Valley County Prosecuting Attorney, Cascade, for appellant. Jay Kiiha argued.
Moore Smith Buxton & Turcke, Chtd., Boise, for respondent. Paul J. Fitzer argued.
This appeal relates to the service of four members of the Board of Directors for the Southern Valley County Recreation District (the Recreation District). The Valley County Prosecuting Attorney (the State) brought usurpation actions against Donald Keithly, Yvette Davis, Patrick Cowles, and Michael Smith (the Directors), alleging they usurped their offices as directors of the Recreation District. The State requested they be removed from office and sought a $5,000 fine against each of them. Upon the parties' cross-motions for summary judgment, the district court ruled that this action was an election contest, rather than a usurpation action, which cannot be brought by the State. The district court also ruled that the Directors' actions while in office were protected by the de facto officer doctrine. The State appeals, arguing this was a proper usurpation action and the de facto officer doctrine does not apply. The Directors cross-appeal, arguing they are entitled to attorney fees pursuant to I.C. § 12-117 and I.R.C.P. 11(a)(1). We dismiss the appeal for mootness. As to the cross-appeal, we affirm the district court's order denying attorney fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Recreation District was formed in 1998 and the original directors were appointed by then-Governor Phil Batt. The Board consists of three directors, each representing a separate subdistrict. The directors are unpaid and serve four year terms beginning January 1 in the year following their election. I.C. § 31-4305. From the time of the Recreation
District's creation until 2009, I.C. § 31-4306(1) provided that directors would be elected in the elections conducted in November of odd-numbered years. In 2009, I.C. § 31-4306(1) was amended to provide for election of directors in general elections conducted in November of even-numbered years. 2009 Idaho Sess. L. ch. 341, § 19, p. 993.
Yvette Davis was a member of the Recreation Board from its inception until she was defeated in an election in May of 2011. Prior to that election, there had never been a contested election for a position on the Recreation Board. When a candidate for subdistrict director runs unopposed, it is not necessary to hold an election. Rather, pursuant to I.C. § 31-4306(2), if there is no other qualified candidate and no one has filed a declaration of intent to pursue a write-in candidacy at least 25 days in advance of the election, the election is canceled and the unopposed candidate is declared elected to the Board. By this manner, Davis was elected in 2002 and 2007. However, there were several procedural defects in those elections and the elections of other board members.
In the November election in 2006, the Recreation District did not publish a Notice of Election Filing Deadline, which the county clerk must publish between fourteen and seven days before the election. Recognizing the error, the election for subdistrict 3 was rescheduled to February 6, 2007. Notice was properly given, but the wrong position was listed in the notice. Rather than list " director" of the Recreation Board, the notice listed the position as " president" of the Recreation Board. Davis ran unopposed and was declared elected.
The election errors were not limited to Davis. In 2008, the election for subdistricts 1 and 2 was conducted in November. The Notice of Filing Deadline was timely published in the local newspaper. However, that notice did not specify that seats for both subdistricts 1 and 2 were available. The notice simply stated that " declarations of candidacy for the office of Board of Directors of the Southern Valley County Recreation District must be filed ... no later than 5:00 p.m. on the 1st day of September, 2008." Only two people filed declarations of candidacy, Jim Roberts and Michael Smith. Smith declared for subdistrict 1 and Roberts for subdistrict 2. Pursuant to I.C. § 31-4306(2), the election was canceled and Smith and Roberts were declared elected. The notice of cancellation properly identified the subdistricts.
Jim Roberts resigned prior to the completion of his term. As previously noted, when there is a vacancy not resulting from the expiration of a term of office, the vacancy is filled by the remaining board members. I.C. § 31-4305. Roberts was replaced by Sue Patterson, who was appointed to serve out the remainder of Roberts' term. However, she also resigned prior to completing the term. Pat Cowles was then appointed to the Board for the subdistrict 2 position in May of 2010 to serve out the term. He was appointed by Davis and Smith. Smith resigned in February of 2011, and Keithly was appointed to serve the remainder of his term. Keithly was appointed by Davis and Cowles. It is unclear from the record when Keithly and Cowles left office, but they no longer sit on the Recreation Board. Thus, none of the Directors currently sit on the Board.
The State brought usurpation actions against Davis, Smith, Keithly, and Cowles requesting they be declared usurpers, removed ...