Submitted April 15, 2015.
Motion for Reargument filed May 28, 2015; Denied June 4, 2015. Case Closed July 8, 2015.
Court Below--Superior Court of the State of Delaware in and for Kent County.
REMANDED TO VACATE.
Julianne E. Murray, Esquire, (argued), Ronald D. Phillips, Jr., Esquire, MurrayPhillips, P.A., Georgetown, Delaware, Attorneys for Petitioner-Below, Appellant.
John W. Paradee, Esquire (argued), Stephen E. Smith, Esquire, Baird Mandalas & Brockstedt, LLC, Dover, Delaware, Attorneys for Respondent-Below, Appellee.
Before STRINE, Chief Justice, HOLLAND, VALIHURA, Justices, NOBLE, Vice-Chancellor, and WALLS, Judge.
This is an appeal by the Petitioner-Below/Appellant, La Mar Gunn (" Gunn" ), from the December 30, 2014, judgment of the Superior Court declaring a tie in the November 4, 2014, general election for the Office of the Recorder of Deeds for Kent County (the " Election" ). This action is an election contest under Chapter 59 of Title 15 which commenced on November 13, 2014, when Gunn filed a Verified Petition Contesting Election (" Petition" ) in the Superior Court. The Respondent-Below/Appellee Betty Lou McKenna (" McKenna" ) filed a Motion to Dismiss, asserting that the Petition failed to allege any facts which would provide the Superior Court with jurisdiction to address the claims asserted by the Petition. In particular, McKenna contended that the Petition failed to satisfy any of the statutory jurisdictional grounds for an election contest set forth in 15 Del. C. § 5941.
In response to McKenna's Motion to Dismiss, Gunn argued that the Petition stated a claim under 15 Del. C. § 5941(1), on the theory that the recount conducted by two Superior Court judges, sitting as the Board of Canvass in Kent County, on November 6, 2014, evidenced " malconduct on the part of election officers or clerks holding the election" within the meaning of 15 Del. C. § 5941(1), because three different counts conducted by the Superior Court, sitting as the Board of Canvass, resulted in three different outcomes. McKenna argued that the two judges of the Superior Court, sitting as the Board of Canvass, are not " election officers or clerks holding the election" within the meaning of 15 Del. C. § 5941(1), and therefore, the claims asserted by Gunn's Petition did not fall within the subject-matter jurisdiction of 15 Del. C. § 5941. A single judge of the Superior Court denied McKenna's Motion to Dismiss, finding that the conduct of the Board of Canvass in Kent County was sufficiently " abnormal," " inadequate," " incorrect or deficient"  to constitute " malconduct" within the meaning of 15 Del. C. § 5941(1).
In this appeal, McKenna contends that the single judge of the Superior Court " missed the key point" in her Motion to Dismiss, to-wit: the two judges of the Superior Court sitting, as the Board of Canvass, are not " election officers or clerks holding the election." Accordingly, McKenna asserts that the claims asserted by Gunn's Petition do not fit within the jurisdictional requirements of 15 Del. C. § 5941(1). Consequently, McKenna argues that the single judge of the Superior Court was without subject matter jurisdiction to entertain Gunn's Petition and should have granted her Motion to Dismiss.
Gunn argues that McKenna's jurisdictional argument is procedurally barred because McKenna did not file a cross-appeal. However, for more than two centuries, the United States Supreme Court has recognized that " [a] litigant generally
may raise a court's lack of subject-matter jurisdiction at any time in the same civil litigation, even initially at the highest appellate instance."  This Court has also held " lack of jurisdiction may be raised at any time on motion of the court [ sua sponte ], even though the parties, by failure to raise the question, may have waived the right."  Accordingly, whenever it appears by suggestion of the parties or by being raised sua sponte that the court lacks jurisdiction, the court must dismiss the action.
We have concluded that Gunn's Petition fails to allege any " malconduct on the part of election officers or clerks holding the election," within the meaning of 15 Del. C. § 5941(1). Accordingly, the Petition fails to satisfy the jurisdictional prerequisites for filing an election contest in the Superior Court under 15 Del. C. § 5941. Therefore, McKenna's Motion to Dismiss should have been granted and the Petition should have been dismissed. Consequently, this matter is remanded to the Superior Court with instructions to vacate its order and judgment dated December 30, 2014.
This appeal relates to the November 4, 2014, general election for the Office of the Recorder of Deeds for Kent County. On November 4, 2014, the Department of Elections declared that Gunn won the Election by two votes, 19,247 to 19,245. Gunn received 18,558 machine votes and 689 absentee votes. McKenna received 18,455 machine votes and 800 absentee votes.
On November 6, 2014, two judges of the Superior Court, sitting as the Board of Canvass in Kent County, convened to certify the Election results, as required by Section 6, Article V of the Delaware Constitution. Because of the closeness of the vote differential, the Board of Canvass was required to recount absentee ballots pursuant to 15 Del. C. § 5702(e). The Board of Canvass conducted three recounts of the absentee ballots. After the first recount, Gunn's lead increased from two to three votes. After the second recount, Gunn's lead increased from three to seven votes. After the third recount, McKenna was ahead by two votes. The two Superior Court judges, sitting as the Board of Canvass in Kent County, certified the third recount.
On November 13, 2014, Gunn filed a verified Petition in the Superior Court contesting the Election results and alleging malconduct pursuant to Del. C. § 5941(1). According to Gunn, certifying the third recount, when each recount yielded a different vote differential, was malconduct by the two judges of the Superior Court, sitting as the Board of Canvass in Kent County. McKenna filed a Motion to ...