Schmitz v. Barron

312 Ga. 523

863 S.E.2d 121

SCHMITZ

v.BARRON, Director et al.

S21A1131

Supreme Court of Georgia.

Decided: September 21, 2021

Ray Stallings Smith, III, Smith & Liss, LLC, Five Concourse Parkway, Suite 2600, Atlanta, Georgia 30328, for Appellant.

Joseph Michael Sibley, Terri René Simmons, Dekalb County Superior Court, 556 N. McDonough Street, Decatur, Georgia 30030, Nancy Ladson Rowan, Assistant County Attorney, David Robert Lowman, Assistant County Attorney, Cheryl Melissa Ann Ringer, Kaye Woodard Burwell, Assistant County Attorney, Office of the Fulton County Attorney, 141 Pryor Street, Suite 4038, Atlanta, Georgia 30303, Alex Benjamin Kaufman, Hall Booth Smith, 191 Peachtree Street NE, Suite 2900, Atlanta, Georgia 30303, Adam Martin Sparks, Joshua Ivan McLaurin, Krevolin & Horst, LLC, 1201 West Peachtree Street NW, One Atlantic Center, Suite 3250, Atlanta, Georgia 30309, Ted Jackson, Fulton County Sheriff's Office, 141 Pryor Street, Atlanta, Georgia 30303, for Appellee.

Bethel, Justice.

In this case, Warren Schmitz contests the results of the November 3, 2020, election to fill the seat for Georgia House of Representatives District 52. House District 52 is situated entirely within Fulton County. The certified election results showed that 17,069 votes were cast for Shea Roberts, and 16,692 votes were cast for incumbent Deborah Silcox, thus making Roberts the winner by 377 votes.

Claiming a variety of irregularities, Schmitz filed a timely petition in Fulton County Superior Court on November 25, 2020, to contest the results of the House District 52 election. On April 22, 2021, that petition was dismissed by the superior court based on its determination that Roberts had to be served with the notice of the election contest under OCGA § 21-2-524 (f) and its finding that Schmitz failed to exercise diligence to see that Roberts was properly served.

On appeal, Schmitz contends that these determinations were erroneous and that the trial court lacked the authority to dismiss the case on this basis. However, we agree with the superior court that OCGA § 21-2-524 (f) requires candidates to be served with notice of the election contest. Moreover, because the findings of the superior court with respect to diligence are supported by the record and because dismissal of the election contest was within the superior court's discretion, we affirm.

1. "Georgia law ... allows elections to be contested through litigation, both as a check on the integrity of the election process and as a means of ensuring the fundamental right of citizens to vote and to have their votes counted accurately." Martin v. Fulton County Board of Registration and Elections , 307 Ga. 193, 194, 835 S.E.2d 245 (2019) ; see also OCGA § 21-2-520 et seq. "But an election contest is, by statutory design, an expedited proceeding — and one that vests in trial courts broad authority to manage the proceeding, including to ‘proceed without delay to the hearing and determination of’ the election contest." Martin , 307 Ga. at 194, 835 S.E.2d 245 (quoting OCGA § 21-2-525 (b) ). "The [General Assembly] has demonstrated that election contests are to be heard with the greatest of expedition by requiring the petition be filed within five days of the consolidation of returns." Swain v. Thompson , 281 Ga. 30, 31, 635 S.E.2d 779 (2006) ; see also OCGA § 21-2-524 (a).

This short time period reflects the [General Assembly's] strong desire to avoid election uncertainty and the confusion and prejudice which can come in its wake. Certainly, the swift resolution of election contests is vital for the smooth operation of government.

(Citation omitted.) Swain , 281 Ga. at 31, 635 S.E.2d 779. As we noted in Martin , "this system balances citizens’ franchise against the need to finalize election results, which, in turn, facilitates the orderly and peaceful transition of power that is a hallmark of our government." 307 Ga. at 194, 835 S.E.2d 245.

In light of the clear public interest in the prompt handling of election contests, delays in their resolution are disfavored. Moreover, we have long held that it is the responsibility of the person bringing an election contest to ensure that the proceedings move in an expeditious fashion, including by ensuring that all defendants and other interested individuals are given proper notice of the election contest. See Swain , 281 Ga. at 32, 635 S.E.2d 779. In light of these principles, we set forth the history of this election contest below.

2. In reviewing the trial court's order dismissing Schmitz's petition, we review only the evidence of diligence presented to the trial court before it made its ruling; additional evidence presented to the trial court after the ruling at issue is not considered on appeal. See State v. White , 282 Ga. 859, 860-861 (1), 655 S.E.2d 575 (2008) (appellate court cannot consider material attached as exhibits to a motion for reconsideration that was not ruled upon by the trial court before the filing of a notice of appeal); see also Givens v. Ichauway, Inc. , 268 Ga. 710, 712 (1), 493 S.E.2d 148 (1997) ("[A]ppellate courts will review only evidence presented to the trial court before its ruling on the motion." (citation omitted)). The record before the superior court when it ruled on Roberts's motion to dismiss showed the following. On November 25, 2020, Schmitz timely filed a verified petition in Fulton County Superior Court to contest the results of that election, naming as defendants Richard Barron (in his official capacity as the Director of Registration and Elections for Fulton County) and the Fulton County Board of Registration and Elections. The petition also identified Roberts and Silcox as the candidates in the House District 52 election, as required by OCGA § 21-2-524 (a) (4), but did not name them as defendants.¹ Among other things, Schmitz's petition alleged that there were more than 377 illegal and improper votes cast in the election for House District 52.

The Fulton County Superior Court Clerk issued the "special process" required by OCGA § 21-2-524 (f) on February 18, 2021.² The special process directed Barron and the Board to answer Schmitz's petition by March 8. Barron and the Board jointly answered the petition on March 19. The superior court entered a notice on March 23, setting a virtual hearing for the case on March 29. Roberts and Silcox were never served with the special process.

On March 26, Roberts filed a motion to intervene, a motion to strike Schmitz's affidavit, a motion to dismiss, and answers and defenses to the petition. In addition to arguments regarding the substance of Schmitz's allegations, Roberts stated that she was never properly served in the case, as required by OCGA § 21-2-524 (f). On March 27, the superior court granted Roberts's motion to intervene and directed that her other motions be docketed. The court's order also stated that "Roberts must be served with the petition."

The court held a virtual hearing on March 29. Silcox was present for that hearing and, the same day, signed an acknowledgment of service that was prepared and notarized by Schmitz's attorney. The court noted that it did not "see that there's been any attempt to have [Roberts] served in this case." Schmitz's counsel responded that he had "repeatedly" asked the Fulton County Superior Court to perfect service and that there had been "multiple e-mails" requesting that service be perfected.

The court replied that "from what I've seen in the record as far as the service ... I have seen nothing that's in the ... record about any efforts." The court stated that it "[planned] to see that those two necessary parties were served in the ... case" and that it wished to examine the efforts that were made to serve the candidates.

At the conclusion of the hearing, the court indicated that it would set an additional hearing to allow the parties to respond to each other's filings and to address issues discussed in the March 29 hearing. The court then issued an order giving the parties and candidates ten days to submit additional or amended filings with responses to any such filings due ten days later.

On April 8, Schmitz filed an amended petition and a response to Roberts's motion to dismiss. In that response, Schmitz stated that he was "coordinating service" upon Roberts and claimed that he "was not required" to name Roberts as a defendant or effectuate service on her. Schmitz further argued that although he had successfully obtained the special process required by OCGA § 21-2-524 (f) from the Clerk, "service of process via the Sheriff's Office was a matter outside [Schmitz's] control." Schmitz then recounted his efforts to have Barron and the Board served with the special process and argued that his efforts to serve Barron and the Board had been diligent. Schmitz reiterated that any delays in service were "caused by matters outside of [his] control."

On April 15, Schmitz filed a motion to "recast" the petition such that, in addition to the original parties, Silcox would be named as a plaintiff and Roberts would be named as a defendant. On April 19, Roberts filed amended answers and defenses and renewed her motion to dismiss the amended petition.

The superior court issued an order on April 22 dismissing the petition. Citing OCGA § 21-2-524 (f) and this Court's decision in Swain , the superior court found that Schmitz had provided no evidence of any efforts to effectuate service on Silcox and Roberts, noting that there was no evidence that Schmitz had provided the clerk with addresses for the candidates at which they could be served. The superior court further found that Schmitz's "lack of diligence" in seeing that service be perfected (including "[a]llowing the case to stagnate for almost two months" before the Clerk prepared the special process) was inexcusable given that Swain requires that election cases "be heard with the greatest of expedition." In light of those findings, the superior court ruled, "as an act of discretion which ...