IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
__________
No. 34159
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STATE OF WEST VIRGINIA EX REL.
SCOTT EDWARDS,
Petitioner Below, Appellee
FILED
February 27, 2009
released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
v.
LINDA L. GIBSON, RECORDER FOR THE CITY OF HURRICANE,
PUTNAM COUNTY, WEST VIRGINIA;
DONALD E. CHANEY; WILLIAM R. BILLUPS;
C. BRIAN ELLIS, PATRICIA D. HAGER; AND
LANA M. CALL, MEMBERS OF THE CITY COUNCIL OF
THE CITY OF HURRICANE, PUTNAM COUNTY, WEST VIRGINIA,
Defendants Below, Appellees
SAM E. COLE,
Intervenor Below, Appellant
__________________________________________________
Appeal from the Circuit Court of Putnam County
The Honorable Edward E. Eagloski, II, Judge
Civil Action No. 07-C-322
AFFIRMED
__________________________________________________
Submitted: February 4, 2009
Filed: February 27, 2009
David O. Moye
Lisa M. Moye
Hurricane, West Virginia
Counsel for the Appellant
Harvey D. Peyton
Peyton Law Firm
Nitro, West Virginia
Counsel for the Appellee,
Scott Edwards
SENIOR STATUS JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “Prohibition lies only to restrain inferior courts from proceeding in causes
over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding
their legitimate powers and may not be used as a substitute for writ of error, appeal or
certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).
2. “The jurisdiction of the common council of a municipality incorporated
under Article 2, Chapter 8, Code, to hear and decide a contested election involving the
selection of municipal officers is original and exclusive.” Syl. Pt. 1, Evans v. Charles, 133
W.Va. 463, 56 S.E.2d 880 (1949).
3. “The provision of Section 2, Article 9, Chapter 3, Code, 1931, that the
contestant in an election contest involving a county or district office shall give notice to the
contestee within ten days after the result of the election is declared, is mandatory and must
be strictly complied with; and unless such notice is given within that time a county court is
without jurisdiction to entertain, hear and determine such contest.” Syl. Pt. 4, State ex rel.
Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827 (1952).
i
4. “A county court, which by reason of the failure of the contestant to give
notice to the contestee in an election contest within ten days after the result of the election
is declared is without jurisdiction to hear and determine such contest, will be restrained from
entertaining, hearing and determining such contest by writ of prohibition from this Court.”
Syl. Pt. 5, State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827 (1952).
5. The provision of West Virginia Code § 3-7-6 (2002) (Repl. Vol. 2006) that
requires a contestant of a municipal election to give notice to the contestee within ten days
after the results of the election have been certified is mandatory and absent strict compliance
with that notice provision, a governing municipal body lacks the necessary jurisdiction to
hear and determine an election contest.
6. A governing municipal body that lacks jurisdiction to hear an election
contest based on the failure of the contestant to comply with the notice provision of West
Virginia Code § 3-7-6 (2002) (Repl. Vol. 2006) will be prevented from hearing and
determining such election contest by writ of prohibition.
ii
McHugh, Senior Status Justice:1
Sam Cole appeals from the November 21, 2007, order entered by the Circuit
Court of Putnam County through which a writ of prohibition was granted upon the petition
of Appellee Scott Edwards to prevent the City Council of Hurricane (“City Council”) from
holding a hearing on an election contest petition filed by Mr. Cole. Appellant seeks a ruling
from this Court that the circuit court’s decision to issue the writ of prohibition was in error
and an additional determination that the trial court’s failure to consolidate the prohibition
proceeding with the election contest action he filed was erroneous. Upon our review of all
the arguments presented, we conclude that the trial court committed no error and,
accordingly, affirm the lower court’s decision to issue a writ of prohibition.
I. Factual and Procedural Background
In an election held on June 12, 2007, Mr. Cole and Mr. Edwards were
opposing candidates in the City of Hurricane’s mayoral race. On election day, Mr. Cole
purportedly discovered that the City of Hurricane was not using secrecy envelopes to hold
and seal the ballots of the early voters. Mr. Cole challenged this practice, but the City of
1
Pursuant to administrative orders entered September 11, 2008, and January
1, 2009, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a
member of the Supreme Court of Appeals of West Virginia commencing September 12,
2008, and continuing until the Chief Justice determines that assistance is no longer necessary,
in light of the illness of Justice Joseph P. Albright.
1
Hurricane chose to include the non-secreted early votes as part of the official election
results.2
After all the votes were counted, Mr. Edwards was declared to be the
successful mayoral candidate. Mr. Cole contends that if the early ballots were omitted from
the vote tabulation, he would have been declared the successful candidate.3 The City of
Hurricane conducted an election canvass on June 18, 2007, which confirmed the results
announced on election day. Following a request made by Mr. Cole, there was a recount of
the votes on June 26, 2007. The results obtained were the same as on election day with Mr.
Edwards again being declared the successful mayoral candidate. The election results were
officially certified on June 26, 2007.
Ten days after the results were certified, Mr. Cole transmitted a letter
through his counsel dated July 6, 2007, to the City of Hurricane and the Putnam County
Commission indicating that he was giving them notice of his intention “to contest the
legality of the City of Hurricane election held on June 12, 2007.” On this same date, Mr.
Cole filed a civil action with the circuit court through which he sought to have the early
2
According to Mr. Cole, the City of Hurricane’s decision was made after
checking with the Putnam County Clerk on this issue.
3
Mr. Cole contends that he had won the election prior to counting the votes that
were cast before election day.
2
ballots omitted from consideration in the June 12, 2007, election. The only defendants
named in this action were the City of Hurricane and the Putnam County Commission.4
The City of Hurricane filed a motion to dismiss the civil action5 filed by Mr.
Cole based on lack of subject matter jurisdiction, which was heard by Judge Spaulding on
September 13, 2007. During the course of the hearing, the trial court discovered that a
hearing had not been held before City Council to address Mr. Cole’s contest of the election
results. After much discussion regarding this procedural irregularity, the parties agreed that
the matter should be “remanded” to the City Council for the requisite factual hearing.
Although Mr. Edwards was in attendance at the hearing before Judge Spaulding, he did not
make a formal appearance for purposes of the civil action.
Between the time when the hearing was held before Judge Spaulding and the
issuance of the trial court’s ruling on the motion to dismiss, Mr. Cole filed a document with
the City of Hurricane entitled “Petition to Contest Election.”6 As with all the pleadings
lodged by Mr. Cole in this matter, this document was not served on Mr. Edwards.
4
The Putnam County Commission was later dismissed from the civil action.
5
This motion was filed on July 25, 2007.
6
This was filed on September 19, 2007.
3
By order entered on September 24, 2007, Judge Spaulding “remanded” the
election contest matter to the City Council to permit a hearing on the issues raised by Mr.
Cole in his complaint pursuant to the provisions of the statute that governs election contests.
See W. Va. Code § 3-7-6 (2002) (Repl. Vol. 2008). While the trial court employed the term
“remanded” in its order, the court further ruled that “this matter is dismissed and stricken
from the court’s docket.”
On September 26, 2007, Mr. Edwards filed a petition with the circuit court
seeking a writ of prohibition to prevent the City Council from holding the hearing that Judge
Spaulding had ordered. As grounds for the relief he was requesting, Mr. Edwards asserted
the failure of Mr. Cole to serve him with notice of the election contest as required by West
Virginia Code § 3-7-6 within ten days of the certification of the election results. This matter
was randomly assigned to Judge Eagloski and a hearing was set for October 26, 2007, to
show cause as to why a writ of prohibition should not issue.
At the hearing before Judge Eagloski on the rule to show cause, Mr. Cole was
permitted to intervene as a party.7 Judge Eagloski concluded that Mr. Cole’s failure to
comply with the mandatory notice requirement of West Virginia Code § 3-7-6 deprived the
7
At the same time Mr. Cole filed a motion to intervene in the proceeding
initiated by Mr. Edwards, he also filed a motion to consolidate the prohibition proceeding
with the election contest action he had filed in circuit court.
4
City Council of jurisdiction to hear the election contest. By order dated November 21, 2007,
Judge Eagloski issued a writ of prohibition through which he ruled that the City Council was
without jurisdiction to address issues raised by Mr. Cole with regard to the June 12, 2007,
mayoral election based on Mr. Cole’s failure to give written notice to Mr. Edwards of his
intent to contest the election pursuant to the requirements of West Virginia Code § 3-7-6.
Through this appeal, Mr. Cole seeks a reversal and vacation of the order entered by Judge
Eagloski, as well as a ruling that the prohibition proceeding Mr. Edwards filed should have
been consolidated with the election contest action he initiated.
II. Standard of Review
A writ of “[p]rohibition lies only to restrain inferior courts from
proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction,
they are exceeding their legitimate powers and may not be used as a substitute for writ of
error, appeal or certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370
(1953). We proceed to determine whether Judge Eagloski correctly determined that the
governing body of Hurricane, the City Council, was without jurisdiction to entertain an
election contest hearing under the facts of this case.
5
III. Discussion
At the center of this case are the statutory requirements imposed by West
Virginia Code § 3-7-6 for contesting the results of an election. Under the statute, the
following action is required for challenging the results of county, district, and municipal
elections:
A person intending to contest the election of another to
any county or district office, . . . shall, within ten days after the
result of the election is certified, give the contestee notice in
writing of such intention and a list of the votes he will dispute,
with the objections to each, and of the votes rejected for which
he will contend. If the contestant objects to the legality of the
election or the qualification of the person returned as elected,
the notice shall set forth the facts on which such objection is
founded. . . .
W.Va. Code § 3-7-6. These requirements are expressly made applicable to municipal
elections: “The provisions of this section apply to all elections, including municipal
elections, except that the governing body of the municipality is the judge of any contest of
a municipal election.” Id.
Mr. Edwards predicated his entitlement to a writ of prohibition on Mr. Cole’s
failure to comply with the notice requirements set forth in West Virginia Code § 3-7-6. In
his verified petition, Mr. Edwards recounts the chronology of events that transpired after the
Hurricane municipal election on June 12, 2007. He avers that the first attempt by Mr. Cole
to comply with the notice requirements of the election contest statute occurred “eighty-five
6
days after the petitioner [Mr. Edwards] was certified by the governing body of the City of
Hurricane as the winner of the June 12, 2007, municipal election for the office of mayor.”
At that time, Mr. Cole “mailed to the defendant, Linda Gibson [Recorder for City of
Hurricane] a document captioned ‘Petition to Contest Election.’”
As Mr. Edwards made clear both in his verified petition and in arguments
before Judge Eagloski, not only did Mr. Cole fail to comply with the ten-day notice
provision mandated under West Virginia Code § 3-7-6, but he never at any time gave Mr.
Edwards written notice as required by statute.8 Mr. Cole’s only attempt to comply with the
statutory notice requirement occurred when he sent notice to the Hurricane City Recorder
of his intent to contest the election on September 19, 2007. Under the provisions of the
election contest statute, that “notice” was more than seventy-five days overdue.
Consequently, Mr. Edwards argued before Judge Eagloski that the City of Hurricane lacked
jurisdiction to hear or determine the “Petition to Contest Election” that Mr. Cole transmitted
to Ms. Gibson in September 2007.
The issue of jurisdiction with regard to contests of municipal elections is wellsettled. In syllabus point one of Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880 (1949),
8
The trial court ruled “that the letter mailed by Mr. Cole’s attorneys to the City
of Hurricane and the lawsuit filed by Mr. Cole against the City of Hurricane were not
adequate in substance to comply with the notice provisions of W. Va. Code § 3-7-6.”
7
we held that “[t]he jurisdiction of the common council of a municipality incorporated under
Article 2, Chapter 8, Code, to hear and decide a contested election involving the selection
of municipal officers is original and exclusive.” Accord In Re Election Contest Between
Moore and Powell, 200 W.Va. 335, 336, 489 S.E.2d 492, 493 (1997).
In State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827
(1952), we addressed the failure to comply with the notice requirements of the election
contest statute.9 Because an election contest is purely a statutory proceeding, failure to
comply with the mandated notice period operates as a bar to the subject matter jurisdiction
necessary to hear such contest. Id. at 438, 73 S.E.2d at 831-32. Consequently, even an
arguably de minimus two-day delay in serving the prescribed notice robbed the county court
of jurisdiction to consider an election contest, as we held in syllabus point four of Staley:
The provision of Section 2, Article 9, Chapter 3, Code,
1931, that the contestant in an election contest involving a
county or district office shall give notice to the contestee within
ten days after the result of the election is declared, is mandatory
and must be strictly complied with; and unless such notice is
given within that time a county court is without jurisdiction to
entertain, hear and determine such contest.
137 W.Va. at 432, 73 S.E.2d at 828, syl. pt. 4. We further ruled that
[a] county court, which by reason of the failure of the
contestant to give notice to the contestee in an election contest
within ten days after the result of the election is declared is
9
While this case was decided under the predecessor statute, West Virginia
Code § 3-9-2, the operative language with regard to the notice provisions remains the same.
8
without jurisdiction to hear and determine such contest, will be
restrained from entertaining, hearing and determining such
contest by writ of prohibition from this Court.
137 W.Va. at 432, 73 S.E.2d at 828, syl. pt. 5.
In his attempt to skirt the mandatory notice requirements, Mr. Cole argues that
Mr. Edwards had constructive notice of the election contest based upon his attendance at the
September 13, 2007, hearing before Judge Spaulding. Given our longstanding recognition
that the ten-day notice period provided in the election contest statute is jurisdictional in
nature, combined with the absence of any case law suggesting that constructive notice is
sufficient to meet those jurisdictional requirements, we find no merit to this argument.10 See
W.Va. Code § 3-7-6; Staley, 137 W.Va. at 438, 73 S.E.2d at 831-32.
Seeking to circumscribe the notice requirements of West Virginia Code § 3-76, Mr. Cole argues that “[s]tatutes providing for election contests should be liberally
construed, in order that the will of the people in the matter of choosing their public officers
may not be defeated by merely technical objections.” Mullens v. Dunman, 80 W.Va. 586,
592-93, 92 S.E. 797, 800 (1917). This argument is of no avail to Mr. Cole because, unlike
the situation in Mullens and the only other case he cites for this proposition, Palumbo v. The
10
We further observe that attendance at a hearing several months after the
election fails to demonstrate that Mr. Edwards had notice, constructive or otherwise, within
the statutorily-mandated ten-day period following certification of the election results. See
W.Va. Code § 3-7-6.
9
County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966), overruled in part
on other grounds, Qualls v. Bailey, 152 W.Va. 385, 164 S.E.2d 421 (1968), the defects in
his case are jurisdictional in nature and not simply a matter of “technical objection.”
Mullens, 80 W.Va. at 593, 92 S.E. at 800. At issue in Mullens was the contestant’s omission
from the notice of the number of votes cast for each of the respective candidates. The
contestees argued that without these numbers there was no indication that the election results
would have been altered if the challenged votes were thrown out. 80 W.Va. at 591-92, 92
S.E. at 799. Upon examination, this Court determined that while it might have been
preferable to have the number of votes that each contestant and contestee received specified
within the notice, that information “was not indispensable.” 80 W.Va. at 592, 92 S.E. at 799.
Based on the inclusion of the specific eleven votes that were being challenged and
particularized grounds as to the basis for challenging each vote, the notice was determined
to be sufficient. The Court reasoned that the information provided in the notice, if proved
true at the election contest proceedings, “certainly ought to have” produced different results
regarding the outcome of the election. 80 W.Va. at 592, 92 S.E. at 800.
In Palumbo, the county court had refused to set the election contest matter for
hearing in the July term of court which was in progress at the time the notice of contest was
timely filed. Under its interpretation of West Virginia Code § 3-7-7 (1963) (Repl. Vol.
10
2006),11 the county court maintained that the contest could not be heard until the term that
started after the notice of contest was presented to the court. Determining that all of the
cases decided by this Court “are uniform in holding that the hearing or trial in an election
contest should be held at the earliest possible time,” we interpreted the applicable statutory
language12 to require that the election contest proceeding be held during the term in which
the cause was filed rather than in the succeeding term of court. 151 W.Va. at 70-73, 150
S.E.2d at 892-94.
What separates Mr. Cole from the candidates in those few cases in which we
have construed the election contest statutes in a liberal manner is his failure to comply with
the most fundamental requirement: service of the notice of contest on Mr. Edwards within
the ten-day period prescribed by statute. See W.Va. Code § 3-7-6. As we made clear in
Staley, the consequence of this procedural defect is the abrogation of jurisdiction to address
an election contest. See 137 W.Va. at 438, 73 S.E.2d at 831-32. Moreover, by suggesting
that we ignore his failure to timely serve Mr. Edwards with the requisite notice, Mr. Cole
completely overlooks the public policy that underlies election contest statutes. As we
11
The language that the county court looked to as support for its position states
as follows: “The notice of contest shall be presented to the county court [county
commission] at its first term after the same is delivered to the person whose election is
contested, and the same shall be docketed for trial in such court.” W.Va. Code § 3-7-7.
12
See supra n.11
11
recognized in Staley, the Legislature has made it clear “that an election result should be
determined and declared with dispatch.” Staley, 137 W.Va. at 439, 73 S.E.2d at 832.
Extending the reasoning we previously employed in Staley with regard to
election contests involving county and district wide elections, we hold that the provision of
West Virginia Code § 3-7-6 that requires a contestant of a municipal election to give notice
to the contestee within ten days after the results of the election have been certified is
mandatory and absent strict compliance with those notice provisions, a governing municipal
body lacks the necessary jurisdiction to hear and determine an election contest. See Syl. Pt.
4, Staley, 137 W.Va. at 432, 73 S.E.2d at 828. Consequently, we conclude that Mr. Cole’s
failure to comply with the notice requirements of West Virginia Code § 3-7-6 was fatal to
his attempt to challenge the results from the June 12, 2007, City of Hurricane mayoral
election.13
Consistent with our ruling in Staley, we hold that a governing municipal body
that lacks jurisdiction to hear an election contest based on the failure of the contestant to
13
We reject without discussion Mr. Cole’s argument that Judge Eagloski erred
by not consolidating the writ of prohibition proceeding with the election contest matter he
filed. Because there was no final proceeding on the merits of the action assigned to Judge
Spaulding, the res judicata arguments that Mr. Cole relied upon to support his motion for
consolidation were inapplicable. See Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc.,
201 W.Va. 469, 498 S.E.2d 41 (1997) (identifying elements necessary to bar further
prosecution under principles of res judicata).
12
comply with the notice provision of West Virginia Code § 3-7-6 will be prevented from
hearing and determining an election contest by writ of prohibition. See Syl. Pt. 5, Staley, 137
W.Va. at 432, 73 S.E.2d at 828. Given the City Council’s lack of jurisdiction to entertain
Mr. Cole’s election contest due to his failure to comply with the statutorily-required notice
provisions, the trial court’s decision to issue a writ of prohibition to prevent the City Council
from holding a hearing on the election contest was not in error. See W.Va. Code § 3-7-6.
Based on the foregoing, the decision of the Circuit Court of Putnam County
to issue a writ of prohibition is affirmed.
Affirmed.
13
