116 A.3d 419
Del.2015Background
- In the Nov. 4, 2014 Kent County Recorder of Deeds race Gunn was initially certified the winner by the Department of Elections by 2 votes; absentee and machine totals were close.
- On Nov. 6 two Superior Court judges, sitting as the constitutional Board of Canvass for Kent County, performed three absentee recounts that produced three different outcomes and certified the third recount putting McKenna ahead by two votes.
- Gunn filed a verified election-contest petition (Nov. 13) under 15 Del. C. § 5941(1), alleging "malconduct on the part of election officers or clerks" because the Board of Canvass’s three recounts produced differing results and certified the third recount.
- McKenna moved to dismiss, arguing the petition failed to allege facts conferring statutory jurisdiction because the Board judges are not "election officers or clerks holding the election" under § 5941(1).
- A single Superior Court judge denied dismissal, found malconduct, ordered a hand recount of absentee ballots and declared the Recorder of Deeds office vacant after the recount produced a tie; Gunn appealed to the Delaware Supreme Court.
- The Supreme Court held the petition did not plead malconduct by the statutory class of "election officers or clerks," so the Superior Court lacked jurisdiction under § 5941 and its judgment must be vacated; the Board of Canvass certification stands unless challenged via the Supreme Court’s original writ jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two Superior Court judges sitting as the Board of Canvass are "election officers or clerks holding the election" under 15 Del. C. § 5941(1) | Gunn: The Board’s anomalous recount conduct is "malconduct" by election officers and fits § 5941(1) | McKenna: Board judges are not "election officers or clerks" under the statute, so § 5941 doesn’t confer jurisdiction | Held: Board judges are not "election officers or clerks;" § 5941 does not apply, so Superior Court lacked jurisdiction |
| Whether the single Superior Court judge properly exercised Article IV judicial power to adjudicate alleged misconduct by the Board of Canvass | Gunn: Single judge may hear contest under § 5941 alleging malconduct by those who certified results | McKenna: Article V Board-of-Canvass actions are separate; alleged conduct by the Board must be reviewed via Supreme Court original writs, not § 5941 contest | Held: Alleged misconduct by the Board of Canvass cannot be the subject of a § 5941 contest before a single Article IV judge; remedy lies in Supreme Court original jurisdiction |
| Whether challenge to subject-matter jurisdiction raised on appeal or by cross-appeal | McKenna: Jurisdictional defect may be raised even without cross-appeal; requires dismissal | Gunn: McKenna’s failure to cross-appeal bars the argument | Held: Subject-matter jurisdiction can be raised at any time (sua sponte or by parties); dismissal required if lacking |
| Remedy and final disposition | Gunn sought relief via election contest and recount | McKenna sought dismissal; maintained Board certification was final absent proper writ | Held: Remanded with directions to vacate Superior Court’s Dec. 30 judgment; Board of Canvass certification is final absent a timely, proper writ to the Supreme Court |
Key Cases Cited
- Kontrick v. Ryan, 540 U.S. 443 (U.S. 2004) (subject-matter jurisdiction may be raised at any time)
- State ex rel. Walker v. Harrington, 27 A.2d 67 (Del. 1942) (Superior Court as Board of Canvass is a constitutional function distinct from its Article IV judicial role)
- State ex rel. Mitchell v. Wolcott, 83 A.2d 762 (Del. 1951) (Board of Canvass duties are largely ministerial; misconduct claims against election officers are to be adjudicated under Article IV, not by the Board acting under Article V)
- State v. Insley, 141 A.2d 619 (Del. 1958) (statute inapplicable affords no basis for exercise of jurisdiction)