Judge denies Gilkerson slot on Pierre's mayoral ballot

“I have to say the most difficult aspect of this is the precedent this sets forth, that when the city commission decides they don’t want someone to run, they can eliminate them based on any perceived violation of their residency,” Gilkerson said. “This is really unfortunate that voters don’t even get to decide who they are going to vote for for mayor. But at the same time, this is exactly why I’m trying to get on the ballot.”

Even if the judge had ruled in Gilkerson’s favor, it likely would not have changed the June 2 primary election in which Mayor Steve Harding is the only candidate as he runs for a second three-year term.

When Gilkerson turned in his petitions in March, signed by voters to put him on the ballot, city officials said his place of residence didn’t qualify because he hadn’t been living there much at all and it wasn’t zoned for occupancy, but for business.

Gilkerson asked for a hearing and at two unusual procedures, four members of the Ciity Commission — Harding recused himself — conducted hearings with Gilkerson sort of in the dock. At the first hearing, attorney Richard Tieszen, hired by the city for the purpose, argued that just because Gilkerson used his place of business, Steamboats, Inc,. at 511 W. Dakota Ave., as his mailing address, and sometimes slept there, didn’t make it his residence. Moreover, the building has been zoned as a business, which doesn’t qualify as a residence, Tieszen said, citing city ordinances.

Gilkerson argued it’s the only place he’s had to call his own home for years and the fact he often sleeps elsewhere, sometimes because of his work, doesn’t mean it isn’t his residence.

However, at the March 31 hearing, Gilkerson did not have an attorney, he said, because he hadn’t had time to find one.

The Commission agreed to a second similar hearing April 7 to which Gilkerson brought his attorney, Brad Schreiber, who made a longer argument buttressing Gilkerson’s main claim.

Commissioners, after both hearings, voted 4-0 to deny Gilkerson a place on the ballot because he did not qualify as a resident.

Gilkerson filed suit in state court, seeking a “writ of mandamus,” or a judge’s mandate to the City Commission to put him on the ballot.

Ony May 21, Klinger heard arguments from both sides. Naomi Cromwell, Tiezen’s law partner, and Tieszen made the city commission's case before Klinger. Schreiber made Gilkerson’s case. Two City Commissioners, Jim Mehlhaff and Vona Johnson, and some other city and county officials attended, but were not called to testify. Everyone seemed to agree that the basic arguments had been made more than once already.

The hearing took about an hour.

After a break of about 20 minutes, Klinger read her decision. She said there seemed to be no good reason for the court to intervene and overrule the city’s decision on Gilkerson’s residency.

The City Commission’s decision was not “arbitrary or capricious,” Klinger said, quoting terms used in pertinent controlling cases for such a case as this.

“This court cannot overturn the (City) Commission’s decision. . . As a result, this writ is denied.

Gilkerson still could appeal the issue to the state supreme court. Shortly after Klinger’s decision, he said he was considering it.

Gilkerson has been feuding with Pierre city official for two years over his attempt to find a docking site on the Pierre side of the Missouri River for his paddlewheeler riverboat, Sunset.

After Klinger read her decision, Mehlhaff said he believed Gilkerson did not present enough evidence that he truly was living at the spare quarters on the second floor of his place of business. Gilkerson’s own argument - that his residency at 511 W. Dakota is demonstrated by the fact he used it as his mailing address - was countered by his own testimony that he had lived at other places in Pierre in recent years while always getting his mail at Steamboats Inc., Mehlhaff said.

Even though the June 2 election will proceed, a successful court appeal could mean a special election would have to be called for the single issue of the Pierre mayor’s position being re-voted.