Barbara Banister v. Town of Rowlesburg (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Barbara Banister, Petitioner Below, Petitioner November 16, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-1655 (Preston County 11-C-157) Town of Rowlesburg, a West Virginia municipal corporation, and Margaret Schollar, Respondents Below, Respondents MEMORANDUM DECISION Petitioner Barbara Banister ( Ms. Banister ), by her counsel, C. Paul Estep and Steven L. Shaffer, appeals from the Order Denying Petitioner s Appeal of Certification of Election entered by the Circuit Court of Preston County on November 4, 2011. Respondent, Town of Rowlesburg, appears by its counsel, Sheila Kae Williams. Respondent Margaret Schollar ( Ms. Schollar ) appears by her counsel, Neil A. Reed. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and does not disagree with the decision of the circuit court. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. On June 14, 2011, a mayoral election was held in the Town of Rowlesburg, West Virginia. Ms. Banister, who was seeking re-election as Mayor, and Ms. Schollar were both lawful candidates for the office. On June 21, 2011, the canvass of the election was held with the Rowlesburg Town Council sitting as a canvassing board per West Virginia Code § 8-5-17. Five provisional ballots were cast in the election, all of which were denied by the Town Council and none of which are involved in the instant appeal. The results of the election were publicly declared at the June 21, 2011, Town of Rowlesburg meeting with fifty-six votes cast for Ms. Banister and fifty-nine votes cast for Ms. Schollar, after which the Town Council certified the election results. Ms. Banister did not make a request for a recount within forty-eight hours of the canvass as required under West Virginia Code § 3-6-9(b). 1 Ms. Banister filed a Notice of Contested Election with the Town of Rowlesburg on or about June 24, 2011. She alleged that there were at least four ballots1 that were cast unlawfully in the mayoral election, although there was no evidence concerning for whom those votes were cast. On July 21, 2011, the Town Council held a hearing on the election contest during which several witnesses testified, including Ms. Banister, concerning the four ballots. Upon a motion, the Town Council voted to go into executive session and, upon emerging from executive session, voted unanimously to reconvene on July 25, 2011, for the propose of removing the four contested ballots and recounting the remaining ballots. On July 25, 2011, the Town Council reconvened and, upon opening the ballot box, determined that the four ballots could not be identified from all other ballots in the ballot box.2 At that juncture, the Town Council went into executive session with its attorney to consider the town s legal options. Upon emerging from executive session, a motion was made to uphold the original election results and to deny Ms. Banister s election contest. The motion passed and Ms. Schollar was declared the winner of the mayoral election. On August 23, 2011, Ms. Banister filed an Appeal of Certification of Election in the circuit court pursuant to West Virginia Code § 3-7-7. After the parties briefed the issues below, the circuit court held a hearing on the appeal on October 24, 2011, during which the parties were represented by their respective legal counsel. Thereafter, on November 4, 2011, the circuit court entered an order denying Ms. Banister s appeal. Her appeal to this Court followed. Ms. Banister raises several issues on appeal to this Court: that the election was prematurely certified by the Town Council without giving her the statutory forty-eight hour period within which to demand a recount; that the canvass was deficient; that a new election should have been ordered; and that the Town Council violated the Open Governmental Proceedings Act [West Virginia Code § 6-9A-1 through § 6-9A-12] during the election contest proceedings. In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to de novo review. Syl. Pt. 2, Walker v. WV Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). 1 Ms. Banister alleged that three members of the same family wrongfully voted because they reside outside the Rowlesburg corporate limits and that another person, who is not a resident of Rowlesburg, voted on his father s registration. 2 The Town of Rowlesburg states in its appellate brief that [i]t is apparent that in the future, the training of poll workers must be addressed . . . . Hopefully, such training will take place prior to the next election in the Town of Rowlesburg. 2 With this standard in mind, the Court has considered the merits of the arguments set forth in the parties briefs, it has reviewed the designated appendix, and it has reviewed the circuit court s Order Denying Petitioner s Appeal of Certification of Election entered on November 4, 2011. We find neither an abuse of discretion nor clear error in the circuit court s order and, therefore, adopt and incorporate by reference the circuit court s findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. Affirmed. ISSUED: November 16, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Margaret L. Workman Justice Thomas E. McHugh DISSENTING: Justice Robin Jean Davis Justice Brent D. Benjamin 3
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