text:
    In re the MARRIAGE OF Rebecca J. MUGGE, Appellant, and Mark A. Mugge, Appellee.
    No. 01CA2159.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.

      Jeffrey W. Ludwig, Highlands Ranch, for Appellant.
    Martin D. Brown, PLLC, Martin D. Brown, Littleton, for Appellee.
   Opinion by

Judge WEBB.

In this post-dissolution of marriage proceeding, Rebecca J. Mugge (mother) appeals from the trial court's order modifying the child support obligation of Mark A. Mugge (father). This appeal concerns the exclusion of father's special early retirement benefit from the calculation of his gross income for child support purposes. We affirm.

The parties' marriage was dissolved by decree in 1999. The separation agreement required father to pay child support of $636.64 per month.

In 2001, mother filed a motion to modify that obligation, contending, as here relevant, that there had been a substantial and continuing change of cireumstances regarding the parties' financial affairs resulting from father's receipt of a special early retirement benefit. She asserted this benefit should be included as gross income under the child support guidelines.

The parties agree that in 2000 father, then age 51, elected to participate in his employer's Voluntary Enhanced Retirement Program (VERP). Father's employer offered that election because it planned to close the facility where he worked, and the VERP enabled him to avoid the risk of a later layoff with fewer retirement benefits.

Father provided the employer with a general release of all claims relating to his employment and voluntarily retired, as required by the VERP. The employer then valued his account in its pension plan at $104,480.40, consisting of the then present value of his accrued normal retirement benefits plus a $64,172.90 special early retirement benefit.

The VERP benefit arose from recaleulat-ing father's normal retirement benefits by adding three years to his service and three years to his age. Father had no discretion over receiving the VERP benefit as a direct payment rather than a credit to his account in the pension plan. ‘

Because he retired from the employer, however, father had to withdraw his account from the employer's pension plan. He could elect a lump sum distribution, roll over the entire account into another qualified pension plan, or begin receiving a monthly annuity. Father could not elect a lump sum or annuity payment of the VERP benefit while rolling over his accrued normal retirement benefits.

Father chose the rollover option, which deferred any income tax, because he believed it provided him the greatest financial benefit. Mother does not assert that this election was unreasonable or in bad faith.

Following an evidentiary hearing, the magistrate determined that inclusion of the VERP benefit would unfairly impact father, create adverse tax consequences for him, unnecessarily complicate the support computation, and conflict with the public policy favoring preparation for retirement. The magistrate further found that such inclusion would be inequitable, unjust, or inappropriate and therefore determined that a deviation from the guidelines was warranted. The magistrate then calculated father's support obligation without considering the enhanced benefit and reduced his support obligation to $514.61 per month.

Mother sought timely review from the trial court, which upheld the magistrate's order.

The trial court found the VERP benefit was not severance pay, noting that the benefit was not paid as a wage substitute while father looked for another job. The trial court also found the VERP benefit was not income, interpreting the reference to "pensions and retirement benefits" in the definition of "gross income" under § 14-10-115(7)(a)(I)(A), C.R.98.2002, as encompassing only those employer pension benefits paid out to an employee upon retirement, and not employer contributions to a pension plan.

The trial court concluded the magistrate correctly excluded the VERP benefit from the child support calculation. As to mother's claim that the magistrate erred in deviating from the guidelines without first establishing a presumed child support amount, the court concluded the issue was moot.

I. Gross Income

Mother contends the trial court erred as a matter of law in excluding the VERP benefit from gross income. We disagree.

For purposes of the child support guidelines, "gross income" means the actual gross income of a parent determined from any financial source. - Section 14-10-115(M(a){D(A); In re Marriage of Laughlin, 932 P.2d 858 (Colo.App.1997). The phrase "income from any source," as used in the statute, is to be broadly construed and includes "all payments from a financial resource, whatever the source thereof." In re Marriage of Armstrong, 831 P.2d 501, 502 (Colo.App.1992).

The statute identifies many income sources, among them "wages," "severance pay," and "pensions and retirement benefits, including but not limited to those paid pursuant to [various Colorado statutes]." It also provides that the list is not exclusive. However, the determination of income for child support purposes under the guidelines is not controlled by definitions of gross income used for federal or state income tax purposes. In re Marriage of Fain, 794 P.2d 1086 (Colo.App.1990).

In light of the statutory language, our resolution of mother's contention that the VERP benefit constitutes income for child support purposes requires that we answer four questions: first, is the VERP benefit severance pay; second, is the VERP benefit an employer contribution to pension and retirement benefits; third, should an undistributed employer contribution be treated as income; and fourth, does father's option to elect a lump sum distribution or monthly annuity payments of his retirement account, including the VERP benefit, mean that the VERP benefit should be credited as income?

A. Severance Pay

The record supports the trial court's finding that the VERP benefit was not severance pay because it was not merely a salary substitute while father searched for another job. The requirements that father voluntarily retire rather than be terminated and that he provide a general release of the employer distinguish the VERP from a typical severance pay program. See In re Marriage of Holmes, 841 P.2d 388 (Colo.App.1992).

Accordingly, we conclude the VERP benefit did not constitute severance pay in-cludable within the statutory definition of gross income. See In re Marriage of Heupel, 986 P.2d 561 (Colo.1997) (military early retirement benefit not severance pay).

B. Contribution to Pension and Retirement Benefit

The record also supports the trial court's finding that the VERP benefit was an employer-contributed pension or retirement benefit. The employer denominated this benefit as a retirement benefit, credited the benefit to father's retirement account in its pension plan, and calculated the amount using age and years of service.

6

Early retirement programs "are meant to compensate for the loss of the right to receive retired pay in the future" and are not "compensation for lost future income." In re Marriage of Heupel, swpra, 986 P.2d at 569, 571.

Hence, we conclude that the VERP benefit falls within the category of "pensions and retirement - benefits" under - § 14-10-115(7)(a)(I)(A).

C. - Undistributed Employer Contribution

We next consider whether the VERP benefit constituted gross income under § 14-10-115(7T)(a)(I)(A), before it was distributed to father. We conclude that it did not.

Whether an employer's contributions to pension or retirement benefits, not yet distributed to an employee, constitute gross income under the child support guidelines presents a statutory interpretation issue of first impression in Colorado.

Statutory interpretation is a question of law that we review de novo. Colo. State Bd. of Accountancy v. Poroske, 39 P.3d 1283 (Colo.App.2001). - Our responsibility when interpreting a statute is to determine the General Assembly's intent. We begin with the language of the statute, People v. Cooper, 27 P.3d 348 (Colo.2001), which is afforded its ordinary and common meaning. Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo.2001).

We construe statutes as a whole, giving effect to every word. Bd. of County Comm'rs v. Vail Assocs., Inc., supra. Strained or forced constructions are disfavored. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo.1992).

Further, we presume that the General Assembly meant what it clearly said, Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo.1996), and did not use language idly. See Colo. Ground Water Comm'n v. Eagle Peak Farms, Ltd., 919 P.2d 212 (Colo.1996).

If statutory language is ambiguous, or if the statute appears to conflict with other provisions, we may look to extrinsic factors, such as prior law, the consequences of a given construction of a statute, the end to be achieved by the statute, and legislative history. Grant v. People, 48 P.3d 543 (Colo.2002); People v. Cooper, supra.

As originally _ enacted, § 14-10-115(7)(a)(D(A) included "pensions" as gross income. In Brown v. Central City Opera House Ass'n, 36 Colo.App. 334, 336, 542 P.2d 86, 88 (1975), aff'd with modification, 191 Colo. 372, 553 P.2d 64 (1976), the division cited Webster's Third New International Dictionary to define "pension" in another context, adding that the term also "includes payments made regularly to any person even for current services."

"Pension" means "a fixed sum paid regularly to a person ... following his retirement from service" or "the portion of an employee's retirement income provided by the employer's contributions under a contributory plan." - Webster's Third New International Dictionary 1671 (1976); see also Black's Law Dictionary 1155 (7th ed. 1999)("Pension" is "a fixed sum paid regularly to a person ... as a retirement benefit.").

In 1996, the General Assembly added to the definition of "pensions" the phrase, "and retirement benefits, including but not limited to those paid pursuant to" various statutes. Colo. Sess. Laws 1996, ch. 130 at 595. In our view, the reference "to those paid" is consistent with the definitions of a pension as an amount paid.

Most jurisdictions addressing the question have held that undistributed employer contributions to pension and retirement plans do not constitute income for purposes of calculating child support. See, e.g., Campbell v. Campbell, 635 So.2d 44 (Fla.Dist.Ct.App.1994); Ballard v. Davis, 259 A.D.2d 881, 686 N.Y.S.2d 225 (1999); Jordan v. Brackin, 992 P.2d 1096 (Wyo.1999). But see Shipley v. Shipley, 509 N.W.2d 49 (N.D.1993) (contributions by employer to husband's pension plan were income).

These cases note that, as here, the employers determined the amounts of their pension plan contributions and the employees did not have the option of directly receiving the amounts as wages.

We are persuaded by these decisions and conclude that prior to any distribution, the employer's VERP contribution to father's account in its pension plan did not constitute gross income for consideration under the child support guidelines.

D. Father's Option to Elect Distribution

Mother asserts that because father could have elected a lump sum distribution or monthly annuity payments of his account upon retirement from the employer, the VERP benefit included therein should be considered as unrealized income, even though he chose to roll over the entire balance into another qualified pension plan. We disagree.

Ennis v. Venable, 689 So.2d 165 (Ala.Civ.App.1996), on which mother relies, deals with the employee's voluntary request that his employer deduct from wages already earned a contribution to his individual retirement account. See generally L. Morgan, Child Support Guidelines, Interpretation and Application § 2.08[2] at 2-64 (2002)(collecting cases treating employees' voluntary contributions of wages to retirement accounts as unrealized income for calculation of child support).

The cases cited by Morgan, supra, emphasize that employees would have realized income from portions of their wages which were instead voluntarily contributed to retirement plans. See, e.g., Marsh v. Fieramusca, 150 Misc.2d 776, 569 N.Y.S.2d 1012 (1991); Parzynski v. Parzynski, 85 Ohio App.3d 423, 620 N.E.2d 93 (1992). However, the parties have cited no case, nor have we found one, applying this analysis to an undistributed employer-funded retirement account, based on an employee's unexercised option to withdraw the balance.

Because the question of treating an undistributed retirement account as unrealized income has not been decided in Colorado, we first look to cases in which, under various other cireumstances, divisions of this court have considered unrealized income in determining child support. See, e.g., In re Marriage of Laughlin, supra (interest income was imputed based on a capital gain that had been partially expended); In re Marriage of Bregar, 952 P.2d 783 (Colo.App.1997)(same); In re Marriage of Tessmer, 903 P.2d 1194 (Colo. and dividends on a retirement account were income, although not withdrawn and subject to penalty if withdrawn); cf. In re Marriage of Stress, 939 P.2d 500, 502 (Colo.App.1997)("Incremental taxes withheld are also income [although] unavailable to the recipient. ...").

However, like the out-of-state cases discussed above, these Colorado cases do not involve facts closely analogous to the employer-funded early retirement benefit before us, and the reasoning of some of these cases has limited application here.

Some unrealized income cases explain that a parent cannot limit his or her child support obligation by a voluntary decision to avoid income that, if realized, would clearly constitute gross income for child support purposes. See, e.g., In re Marriage of Bregar, supra. Here, father's decision to roll over his retirement account into another qualified plan was voluntary only in part. Upon retirement, father had to withdraw his retirement account from the employer's pension plan and then either roll it over or receive a distribution. He was not in the position of realizing income if he did nothing.

In one unrealized income case, the panel assumed that, had the marriage remained intact, the income in dispute would have been available to support the children. See In re Marriage of Armstrong, supra. However, here, in contrast, the VERP benefit in father's retirement account would not have been available for child support in the hypothetical intact family unless he elected lump sum distribution of or monthly annuity payments from his retirement account.

Father's election to continue the retirement benefits character of his account, including the VERP benefit, by rolling the entire gccount over into another qualified pension plan, also differs from parental decisions that have resulted in unrealized income being considered for child support purposes. See, e.g., In re Marriage of Laughlin, supra (interest imputed on portion of capital gain from sale of business used to construct addition to home and pay mortgages); In re Marriage of Bregar, supra (interest imputed on portion of capital gain from stock sale used to reduce margin account debt).

The capital gains received in those cases were income, and the gains would have generated additional interest income without a change to their character, but for the parents' decisions to expend a portion of them. Cf. In Interest of A.M.D., 56 P.3d 1184 (Colo.App.2002)(cert. granted Nov. 4, 2002)(interest would be imputed on inheritance, although inheritance itself not treated as income). Again, in contrast, father's retirement account here is not income, nor does the record show it would generate income unless its character were changed by his election of a lump sum distribution or monthly annuity payments.

We discern no basis in § 14-10-115(7)(a)(ID)(A) or prior decisions to consider unrealized income for child support purposes solely because a parent could liquidate an asset or change its character into an asset capable of producing income. Mother does not assert that father acted unreasonably or in bad faith. The fact that he had no disceretion to treat the VERP benefit separately from the remainder of his retirement account suggests that he was not trying to avoid child support obligations.

Although contrary authority exists in other jurisdictions, the analysis of those cases generally rests on either particular statutory language defining what may be considered in determining gross income for purposes of child support, or the recognition that an asset already capable of producing income is underperforming. See generally Morgan, supra, § 2.03[e][17] at 2-46 (collecting cases). Cf. In re Marriage of Destein, 91 Cal.App.4th 1385, 111 Cal.Rptr.2d 487 (2001)(court acted within its discretion in imputing rate of return on father's non-income producing real estate).

Here, the record does not indicate that father's retirement account produced income. The rollover of his entire account into another qualified pension plan did not change its character from a pension or retirement benefit. Thus, because the VERP benefit retained its character as a pension or retirement benefit, the definitional requirement of actual payment also continued to apply. Treating the VERP benefit as unrealized income because father could have changed the character of his entire retirement account to income, by analogy to out-of-state cases recognizing that a passive asset could be liquidated to produce income, would be contrary to the payment limitation in the definition of "pensions."

Several other statutory income categories expressly require payment or receipt: "payments received as an independent contractor"; "moneys drawn by a self-employed individual"; "social security benefits actually received"; "taxable distributions from general partnerships"; and "alimony or maintenance received,." Section 14-10-115(7)(a)(D(A) (emphasis supplied). Hence, we adhere to our conclusion that the definition of "pensions" similarly requires actual payment to the recipient, notwithstanding an unexercised option to elect payment.

In addition, we agree with the trial court that treating pensions and retirement benefits as gross income for child support purposes based on a right to withdraw would raise difficult problems for employees who roll over their retirement accounts when they change employers, but have the option of taking a lump sum distribution. Employees who can elect between a lump sum distribution of their retirement accounts or periodic annuity payments upon normal retirement would be in a similar predicament.

In re Marriage of Tessmer, supra, does not require a different conclusion. Tessmer relied on the express inclusion in "gross income" of "dividends" and "interest," § 14-10-115(7)(a)(D(A), and dealt with the tension between withdrawal penalties and treatment of earnings that could be withdrawn as income.

Although the division in Tessmer assumed that the accountholder could withdraw the interest and dividends, albeit subject to penalty, that withdrawal would not involve a change in character of the amounts withdrawn. Furthermore, neither interest nor dividends are defined in terms of payment, as are "pensions." Interest accrues continuously, although it is paid periodically. Dividends may be declared, but accumulated rather than paid, in the discretion of a board of directors.

Accordingly, we conclude that the VERP benefit should not be treated as gross income for child support purposes merely because father could have elected a lump sum distribution or monthly annuity payments.

IL - Public Policy

Mother further asserts policy considerations favoring child support dictate that money subject to an employee's control, even if voluntarily contributed to the employee's retirement account, should be treated as gross income. See Ennis v. Venable, supra. However, we need not address this argument because we have concluded that the VERP benefit does not fall in the category of a voluntary employee contribution.

III. Deviation from Guidelines

Finally, mother contends the trial court erred in upholding that portion of the magistrate's order which deviated from the guidelines. We discern no grounds for reversal.

When a deviation is justified, the guidelines require that the presumed support obligation first must be calculated before the extent of the deviation can be determined. In re Marriage of Tessmer, supra.

Here, however, because we have concluded that the VERP benefit was not includable gross income, the result would be the same as that reached by the magistrate, who "deviated" from the guidelines pursuant to 14-10-115(8)(a), C.R.9.2002, in excluding the VERP benefit from father's gross income.

Order affirmed.

Judge ROTHENBERG and Judge TAUBMAN concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    EAST MEADOWS COMPANY, LLC, Plaintiff-Appellant, v. GREELEY IRRIGATION COMPANY, Defendant-Appellee.
    No. 02CA0478.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.

      Hamil/Hecht LLC, J. Lawrence Hamil, Christina V. Miller, Denver, Colorado, for Plaintiff-Appellant.
    Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge NIETO.

Plaintiff, East Meadows Company, LLC, appeals the summary judgment in favor of defendant, Greeley Irrigation Company (GIC). We reverse and remand for further proceedings.

GIC owns the Greeley No. 8 Ditch, which runs through the City of Greeley, and it employs a ditch rider to perform routine maintenance on the ditch.

In 1999, East Meadows entered into a Development Agreement with the city and was permitted to develop a subdivision on land bordering the ditch. The city also required East Meadows to design and construct certain improvements and modifications in and around the ditch, including the installation of trash racks in the ditch. GIC consented to the installation of the improvements and approved the plans for their construction.

The trash racks were installed in the ditch so that the water ran through them. The trash racks collected trash and debris as planned, but unexpectedly impeded the flow of water during rainstorms. GIC's ditch rider attempted to maintain the trash racks, but in spite of his efforts, water overflowed the ditch and caused damage to East Meadows' property on several occasions.

East Meadows asserted claims for damages based on negligence, trespass, nuisance, and violation of §§ 7-42~108, 37-84-101 and 87-84-107, All the claims are based on damages that occurred when the ditch overflowed.

The parties filed cross-motions for summary judgment. The trial court found that it was undisputed that the flooding was caused by debris blocking the trash racks. It further found that GIC had no duty to maintain the trash racks and that East Meadows had such a duty because it had placed the improvements in the ditch The court also found that East Meadows had assumed the duty to maintain the trash racks in its Development Agreement with the city. The trial court then granted GIC's motion and denied East Meadows' motion. This appeal followed.

I.

East Meadows contends that the trial court erred in granting GIC's motion for summary judgment. - Specifically, East Meadows argues that the trial court erred in concluding that it, rather than GIC, had a duty to maintain the trash racks installed in the ditch We agree that summary judgment was not appropriate because there were disputed issues of material fact. We conclude that while GIC has a statutory duty to maintain the ditch and the trash racks, it is disputed whether East Meadows assumed the duty to maintain the improvements in its Development Agreement with the city and whether GIC reassumed those duties by its continued maintenance of the ditch improvements.

Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions establish that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Our review of an order granting summary judgment is de novo. C.R.C.P. 56(c); Cissell Manufacturing Co. v. Park, 36 P.3d 85 (Colo.App.2001). In reviewing a motion for summary judgment, all doubts as to the existence of a triable factual issue must be resolved against the moving party. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

Ditch owners have a duty to maintain, use, and manage their ditches to prevent damage to the property of others. See §§ 7-42-108, 87-84-101, 37-84-107. Section 7-42-108 provides that "[elvery ditch corporation organized under the provisions of law shall be required to keep its ditch in good condition so that the water shall not be allowed to escape from the same to the injury of any mining claim, road, ditch, or other property." These statutes impose a duty of care on ditch owners, and failure to meet this duty can serve as the basis for a claim of negligence. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890); Oliver v. Amity Mutual Irrigation Co., 994 P.2d 495 (Colo.App.1999). Thus, as a ditch owner, GIC was required to use ordinary care in maintaining its ditch and preventing water from escaping and damaging adjoining property. See Oliver v. Amity Mutual Irrigation Co., supra.

East Meadows first argues that GIC had a statutory duty to maintain its ditch, including the trash racks East Meadows had installed. The trial court agreed that GIC had a statutory duty to maintain the ditch. However, it also concluded that the trash racks interfered with its ability to do so and that East Meadows had a duty to maintain the trash racks. The trial court relied on Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229 (Colo.2001), in reaching its conclusion.

In Roaring Fork Club, the supreme court stated that "the right to inspect, operate, and maintain a ditch easement is a right that cannot be abrogated by alteration or change to the ditch." Roaring Fork Club, L.P. v. St. Jude's Co., supra, 36 P.3d at 1231. However, the supreme court was addressing the actions of a landowner who made changes in a ditch without the consent of the owner of the ditch easement. The supreme court held that the landowner's unilateral alteration of the ditch constituted a trespass. Here, East Meadows placed improvements in the ditch with the consent of GIC, who has not asserted that this constituted a trespass. Thus, Roaring Fork Club is inapposite.

The issue here is whether the duty imposed on GIC by § 7-42-108 includes the duty to maintain the trash racks that East Meadows placed in the ditch with GIC's consent. Section 7-42-108 requires ditch companies to maintain their ditches so that water does not escape and cause damage to other property. The statute makes no distinction between the earth embankments of the ditch and man-made structures that are incorporated into the ditch. It would be illogical to interpret the statute to apply to the earth embankments of a ditch, but to be inapplicable to structures such as trash racks that are incorporated into the ditch with the consent of the ditch owner. See State v. Nieto, 993 P.2d 493 (Colo.2000)(statutory interpretations that lead to absurd results are to be avoided). Such an interpretation would render the statute ineffective to achieve its purpose of preventing injury to property by water escaping from ditches.

Accordingly, we conclude that the duty imposed by § 7-42-108 applies to structures such as trash racks that are incorporated into a ditch.

The mere fact that East Meadows placed the trash racks in the ditch with GIC's consent did not relieve GIC of its statutory duty to East Meadows and others to maintain the ditch and the trash racks. GIC does not assert that its consent to placement of the trash racks was conditioned upon East Meadows' assumption of the duty to maintain them.

Accordingly, the trial court erred in holding that GIC had no duty to maintain the trash racks. However, this conclusion does not resolve East Meadows' claims because, as discussed below, there are factual issues relating to whether East Meadows assumed the duty to maintain the improvements it installed in the ditch.

In a related issue, East Meadows contends that the trial court erred by holding that the trash racks were not constructed according to the plans approved by GIC, and therefore GIC's consent did not apply to the trash racks as constructed. We agree with East Meadows' contention because our review of the materials supporting the summary judgment motions reveals no evidence to support the trial court's conclusion that the trash racks were not constructed as planned.

IL

East Meadows next contends that the trial court erred in holding that it expressly assumed responsibility for maintaining the improvements referred to in the Development Agreement. We conclude that summary judgment was inappropriate because there are disputed material facts relating to this issue.

"The general rule is that one who is not a party to a contract, and from whom no consideration moved, has no connection therewith,. He can avail himself of its terms neither as a cause of action nor a defense." Continental Casualty Co. v. Carver, 91 Colo. 188, 198, 14 P.2d 181, 188 (1982); see also Academy of Charter Schools v. Adams County School District No. 12, 82 P.8d 456, 470 (Colo.2001)(entity that was not a party to the charter contract not permitted to seek its enforcement).

However, a person who is not a party to an agreement may enforce a contractual obligation if the promise to be enforced is expressly stated in the contract, or is apparent from the agreement and surrounding circumstances, and the benefit conferred is direct and not incidental. Borwick v. Bober, 34 Colo.App. 428, 429, 529 P.2d 1351, 1855 (1974).

In determining whether a party is a third-party beneficiary:

The key question is the intent of the parties to the actual contract to confer a benefit on a third party. That intent must appear from the contract itself or be shown by necessary implication. It is a question of fact to be determined by the terms of the contract taken as a whole, construed in the light of the cireumstances under which it was made and the apparent purpose the parties were trying to accomplish.

Concrete Contractors, Inc. v. E.B. Roberts Construction Co., 664 P.2d 722, 725 (Colo.App.1982), aff'd, 704 P.2d 859 (Colo.1985).

The trial court relied on the Development Agreement between East Meadows and the city in concluding that East Meadows expressly assumed responsibility for maintaining the improvements and thus bore the duty of maintaining them. However, GIC was not a party to the agreement and cannot seek to enforce the terms of the agreement unless it was a third-party beneficiary.

There are several disputed factual issues concerning the Development Agreement. The agreement does not specifically refer to the trash racks, and East Meadows disputes whether the maintenance provisions of the agreement apply to those improvements. In light of the lack of specificity in the agreement and the statements of GIC's president in his deposition that GIC had a duty to clean the trash racks, there is clearly a dispute as to the extent of the maintenance duty in the Development Agreement.

Further, the evidence relating to the Development Agreement does not establish whether East Meadows and the city intended to confer a benefit on GIC. Thus, GIC's status as a third-party beneficiary is in dispute.

Moreover, even if East Meadows' duty under the agreement had been established, there is a factual dispute whether GIC nevertheless assumed the maintenance duty by its continuing efforts to clean the trash racks. Under some cireumstances, a party may assume duties of care by voluntarily undertaking to render a service, and negligent performance of that assumed duty may impose liability. Whether a party has assumed a duty is a mixed question of law and fact. Jefferson County School District R-1 v. Justus, 725 P.2d 767 (Colo.1986).

Because we have determined that the trial court erred in ruling that GIC did not have a duty to maintain the trash racks as a matter of law and because genuine issues of material fact exist concerning whether either of the parties assumed the duty to maintain the trash racks, we conclude that it was error to grant GIC's motion for summary judgment.

IIL

The trial court granted summary judgment dismissing East Meadows' trespass and nuisance claims based on its conclusion that East Meadows had a duty to maintain the ditch improvements. Because we have determined that the trial court erred in granting summary judgment on the question of duty, there is no basis to dismiss the trespass and nuisance claims.

GIC argues that East Meadows cannot prevail on its trespass and nuisance claims as a matter of law. GIC reasons that because a ditch owner can be held liable for negligence for failing to comply with its statutory requirements, common law theories of liability such as trespass and nuisance do not apply to it. However, GIC has cited no authority, and we are aware of none, to support this proposition. Further, if the General Assembly intends to abrogate common law rights of action, that intent must be manifested expressly or by clear implication. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo.1998). We perceive no such intent in § 7-42-108.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge STERNBERG.

text:
    James A. JEFFRIES, Petitioner-Appellant, v. Fred FISHER, Executive Director, Motor Vehicle Division, Colorado Department of Revenue, Respondent-Appellee.
    No. 01CA2069.
    Colorado Court of Appeals, Div. II.
    Feb. 13, 2003.

      Forrest W. Lewis, P.C., Forrest W. Lewis, Denver, Colorado, or Petitioner-Appellant.
    Ken Salazar, Attorney General, Robert L. Pastore, Assistant Attorney General, Denver, Colorado, for Respondent-Appellee.
   Opinion by

Judge STERNBERG.

Petitioner, James A. Jeffries, appeals the district court judgment affirming an order of the Department of Revenue revoking his driver's license. Because we conclude that petitioner did not timely seek review of the revocation order, we vacate the judgment and remand with directions to dismiss the petition for lack of jurisdiction.

On November 1, 2000, the Department conducted a revocation hearing based upon petitioner's alleged refusal to submit to a test of his blood alcohol level following an accident. At the conclusion of the hearing, the hearing officer determined that the facts supported revocation and entered an "Order of Revocation."

On or about December 1, 2000, petitioner filed with the Department a "Petition for Reconsideration and Withdrawal of Revocation Order." On December 4, the hearing officer sent petitioner's counsel a letter indicating that he had received the filing, but was "not persuaded" to reverse his decision.

Also on December 4, petitioner filed his petition for review of the revocation order in the district court. After receiving briefs from the parties, the district court affirmed the revocation order on the merits. This appeal followed.

The Department now contends, for the first time, that the district court lacked jurisdiction to consider the merits of the revocation order because petitioner failed timely to seek judicial review. We agree.

Pursuant to § 42-2-126(10)(a), C.R.8.2002, an action for judicial review of a revocation order must be filed "[wlithin thirty days" of the "issuance" of the Department's "final determination" in the revocation matter. Furthermore, the failure to file an action for Judicial review within the applicable statutory time limit is a jurisdictional defect that mandates dismissal of the action. See Houston v. Colo. Dep't of Revenue, 699 P.2d 15 (Colo.App.1985).

Initially, we reject petitioner's argument that the Department waived any objection to timeliness by failing to raise it in the district court. The thirty-day period is jurisdictional. See Houston v. Colo. Dep't of Revenue, supra. Consequently, it cannot be waived. See Fraser v. Colo. Bd. of Parole, 931 P.2d 560 (Colo.App.1996)(holding that because thirty-day period for seeking review under C.R.C.P. 106(b) is jurisdictional, it could not be waived).

Here, the hearing officer issued the revocation order on November 1, 2000. However, petitioner did not file his petition in the district court until December 4, three days after the thirty-day period had expired. Thus, the district court was required to dismiss the petition.

Petitioner notes that he filed his "Petition for Reconsideration" with the Department within the thirty-day period. He argues that the thirty-day period was tolled while that "Petition for Reconsideration" was pending. We are not persuaded.

Neither § 42-2-126 nor any Department regulation authorizes the filing of a motion for reconsideration in express consent revocation proceedings. Moreover, under the express consent statute, the final agency action subject to judicial review is the hearing officer's issuance of the final order of revocation at the conclusion of the revocation hearing. See § 42-2-126(8)(F) & (9)(b)-(e), C.R.8.2002; Foos v. State, 888 P.2d 321 (Colo. there is no legal basis or authority for "reopening" a driver's license revocation proceeding). But see Bethesda Found. v. Colo. Dep't of Soc. Servs., 877 P.2d 860 (Colo.1994)(noting that administrative law judge had authority to reconsider and modify findings and decision during the thirty-day period for filing action for judicial review). -

Even if we assume that petitioner might be permitted to seek administrative reconsideration of the revocation order, filing such a motion did not toll the thirty-day period for seeking judicial review. The State Administrative Procedure Act, § 24-4-106(2), C.R.S. 2002, specifically provides as follows:

Final agency action under this or any other law shall be subject to judicial review as provided in this section, whether or not an application for reconsideration has been filed, unless the filing of an application for reconsideration is required by the statutory provisions governing the specific agency.

In Cheney v. Colorado Mined Land Reclamation Board, 826 P.2d 367 (Colo.App.1991), a division of this court addressed a similar scenario. In Cheney, the plaintiff filed a motion seeking reconsideration of a reclamation board order. The plaintiff then waited until the board denied his reconsideration motion before filing his complaint for judicial review in the district court. By that time, more than thirty days had elapsed since the board's original order.

In affirming the district court's dismissal of the judicial review action, the division in Cheney noted that the applicable statutes and regulations did not require the filing of a motion for reconsideration or extend the time for seeking judicial review upon such a filing. Based on § 24-4-106(2) and the absence of any statutory or regulatory provisions concerning motions for reconsideration, the division concluded that the board's initial order was the final decision subject to judicial review, notwithstanding the plaintiff's motion for reconsideration and the board's subsequent denial of that motion.

We find the analysis in Cheney persuasive and conclude that the same result is warranted here.

Petitioner's reliance on Colorado Water Quality Control Commission v. Town of Frederick, 641 P.2d 958 (Colo.1982), is misplaced. The statutory scheme at issue in that case expressly authorized the filing of motions for reconsideration and expressly provided that the final administrative order would be stayed pending the resolution of such motions. Here, no comparable statutory or regulatory provisions are present.

In sum, we conclude that because petitioner did not file his petition for review within thirty days of the Department's revocation order as required by § 42-2-126(10)(a), the district court lacked jurisdiction to review that order.

The judgment is vacated, and the case is remanded to the district court with directions to dismiss the petition for lack of jurisdiction.

Judge NEY and Judge MARQUEZ concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.


author: OPALA, Justice.

text:
    1998 OK 5
    Bobbye CLAPSADDLE, Marian Piotrowski, and Jerry Benton, Petitioners, v. The Honorable James BLEVINS, District Judge of the District Court of Oklahoma County, and the Oklahoma County Election Board, Respondents. Kim LEE, Brian Linley, Linda Whitehead and Harry Nelson, Petitioners/Appellees, v. Reba BASINGER, City Clerk for the City of Del City, and the City of Del City, Respondents, v. Bobbye CLAPSADDLE, Marian Piotrowski, and Jerry Benton, Intervenors/Appellants.
    Nos. 90406, 90520.
    Supreme Court of Oklahoma.
    Jan. 20, 1998.
    Rehearing Denied March 3, 2003.
    As Corrected May 12, 2003.

      Kevin J. Calvey, Del City, for Appellants/Petitioners/Intervenors.
    Jack B. Fried, Del City, for Respondents Reba Basinger and City of Del City.
    John M. Jacobsen, Oklahoma City, for Oklahoma County Election Board.
    James Howell, Midwest City, for Appellee Lee.
    Geary L. Walke, Midwest City, for Appel-lee Lindey.
    Steven M. Ditto, Midwest City, for Appel-lees Whitehead and Nelson.
   OPALA, Justice.

T1 Two questions are presented by these causes: (1) Whether the city clerk's finding that recall election petitions are sufficient for submission may be challenged in the district court and, if so, (2) whether the trial court was correct in sustaining the challenge. We answer the first question in the affirmative and the second in the negative.

I.

ANATOMY OF CONTROVERSY

12 Petitioners are three individuals who were responsible for collecting signatures upon petitions for an election to recall the mayor and three city council members, all of whom are elected officials of the City of Del City. Del City operates under a city charter. The city's charter provides a procedure for recall elections. That procedure is set forth in Article VIII, Sections 55-59. Pursuant to Section 56, the recall petitions were filed with the city clerk who, upon examining them, certified that they (a) were prepared and cireulated as required by law and (b) bear a sufficient number of signatures for their submission to the electorate.

T3 The clerk presented the certified petitions to the City Council at its regularly scheduled meeting on October 20. At that meeting the City Council passed a resolution scheduling the recall election for January 13th, 1997. This was necessary to comply with 26 0.8. § 13-102, whose provisions require notice to the county election board 60 days before the election is to be held. In accordance with Article VIII, Section 57 of the Charter, the clerk then published the resolution on October 28, 1997 in the Del City Sun newspaper, a publication of general circulation within the city.

14 On October 28, 1997 the mayor and the three council members (collectively called city officials) affected by the recall measure commenced three separate proceedings in the district court. The petitions in these cases allege that (a) the recall petitions do not bear sufficient signatures, (b) they are defective on their face and (c) the election date is invalid because it was set for a day that is later than the 40-day time limit prescribed by the city charter for scheduling a recall election. The city officials requested (1) judgment declaring that the clerk acted arbitrarily and capriciously, (2) judgment declaring that the clerk's certification of the recall petition is invalid, (8) a writ prohibiting the clerk from participating in any act in furtherance of the recall election, (4) a writ directing the city to cancel the recall election set for January 18 and (5) a writ canceling the scheduled January 13, 1998 election.

15 The first district court hearing was held on November 12, 1997. Through the use of charts and the testimony of the Secretary of the Oklshoma County Election Board, the affected city officials presented evidence that more signatures are legally required on the recall petitions than the city clerk accepted. The evidence before the district court sought to demonstrate that it was impossible to determine the exact number of registered, qualified Del City electors who had cast votes for governor in the 1994 general election. This is so because the pre-cinet registries, which bore the signatures of the voters, were destroyed 24 months after that election. The only records still in existence show totals by precinet only, and the precinets that included Del City also embraced other parts of Oklahoma County. It was even more difficult to determine the number of electors who voted in each of the various wards. Each precinet contained parts of more than one ward. City officials claimed the clerk sometimes failed to include some parts of wards in her calculation of the number of signatures the recall petitions must bear.

T6 It was shown that the clerk failed to consider the absentee ballots. She had assumed that the precinet totals furnished by the official county election board tally she received included the absentee ballots (because they had been previously included), but in fact they did not. The absentee voter totals for the entire county had been lumped into several "precinets" and there was no way to determine how many absentee ballots had come from Del City voters.

T7The charts presented by the city officials show that for each recall petition the clerk verified more signatures than the required 20 percent, determined on the basis of the clerk's calculations of the total number of votes cast for governor in the last preceeding (1994) election. Although the clerk did not count absentee ballots, she used the totals from precinets that included other Oklahoma County voters. The charts sought to demonstrate that the number of signatures verified by the clerk on each petition was insufficient because they included all of the possible pre-cinets pertaining to each ward, and all of the absentee ballots. Thus, whole precinets were counted more than once, which resulted in a total number of votes much higher than their actual number should have been.

{8 The clerk's estimate of the necessary number of signatures (it could only be an estimate under the cireumstances) did not appear to be arbitrary or capricious. The clerk testified there were more signators on each petition than the number she verified. She stated she stopped verifying signatures when she decided she had approved enough in number to declare the total to be legally sufficient.

T9 The trial court refused to hear any other evidence. Neither the clerk mor the proponents of the recall petition (who were permitted to intervene in the case) were allowed to present evidence.

{10 On November 12, 1997 the trial court filed a signed memorial giving judgment to the city officials. This decision is rested on his finding that the total number of qualified electors (who voted for governor in 1994) was unascertainable and thus it was impossible for the city clerk to make any valid decision concerning the sufficiency of the number of signatures the recall petitions must bear. A later journal entry, filed on November 18, 1997, declared the recall petitions invalid and the clerk's certification ineffective. The judge further ordered that the election, set for January 18, 1998, be can-celled.

{11 The proponents of the recall petitions filed in this court an appeal as well as an application to assume original jurisdiction of their petition for a prerogative writ. Both of these causes challenge the trial court's November 12th order. By its November 20, 1997 order this court suspended the effectiveness of the November 12, 1997 ruling that cancelled the recall election, thus allowing the election to proceed. The two causes (the appeal and the original action) were consolidated. We now dispose of them by a single opinion.

IL.

THE EXCLUSIVE PROCEDURE FOR CHALLENGING A CITY CLERKS CERTIFICATION OF THE SUFFICIENCY OF A RECALL PETITION STANDS PRESCRIBED BY THE PROVISIONS OF 11 0.8.1991 § 15-104

112 In this court's November 20th order we asked the parties to explain if the district court proceedings were brought and held pursuant to the provisions of 11 0.S.1991 § 15-104(B). The cited statute regulates the procedure to be followed when an initiative or referendum petition is filed with a municipal court clerk. All of the parties conceded the district court proceedings held in the present case were not brought according to the terms of § 15-104. The city officials argued that $ 15-104, which applies on its face to initiative and referendum petitions, does not govern recall petitions. We reject their contention as flawed.

113 Initiative, referendum and recall elections all constitute constitutionally sanctioned methods for popular intervention in the affairs of government, which are intended to give the electorate an opportunity to participate directly in the law-making process . and a check upon the conduct of offiechold-ers. State v. Pulliam, 165 Okl. 70, 25 P.2d 64 (1983), In re Initiative Petition No. 2 of Cushing, 157 Okl. 54, 10 P.2d 271, 275 (1982). All three measures-initiative, referendum and recall-must hence be treated as falling under the same procedural rubric.

114 The terms of § 15-104 provide the exclusive procedure for contesting the sufficiency of a recall petition. Before the enactment of 11 0.8. § 15-104 in 1978, there was no state procedure for challenging in the district court the clerk's determination of the sufficiency (or insufficiency) of a recall petition. City Council of the City of McAlester v. Milwee, 31 Okl. 620, 122 P. 173 (1912), Dunham v. Ardery, 43 Okl. 619, 143 P. 331 (1914). Neither does the Del City charter provide a contest procedure.

115 No one in this cause followed the process prescribed by § 15-104. This statement also applies to the actions of the clerk, who did not publish her findings in accordance with the provisions of § 15-104(A). The publication, if made, would have triggered the time to file a § 15-104(B) contest.

116 We hold today that the exclusive procedure to be followed by the clerk after certifying the sufficiency (or insufficiency) of recall petitions, and to be invoked by any protestant, is that set forth in 11 0.S.1991 § 15-104. To this holding we give prospective effect,. We do not rest the judgment's reversal on the use of incorrect procedure for challenging the recall petitions Obscure legislative enactments should be kept from becoming a veritable trap for the unwary. By giving prospectivity to our pronouncements on novel points of ambiguously crafted statutory procedure for which no extant case-law exposition can be found, we protect the affected litigants from losing valuable remedial opportunities.

IIL.

THE TRIAL COURT ERRED IN FINDING THAT THE PETITIONS ARE INVALID AND IN ORDERING THAT THE ELECTION BE CANCELLED

117 The burden rested on the city officials to show that the recall petitions are unsupported by a sufficient number of signatures. Ruth v. Peshek, 153 Ok. 147, 5 P.2d 108, 111 (1981), Fite v. Lacey, 1984 OK 83, 691 P.2d 901. The signatures on the recall petitions are presumed to be those of qualified voters. The onus is cast on protestants to produce proof showing that specific signatures should not be counted. Ruth v. Peshek, supra. That burden was not met here.

118 The city officials produced two witnesses who claimed they did not know what they were signing and requested that their names be stricken. The remainder of proof centered on the question whether the clerk validated a sufficient number of signatures. It was uncontroverted that there were more signatures on each petition than the clerk validated by her count. Because there was no proof to the contrary, those additional signatures must be accepted as valid. The total number of signators for recall of Lee is 1550; the total for recall of Linley is 428; for recall of Whitehead the total is 464, and for Nelson it is 494. Based on the proof submitted, at a maximum, only two of the questioned signatures may be in doubt.

119 The trial court erred in refusing to allow the intervenors (the proponents of the recall petitions) and the clerk to put on any evidence in support of the clerk's decision. To put it simply, the adjudicative process had not been completed when the judge made the ruling. It is the policy of the law to afford every party, including intervenors, a fair opportunity to present evidence and argument.

120 Moreover, the county election board is estopped to deny the accuracy of the figures provided the clerk in response to her initial request. Burdick v. Independent School District No. 5% of Oklahoma County, 1985 OK 49, 702 P.2d 48, 55. The absentee ballot information should not have been considered. Another reason for exelud-ing reference to absentee ballots is that the city officials (who had the burden of proof) did not establish that there were any Del City voters among those electors whose vote should have been included in determining the correct number of signatures the recall petitions must bear.

{21 Similarly, the city officials did not sustain their burden of production with respect to the number of signatures necessary for the council members' recall election. Their proof is tainted by the double counting of the precinets with the overlapping wards. In the charts presented by the city officials both precinets 20 and 25 were counted twice. Neither did the city officials show which percentage of voters from each ward would be allocable to an affected precinet. In short, they could not demonstrate that the clerk's method was incorrect. Again, the trial court placed the burden of production and persuasion on the wrong party-the clerk. This mistake was further compounded by the court's error in not permitting the clerk to evidence that would support the correctness of the calculation method used..

122 Because the city officials failed to sustain their burden of production and persuasion (to show that the number of signatures borne by the recall petitions is insufficient), the trial court erred in banning the election.

123 In addition to the city officials' failure to sustain their burden of production and persuasion regarding the sufficiency of the signatures, these litigants also failed to show that the actions of the clerk were arbitrary, fraudulent and capricious. In Dunham v. Ardery, 43 Okl. 619, 143 P. 331 (1914), we held that a city clerk is vested with a discretionary power to determine whether a recall petition is sufficient, and a writ will issue only when it is shown that the clerk was acting arbitrarily or fraudulently.

€24 The trial court also failed to take into its consideration the well-settled doctrine that, where possible, the validity of an election quest will be judicially upheld. Cooper v. Dix, 1989 OK 55, 771 P.2d 614, 617, Quinn v. City of Tulsa, 1989 OK 112, 777 P.2d 1331, 1340-41. The terms of Art. 3 § 5, Okl.Const., provide that no civil or military authority shall interfere to prevent the free exercise of the right of suffrage. The trial court's decision was hence contrary to law. It must be reversed.

IV,

THE ELECTION DATE WAS PROPERLY SET TO COMPLY WITH THE TERMS OF 26 0.8.1991 § 13-102

125 Because we reverse the trial court's ruling which condemns the recall petitions as insufficient, we must discuss the other flaw raised by the city officials. The latter pertains to whether the setting of the election for January 13, 1998 is valid even though the date is beyond the time limit prescribed by the city charter.

126 The city charter provides (at Section 57) that the recall election must be scheduled between 30 and 40 days from the passage of the resolution calling for the election. If the charter were to be followed, the election in this case should have been scheduled for no later than November 29, 1997. In order to comply with the provisions of 26 0.8. § 13-102, which call on the governing body of a municipality to submit a resolution to the county election board not fewer than 60 days before a special election is to be held, the recall election was scheduled for January 13, 1998.

127 The scheduling of the election complies with the mandate of § 13-102, but does not accord with the city charter provisions. The city officials argue that the charter controls over the state statute, thus rendering the election date infirm. The city officials are incorrect.

T28 A city charter will control over a contrary state statute only when the matter at hand is one of purely local concern. The setting of a special municipal election, which must be conducted by the county election board under the oversight of the State Election Board, is not a matter of local concern. It is clear that, as the Secretary of the Oklahoma County Election Board testified at length, the election board requires a minimum of 60 days to prepare adequately for an election. State law will on this point supplant nonconforming city law. Simpson v. Dizon, 1993 OK 71, 858 P.2d 176, 188-187.

129 Aside from the practical reasons why the holding of a municipal election is a matter of state, rather than local, concern, the State also has a vital interest in providing the people with a corruption-free regime for elections to be held upon initiative, referendum and recall measures. Oklahoma's legislature is required to pass laws that would prevent both fraud and corruption from clouding the process by which popular will is to be expressed. Art. 5 § 8, Okl. Const. The provisions of 26 0.8. § 18-102 are clearly designed to ensure orderly and corruption free conduct of vital municipal elections.

€30 The election date set for January 13, 1997 is hence free of legal infirmity.

v.

THIS CAUSE IS NOT MOOT

131 On January 13, 1997 the recall election was held as scheduled. It was announced that the city officials were all retained in office. The consolidated cause, though now rendered moot by the election results, will not be dismissed. It falls within two long-established subclasses the court may take out of the general rule-the so-called public-interest and the likelihood-of-recurrence exceptions to the mootness doe-trine. See Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, 315-816.

SUMMARY

{32 The exclusive procedure to protest the city clerk's decision on the sufficiency (or insufficiency) of a recall petition is that prescribed by the terms of 11 0.8. § 15-104. This part of today's ruling is made prospective to operate from the effective date of the court's opinion. The trial court's decision is reversed with directions to enter judgment in favor of the respondents City of Del City and Reba Basinger, City Clerk. In the attack launched on the sufficiency of the signatures the contesting city officials failed to sustain their burden of production and persuasion. The order cancelling the election cannot stand. The date chosen for the election is confirmed as legally valid. It was set in compliance with the applicable state statute that supplants all contrary city-charter provisions.

TRIAL COURTS JUDGMENT REVERSED AND THE CAUSE REMANDED WITH DIRECTIONS TO ENTER JUDGMENT IN FAVOR OF THE RESPONDENTS.

183 HODGES, LAVENDER, HARGRAVE, OPALA and ALMA WILSON, JJ., concur.

134 KAUGER, C.J., SUMMERS, V.C.J., and SIMMS and WATT, JJ., concur in part and dissent in part.

APPENDIX 1

MAYOR KIM K. LEE

APPENDIX 2

WARD 2 - COUNCIL PERSON: LINDA WHITEHEAD

APPENDIX 3

WARD 3 - COUNCIL PERSON: HARRY NELSON

WARD 4 - COUNCIL PERSON: BRIAN LINLEY

1994 Votes Signatures | City f Ward 4 | Gubernatorial | Counted by | Verified | Clerk's Signature Precinets Election City Clerk | by Clerk 20% 20% -| Deficiency 550020 598 -Q- -Q- 119.6 550026 nsos _ | 1.505 301 301 550027 mme - | - i10 22 22 Sub toral ris o | nels 376 323 442.6 (66.6) A9554 218 -Q- -Q- 43.6 [ AXXXX XXX -X ]- ~ -Q- 53.6 A9784 183 -G- -Q- 36.6 Ao735 273 a o- 546 | 7 ; 1 Sub total I 942 i -Q- | -Q- | -Q- | 188.4 _, Toml __| siss =| nets _ |_ se 0 sim _| ss | css "*F linley.cht

      . Article VIII, Sections 55-59 of the Del City Charter provide as follows: Section 55. Recall authorized.
      The incumbent of any elective office may be recalled from office by the electors qualified to vote for the election of a successor to the incumbent in the manner provided herein. Section 56. Recall petition.
      To initiate recall proceedings, a statement in duplicate proposing the recall of the incumbent of an elective office shall be made by five (5) or more registered qualified electors of the ward, if a councilman [councilperson] is sought to be recalled, or the city, if the mayor is sought to be recalled, and shall be filed with the city clerk after the incumbent has held the office for at least two (2) months. The statement shall also contain the reason or reasons for which the recall is sought, in not more than two hundred (200) words. Within five (5) days, the city clerk shall mail a copy of such statement by registered, certified or similar special mail to the officer at his or her residential address. Within ten (10) days after the statement is mailed to the officer, the officer may make and file with the city clerk a statement in duplicate justifying his or her conduct in office, in not more than two hundred (200) words; and the city clerk on request shall deliver one (1) copy to the person or one (1) of the persons filing the statement proposing the recall.
      The petition for recall shall include, on each page, a demand that a successor to the incumbent sought to be recalled be elected, and shall also include, on each page, before the space where the signatures are to be written the statement giving the reason or reasons for recall under the heading "STATEMENT FOR RECALL," and if the officer has filed a statement as authorized, the statement justifying his or her conduct in office under the heading "STATEMENT AGAINST RECALL." The two (2) statements shall be in letters of the same size. A copy of the petition shall be filed with the city clerk within one (1) month after recall proceedings are initiated by the filing of the first statement, and before the petition is circulated.
      A number of registered qualified city equal at least to twenty (20) per cent of the total number of votes cast for governor in the city (if mayor) or ward (if councilperson) at the last general state election at which a governor was elected, must sign the petition. Each signer shall write after his or her name his or her address within the city (if mayor), or ward (if councilperson), giving street or avenue and number, if any. Not more than one hundred (100) signatures may appear on a single copy of the petition. One (1) of the signers of each copy of the petition shall sign an affidavit on the copy stating that each signer signed the petition in his or her presence, that each signature on the petition is genuine, and that he or she believes each signer to be a registered qualified elector of the city.
      The circulated petition shall be filed city clerk not later than one (1) month after the filing of a copy as provided above. Within one (1) month after date of filing of the circulated petition, the city clerk shall examine it and ascertain whether it has been prepared and circulated as required, and whether the required number of registered qualified electors of the city have signed it. He or she shall then attach his or her certificate to the petition. If his or her certificate states that the petition has not been prepared and circulated as required and/or lacks a sufficient number of signatures, the petition shall have no effect, and recall proceedings may not be initiated against the same councilperson or mayor within three (3) months after the date of the certificate. But, if the city clerk's certificate states that the petition has been prepared and circulated as required and has a sufficient number of signatures, he or she shall submit the petition and certificate to the council at its next meeting.
      Section 57. Recall election; council to order.
      The council, by resolution or ordinance passed within ten (10) days after receiving the petition and certificate of the city clerk, shall order and fix the date for a recall election, which shall be held not less than thirty (30) days, nor more than forty (40) days, after passage of the resolution or ordinance. The city clerk shall cause the resolution or ordinance ordering the election to be published in full in a newspaper of general circulation within the city within ten (10) days after its passage; and such publication shall be sufficient notice of the election.
      The qualified electors of the city (if mayor) or ward (if councilperson) may vote in a recall election on the election of successors to more than one (1) incumbent of an elective office. Section 58. Recall election; how held.
      The recall election shall be an election to fill the office held by the incumbent sought to be recalled. Any qualified person, including the incumbent, may file as a candidate for the office; and candidates must file at least fifteen (15) days before the recall election. There shall be no primary before the recall election, and the candidate receiving the greatest number of votes in the recall election shall be elected. If a candidate other than the incumbent is elected, the incumbent shall be recalled from office effective as of the time when the result of the election is certified. The said successful candidate must qualify within one (1) month thereafter; and if he or she fails to do so, the office shall be vacant, and the council shall fill the vacancy. A candidate thus elected and qualifying shall serve for the unexpired term. If the incumbent is a candidate and receives the greatest number of votes, he shall continue in office without interruption; and no other petition for his or her recall may be filed within six (6) months after the election.

      . Copies of these charts, admitted as trial exhibits, are attached to this opinion and marked as Appendices 1-4.

      . To comply with Article VIII, § 56 of the Del City Charter, the clerk needed to know the number of votes cast for governor in the 1994 general election in order to calculate whether the recall petitions bore the sufficient number of signatures. Section 56 provides that "a number of registered qualified electors of the city equal to at least twenty (20) per cent of the total number of votes cast for governor in the city (if mayor) or ward (if councilperson) at the last general state election at which a governor was elected, must sign the petition."

      . - Precincts 20-27 included Del City and parts of Oklahoma County. Precinet 20 included parts of Del City wards 2 and 4 and Smith Village (not part of Del City). Precinct 21 included part of ward 3. Precinct 22 included part of ward 1. Precinct 23 included parts of wards 1 and 3. Precinct 24 included part of ward 2. Precinct 25 included parts of wards 1, 2, and 3. Precinct 26 included part of ward 4. Precinct 27 included part of ward 4 and Oklahoma County.

      . 11 0.$. 1991 § 15-104 provides as follows:
      § 15-104. Publication announcing the filing of petition-Protests
      A. When signed copies of a petition are timely filed with the clerk, the clerk shall make a physical count of the number of signatures appearing on the petitions. He shall then publish, in at least one (1) newspaper of general circulation in the municipality, a notice of the filing and the apparent sufficiency of insufficiency of the petition. The notice shall also state that any qualified elector of the municipality may file a protest to the petition or an objection to the count made by the clerk.
      B. A protest to the petition or the count of signatures shall be filed in the district court of the county in which the situs of the municipality is located within ten (10) days after the publication. Written notice of the protest shall be served on the clerk and the parties who filed the petition. In the case of the filing of an objection to the count, notice shall be served on any party filing a protest. The district court shall fix a day, not less than ten (10) days after the filing of a protest, to hear testimony and arguments for and against the sufficiency of the petition. A protest filed by anyone, if abandoned by the party filing it, may be revived within five (5) days by any other qualified elector. After the hearing, the district court shall decide whether such petition is in form required by law.

      . In election protests the contest regime prescribed by the applicable statute is exclusive of all other remedies. Fite v. Lacey, 1984 OK 83, 691 P.2d 901, Baggett v. State Election Board, 1972 OK 132, 501 P.2d 817, 821, Wagoner County Election Board v. Plunkett, 1956 OK 329, 305 P.2d 525, 529-530, Brown v. Branson, 139 Okl. 271, 270 P. 63, 66 (1928).

      . Poafpybitty v. Skelly Oil Company, 1964 OK 162, 394 P.2d 515, 520 (1964), Isbell v. State, 1979 OK 156, 603 P.2d 758, 760, (Opala, J. concurring).

      . Okla. Const Art. 2, § 6, Knell v. Burnes, 1982 OK 35, 645 P.2d 471, 474, Tulsa Rock Co. v. Williams, 1982 OK 10, 640 P.2d 530, Railway Express Agency v. Jansen, 1960 OK 117, 351 P.2d 1071, 1075, Sharum v. Dean, 113 Okl. 95, 239 P. 666, 667 (1925).

      . The official figures furnished to the clerk, by which the county election board stands bound, also bind us. Recall petition contests cannot disregard or pierce through the official figures supplied by the county election board.

      . Contested issues of law are reviewable (in all actions, suits and proceedings) by a de novo standard. An appellate court claims for itself plenary, independent and non deferential authority to re-examine nisi prius legal rulings. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).