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In re The Contest of Election

Supreme Court of Idaho, Boise

September 7, 2018

In Re: THE CONTEST OF THE ELECTION (primary election-Republican nomination) FOR STATE REPRESENTATIVE IN LEGISLATIVE DISTRICT NO. 7, POSITION "B".
v.
PAUL SHEPHERD, Contestee-Respondent, PHIL HART, Contestor-Appellant, and LAWERENCE B. DENNEY, Idaho Secretary of State, Intervenor-Respondent.

          Appeal from the District Court of the Second Judicial District of the State of Idaho, Idaho County. Hon. Gregory FitzMaurice, District Judge.

         The judgment of the district court is affirmed.

          Thomas J. Katsilometes, P.L.L.C., Boise and Macomber Law, PLLC, Coeur d'Alene, for Appellant.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Intervenor-Respondent.

          PER CURIAM

         Phil Hart appeals from the Idaho County district court's grant of summary judgment dismissing his action contesting the results of a primary election for a legislative seat. The district court ruled that Hart had failed to demonstrate that any irregularities in the election were "sufficient to change the result"-an essential component of an election challenge under the Elections Contests Act, Idaho Code sections 34-2101-34-3128.[1] Hart timely appealed. We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On March 8, 2018, Hart filed a declaration of candidacy seeking the Republican nomination for the office of State Representative for the Seventh Legislative District, Position B. On March 12, 2018, the Secretary of State certified his candidacy. Later, the Secretary of State's Office sent Hart a letter dated April 24, 2018, informing him that he did "not meet the qualifications to be an Idaho Legislator" and his "name, therefore, should not appear on the primary ballot, but since they have already been printed, [his] name will be marked out and no votes will be counted." Local and statewide media reported that Hart had been declared ineligible. The Secretary of State's Office subsequently reversed its position as to Hart's eligibility for the legislative seat after an adverse ruling in a lawsuit filed by another candidate who had also been deemed ineligible to have her name on the ballot.

         The primary election was held on May 15, 2018. Hart lost to Paul Shepherd by a margin of 944 votes out of the 5, 450 votes cast.[2] There were 424 absentee ballots cast in the election, 101 of which had Hart's name stricken out and 39 ballots in which no vote was cast for either Hart or Shepherd. On June 4, 2018, Hart brought this action contesting the results of the primary election, relying on Idaho Code section 34-2104(7) ("When illegal votes have been received or legal votes rejected at the polls sufficient to change the result") and Idaho Code section 34-2104(10) ("For any other cause or allegation which, if sustained, would show that a person other than the contestee was the person duly elected to the office in question").[3]

         On July 16, 2018, the Secretary of State moved to intervene in the contest and to dismiss Hart's action. The district court received argument on the motions on July 30, 2018, and entered its order granting the motions[4] on August 16, 2018. Hart timely appealed.

         II. STANDARD OF REVIEW

         "In an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment." Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 13, 175 P.3d 172, 175 (2007) (quoting Lockheed Martin Corp. v. Idaho State Tax Comm'n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006)). Disputed facts are resolved in favor of the non-moving party, but

[w]hen an action will be tried before the court without a jury, the judge is not constrained to draw inferences in favor of the party opposing a motion for summary judgment but rather the trial judge is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts.

Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266, 1269 (2018) (quoting Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272, 1275 (1991)). When opposing a motion for summary judgment, the non-moving party "may not rest upon mere allegations . . . ." Gem State Ins. Co., 145 Idaho at 13, 175 P.3d at 175.

         III. ANALYSIS

         The district court determined that summary judgment dismissing Hart's claim under Idaho Code section ...


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