ST. THOMAS-ST. JOHN BOARD OF ELECTIONS, Appellant/CrossAppellee/Defendant v. HARRY DANIEL, Appellee/Cross-Appellant/Plaintiff
St. Thomas-St. John Board of Elections v. Daniel
ST. THOMAS-ST. JOHN BOARD OF ELECTIONS, Appellant/Cross-Appellee/Defendant v. HARRY DANIEL, Appellee/Cross-Appellant/Plaintiff
ST. THOMAS-ST. JOHN BOARD OF ELECTIONS, Appellant/Cross-Appellee/Defendant v. HARRY DANIEL, Appellee/Cross-Appellant/Plaintiff
S. Ct. No. 2007-96
Supreme Court of the Virgin Islands
September 17, 2007
Terryln M. Smock, Esq., Tamika Archer, Esq., and Aquannette Chinnery-Montell, Esq., Assistant Attorneys General, St. Thomas, USVI, Attorneys for Appellant.
Clive Rivers, Esq., Law Offices of Clive Rivers, St. Thomas, USVI, Attorney for Appellee.
CABRET, Associate Justice
OPINION OF THE COURT
(September 17, 2007)
This appeal concerns the failure of the St. Thomas-St. John Board of Elections (the "Board") to certify Harry Daniel ("Daniel") as one of thirty elected delegates to the Virgin Islands Fifth Constitutional Convention (the "Convention"). Daniel, a resident of St. John and a candidate for delegate from the St. Thomas-St. John district, filed an action in the Superior Court of the Virgin Islands against the Board seeking injunctive, declaratory and alternative mandamus relief requiring the Board to certify him as a winner of the special election for delegates to the convention. After a trial in the matter, the Superior Court granted Daniel mandamus relief and ordered the Board to certify him as a delegate. The Board appealed, asserting that the trial court erred by failing to completely bar Daniel's claim based on laches, and by granting mandamus relief. In a cross-appeal, Daniel argues that the trial court correctly recognized his challenge to the Board's refusal to certify him as a delegate, but erred in barring his post-election contest to the form of the ballot. For the reasons which follow, we reverse the decision of the Superior Court and remand with instructions to dismiss Daniel's complaint.
I. FACTS AND PROCEDURAL HISTORY
On September 29, 2004, the Virgin Islands Legislature passed Act No. 6688 (2004 V.I. Sess. Laws 191) ("Act 6688") to establish the Fifth Constitutional Convention. Act 6688 was signed into law on October 29, 2004. According to Act 6688, the Convention is to be comprised of thirty delegates. Of these thirty delegates, Act 6688 requires that "[t]hirteen delegates shall be elected from the district of St. Thomas-St. John, who shall be residents of either St. Thomas or St. John, provided that not fewer than two delegates shall be residents of St. John." Act of Oct. 18, 2004, Bill No. 25-0016, 2004 V.I. Sess. Laws 191, § 1(d)(2) (emphasis supplied). Section (1)(h)(1) of Act 6688 provides that "[e]xcept as otherwise provided in this Act, the special election shall be governed by the election laws of the Virgin Islands, as provided under title 18 [sic] Virgin Islands Code." V.I. CODE Ann. tit. 18, § 47 authorizes the Boards of Elections, within their respective election districts, to regulate elections and to certify the results of elections.
The special election for delegates was scheduled for June 12, 2007. In preparation for the election, a ballot was created and available for viewing at the offices of the Board of Elections in both districts. The ballot listed all candidates from the St. Thomas-St. John district on a single slate and instructed voters to select no more than thirteen candidates from the St. Thomas-St. John District, provided that not fewer than two delegates were residents of St. John. The ballot language concerned several members of the Board, and on June 2, 2007, seven members of the Joint Board of Elections convened an emergency meeting at which they unanimously voted to revise the St. Thomas-St. John district section of the ballot. Upon being informed of the Board's decision, the Supervisor of Elections approved the revision. The revised ballot separated the St. Thomas and St. John candidates into two slates and instructed voters to select eleven candidates from the St. Thomas slate and two candidates from the St. John slate. The electronic voting machines were likewise reprogrammed to limit the voters' selection to eleven candidates from St. Thomas and two candidates from St. John. Daniel was listed on the slate of St. John candidates.
The changes to the ballot received immediate coverage in the news media. On June 2, 2007, the same day the Board decided to revise the ballot, a local radio station broadcast a report on the ballot revisions. On June 4, 2007, The Virgin Islands Daily News (the "Daily News") published a front page headline stating: "Virgin Islands Constitution ballot changes." (Tr. at 245.) An article about the ballot changes was printed on page two of the paper, and, upon questioning by the Court, Daniel acknowledged that he saw the headline on the front page, but claimed he did not read the article discussing the ballot changes. On June 5, 2007, the Daily News published another article about the ballot revisions. This article was headlined: "Elections officials approve revised ballots." (Supplemental App. at 73.) The article informed readers that "[a]nother portion of the ballot was changed in the St. Thomas-St. John district. Because two district candidates must come from St. John, candidates from that island have been separated on the ballot and instructions direct voters to select 11 candidates from St. Thomas and two from St. John for the district seats." (Supplemental App. at 73.) The article stated that voting machines would be reprogrammed to reflect the change and to prevent votes that would lead to spoiled ballots. Daniel admitted to the Court that he read the June 5, 2007 article and that it advised him that the ballot had been revised.
A third article about the revised ballot appeared in the June 6, 2007 issue of the Daily News. This article was headlined: "Revamped constitutional convention ballots sent to absentee voters." (Supplemental App. at 75.) Daniel acknowledged that he read the headline, but denied reading the article. Upon questioning by the Court as to why he did not read the article, Daniel explained: "I didn't expect the election to turn out the way it did. I saw it. I figured the revised ballots were sent out to the absentee voters and I just waited until the election to see what they would think." (Tr. at 250.) On June 7, 2007, the Daily News published a sample ballot depicting the two slates of candidates with the instructions described above. Daniel acknowledged reading the sample ballot.
There were no challenges to the revised ballot in the week leading up to the election. The Supervisor of Elections testified that during the week prior to an election, including the weekend, he and his staff are available to address any election matters that arise. The Supervisor of Elections further testified that, if he had received a complaint about the ballot, he would have forwarded it to the Board, which could have revised the ballot.
The special election for convention delegates was conducted as scheduled on June 12, 2007. Daniel received the third highest vote total of the St. John candidates and eighth highest vote total in the St. Thomas-St. John district. On June 15, 2007, three days following the special election, Daniel submitted a formal complaint to the St. Thomas-St. John Board of Elections challenging the ballot that was used. On June 23, 2007, the Board certified the election results and did not include Daniel as a successful candidate. After a hearing on Daniel's complaint, the Board denied his request to be seated as a delegate to the Convention. Daniel subsequently appealed to the Joint Board of Elections, which on July 19, 2007, also denied him relief upon ruling that the appeal was improperly before them. Daniel filed his Superior Court action the same afternoon seeking relief to declare him among the winners of the special election. In his Complaint, Daniel alleged that the defendants violated the mandate of Act 6688 by allowing only two delegates to be elected from St. John when the Act provided that "not fewer than two delegates shall be residents of St. John." (J.A. at 41.) (emphasis supplied).
The Superior Court, finding that Daniel would suffer irreparable harm in the absence of temporary injunctive relief, issued a temporary restraining order on July 20, 2007, preserving the status quo by delaying the date for the investiture of the delegates until a hearing could be held. After trial on the matter, the Superior Court determined that Daniel's action was partially barred by the doctrine of laches. The court found that Daniel had constructive notice of the revision as early as June 2, 2007, and actual knowledge of the revisions on June 4, 2007. The court further found that Daniel had adequate time to challenge the ballot and "did not exercise reasonable diligence by waiting to see whether he finished among the top two St. John candidates in the election results before asserting a challenge to the format of the revised ballot." (J.A. at 10.)
The trial court also found that the Board was prejudiced by Daniel's failure to exercise due diligence in asserting his challenge to the revised ballot. As noted by the trial court, "if Daniel succeeds in his belated challenge, a new special election would have to be held at great cost to the Territory." (J.A. at 11.) In this regard, the Supervisor of Elections testified at trial that more than $100,000 was spent to conduct the special election in the St. Thomas-St. John district. In addition to the costs of facilitating another special election, the trial court took judicial notice that the Virgin Islands Code treats election days as legal holidays. Therefore, the trial court found that holding a second special election would require the government to close for another election day. Based on the findings that Daniel did not exercise due diligence in challenging the ballot and that his lack of diligence prejudiced the Board, the court concluded that laches barred him from asserting a post-election challenge to the ballot.
The trial court reviewed as a separate question the issue of whether laches also barred Daniel from challenging the Board's refusal to certify him as a delegate to the Convention. In this regard, the court found that following the election, Daniel diligently contested the Board's failure to recognize him as an elected delegate. The court ruled that Daniel had a clear right to be seated as a delegate because he placed eighth in the St. Thomas-St. John district and, unlike the ballot, Act 6688 did not place any upper limit on the number of delegates who could be elected from St. John. The court thus found that the Board was required to certify Daniel as a delegate and, because he had no other adequate remedy, issued mandamus relief to compel this result.
The Board filed the instant appeal asserting that, although the trial court correctly ruled that laches barred Daniel's post-election ballot challenge, it erred in not ruling that laches also barred his challenge to the Board's failure to certify him as a delegate. In his cross-appeal, Daniel conversely argues that the trial court correctly recognized his claim that the Board was required to certify him as a candidate, but the court erred in ruling that laches barred his post-election challenge to the form of the ballot.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to title 4, section 32(a) of the Virgin Islands Code, which vests the Supreme Court with jurisdiction over "all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court." The standard of review for this Court in examining the Superior Court's application of law is plenary. See Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir. 1986). Findings of fact are reviewed on appeal under a clearly erroneous standard of review. Id. "[T]he appellate court must accept the factual determination of the fact finder unless that determination 'either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.'" Haines v. Liggett Group, Inc., 975 F.2d 81, 91-92 (3d Cir. 1992) (citations omitted).
As a general rule, "the existence of laches is a question primarily addressed to the discretion of the trial court, . . . [but] that discretion is free to operate only within narrowly defined parameters." Churma v. U.S. Steel Corp., 514 F.2d 589, 592-93 (3d Cir. 1975) (internal quotations and citation omitted). The elements of laches, inexcusable delay and prejudice, comprise not only discretionary components but also questions of law and fact, which are to be reviewed as such. Id. at 593. Thus, we review the elements of laches under the following standards:
Both the length of delay and the existence of prejudice are questions of fact to be reviewed by this court according to the "clearly erroneous" standard. On the other hand, the conclusion that a delay is "inexcusable" comprehends both the application of a legal standard and an exercise of the trial court's sound discretion in assessing the equitable circumstances of a particular case. Whether the [trial] court has utilized the correct legal principles is freely reviewable by this court, but we will not disturb the trial judge's assessment of the equities absent an abuse of discretion.
Id. (internal citations omitted).
III. DISCUSSION
Laches is an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure that bars a plaintiff's claim where there has been an inexcusable delay in prosecuting the claim in light of the equities of the case and prejudice to the defendant from the delay. See Cook v. Wikler, 320 F.3d 431, 438 (3d Cir. 2003); Churma, 514 F.2d at 593. "Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Costello v. United States, 365 U.S. 265, 282, 81 S. Ct. 534, 543, 5 L. Ed. 2d 551 (1961). "In the context of elections, this means that any claim against a state electoral procedure must be expressed expeditiously." Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (citation omitted). Where a complainant fails to exercise the requisite expedience in raising a pre-election claim,
the courts have been wary lest the granting of post-election relief encourage sandbagging on the part of wily plaintiffs. As the Fourth Circuit put it, the "failure to require pre-election adjudication would permit, if not encourage, parties who could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate and then, upon losing, seek to undo the ballot results in a court action."
Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176, 1180 (9th Cir. 1988) (citing Hendon v. N.C. State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983) (quoting Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973))).
We are aware of only one other Virgin Islands decision that has addressed the laches issue in the context of an election challenge. In Golden v. Government of the V.I., Civ. No. 2005/0005, Slip op. (D.V.I. Mar. 1, 2005), the District Court of the Virgin Islands ruled that laches barred an election contest under circumstances similar to ours. In Golden, one of the plaintiffs, Carmen Golden, sought re-election to the St. Croix Board of Elections as a Democrat. Only one seat was certified for the Democratic primary, and Golden was not elected to that seat upon receiving the second highest number of votes. In the general election four seats were open, and Golden received the fourth highest number of votes as a write-in candidate. Golden was ultimately denied a seat on the board, however, because the Democratic seats were full, and Golden was enrolled in the election as a Democrat. Golden and her husband subsequently challenged that decision, arguing that two Democratic seats should have been certified for the Democratic primary. The court concluded that the plaintiffs' claim was barred by laches. Specifically, the court found that the plaintiffs
were well aware that only one seat had been certified for the Democratic primary, when they believed that two seats should have been certified. They lacked diligence by waiting to see whether their candidate of choice won the one certified seat, before bringing a legal action arguing that a second seat should have been certified. The doctrine of laches bars such post-election 'sandbagging on the part of wily plaintiffs.'
Golden, slip op. at 11 (quoting Soules, 849 F.2d at 1180).
The instant case is virtually indistinguishable from Golden in all material respects. Here, Daniel was well aware that according to the revised ballot only two seats were available for St. John candidates in the special election, when he believed that there should not have been any upper limit on the number of such seats. Daniel lacked diligence by waiting to see whether he would win one of those two seats. Similar circumstances justified the imposition of laches in Golden, and the evidence in the instant case supports the trial court's decision that laches barred Daniel from waging his post-election challenge to the composition of the ballot.
Specifically, there is ample evidence to support the trial court's findings concerning the length of the delay. The evidence shows that on June 4, 2007, Daniel had actual knowledge that the ballot had been revised. Daniel acknowledged reading the newspaper headline reporting the ballot change. Furthermore, even if Daniel could claim that he did not learn about the specifics of the ballot revisions on June 4, 2007, he acknowledged reading a newspaper article on June 5, 2007, which provided a detailed account of the ballot revision. Daniel further conceded that he reviewed a sample ballot published in the newspaper on June 7, 2007. This Court must accept the factual determinations of the trial court unless the determinations are completely devoid of minimum evidentiary support displaying some hue of credibility, or bear no rational relationship to the supportive evidentiary data. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91-92 (3d Cir. 1992). In light of the evidence of record, the trial court's determination that Daniel had ample pre-election notice of the revision is not clearly erroneous.
The record further supports the trial court's determination that Daniel's delay in lodging his complaint was inexcusable. Despite his knowledge of the ballot change, Daniel remained silent and gambled that he would be elected as a delegate. Daniel's testimony regarding his silence merits repetition: "I didn't expect the election to turn out the way it did. I saw it. I figured the revised ballots were sent out to the absentee voters and I just waited until the election to see what they would think." (Tr. at 250.) The case law is replete with opinions chiding such dilatory conduct. See, e.g., Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d at 1180 ("courts have been wary lest the granting of post-election relief encourage sandbagging on the part of wily plaintiffs"); Hendon v. N.C. State Bd. of Elections, 710 F.2d at 182 (same); Golden, slip op. at 11 (same); Toney v. White, 488 F.2d at 314 ("the failure to require prompt pre-election action in such circumstances as a prerequisite to post-election relief may permit, if not encourage, parties who could raise a claim 'to lay by and gamble upon receiving a favorable decision of the electorate' and then, upon losing, seek to undo the ballot results in a court action"); Jordan v. Cook, 277 Ga. 155, 587 S.E.2d 52, 53 (2003) ("[w]e wholly reject the notion that the laws of this State allow a candidate to sit on his rights hoping for the best and, only after the voters have participated in the democratic process to elect their representative, file an appeal"); Lewis v. Cayetano, 72 Haw. 499, 823 P.2d 738, 741 (1992) ("efficient use of public resources demand that we not allow persons to gamble on the outcome of the election contest then challenge it when dissatisfied with the results"); Flake v. Bd. of Elections of NYC, 122 A.D.2d 94, 504 N.Y.S.2d 465 (1986) ("[ajlthough it appears that there was sufficient time for a court to rectify the omission, candidate Flake failed to seek any affirmative relief from the court which had ordered his name on the ballot. In a word, he slept on his rights and allowed the election to go forward with full knowledge that his name would not appear on the absentee and military ballots").
Indeed, the evidence shows that if Daniel had expeditiously raised his complaint, there was little, but still adequate time for the Board to address the deficiency before the June 12, 2007, special election. The Supervisor of Elections testified that within a week of an election his staff is available to handle any inquiries or challenges by the candidates. He also testified that had he been notified of a complaint, he would have forwarded the complaint to the Board which could have revised the ballot. Moreover, the record demonstrates that the Supervisor of Elections was capable of changing the ballot within five days. This is evidenced by the fact that the Board's June 2, 2007 revision of the ballot was published in the newspaper on June 7, 2007, just five days after the revision was approved.
In light of these facts, we find that the trial court did not abuse its discretion in assessing the equitable circumstances attending Daniel's delay. Simply put, Daniel knew about the ballot revision before the election, yet failed to lodge a pre-election complaint. Although there was sufficient time for the Board to address Daniel's claim, had he raised it, Daniel decided to wait until after the election to see if he would be elected notwithstanding the ballot instructions. Furthermore, we agree with the trial court's conclusion that the length of delay and the associated equitable circumstances, rendered Daniel's delay in challenging the ballot inexcusable.
In the instant case, the record also contains ample evidence to support the trial court's finding that the defendants were "clearly prejudiced by Daniel's lack of diligence in challenging the format of the revised ballot . . . ." (J.A. at 11.) The evidence shows that in the week preceding the special election, Daniel's ballot challenge was ripe for review, yet he did nothing to inform the Board or Supervisor of Elections that he perceived a problem with the ballot. During this time, the Board and Supervisor of Elections expended significant resources proceeding with election preparations and overseeing the election itself, unaware that Daniel had a grievance concerning the ballot. Indeed, the trial court found that the Joint Board of Elections "spent more than $100,000 to conduct the special election in the St. Thomas-St. John district..." (J.A. at 11.) The trial court further found that "within a week of an election [the Supervisor of Elections] and his staff is available during ample weekend hours and on Election Day to handle any inquiries or challenges by the candidates. Notwithstanding this, Daniel did not assert any pre-election challenge to the revised ballot." (J.A. at 9-10.)
These facts clearly show that the Board and Supervisor of Elections were prejudiced by Daniel's silence. The Board relied on the absence of any challenge and the correctness of the ballot as it expended significant time and resources preparing for and overseeing the election. See Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (prejudice caused where state expended significant resources preparing for election ignorant of candidate's ballot concern and court concluded "the failure of the appellant to press his case when he should have known that an injury had occurred is fatal to his receiving any relief'); Ross v. St. Bd. of Elections, 387 Md. 649, 876 A.2d 692, 706 (2005) ("[t]he State Board likewise was prejudiced because it too relied upon the correctness of the ballots and expended considerable efforts in overseeing the election when Branch's candidacy could have been protested judicially prior to the election on November 2nd"). Furthermore, although the Board and Supervisor of Elections had the time and resources available to deal with a ballot contest before the election, they had no opportunity to address Daniel's challenge because he remained silent. The prejudice caused by Daniel's failure to timely assert his challenge is even more disturbing considering evidence showing that if he had expeditiously raised his complaint, there was ample time for a revised ballot to be prepared for the special election. Accordingly, the trial court's finding of prejudice was not clearly erroneous. Thus, in light of the prejudice caused by Daniel's inexcusable delay in challenging the ballot, we find no merit in his cross-appeal, and agree with the trial court's decision to bar his post-election challenge to the form of the ballot.
Before turning to the Board's assertion that the trial court erroneously failed to bar Daniel's Board certification claim, we must first address Daniel's claim that equity precludes the Board from raising the assertion. Specifically, Daniel argues that the equitable doctrine of unclean hands bars the Board from challenging the trial court's decision. Daniel failed, however, to raise this argument below. Appellate courts generally refuse to consider issues that are raised for the first time on appeal. See Newark Morning Ledger, Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976). "[Ajbsent exceptional circumstances, an issue not raised in the [trial] court will not be heard on appeal." Franki Found. Co. v. Alger-Rau & Assocs., Inc., 513 F.2d 581, 586 (3d Cir. 1975). Daniel has not presented this Court with any exceptional circumstances to warrant waiver of the general rule. Therefore, this Court will not consider the doctrine of unclean hands.
Furthermore, on appeal to this Court, the scope of our review is restricted to those questions that were properly preserved for review in the trial court and further raised on appeal according to the rules of this Court. See V.I. S. Ct. R. 22(a)(3) (appellant's brief must contain a statement of the issues presented for review, which must "include a designation by reference to specific pages of the appendix or place in the proceedings at which each issue on appeal was raised, objected to, and ruled upon; and a statement of the standard or scope of review for each issue on appeal"); V.I. S. CT. R. 22(a)(5) (appellant's argument must "contain the contentions of appellant with respect to the issues presented, the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on"); see also Frank v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990) ("[p]articularly where important and complex issues of law are presented, a far more detailed exposition of argument is required to preserve an issue."); Daggett v. Kimmelman, 811 F.2d 793, 795 n.1 (3d Cir. 1987) ("[b]y failing to raise this issue in their original briefs, appellants simply did not appeal the district court's conclusion that these state defendants are not liable for counsel fees, and thus we do not consider this issue here"); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976) ("[w]e generally refuse to consider issues that are raised for the first time on appeal"); Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171, 177 (D.C. Cir. 1983) ("[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them"); see also 16A CHARLES Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3974.1 (3d ed. 1999) ("to assure consideration of an issue by the court, the appellant must both raise it in the 'Statement of the Issues' and pursue it in the 'Argument' portion of the brief'). Questions concerning disenfranchised voters, new elections and the integrity of the electoral process, impassionately asserted by the dissent, though compelling, are not properly before the Court for review. Likewise, our review of the facts is limited to whether the record contains sufficient evidence to support the facts found by the trial court. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91-92 (3d Cir. 1992). We do not review all the evidence presented at trial anew to discern whether such evidence supports additional claims that are not properly before us. The laws governing appellate review simply do not permit such judicial activism.
Returning to the merits of the Board's assertion, we agree that the trial court erred in deciding that laches did not bar Daniel's claim that the Board was required to certify him among the winners of the special election. In reaching this decision, the trial court drew a distinction between the ballot error, which could have been resolved with a pre-election challenge, and the Board's certification decision, which the court essentially found was not ripe for review until the Board certified the winning delegates. The court reasoned that the Board did not actually impose the "residency restriction" which limited the number of St. John delegates until it certified the winning candidates. Thus, the court ruled that, even though the ballot restricted voters to choosing only two St. John candidates, "nothing would have prevented the [Board] from certifying election winners based solely on the number of votes they received, regardless of their residency, if [the Board] had so desired." (J.A. at 11-12.) Because Daniel did not delay in contesting the Board's refusal to certify him as a delegate, the court concluded that laches did not bar his challenge to this decision.
For several reasons, we conclude that the trial court erred in failing to consider Daniel's election contest as a single claim. First, both Daniel's claim concerning the ballot and his claim regarding certification arose out of a single act of the Board: the June 2, 2007 decision to allow only two St. John candidates to be elected as delegates. What followed was but a series of necessary consequences of that decision. The Board changed the ballot instructions to inform voters that they could only vote for two St. John candidates. The voting machines were reprogrammed to allow only two votes for St. John candidates. The special election votes were tabulated to determine which two St. John candidates received the highest number of votes. And finally, the Board certified the election results which, pursuant to June 2, 2007 decision, recognized only the top two St. John candidates as delegates. Each of these actions was inextricably linked to the June 2, 2007 decision, and we can discern no reason why the Board's certification of the election results should be dissected from that decision in the laches analysis.
To the contrary, application of the laches defense in such a fragmentary manner defies the very rationale for imposing laches to bar inexcusably delayed claims. To hold otherwise "would effectively swallow the rule of laches, and render it a spineless defense." Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir. 2001) (copyright infringement case where court refused to fragment laches into original release of movie and re-release of same movie). The mere threat of having a claim barred by laches is intended to discourage "sandbagging on the part of wily plaintiffs." Soules, 849 F.2d at 1180. "[FJailure to require pre-election adjudication would permit, if not encourage, parties who could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate and then, upon losing, seek to undo the ballot results in a court action." Id. (citations and quotation marks omitted).
That was exactly the course of action taken by Daniel in this case. Daniel, by his own admissions at trial, became aware of his ballot claim one week before the election, yet chose to forgo a pre-election challenge and waited to see how the electorate would vote. "[I]f aggrieved parties, without adequate explanation, do not come forward before the election, they will be barred from the equitable relief of overturning the results of the election." Id. (citations omitted). Daniel, without adequate explanation, failed to lodge his complaint before the election. Consequently, he is barred from the equitable relief of overturning the election results and being named a delegate to the Convention.
We are unaware of any case in which an appellate court has addressed a trial court's decision to dissect the laches analysis in an election contest. Federal courts, however, have ruled that such a fragmented treatment of laches is inappropriate in a continuing tort context. In A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1031 (Fed. Cir. 1992), the court recognized that "[l]aches is viewed as a single defense to a continuing tort up to the time of suit, not a series of individual defenses which must be proved as to each act of infringement, at least with respect to infringing acts of the same nature. To that extent, continuing tortious acts may be deemed to constitute a unitary claim." (citations omitted). Although we express no opinion as to whether laches may bar continuous tort claims in the Virgin Islands, because that issue is not before us, we believe the rationale underlying the application of laches in such cases is particularly relevant here. As the court pointed out in Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir. 1999), "[wjithout the availability of the application of laches to a claim arising from a continuing wrong, a party could, theoretically, delay filing suit indefinitely. It would certainly be inequitable to reward this type of dilatory conduct and such conduct would necessarily warrant application of laches in appropriate circumstances." In like manner, if we were to affirm the trial court's analysis of Daniel's certification challenge in this case, future candidates could simply delay instituting an election contest until the election results are certified, even if they knew about the irregularity well before the election. Equity does not countenance such a result.
Accordingly, we conclude that the trial court erred as a matter of law by failing to hold that laches barred Daniel's claim that the Board was required to certify him as one of the thirty winners of the special election. The trial court's decision fails to recognize that the Board's certification of the special election winners was inextricably linked to its June 2, 2007 decision to limit the number of delegates who could be elected from St. John. Furthermore, the result reached by the trial court effectively strips the laches defense of its primary purpose in election contests of discouraging complainants from sitting on their rights while they await the election results. Equity barred Daniel's claim in its entirety. Having determined that the entire action is barred by the doctrine of laches, we must also conclude that the trial court erred in granting Daniel's petition for mandamus relief.
In reaching our decision in this case, we are cognizant of the importance of the special election for delegates and the task the elected delegates have before them in drafting a constitution for the Virgin Islands. This Court is also cognizant that the Board, in several respects, violated Act 6688. This opinion should not be interpreted as condoning any violation of law. The Board and all election officials must pay close attention to the laws as enacted by the Legislature. For it is their duty as public servants of the people of Virgin Islands to ensure that all elections are conducted lawfully. We cannot forget, however, that the laws governing our adversarial system limit the types of claims which may be brought before our trial courts and the scope of our review on appeal.
In this case, Daniel inexcusably slept on his right to bring a ripe claim before the trial court, and several parties were prejudiced by his dilatory conduct. Under those circumstances, the doctrine of laches forbids a plaintiff from prosecuting the claim, and likewise prohibits both the trial court and appellate court from examining the merits of the claim. Thus, while we may acknowledge the importance of Daniel's claims, we cannot review the merits because the application of laches is not limited by the significance of the claimed deficiencies. Courts often allow election results to stand, notwithstanding significant legal infirmities. See, e.g., Wells v. Rockefeller, 394 U.S. 542, 547, 89 S. Ct. 1234, 1237, 22 L. Ed. 2d 535 (1969) (court found no error in permitting the election to proceed "despite its constitutional infirmities"); Kilgarlin v. Hill, 386 U.S. 120, 121, 87 S. Ct. 820, 821, 17 L. Ed. 2d 771 (1967) (court affirmed district court's action in permitting election to proceed, "although constitutionally infirm in certain respects").
¡V. CONCLUSION
For the foregoing reasons, we conclude that the trial court correctly applied the defense of laches to bar Daniel's claim that the ballot did not conform to the dictates of Act 6688. We disagree, however, with the trial court's ruling that laches did not bar Daniel's claim arising from the Board's failure to certify him as one of thirty winners in the election. The trial court should have considered Daniel's separate assertions as a single challenge to the Board's decision to limit the number of St. John candidates who could be elected as a delegate to the Convention. It is clear that laches barred the entirety of Daniel's challenge and the trial court's decision granting him relief will, therefore, be reversed.
The Virgin Islands JointBoards of Elections and John Abramson, as Supervisor of Elections, were also named as defendants in the underlying action.
The remaining seventeen delegates are to be comprised of thirteen delegates from St. Croix and four at large delegates to be selected equally from each district. Act of Oct. 18, 2004, Bill No. 25-0016, 2004 V.I. Sess. Laws 6688, § 1(d)(1) and (3). There is no controversy concerning the election and certification of these seventeen delegates.
There is no evidence in the record showing who prescribed the form of this ballot.
We note that pursuant to section 1(g) of Act 6688: "[t]he form of the special election ballot shall be prescribed by the Supervisor of Elections...."
The Supervisor of Elections was mistaken in believing that action by the Board was necessary. Pursuant to section 1(g) of Act 6688, the Supervisor of Elections was responsible for prescribing the form of the ballot.
Daniel lodged a verbal complaint with the Supervisor of Elections in person the previous day.
Daniel originally filed an appeal with the Joint Board on July 11, 2007, however, the Joint Board was unable to obtain a quorum to act on the appeal. Daniel initially filed suit in the Superior Court on July 17, 2007 requesting a temporary restraining order, preliminary injunction, and other relief. The Superior Court dismissed that action for failure to exhaust administrative remedies because the Joint Board had not yet acted on Daniel's appeal.
Under Virgin Islands law, "[t]he day on which general elections are held shall be a legal holiday in the Virgin Islands." V.I. Code Ann. tit. 18, § 3(a). A "general election" is defined as "the election which the law requires to be held in even-numbered years." 18 V.I.C. § 1. Whether a special election qualifies as a legal holiday under title 18, section 3 (a) of the Virgin Islands Code is a question that is not before the Court, and we render no opinion on that issue.
The affirmative defenses under Fed. R. Civ. P. 8(c) derive from the "common law plea by way of 'confession and avoidance, ' which permitted a defendant who was willing to admit that the plaintiffs declaration demonstrated a prima facie case to then go on and allege additional new material that would defeat the plaintiffs otherwise valid cause of action." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1270 (3d ed. 2004). Rule 32(b) of the Superior Court provides that "[a]nswers shall comply with Rules 8 and 9 of the Federal Rules of Civil Procedure." SUPER. CT. R. 32(b).
Although the trial court found that Daniel had constructive knowledge of the ballot revision on June 2,2007, the date that a radio station broadcast a report on the revision, we do not believe this finding is necessary to reach a result and express no opinion whether such circumstances constitute constructive knowledge sufficient to support a claim of laches.
See supra notes 4 and 5.
The dissent asserts that the trial court erred in finding prejudice to the defendants as any attempt by Daniel to protest the ballot would have proved futile because the Board was unlikely to change its position. This is mere speculation as there is no evidence to support this position. The evidence shows that concerns about the ballot were raised by some Board members which were promptly addressed. Nothing in the record suggests that the Board would not have promptly addressed any objection to the ballot raised by a candidate. The actual facts are that Daniel made no challenge of any kind to the ballot although aware of the residency limitation placed on his candidacy, and the Board was prejudiced as it conducted the election unaware of any concerns about the ballot from Daniel or any other candidate. To accept the dissent's argument would permit any candidate to sit on his rights, lay and wait for the results of the election and claim a believed futility as the reason for not asserting a preelection challenge. This result is unacceptable as it would turn the doctrine of laches on its head.
The decision to revise the ballot was made on June 2, 2007, and the revisions were completed in time for the ballot to be printed in the June 7,2007, edition of the Daily News.
The dissent, in an effort to void the special election and order a new election would disregard entirely the equitable defense of laches by treating it as a minor issue pertaining to only one citizen, Harry Daniel. However, Harry Daniel is the only plaintiff in this case and only his claims as a candidate, not those of the voters or of anyone else, are before us in this appeal. The issues presented in this appeal are only those presented by the parties in their main briefs as stated at the outset of this opinion, each side inversely questioning the trial court's use of the defense of laches and the granting of mandamus relief.