Baker v. Bink ( 1986 )

No. 85-512
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
R N L D.
O AD RAKER a n d ANDREA D.
BAKER,
P l a i n t i f f s and A p p e l l a n t s ,
GERALDINE B I N K , a n d t h e M i l l Levy
f o r SCHOOL DISTRICT NO. 9 7 ,
Defendants and Respondents.
APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l District,
I n and f o r t h e County o f C a s c a d e ,
The H o n o r a b l e J o h n McCarvel, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
A l e x a n d e r & Baucus; Ward E . T a l e f f , Great F a l l s ,
Montana
For Respondent:
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; Lon T . H o l d e n ,
G r e a t F a l l s , Montana
P a t r i c k L. P a u l , County A t t o r n e y , G r e a t F a l l s , Montana
S u b m i t t e d on B r i e f s : J u l y 1 0 , 1986
Decided: O c t o b e r 9 , 1986
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Filed:
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Ronald and Andrea Baker appeal an order from the Cascade
County District Court denying their petition to invalidate
the election and mill levy held in School District No. 97 in
April, 1984.
Appellants ask whether it can be said to a mathematical
certainty that irregularities in the election had no effect
on the election results, while the respondents phrase the
issue as one of mootness. We affirm.
On April 3, 1984, an election was held in School
District No. 97 in the City of Sun River, Montana. The
voters were to select three trustees to the School Board and
to approve or disapprove a mill levy. Respondent Geraldine
Bink was seeking a one-year term as a trustee and her
opponent was Stanley Reeverts. Appellant Ronald Baker was
seeking election to a three-year term on the Board.
Bink received 105 votes in the election to Reevert's 97,
for an eight vote margin of victory. The mill levy was
approved by a similar eight vote margin. Ronald Baker lost
his bid for a seat on the Board by 60 votes.
On April 9, 1984, the Bakers filed a complaint with the
Cascade County District Court challenging the validity of the
entire election. The complaint was dismissed without
prejudice on April 23, 1984. On August 20, 1984, the Bakers
filed a petition contesting the election of Bink and the
passage of the mill levy pursuant to § 13-36-101, MCA. They
contended that Bink received illegal votes in the election
and gave two reasons for their contention. First, the Bakers
argued that several voters did not meet the residency
requirements as mandated by Montana law. Second, the Bakers
argued that several absentee ballots were tainted due to
improper distribution and ta-bulation of the ballots by
election officials.
A trial was held before the District Court on May 13,
1985, one month after Geraldine Bink's one-year term as a
school board trustee had expired. The court upheld the
election as to both Bink and the mill levy finding that:
(1) no candidate returned as elected participated in
the irregularities alleged by the Bakers;
(2) the number of contested votes would not affect the
outcome of the elective position sought by Mr. Baker;
(3) there was no evidence that anyone other than the
proper person voted on the absentee ballots, nor was there
any evidence to show that any absentee ballot envelope had
been opened by someone other than the election judges;
(4) that whatever voting irregularities occurred did
not stem from any corrupt or illegal purpose but were caused
by election officials or third parties and had no effect on
the election results.
The School District argues the issue of mootness. We
have repeatedly held that we will not pass upon moot
questions. Adkins v. City of Livingston (1948), 121 Mont.
528, 194 P.2d 238. In State ex rel. Miller v. Murray (1979),
183 Mont. 499, 503, 600 P.2d 1174, 1176, we stated that "a
moot question is one which existed once but because of an
event or happening, it has ceased to exist and no longer
presents an actual controversy."
The Bakers rely on S 13-36-101, MCA, in their argument.
The statute reads as follows:
An elector may contest the right of any
person to any nomination or election to
public office for which the elector has
the right to vote, for any of the
following causes:
(1) on the ground of a deliberate,
serious, and material violation of any
provision of the law relating to
nominations or elections;
(2) whenever the person whose right is
contested was not, at the time of the
election, eligible to such office;
(3) on account of illegal votes or an
erroneous or fraudulent count or canvass
of votes.
The remedy in the event illegal votes have been counted
is stated in 5 13-36-212, MCA:
If, in any case of a contest on the
ground of illegal votes, it appears that
a person other than the one returned has
the highest number of legal votes after
the illegal votes have been eliminated,
the court must declare such person
nominated or elected, as the case may be.
We believe that questions as to the validity of the
election are moot. Our reasoning is that due to the passage
of time, an actual controversy no longer exists and no remedy
for the situation is possible. Mrs. Bink's one-year term of
office expired in May 1985 and therefore, she cannot be
ousted from an office she no longer holds.
As to the sufficiency of the evidence, appellants did
not prove to the District Court's satisfaction that illegal
or fraudulent votes had been tallied. We discussed the
burden of proof in an election contest in Martin v. State
Highway Commission (1939), 107 Mont. 603, 614, 88 P.2d 41,
"It is a rule of well-nigh uniform
recognition that, after an election has
been held, a party will not be permitted
to challenge it unless he can show that a
different result would have been reached
but for the conditions of which he
complains."
The Bakers, neither of whom testified at trial, were
unable to prove that Bink had received any illegal votes or
was involved in any election irregularities. Honest mistakes
of public officials should not be permitted to disenfranchise
duly qualified electors. State ex rel. Van Horn v. Zyon
(1946), 119 Mont. 212, 173 P.2d 891. It is admitted that the
election officials could have been more prudent in following
the procedure for absentee voting. Evidence was presented
that several ballots were distributed to acquaintances of the
absentee voters and that ballots were counted even though the
signatures on the absentee application envelopes and the
ballots themselves were not in their proper places. However,
the number of contested ballots would not have affected the
election of the trustee position sought by Mr. Baker since he
lost by some 60 votes. Further, the evidence supports the
finding that the absentee ballots were opened by the election
judges and no one else.
Lastly, we find sufficient evidence to support the
District Court's finding that whatever voting irregularities
occurred were caused by election officials or third parties
and had no effect on Bink's election or the mill levy
election.
Affirmed.
I
Justice /
We concur:
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