Barton v. Borton has its day in court

The dispute over a residency requirement for elected officials officially moved to a legal battlefield last week when citizen Garrett Borton’s complaint against Weston County Commissioner — and Crook County resident — Tony Barton was finally heard in court. Both sides presented their arguments in a dismissal hearing heard by 6th Judicial District Court Judge James Michael Causey on March 31. Causey, after a 40-minute hearing, said that he would review
the information and announce a decision soon. 
As previously reported, Barton has asserted that he has the right to
remain on the Weston County Commission despite moving to Crook County in 2020. Elected for his second term in 2018, Barton is up for reelection in 2022 and, since his move, is no longer eligible to run for office in Weston County. 
Barton’s attorneys, Samuel R. Yemington and Kasey J. Benish, who are associated with the Cheyenne firm Holland and Hart, asked for a dismissal of the case filed by Borton in documents filed on Dec. 16.  
The suit against Barton was filed by Borton on Oct. 26, 2021. 
According to court documents, Borton is seeking injunctive and declaratory relief concerning Barton’s qualification to function as
a county commissioner, a position he currently holds. 
As previously reported by the News Letter Journal, Borton did not ask that Barton be removed from his seat on the commission. 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. 
Yemington argued during the hearing that the case should be dismissed for several reasons, including what he said is a lack of injunction resolution defined in law. He explained that the law does not provide for the injunction Borton is seeking and that, therefore, the case should be dismissed. 
Yemington also argued that a 2021 legislative amendment adding a residency requirement for county commissioners requires that commissioners be residents of their county in which they were elected “from the first day of their term to the last day of their respective term.”
“This is relevant here because that residency requirement, as provided by the Legislature, does not apply retroactively,” Yemington said.
He noted that Barton was sworn in for his current term more than one and a half years before the effective date of the law. 
“There is no relief that this court can grant Borton. He (Barton) has the right to fulfill his term. While there is a residency requirement now, it does not apply to my client,” Yemington said. 
Yemington also cited Civil Action 1850 from June 25, 2018, in which the judge in that case ruled that attorney Alex Berger could appear on the Weston County ballot despite living in Campbell County. 
“The last thing I would like to touch on is jurisdiction. It is always appropriate to mention jurisdiction restraints,” Yemington said, noting that the path Borton was required to pursue by law has been ignored. 
“You must follow the procedures. … Allowing this to proceed would unlawfully put the court in the political arena. The courts’ role in interpreting election law is limited,” he said. 
Yemington asserted that over 1,700 Weston County residents voted for Barton in 2018 to serve a four-year term. He said that if Causey were to accept the argument, those voters would be disenfranchised. 
Causey questioned Yemington following the last argument, asking when Barton had been elected, 2018, and when he had moved, 2020. 
“Couldn’t the argument be made that the voters didn’t know what they were voting for. I am playing the devil’s advocate, how would you respond to that argument?” Causey asked. 
Yemington said that there was no residency requirement in 2018 and none when Barton moved in 2020. 
Borton argued that Wyoming law does not allow for “free-range qualified electors” and to be a qualified elector you must reside in a county’s particular precinct. 
“Each board of county commissioners shall consist of at least three qualified electors,” Borton said. “When he (Barton) became a qualified elector of Crook County, he was no longer a qualified elector in Weston County. Dismissal would be inappropriate.” 
He said that House Bill 187, which added the residency requirement to state law, was the result of a bill prepared by former Rep. Hans Hunt because of the Barton situation. 
“This is an interesting issue. Lots of people have lots of feelings,” Causey said. He noted that he would issue a decision as soon as possible.