In the Supreme Court of Georgia
Decided: September 21, 2021
S21A1131. SCHMITZ v. BARRON, DIRECTOR et al.
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 SE2d
245) (2019); see also OCGA § 21-2-520 et seq. “But an election
contest is, by statutory design, an expedited proceeding — and one
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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
(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 SE2d 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. 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.
In light of the clear public interest in the prompt handling of
election contests, delays in their resolution are disfavored.
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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. 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 SE2d 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 SE2d 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
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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,
1 OCGA § 21-2-524 (a) provides, in relevant part, as follows:
A petition to contest the result of [an] election shall be filed in the
office of the clerk of the superior court having jurisdiction within
five days after the official consolidation of the returns of that
particular office . . . and certification thereof by the election official
having responsibility for taking such action under this chapter . . .
and shall allege:
(1) The contestant’s qualification to institute the contest;
(2) The contestant’s desire to contest the result of such primary or
election and the name of the nomination, office, or question
involved in the contest;
(3) The name of the defendant;
(4) The name of each person who was a candidate at such primary
or election for such nomination or office in the case of a contest
involving same;
(5) Each ground of contest;
(6) The date of the official declaration of the result in dispute;
(7) The relief sought; and
(8) Such other facts as are necessary to provide a full, particular,
and explicit statement of the cause of contest.
5
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
2 OCGA § 21-2-524 (f) provides as follows:
Upon such petition being filed, the clerk of the superior court shall
issue notice, in the form of special process directed to the sheriff of
such county, requiring the defendant and any other person named
in such petition as a candidate for such nomination or office, if any,
to appear and answer such petition, on a day to be fixed in such
notice, not more than ten days nor less than five days after the
service of such notice. Such notice, with a copy of the petition
attached, shall be served by the sheriff upon the defendant and
any other person named therein in the same manner as petitions
and process are served in other civil cases. On or before the day
fixed in such notice, unless for good cause shown the presiding
judge shall extend the time therefor, the defendant shall appear
and answer such petition and may set up by way of answer or cross
action any right of interest he or she may have or claim in such
proceeding. Any other person who was a candidate at such primary
or election for the nomination or office involved and upon whom
notice was served as provided in this subsection shall be deemed a
litigant to such proceeding and may set up by way of answer or
cross action any right of interest or claim he or she may have.
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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
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“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
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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
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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 the court takes with great seriousness”
that Roberts’ motion to dismiss should be granted and that the
election contest should be dismissed in its entirety.
On April 28, Schmitz filed a motion for reconsideration, which
the superior court did not rule upon before Schmitz filed a notice of
appeal directed to this Court just two days later, on April 30. He
amended the notice of appeal on May 14.3
3 In his motion for reconsideration, Schmitz included a lengthy set of exhibits and detailed for the first time his efforts to have the Clerk issue the special process required by OCGA § 21-2-524 (f) and to have the special process served on Roberts by the Fulton County Sheriff. The motion and its exhibits reflect the following. On December 1, 2020, Schmitz sent a letter to the Fulton County Sheriff’s Office requesting that Barron and the Board be served with the complaint and summons. Schmitz provided the Sheriff’s office addresses for both Barron and the Board. The Sheriff served Barron on December 21, 2020. On February 9, 2021, Schmitz’s attorney sent a letter to the Fulton County Superior Court Clerk indicating that the Clerk had not set a date for the defendants or Roberts to respond and had not issued special process to be served on Roberts. Schmitz requested that the Clerk take these actions “as soon as possible.” The Clerk acknowledged receipt of the letter on February 17,
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3. Although election contests are governed by various portions
of Georgia’s Civil Practice Act, see, e.g., Martin, 307 Ga. at 210 (2),
the Election Code sets forth a number of procedural requirements
that are unique to election contests. Among those is the requirement
set forth in OCGA § 21-2-524 (f) requiring the clerk of the court in
which the contest is filed to issue “special process” that is to then be
served by the sheriff on the defendants to the contest as well as each
candidate in the election being challenged. Although this statute
specifies duties only for the clerk and sheriff, we have held that even
where the clerk fails to act as OCGA § 21-2-524 (f) requires, “judicial
2021 and indicated that the letter was being forwarded to the assigned judge’s law clerk. Schmitz replied and told the Clerk that he believed that the Clerk, not the judge or her law clerk, was required by statute to issue the special process. That evening, the assigned judge’s law clerk sent a message directing Schmitz’s letter to the Fulton County Superior Court Clerk and requesting that the Clerk issue the special process. Following the March 29 hearing, counsel for Schmitz and Roberts corresponded about the possibility of Roberts acknowledging service of the special summons. Those discussions proved fruitless, and Schmitz’s counsel contacted the Sheriff’s office to request expedited service of the special process on Roberts. The Sheriff’s office indicated that expedited service would not be provided. Although all of this information paints a disconcerting picture of the diligence court, Clerk’s office, and Sheriff’s office personnel exercised in performing their legal obligations under the statute and would have been relevant to the superior court’s findings regarding diligence, because it was not presented to the superior court before it entered the order from which Schmitz appeals, we do not consider such information in this appeal. See White, 282 Ga. at 860-861 (1).
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recognition of the clerk’s duty in election cases to issue process in
the proper form does not end the inquiry.” Swain, 281 Ga. at 31 (2).
Instead, in recognition of the legal requirements reflecting the
General Assembly’s policy of expediting election contests, we have
held that “recognition of the clerk’s duty to issue proper process
must be balanced against the traditional placement on plaintiffs of
the duty to ensure proper and timely service.” Id. Specifically, “once
the plaintiff becomes aware of a problem with service,” he must
exercise “the greatest possible diligence to ensure proper and timely
service.” (Citation and punctuation omitted.) Id. at 32 (2).
As we held in Swain, receipt of an answer and motion to
dismiss from an opposing party asserting insufficiency of service
“should [inspire the plaintiff] to exercise the greatest possible
diligence to ensure proper and timely service.” Id. And where the
plaintiff, in light of such notice, does not exercise diligence in seeing
that the party complaining of lack of service is served by the time of
a hearing on a motion to dismiss, it is within the superior court’s
discretion to dismiss the election contest. See id. This Court reviews
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such a decision only for an abuse of the superior court’s discretion,
and the superior court’s findings in an election contest will not be
disturbed unless clearly erroneous. See id.
Here, the record, as it existed at the time of dismissal, supports
the superior court’s determination that, despite repeated indications
that Roberts had never been served with the special process
required by OCGA § 21-2-524 (f), Schmitz did not exercise diligence
in ensuring that, once issued by the Clerk, the special process was
served on Roberts by the Sheriff. Although Schmitz’s counsel
represented at the March 29 hearing that there had been “multiple”
communications with the Clerk about issuing the special process,
Schmitz presented no evidence of those efforts or efforts to contact
the Sheriff’s office to the superior court before it dismissed Schmitz’s
petition.4
4 Although Schmitz has largely addressed his arguments to supposed delays on the part of Clerk and Sheriff in this case, we note that it took over two months for a judge to be assigned to this case once it was transferred from the Fifth Judicial Administrative District to the Fourth Judicial Administrative District pursuant to OCGA § 21-2-520. We caution superior courts that, like parties, the clerk, and the sheriff, they too have a duty under
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We also reject Schmitz’s efforts to distinguish this case from
Swain. In particular, we disagree with his contention that Swain
does not apply because Roberts was not named as a defendant in the
petition contesting the election in this case. As Schmitz rightly
points out, in Swain, the party who was not served was listed as a
defendant in the petition contesting the election at issue in that
the Election Code to see that election contests are managed efficiently and expeditiously. See Martin, 307 Ga. at 194 (“[A]n 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.” (quoting OCGA § 21-2-525 (b)).
We further recognize that the process of serving parties and candidates under OCGA § 21-2-524 (f) differs markedly from the normal process of serving parties to a civil case. As Schmitz suggests, a situation could arise in which a petitioner is left at the mercy of an uncooperative court clerk or sheriff who refuses to carry out the duties prescribed by OCGA § 21-2-524 (f). Demonstrating diligence in effectuating service despite such obstacles is one remedy available to the petitioner, and there may be others. However, the question of how best, if at all, to give the petitioner in an election contest the ability to effectuate service on defendants and candidates without the involvement of the clerk or sheriff is a question of policy left to the General Assembly. As we have noted,
striking the right balance between competing legitimate policy
interests is a political question, and this Court is concerned only
with legal questions. As members of this State’s judicial branch, it
is our duty to interpret the laws as they are written. We leave
political questions to the political branches, and the policy
arguments in this case are properly directed to the General
Assembly.
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 174 n.11 (751 SE2d 337) (2013).
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case. However, the text of OCGA § 21-2-524 (f) makes no distinction
between parties and non-party candidates with regard to service of
the special process. The statute’s text provides that the special
process “shall be served by the sheriff upon the defendant and any
other person named therein[.]” OCGA § 21-2-524 (f). Thus, this
contention fails.
Moreover, as in Swain, the record before the superior court
supports the court’s finding that Roberts was never served and that
Schmitz did not exercise diligence in seeing that she was served
despite receiving notice of defects in service at least as early as the
date of Roberts’s intervention in the case and the filing of an answer
and a motion to dismiss raising the issue of insufficiency of service.
See Swain, 281 Ga. at 32 (2) (noting that “[c]ertainly,” the
defendant’s motion to dismiss “triggered the duty of greatest
possible diligence” to see that the defendant was properly served).
As Swain clearly indicates, the failure to diligently pursue service
as required by OCGA § 21-2-524 (f) provides grounds for dismissal
of an election contest regardless of the participation of an individual
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who raises issues about the sufficiency of service of process. Here,
because the superior court’s findings in relation to diligence were
not clearly erroneous, its decision to dismiss the election contest for
lack of service under OCGA § 21-2-524 (f) did not constitute an abuse
of discretion. See Swain, 281 Ga. at 32 (2).
Judgment affirmed. All the Justices concur.
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