KENNETH T. WHALUM, JR.
SHELBY COUNTY ELECTION COMMISSION
June 17, 2014 Session
Appeal from the Chancery Court for Shelby County No. CH1213263 Kenny W. Armstrong, Chancellor
Jef Feibelman and Charles S. Higgins, Memphis, Tennessee, for the appellant, Kevin Woods.
Robert L. J. Spence, Jr. And Kristin A. Woo, Memphis, Tennessee, for the appellee, Kenneth T. Whalum, Jr.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Donald E. Parish, SP.J. joined
J. STEVEN STAFFORD, JUDGE
Intervening Defendant/Appellant Kevin Woods and Plaintiff/Appellee Reverend Kenneth T. Whalum, Jr. were candidates in the District 4 election to the Shelby County School Board ("the School Board") on August 2, 2012. At the time of the election, Mr. Woods was declared the victor by a margin of 106 votes. The Defendant Shelby County Election Commission ("the Election Commission") certified the results of the District 4 election on August 20, 2012. On August 22, 2012, Reverend Whalum filed a timely election contest, arguing that the Election Commission had erroneously assigned District 4 voters to other districts and also assigned residents from other districts to vote in the District 4 School Board race. Mr. Woods, as the winner of the District 4 election, intervened.
The August 2, 2012 Election
The material facts in this case are not in dispute. The Shelby County Commission ("County Commission") is required by law to redistrict the county every ten years for purposes of setting its own election boundaries. See Tenn. Code Ann. § 5-1-111(a) ("Prior to January 1, 1982, and at least every ten (10) years thereafter, county legislative bodies of the different counties shall meet and, a majority of the members being present and concurring, shall change the boundaries of districts or redistrict a county entirely if necessary to apportion the county legislative body so that the members represent substantially equal populations."); Tenn. Code Ann. § 5-1-111(d) ("The county legislative body must use the latest federal census data whenever a reapportionment is made."). The School Board districts are based on the districts created by the County Commission. The County Commission was required to complete redistricting well in advance of the August 2, 2012 election. The Election Commission was then responsible for assigning registered voters to the recently established state and local legislative districts.
The County Commission, however, did not complete redistricting on time. In anticipation of redistricting being completed in compliance with State law, however, the Election Commission attempted to begin the redistricting process prior to the County Commission formally adopting a redistricting plan. Specifically, the Election Commission used a computer program to assign voters to different districts, as well as consolidate voting precincts in anticipation of the changes expected to be adopted by the County Commission. In June of 2012, however, it became clear that the County Commission would be unable to complete redistricting prior to the August 2, 2012 election. Thus, the Election Commission was required to "undo" the work it had completed toward redistricting and return voters to their previously assigned districts. Rather than returning to the previous precinct map, however, on June 14, 2012, the Election Commission opted to continue to consolidate precinct locations, despite the fact that this decision caused even greater confusion.
During the course of early voting, the Election Commission became aware of errors regarding some voter assignments with regard to the District 4 election. No voters were informed of the errors during early voting; thus, the errors in early voting were never corrected. The regular election commenced as planned on August 2, 2012. No irregularities were reported for voting on that date. Despite these errors, the Shelby County Election Commission certified the results of the District 4 election, indicating that Mr. Woods won the District 4 School Board seat by a margin of 106 votes. A later analysis of the voting records revealed that 281 voters who resided in District 4 ("legally qualified voters") were not allowed to vote in District 4 because they had been assigned to other districts. An additional 556 individuals were erroneously assigned to District 4 ("out-of-district voters") and, of these 556 out-of-district voters, is was undisputed that 93 voted for Mr. Woods and 277 voted for Reverend Whalum. The Election Commission was unable to determine who the remaining 186 voters of the 556 out-of-district voters voted for in the District 4 School Board race. After correcting the election results to remove the 370 ineligible votes that could be clearly attributed to each candidate (i.e, the 93 votes for Mr. Woods and the 277 votes for Reverend Whalum, Mr. Woods's margin of victory increased to 290 votes.
Proceedings in the Trial Court
As previously discussed, shortly after the certification of the election results, Reverend Whalum filed an election contest complaint in the Shelby County Chancery Court. Concurrent with the filing of his complaint, Reverend Whalum also filed several requests for discovery and a motion for an expedited status conference, ostensibly in an effort to comply with Tennessee Code Annotated Section 2-17-106(a), which requires that a trial in an election contest case "shall be held not less than fifteen (15) nor more than fifty (50) days from the day the complaint is filed and not less than ten (10) days after the complaint is served on the defendant." According to Reverend Whalum, however, progress stagnated due to the Election Commission's failure to timely respond to discovery. On March 20, 2013, Mr. Woods filed a motion for summary judgment, arguing that the case should be dismissed due to Reverend Whalum's failure to comply with Tennessee Code Annotated Section 2-17-106(a). The trial court did not enter a specific order on Mr. Woods's motion, but instead, the parties proceeded to trial.
A trial took place on May 21, 2013. At trial, when asked about the pending motion for summary judgment based upon Tennessee Code Annotated Section 2-17-106(a), counsel for Mr. Woods indicated that he did not intend to argue that motion, but merely meant to preserve that issue for appellate purposes. Despite counsel's statement, however, the trial court determined that the appropriate course of action was to rule on the motion.Accordingly, the trial court denied the motion on two grounds. First, the trial court noted that the trial was commenced within fifty days of the filing of the election contest complaint, stating that:
I'll note for the record that the trial was set earlier, and at the request of the parties we started the trial with some very limited comments; and then we continued the trial date to this date. So for the purposes of the record, the trial was in fact started within the 50-day requirement statute.
In the alternative, the trial court ruled that the fifty-day requirement was not jurisdictional and that the trial court, in its discretion, may set a trial date outside of the fifty-day limit.
The trial consisted of the entry of stipulated exhibits, previously filed depositions, and arguments of counsel. At the conclusion of the trial, the trial court took the matter under advisement. The trial court later entered a Memorandum Opinion on August 27, 2013, finding in favor of Reverend Whalum.
In its Memorandum Opinion, the trial court explained that it had applied the two-prong test established in Emery v. Robertson County Election Commission, 586 S.W.2d 103 (Tenn. 1979), known as "Emery Prong I and II." Specifically, the trial court ruled that Reverend Whalum failed on Emery Prong I, where an election can be set aside when "the evidence reveals that the number of illegal ballots cast equals or exceeds the difference between the two candidates receiving the most votes." Emery, 586 S.W.2d at 108. The central dispute with regard to this prong was whether the 281 legally qualified voters of District 4 who were incorrectly given ballots for other districts should be considered in determining the number of illegal votes cast pursuant to the Tennessee Supreme Court's holding in Taylor v. Armentrout, 632 S.W.2d 107 (Tenn. 1981) (discussed in detail, infra). After reviewing caselaw on the subject, the trial court reluctantly found that the 281 legally qualified voters' votes should not be included in the Prong I analysis. After excluding those votes, the trial court concluded that Reverend Whalum's election contest failed under Emery Prong I.
The trial court concluded, however, that Reverend Whalum succeeded under Emery Prong II. Pursuant to Emery Prong II, "the courts may also void elections upon a sufficient quantum of proof that fraud or illegality so permeated the conduct of the election as to render it incurably uncertain, even though it cannot be shown to a mathematical certainty that the result might have been different." Emery, 586 S.W.2d at 109. With regard to this prong, the trial court found:
[T]here is no proof in the record that the Election Commission or others involved in the election committed any fraud in conducting the election. Proof of fraud, however, is not required in all cases to void an election. An election may be voided if enough persons were unlawfully deprived of the opportunity to vote. Taylor v. Armentrout, 632 S.W.2d 107, 120 (1981) (Brock, J., dissenting). Therefore, the inquiry left to be decided is whether the irregularities regarding the assignment of voters was of such magnitude that it calls into question whether the election outcome represents the free and fair will of the legally qualified voters of District 4 who, in fact, exercised their right to vote. In examining this remaining issue, the Court is of the opinion that it has to consider the 186 illegal votes which could not be assigned to a particular candidate along with the 281 votes that were excluded. The combination of these two groups far exceeds Woods'[s] margin of victory. Moreover, the number of legally qualified voters who were prevented from voting in District 4 is so large that this number of voters might have easily changed the result of the election had they been allowed to cast their vote in the District 4 race. Unfortunately, due to no fault of their own, and due solely to mistakes of election officials, they were denied the opportunity to express their will in the school board position representing their district.
The combination of illegal votes cast that cannot be assigned and legal votes excluded creates clear uncertainty about the election outcome in the District 4 race if the election had been conducted properly. Under Tennessee law, Whalum is not required to show to a mathematical certainty that the result would have would have been different if mistakes had not been made by the Election Commission. Forbes [v. Bell], 816 S.W.2d [716, ] 720 [(Tenn. 1991)]. Admittedly, the mistakes here were honest mistakes and not intentional, they, however, bear a direct relationship to the uncertainty of the election outcome if all voters had been allowed to participate and vote in the District 4 race. These mistakes in assigning so many voters to incorrect school board districts cannot be simply ignored in an effort by the Court to not take the step of declaring an election invalid. Without a new election conducted properly, there will always be legitimate questions about the actual winner in the District 4 county school board race. The District 4 election under the facts here is incurably uncertain when all voters are considered, and leaves the Court no alternative except to order a new election in this race.
The trial court entered a written order adopting its Memorandum Opinion on August 27, 2013. Mr. Woods filed a timely notice of appeal.
Adoption of New District Lines
While this appeal was pending, on February 24, 2014, the Shelby County Commission adopted new district lines based on the 2010 U.S. Census Data. The resolution included a stated purpose to ensure that those voters who reside in municipalities who have elected to establish their own municipal school districts are excluded from voting for the members of the Shelby County School Board in the August 2014 election.
The resolution was signed by County Mayor Mark H. Luttrell on February 27, 2014. See Shelby Cnty. Charter § 2.06(A); 2.07(A) (providing that resolutions become effective upon the signature of the county mayor). Under a consent decree entered in Shelby County v. Memphis City Board of Education, 11-cv-02101-SHM-cgc (W.D. Tenn. 2011), however, the redistricting resolution also required approval of the federal courts. On March 11, 2014, Judge Samuel H. Mays, Jr., approved the resolution adopting the new district lines. This occurred approximately eighteen months after the August 2, 2012 election.
[T]he two Incumbent School Board Members elected to serve Districts 2 and 4 in the 2012 County General Election will remain on the School Board until their term expires in August 2016 and will serve these same numbered districts . . . .
[E]ffective September 1, 2014, the two Incumbent School Board Members elected to serve Districts 2 and 4 in the 2012 County General Election will remain on the School Board until their term expires in August 2016 and will serve these same numbered districts . . . .
The resolution further provides that an election will be held in August 2014 to elect the remaining seven School Board Members, some of which will serve a four-year term and some of which will serve a two-year term. Finally, the resolution states:
That the Shelby County Election Commission is hereby directed to hold any and all general elections occurring on or after September 1, 2014, to elect members to the Shelby County Board of Education by utilizing the Redistricting Plan adopted herein, as may be amended from time to time.
It is undisputed that, as a result of redistricting, Reverend Whalum no longer resides in District 4.
Proceedings in the Court of Appeals
On April 7, 2014, Mr. Woods filed a motion to vacate the judgment in the trial court and remand for dismissal of Reverend Whalum's election contest lawsuit. The motion argued that because Revered Whalum no longer resides in District 4, he is no longer a "qualified candidate" for that office and that, as a result, he lacks standing to prosecute his election contest. See Tenn. Code Ann. § 2-17-101 (discussed in detail, infra). In the alternative, Mr. Woods argues that Reverend Whalum's claim is moot. This Court continued oral argument to allow Reverend Whalum to respond. Reverend Whalum responded to the motion to dismiss on April 22, 2014.
Rather than deciding Mr. Woods's motion based on written materials alone, this Court ordered the parties to prepare supplemental briefs and to be prepared to argue this issue at oral argument. Mr. Woods filed his supplemental brief on May 20, 2014, while Reverend Whalum filed his supplement brief on June 4, 2014. Oral argument was heard in Jackson, Tennessee on June 17, 2014, wherein both Mr. Woods and Revered Whalum argued the standing issue, as well as the substantive issues in this case.
As we perceive it, there are three issues in this appeal:
1. Whether Reverend Whalum continues to have standing to prosecute an election contest with regard to the August 2, 2012 election for the District 4 School Board seat?
2. Whether the trial court erred in denying Mr. Woods's motion for summary judgment on the basis that no trial was held within fifty days of the filing of the election contest complaint?
3. Whether the trial court correctly found in favor of Reverend Whalum under Emery Prong II?
Standing and Mootness
Because this issue concerns this Court's subject matter jurisdiction,  we begin first with Mr. Woods's motion seeking to dismiss Reverend Whalum's election contest on the ground that Reverend Whalum no longer has standing to contest the election. According to this Court:
The doctrine of standing is used to determine whether a particular plaintiff is entitled to judicial relief. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976); Garrison v. Stamps, 109 S.W.3d 374, 377 (Tenn. Ct. App. 2003). It requires the court to determine whether the plaintiff has alleged a sufficiently personal stake in the outcome of the litigation to warrant a judicial intervention. SunTrust Bank v. Johnson, 46 S.W.3d 216, 222 (Tenn. Ct. App. 2000); Browning-Ferris Indus. of Tennessee, Inc. v. City of Oak Ridge, 644 S.W.2d 400, 402 (Tenn. Ct. App. 1982). To establish standing, a plaintiff must show: (1) that it has sustained a distinct and palpable injury, (2) that the injury was caused by the challenged conduct, and (3) that the injury is one that can be addressed by a remedy that the court is empowered to give. City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001); In re Youngblood, 895 S.W.2d 322, 326 (Tenn. 1995); Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992).
The primary focus of a standing inquiry is on the party, not on the merits of the party's claim. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982); Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002). Thus, a party's standing does not depend on the likelihood of success of its claim on the merits. Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001); Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d at 615. However, because a party's standing may hinge on the nature of its claims, a standing inquiry requires a "careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984).
The sort of distinct and palpable injury that will create standing must be an injury to a recognized legal right or interest. In many cases, this right or interest may be created or defined by statute. Thus, in cases where a party is seeking to vindicate a statutory right of interest, the doctrine of standing requires the party to demonstrate that its claim falls within the zone of interests protected or regulated by the statute in question. Federal Election Comm'n v. Akins, 524 U.S. 11, 20, 118 S.Ct. 1777, 1783–84, 141 L.Ed.2d 10 (1998); Chattanooga Ry. & Light Co. v. Bettis, 139 Tenn. 332, 337, 202 S.W. 70, 71 (1918); Jeff ...