Casper’s city clerk acted “arbitrarily and capriciously” when he rejected signatures on an anti-smoking petition a year ago, District County Judge Daniel Forgey ruled Tuesday.
The judge stopped short of ordering that the signatures be counted, which would trigger a special election on the referendum. Still, it was a big win for former Casper city councilwoman Kim Holloway and her attorney, Mary Ann Budenske, and it left Casper City Attorney Bill Luden scurrying to his law books to see what the city might do next.
Budenske said the city could decide to do nothing, in which case Holloway would bring the issue back to court. “It’s nothing personal against the city clerk (V.H. McDonald),” the plaintiff said. “We just want him to do his job properly. I’m glad the judge decided that the voters who signed our petition shouldn’t have been disenfranchised.”
Casper’s City Council passed an ordinance in 2012 banning smoking in all restaurants, bars, taverns, lounges and private clubs within the city limits. Holloway was one of the council members who supported the ordinance by a 7-2 vote.
Several business owners who wanted to allow customers to smoke protested the move, and in the November 2012 election enough new council members who agreed were elected and brought the issue up again.
In June 2013, the council amended the ordinance to allow bars in the city to decide whether smoking would be permitted in their establishments. All but a half-dozen bars in the city kept the smoking ban in effect.
Holloway then helped organize Keep Casper Smoke Free, which launched a petition drive to get the required 2,454 signatures of registered voters to put the issue on the ballot. The city clerk reviewed the petitions and announced the effort fell 61 votes short. The clerk said 685 signatures were invalid for various reasons.
The group did its own review and discovered there were several inconsistencies in how the city clerk’s staff determined if a signer was a registered voter. The clerk’s office threw out any signatures of voters whose address didn’t match exactly what was on the city’s list of registered voters. It also rejected all signatures that weren’t exactly as recorded on the voting rolls, including middle names or initials that were different or omitted.
Forgey ruled that McDonald should not have rejected the signatures of voters who had moved since they registered but still lived in the city. He said at least 67 signatures were incorrectly declared invalid for this reason. If they had been counted, the issue would have gone to the public to decide at a special election.
Luben described it as a difficult case to decide, since there is little legal precedence on petitions in municipal elections. Each municipality now decides on its own how petition signatures will be validated.
Forgey decided the city of Casper should meet the same standards for review that the Wyoming Secretary of State’s office does. “The city clerk excluded signers on an incorrect legal basis,” the judge said in court Tuesday morning.
Luben said he will have to review the decision, which he did not yet have a copy of, and sort out the city’s legal options for other officials. One alternative would be to appeal the judge’s decision, he said.
Budenske said Forgey’s summary judgment in favor of her client could have significant implications on how petition signatures are collected and validated in municipalities throughout the state. “A lot of voters and organizations around the state are watching this case,” the lawyer said, including a group seeking a statewide referendum on legalizing medical marijuana. “It’s making the municipalities and city clerks nervous.”
The judge said people circulating petitions could be required to get more information from potential signers, such as whether they have moved since the last election, to help city officials determine if they really are registered voters. He said more information could also be obtained from county clerks to help the validation process.
That could make the petition process more difficult for groups, but it could also result in a higher percentage of signatures being validated by city clerks, Budenske said.
Casper City Councilman Keith Goodenough, who is running as an independent for the Natrona County Commission, was in the courtroom to hear the ruling. He recalled that the council began debating the smoking issue three years ago, and experienced much turmoil all along the way.
“I had hoped it would be over and done with,” said Goodenough, who added he supports property rights and voted to amend the ordinance so bar owners could decide whether to allow smoking. “I thought we had reached a good compromise, because non-smokers had places they could go and smokers had places they could go, too. I think it’s been working well.”
Budenske compared the smoking ban issue to a divorce case in which both sides keep fighting over property, child custody, etc.
“It’s never over,” the attorney said.
Holloway served on the city council from 2008 to 2012, when she left to run as a Democrat for state Senate District 28. She lost that election to Republican Jim Anderson.
She’s trying to get her old seat back on the city council. Holloway finished second in the city’s Ward 1 primary, and will face Robin Mundell in the Nov. 4 general election.
Holloway, who had a big smile on her face after the judge read his ruling, said she doesn’t know if her lawsuit against the city will have any impact on her city council race.
But “the woman who ran against city hall — and won” is certainly a campaign slogan with a nice ring to it.