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Kilgore v. Lumbard

Court of Appeal of Iowa

July 24, 2013

KEVIN KILGORE, Contestant-Appellant,
v.
SPENCER LUMBARD and MELINDA ENGLAND, Respondents-Appellees.

Appeal from the Iowa District Court for Ringgold County, Paul R. Huscher, Judge.

A write-in candidate appeals from the district court's ruling affirming in part and reversing in part the decision of the election contest court.

Kevin Kilgore, Diagonal, appellant pro se.

Patrick W. Greenwood, Lamoni, for appellee.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

DOYLE, P.J.

A write-in candidate for two township officer positions listed on an election ballot appeals from the district court's ruling affirming in part and reversing in part the decision of the election contest court. Although the district court agreed with the ultimate result of the election contest court's decision that Kilgore had not been elected in the November 2010 election to fill the office of Jefferson Township Trustee or Clerk, the district court determined the election was a nullity and therefore the election contest court's setting aside the election and assigning costs to the county was in error. Upon our review, we affirm the ruling of the district court.

I. Background Facts and Proceedings.

Petitioner Kevin Kilgore lives in Ringgold County's Jefferson Township. In the 2006 general election, voters of that township passed a public measure providing that the offices of Jefferson Township Trustee and Clerk would be filled in the future by appointment, rather than election, after the elected officials terms ended. Kilgore did not appeal the passing of the measure or the election of those officials that year.

Despite the passing of the measure, the offices of trustee and clerk of the township were inadvertently included on the November 2010 general election ballot.[1] The offices were held at that time by respondents Spencer Lumbard and Melinda England. They had been elected in 2006 to four-year terms expiring in December 2010. They were reappointed to their respective offices for four-year terms beginning January 2011.

Kilgore received the majority of the votes cast for both positions as a write-in candidate.[2] However, because of the public measure previously passed, the Ringgold County Auditor determined the results of the election for the two positions were invalid, and she therefore set aside the election results and deemed the results null and void. Ultimately, the write-in votes were not listed in the voting abstract prepared by the Board of Supervisors for the November election.

At some point after the election, Kilgore learned he had received the majority of the votes cast for both offices. In early 2011, Kilgore contested the election by filing a notification of intent to contest election pursuant to Iowa Code section 62.5 (2009). Following the convening of an election contest court and a hearing, the contest court majority determined Kilgore was not duly elected in the November 2010 election because those offices should not have been included on the ballot, and the auditor and Board of Supervisors correctly invalidated the election. The election contest court set aside the election and taxed the costs to Ringgold County pursuant to Iowa Code section 62.24.

Kilgore appealed the decision of the election contest court to the district court. He asserted that because he received the majority of votes, he should have been declared elected and the vote of the people should not have been ignored. He also argued there was no basis in law for setting aside the results, and the contest court's decision was not supported by law.

On November 13, 2012, the district court entered its ruling affirming the election contest court's decision that Kilgore had not been elected. However, the district court disagreed with the election contest court's setting aside the election ...


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