IN RE AHST COMMUNITY SCHOOL DISTRICT PUBLIC MEASURE "B" ELECTION, CONTESTANTS
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IN THE SUPREME COURT OF IOWA
No. 68 / 06-1344
Filed July 20, 2007
IN RE AHST COMMUNITY SCHOOL
DISTRICT PUBLIC MEASURE “B”
ELECTION,
CONTESTANTS,
Appellants.
Appeal from the Iowa District Court for Pottawattamie County, J.C.
Irvin, Judge.
Contestants appeal the district court’s ruling that dismissed their
election contest for lack of jurisdiction. AFFIRMED.
Joseph D. Thornton and Nathan R. Watson of Smith Peterson Law
Firm, LLP, Council Bluffs, for appellants.
Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for appellee AHST
Community School District.
2
APPEL, Justice.
This dispute arises out of a challenge to a school bond election held
on September 13, 2005 in the Avoca-Hancock-Shelby-Tenant Community
School District (AHST). At the conclusion of the election, it appeared that
the measure had obtained the required sixty percent supermajority by a
narrow margin. After a recount and a contest court review failed to reverse
the outcome, the plaintiffs filed an action in district court seeking to set
aside the result. The district court dismissed the petition for lack of subject
matter jurisdiction 1 due to the plaintiffs’ failure to timely file a bond with
the county auditor. For the reasons set forth below, we affirm the decision
of the district court.
I.
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS.
On September 13, 2005, the eligible voters of the AHST community
were asked whether to approve bonds not to exceed $5,420,000 to construct
athletic facilities and purchase land for such purposes near the present
high school. On September 16, 2005, the Board of Canvassers certified the
election results—1175 “yes” votes versus 774 “no” votes. By garnering
60.29% of the vote, the measure met the sixty percent supermajority
requirement. See Iowa Code §§ 75.1, 296.6 (2005).
Thereafter, the required number of eligible voters requested a recount
pursuant to Iowa Code section 50.49. After the recount, the Board of
Canvassers determined that one ballot, cast in favor of the bond issue,
should be rejected. The one-vote change reduced the percentage in favor of
the measure from 60.29% to 60.27%. As a result, the recount did not
change the outcome of the election.
1Despite
phrasing by the district court and the parties, “[t]he issue is technically not
one of subject matter jurisdiction. . . . The issue is one of jurisdiction of the particular
case.” City of Des Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W.2d 729, 730
(Iowa 1985).
3
On
October
6,
2005,
the appellants filed a petition with the
Pottawattamie County Auditor seeking to convene a “contest court”
pursuant to Iowa Code section 62.5.
This statutory provision states,
“Within twenty days after the board of supervisors declares a winner from
the canvas of an election, the contestant shall file with the commissioner a
written statement of intention to contest the election.” Id. § 62.5. The
petition, which contested the election based on alleged irregularities in voter
registration forms, absentee ballot requests, and absentee ballots, was
timely filed.
In addition to filing a timely petition, Iowa law requires that parties
challenging an election file a bond. Iowa Code section 62.6 provides, “The
contestant must also file with the county auditor a bond, with security to be
approved by said auditor, conditioned to pay all costs in case the election be
confirmed, or the statement be dismissed, or the prosecution fail.” Id.
§ 62.6.
The petition was filed on October 6, 2005—twenty days after the
election’s certification. The appellants, however, did not file a bond until
October 19, 2005. The appellants assert that while the county auditor
stated no bond less than $1500 would be approved, the county auditor
refused to declare a specific amount until after the statutory period had
elapsed. The record shows that negotiations on the precise bond amount
occurred between October 6th and, at least, October 12th. Eventually, the
county auditor determined that a bond in the amount of $3000 would be
approved. Contestants filed a $3000 bond on October 19, 2005.
On February 7, 2006, the contest court convened. AHST challenged
the contest court’s jurisdiction due to the appellants’ failure to file bond by
October 6, 2005. The contest court overruled the jurisdictional challenge,
however, and proceeded to hear the evidence. After hearing the evidence,
4
the contest court found that the appellants failed to prove that a
sufficient number of ballots were illegally cast to affect the outcome of the
election.
The appellants appealed to district court. AHST filed a motion to
dismiss for failure to file the required bond in a timely matter. The district
court overruled the motion on the ground that it was precluded from
looking outside the pleadings in a motion to dismiss. AHST, however, then
reasserted the lack of jurisdiction as an affirmative defense in its answer.
The case proceeded to trial. The district court entered its ruling
dismissing the case, for lack of jurisdiction, because the appellants failed to
file the bond within the time required by law.
Appellants filed a timely appeal, which was expedited by this court.
II.
STANDARD OF REVIEW.
For actions tried in equity, this court’s review is de novo. Iowa R.
App. P. 6.4. However, lack of authority or jurisdiction to hear a particular
case is reviewed for correction of errors of law. State v. Oetken, 613 N.W.2d
679, 686 (Iowa 2000).
III.
DISCUSSION.
A.
Strict Compliance Approach to Jurisdiction of Election
Challenges in Iowa.
This court has had two occasions to consider the statutory
requirement to file bond as security for costs in election challenges. The
first was Haas v. Contest Court, 221 Iowa 150, 265 N.W. 373 (1936). In
Haas, the court considered the filing of a bond in an election contest under
a precursor to Iowa Code section 62.6. The plaintiffs in Haas filed a bond
with the Iowa Secretary of State and filed a written notice of their intent to
challenge the election before the Board of Canvassers had certified the final
result. Both the filing of the bond and the written notice of intention were,
5
therefore,
premature
under
the applicable statutes. Hass, 221 Iowa
at 156, 265 N.W. at 376. Once the Board of Canvassers reached a final
result, the plaintiffs refiled their written notice of intention, but did not
refile the bond. The Secretary of State, however, accepted the bond and
approved its amount within the statutory period. Id. at 157, 265 N.W. at
376. In Haas, we held that the premature filing of the bond did not oust
jurisdiction as there was “sufficient compliance” with the statutes. Id. at
157, 265 N.W. at 377.
The second case was de Koning v. Mellema, 534 N.W.2d 391 (Iowa
1995). In this case, the plaintiffs sought to challenge a school bond election
that passed by a slim margin. De Koning, 534 N.W.2d at 393. The plaintiff
filed the required statement of intention but did not file a bond as required
by statute. Id. When the plaintiff demanded that the county auditor name
a member of the contest court, the county auditor declined on the ground
that no bond had been filed. Id. The plaintiff then filed an action for
mandamus in the district court, seeking to compel the county auditor to
appoint a member of the contest board. Id.
The district court denied relief on the ground that the bond had not
been filed and the plaintiff appealed. Id. at 394. The plaintiff asserted that
the bond requirement did not apply to the case, that the auditor waived the
bond requirement, and that the failure to post bond did not prejudice the
auditor and thus the action should not have been dismissed. Id. at 396.
In canvassing the applicable legal principles, this court noted that it
was “generally recognized that to initiate special proceedings, such as
election contest proceedings, the statutory provisions necessary to confer
jurisdiction must be strictly complied with by the contestants.” Id. at 394.
The court noted that statutory provisions for election contests granted a
6
privilege
that
did
not
exist
at common law and, as a result, the
right to bring a challenge was contingent on statutory compliance. Id.
Plaintiff contended that because the auditor did not request a bond
when the contestants filed their statement of intention, the requirement was
waived. Id. at 396. This court rejected that argument, noting that the
statute clearly placed a duty on the contestants to file the bond and that the
auditor was merely the recipient of the election contest statement and not a
party to the contest. Id.
Finally, this court rejected the notion that the bond requirement
could be avoided by a claim of lack of prejudice. The court noted that
prejudice to the county auditor is irrelevant as the bond is designed to
protect the school district, not the county official. Id. In any case, citing
Haas, the court observed that “the legislature has already determined by
the express terms of the statutes that if a bond is not filed within twenty
days, prejudice will result.” Id.
If the approach in de Koning and Haas were to be applied to the facts
of this case, the district court ruling would be affirmed. Iowa Code sections
62.5 and 62.6 are special statutes that confer subject matter jurisdiction on
district courts. The rule, as interpreted by this court in de Koning and
Haas, imposes a mandatory requirement on election contestants to file a
bond within twenty days of the certification of the results of the challenged
election. The contestants in this case simply did not meet the statutory
requirement.
Iowa Code section 62.6, however, does not explicitly require the bond
to be filed within twenty days of an election’s certification. While there is a
significant issue of error preservation, we affirm this court’s prior holdings
in Haas and de Koning, which extend Iowa Code section 62.5’s twenty-day
deadline to the filing of bond. First introduced in 1851, the predecessor of
7
sections
62.5
and
62.6
was contained in a single Code provision,
comprised of a single sentence. See Iowa Code § 345 (1851). In 1873 the
provision was minimally revised. While the filing of an intention to contest
and bond remained in a single section, the requirements were divided into
two separate sentences. The bond requirement was further amended from
“must file . . . bond” to “must also file . . . bond.” Iowa Code § 697 (1873).
It was not until 1924 that these requirements were separated into two
provisions. See Iowa Code §§ 1024-25 (1924).
The original inclusion of the filing of the intention to contest an
election and the filing of a bond in a single section, with one time limit,
demonstrates the legislature’s intention to require that both be filed within
twenty days of an election’s certification. Moreover, the later insertion of
the word “also” reinforces this interpretation. As a result, we see no reason
to depart from Haas and de Koning—bond must be filed with the county
auditor within twenty days of an election’s certification.
Appellants, nevertheless, claim that the auditor did not perform her
duty in this case. They argue that the auditor refused to “set” the level of
the bond in a timely fashion and, as a result, it was impossible to comply
with the statute. 2 The statute, however, does not require the auditor to do
anything until a bond has been filed. Once a bond has been filed, the
auditor is then required to “approve” it.
Merriam-Webster’s Collegiate
Dictionary defines approve as “to accept as satisfactory.” Merriam Webster’s
2Although
not presented in this case, we note that there is a distinction between
bond and security supporting the bond. Black’s Law Dictionary defines bond as “[a] written
promise to pay money or do some act if certain circumstances occur or a certain time
elapses. . . .” Black’s Law Dictionary 169 (7th ed. 1999). The bond, therefore, required by
Iowa Code section 62.6 is merely a written promise to pay the expenses of the election
challenge and does not involve a precise calculation of a monetary sum. Security, on the
other hand, is the “[c]ollateral given or pledged to guarantee the fulfillment of an obligation.
. . .” Id. at 1358. The dispute in this case thus is not over the amount of bond, but the
amount of security which would be approved by the auditor.
8
Collegiate Dictionary 57 (10th ed. 2002). Clearly, the filing of a bond is
a condition precedent to approval by the county auditor.
If an auditor refused to perform his duty after the filing of the bond, a
different result might occur. See O’Loughlin v. Otis, 276 N.W.2d 38, 40
(Minn. 1979) (suggesting a defect in jurisdiction may not be present if a
contestant has done everything within his power to fulfill statutes and a
public official either fails or refuses to perform duty). We need not address
this question, however, as it is not presented by the facts of this case.
The appellants also argue that because bond was accepted by the
auditor and the auditor appointed a member to the contest court, AHST
cannot challenge the sufficiency of the bond. In de Koning, however, we
stated that the county auditor did not have authority to waive jurisdictional
defects. De Koning, 534 N.W.2d at 396. As a result, the appellants’ implicit
argument that the auditor waived the statutory requirement is without
merit.
B.
Substantial Compliance
Requirements.
Approach
to
Jurisdiction
The appellants argue that we should depart from prior precedent and
recognize a substantial compliance approach to the timely bond
requirement under Iowa Code section 62.6. A number of cases in other
jurisdictions have adopted a substantial compliance approach in election
law contexts. See Ex parte Williams, 613 So. 2d 1266 (Ala. 1993); Dobbins
v. City of Anniston, 469 So. 2d 583 (Ala. 1985); Taft v. Cuyahoga County Bd.
of Elections, 854 N.E.2d 472 (Ohio 2006). In addition, there has been
academic commentary criticizing courts for requiring literal compliance with
bond requirements. Note, Developments in the Law, 88 Harv. L. Rev. 1298,
1310-11 (1975) (criticizing literal approach to bond requirements in light of
strong public interest in ensuring fairness in elections).
9
In the cases closest to the present controversy, however, the
courts required that election challengers must file some kind of bond in a
timely fashion to demonstrate substantial compliance. For example, in
Dobbins, the district court rejected a claim of substantial compliance where
the election challengers had difficulty getting authorities to establish the
amount of the bond. Dobbins, 469 So. 2d at 585. The court reasoned that
if a bond in some amount had been filed in a timely fashion, it could later
be amended in the event of an untimely refusal to approve the bond by
election officials. Id. In Dobbins, however, no bond of any kind was filed
within the statutory time frame. As a result, the Dobbins court found there
was not substantial compliance with the statute. Id.
Similarly, in Williams, the election challenger was advised that the
filing fee was the equivalent of a bond and, relying upon this advice, did not
file a bond. Williams, 613 So. 2d at 1267. When the election challenger
later attempted to “amend” the filing fee to a bond, the court held that the
filing fee was not a bond and that the failure to file a bond in form at least
meant that there was an incurable jurisdictional defect. Id. at 1267-68.
On the other hand, in Taft, the court allowed an election challenge to
proceed
notwithstanding
technical
noncompliance
with
statutory
requirements. Taft, 854 N.E.2d at 474-75. In that case, however, the
election challenger did file a bond (albeit technically deficient and not
supported by adequate security) in a timely fashion. Id. at 476.
In light of Dobbins and Williams, even if we were to depart from our
precedents in favor of a substantial compliance test for jurisdiction under
Iowa Code section 62.6, a fatal defect would still be present under the facts
of this case. As a result, it is not necessary for us to address the issue of
whether we should depart from the strict construction approach of
10
de Koning and Haas.
Appellants
cannot prevail under either the
strict or the substantial compliance approach.
IV.
CONCLUSION.
For the above reasons, the decision of the district court is affirmed.
Under either the traditional strict construction approach to jurisdiction, or
under a more forgiving substantial compliance approach, the appellants
have not adequately complied with the bond requirement of Iowa Code
section 62.6. As a result, the decision of the district court in this matter is
affirmed.
AFFIRMED.
All justices concur except Larson, J., who takes no part.
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