The Resolution of Election Disputes: Legal Principles that Control Election Challenges
288 N.W.2d 902
288 N.W.2d 902
(Cite as: 288 N.W.2d 902)
which Wonderlich had received in compensation
for serving on the board of supervisors pursuant to
the decisions of the contest court and the district
court.
On September 12 Wonderlich filed a cross-petition,
naming members of the contest court, the commissioner of elections, members of the county board of
supervisors, the county auditor, and Keokuk County
as third-party defendants. Wonderlich alleged that
said third-party defendants were the parties actually
liable to the plaintiff on the salary claim, and
sought indemnification from the aforementioned
parties. On September 21 the third-party defendants
moved to dismiss the cross-petition on the ground
that they had been acting in their official capacities
and that the cross-petition failed to state a claim
upon which relief could be granted. On November
3 the trial court dismissed the cross-petition, a ruling from which the defendant has not appealed.
Thus the issue of potential alternative sources for a
successful election contestant's salary is not before
us at this time.
The plaintiff then moved for summary judgment on
his petition. Following hearing and the submission
of briefs, the trial court sustained plaintiff's motion
for summary judgment on November 3, 1978.
While expressing doubt regarding the equity of the
result, the trial court found existing case law to be
in plaintiff's favor and ruled accordingly. On
December 1, 1978 Wonderlich filed a timely notice
of appeal to this court.
The sole issue presented by this appeal is whether
the eventual loser of an election contest may be
found liable to the person to whom the office is ultimately awarded for the amount of salary which he
or she received while serving in office pending resolution of the election contest.
We have in the past adhered to the majority position that a de jure officer, the rightful holder of an
office, may recover from a de facto officer for the
period which the de jure officer was deprived of his
or her office. Harding v. City of Des Moines, 193
210
Page 2
Iowa 885, 889, 188 N.W. 135, 137 (1922); McCue
v. County of Wapello, 56 Iowa 698, 704-05, 10
N.W. 248, 251 (1881). Concomitantly we have held
that a governing body cannot be liable to a de jure
officer if the salary in question has been paid to a
de facto officer. Glenn v. Chambers, 242 Iowa 760,
770-71, 48 N.W.2d 275, 280-81 (1951); McClinton
v. Nelson, 232 Iowa 543, 547-48, 4 N.W.2d 247,
248-49 (1942); Harding v. City of Des Moines. The
latter position is not without statutory exception.
See Hild v. Polk County, 242 Iowa 1354, 1358-59,
49 N.W.2d 206, 207-08 (1951) (general rule abrogated by section 66.9, The Code, as to public officials suspended for misconduct and then restored to
office).
Despite Devine's contention, we find no statutory
provision applicable to the case at bar. Section
62.20 requires an incumbent who wishes to remain
in office And who challenges the decision of the
contest court to post a bond which may be forfeited
upon an adverse decision upon appeal. As the incumbent Wonderlich was not challenging the decision of the contest court, section 62.20 provides
no guidance. Resolution of *904 this dispute depends on this court's continued adherence to the
majority position taken in Harding in the context of
an election contest.
Before reaching the merits of this controversy, we
wish to clarify the parameters of our decision.
While the possibility of governmental liability to
the de jure officeholder involves considerations interrelated with those relevant to resolution of this
dispute, no issue of governmental liability is
presented by this case. Some of the cases which we
will discuss involve the question of governmental
liability. This is a result of the underlying considerations which the issues of de facto official and governmental liability hold in common and not a reflection of the scope of this opinion. We are only
determining the liability of Wonderlich, the de
facto member of the board of supervisors during the
election contest period, to Devine, the de jure member of the board of supervisors for the same period,
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents