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Notes on the Cedar County, Missouri clerk of the county commission resignation 2002

Cedar County, Missouri clerk of the county commission, Sheryl Swopes, declared she won the general election 2002 (11/5) then sent her resignation to the governor 3 days later (11/8) ending her tenure in office November 15, 2002.

When the county clerk of a third class Missouri county resigns 3 days after proclaiming she won re election, but before she accepts a certificate of election, what is supposed to happen? Did she merely vacate the current term of office, which ends Dec. 31, 2002 or also have the power to declare she was vacating the next term of office for which she claimed to have been elected? Would the fact she resigned before a certificate of election issued mean the only other candidate could be certified as having won the election? Or was the Nov. 5, 2002 election for county clerk made null and void due to her resignation?

Vacancy filled by governor.

51.090. When any vacancy shall occur in the office of clerk of the county commission by death, resignation, removal, refusal to act, or otherwise, it shall be the duty of the governor to fill such vacancy by appointing some eligible person to said office, who shall discharge the duties thereof until the next general election, at which time a clerk shall be chosen for the remainder of the term, who shall hold his office until his successor is duly elected or appointed and qualified, unless sooner removed.

(RSMo 1939 § 13284, A.L. 1945 p. 653 § 4) Prior revisions: 1929 § 11665; 1919 § 2111; 1909 § 2674

The Mo. Secretary of State's office, commissions division, reported 11/21/02 that they did not provide the form for the certificates of election until mailing them 11/19/02. Sheryl Swopes resigned effective 11/15/02 and therefore did not have a certificate of election to file anywhere. Was there therefore an election held 11/5/02 or did it become a nullity since no certificate of election was accepted?

Certificate of election to be deposited with secretary of state.

51.040. The certificate of election of the clerk of the county commission, signed by the presiding commissioner of the county commission, or by the chairman of the board, or boards, of election commissioners, as the case may be, and the bond of the clerk of the county commission, with the approval of the commission or commissioners endorsed thereon, shall be deposited in the office of the secretary of state.

(RSMo 1939 § 13287, A.L. 1945 p. 653 § 6) Prior revisions: 1929 § 11668; 1919 § 2114; 1909 § 2677

Certificate of election recorded.

51.030. The certificate of election with the oath or affirmation of office of such clerk endorsed thereon, shall be recorded in the office of the recorder of the county before any other duty of his office is discharged.

(RSMo 1939 § 13288, A.L. 1945 p. 653 § 5, A.L. 1978 H.B. 971) Prior revisions: 1929 § 11669; 1919 § 2115; 1909 § 2678

North Dakota Supreme Court addressed some of these problems in State, ex rel. Spaeth v. Olson, ex rel. Sinner, 359 N.W.2d 876 (N.D. 1985)

"....The effect of the Certificate of Election is to clothe the person to whom it is issued with a prima facie right to possess and to exercise the functions of the specified office. Byrne, supra. Under our statutory scheme, however, the Certificate of Election is not determinative of the term or dates to which the elected official is entitled to hold office, and we have neither been given nor found any authority to the contrary. There is authority, however, for the position that the law, and not the face of the commission 1 or Certificate of Election issued to an officer, controls the term of the office. See, Colbath v. Adams, 184 So.2d 883 (Fla. 1966); Conley v. Brophy, 207 Ga. 30, 60 S.E.2d 122 (1950) See also 67 C.J.S. Officers, Section 66 (1978)."
"...The term of the office has been defined as "the fixed and definite period of time which the law describes that an officer may hold an office." Sueppel v. City Council of Iowa City, 257 Iowa 1350, 1357, 136 N.W.2d 523, 527 (1965). The tenure of the person holding an office may vary from the term of the office. People ex rel. Sullivan v. Powell, 35 Ill.2d 19, 217 N.E.2d 806 (1966). It is well settled that the term of the office is separate and distinct from the term or tenure of the officer, so that the term of the office is not affected by a shortening of the officer's tenure. Graham v. Lockhart, 53 Ariz. 531, 91 P.2d 265 (1939); Wilson v. Shaw, 194 Iowa 28, 188 N.W. 940 (1922); State v. Young, 137 La. 102, 68 So. 241 (1915); State v. Johnson, 156 Neb. 671, 57 N.W.2d 531 (1953); Opinion of the Justices, 112 N.H. 433, 298 A.2d 118 (1972); Gillson v. Heffernan, 40 N.J. 367, 192 A.2d 577 (1963); Monte v. Milat, 17 N.J.Super. 260, 85 A.2d 822 (1952); Selway v. Schultz, 268 N.W.2d 149 (S.D. 1978); State v. Meador, 267 S.E.2d 169 (W. Va. 1980)." Spaeth v. Olson

"...An officer may serve a shortened tenure, but nonetheless be deemed to have served a complete term." Welty v. McMahon, 316 N.W.2d 836, 839 (Iowa 1982)." Spaeth v. Olson (Sheryl Swopes term for which she had a certificate of election from the 1998 election was to end Dec. 31, 2002. She shortened her tenure and resigned effective 11/15/2002. She did not accept the term which had proclaimed she was to begin Jan. 1, 2003.)

"Public interest requires that all possible certainty exist in the election of officers and the beginning and expiration of their terms, by law or resignation, and forbids that either should be left to the discretion or vacillation of the person holding the office...." Campbell v. City of Boston, 337 Mass. 676, 151 N.E.2d 68,70(1958) (quoting Warner v. Selectmen of Amherst, 326 Mass. 435, 439, 95 N.E.3d 180, 183 (1950).

Other courts have also recognized the public interest in this situation and have noted the uncertainty caused by allowing an officeholder to determine the date upon which his term will commence. See, e.g., Conley v. Brophy, 207 Ga. 30, 60 S.E.2d 122 (1950); State v. Young, supra; State ex rel. Wilson v. Parker, 30 La. Ann. 1182 (1878)." Spaeth v. Olson

"'...The term remains invariable, always the same, and is not subject in its duration, to the wishes or agreements of any persons whomsoever; while the tenure of an incumbent may always be terminated by his resignation and its acceptance.'[Emphasis added.] State ex rel. Wilson v. Parker, 30 La. Ann. 1182, 1184 (1878) (quoted in State v. Young, supra, 137 La. at 110, 68 So. at 244). Spaeth v. Olson

(Swopes did not have the discretion to attempt to have the office of county clerk filled by the Governor through resigning shortly after the election. Is it not true that her tenure ended 11/15/2002 and the 2002 election for county clerk became null and void?.)

1. The term commission has a usage which is the functional equivalent of a Certificate of Election. Footnote Spaeth v. Olson

"...There is no limitation, either express or implied, upon the legislature to make appointive terms extend to an election. The limitation is that, where a vacancy occurs which extends beyond an election, then an appointee shall hold until the next succeeding general election, and until the qualification of a judge to fill the vacancy. It cannot be said that all vacancies which occur in the membership of this court may be filled by an appointee from the time of the appointment to the next succeeding general election, because a vacancy may occur after the election of a successor to one of the elected judges, and before the expiration of his term, where no election intervenes, which vacancy could be filled by appointment only until the expiration of the term. State ex rel. Babcock v. Black, 22 Minn. 336.

For example, the regular elective term of Judge Reavis expires on the second Monday of January, 1903. His successor will be elected regularly in November of this year. No other general election will be held until November, 1904. If Judge Reavis should resign on the day following the election in November next, and the governor should appoint a person to fill the vacancy occurring by reason of such resignation, it certainly cannot be held that such an appointee may hold office until the next succeeding election, two years hence, and thus deprive the regularly elected judge from taking office on the second Monday in January next succeeding his election. The term of an appointive judge, therefore, is not fixed, except that it cannot extend beyond an election and the qualification of his successor, or to the end of the term. When the term of judges elected was fixed at six years, it was intended thereby to distinguish elected judges from appointed judges, and to fix the terms of elected judges for a definite time, and to limit the terms of appointed judges to the next election. Within that limit the legislative power is complete. It may provide for a term of any length of time up to the succeeding general election. This term is appointive. But if a vacancy is created which extends beyond an election, the provisions of the constitution apply, and the legislature has no authority to change or modify the `terms' ..." 6 Wn.2d 444, THE STATE OF WASHINGTON, on the Relation of Samuel Edelstein, Plaintiff, v. RALPH E. FOLEY, Respondent (1940)State of Washington Supreme Court

"'The language of the pertinent statute or constitutional provision relating to essential qualifications of candidates for a public office must be regarded by a court as controlling in determining at what time an essential qualification must exist.' Syl. Pt. 3, State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), overruled in part on other grounds in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979)." Syllabus Point 3, Adkins v. Smith, 185 W.Va. 481, 408 S.E.2d 60 (1991)." "The power of the legislature to regulate the nomination and election of candidates for public office and to prescribe essential qualifications to be possessed by candidates in order to be eligible to be nominated or elected is plenary within constitutional limitations." Syl. Pt. 2, State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), overruled in part on other grounds in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979)." "In State ex rel. Morrison v. Freeland, 139 W.Va.327, 334-35, 81 S.E.2d 685, 690 (1954), overruled in part on other grounds in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979), this Court quoted from 67 C.J.S. Officers 26, by stating: Where the legislature has fixed the qualifications for an office pursuant to its authority so to do, the electors may not select one not possessing the qualifications prescribed, and one who is not eligible is not regarded as elected to office, although he may receive the highest number of votes cast and is in possession of a certificate of election, although it has been held that his election is not affected but merely his right to hold the office. . . . " Sup. Ct. of Appeals W. Va. 1997 Burkhart v. Sine. #23974

115.379 RsMo. Section 2, 3

2. Whenever a candidate for nomination or election to an office is disqualified after 5:00 p.m. on the sixth Tuesday prior to a primary election, general election or special election to fill a vacancy, his name shall be printed on the primary, general or special election ballot, as the case may be. The election and canvass shall proceed, and, if a sufficient number of votes are cast for the disqualified candidate to entitle him to nomination or election had the candidate not become disqualified, a vacancy shall exist on the general election ballot or in the office to be filled in the manner provided by law.

3. Except as provided in subsection 3 of section 115.359, subsection 2 of section 115.361 and subsections 1 and 2 of this section, whenever a candidate for nomination or election to an office dies, withdraws or is disqualified prior to a primary election, general election or special election to fill a vacancy, all appropriate election authorities shall see that such candidate's name is removed from the primary, general or special election ballot, as the case may be.

(L. 1977 H.B. 101 § 10.145, A.L. 1997 S.B. 132)

Does Cedar County, Missouri need to hold a new election or will the Governor appoint someone to serve until the next general election in 2004?

MORE LEGAL NOTES ON Swopes RESIGNATION
SELECTION 2002 What Happened?

CEDAR COUNTY CLERK MAIN PAGE

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