Gunn v. McKennaGunn v. McKenna
Julianne E. Murray, Esquire, (argued), Ronald D. Phillips, Jr., Esquire, Murray Phillips, P.A., Georgetown, Delaware, Attorneys for Petitioner-Below, Appellant.
Before STRINE, Chief Justice, HOLLAND, VALIHURA, Justices, NOBLE1, Vice-Chancellor, and WALLS1, Judge.
HOLLAND, Justice:
This is an appeal by the Petitioner-Below/Appellant, La Mar Gunn (Gunn), from the December 30, 2014, judgment of the Superior Court declaring a tie in the November 4, 2014, general election for the Office of the Recorder of Deeds for Kent County (the Election). This action is an election contest under
In response to McKenna‘s Motion to Dismiss, Gunn argued that the Petition stated a claim under
In this appeal, McKenna contends that the single judge of the Superior Court missed the key point in her Motion to Dismiss, to-wit: the two judges of the Superior Court sitting as the Board of Canvass, are not election officers or clerks holding the election. Accordingly, McKenna asserts that the claims asserted by Gunn‘s Petition do not fit within the jurisdictional requirements of
Gunn argues that McKenna‘s jurisdictional argument is procedurally barred because McKenna did not file a cross-appeal. However, for more than two centuries, the United States Supreme Court has recognized that [a] litigant generally
We have concluded that Gunn‘s Petition fails to allege any malconduct on the part of election officers or clerks holding the election, within the meaning of
Facts
This appeal relates to the November 4, 2014, general election for the Office of the Recorder of Deeds for Kent County. On November 4, 2014, the Department of Elections declared that Gunn won the Election by two votes, 19,247 to 19,245. Gunn rеceived 18,558 machine votes and 689 absentee votes. McKenna received 18,455 machine votes and 800 absentee votes.
On November 6, 2014, two judges of the Superior Court, sitting as the Board of Canvass in Kent County, convened to certify the Election results, as required by
On November 13, 2014, Gunn filed a verified Petition in the Superior Court contesting the Election results and alleging malconduct pursuаnt to
In its December 23, 2014, decision and order, a single judge of the Superior Court
On December 30, 2014, pursuant to
Superior Court Jurisdiction
We began our analysis by examining the jurisdiction that is vested in the Superior Court by the Delaware Constitution in Articles IV and V. Article IV of the Constitution is entitled Judiciary, and Section 7 of it provides as follows:
Section 7. The Superior Court shall have jurisdiction of all causes of a civil nature, real, personal and mixed, at common law and all the other jurisdiction and powers vested by the laws of this State in the formerly existing Superior Court; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of General Sessions of the Peace and Jail Delivery; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of General Sessions; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of Oyer and Terminer.8
Article V of the Constitution is entitled Elections. Section 6 provides for the Superior Court to canvass the votes of the general election in the respective counties, as follows:
Section 6. Said presiding election officer of each election district, following the close of the polls on the day of the general election, shall deliver the coy of each voting machine recоrding tape containing the signatures of the election officers present at the opening and closing of the polls from each voting machine assigned to his or her district and one copy of the voting machine certificate, made and certified by law, together with the ballot box or ballot boxes containing absentee ballots and other papers required by law to be placed therein, to the Prothonotary of the Superior Court of the county, who at 10 o‘clock on the second day after the election present the same to the said Court, and the said Court shall at the same time convene for the performance of the duties hereby imposed upon it; and thereupon the said Court, with the aid of such of its officers and such sworn assistants as it shall appoint, shall publicly ascertain the state of the election throughout the county, by determining the aggrеgate number of votes for each office given in the election districts of the county and for every person who received votes for each office....
For the purposes of this section the Superior Court shall consist in New Castle County of the President Judge and resident Judge; in Kent County of the resident Judge and a Judge designated by the President Judge; and in Sussex County of the resident Judge and a Judge designated by the President Judge.9
We think that the Superior Court sitting as a Board of Canvass is the Superior Court established by said Article IV. Manifestly, under our Constitution, there is but one Superior Court. Its jurisdiction, which is coextensive with the State, is conferred by Sections 5 and 11 of Article IV of the Constitution, its duties, with respect to elections, are defined in Section 6 of Article V of the Constitution, and it is the Superior Court referred to in paragraph (5), Section 12 of Article IV of the Constitution. The fact that said Section of Article V provides that for the purposes of the section the Chancellor shall be a member of the Court in Kent County does not evidence the creation of more than one Superior Court.11
Since Walker was decided, Article V of the Delaware Constitution has been amended to remove the Chancellor as a member of the Superior Court, sitting as the Board of Canvass in Kent County. The Delaware Constitution now provides that two judges of the Superior Court will sit as the Board of Canvass in each county. This compels the conclusion that there is still only one Superior Court and its jurisdiction continues to be defined separately in the Judicial Article IV and the Election Article V of the Delaware Constitution. Those differences are dispositive in this appeal.
Board of Canvass
In State ex rel. Mitchell v. Wolcott, 83 A.2d 762 (Del. 1951), this Court was asked to decide whether thе Superior Court, sitting as a Board of Canvass to ascertain the state of the election, could take cognizance of a charge that the election officers unlawfully held open the polls for a period of time beyond the legal closing hour of the election, and received and counted ballots tendered during that period.12 In answering that question we noted that [p]rior to the adoption of the Delaware Constitution of 1897, the election laws provided for county boards of canvass consisting of the inspectors of the hundreds in each county and the sheriff of the county.13 Their duty was to ascertain the state of the election throughout the county, by calculating the aggregate amount of all the votes for each office that shall have been given, in all the hundreds of the county, for every person voted for such office.14 Prior to 1897, the Court of Errors аnd Appeals held the powers of the county boards of canvass was, in general, ministerial, and not discretionary or
The question presented in Mitchell was: to what extent were the powers and duties of the county boards of canvass enlarged when those responsibilities were conferred upon the Superior Court by the Delaware Constitution of 1897? In Mitchell, this Court held:
[T]he Superior Court is, under the [1897] Constitution, still primarily a board of canvass whose function is to count the vote. Granting that it is the Superiоr Court for the purpose of review of its action by writ of mandamus from this Court, State ex rel. Walker v. Harrington, 3 Terry 14, 42 Del. 14, 27 A.2d 67, it yet remains true that it is a body specially created and constituted for a limited purpose, to perform specified duties, largely ministerial in nature. The framers of the [1897] Constitution, in transferring to the Superior Court the powers and duties of the former boards of canvass, added certain specified powers and none others. Had it been the intent to confer upon thе new Boards general power over the conduct of elections as affecting the returns, language to that effect would certainly have been included.16
More importantly, for purposes of this case, in Mitchell, we held that [a] defeated candidate claiming, among other things, malconduct of the election officers or the reception of illegal votes is afforded a remedy in the Superior Court as such,17 i.e., sitting with its Article IV judicial jurisdiction rather than its Article V Board of Canvass jurisdiction. In particular, in Mitchell, we recognized that if the relators’ contention was accepted, the issue of election officers’ misconduct is first tried before two judges of the Superior Court, sitting as the Board of Canvass, and the losing candidate could then re-try it before a single judge of the Superior Court.18 We concluded that [s]uch an anomalous result is to be shunned.19
Accordingly, we held that the duties of the [Superior Court sitting as] the Board of Canvass under Sectiоn 6 of Article V of the [Delaware] Constitution were largely ministerial in nature and did not include the [Article IV judicial] power to try an issue of misconduct of the election officers.20 Therefore, we held such a remedy is available under
Election Contest Jurisdiction
The jurisdiction to hear election contests is vested in the Superior Court by statute. The Superior Court discharges that judiciаl responsibility under Article IV of the Delaware Constitution. The jurisdictional issue presented in this appeal is whether two Superior Court judges sitting as the Board of Canvass are election officers for purposes of
Any person claiming to be elected to an office to be exercised in and for any county, district or hundred may contest
the right of any person declared to be duly elected to such office for any of the following causes: (1) For malconduct on the part of the election officers or clerks holding the election, or any one of them;
(2) When the person whose right to the office is contested was not at the time of the election eligible to such office;
(3) When the person whose right is contested has given to any elector or inspector, judge or clerk of election, any bribe or reward or shall have offered any bribe or reward for the purpose of procuring his or her election;
(4) On account of illegal votes.22
In Chapter 47 (entitled Election Officers),
Chapter 49 of Title 15 (entitled Conduct of Election) contains several provisions which make it clear that the election officers or clerks holding the election are the officials engaged by the Department of Elections to oversee the casting of ballots оn Election Day. For example,
If on the day of holding an election any election officer authorized by law to serve at the election in any election district shall be absent from the place of election at 7:00 in the forenoon, the inspector, if present, or, in the absence of the inspector, then any judge who may be present, shall immediately notify the department of elections for that inspector‘s or judge‘s county of such absence.26
Conversely,
We hold that the Delaware Constitution and applicable provisions of Title 15 demonstrate that the election officers or clerks holding the election are the officials engaged by the Department of Elections to oversee the casting of ballots on Election Day and not the two judges оf the one Superior Court, sitting as the Board of Canvass, who certify and proclaim the results two days later.31
Supreme Court Jurisdiction
Gunn argues that unless the conduct of two judges of the Superior Court, sitting as the Board of Canvass, can be examined in a statutory election contest, those actions can never be reviewed. Gunn‘s argument reflects a misunderstanding of this Court‘s jurisdiction and its prior precedents. This Court‘s original and appellate jurisdiction under the Delaware Cоnstitution is found in Article IV. The following two subsections are relevant.
Section 11. The Supreme Court shall have jurisdiction as follows:
(1)(a) [Appellate jurisdiction] To receive appeals from the Superior Court in civil causes and to determine finally all matters of appeal in the interlocutory or final judgments and other proceedings of said Superior Court in civil causes.
(5) [Original jurisdiction] To issue writs of prohibition, quo warranto, certiorari and mаndamus to the Superior Court, and the Court of Chancery, or any of the Judges of the said courts and also to any inferior court or courts established or to be established by law and to any of the Judges thereof and to issue all orders, rules and processes proper to give effect to the same.32
In Thompson v. Thompson, 140 A. 697 (Del. 1928), we held that, [i]t seems to be well established that in the absence of special constitutional or statutory provisions, the remedy of an appeal under Section 11(1)(a) is confined to the review of judgments rendered by the Superior Court when the proceedings follow the course of the common law.33 In Walker, we held that the examination of election returns by the Superior Court, sitting as the Board of Canvass, under Article V does not follow the course of the common law.34 Accordingly, we held that the acts of the Superior Court, sitting as the Board of Canvass, are not subject to review by the Supreme Court on appeal....35 Nevertheless, it is within the original jurisdiction of the Supreme Court, in all proper cases to direct its writ of mandamus to the Superior Court as a Court, or as a Board of Canvass, or to any of the Judges of the Court, in his official capacity.36 In fact, in Mitchell, this Court
No Jurisdiction
In this case, a single judge of the Superior Court had no subject mаtter jurisdiction to review the actions by two judges of the Superior Court, sitting as the Board of Canvass in Kent County, because they are not election officers, which is a condition precedent to the Superior Court‘s Article IV judicial subject-matter jurisdiction established by
Conclusion
This matter is remanded to the Superior Court with directions to vacate its December 30, 2014 judgment.39 Given the absence of a proper and timely challenge, the Election result certified by the Superior Court, sitting as the Board of Canvass in Kent County, is final.