Johnson v. Case
| Decision Date | 15 June 2020 |
| Docket Number | No. 19-1018,19-1018 |
| Citation | 844 S.E.2d 153 |
| Court | West Virginia Supreme Court |
| Parties | Hardwick Smith JOHNSON, Charlotte Ward Thompson, Marjorie Flynn Yost, and Barbara Humes, Defendants Below, Petitioners v. Nancy Singleton CASE and Deborah A. McGee, Plaintiffs Below, Respondents |
J. Zak Richie, Esq., Ryan McCune Donovan, Esq., Hissam Forman Donovan Richie, PLLC, Charleston West Virginia, Attorneys for Petitioners.
Gregory A. Bailey, Esq., J. Daniel Kirkland, Esq., Arnold & Bailey, PLLC, Charles Town, West Virginia, Attorneys for Respondents.
Patrick Morrisey, Esq., Attorney General, Curtis R. A. Capehart, Esq., Deputy Attorney General, Thomas T. Lampman, Esq., Assistant Solicitor General, Charleston, West Virginia, Attorneys for Amicus Curiae, Mac Warner, Secretary of State of WV.
This case is before this Court upon an appeal of a November 6, 2019, order of the Circuit Court of Jefferson County that reversed, in part, an order declaring the results for a town council election that was entered by the Harpers Ferry Election Contest Tribunal ("Tribunal") following an election contest trial. The circuit court found that the Tribunal erred by concluding that four provisional ballots cast during the Harper Ferry municipal election on June 11, 2019, should not be counted. In this appeal, the petitioners, Hardwick Smith Johnson, Charlotte Ward Thompson, Marjorie Flynn Yost, and Barbara Humes, who are the contestees,1 argue that the circuit court erroneously substituted its view of the evidence to find that the four provisional ballots should have been counted. The respondents, Nancy Singleton Case and Deborah A. McGee, who are the contesters, assert that the circuit court's order should be affirmed with respect to the finding regarding the provisional ballots. However, the respondents cross-assign error2 to the circuit court's decision to uphold the Tribunal's conclusion that respondent Case lacked standing to participate in the election contest because she failed to post the requisite bond for the recount of the votes. The respondents also contend the circuit court erred by failing to rule that two town council members were disqualified from serving on the Tribunal.3
Having considered the parties’ briefs and oral arguments, the submitted record, and pertinent authorities, we affirm, in part, and reverse, in part, the circuit court's order and remand this case for entry of an order consistent with this opinion.
The town of Harpers Ferry held a municipal election on June 11, 2019. Among the offices subject to election were five at-large seats on the Harpers Ferry Town Council. The candidates for the town council seats and the number of votes recorded for each on election day were as follows: Barbara Humes, 91 votes; Jay Premack, 87 votes; Hardwick Johnson, 85 votes; Christian Pechuekonis, 84 votes; Charlotte Thompson, 84 votes; Nancy Singleton Case, 82 votes; Deborah McGee, 81 votes; Marjorie Flynn Yost, 81 votes; and Leah Howell, 15 votes. As the vote count illustrates, respondent McGee lost by three votes and respondent Case lost by two votes.4 On June 19, 2019, respondent McGee submitted a letter asking for a recount and tendered a check for the $175.00 bond that had been set by the Board of Canvassers to cover the cost of any recount. According to respondent Case, she also requested a recount by email that same day but did not post the bond.5
The recount was held on June 26, 2019, and there was no change in the result. Only the ballots previously accepted by the Board of Canvassers were recounted; no provisional ballots were considered. Thereafter, the election results were certified, and on June 29, 2019, the five incoming members of the town council, including petitioners Johnson, Thompson, and Humes, were sworn in.
On July 8, 2019, respondents McGee and Case timely filed a joint petition to contest the election results alleging that five citizens of Harpers Ferry were denied the right to vote based upon erroneous records that indicated that they did not reside in Harpers Ferry. These citizens, Linda McCarty, George McCarty, Adam Hutton, Leah Howell,6 and Jane Mumaw, voted by provisional ballot on election day. Subsequently, the petitioners abandoned their claim with respect to Ms. Mumaw upon receipt of information indicating she was registered to vote in another county. The other four provisional voters resided on Washington Street in Harpers Ferry, and the respondents asserted that their votes should have been counted. The provisional voters had each registered to vote through the West Virginia Department of Motor Vehicles ("DMV"),7 which had listed their street address as "West Washington Street," which is located in the neighboring municipality of Bolivar. Consequently, their names did not appear in the Harpers Ferry poll book on election day.
An election contest trial was held on August 24, 2019. Pursuant to West Virginia Code § 3-7-6 (2002), "the governing body of the municipality is the judge of any contest of a municipal election."8 The codified ordinances of Harpers Ferry provide that the town council is "the governing body of the town" and consists of "five Councilmembers, plus the Mayor and the Recorder."9 Thus, the members of the Tribunal were the mayor, Wayne Bishop; the recorder, Kevin Carden; and newly elected council members, Barbara Humes, Hardwick Johnson, Charlotte Thompson, and Jay Premack. Council member Christian Pechuekonis declined to participate in the election contest. During the proceeding, the respondents objected to petitioners Johnson and Thompson serving on the Tribunal because their election to the town council was being contested. The Tribunal concluded, however, that it "ha[d] no legal authority to compel any one or more of its members to disqualify themselves from participating in any business that comes before the Town Council" and that "[d]isqualification is determined and undertaken on an individual basis."
During the election contest trial, the respondents called three of the provisional voters—Linda McCarty, George McCarty, and Adam Hutton—to testify along with Nikki Painter, Chief Deputy Clerk of Elections for the Jefferson County Voter Registration and Elections Office. The McCartys testified that when they registered to vote at the DMV, they were told that their street address needed to be identified as "West Washington Street" as opposed to just "Washington Street" because that was the way their address appeared in the DMV's electronic system. The McCartys further testified that they explained to the DMV employee that they did not live on "West Washington Street" but their efforts to have the correct address put into the system were unsuccessful. The McCartys stated that they did not understand the importance of the address distinction until they attempted to vote during the June 11, 2019, election and were told that they were not listed in the Harpers Ferry poll book. Consequently, they were required to cast provisional ballots.
Similarly, Adam Hutton testified that he used "900 West Washington Street" when he registered to vote at the DMV because that was the address assigned to him by the U.S. Postal Service. Like the McCartys, Mr. Hutton only became aware that he was listed in the poll book for Bolivar, rather than Harpers Ferry, when he attempted to vote on June 11, 2019. He was also required to cast a provisional ballot.
Ms. Painter testified that when the matter was brought to her attention, she investigated to determine why the provisional voters were listed in the poll book for Bolivar, the neighboring municipality.10 She explained that the "West" designation in the provisional voters’ addresses was a technical error that caused her to mistakenly list the provisional voters in the Bolivar poll book. Ms. Painter testified that all four provisional voters do in fact live in Harpers Ferry, and they should have been listed in the Harpers Ferry poll book. She indicated that she had corrected the official county voting records to properly reflect that all four provisional voters are Harpers Ferry residents.
Following the trial, the Tribunal, by a vote of four-to-two,11 entered an order on September 11, 2019, declining to count the provisional ballots and refusing to modify the election certification. The Tribunal also found that respondent Case lacked standing to participate in the election contest because she failed to post the bond required for the recount of the votes. The respondents timely appealed the decision to the circuit court.12 Following oral arguments, the circuit court entered its November 6, 2019, order reversing the Tribunal's decision to not count the provisional ballots. However, the circuit court upheld the Tribunal's decision that respondent Case lacked standing to participate in the election contest because she failed to post the requisite bond within forty-eight hours of filing her request for a recount. Having reached the merits of the case, the circuit court did not address the respondents’ argument that certain members of the Tribunal were disqualified because their election to the town council was being contested. Upon entry of the circuit court's order, this appeal followed.
The standard of review for election contests has long been established. In syllabus point six of Brooks v. Crum , 158 W.Va. 882, 216 S.E.2d 220 (1975), this Court held:
While the appellate court may examine the record in the review of election contests in order to reach an independent conclusion, it merely determines whether the conclusions of law are warranted by the findings of fact, and it will not, as a general rule, disturb findings of fact on conflicting evidence unless such findings are manifestly wrong or against the weight of the evidence.
However, with respect to questions of law that arise in election contests cases, our review is de novo. State ex rel. Bowling v....
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