Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 23, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CINDY ZAPOTOCKY, Chairman,                                No. 29875-2-III
Spokane Republican Party,                       )
                                                )
                      Appellant,                )         Division Three
                                                )
              v.                                )
                                                )         PUBLISHED OPINION
VICKY M. DALTON, Spokane County                 )
Auditor,                                        )
                                                )
                      Respondent.               )
                                                )

       Brown, J. ? Cindy Zapotocky appeals the trial court's summary dismissal of her 

application for writ of mandate seeking to compel Vicky Dalton, Spokane County 

Auditor, to recount selected ballots in the November 2, 2010, general election.  She

contends the trial court erred in concluding: (1) Ms. Dalton had no clear, legal duty to 

recount the ballots in the manner requested, (2) Ms. Dalton's duty to recount involved 

discretion on her part, (3) Ms. Zapotocky had another plain, speedy remedy at law, and 

(4) at the time she filed for the writ of mandamus, Ms. Zapotocky was no longer a 

beneficially interested party.  We reject Ms. Zapotocky's contentions, and affirm.

                         BACKGROUND & PROCEDURAL FACTS 

No. 29875-2-III
Zapotocky v. Dalton

       Generally, the county auditor, county prosecuting attorney, and the county 

legislative body chair comprise the county canvassing board members.  RCW 

29A.60.140.  The Spokane County Auditor, Ms. Dalton, designates an alternative 

canvassing board representative in her place when the auditor contest appears on the 

ballot, as in the 2010 general election.  During the canvassing 2010 general election 

canvassing, Michael McLaughlin, Spokane County Deputy Auditor and Elections 

Manager, was Spokane County auditor's canvassing board designee.  Spokane County 

conducts elections entirely "vote by mail" utilizing no direct recording devices.  

       On November 23, 2010, following canvassing of the 2010 general election, the 

canvassing board certified the election results.  The Spokane County Auditor's race 

official certified election results were 98,326 votes for Ms. Dalton and 76,731 votes for 

Leonard Christian, a 21,595 vote margin.  The same day, Ms. Zapotocky submitted a 

"request for a hand recount" of a portion of votes cast in the auditor's race, with a 

deposit.  Clerk's Papers (CP) at 19. The request sought a hand recount of votes by 

batch.  Ms. Zapotocky was then the chair of the Republican Party of Spokane County.  

       On November 24, 2010, Ms. Dalton denied Ms. Zapotocky's request in writing, 

explaining a recount could not be conducted in the manner requested.  Specifically, "a 

recount requires the canvassing board to certify an amended abstract of votes showing 

the votes cast in each precinct.  Therefore, any recount must generate amended totals 

for each individual precinct.  Because your request is based on batches, the precinct 

totals cannot be properly identified or generated to be amended." CP at 20.  It notified 

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Zapotocky v. Dalton

Ms. Zapotocky she could re-file her request for a recount, and "should specify which 

precincts you want recounted."  Id.  

       On November 30, 2010, Ms. Zapotocky submitted a revised request for a hand 

recount.  The revised request sought a recount by batch.  Under separate cover, Ms. 

Zapotocky explained how she wanted the recount conducted.  The same day, Ms. 

Dalton again denied Ms. Zapotocky's request, reiterating a recount could not be 

conducted in the fashion requested.    

       On December 7, 2010, the executive board of the Spokane County Republican 

Party central committee met in formal session and voted not to support legal action to 

enforce Ms. Zapotocky's recount request.  On December 9, Ms. Zapotocky signed an 

affidavit in support of the application for an alternative writ of mandate, as chair of the 

Spokane County Republican Party.  On December 11, the Spokane County Republican 

Party central committee met and elected Matthew Pederson as chair of the Spokane 

County Republican Party, replacing Ms. Zapotocky.    

       On December 20, Ms. Zapotocky sued for an alternative writ of mandate, and

requested the court compel Ms. Dalton to conduct a recount under RCW 29A.64.011 

and WAC 434-264-070.  On December 27, Ms. Dalton answered and listed affirmative

defenses.  On December 29, the court conducted a telephonic hearing concerning Ms. 

Zapotocky's application for alternative writ of mandate.  The court denied the 

application, and set a case schedule providing an amended affidavit by Ms. Zapotocky, 

filed on January 5 with exhibits.    

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No. 29875-2-III
Zapotocky v. Dalton

       On February 17, Ms. Dalton moved for summary judgment, supported by 

affidavits.  Ms. Zapotocky responded. At the April 20, 2011 argument, the court ruled

Ms. Dalton had no clear, legal duty to recount the ballots in the manner requested 

because it would be impossible to complete the statutory recount process in the 

requested manner.  Further, the court ruled Ms. Dalton's decision to group ballots in 

batches was discretionary.  The court concluded Ms. Zapotocky had a plain, speedy 

remedy at law.  Lastly, the court ruled Ms. Zapotocky was no longer a beneficially 

interested party by the time she filed for the writ of mandamus.  The court granted 

summary dismissal with prejudice.  Ms. Zapotocky appealed.   

                                          ANALYSIS

       The issue is whether the trial court erred in summarily dismissing Ms. 

Zapotocky's application for alternative writ of mandate.  

       We review a trial court's summary judgment decision de novo, engaging in the 

same inquiry as the trial court.  Barker v. Advanced Silicon Materials, LLC, 131 Wn. 

App. 616, 623, 128 P.3d 633 (2006).  Summary judgment is proper if no genuine issues 

of material fact remain and the moving party is entitled to judgment as a matter of law.  

CR 56(c).  No material facts are in dispute here.  Thus, we have a pure question of law 

concerning the applicability of chapter 29A.64 RCW, chapter 29A.68 RCW, and 

chapter 7.16 RCW.  Statutory interpretation questions are reviewed de novo. Beggs v.

Dep't of Soc. & Health Servs., 171 Wn.2d 69, 75, 247 P.3d 421 (2011).  

       A writ of mandate is a constitutional and statutory cause of action provided for in 

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No. 29875-2-III
Zapotocky v. Dalton

chapter 7.16 RCW.  Mandamus is an extraordinary remedy to be used sparingly.  Burg 

v. City of Seattle, 32 Wn. App. 286, 290, 647 P.2d 517 (1982).  A court may issue a writ 

of mandamus, "to any inferior tribunal, corporation, board or person, to compel the 

performance of an act which the law especially enjoins as a duty resulting from an 

office, trust or station." RCW 7.16.160.  "The writ must be issued in all cases where 

there is not a plain, speedy and adequate remedy in the ordinary course of law.  It must 

be issued upon affidavit on the application of the party beneficially interested." RCW 

7.16.170.  The essential elements for a writ to issue are: (1) the party subject to the writ 

has a clear duty to act, (2) the applicant has no plain, speedy, and adequate remedy at 

law, and (3) the applicant is beneficially interested.  Eugster v. City of Spokane, 118 

Wn. App. 383, 403, 76 P.3d 741 (2003).  The applicant bears the burden of proving all 

elements to justify mandamus.  Id.  

       First, regarding clear legal duty, "[t]he determination of whether a statute 

specifies a duty that the person must perform is a question of law."  River Park Square,

LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001) (citing State ex rel. Hodde v. 

Superior Court, 40 Wn.2d 502, 517, 244 P.2d 668 (1952)).  Ms. Zapotocky cites 

Quigley v. Phelps, 74 Wash. 73, 75, 132 P. 738 (1913) for the rule, "[t]he right to 

contest an election 'rests solely upon, and is limited by, the provision of the statute 

relative thereto.'" Br. of Appellant at 21.  She argues RCW 29A.64.030 and RCW 

29A.64.041(1) create a clear legal duty for Ms. Dalton to conduct a recount as

requested.  We disagree.

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No. 29875-2-III
Zapotocky v. Dalton

       "Recount" is defined as "the process of retabulating ballots and producing 

amended election returns based on that retabulation, even if the vote totals have not 

changed." RCW 29A.04.139.  A recount is mandatory when the vote total between 

opponents is less than 1,000 votes and also less than one-fourth of one percent of the 

total number of votes cast for both candidates.  RCW 29A.64.021.  Even if a mandatory 

recount is not triggered, "[a]n officer of a political party . . . may file a written application 

for a recount of the votes or a portion of the votes cast at that election for all candidates 

for election to that office." RCW 29A.64.011.  At the time Ms. Zapotocky submitted her 

application for a recount, she was qualified under the statute because she was a 

political party officer.  

       RCW 29A.64.030 partly provides:  

       The county canvassing board shall determine the date, time, and place or 
       places at which the recount will be conducted.  Not less than one day 
       before the date of the recount, the county auditor shall notify the applicant 
       or affected parties and, if the recount involves an office, to any person for 
       whom votes were cast for that office of the date, time, and place of the 
       recount.  Each person entitled to receive notice of the recount may attend, 
       witness the recount, and be accompanied by counsel.  

       RCW 29A.64.041(1) partly provides:  

       At the time and place established for a recount, the canvassing board or 
       its duly authorized representatives, in the presence of all witnesses who 
       may be in attendance, shall open the sealed containers containing the 
       ballots to be recounted, and shall recount the votes for the offices or 
       issues for which the recount has been ordered.  

       Ms. Zapotocky argues the use of the word "shall" in these statutes by definition 

creates a duty to perform a recount.  Br. of Appellant at 22.  However, the language of 

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No. 29875-2-III
Zapotocky v. Dalton

both statutes presupposes a successful application for a recount.  The word "shall" in 

RCW 29A.64.030 merely creates a duty to provide notice of the recount.  Likewise, the 

word "shall" in RCW 29A.64.041(1) is used to describe the set procedural steps of a 

recount, once it is established, not to establish it in the first place.    

       Ms. Dalton correctly argues she had no clear, legal duty to conduct the recount 

by batch as requested by Ms. Zapotocky because such a recount was discretionary.  

Mandamus may not be used to compel the performance of acts or duties that call for 

the exercise of discretion on the part of public officers.  Burg, 32 Wn. App. at 290-91.  A 

discretionary act is one that requires the exercise of a basic policy evaluation, 

judgment, and expertise on the part of an officer or agency.  Id. at 291.  As Ms. Dalton 

contends, "an auditor's functions, though largely ministerial, does [sic] require some 

discretion to fulfill lawful duties." Br. of Ms. Dalton at 11 (citing RCW 29A.04.216; State 

v. Superior Court for King County, 121 Wash. 588, 591, 210 P. 15 (1922)).  

       Ms. Zapotocky's application was for a manual recount, raising chapter 434-264 

WAC.  WAC 434-264-090 then required all ballots be sorted by precinct prior to 

beginning a manual recount.  It continues, "[i]f a results report can be produced by 

batch, ballots may be sorted by batch." Former WAC 434-264-090 (2009).  Likewise, 

WAC 434-264-110(1) suggests a recount can be done by precinct or by batch.  "Each 

counting board shall be given the ballots one precinct or batch at a time."  Id.  WAC 

434-262-015 provides that "[w]hen considering the validity or rejection of ballots, the 

canvassing board may review the ballots individually, in batches, or as part of a report 

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No. 29875-2-III
Zapotocky v. Dalton

of ballots presented to the board." Taken together, the administrative code suggests 

recounting ballots by batch is discretionary, but sorting by precinct is mandatory.  

       RCW 29A.60.170(3) is discretionary, providing "[a] random check of the ballot 

counting equipment may be conducted upon mutual agreement of the political party 

observers or at the discretion of the county auditor" by precinct or by batch.  And as 

Ms. Dalton suggests, RCW 29A.64.041 focuses not on batches but precincts, partly 

allowing withdrawal of a recount request, "At any time before the ballots from all of the 

precincts listed in the application for the recount have been recounted, the applicant 

may file with the board a written request to stop the recount." RCW 29A.64.041(2).    

       More importantly, a recount requires the canvassing board to issue amended 

election returns by precinct.  To amend election returns, "[t]he county auditor shall 

prepare an amended abstract of the recounted ballots for the county canvassing board.  

The amended abstract shall include a revised cumulative summary, as well as the 

votes cast in each precinct for the office or measure that was recounted." WAC 434-

264-130(1).  "The county canvassing board shall certify the amended abstract that, for 

each precinct, displays the results of the office that has been recounted.  The new 

abstract shall be included in the amended certified canvass report." WAC 434-264-

130(4).  The statute provides similar language.  Upon completion of a recount, "the 

canvassing board shall prepare and certify an amended abstract showing the votes 

cast in each precinct for which the recount was conducted."  RCW 29A.64.061.  

       Ms. Dalton responds if the canvassing board were compelled to conduct a 

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No. 29875-2-III
Zapotocky v. Dalton

recount as requested by Ms. Zapotocky, the board members could face criminal liability 

under RCW 29A.84.720, pursuant to RCW 29A.60.200, for failing to issue an amended 

certification after a recount.  She compellingly argues mandamus will not lie to compel 

an officer to do an unlawful act.  State ex rel. Egbert v. Blumberg, 46 Wash. 270, 89 P. 

708 (1907); State ex rel. Town of Bothell v. Woody, 90 Wash. 501, 156 P. 534 (1916); 

State ex rel. Godfrey v. Turner, 113 Wash. 214, 193 P. 715 (1920).  

       Considering all, we conclude the statutory scheme does not create a clear, legal 

duty for Ms. Dalton to recount the votes in the manner requested by Ms. Zapotocky.  

The canvassing board gave Ms. Zapotocky the opportunity to request a recount in a 

manner which it would have been obligated, under a clear, legal duty to perform, but 

she decided not to make such a request.  

       Second, regarding a plain, speedy, and adequate remedy at law, "[w]hether 

there is a plain, speedy, and adequate remedy in the ordinary course of the law is a 

question left to the discretion of the court in which the proceeding is instituted."  River 

Park Square, 143 Wn.2d at 76 (citing Hodde, 40 Wn.2d at 517).  Accordingly, we "will 

not disturb a decision regarding a plain, speedy, and adequate remedy on review 

unless the superior court's discretion was manifestly unreasonable, or exercised on 

untenable grounds, or for untenable reasons."  Id. (citing Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971).  Here, the trial court correctly found chapter 29A.68 RCW 

was available to Ms. Zapotocky as a remedy.  That chapter provides the process for 

contesting an election.  Specifically, the statute provides an elector the opportunity to 

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charge by affidavit "neglect of duty on the part of an election officer."  RCW 

29A.68.011(5).  

       Third, Ms. Zapotocky contends she is a beneficially interested party because 

she had standing at the time of her recount request as an officer of the Republican 

Party.  She argues she has sufficient interest as a voter.  Ms. Dalton cogently responds 

Ms. Zapotocky did not have standing at the time she filed for the writ of mandate.  And, 

Ms. Zapotocky apparently did not have party support and brought the action as a sole 

voter.  While it is arguable that Ms. Zapotocky is a beneficially interested party, we do 

not need to address this element further because she has, as discussed above, failed 

to meet her burden on the other essential elements required for a writ to issue.  

       In sum, the trial court properly dismissed Ms. Zapotocky's application for writ of 

mandate on summary judgment.  

       Affirmed.  

                                                           __________________________
                                                           Brown, J.

WE CONCUR:

______________________________                             __________________________
Kulik, C.J.                                                Korsmo, J.

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