McKye v. State Election Bd. of State of Oklahoma

• Decision Date: 28 February 1995
• Docket Number: No. 84718,84718
• Citation: 1995 OK 15,890 P.2d 954
• Parties: Brian McKYE, Petitioner, v. The STATE ELECTION BOARD OF the STATE OF OKLAHOMA; The Honorable Lance Ward, in his capacity as Secretary of the State Election Board; The Honorable Carolyn Ricks, Judge of the District Court of Oklahoma County, State of Oklahoma; The Honorable Glen D. Johnson, in his capacity as Speaker of the Oklahoma House of Representatives, and Debbie Blackburn, Respondents.
• Court: Oklahoma Supreme Court

Page 954

890 P.2d 954

1995 OK 15

Brian McKYE, Petitioner, v. The STATE ELECTION BOARD OF the STATE OF OKLAHOMA; The Honorable Lance Ward, in his capacity as Secretary of the State Election Board; The Honorable Carolyn Ricks, Judge of the District Court of Oklahoma County, State of Oklahoma The Honorable Glen D. Johnson, in his capacity as Speaker of the Oklahoma House of Representatives, and Debbie Blackburn Respondents.

No. 84718.

Supreme Court of Oklahoma.

Feb. 28, 1995.

Application for Mandamus and Quo Warranto.

Petitioner, Brian McKye, filed an election contest with the State Election Board, and the Honorable Carolyn R. Ricks, Judge of the District Court, ruled against him. His opponent was issued a certificate of election and took the oath of office. McKye filed an original action in this Court.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; APPLICATION FOR MANDAMUS AND QUO WARRANTO DENIED.

Joe Heaton, Fuller, Tubb & Pomeroy, Oklahoma City, for petitioner.

Neal Leader, Sr. Asst. Atty. Gen., Oklahoma City, for respondents Johnson, Ward and the State Election Bd.

Lee Slater, York & Slater, Oklahoma City, for respondent Blackburn.

SUMMERS, Justice.

When the votes were counted after last November's general election Brian McKye was 29 votes short in his race for State Representative, District 88. Neither a recount nor a District Court hearing on alleged irregularities changed the result. He now asks that we assume original jurisdiction and grant relief by way of mandamus or quo warranto. We assume original jurisdiction, but deny relief for reasons to be explained.

Debbie Blackburn was the successful candidate. McKye (1) sought a recount and (2) filed a petition alleging irregularities. The recount increased the margin of Blackburn's win by one vote. The irregularities alleged were that certain voters had moved from the district and had not changed their registration. The District Judge denied the petition for irregularities, and directed the State Election Board to issue a certificate of election to Blackburn.

The District Judge's decision was at approximately 10:30 A.M. on November 22, 1994. The certificate of election was issued at approximately 12:00 noon that day, and Blackburn took the oath of office shortly thereafter. More than two weeks later, on December 7, 1994, McKye filed an application in this Court for mandamus and quo warranto to require Blackburn to vacate the office, and for the District Judge to hold an evidentiary hearing on the residency of certain voters.

Petitions alleging irregularities and requesting a recount must be filed by the Friday next following an election. 26 O.S.1991 § 8-109. That Friday fell on November 11, 1994. November 11th is Veterans' Day and an official State Holiday. 25 O.S.1991 § 82.1. Section 82.1 states that "Any act authorized, required, or permitted to be performed on a holiday as designated in this section may be performed on the next succeeding business day, and no liability or loss of rights of any kind shall result from such delay." The petition alleging irregularities and requesting a recount was filed Monday, November 14, 1994, so it was timely. 25 O.S.1991 § 82.1; Hendrix v. State ex rel. Okla. State Election Bd., 554 P.2d 770, 772 (Okla.1976).

The action in this Court was styled as an application for mandamus and quo warranto. This action is not an appeal from the lower tribunal, but an independent, original action. We are empowered by Okla. Const. Art. 7 § 4 to review by an independent action the correctness of a ruling by an election board that may affect the outcome of an election. Boevers v. Election Bd. of Canadian County, 640 P.2d 1333, 1335 (Okla.1981); Box v. State Election Bd., 526 P.2d 936, 939 (Okla.1974); Sparks v. State Election Board, 392 P.2d 711, 712 (1964), (Syllabus by the Court). We assume original jurisdiction. However, the relief sought is Constitutionally forbidden, and we do not reach the question of voter residency.

I. Mandamus

Insofar as Petitioner seeks a writ of mandamus against the Election Board which has certified the election of Blackburn, that relief would be improper. Mandamus has been used to gain possession of office by one who has title to the office by a certificate of election, but title to the office may not be tried in a mandamus proceeding. Elliott v. State ex rel. Kirkpatrick, 150 Okla. 275, 1 P.2d 370, 371 (1931), Rasure v. Sparks, 75 Okla. 181, 183 P. 495, 497 (1919). A mandamus proceeding does not look behind a certificate of election unless that certificate is void. Jewitt v. West, 33 Okla. 703, 127 P. 476, 478 (1912); Ellis v. Armstrong, 28 Okla. 311, 114 P. 327, 328 (1911); State ex rel. Love v. Smith, 43 Okla. 231, 142 P. 408, 410 (1914). This mandamus proceeding cannot go behind the certificate of election and try title to office based upon alleged irregularities.

Petitioner also seeks mandamus to require the trial court to take further action. We have stated that the right to contest an election by extraordinary relief may be lost by laches or inexcusable delay. Evans v. State Election Board, 804 P.2d 1125 (Okla.1990). For example, in Evans we cited Harding v. State Election Board, 197 Okla. 291, 170 P.2d 208 (1946) for the proposition that a delay of ten days in bringing an action for extraordinary relief against the Election Board was not diligent and barred by laches. Evans, 804 P.2d at 1127-1128. A writ of mandamus to require the lower tribunal to take additional action, as requested here, would result in reopening a petition for irregularities after the issuance of a certificate of election, a result inconsistent with the statutory ideal of completing such a proceeding before a certificate of election is issued. 26 O.S.1991 § 8-120; Moore v. Hayes, 744 P.2d 934, 942 (Okla.1987). On the other hand, petitioner correctly points out that this Court has the power to order an election board to cancel or void a certificate of election, and has done so in the past. Hembree v. City of Stillwell, 597 P.2d 1218, 1221 (Okla.1979); Stover v. Alfalfa County Election Board, 530 P.2d 1020, 1023 (Okla.1975). We need not, however, labor with the timeliness of his post-certification mandamus action here except as it implicates the ultimate impediment to our hearing his election challenge: Art. 5 § 30 of the Oklahoma Constitution. It is upon this provision that we must deny Petitioner any relief, as we are about to explain.

II. Quo Warranto

This action is also styled as an application for quo warranto. A proceeding in the nature of quo warranto may be brought by a contestant for an office after the issuance of the certificate of election and before the expiration of thirty days after such official is inducted into office. 12 O.S.1991 § 1531. The certificate of election issued November 22, 1994 and this action was filed December 7, 1994. The quo warranto aspect of the action is timely filed pursuant to the letter of the quo warranto statute. But that does not solve the question of whether it was timely under Okla. Const. Art. 5 § 30.

Whether Blackburn has become a member of the House of Representatives makes the difference as to whether this Court or the Legislature should hear Petitioner's claim. The impediment to our hearing Petitioner's challenge, referred to earlier, is one unique to the elections of State Representatives and Senators, and is set in our Constitution. The Oklahoma Constitution, Article 5 § 30, states in part:

Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalty as each House may provide. (emphasis added)

If Blackburn is a "member" of the House of Representatives we must yield jurisdiction to the House. In construing the provision that each House is the judge of the elections of its members we have stated that the provision has no force until after an election. Williamson v. State Election Bd., 431 P.2d 352, 355 (Okla.1967); State ex rel. Cloud v. State Election Bd., 169 Okla. 363, 36 P.2d 20, 22 (1934).

When is "after an election" for the purpose of Art. 5 § 30? A timely filed election challenge is part of the election-return process. Simpson v. Dixon, 853 P.2d 176, 185 (Okla.1993). A timely recount is an integral part of an election. Wickersham v. State Election Bd., 357 P.2d 421, 425 (Okla.1960). The issuance of a certificate of election is also part of the election process. Williamson, 431 P.2d at 355. These are examples of when this Court has reviewed proceedings occurring before an election is completed. We have also said that induction into office completes the election process. Pinson v. Robertson, 197 Okla. 419, 172 P.2d 625 (1946).

An elected official who possesses a valid certificate of election, takes and files the required oath, and fulfills any bonding requirement, is inducted into office when that official's term begins. In Pinson v. Robertson, supra, we explained that an individual possessing a certificate of election who filed his oath of office and bond on January 2, 1945 was inducted into office within the meaning of 12 O.S.1941 § 1531 when his term for County Judge began on January 8, 1945. Id. 172 P.2d at 626.¹ When did the legislative term begin in our case today?

The term of office for certain executive officials is set by the Constitution, and begins in January next following the general election.² Legislative terms begin in November following the general election. Terms in the House and Senate start fifteen days after the general election in November with terms expiring fifteen days after the date of the general election. Gragg v. Dudley, 143 Okla. 281, 289 P. 254, 256 (1930); Coyle v. Smith, 28 Okla. 121, 113 P. 944, 946-947, aff'd., 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911); ...