HomeMy WebLinkAbout751043.tiff y OFFICE OF COUNTY CLERK AND RECORDER
I
S. LEE SHEHEE
COUNTY CLERK AND RECORDER
PHONE 1303)353-2212 EXT.234
C. COUNTY SERVICES BUILDING
GREELEY,COLORADO 80631
COLORADO DECEMBER 4, 1974
THE HONORABLE ROBERT N. MILLER
DISTRICT ATTORNEY
NINETEENTH JUDICIAL DISTRICT
P.O. Box 1167
GREELEY, COLORADO 80631
DEAR MR. MILLER:
THIS IS A REQUEST FOR A FORMAL OPINION FROM THE DISTRICT
ATTORNEY ON A MATTER CONCERNING ELECTIONS, SPECIFICALLY
THE COUNTY HOME RULE CHARTER ELECTION HELD IN WELD COUNTY
IN CONJUNCTION WITH THE NOVEMBER 5, 1974 GENERAL ELECTION.
PURSUANT TO 36-28-2 (3) (C) COLORADO REVISED STATUTES 1963,
AS AMENDED, WELD COUNTY ELECTED A TWENTY ONE MEMBER CHARTER
COMMISSION. THE PROBLEM HAS ARISEN BECAUSE ONE OF THE
CANDIDATES, MR. FRANK YAMAGUCHI , WAS ELECTED FROM THE WRONG
COMMISSIONER DISTRICT.
I FEEL THE CIRCUMSTANCES WHICH LED TO THIS ERROR WARRANT A
FORMAL RULING FROM YOU AS TO MR. YAMAGUCHI 'S ELIGIBILITY
TO SERVE ON THE CHARTER COMMISSION.
MR. YAMAGUCHI 'S PETITION OF NOMINATION WAS CIRCULATED BY
MR. VINCENT ERICKSON. WHEN THE PETITION WAS SUBMITTED TO
MY OFFICE BY MR. ERICKSON IT INDICATED THAT MR. YAMAGUCHI
WAS TO BE A CANDIDATE FROM COMMISSIONER DISTRICT # 3. THE
DEPUTY IN CHARGE OF THE ELECTION DEPARTMENT VERIFIED THAT
MR. YAMAGUCHI LIVED IN DISTRICT 3.
PURSUANT TO 36-28-2 (4) THE SECOND NOTICE OF ELECTION WAS
PUBLISHED. MR. ERICKSON CALLED THIS OFFICE AND INFORMED US
THAT A MISTAKE HAD BEEN MADE IN THE PUBLICATION AND MR.
YAMAGUCHI DID NOT RESIDE IN DISTRICT 3, BUT INSTEAD IN DISTRICT
2. THE BOUNDARIES WERE EXPLAINED TO HIM AND HE STILL INSISTED
MR. YAMAGUCHI LIVED IN DISTRICT 2. THIS OFFICE WAS UNABLE TO
CONTACT MR. YAMAGUCHI PRIOR TO SENDING THE BALLOT TO BE
PRINTED. MY DECISION TO PLACE MR. YAMAGUCHI 'S NAME ON THE
BALLOT AS A CHARTER COMMISSION CANDIDATE FROM COMMISSIONER
DISTRICT # 2 WAS BASED ON THE WORD OF HIS PETITION CIRCULATOR,
MR. VINCENT ERICKSON.
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PAGE 2 (CONTINUED) DECEMBER 4, 1974
ON FRIDAY, NOVEMBER 15, 1974 IT CAME TO MY ATTENTION THROUGH
THE CHAIRWOMAN OF THE WELD COUNTY DEMOCRATIC CENTRAL
COMMITTEE THAT MR. YAMAGUCHI HAD SOME RESERVATIONS CONCERNING
HIS ELIGIBILITY TO SERVE SINCE HE THOUGHT HE MIGHT HAVE BEEN
ELECTED FROM THE WRONG COMMISSIONER DISTRICT. I CONTACTED
MR. YAMAGUCHI AND FOUND THAT, IN FACT, HE DID LIVE IN
COMMISSIONER DISTRICT 3 AND WAS NOT PROPERLY ELECTED ACCORDING
TO THE STATUTES. HE WAS NOT SWORN IN WITH THE REST OF THE
CANDIDATES.
I WOULD APPRECIATE -YOUR OPINION ON TWO POINTS:
(1) UNDER THESE CIRCUMSTANCES IS MR. FRANK YAMAGUCHI
ELIGIBLE TO SERVE ON THE-CHARTER COMMISSION?
(2) IF HE IS NOT ELIGIBLE, HOW SHOULD HIS VACANCY BE FILLED -
BY APPOINTMENT FROM THE CHARTER COMMISSION OR BY TAKING
THE NAME OF THE NEXT CANDIDATE ACCORDING TO THE NUMBER
OF VOTES RECEIVED?
THANK YOU FOR YOUR COOPERATION AND ATTENTION. I WILL AWAIT
YOUR OPINION BEFORE PROCEEDING. •
SINCERELY,
Cf (ter
S. LEE SHEHEE, JR.
WELD COUNTY CLERK AND RECPRDER
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•
SLS/MAF
OPINION
This legal opinion is in response to the written request
of Weld County Clerk and R?corder , S. Lee Shehee , Jr. dated
December 4 , 1974, pursuant to C.R. S. 45-2-5 , 1963 (as: amended)
requiring the District Attorney to render opinions to any County
Officers who so request in writing.
I understand this request was initially made to the Attorney
General who subsequently referred the request to this office
pursuant to the above cited statute.
STATEMENT OF FACTS
During the course of the County Home Rule Charter election
held in Weld County on November 5 , 1974 , a Mr. Frank Yamaguchi
was elected to serve on the Commission for District 2. After
the election , it was ascertained that Mr . Yamaguchi does not live
in District 2 , but rather lives in District 3.
QUESTIONS PRESENTED
I. Even though Mr . Frank Yamaguchi actually lives in
District 3 can he none the less serve on the Commission as
a Commissioner from District 2?
II . Assuming Mr . Frank Yamaguchi cannot serve as a
Commissioner , what procedures:must be followed in order to have
a valid County Home Rule Charter Commission?
. b
STATEMENT OF OPINION
I . I believe that it is absolutely clear that the answer
to Question number I is that Frank Yamaguchi may not serve as
a Commissioner from District 2 when he in fact lives in District 3.
• I base this opinion on C.R.S . 1963 as amended 36-28-2 (c) which
reads as follows : "In counties having a population of 50,000
or more, twenty-one members, six of whom shall reside in and be
a elected from each commissioner district and three to be elected
at large. " . If Mr. Yamaguchi were allowed to remain on the
Commission , he would not be serving as a Commissioner from the
District in which he resides , and therefore his District would not
have six representatives .
• k
II. In answer to the second question , it is my opinion that
the twenty validly elected members of the Charter Commission must
by a majority vote elect someone from District 2 to serve as a
Commissioner. I base this opinion on C.R. S. 1963 as amended ,
36-28-2 (d) which reads as follows : "Elgibility to serve
on the Commission shall extend to all qualified electors of the
county. Any vacancy in the Charter Commission shall be filled
by a majority vote of the members of the Charter Commission. "
From the above , it is obvious that if Frank Yamaguchi ' s
disqualification to serve caused a "vacancy" , then the above
procedure must be followed. The Colorado Legislature has not
defined the term "vacancy" , and therefore case law must
be used for that definition. From the brief time that I have
had for research on this matter , I have been unable to find
any Colorado Court decision in which the exact question presented
here has been ruled upon. However , I believe that the general rule
is as set forth in Killian Et . Al . v. Wilkins , 26 S. E . 2d
246 (1943) in which the Court stated as follows :
The effect of the annulment of an election is to declare that
a vacancy exists in the office for which the election was
attempted to be held , if such annuled election was attempted
to be held at the time designated by law.
Also , the Colorado Supreme Court in People v. Osborne, 4 P . 1074 ,
7 Colo. 605 , (1884) , stated :
Where a statute speaks of a "vacancy" in an office, the
word has no technical meaning. An office is vacant when
empty and unoccupied , and not vacant when one is authorized
to act in it and is so acting.
I do not believe that the proper procedure for filling the
vacancy would be for the candidate receiving the next
highest number of votes to be named in place of Mr. Frank
Yamaguchi. In the case of People ex rel v. Keating , 112
Colo. 26 (1944) , the Supreme Court of the State of Colorado
ruled that where it happens that a candidate for public office ,
ineligible to hold a position , receives the highest number of votes ,
the election is a nullity. The person receiving the highest number
of votes fails to be elected because of his ineligiblity ; the others
fail because a majority of electors inferentially expressed an
opinion against their election . Also , as noted above , such a
procedure would not follow C.R.S . (1963) „as as amended 38-28-2 (d) .
Respectfully submitted:
141)1 /12
ROB RT N. MILLER
District Attorney
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