[Vision2020] Fw: city council elections

[aaron ament]

----- Original Message ----- 
From: "aaron ament" <citizenament at moscow.com>
To: <vision20/20 at moscow.com>
Sent: Wednesday, November 16, 2005 10:57 AM
Subject: city council elections


>
>
> Tom and other Visionaries:
>     I agree with you and Phil Nesbet that this is another legal issue that 
> requires lawyers for the closest thing to a definitive answer that we can 
> get.  Phil Cook and others have done some admirable legal research, but I 
> asked my lawyer, Mike Curley, to give me his best  answer to the questions 
> raised.  I share part of that with you below. One of the goals I stated 
> throughout the election process was that Moscow follow the law.  While 
> Mikes
> interpretation shows there is room for argument, I am completly satisfied 
> to accept his conclusion which is that the most likely result is that I 
> will be sworn in during the first council meeting in January.
>    Jon Kimberling has served faithfully on two occasions
> and I look forward to thanking him personally and shaking his hand at the 
> first January meeting of the Council.
>
> Aaron Ament
>>
>> An abbreviated version of Mike's comments:
>>
>> Aaron:
>> Having looked at what I think are all the relevant Idaho Code
>> sections, interpretations of the Code by the Attorney General and
>> Secretary of State, case law, and the City Code, the most definitive
>> answer I can give you is that there is no clear and unequivocal
>> answer.  The weight of the cases and interpretations, however, would
>> be in favor of Jon Kimberling remaining on council until the first
>> meeting in January, at which point you would be seated along with the
>> other newly-elected councilmen and mayor.
>>
>> Idaho Code 50-704, when read by itself, seems to say that at the
>> minimum Jon would not sit on council after the election.  IC 50-702
>> seems to say that you would be sworn in at the first January meeting,
>> while the implication of 50-704 would be that you would replace Jon
>> immediately.  However, the logical extensions of either of those
>> conclusions make less sense.  The former would leave the seat vacant
>> for about 8 weeks (election to first Jan. meeting).  The latter
>> conclusion logically leads to some odd extensions of the rule.
>>
>> For example, assume sitting councilwoman Jones resigns at any time
>> after the election that falls in the middle of her 4-year term and
>> the mayor appoints a replacement for her.  Smith is elected to Jones'
>> seat and would normally be sworn in at the January meeting.  However,
>> if the literal interpretation of  50-704 controls, Smith would be
>> seated immediately after the election.  Smith would thus serve more
>> than 4 years.  Maybe no harm there, but let's take the next step.
>> The law, of course, applies throughout Idaho.  In some places there
>> are 2-year seats to which similar statutory language applies.
>> Suppose a 2-year official resigns and a replacement is appointed.  By
>> a literal interpretation of the applicable statute (that is identical
>> to 50-704) the appointee's duly-elected replacement would take the
>> seat immediately after the election rather than in January.
>>
>> Now, while all that is a possible interpretation, we run into a case
>> directly on point to the last scenario.  In White v. Young, 88 Idaho
>> 188 (1964) where similar (but not identical) language applied, the
>> Supreme Court of Idaho rejected the newly-elected official being
>> seated immediately after the election.  He was sworn in at the
>> applicable January date.  The Court reasoned that the electee could
>> not "qualify" for  the seat until that date.
>>
>> While one can certainly argue around and through the gaps in the
>> various cases and statutes and rely particularly on the plain
>> language of 50-704, I found no other authoritative support for either
>> proposition:  that the appointee relinquishes his seat immediately
>> after the election;  or, that the newly-elected councilperson is
>> sworn in immediately after the election.
>>
>> The City of Lewiston has a city code provision that covers this very
>> situation.  It provides that the newly-elected councilperson is
>> seated immediately after the election.  Thus, it appears that
>> Lewiston has interpreted 50-704 to trump all other interpretations.
>> There is some question whether a city can override the state code in
>> this case, but since neither question has every been directly
>> litigated, they can follow whichever interpretation they choose until
>> a Court says otherwise.  Moscow, of course, could add its own
>> provision (either way, seat immediately or in January) should it
>> choose to "clarify" the issue.
>>
>> While it is an interesting question for a law-school exam or for
>> lawyers to argue in Court for a definitive answer, it appears to me
>> that the most likely result would be as stated above.
>>
>> If I can be of further assistance, please let me know.
>>
>> Regards,
>>
>> Mike Curley
>>
>>
>>
>>
>>
>>
>> On 15 Nov 2005 at 12:11, Tom Ivie wrote:
>>
>>>
>>> It is my understanding that this is an "informal guideline" which is a
>>> couple steps removed from an official Attorney General Opinion. It is
>>> interesting reading, but provides no absolute determination.There
>>> doesn't appear to be an absolute determination because the case law
>>> used in this argument is for a County Judge position and is quite
>>> different, as is the separation of powers, from a legislative
>>> appointment.The two positions are also bound by completely different
>>> Idaho Statutes (T. 50 for City and T. 59 for County). A quick look in
>>> the Pacific Digest for this exact circumstance only refers one to the
>>> Decennial Digest which refers to a 1993 Rhode Island case, not quite
>>> Idaho (Anderson v. Sundlun, 625 A.2d 213).It basically says that an
>>> appointed official serves until the qualification of a successor.
>>> Qualification inthis case would be the certification of the election
>>> which happened at 4:00pm last Wednesday.Does that apply here? I don't
>>> know. Will we ever know?I would think that the Mayor and his legal
>>> staff are looking into it with diligence to determine what to do and
>>> will let all of us know when they figure it out. We should be patient
>>> and give them some credit as some of these things aren't easy to
>>> answer. I did, however,like the argument that someone posted (maybe
>>> Wayne?) which stated that T. 50-702 says..."except as otherwise
>>> specifically provided"...whichwould be T. 50-704 which states..."such
>>> vacancy shall be filled for the balance of the original term."
>>>
>>> p.s. Phil, that was some good research on your part. I only found
>>> where youcan searchfor Opinions online. I had to look at the actual
>>> hard copy of the Annual Report to find what youposted.Can you tell me
>>> where you found it? -Tom
>>>
>>> Philip Cook <pcook818 at adelphia.net> wrote:
>>>     The following is from the Idaho Attorney General's Annual Report,
>>>     1987.
>>>
>>>     Philip Cook
>>>
>>>     *******Quoted material follows*******
>>>
>>>     September 25, 1987
>>>
>>>     James B. Weatherby
>>>     Executive Director
>>>     Association of Idaho Cities
>>>     3314 Grace Street
>>>     Boise, ID 83703
>>>
>>>     THIS CORRESPONDENCE IS A LEGAL GUIDELINE OF THE ATTORNEY GENERAL
>>>     SUBMITTED FOR YOUR GUIDANCE
>>>
>>>     Re: City Council Vacancies
>>>
>>>     Dear Jim:
>>>
>>>     In your letter of August 26, 1987, you ask several questions
>>>     concerning successors in office to council members appointed to
>>>     fill a vacancy. Specifically, you ask at what point is a successor
>>>     elected and qualified to assume a council office when the person
>>>     appointed to fill a vacancy either is defeated in the election or
>>>     declines to seek election. You further ask that the answer be
>>>     provided as it relates to a term which still has two years to ru!
>>>     n and to a term which expires and election is for a regular term.
>>>
>>>     Idaho Code § 50-704 provides the manner in which a vacancy to the
>>>     city council is filled:
>>>
>>>     A vacancy on the council shall be filled by appointment made by
>>>     the mayor with the consent of the council, which appointee shall
>>>     serve only until the next general city election, at which such
>>>     vacancy shall be filled for the balance of the original term.
>>>
>>>     Idaho Code § 50-702 provides for the point at which councilmen
>>>     elected take office: â?oCouncilmen elected at each general city
>>>     election shall be installed at the first meeting in January
>>>     following election.�
>>>
>>>     The general rule governing taking office upon election to fill an
>>>     unexpired term is that the person who wins the election takes the
>>>     office immediately upon election and qualification; generally
>>>     within a reasonable time after the election. 67 C.J.S. Officers,
>>>     § 79. However, where a statute provides otherwise, the person
>>>     elected to fill an une! xpired term takes office at the time
>>>     prescribed in the statute. Id. White v. Young, 88 Idaho 188, 397
>>>     P.2d 756 (1964).
>>>
>>>     Reading §§ 50-702 and 50-704 together, it is clear that in Idaho
>>>     the statutes provide a single, direct answer to the various
>>>     scenarios posed in your question. Thus, a person elected to fill
>>>     an unexpired term as provided by § 50-704 would assume office on
>>>     the first meeting of the council in January following the
>>>     election. The same would hold true for the person elected for a
>>>     full term which commences in January following the election. That
>>>     person also would not take office until the first meeting in
>>>     January following the election.
>>>
>>>     Each of these conclusions is consistent with the holding in White
>>>     v. Young, supra, where the Idaho Supreme Court held that a county
>>>     officer will take office at the time designated by statute.
>>>
>>>     If our office can be of further assistance, please call.
>>>
>>>     Sincerely,
>>>
>>>     DANIEL G. CHADWICK
>>>     Chief, Intergovernme! ntal Affairs Division
>>>
>>>     ******End quoted material ********
>>>
>>>
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>>
>>
>>
>>
>>
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