Moore v. Pakrker
| Docket Number: | 2006-EC-00899-SCT Linked Case(s): 2006-EC-00899-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-16-2007 Opinion Author: SMITH, C.J. Holding: AFFIRMED IN PART; REVERSED AND RENDERED IN PART |
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| Additional Case Information: |
Topic: Election contest - Appellate review - Section 23-15-933 - Filing of petition - Section 23-15-921 - Notice - Section 23-15-911 - Independent investigation - Section 23-15-927 - Time of filing - Special election Judge(s) Concurring: Waller and Diaz, P.JJ., Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Easley and Lamar, JJ. Procedural History: Motion for Rehearing Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 06-09-2006 Appealed from: Chickasaw County Circuit Court Judge: James T. Kitchens, Jr. Disposition: Stacey Parker, a mayoral candidate, filed a petition for judicial review of the primary in the Circuit Court of Chickasaw County. The winner of the primary, John Moore, intervened as a party defendant and filed a Motion to Dismiss and/or for Summary Judgment. The case was tried, and the Special Tribunal ordered a special, run-off primary election. Moore appeals that decision to this Court. Case Number: H2005-070 |
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| Note: | The motion to correct the record and the motion for rehearing filed by John A. (Pap) Moore are both granted. The previous opinion is withdrawn, and this opinion is substituted therefor. | |
| Party Name: | Attorney Name: | |||
| Appellant: | John Moore |
SAMUEL L. BEGLEY
GARY GOODWIN |
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| Appellee: | Stacey Parker | RONALD D. MICHAEL BILLY BRONSON TABLER |
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| Topic: | Election contest - Appellate review - Section 23-15-933 - Filing of petition - Section 23-15-921 - Notice - Section 23-15-911 - Independent investigation - Section 23-15-927 - Time of filing - Special election |
| Summary of the Facts: | The motion to correct the record and the motion for rehearing filed by John A. Moore are both granted. This opinion is substituted for the previous opinion. Following the May 2005 Democratic mayoral primary in Houston, Stacey Parker, a mayoral candidate, filed a petition for judicial review of the primary. The winner of the primary, John Moore, intervened as a party defendant and filed a Motion to Dismiss and/or for Summary Judgment. The Special Tribunal ordered a special, run-off primary election. Moore appeals. |
| Summary of Opinion Analysis: | Parker cites section 23-15-933 for his argument that the election order is not subject to review by the Supreme Court since the order was executed by the presiding judge and joined by all three of the Houston Municipal Election Commissioners, the four of whom comprised the special tribunal. While the statute deems final the tribunal’s findings of fact, its legal conclusions are reviewable on appeal. Accordingly, the statute presents no bar to any issues in this case since all issues presented are questions of law. Moore argues that the special tribunal lacked subject matter jurisdiction due to Parker’s failure to meet jurisdictional prerequisites enumerated in our election contest statutes. While Parker did not file his petition with a member of the Houston Democratic Executive Committee pursuant to section 23-15-921, Parker filed a petition with the Houston Democratic Executive Committee. While Moore accurately notes that section 23-15-921 does not provide for submission of a second petition, the statute also does not prohibit submission of an additional petition. Therefore, Moore’s argument concerning the specificity of the May 4, 2005, petition is irrelevant since Parker submitted a more specific petition on May 11, 2005, the specificity of which Moore does not challenge. Moore alleges that Parker failed to meet the notice requirement of section 23-15-911. Parker provided a handwritten petition on May 4, 2005, to the city clerk, who in turn notified each of the candidates of Parker’s right to examine the boxes. The notice was signed by each of the four candidates on May 4, 2005, five days before Parker inspected the ballot boxes on May 9, 2005. Thus, this argument is without merit. Moore argues that Parker’s petition was certified by two attorneys who were incapable of independent investigation as required by section 23-15-927 even though they were employees of the same firm. Whether each of the two certifying attorneys may perform an “independent” investigation is not determined by the nature of their relationship with each other but their association with the contest. Therefore, Moore’s argument that attorneys employed by the same firm are incapable of performing independent investigations is without merit. Moore argues that Parker’s petition was not filed “forthwith” as required by section 23-15-927 since June 22 was forty-nine days after the primary. The reference point for the running of time is the date of the final action or decision by the party executive committee. The committee never reached a decision in this case. Parker filed his petition for judicial review on June 22, 2005, fifteen days, eleven working days, after the last committee meeting on June 7, 2005, in which the contest was scheduled to be addressed. Filing within eleven working days satisfies the “forthwith” requirement. Moore argues that the tribunal based its ruling for a special election entirely on matters not raised by Parker in his election contest petition, and thus the tribunal exceeded its scope of review. The tribunal based its order on grounds within the scope of the contest petition, and Moore’s assertion otherwise is without merit. Moore argues that, since the nine ballots found to be voted for Moore were never challenged at the polling place, there was no way to know directly how these votes were marked, unless some additional evidence was adduced. Because Moore did not make a single objection when this testimony was given before the tribunal, the issue is waived. Moore argues that two affidavits and a letter/affidavit on which the tribunal relied in denying summary judgment were not related to the allegations set forth in Parker’s contest petition. Parker raised allegations of illegal affidavit voting, and each of the three affidavits which Moore asserts are unrelated describe facts indicative of fraudulent voting. Therefore, this issue is without merit. The tribunal ordered a special primary run-off election between Moore and Parker. The result of the tribunal findings in this case is that neither primary candidate has a majority and thus, that a special primary run-off election is necessary. This distinction does not prevent the application of section 23-15-937, and accordingly, the office of mayor of the City of Houston shall be vacated and a special election shall be called by the Governor. The special tribunal erred in ordering a special primary run-off election to be held when it is statutorily mandated that the Governor call such election. |
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