In Re Nov. 4, 2008 Bluffton Election

686 S.E.2d 683, 385 S.C. 632
CourtSupreme Court of South Carolina
DecidedDecember 7, 2009
Docket26747
StatusPublished
Cited by10 cases

This text of 686 S.E.2d 683 (In Re Nov. 4, 2008 Bluffton Election) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Nov. 4, 2008 Bluffton Election, 686 S.E.2d 683, 385 S.C. 632 (S.C. 2009).

Opinion

385 S.C. 632 (2009)
686 S.E.2d 683

In re NOVEMBER 4, 2008 BLUFFTON TOWN COUNCIL ELECTION.
Fred Hamilton, Jr., and Allyne Mitchell, Respondents,
v.
Jeff Fulgham, Normand Thomas, and the Beaufort County Board of Elections and Voter Registration of whom Jeff Fulgham and Normand Thomas are Petitioners.

No. 26747.

Supreme Court of South Carolina.

Heard May 13, 2009.
Decided December 7, 2009.

*635 Karl S. Bowers, Jr., A. Mattison Bogan, and M. Todd Carroll, all of Nelson, Mullins, Riley & Scarborough, of Columbia, for Petitioners.

Daniel E. Martin, Sr. and Daniel E. Martin, Jr., both of Charleston, for Respondents.

Chief Justice TOAL.

In this case, Petitioners challenged the results of a municipal election based on irregularities discovered in the voting rolls. The county election board voted to hold a new election, and Respondents appealed to the State Election Commission. The Commission overturned the decision of the county election board, and we granted Petitioners' petition for writ of certiorari to review that decision.

FACTUAL/PROCEDURAL BACKGROUND

On November 4, 2008, an election was held for two seats on the Bluffton Town Council. Respondents Fred Hamilton, Jr., and Allyne Mitchell (together "Respondents") were declared the winners of the election with 1,553 and 1,449 votes, respectively. Petitioners Jeff Fulgham and Normand Thomas (together "Petitioners") received 1,423 and 796 votes, respectively.

On November 6, 2008, Fulgham filed a letter of protest with the Beaufort County Board of Elections and Voter Registration ("County Board"), seeking a new election. Fulgham alleged that approximately one-hundred eligible voters had not been allowed to vote. A hearing was held before the County Board the next day.

At the hearing, Fulgham called Charlie Wetmore, candidate for Town of Bluffton Mayor, to testify. Wetmore testified that he received calls from voters telling him they had not been allowed to vote. Agnes Garvin, Executive Director of the County Board, testified that her review of the voter rolls after the election revealed that there were one hundred sixty-six (166) "coding" irregularities.[1] Garvin could not testify as *636 to how many nonresidents had been allowed to vote. No individual voters were called to testify that they had been disenfranchised and no allegations were made regarding specific non-resident voters who were allowed to vote in the municipal elections.

Based upon this testimony, the County Board voted to hold a new election for mayor and town council on November 18, 2008. Respondents appealed to the South Carolina State Election Commission ("the Commission").

The Commission held a hearing on December 3, 2008. Petitioners argued that the Commission lacked subject matter jurisdiction to review the County Board decision, but that the evidence below supported a ruling on the merits in their favor. The Commission assumed jurisdiction and voted to sustain the election results and reverse the County Board decision to order a new election on the grounds that it was supported by insufficient evidence. Petitioners filed a petition for a writ of certiorari, and we granted certiorari to review the following question:[2]

Did the Commission have subject matter jurisdiction to hear an appeal from a decision of the County Board?

STANDARD OF REVIEW

In municipal election cases, this Court will review the lower decision for errors of law, and will not overturn findings of fact unless those findings are wholly unsupported by the evidence. Gecy v. Bagwell, 372 S.C. 237, 241, 642 S.E.2d 569, 571 (2007).

LAW/ANALYSIS

Petitioners argue that the Commission lacked subject matter jurisdiction to review the decision of the County Board when the County Board adjudicated a municipal election dispute. We agree.

*637 Subject matter jurisdiction is defined as "the power [of a court] to hear and determine cases of the general class to which the proceedings in question belong." Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994). Issues related to subject matter jurisdiction may be raised at any time. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). The lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this Court. Anderson v. Anderson, 299 S.C. 110, 115, 382 S.E.2d 897, 900 (1989).

As a general matter, municipal election disputes are to be adjudicated by municipal election commissions. S.C.Code Ann. § 5-15-130 (2004). Appeals from municipal election commissions are heard by the circuit court. S.C.Code Ann. § 5-15-140 (2004).

County boards are directed by statute to "decide all cases under protest or contest that arise in their respective counties in the case of county officers and less than county offices, except for primaries and municipal elections." S.C.Code Ann. § 7-17-30 (Supp.2008). However, municipalities that choose not to establish their own election commissions are authorized to transfer the authority to conduct their municipal elections to the county election commission. S.C.Code Ann. § 5-15-145(A) (2004). The statute requires that in order to effectuate this transfer, the governing bodies of the municipality and the county must agree to the terms of the transfer and enact ordinances embodying the terms of the agreement. S.C.Code Ann. § 5-15-145(B) (2004). The municipal ordinance must state what authority is being transferred and the county ordinance must accept the authority being transferred. Id. If only a portion of the municipality's authority for election oversight is transferred to the county, the municipality must maintain its own election commission. S.C.Code Ann. § 5-15-145(D) (2004).

Beaufort County's ordinance accepting the transfer of municipal election authority from the Town of Bluffton provides:[3]

*638 (a) The [County Board] accepts the transfer of authority to conduct all general and special elections of the Town of Bluffton. The Town of Bluffton Municipal Elections transfers to the [County Board] the following authority, responsibilities, and agreement for reimbursement of expenses associated with conducting the Town of Bluffton's General and Special Municipal Elections:
....
(c) The [County Board] shall designate all polling places, the inspection and visitation of polls during election day, the recruitment and assignment of poll managers, securing telephones for the polling precincts, the hearing of challenged ballots and ruling on any protests and/or complaints regarding the election or its procedures, and the certification of the election results.

Beaufort County Code of Ordinances § 30-3 (emphasis added).

As mentioned above, appeals from municipal election commissions are to be filed in circuit court. Section 5-15-140. Appeals from county election boards are to be made to the South Carolina State Election Commission. S.C.Code Ann. § 7-17-60 (2004).

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Bluebook (online)
686 S.E.2d 683, 385 S.C. 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nov-4-2008-bluffton-election-sc-2009.