Whalum v. Shelby Cnty. Election Comm'n
| Decision Date | 30 September 2014 |
| Docket Number | No. W2013-02076-COA-R3-CV,W2013-02076-COA-R3-CV |
| Court | Tennessee Court of Appeals |
| Parties | KENNETH T. WHALUM, JR. v. SHELBY COUNTY ELECTION COMMISSION |
Appeal from the Chancery Court for Shelby County
Kenny W. Armstrong, Chancellor
This is an election contest case between the declared winner of a school board race in Shelby County and an unsuccessful candidate. The trial court invalidated the election on the ground that there was "clear uncertainty about the election outcome." On appeal, the declared winner of the race argues: (1) the unsuccessful candidate has no standing to prosecute his election contest; (2) the trial court erred in failing to dismiss the case pursuant to Tennessee Code Annotated Section 5-1-111 (a); and (3) the trial court erred in invalidating the election pursuant to Emery v. Robertson County Election Commission, 586 S.W.2d 103 (Tenn. 1979). We hold that the unsuccessful candidate maintains standing to prosecute this appeal, and that his claim is not moot. Additionally, we affirm the trial court's denial of the declared winner of the race's motion to dismiss, but reverse as to the trial court's judgment declaring the election invalid and ordering a new election. Affirmed in part, reversed in part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which DONALD E. PARISH, SP.J. joined and FRANK G. CLEMENT, JR., P.J., M.S., filed a separate concurring and dissenting opinion.
Jef Feibelman and Charles S. Higgins, Memphis, Tennessee, for the appellant, Kevin Woods.
Robert L. J. Spence, Jr. And Kristin A. Woo, Memphis, Tennessee, for the appellee, Kenneth T. Whalum, Jr.
Background
Intervening Defendant/Appellant Kevin Woods and Plaintiff/Appellee Reverend Kenneth T. Whalum, Jr. were candidates in the District 4 election to the Shelby County School Board ("the School Board") on August 2, 2012. At the time of the election, Mr. Woods was declared the victor by a margin of 106 votes.1 The Defendant Shelby County Election Commission ("the Election Commission") certified the results of the District 4 election on August 20, 2012. On August 22, 2012, Reverend Whalum filed a timely election contest, arguing that the Election Commission had erroneously assigned District 4 voters to other districts and also assigned residents from other districts to vote in the District 4 School Board race. Mr. Woods, as the winner of the District 4 election, intervened.
The August 2, 2012 Election
The material facts in this case are not in dispute. The Shelby County Commission ("County Commission") is required by law to redistrict the county every ten years for purposes of setting its own election boundaries. See Tenn. Code Ann. § 5-1-111(a) (); Tenn. Code Ann. § 5-1-111(d) (). The School Board districts are based on the districts created by the County Commission. The County Commission was required to complete redistricting well in advance of the August 2, 2012 election. The Election Commission was then responsible for assigning registered voters to the recently established state and local legislative districts.
The County Commission, however, did not complete redistricting on time. In anticipation of redistricting being completed in compliance with State law, however, the Election Commission attempted to begin the redistricting process prior to the County Commission formally adopting a redistricting plan. Specifically, the Election Commission used a computer program to assign voters to different districts, as well as consolidate voting precincts in anticipation of the changes expected to be adopted by the County Commission. In June of 2012, however, it became clear that the County Commission would be unable tocomplete redistricting prior to the August 2, 2012 election. Thus, the Election Commission was required to "undo" the work it had completed toward redistricting and return voters to their previously assigned districts. Rather than returning to the previous precinct map, however, on June 14, 2012, the Election Commission opted to continue to consolidate precinct locations, despite the fact that this decision caused even greater confusion.
During the course of early voting, the Election Commission became aware of errors regarding some voter assignments with regard to the District 4 election. No voters were informed of the errors during early voting; thus, the errors in early voting were never corrected. The regular election commenced as planned on August 2, 2012. No irregularities were reported for voting on that date. Despite these errors, the Shelby County Election Commission certified the results of the District 4 election, indicating that Mr. Woods won the District 4 School Board seat by a margin of 106 votes. A later analysis of the voting records revealed that 281 voters who resided in District 4 ("legally qualified voters") were not allowed to vote in District 4 because they had been assigned to other districts. An additional 556 individuals were erroneously assigned to District 4 ("out-of-district voters") and, of these 556 out-of-district voters, is was undisputed that 93 voted for Mr. Woods and 277 voted for Reverend Whalum. The Election Commission was unable to determine who the remaining 186 voters of the 556 out-of-district voters voted for in the District 4 School Board race. After correcting the election results to remove the 370 ineligible votes that could be clearly attributed to each candidate (i.e, the 93 votes for Mr. Woods and the 277 votes for Reverend Whalum, Mr. Woods's margin of victory increased to 290 votes.2
Proceedings in the Trial Court
As previously discussed, shortly after the certification of the election results, Reverend Whalum filed an election contest complaint in the Shelby County Chancery Court. Concurrent with the filing of his complaint, Reverend Whalum also filed several requests for discovery and a motion for an expedited status conference, ostensibly in an effort to comply with Tennessee Code Annotated Section 2-17-106(a), which requires that a trial in an election contest case "shall be held not less than fifteen (15) nor more than fifty (50) days from the day the complaint is filed and not less than ten (10) days after the complaint is served on the defendant." According to Reverend Whalum, however, progress stagnated due to the Election Commission's failure to timely respond to discovery. On March 20, 2013, Mr. Woods filed a motion for summary judgment, arguing that the case should bedismissed due to Reverend Whalum's failure to comply with Tennessee Code Annotated Section 2-17-106(a). The trial court did not enter a specific order on Mr. Woods's motion, but instead, the parties proceeded to trial.
A trial took place on May 21, 2013. At trial, when asked about the pending motion for summary judgment based upon Tennessee Code Annotated Section 2-17-106(a), counsel for Mr. Woods indicated that he did not intend to argue that motion, but merely meant to preserve that issue for appellate purposes. Despite counsel's statement, however, the trial court determined that the appropriate course of action was to rule on the motion.3 Accordingly, the trial court denied the motion on two grounds. First, the trial court noted that the trial was commenced within fifty days of the filing of the election contest complaint, stating that:
I'll note for the record that the trial was set earlier, and at the request of the parties we started the trial with some very limited comments; and then we continued the trial date to this date. So for the purposes of the record, the trial was in fact started within the 50-day requirement statute.
In the alternative, the trial court ruled that the fifty-day requirement was not jurisdictional and that the trial court, in its discretion, may set a trial date outside of the fifty-day limit.
The trial consisted of the entry of stipulated exhibits, previously filed depositions, and arguments of counsel. At the conclusion of the trial, the trial court took the matter under advisement. The trial court later entered a Memorandum Opinion on August 27, 2013, finding in favor of Reverend Whalum.
In its Memorandum Opinion, the trial court explained that it had applied the two-prong test established in Emery v. Robertson County Election Commission, 586 S.W.2d 103 (Tenn. 1979), known as "Emery Prong I and II." Specifically, the trial court ruled that Reverend Whalum failed on Emery Prong I, where an election can be set aside when "theevidence reveals that the number of illegal ballots cast equals or exceeds the difference between the two candidates receiving the most votes." Emery, 586 S.W.2d at 108. The central dispute with regard to this prong was whether the 281 legally qualified voters of District 4 who were incorrectly given ballots for other districts should be considered in determining the number of illegal votes cast pursuant to the Tennessee Supreme Court's holding in Taylor v. Armentrout, 632 S.W.2d 107 (Tenn. 1981) (). After reviewing caselaw on the subject, the trial court reluctantly found that the 281 legally qualified voters' votes should not be included in the Prong I analysis. After excluding those votes, the trial court concluded that Reverend Whalum's election contest failed under Emery Prong I.
The trial court concluded, however, that Reverend Whalum succeeded...
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