                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                         June 17, 2014 Session

        KENNETH T. WHALUM, JR. v. SHELBY COUNTY ELECTION
                         COMMISSION

                    Appeal from the Chancery Court for Shelby County
                    No. CH1213263    Kenny W. Armstrong, Chancellor


                 No. W2013-02076-COA-R3-CV - Filed September 30, 2014




F RANK G. C LEMENT, J R., P.J., M.S., concurring and dissenting.

        I fully concur with the result reached in this matter and, specifically, the determination
that the election was not invalid, that a new election is not required, and that Mr. Woods is
the winner in the 2012 District 4 election to the Shelby County School Board. While I concur
with the foregoing determinations and the result reached in this matter, I write separately
because I respectfully differ with the determination that Rev. Whalum presently has standing
to contest the election.

        In this election contest, the losing candidate, Rev. Whalum, challenged the validity
of the election because voters who were eligible to vote in the school board district were
erroneously assigned to other districts and, as a consequence, they were not allowed to vote
in the challenged district race, while ineligible voters from other districts were allowed to
vote in the challenged district race. The errors were not due to fraud; they were due to the
failure of the Shelby County Commission to complete redistricting in a timely fashion.1 The


        1
          Before I address the issues of standing and mootness, it must be noted that the regrettable events
which necessitated this litigation and the resulting expense to Rev. Whalum, Mr. Woods, and the citizens
of Shelby County, are not due to any act or omission of the parties to this action. To the contrary, they are
due to the failure of the Shelby County Commission (“the County Commission”) to fulfill its responsibility
to redistrict the county for the purpose of setting the election district boundaries in a timely fashion. As the
Shelby County Administrator of Elections stated in his deposition, the County Commission district lines
“were in flux” prior to the August 2, 2012 election because the number of districts were changing. In an
effort to conduct the August 2, 2012 election in accordance with the anticipated new districts, the Election
Commission began a project to input the voters’ addresses and assign the voters to their prospective new
district based upon what the County Commission “thought” the district lines were going to be. Thus, the
                                                                                                   (continued...)
trial court voided the election results upon the finding that the cumulative effect of excluding
eligible voters and including ineligible voters, which greatly exceeded the margin of victory,
compelled the conclusion that the election did not express the will of the qualified voters.
The winning candidate, Mr. Woods, appealed. While this appeal was pending, the new
district lines were finalized and approved by the U.S. District Court; it was also determined
that Rev. Whalum does not reside in the school board district at issue. With this background,
I state below the reasons why I believe that Rev. Whalum no longer has standing to contest
the election; stated another way, why I believe this election contest no longer serves as a
means to provide any form of judicial relief to Rev. Whalum.

        The right to contest an election is governed by Tenn. Code Ann. § 2-17-101(b) and
the statute limits standing to “the incumbent office holder and any candidate for the office,”
meaning any qualified candidate. See Gilpatrick v. Reneau, 661 S.W.2d 863, 865 (Tenn.
1983) (stating “It would be equally absurd to ascribe to a person who cannot legally hold the
office in question the status of ‘candidate’ for the purpose of bringing lawsuits to contest
elections.”). Moreover, it is well settled that “[a] private citizen cannot maintain such an
action in his capacity as citizen and taxpayer.” Freeman v. Felts, 344 S.W.2d 550, 554 (Tenn.
1961) (citing Mathis v. Young, 291 S.W.2d 592 (Tenn. 1956), Hollis v. State ex rel. Vaughan,
237 S.W.2d 952 (Tenn. 1951), Morrison v. Crews, 237 S.W.2d 1 (Tenn. 1951), Skelton v.
Barnett, 227 S.W.2d 774 (Tenn. 1950)).

       As the Supreme Court reasoned in State ex rel. Lewis v. State, 347 S.W.2d 47, 48
(Tenn. 1961):

        To invoke the jurisdiction of a court of justice, it is primarily essential that
        there be involved a genuine and existing controversy, calling for present
        adjudication as involving present rights, and although the case may have
        originally presented such a controversy, if before decision it has, through act
        of the parties or other cause, lost that essential character, it is the duty of the
        court, upon the fact appearing, to dismiss it.

Id. (citations omitted). It is undisputed that Rev. Whalum does not presently reside within the
current boundaries of District 4. It is for this reason that I submit he is neither qualified to

        1
          (...continued)
Election Commission's entire redistricting process was delayed when the County Commission determined
that the legislative district lines would not be finalized prior to the August 2, 2012 election. Consequently,
the Election Commission had to modify the voters’ address assignments and did not have time to perform
proper quality control checks for its work in assigning voters to their proper legislative districts. Although
the confusion and costly mistakes were avoidable and are regrettable, I readily concur with the determination
of the trial court and the majority that there is no evidence of fraud.

                                                     -2-
vote in District 4 nor is he qualified to run for the office of School Board Representative for
District 4. Moreover, because Rev. Whalum is neither the incumbent officer holder nor, in
my opinion, a qualified candidate for the office under the current district lines, which I
submit is a requirement of Tennessee Code Annotated § 2-17-112, Rev. Whalum no longer
has standing to contest the election of Mr. Woods as the School Board Representative for
District 4.

        It is undisputed that Rev. Whalum does not reside within the boundaries of District
4 as that district presently exists. Nevertheless, I acknowledge, as the majority correctly
noted, that Rev. Whalum resided within the boundaries of the district used by the Election
Commission when the 2012 election was held; however, I respectfully differ with the
majority’s view that: “The use of the word ‘candidate’ also suggests that the question of
standing with regard to Tennessee Code Annotated Section 2-17-101(b) must be considered
at the time of the election or the filing of the election contest, rather than at the time a new
election may be held.” Contrary to the majority’s determination, I submit the word candidate
must also include, in the context of standing to pursue an election contest under Tennessee
Code Annotated Section 2-17-101(b), the time of new election, if one is granted by the court.
Thus, in my view the candidate must be and remain a qualified candidate during all phases
of an election contest.

       The current boundaries for School Board District 4 have been approved by the County
Commission and the U. S. District Court. Rev. Whalum does not reside within the newly
established boundaries of District 4; therefore, if an election were held today, he would not
qualify as a candidate for the office he is seeking. Because he is no longer a qualified
candidate for the office, Rev. Whalum no longer has standing in this election contest to seek
a new election for the School Board Representative of District 4.

        Because Rev. Whalum no longer has standing to contest the election, his contest of
the 2012 election is also moot. Mootness is a doctrine of justiciability and “[t]he doctrine of
justiciability prompts courts to stay their hand in cases that do not involve a genuine and
existing controversy requiring the present adjudication of present rights.” McIntyre v.
Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). “A moot case is one that has lost
its justiciability either by court decision, acts of the parties, or some other reason occurring
after commencement of the case.” Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cnty., 301 S.W.3d 196, 204 (Tenn. 2009) (citations omitted) (emphasis added). “A case will
be considered moot if it no longer serves as a means to provide some sort of judicial relief
to the prevailing party.” Id. (citations omitted).

        In determining whether we can provide judicial relief for Rev. Whalum, we must look
to the remedies available in an election contest under Tenn. Code Ann. § 2-17-112.

                                              -3-
       (a) After hearing the case the court shall give judgment either:

              (1) Confirming the election;
              (2) Declaring the election void;
              (3) Declaring a tie between persons who have the same number
              of votes if it appears that two (2) or more persons who have the
              same number of votes have or would have had if the ballot
              intended for them and illegally rejected had been received, the
              highest number of votes for the office; or
              (4) Declaring a person duly elected if it appears that such person
              received or would have received the highest number of votes
              had the ballots intended for such person and illegally rejected
              been received.

       (b) A judgment under subdivision (a)(4) deprives the person whose election
       is contested of all right or claim to the office and invests the person declared
       by the judgment duly elected with the right to the office.

Tenn. Code Ann. § 2-17-112.

       In reviewing the remedies available for an election contest, it is my opinion this court
is without a means to provide any form of judicial relief to Rev. Whalum. The foregoing
notwithstanding, Rev. Whalum contends this case falls under an exception to the mootness
doctrine; specifically, that this is an issue of “great public interest and importance to the
administration of justice.” Walker v. Dunn, 498 S.W.2d 102, 104 (Tenn. 1972). “Decisions
concerning whether to take up cases that fit into one of the exceptions to the mootness
doctrine are discretionary with the appellate courts.” McIntyre v. Traughber, 884 S.W.2d
134, 137 (Tenn. Ct. App. 1994). Although election contests can be of great public interest
and important to the administration of justice, I find the exception inapplicable because the
Tennessee General Assembly has expressly limited relief in these matters by requiring one
to have standing to bring an action for an election contest. See Tenn. Code Ann. §
2-17-101(b).

       The foregoing notwithstanding, I fully concur with the result reached by the majority
and join in the well-reasoned decision to declare the election valid and Mr. Woods the
winner.

                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE



                                              -4-
