In Re: THE CONTEST OF THE ELECTION (primary election-Republican nomination) FOR STATE REPRESENTATIVE IN LEGISLATIVE DISTRICT NO. 7, POSITION "B".
PAUL SHEPHERD, Contestee-Respondent, PHIL HART, Contestor-Appellant, and LAWERENCE B. DENNEY, Idaho Secretary of State, Intervenor-Respondent.
from the District Court of the Second Judicial District of
the State of Idaho, Idaho County. Hon. Gregory FitzMaurice,
judgment of the district court is affirmed.
J. Katsilometes, P.L.L.C., Boise and Macomber Law, PLLC,
Coeur d'Alene, for Appellant.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
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. Hart timely appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
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
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. 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
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 on August 16,
2018. Hart timely appealed.
STANDARD OF REVIEW
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.
district court determined that summary judgment dismissing
Hart's claim under Idaho Code section ...