred to in Respondent Dumas' original petition. Clerk's Papers at 250.
96 Appellant's Br. at 39.
97 State ex rel. Macri v. City of Bremerton, 8 Wn.2d 93, 102, 111 P.2d
612 (1941).
98 The trial court permitted Appellant Frost to intervene. Clerk's
Papers at 247-48. Under CR 24(b)(2), a court may permit intervention
"{w}hen an applicant's claim or defense and the main action have a question
of law or fact in common." Appellant Frost subsequently appealed the trial
court's order to this Court and is properly before this Court as a party.
"It is generally said that an intervenor is treated as an original party."
3A Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice
612 (4th ed. 1992).