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Kentucky State Board of Elections v. Faulkner

Supreme Court of Kentucky

December 13, 2018

KENTUCKY STATE BOARD OF ELECTIONS; AND ALISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE APPELLANTS
v.
KAREN E. FAULKNER; TANISHA ANN HICKERSON; ANDRE L. BERGERON; AND JEFFERSON COUNTY BOARD OF ELECTIONS APPELLEES

          ON APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE NO. 18-CI-00576

          COUNSEL FOR APPELLANT KENTUCKY STATE BOARD OF ELECTIONS: Daniel Luke Morgan McBrayer, McGinnis, Leslie & Kirkland, PLLC

          COUNSEL FOR APPELLANT ALISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE: Katherine Lacy Crosby Jonathan Todd Salomon Kristin Ellen McCall Tachau Meek, PLC

          COUNSEL FOR APPELLEE KAREN E. FAULKNER: David Seth Kaplan Michael P. Abate Kaplan Johnson Abate & Bird LLP COUNSEL FOR APPELLEE TANISHA ANN HICKERSON: Donald Lee Miller II Paul Jay Painter Quintairos, Prieto, Wood & Boyer P.A.

          COUNSEL FOR APPELLEE ANDRE L. BERGERON: Andre Leon Bergeron Jefferson County Attorney Office

          COUNSEL FOR APPELLEE JEFFERSON COUNTY BOARD OF ELECTIONS: Eric J. Graninger Associate General Counsel Presbyterian Church (U.S.A.) Annale Renneker Taylor

          OPINION

          VENTERS JUSTICE

         The Commonwealth of Kentucky, State Board of Elections (State Board); and Alison Lundergan Grimes in her official capacity as Secretary of State (Secretary), [1] appeal from an opinion and order of the Franklin Circuit Court addressing which candidates are entitled to appear on the ballot of the scheduled November 6, 2018, general election for the District Court Judge of the 9th Division of the Jefferson District Court. The Jefferson County Board of Elections (County Board), though allied with the State Board and the Secretary, is listed as an Appellee in the appeal.

         The case was initially brought as a declaratory judgment action in the Franklin Circuit Court by Appellee Karen E. Faulkner, a candidate in the primary election for the office of District Court Judge for the 9 th Division of the Jefferson District Court.

         Because of the urgency of hearing the matter and issuing a final order in time to ensure an orderly process for the general election of November 2018, this Court heard oral arguments in August of 2018. We issued an order on August 10, 2018, immediately reversing and vacating the order and injunction of the Franklin Circuit Court and reserving the issuance of a formal written opinion. We now issue the opinion pertaining to that order.

         For the reasons explained below, we have concluded that the Franklin Circuit Court had jurisdiction to issue its rulings against the Jefferson County Board and the other parties. We further concluded, however, that KRS Chapter 118A does not provide that the third-place primary election candidate ascends to second place, and hence, to a place on the general election ballot, when either of the top two vote-getters dies after the primary election but before certification of the primary election results.

         Consequently, we reversed the decision of the Franklin Circuit Court and we reaffirm now that third-place finisher Karen E. Faulkner was not entitled to appear on the November 6, 2018 ballot for the election for the District Court Judge of the 9th Division of the Jefferson District Court.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Four candidates appeared on the ballot for the 2018 primary election for the office of Jefferson District Judge, 9th Division. On the day after the primary election, the County Board released the following "unofficial results" of the primary election: Daniel "Danny" Alvarez finished first with 28, 694 votes; Tanisha Ann Hickerson finished second with 22, 470 votes; Karen Faulkner finished third with 22, 453 votes; and Andre L. Bergeron finished fourth with 19, 830 votes.[2] Within hours of that release, Alvarez died.

         KRS H8A.O6O(9) provides that "[t]he two (2) candidates receiving the highest number of votes for nomination for justice or judge of a district or circuit, or numbered division thereof if divisions exist, shall be nominated. Certificates of nomination shall be issued as provided in KRS 118A. 190." Under ordinary circumstances, Alvarez and Hickerson were clearly entitled to the nomination and a place on the November 2018 ballot. However, because Alvarez died on the day after the election, Faulkner believed that under applicable provisions of KRS Chapter 118A, she should be elevated from a third-place finisher to a second-place finisher, and thus, entitled to a certificate of nomination placing her on the November general election ballot. To achieve that result, she filed an action for a declaratory judgment and related injunctive relief in Franklin Circuit Court.

          In its opinion and order, the Franklin Circuit Court directed that the votes cast for Alvarez in the primary election should not be counted. It further ordered the State Board not to issue a certificate of nomination for the general election to the deceased candidate, but instead, to issue certificates of nominations to Hickerson as the first-place finisher and to Faulkner as the second-place finisher. The State Board and Secretary Grimes appealed the circuit court holdings to the Court of Appeals, and we accepted transfer of the case because of the urgent need for a final resolution in advance of the November election.

         As required by KRS 118A. 190(2), the County Board submitted the aforesaid vote counts to the Secretary of State on May 25. On the same day, the Secretary received a request from Faulkner for a recanvass of the results due to the slim margin of seventeen votes between herself and Hickerson. On May 31, the County Board recanvassed the vote for all candidates in that race with the result that no candidate's vote tally changed.

         Also, on May 31, Faulkner filed the present lawsuit in Franklin Circuit Court for a declaration of rights and injunctive relief requiring the State Board of Elections to certify her nomination and place her name on the upcoming November election ballot. Faulkner asserted that, given the fact of Alvarez's death, KRS Chapter 118A provided that she be deemed the second-place vote-getter and thus nominated for the general election.

         In response, the State Board maintained that the relevant provisions of KRS Chapter 118A held that Alvarez's votes must still be counted despite his post-election death, leaving Faulkner as the third-place finisher ineligible for the general election ballot. Pursuant to KRS 189A. 190(3), the State Board planned to certify the results of the primary election on June 5 consistent with the actual vote count tabulated by the County Board and issue certificates of nomination, accordingly. Under that approach, as the only living nominee, Hickerson would be the only living recipient of a certificate of nomination, and virtually assured success in the general election.

         However, the Franklin Circuit Court granted Faulkner's motion and temporarily enjoined the State Board from counting the votes cast for Alvarez in its certification process. The circuit court further enjoined the State Board from issuing a certificate of nomination to Hickerson without also issuing one to Faulkner. In its final opinion and order dated June 25, 2018, the circuit court concluded that KRS 118A. 150(6) requires a county board of elections to amend primary election returns so as to record and tabulate zero votes for any judicial primary candidate who has withdrawn or died before the county board of elections has performed its final act of recordation or tabulation of results on the Friday immediately following the Tuesday primary election. The Franklin Circuit Court thus enjoined the County Board from counting any of Alvarez's votes and it ordered the County Board to amend the election returns to reflect zero votes for Alvarez, thus advancing Faulkner into second place. The circuit court enjoined the State Board and the Secretary of State from issuing a certificate of nomination to Alvarez and ordered the issuance of certificates of nomination to both Hickerson and Faulkner. This appeal followed. Due to the urgency generated by the upcoming general election, we granted transfer of the case to this Court.

         II. JURISDICTION

         Although not raised before the lower court, Appellants now claim for the first time that Franklin Circuit Court lacked subject matter jurisdiction over the case and that Faulkner's case should have been dismissed for that procedural defect. Acknowledging their failure to raise the issue in the lower court, Appellants correctly argue that, in exception to the normal preservation rules, a trial court's lack of subject matter jurisdiction may be raised for the first time on appeal. Commonwealth v. B.H., 548 S.W.3d 238, 245 (Ky. 2018) ("Subject matter jurisdiction cannot be waived or conferred by agreement, and a party may challenge a court's lack of subject matter jurisdiction any time, even for the first time on appeal."); Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 431 (Ky. App. 2008).

         Appellants assert three points of authority in support of their argument that the Franklin Circuit Court lacked subject matter jurisdiction over this case: (1) the circuit court lacked subject matter jurisdiction under Noble v. Meagher, 686 S.W.2d 458 (Ky. 1985), and KRS 118.176; (2) the circuit court lacked subject matter jurisdiction under the Declaratory Judgment Act, KRS 418.005, et. seq.; and (3) the circuit court lacked subject matter jurisdiction because Faulkner's proper avenue for relief arises under the election contest statutes, KRS 120.055 and KRS 120.095, which assign subject matter jurisdiction to the Jefferson Circuit Court rather than the Franklin Circuit Court.

         For the reasons explained below, we conclude that the Franklin Circuit Court had subject matter jurisdiction over this declaratory judgment action.

         1. Noble v. Meagher and KRS 118.176

         Appellants argue that KRS 118.176, which is entitled, "Challenging good faith of candidate," provides the exclusive remedy for challenges to judicial elections. In support of this contention, they cite Noble v. Meagher, 686 S.W.2d at 461, in which we stated:

KRS 118.176 . . . provide[s] the exclusive remedy for challenges to judicial elections. The law does not provide any opportunity to name the Board of Elections or the Secretary of State so as to create jurisdiction in the Franklin Circuit Court. The forum and the procedures have been precisely stated by the General Assembly, and the courts of this Commonwealth have been consistent in holding that such a procedure is the exclusive remedy. See Wooton v. Smith, Ky., 155 S.W.2d 466 (1941); Thomas v. Lyons, Ky., 586 S.W.2d 711 (1979).

         We are persuaded that Noble has no application to the present case. Noble involved a lawsuit by which a candidate for district court judge challenged the residency qualifications of his opponent thirty-two days before the general election. We held in that regard that under KRS 118.176, the proper forum in which to challenge a judicial candidate's qualifications for the office is the circuit court of the county in which the candidate was alleging residence in order to qualify for office of district judge; and that the challenge to the residency qualifications of judicial candidate was required to be brought prior to the primary election pursuant to the statute dealing with challenges to good faith of a candidate, KRS 118.176.[3]

         Noble involved a pre-election challenge to a judicial candidate's legal eligibility to hold the office to which election was sought. Noble has no significant relation to the issue we address-the death of a successful primary-election candidate after the votes were cast but before the certification of those results by the county board of elections. Noble dealt with the eligibility of a candidate after the certification of his nomination, not the death of a candidate before certification. Statutes addressing the former do not resolve questions about the latter. We cannot stretch Noble's holding to cover the present circumstances. Although as further discussed below, more specific statutes address the death of a candidate following an election, those statutes do not address the circumstances we confront in this case.

         Noble is further distinguished upon examination of its underlying rationale, KRS 118.176. KRS 118.176 is concerned with the bona fides of a candidate, and states, as relevant here, as follows:

(1) A "bona fide" candidate means one who is seeking nomination in a primary or election in a special or regular election according to law.
(2) The bona fides of any candidate seeking nomination or election in a primary or in a special or regular election may be questioned ... by an opposing candidate by summary proceedings consisting of a motion before the Circuit Court of the judicial circuit in which the candidate whose bona fides is questioned resides. An action regarding the bona fides of any candidate seeking nomination or election in a primary or in a special or regular election may be commenced at any time prior to the regular election. . . .
(3) In any action or proceeding under this section the burden of proof as to the bona fides of a candidate shall be on the person challenging the bona fides of a candidate.
(4) If the court finds the candidate is not a bona fide candidate it shall so order, and certify the fact to the board of elections, and the candidate's name shall be stricken from the written designation of election officers filed with the board of elections or the court ...

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