Larry BECKER, Plaintiff and Appellant, v. Julie PFEIFER, Defendant and Appellee.
No. 20633.
Supreme Court of South Dakota.
Decided Feb. 4, 1999.
1999 SD 17
Considered on Briefs Jan. 7, 1999.
James A. Wyly of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for defendant and appellee.
SABERS, Justice.
[¶1.] Larry Becker appeals from an order quashing and dismissing his application for writ of certiorari to review a recount of a municipal election. He also appeals from the judgment determining the election was valid and declaring Julie Pfeifer the winner in an election contest. We affirm the order and the judgment of the trial court.
FACTS1
[¶2.] Becker and Pfeifer were candidates for the office of city commissioner of the City of Aberdeen in its general election held June 2, 1998. Six candidates vied for this position and voters were instructed to cast their votes for only one candidate. Ballots determined to be marked for more than one candidate were not counted as a vote for any of the candidates. Election returns showed Becker the winner by two votes.
[¶3.] Pfeifer requested a recount pursuant to
[¶4.] The votes were recounted and ballots on which the voter had blackened the oval next to Pfeifer‘s name and placed an “X” in the oval beside another candidate‘s name were counted as a vote for Pfeifer. Another ballot, that showed an “X” in the oval beside Pfeifer‘s name and a filled oval and circle around Becker‘s name, was not counted as a vote for Becker. None of these nine overvoted ballots had originally been counted as a vote for any of the candidates. Four ballots originally counted for Pfeifer were disputed by Becker as having identifying marks; these ballots were counted by the recount board as votes for Pfeifer. The recount gained two votes for Pfeifer with the result being that Pfeifer and Becker each had an equal number of votes. Lots were drawn to determine the winner. Pfeifer won the draw and was named the winning candidate. She was issued a certificate of election under
[¶5.] Becker petitioned for writ of certiorari, which was granted, and the matter set for hearing. Becker also filed a complaint contesting the election pursuant to
Whether the certiorari provisions of SDCL ch 12-21 governing recounts apply to municipal elections.- Whether the recount board exceeded its jurisdiction.
- Whether irregularities in the election, ballot counting, and recount resulted in the free and fair expression of the will of the voters.
Additional facts will be presented as they are relevant to the discussion of the issues in this appeal.
ANALYSIS AND DECISION
[¶6.] 1. Whether the certiorari provisions of
[¶7.] Becker petitioned for writ of certiorari to review the proceedings of the recount board. The trial court quashed the writ and dismissed on grounds that municipal recount board proceedings may not be reviewed by writ of certiorari and on grounds that there was no evidence the board exceeded its jurisdiction sufficient to invoke
[¶8.]
Except in school and municipal elections and as provided in
§ 12-21-18 , the provisions of this chapter apply to the recount of ballots cast in any election conducted.
This statutory language clearly excludes municipal elections but Becker argues the exclusion relates only to “recounts of ballots” and not to the appeal process following a recount.
[¶9.] Becker‘s argument fails to consider the well-established rules of statutory construction that language of the statute is given its plain meaning and must be considered as a whole. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court‘s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. Taylor Properties, Inc. v. Union County, 1998 SD 90, ¶ 14, 583 N.W.2d 638, 641 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17; US West Communications, Inc. v. Public Utilities Comm‘n, 505 N.W.2d 115, 122-23 (S.D.1993)).
[¶10.] By plain language, the provisions of
Notwithstanding any other provisions of law, recounts of municipal ballot questions shall be conducted when, within five days after completion of the official canvass of a municipal ballot question election at which a question is approved or disapproved by a margin not exceeding two percent of the total votes cast in the election, any three registered voters of the municipality file a petition duly verified by them, setting forth that they believe a recount will change the outcome. A recount board shall be appointed by the finance officer
who shall appoint one person on each side of the question and one person who shall be mutually agreed upon by the other two appointed. The recount shall be conducted according to the provisions of § 9-13-27.3 .
So, effective July 1, 1995, the legislature demonstrated its intent that certiorari under
[¶11.]
[¶12.] 2. Whether the recount board exceeded its jurisdiction.
[¶13.] As noted above, the trial court‘s order was also based on grounds that there was no evidence the recount board exceeded its jurisdiction sufficient to invoke the general certiorari provisions in
A writ of certiorari may be granted by the Supreme and circuit Courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.
This Court‘s scope of review is confined to questions regarding the jurisdiction of the board and whether the board regularly pursued the authority conferred upon it.
[¶14.] Before we address Becker‘s specific claim under this issue, we note that in two prior cases involving municipal elections, this Court has declared that a writ is an extraordinary remedy and not available to challenge municipal elections because another adequate remedy exists, namely the election contest statutes in
[¶15.] Notwithstanding this legal precedent, Becker seeks a writ claiming that the recount board exceeded its jurisdiction by misapplication of the law, specifically by not applying this Court‘s holding in McIntyre v. Wick, 1996 SD 147, 558 N.W.2d 347 regarding the validity of ballots containing extraneous marks. Under certiorari, this Court may consider only whether the recount board had jurisdiction to recount the ballots and whether it regularly pursued its authority in doing so. Save Centennial Valley Ass‘n, 284 N.W.2d at 458. Jurisdiction is not based on a right or wrong decision regarding the facts or the law of a disputed issue.
[¶16.]
[¶17.] We do not have before us, and therefore do not decide, the case where a recount board has completely abused its authority and acted against or without reason. Neither party has made such an allegation in this case. “[C]ertiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding, at least in the absence of fraud, or willful and arbitrary disregard of undisputed and indisputable proof wherein credibility of witnesses is not involved.” Willard v. Civil Service Bd., 75 S.D. 297, 63 N.W.2d 801 (1954). In other words, there must be a showing that the board acted either fraudulently or in an arbitrary or willful disregard of undisputed and indisputable proof.
[¶18.] As noted above, this Court‘s review does not extend to the validity of the ballots. Burlington Northern R. Co., 497 N.W.2d at 442. Jurisdiction encompasses the power to decide erroneously as well as correctly. Ruffing v. Jameson, 80 S.D. 362, 123 N.W.2d 654, 658 (1963); 20 AmJur2d Courts, Jurisdiction § 55 (1995). Nevertheless, there is insufficient evidence that the recount board erred when it determined the validity of the disputed ballots.
[¶19.] 3. Whether the irregularities in the election, ballot counting, and recount resulted in the free and fair expression of the will of the voters.
[¶20.] Becker also contested the election under
[¶21.] Alleged irregularities in this election include the manner in which thirteen of the ballots were counted as described above. Also, twenty-eight absentee ballots were not stamped in accordance with
[¶22.] The trial court found the failure to stamp the absentee voter ballots was a mistake of the election officials, not the voters. Although this stamp is required by statute, this Court has previously stated that “[i]t is not the policy of the law to disenfranchise voters because of an election official‘s mistakes, negligence, or misconduct.” Christensen v. Devany, 500 N.W.2d 213, 214 (S.D.1993) (quoting Abbott v. Hunhoff, 491 N.W.2d 450, 452 (S.D.1992)).6 Declaring these ballots void for lack of the official stamp would place form over substance, ignore the intent of the statute, and disenfranchise twenty-eight voters. Id.7 Though unstamped, these ballots had already been duly recorded by the superintendent of the precinct and entered into the poll books. After the vote count, the total number of ballots cast balanced with the numbers of persons recorded in the poll books as having voted. “No person should be deprived of his right to vote because of the neglect or carelessness of election officials unless that conduct has been carried to such an extent as to affect the true outcome of the election and put the results in doubt.” Id. (quoting Johnson v. Trnka, 277 Minn. 468, 154 N.W.2d 185, 187 (Minn 1967)).
[¶23.] Moreover, the trial court determined that the disputed ballots involved less than two percent of the total number of votes cast8 and that the allegations of fraud were not supported by sufficient evidence. Any irregularities in the conduct of this election were held to be minor and, viewed cumulatively, did not undermine the free and fair expression of the will of the voters for this seat on the Aberdeen City Commission. Compare Larson, supra (irregularities included no applications made for absentee ballots, some absentee ballots picked up by candidate Locken and returned by persons other than the absentee voter, including Locken, and absentee ballots marked in the presence of Locken; disputed votes comprised fifteen percent of the total votes cast). The facts of Larson are clearly distinguishable and the trial court did not err in declaring the election valid.
[¶24.] We affirm.
[¶26.] AMUNDSON, Justice, concurs in result.
AMUNDSON, Justice (concurring in result).
[¶27.] I agree with the result, but would go further to hold that election official‘s mistakes, negligence or misconduct, such as failure to stamp absentee ballots, should no longer invalidate ballots and disenfranchise voters unless it is shown that irregularities amount to more than a minor mistake or neglectful act by an official. In Larson v. Locken, this Court held that failure to affix the official stamp to an absentee ballot which, ”