Weston County commissioner battles residency complaint

NEWCASTLE — Weston County Commissioner Tony Barton is standing his ground and asserting his legal right to remain on the Board of Weston County Commissioners until the end of his term, as stated by his attorneys, Samuel R. Yemington and Kasey J. Benish, who are associated with the Cheyenne firm Holland and Hart.  

Barton’s response to challenges to his continued presence on the county board was filed on Nov. 18 and urges the Sixth Judicial Court to dismiss the suit filed by Garrett Borton on Oct. 26. 

According to court documents, Borton is seeking an injunctive and declaratory relief within the jurisdiction of the court concerning Barton’s qualification to function in the office that he is currently holding. 

As previously reported by the News Letter Journal, Borton did not request the removal of Barton from his seat. He asked the judge for a temporary injunction, which per statute would be “a command to refrain from a particular act.” 

In Barton’s case, this would mean that Barton would have to refrain from voting as an elected official and that he no longer would receive financial compensation from the county. The petition further asks for a permanent injunction in which the court grants the requested relief. 

The basis for dismissal, according to the documents filed on behalf of Barton, state that Barton “moves this court for dismissal of the above-captioned action for failure to state a claim upon which relief can be granted and requests oral argument on the same.” 

According to the documents, Barton was elected on Nov. 6, 2018, by the citizens of Weston County to serve a four-year term as commissioner and that the time to contest these results has lapsed. It further states that Barton took residency in Crook County on or about Oct. 29, 2020 and continued to serve on the commission, noting that his term ends on Jan. 2, 2023. 

Barton’s attorney then argues that a qualified elector under Wyoming law is defined as “every citizen of the United States who is a bona fide resident of Wyoming, has registered to vote and will be at least eighteen years of age on the day of the election at which he may offer to vote.” They note in the filed documents that the definition does not implicate county residency. 

County residency for county commissioners and other county elected officials was updated by the Wyoming Legislature during the 2021 General Session, requiring county commissioners to be residents of the county they represent throughout the duration of their term. While this law was adopted last year, becoming effective on July 1, 2021, the requirement does not apply retroactively to officials elected or appointed before July 1, 2021, the documents state. 

It notes that because of the specifics outlined in the law, “Barton is not prohibited by law from completing his four-year term as county commissioner on the basis that he is now a resident of Crook County.” 

Barton’s lawyer further argues that a county commissioner may only be removed from office by the governor and only for, as outlined in Statute 18-3-523(a)(b), “refusing or neglecting, without just cause, to perform any duties required of him as a member of the Board of County Commissioners, or for knowingly committing any act which by law is in violation of his official oath and bond.” 

“The petition does not allege that Barton is refusing or neglecting without just cause to perform any of the duties required of him as a county commissioner on the Weston County Board of County Commissioners or that Barton has knowingly committed an act which by law is in violation of his official oath and bond,” the documents states, noting that because there is no relief to the claim, the claim should be dismissed. 

“No set facts would support the claim forwarded by the petition that Barton, as a resident of Crook County, is prohibited by law from completing his term as a county commissioner. ...,” the document concludes. “Moreover, the law does not entitle the declaratory and injunctive relief sought by the petition. Accordingly, summary dismissal of the petition is appropriate and best secures the just, speedy and inexpensive determination of this action.” 

But Borton is not backing down, submitting a response to the request for dismissal on Nov. 29. 

In the documents filed by Borton, he argues that Barton became a qualified elector in Crook County when he moved and while the lawyer correctly cites W.S. Section 22-1-102(a)(xxvi) for the definition of qualified electors, he failed to read other sections of the statute. 

“When these statutes are read together, it is clear that in Wyoming, there are no free range qualified elections, but that to be a qualified elector in Wyoming, one must be a qualified elector of a particular county,” the document states. 

It further states that to vote for a county commissioner, you must reside in said county and, therefore, only a person living in that county is qualified to be a county commissioner. 

“When Barton became a qualified elector in Crook County, he was no longer a qualified elector of Weston County, and is no longer qualified to be a Weston County Commissioner,” the document says. 

Borton further claims that Barton’s lawyers are correct in saying that he did not complain that the commissioner is not performing his duties but that the remedy set forth in Statute 18-3-523(a)(b) is “neither exclusive, mandatory or relevant to defendant’s lack of qualification as an elector of Weston County.”

“Plaintiff does seek declaratory and injunctive relief, both of which are available independently of Wyo. Stat. Section 18-3-523,” Borton states in his response. 

Because of this, Borton states that summary dismissal would be inappropriate and requests that it is denied or that a hearing is set for the motion.