Payne v. Chatman, S97A0252

• Decision Date: 28 April 1997
• Docket Number: No. S97A0252,S97A0252
• Citation: 267 Ga. 873,485 S.E.2d 723
• Parties: , 97 FCDR 1433 PAYNE v. CHATMAN et al.
• Court: Georgia Supreme Court

Page 723

485 S.E.2d 723

267 Ga. 873, 97 FCDR 1433

PAYNE v. CHATMAN et al.

No. S97A0252.

Supreme Court of Georgia.

April 28, 1997.

James Stanley Smith, Jr., Jon Franklin Helton, Nelson, Gillis & Smith, P.C., Dublin, for Cuyler Payne.

Charles A. Mathis, Jr., Walbert & Mathis, Atlanta, for Richard Chatman et al.

HUNSTEIN, Justice.

This is an appeal from an action contesting a primary election that was brought by appellant Cuyler Payne against appellee Richard Chatman and others ¹ following the primary election in Wilkinson County on July 9, 1996. We conclude that the election challenge is now moot and dismiss.

Appellant, an unsuccessful candidate for the Democratic nomination of Sheriff of Wilkinson County, filed this election contest challenging the election results of the July 9, 1996 Democratic primary for which appellee received a majority of the votes and was pronounced the winner on July 10, 1996. Appellant filed his petition contesting the results of the primary in Wilkinson Superior Court on July 15, and on July 18 an order was entered appointing a judge of an adjoining judicial circuit to hear and decide the election challenge. Evidentiary hearings were conducted on July 23 and 25, 1996. By order dated September 5, 1996 and filed four days later, the trial court refused to invalidate the primary election and declared appellee the winner of the Democratic primary for Sheriff of Wilkinson County. ² A notice of appeal was filed on September 10 and the appeal was docketed in this Court on November 6, one day after the November 5, 1996 general election. ³ Enumerations of error and a brief were filed by appellant on November 22, and appellee filed his response brief and a motion to dismiss the appeal as moot on December 16, 1996. Oral argument was requested on November 22, 1996 and the case was assigned to the February 11, 1997 oral argument calendar. At no time prior to the general election did appellant file a motion to expedite or advance consideration of his case or seek a stay of the general election or certification of its results. On December 18, over one month after the general election, appellant filed a motion for supersedeas and stay seeking to stay the January 1, 1997 swearing in of appellee as Wilkinson County Sheriff. The motion was denied on December 27, 1996.

Article 13 of the Georgia Election Code, OCGA § 21-2-520 et seq., embodies the controlling statutes which establish the procedures for contesting both primary and general elections, from commencement of the action to final disposition in the appellate courts. This legislation provides an important procedural framework for the prompt resolution of election contests, including initiation and notice of an election contest (OCGA § 21-2-524), a timely hearing (OCGA § 21-2-525) and an appeal from the final decision of the trial court (OCGA § 21-2-528). The Election Code gives a trial court ample power and discretion to control the election contest process to insure that the proceedings are resolved in a timely manner. OCGA § 21-2-525(c). The Election Code also recognizes the need to expedite an election contest on appeal by allowing a party seeking to challenge an election case to appeal from the final determination of the trial court within ten days from the rendition of the judgement and by allowing an appellate court in deciding an election contest case to consider applications for stays or supersedeas "without regard to whether any notice of appeal has been filed or the record docketed in such cases." OCGA § 21-2-528. Thus, the legislation which provides the right to contest a primary election by providing an explicit framework for dealing with the issues of the contest also sets forth the mechanisms for expediting the action in the trial and appellate courts. In addition to the legislative framework designed to accelerate review of election contests, motions for expedited consideration of election appeals have been granted by this Court to assure that a challenge to an election result is considered in a timely manner. See, e.g., McCranie v. Mullis, 267 Ga. 416, n. 1, 478 S.E.2d 377 (1996); Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981).

Although the Election Code is formulated to provide appellate courts with the authority to entertain applications for stays and supersedeas in primary election challenges for the purpose of protecting the interests of litigants challenging election results, it does not guarantee that a primary election contest will be expedited on appeal or offer a remedy where a primary election contest has not been resolved before the general election. The established rule in Georgia is that a primary election contest becomes moot after the general election has taken place. Ward v. Evans, 253 Ga. 648, 322 S.E.2d 730 (1984); Logan v. Johnson, 247 Ga. 640, 277 S.E.2d 913 (1981); Palmer v. Conner, 247 Ga. 35, 273 S.E.2d 612 (1981); Brooks v. Braziel, 247 Ga. 4, 273 S.E.2d 395 (1981); Carroll v. Cates, 134 Ga.App. 10(1), 213 S.E.2d 120 (1975). ⁴ We are unaware of any case in Georgia in which the results of a general election have been invalidated where the election contest challenging a primary election was not resolved by the time of the general election. Redding v. Balkcom, 246 Ga. 595, 272 S.E.2d 324 (1980), the authority relied upon by appellant as controlling, does not mandate a different result. Redding establishes that appellate courts have the authority to stay confirmation of election results in a general election pending resolution of issues brought in a primary election challenge as long as the issues are timely raised before the general election so as not to be beyond the reach of the court in which the contest is pending. Redding v. Balkcom clearly endorsed the long standing rule that questions involving a primary election are moot "when a candidate attempts to contest a primary election after the holding of the general election." Id. at 596(2), 272 S.E.2d 324.

A review of the record in this case demonstrates that the main responsibility for the untimely consideration of this appeal lies with appellant because he failed to utilize every available means to protect his rights and resolve the election dispute prior to the time all of the issues relating to the primary election had become moot. Although appellant could have instantaneously sought a supersedeas and stay from this Court pursuant to the expedited procedure of the Election Code after the trial court entered its September 5, 1996 order, appellant neglected to request an expedited disposition and neglected in timely fashion to seek extraordinary relief from this Court. Therefore, unlike the situation in Redding v. Balkcom, by the time appellant's appeal and his December 18 application for stay seeking to prevent the swearing-in of appellee had been filed, the results of the general election declaring the winner of the Wilkinson County Sheriff's race had been certified for over one month.

Appellant maintains that even though the issue is moot we should consider the merits of the appeal in order to best serve the interests of the electors of Wilkinson County. The "mootness doctrine" which recognizes that certain technically moot...