Williams v. Heard

805 S.E.2d 1, 302 Ga. 114, 2017 Ga. LEXIS 773
CourtSupreme Court of Georgia
DecidedSeptember 13, 2017
DocketS17A1004
StatusPublished
Cited by5 cases

This text of 805 S.E.2d 1 (Williams v. Heard) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Heard, 805 S.E.2d 1, 302 Ga. 114, 2017 Ga. LEXIS 773 (Ga. 2017).

Opinion

BOGGS, Justice.

In this election contest for a seat on the Baker County Board of Education, we granted the application for interlocutory appeal filed by Brendette Williams, who challenges the trial court’s denial of her motion to dismiss the contest petition filed by Sharon Heard, her opponent in the primary election. We conclude that Heard’s challenge to the primary election is now moot, and we therefore vacate the trial court’s order and remand this case for the contest action to be dismissed. We further conclude that because the trial judge did not meet the requirements of OCGA § 21-2-523 (b) to preside over this action, upon remand, a judge meeting such requirements must be selected to preside over entry of the dismissal.

Heard and Williams were candidates in a primary election on May 24, 2016, for a seat on the Baker County Board of Education. On May 27, the certified returns showed that Williams had defeated Heard by 21 votes, or about 1.90 percent of the total votes cast. Heard requested a recount, and the Board of Elections responded that although a mandatory recount was not required because the margin of victory was more than one percent, it nevertheless decided to recount the race because it was already conducting a mandatory recount in another district.

On June 3, 2016, the recount was conducted with the results of the race being the same as the original returns. For this reason, the returns were not sent a second time to the Secretary of State. The Board of Elections executed a recount certification of returns and placed it in the sealed storage box containing the materials from the May 24 elections. On June 8, 2016, Heard filed a petition to contest the primary election, raising allegations of misconduct, fraud or irregularity by one or more election officials, and the receipt of illegal [115]*115votes and the rejection of legal votes.1 Judge O. Wayne Ellerbee, a retired juvenile court judge, was appointed to preside over the matter by an order dated June 15, 2016. On August 31, 2016, the court allowed Williams to intervene in the contest action. Williams moved to dismiss Heard’s petition as untimely filed and to recuse Judge Ellerbee because he was not qualified to preside over the action. The court denied both motions in late September and issued a certificate of immediate review. The general election was held on November 8, 2016 with Williams, running unopposed, winning the election.

On November 14, 2016, we granted Williams’ interlocutory application. In granting the application, we posed the following questions: (1) Is this case moot because it involves a primary election contest and the general election has taken place? (2) If the case is not moot, did the trial court err when it denied the appellant’s motion to dismiss the appellee’s petition as untimely? (3) If the case is not moot, did the trial court err when it denied the appellant’s motion to recuse?

1. “[T]he established rule in Georgia is that a primary election contest becomes moot after the general election has taken place.” (Punctuation omitted.) Dawkins-Haigler v. Anderson, 301 Ga. 27 (799 SE2d 180) (2017), quoting Payne v. Chatman, 267 Ga. 873, 875 (485 SE2d 723) (1997). Citing authority from two other jurisdictions, Heard urges this Court to recognize exceptions to this general rule. Barber v. Moody, 229 So2d 284, 287 (Fla. App. 1969) (where defendants used “every dilatory tactic available to them” under the civil procedure rules, court declined to apply mootness rule); Griffin v. Buzard, 342 P2d 201 (Ariz. 1959) (contest to primary election not brought too late where candidate violated criminal statutes and defrauded voters by adding to the ballot a “diversionary candidate” with a name similar to his opponent; general election did not operate to make the issues presented moot). However, we decline to recognize the exceptions noted in those cases. As we explained in Payne, supra,

[we] adhere to the rule that litigants should make every effort to dispose of election disputes with dispatch and that the courts should not interfere with the orderly process of elections after the general election has been held. It is imperative that time remains for appeals and new elections if necessary before a succeeding election renders the issues moot, and before unnecessary expenses are incurred in [116]*116holding more than one general election. It is also important that decisions concerning election of officials not be delayed so that elected officials can take their stations in a timely manner.

267 Ga. at 877. Although Heard argues that as the appellee in this action she was without the remedy provided to an appellant under OCGA § 21-2-528, she did not avail herself of any extraordinary or expedited relief in the trial court or this Court. See Eturriaga v. Valdez, 784 P2d 24, 29-30 (N.M. 1989) (mootness doctrine applied where general election had been held and contestants did not avail themselves of expedited procedures or seek extraordinary relief from appellate court). Heard could have requested an expedited hearing on her contest petition in the trial court, moved to stay the general election, or requested expedited consideration of Williams’ application for interlocutory appeal. But Heard took no action to ensure that her challenge to the primary election result was considered in a timely manner. As explained in Eturriaga, “it is incumbent upon the contestant of a primary election to utilize every available means to resolve the dispute in time to place his name on the ballot in the general election.” Id. at 30.

The questions presented in Heard’s election challenge do not present a classic situation of a problem capable of repetition, yet evading review. See Payne, supra, 267 Ga. at 873, 876-877. We therefore conclude that the mootness doctrine applies to the election challenge in this case. See Dawkins-Haigler, supra, 301 Ga. at 28. However, because the appeal here is from the denial of Williams’ motion to dismiss Heard’s contest petition, rather than dismissing the appeal as moot, see id., we must vacate the judgment and remand this case for the trial court to dismiss the pending contest action as moot.

2. In light of our holding in Division 1, we do not address the parties’ arguments related to the second question posed by this Court, involving the trial court’s ruling on Williams’ motion to dismiss. But because we direct that the pending contest action be dismissed by the court below, we must consider the third question in part — whether Judge Ellerbee qualifies to preside over this matter on remand. We hold that he does not so qualify, and that a different judge, who satisfies the requirements of OCGA § 21-2-523, must be selected to preside.

OCGA § 21-2-523 (b) provides: “The superior court having jurisdiction of a contest case governed by this article shall be presided over [117]*117by a superior court judge or senior judge.” (Emphasis supplied.)

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Bluebook (online)
805 S.E.2d 1, 302 Ga. 114, 2017 Ga. LEXIS 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-heard-ga-2017.