In re the Election Contest Between Moore & Powell

489 S.E.2d 492, 200 W. Va. 335, 1997 W. Va. LEXIS 119
CourtWest Virginia Supreme Court
DecidedJune 19, 1997
DocketNo. 23848
StatusPublished
Cited by4 cases

This text of 489 S.E.2d 492 (In re the Election Contest Between Moore & Powell) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Election Contest Between Moore & Powell, 489 S.E.2d 492, 200 W. Va. 335, 1997 W. Va. LEXIS 119 (W. Va. 1997).

Opinions

MAYNARD, Justice:

This appeal arises out of a municipal election contest in Weirton, West Virginia. After the city council held a trial and an appeal was taken to the Circuit Court of Hancock County, the appellant, John C. Moore, was declared the winner of the election. He took the oath of office and became a member of the city council. The circuit court subsequently held a reconsideration hearing, after which the court ordered that Moore be removed from office and that the appellee, Edward Powell, be declared the winner of the election. Moore requests that the order [336]*336of the circuit court be reversed and that he be reinstated as a member of the council. For reasons we will discuss below, the decision of the circuit court is reversed, because we believe Moore should not have been removed from office after he had taken the oath of office and was actively serving as a member of the city council.

A municipal election was held in Weirton, West Virginia, on June 6, 1995. Powell, the incumbent, was running against Moore for the Ward Three seat on the city council. On election night, Moore was determined to be the winner by five votes. At the canvass1 of the election on June 12, 1996, six challenged votes were counted by the governing body of the municipality. Of the six challenged ballots, Powell received five votes, while one ballot contained only a vote for mayor and is referred to by Moore as a “non-vote.” Once the challenged ballots were counted, the result of the election was a tie. In order to keep the challenged-voters’ choice of candidates a secret, the canvassing board removed the challenged ballots from their envelopes and mixed the challenged and non-challenged ballots together. A recount of the election was then held on June 16, 1995. Powell picked up one vote and was officially declared the winner.

Moore then instituted an election contest before the governing body of the municipality, the city council, which under Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880 (1949), has original and exclusive jurisdiction to hear a municipal election contest.2 The city council held a trial and upheld the municipality’s prior decision to count the six challenged ballots, and Powell was officially declared the winner by one vote. The council did not date the final ruling, and there is no order book or filing ledger in which to formally “enter” election contest decisions. Neither are decisions such as these placed with city ordinances or with city minutes; instead, the elections’ clerk placed this decision in a file located within the Weirton City Building. Both Moore and Powell received personal service of council’s final decision on August 8, 1995.

Moore then filed an application for appeal, contesting the election results in circuit court, pursuant to W.Va.Code § 3-7-7 (1963).3 One day after the thirty-day time limit4 had run, Powell also filed an application for appeal. The circuit court held that [337]*337due to the lack of a formal order book, the entry of the order would be the date the parties received the municipality’s final order. The court then concluded Powell’s application was not filed timely and could not be granted. The court granted Moore’s application. The court also determined that two of the challenged ballots were cast illegally, and therefore, could not count. The court finally decided that since the challenged ballots had been removed from their envelopes and were mixed together with the remainder of the ballots, the two illegal challenged votes could not be matched with their voters. As one of the six challenged votes was a “non-vote” in the council election and could be one of the two votes the circuit court would not count, the court subtracted only one vote from Powell. The result of the election was again a tie, which under W.Va. Code § 8-5-15 (1969)5 must be decided by lot.

A lottery drawing was held to determine which candidate would win the election. The procedure used for the lottery was satisfactory to all at that time and was fair. Moore’s name was drawn, and the circuit court declared that Moore was the winner. Approximately one week later, the oath of office was administered to Moore, who was then seated as a member of the city council and participated in local government decisions.

Powell then filed a motion for reconsideration in circuit court, requesting that the court reconsider the issues he lost, particularly whether his application for appeal was filed untimely. The court heard arguments one more time and entered an order on March 20, 1996. The court reversed itself, stating:

The court erred when it did not count a valid vote for Mr. Powell because it ruled his appeal was filed late. Mr. Powell must be awarded one more vote and be declared the winner of the election.
The Court had previously considered the statute [W.Va.Code § 3-7-7] for the purposes of whether it was to hear the case de novo, which means with new evidence, or on the record without new evidence, but did not consider the question of which issues it could review under the statute. In the prior ruling, the Court focused on each individual vote challenged and did not decide the ease on its merits.
WHEREFORE, it is ORDERED, ADJUDGED and DECREED that Mr. Powell is declared the winner of the election for city councilman for Ward Three of the City of Weirton. It is further ORDERED that the Court’s orders of February 14 and February 15, 1996 and as well February 22, 1996 are hereby set aside, and John Moore is ORDERED removed from the office of city councilman for Ward Three of the City of Weirton effective immediately, and Edward Powell is ORDERED to be sworn in as the councilman for Ward Three of the City of Weirton.

Moore sought post-judgment relief, requesting a hearing based on newly discovered evidence. Moore made an attempt to match the ballot which contained no preference for Moore or Powell with the voter’s name and to, thereby, prove that both of the votes the court struck from the canister were votes for Powell, which should have been subtracted from Powell’s vote total. Moore would then have won the election by one vote. The court denied post-judgment relief, stating that it was acting as a court of appeals, and, therefore, had no jurisdiction to hear new evidence. Being dissatisfied with the result reached by the circuit court, Moore now seeks review by this Court, requesting that the circuit court be reversed and that he be reinstated as a member of the city council.

On appeal, Moore contends the court below erred by counting a spoiled ballot; by allowing a vote which Powell requested be considered when his application was filed outside the thirty-day limit; and by not subtracting the potential “non-vote” from Powell’s vote total. The issue, as we see it, is whether the circuit court erred in unseating Moore after he was sworn into office and while he was [338]*338actively participating as a member of the city council. Accordingly, we do not think it is necessary to make a determination as to whether the circuit court properly or improperly counted or refused to count each of the challenged ballots. After thoroughly reviewing the record, we believe the evidence does not justify Moore’s removal from office. Consequently, the decision of the circuit court is reversed.

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Bluebook (online)
489 S.E.2d 492, 200 W. Va. 335, 1997 W. Va. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-election-contest-between-moore-powell-wva-1997.