Gunn v. McKenna , 116 A.3d 419 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
Respondent-Below,
Appellee.
LA MAR GUNN, §
§ No. 717, 2014
Petitioner-Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware in and
V. § for Kent County
§
BETTY LOU MCKENNA, §
§
§
§
Submitted: April 15, 2015
Decided: May 14, 2015
Before STRINE, Chief Justice, HOLLAND, VALIHURA, Justices, NOBLEI,
Vice-Chancellor, and WALLSI, Judge.
Upon Appeal from the Superior Court. REMANDED T0 VACATE.
Julianne E. Murray, Esquire, (argued), Ronald D. Phillips, Jr., Esquire,
MurrayPhillips, P.A., Georgetown, Delaware, Attorneys for Petitioner-Below,
Appellant.
John W. Paradee, Esquire (argued), Stephen E. Smith, Esquire, Baird Mandalas &
Brockstedt, LLC, Dover, Delaware, Attorneys for Respondent—Below, Appellee.
HOLLAND, Justice:
1 Sitting by designation pursuant to art. IV, § 12 of the Delaware Constitution and Supreme
Court Rules 2 and 4(a) to fill up the quorum as required.
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
Chapter 59 of Title 15 which commenced on November 13, 2014, when Gunn filed
a Verified Petition Contesting Election (“Petition”) in the Superior Court. The
Respondent-Below/Appellee Betty Lou McKenna (“McKenna”) filed a Motion to
Dismiss, asserting that the Petition failed to allege any facts which would provide
the Superior Court with jurisdiction to address the claims asserted by the Petition.
In particular, McKenna contended that the Petition failed to satisfy any of the
statutory jurisdictional grounds for an election contest set forth in 15 Del. C.
§ 5941.
In response to McKenna’s Motion to Dismiss, Gunn argued that the Petition
stated a claim under 15 Del. C. § 5941(1), on the theory that the recount conducted
by two Superior Court judges, sitting as the Board of Canvass in Kent County, on
November 6, 2014, evidenced “malconduct on the part of election ofiz‘cers or clerks
holding the election” within the meaning of 15 Del. C. § 5941(1), because three
different counts conducted by the Superior Court, sitting as the Board of Canvass,
resulted in three different outcomes. McKenna argued that the two judges of the
Superior Court, sitting as the Board of Canvass, are not “election oflicers or clerks
2
returns, language to that effect would certainly have been
included.“
More importantly, for purposes of this case, in Mitchell, we held that “[a]
defeated candidate claiming, among other things, malconduct of the election
ofi‘icers or the reception of illegal votes is afforded a remedy in the Superior Court
as such?” i.e., sitting with its Article IV judicial jurisdiction rather than its Article
V Board of Canvass jurisdiction. In particular, in Mtchell, we recognized that if
the relators’ contention was accepted, the issue of election ofiicers ’ 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 Section 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 15 Del. C. §§ 5941-55 before a single Superior Court
16Mitchell, 83 A.2d at 766.
17Id. at 767 (emphasis added).
18
'9 Id.
2" State ex rel. T raburton v. Seitz, 168 A.2d 110, 112 (Del. 1961) (internal citations omitted).
11
judge exercising its Article IV judicial jurisdiction but not before two judges of the
Superior Court sitting as the Article V Board of Canvass.21
Election Contest Jurisdiction
The jurisdiction to hear election contests is vested in the Superior Court by
statute. The Superior Court discharges that judicial 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 15 Del. C. § 5941(1).
15 Del. C. § 5941 provides that:
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
21
32 15 Del. C. § 5941 (emphasis added).
12
In Chapter 47 (entitled “Election Officers”), 15 Del. C. § 4701(b)(1)
authorizes the Department of Elections to appoint one “inspector,” two “judges,”
and two “clerks” as the “election ofi‘icers” for each election district.23 15 Del. C. §
4702 authorizes the Department of Elections to appoint “such additional election
officers to serve as machine operators, greeters or for other purposes deemed
24
necessary to facilitate the operation of the polling places.” These “election
oflicers” are trained and paid by the Department of Elections.”
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 on Election Day. For example, 15 Del. C. § 4902 provides that:
If on the day of holding an election any election ofiicer
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
” 15 Del. C. §4701(b)(1).
2" 15 Del. C. § 4702 (emphasis added).
25 See 15 Del. C. § 4741 and 15 Del. C. § 4707, respectively.
26 15 Del. C. § 4702.
13
15 Del. C. §§ 4904 and 4909 require “election officers” to subscribe to an oath of
office, swearing not to engage in any of the type of conduct which may give rise to
various criminal offenses defined by Chapter 51 of Title 15.27
Conversely, 15 Del. C. § 5701 specifically incorporates Article V of the
Delaware Constitution and recognizes that the Board of Canvass is comprised of
certain judges of the Superior Court, “with the aid of such of its officers and such
sworn assistants as it shall appoint . . . 3’28 15 Del. C. § 5702 authorizes the two
judges of the Superior Court sitting as the Board of Canvass to “issue summary
process against the election ofiicers of such election district” if the records of an
election are not produced in a timely fashion prior to convening the Board of
9
Canvass.2 15 Del. C. § 5714 provides that all necessary costs and expenses
incurred in carrying out the duties of the Board of Canvass — including the
compensation of all personnel involved — “shall be paid by the State Treasurer
from any moneys in the State Treasury not otherwise appropriated.“0
2" See 15 Del. C. §§ 4904 & 4909.
3‘ 15 Del. C. § 5701(a) (“The Superior Court shall convene in each county on the 2ml day after
the general election at 10 a.m., for the performance of the duties imposed upon it by § 6 of article
Vof the Constitution of this State and by this chapter. Therequ the 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 and in the respective election districts by calculating the
aggregate amount of all the votes for each office that shall have been given in all of the election
districts of the county for every person voted for such office.” (emphasis added».
29 15 Del. C. § 5702 (emphasis added).
3" 15 Del. C. §5714.
14
We hold that the Delaware Constitution and applicable provisions of Title 15
demonstrate that the “election ofi’z‘cers 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 of 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 Constitution 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 mandamus to the
Superior Court, and the Court of Chancery, or any of
the Judges of the said courts and also to any inferior
3' See Mitchell, 83 A.2d at 767.
15
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
8211118.32
In Thompson v. Thompson, 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 ll(1)(a) is confined to the review of judgments rendered
by the Superior Court when the proceedings follow the course of the common
law.n33 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 . . . 3’35 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.”3‘6 In fact, in Mitchell, this Court specifically reaffirmed our original
jurisdiction to issue writs of mandamus to the Superior Court, sitting as the Board
of Canvass.”
32 DEL. CONST. art. IV, § 11.
33 140 A. 697, 698 (Del. 1928); accord Walker, 27 A.2d at 75.
3“ Walker, 27 A.2d at 70-75.
35 Id. (emphasis added).
3“ Id. at 74.
37 Mitchell, 83 A.2d at 766-68.
16
N0 Jurisdiction
In this case, a single judge of the Superior Court had no subject matter
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 ofi'icers, which is a
condition precedent to the Superior Court’s Article IV judicial subject-matter
jurisdiction established by 15 Del. C. § 5941. The proper procedure to review
actions by the Superior Court, sitting as the Board of Canvass, pursuant to Article
V has always exclusively been by filing a writ petition under this Court’s original
jurisdiction. The election contest statute does not apply to actions by two judges of
the Superior Court, sitting as the Board of Canvass, and provided no basis for the
subject-matter jurisdiction of a single judge of the Superior Court to act in this
purported election contest proceeding. Therefore, this Court has no appellate
jurisdiction to review that action. Neither the Superior Court or this Court’s
subject-matter jurisdiction can “be expanded to account for the parties litigation
conduct . . . 3’38
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
3“ Kontrick, 540 US. at 444-45.
39 See Insley, 141 A.2d at 623 (statute is inapplicable and affords no basis for the exercise of
jurisdiction).
17
challenge, the Election result certified by the Superior Court, sitting as the Board
of Canvass in Kent County, is final.
18
holding the election” within the meaning of 15 Del. C. § 5941(1), and therefore,
the claims asserted by Gunn’s Petition did not fall within the subject-matter
jurisdiction of 15 Del. C. § 5941. A single judge of the Superior Court denied
McKenna’s Motion to Dismiss, finding that the conduct of the Board of Canvass in
Kent County was sufficiently “abnormal,” “inadequate,” “incorrect or deficientn2
to constitute “malconduc ” within the meaning of 15 Del. C. § 5941(1).
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 ofi’icers or clerks
holding the election.” Accordingly, McKenna asserts that the claims asserted by
Gunn’s Petition do not fit within the jurisdictional requirements of 15 Del. C.
§ 5941(1). Consequently, McKenna argues that the single judge of the Superior
Court was without subject matter jurisdiction to entertain Gunn’s Petition and
should have granted her Motion to Dismiss.
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 may raise a court’s lack of subject-matter jurisdiction at any time in the
2 Gym v. McKenna, 2014 WL 7466521, at *3 (Del. Super. Dec. 23, 2014) (internal citation
omitted).
3
same civil litigation, even initially at the highest appellate instance.”3 This Court
has also held “lack of jurisdiction may be raised at any time on motion of the court
[sua sponte], even though the parties, by failure to raise the question, may have
waived the right.“ Accordingly, Whenever it appears by suggestion of the parties
or by being raised sua sponte that the court lacks jurisdiction, the court must
dismiss the action.5
We have concluded that Gunn’s Petition fails to allege any “malconduct on
the part of election ofi‘z‘cers or clerks holding the election,” within the meaning of
15 Del. C. § 5941(1). Accordingly, the Petition fails to satisfy the jurisdictional
prerequisites for filing an election contest in the Superior Court under 15 Del. C.
§ 5941. Therefore, McKenna’s Motion to Dismiss should have been granted and
the Petition should have been dismissed. Consequently, this matter is remanded to
the Superior Court with instructions to vacate its order and judgment dated
December 30, 2014.6
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
3 Kontrick v. Ryan, 540 U.S. 443, 455 (2004); see also Capron v. Van Noorden, 6 U.S. 1261804).
g Chavin v. HH. Rosen & Ca, 246 A.2d 921, 922 (Del. 1968).
5 See Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U.S. 552, 557 (1887).
5 See State v. Insley, 141 A.2d 619 GDel. 195 8) (statute is inapplicable and affords no basis for
the exercise of jurisdiction).
4
of Elections declared that Gunn won the Election by two votes, 19,247 to 19,245.
Gunn received 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
Section 6, Article V of the Delaware Constitution. Because of the closeness of the
vote differential, the Board of Canvass was required to recount absentee ballots
pursuant to 15 Del. C. § 5702(6).7 The Board of Canvass conducted three recounts
of the absentee ballots. After the first recount, Gunn’s lead increased fi'om two to
three votes. After the second recount, Gunn’s lead increased from three to seven
votes. After the third recount, McKenna was ahead by two votes. The two
Superior Court judges, sitting as the Board of Canvass in Kent County, certified
the third recount.
On November 13, 2014, Gunn filed a verified Petition in the Superior Court
contesting the Election results and alleging malconduct pursuant to Del. C.
§ 5941(1). According to Gunn, certifying the third recount, when each recount
yielded a different vote differential, was malconduct by the two judges of the
Superior Court, sitting as the Board of Canvass in Kent County. McKenna filed a
7 15 Del. C. § 5702(e) requires the Board of Canvass to perform a hand recount of absentee votes
when the vote differential is the lesser of 1,000 votes or .5 percent.
5
Motion to Dismiss for lack of standing. A different single judge of the Superior
Court denied McKenna’s Motion to Dismiss.
In its December 23, 2014, decision and order, a single judge of the Superior
Court held that it was malconduct by two other judges of the Superior Court,
sitting as the Board of Canvass in Kent County, to certify the third recount. The
single judge of the Superior Court ordered the Department of Elections to conduct
a hand recount of the absentee ballots cast in the Election. On December 29, 2014,
the Department of Elections recounted the absentee ballots. At the conclusion of
that recount, when the total absentee votes were combined with the machine votes,
the result was a tie.
On December 30, 2014, pursuant to 15 Del. C. § 5954(c), the Office of the
Recorder of Deeds in and for Kent County was declared vacant by the single judge
of the Superior Court.
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
6
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 Terrniner.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 ojj‘icer 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 recording 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
aggregate number of votes for each office given in the
election districts of the county and for every person who
received votes for each office. . . .
DEL. CONST. art. IV, § 7 (emphasis added).
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
At the present time, Article V of the Delaware Constitution provides for two
Superior Court judges to sit as the Board of Canvass in each county. However,
Article V once provided for the Chancellor to sit with a judge of the Superior Court
to constitute the Board of Canvass in Kent County. In State ex rel. Walker v.
JI-Iarrr'rrgton,10 this Court held that, although the jurisdiction of the Superior Court
was established in Article IV and V of the Delaware Constitution, and Article V
designated the Chancellor to be a member of the Superior Court, sitting as the
Board of Canvass in Kent County, there was only one Superior Court. This Court
explained:
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 co-
extensive 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
9 DEL. CONST. art. V, § 6 (emphasis added).
1" 27 A.2d 67 (Del. 1942).
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 separater 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. Wolcoti, this Court was asked to decide whether
the Superior Court, sitting as a Board of Canvass to “ascertain the state of the
election, could take cognizance of a charge that the election oflicers 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
” Id. at 74.
'2 83 A.2d 762, 764 (Del. 1951).
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
for such office.”’14 Prior to 1897, the Court of Errors and Appeals held the powers
of the county boards of canvass was, “in general, ministerial, and not discretionary
or judicial, in their character. . . 3’15
The question presented in .Mirchell 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 Superior 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 the new Boards general
power over the conduct of elections as affecting the
'3 Id. at 765 (citing Code 1893, Ch. 18, Sec. 24).
‘4 Id. (citation omitted).
‘5 McCoy v. State ex rel. Allee, 36 A. 81, 82, 83 (Del. 1897) (citation omitted).
10