THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

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Dec 04 2023
IN ITS ORIGINAL JURISDICTION
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APPELLATE CASE NO. 2023-_______

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John David,
PETITIONER,
v.

Town of Atlantic Beach, South Carolina, Jake Evans, Josephine Isom, Jacqueline Gore, Town of
Atlantic Beach Municipal Election Commission,

RESPONDENTS.
_________________________________

RETURN TO PETITION FOR ORIGINAL JURISDICTION AND MOTION FOR

EMERGENCY RELIEF
_________________________________

This matter arises out of the preceding campaign and November 7, 2023 municipal election

for Mayor and two at-large Town Council seats in the Town of Atlantic Beach, South Carolina.

Petitioner John David (“David”) and current Town Councilwoman Josephine Isom (“Isom”) were

and are the mayoral candidates in the November 7th election. Following the election, Atlantic

Beach residents along with Councilwoman Isom formally challenged the validity of sixteen (16)

ballots casted by individuals whose Atlantic Beach domicile remains ambiguous. The vote

challenges came before the Town of Atlantic Beach’s Municipal Election Commission1 (“MEC”

or “Commission”) whose chairman openly attended campaign events and engaged in political

activity in support of a mayoral candidate in violation of state law. At the resulting hearing

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The MEC, at that time, was comprised of Chairman Joe Montgomery, Kenneth McIver, and
Carolyn Gore.
regarding the challenged votes, the MEC disregarded direct evidence presented and denied all

ballot challenges. In doing so, the MEC accepted the disputed ballots. In an act to protect the

integrity of its electoral process and, in what the sitting Town Council believed to be emergent

circumstances, the sitting Mayor of Atlantic Beach and Town Council erroneously attempted to

dissolve the Town of Atlantic Beach MEC. Rather than seeking relief in the appropriate venue—

the Court of Common Pleas—Petitioner John David instead took the drastic measure to file the

instant Petition with this Court, seeking review of a decision that could—and should—first be

addressed in a state circuit court and then, and only then, be appealed through the proper South

Carolina appellate process.

By filing, David asks this Court to grant his Petition for Original Jurisdiction and Motion

for Emergency Relief based on the dissolution of the MEC. Because David has failed to state a

claim that cannot be determined “in a lower court in the first instance,” the Court should deny both

his Petition and Motion for Emergency for Relief. Likewise, David has failed to show “there are

special grounds of emergency or other good reasons” for this Court to take this matter in its original

jurisdiction as the MEC has been reaffirmed and reconvened by the Town Council. As a result

and in short, Petitioner David’s Petition and Motion should be denied as improper, premature, and

without any proper legal basis to obtain the original jurisdiction of the South Carolina Supreme

Court.

BACKGROUND

On November 7, 2023, the Town of Atlantic Beach held its municipal election for Mayor

and two at-large Town Council seats. That evening, once polls closed, certain residents and

mayoral candidate Isom challenged the validity of ballots cast in the election. The basis for the

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challenge was that the voters who had cast those ballots did not have a legal residence or were not

domiciled in Atlantic Beach.

On November 9, 2023, the challengers presented direct evidence in support of their claims

of invalid residency and fraudulent voting. However, this evidence was neither fairly evaluated

nor otherwise considered by the MEC which was sitting improperly with members who had openly

engaged in political activity for one of the mayoral candidates. As a result, the MEC denied the

challenge to the disputed ballots.

Subsequently, on November 10, 2023, the MEC met to certify the election by performing

a recount. This process was protested and objected to since the MEC did not have a stenographer

present to record the proceedings. The Commission decided to recess until 2 p.m. and reconvene

with a court reporter.

In the interim, the sitting Town Council called an emergency council meeting. At the

emergency meeting, the Town Council voted to dissolve the MEC. The Town Council took this

action out of desperation and an abundance of caution to preserve the integrity of their electoral

process; albeit erroneous. Almost immediately thereafter, David filed the instant Petition,

Complaint, and Motion for Emergency Relief with this Honorable Court.

On November 27, 2023, seeking to remedy the substantive issues at the root of this Petition

and Return and to properly comply with the law, the Town noticed a Special Call meeting for

November 28, 2023. At the November 28, 2023 Special Call meeting, the Town Council moved

to reaffirm and reconvene the Town’s MEC. Afterwards, the Town Council adjourned to

Executive Session. Upon returning, the Town Council moved to remove MEC Chairman Joe

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Montgomery from the MEC for cause in violation of S.C. Code § 7-13-75.2 As a result of that

meeting, the MEC has been reconstituted and is currently fulfilling its obligations pursuant to the

applicable statutes and town ordinances. In addition, the Town has committed itself publicly to

proceed with addressing this election in accordance with the law.

ARGUMENT

I. The Reaffirmation and Reconvening of the Town of Atlantic Beach’s

Municipal Election Commission Renders the John David’s Petition Moot.

“A moot case exists where a judgment rendered by the court will have no practical legal

effect upon an existing controversy because an intervening event renders any grant of effectual

relief impossible for the reviewing court.” Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 26, 630

S.E.2d 474, 477 (2006) (citing Mathis v. South Carolina State Highway Dep't, 260 S.C. 344, 346,

195 S.E.2d 713, 715 (1973)). “The court does not concern itself with moot or speculative

questions.” Sloan v. Greenville Cnty., 380 S.C. 528, 535, 670 S.E.2d 663, 667 (Ct. App. 2009).

The purpose of the mootness doctrine is to prevent the court from passing on “academic questions”

or adjudicating disputes where no “actual controversy” exists. Wachesaw Plantation E. Cmty.

Servs. Ass'n, Inc. v. Alexander, 414 S.C. 355, 359, 778 S.E.2d 898, 900 (2015). That is exactly

what has occurred in this matter.

As noted, the Town Council reconvened the MEC on November 28, 2023 for the purposes

of properly addressing the challenged ballots, certifying the election, and further resolving this

2 “No member of a county or municipal board of voter registration and elections may participate
in political management or in a political campaign over whose election the member has jurisdiction
during the member's term of office. No member may make a contribution to a candidate or
knowingly attend a fundraiser held for the benefit of a candidate over whose election the member
has jurisdiction. Violation of this section subjects the member to removal by the Governor or
appropriate appointive authority.” S.C. Code Ann. § 7-13-75.

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election dispute. Thus, because David’s Petition and proposed Complaint specifically seek a

declaratory judgment that the “vote of the Town Council of the Town of Atlantic Beach removing

members of the Municipal Election Commission or dissolving that body is altogether void and

without legal effect; and . . . declaring the existing members of the Municipal Election

Commission . . . remain in office . . . ,” the Town’s action has rendered the Petition moot. See

Compl. Prayer for Relief. Recognizing that its earlier action was improper and voidable, the

Council moved, and unanimously voted, to ensure that the Commission still existed. The Council

and Commission now plan to proceed to properly address the challenged ballots and certify the

subsequent election results through the normal process as set forth by statute. Consequently, the

very relief sought by David has become an abstract question rather than a reality-in-fact which are

not questions answered or even addressed by this Court. See, e.g., Davis v. Atl. Coast Line R. Co.,

106 S.C. 351, 91 S.E. 325, 326 (1917) (Supreme Court refusing to answer academic question

because issue was resolved); Ex Parte Pereira, 40 S.C.L. 149, 150 (Ct. App. of Law of S.C. 1853)

(declining to hear appeal of habeas corpus decision that could “in no way be corrected” due to

release of prisoner). At present, the only issue remaining within David’s Petition is hypothetical

and abstract and, for that reason alone, his Petition is also moot. Curtis v. State, 345 S.C. 557,

567, 549 S.E.2d 591, 596 (2001) (“Moot appeals differ from unripe appeals in that moot appeals

result when intervening events render a case nonjusticiable.”).

Accordingly, the relief sought by David—predicated on the non-existence of a municipal

election commission—is no longer at issue. Thus, the question put before the Court is now

“contingent, hypothetical, or abstract” and the Court should dismiss the Petition in its entirety.

Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006).

II. Alternatively, Should This Court Determine This Matter is Not Moot, It
Should Be Properly Remanded To a Lower Court for Adjudication.

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 In the alternative, if the Court believes this issue is not moot, this matter should still be

decided by a lower court in the first instance. See Rule 245, SCACR. In the face of allegations

that certain members of the Commission had conflicts of interest, the Town Council, mistakenly,

attempted to dissolve the Town of Atlantic Beach’s Election Commission. While the Council

realized its error and has since remedied the error, the circuit court is the proper venue for

resolution of a substantial factual dispute. While this Court is equipped to take testimony, weigh

evidence, and issue a ruling on the merits, original jurisdiction is generally reserved for matters

that cannot be resolved in a lower court. See Rule 245, SCACR. This is evidenced by the fact

that even with a deferential standard of review, cases involving election commissions can lead to

split decisions. See, e.g., Odom v. McBee Mun. Election Comm'n, 440 S.C. 367, 891 S.E.2d 663

(2023) (non-unanimous decision with dispute as to evidence); In re Nov. 4, 2008 Bluffton Town

Council Election, 385 S.C. 632, 635, 686 S.E.2d 683, 685 (2009) (non-unanimous decision).

The vast majority of South Carolina jurisprudence from appellate courts involving election

disputes follows the standard legal process rather than being heard in the Court’s original

jurisdiction. Although the Council should not have sought to dissolve the Commission, the party

challenging this action is not left without recourse because the challenging party may bring a

lawsuit seeking declaratory, injunctive, or other relief with the circuit court in its original

jurisdiction. See S.C. Const. art. V, § 11 (“The Circuit Court shall be a general trial court with

original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction

shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law.”);

S.C. Code Ann. § 15-53-10 et seq. (setting forth the Uniform Declaratory Judgments Act); S.C.

Code Ann. § 15-53-20 (“Courts of record within their respective jurisdictions shall have power to

declare rights, status and other legal relations whether or not further relief is or could be claimed.”);

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see, e.g., Brock v. Town of Mount Pleasant, 415 S.C. 625, 627, 785 S.E.2d 198, 199 (2016) (appeal

of declaratory judgment action brought against Town of Mount Pleasant). The decision here also

could have been immediately appealed to the circuit court because both the lack of decision from

the Commission or the decision of the Council could be considered a judgment rendered “by the

governing body of a county or by any other inferior court or jurisdiction” to which appellate

jurisdiction is vested with the circuit court. S.C. Code Ann. § 18-7-10.

Any relief for which David petitions this Court to entertain original jurisdiction can

accordingly and rightfully be addressed by the circuit court in the first instance. See Rule 245,

SCACR. And, as intended by the General Assembly under its statutory scheme, this Court

thereafter has the ability to finally review matters involving elections. S.C. Code Ann. § 14-8-

200(b)(5) (2017) (requiring any appeal from the circuit court involving a final judgment as to

“elections and election procedure” to be filed with Supreme Court); Rule 203(d)(1)(A)(iv).

As the Court has noted numerous times, “Although Article V, § 5, of the South Carolina

Constitution vests this Court with the authority to issue extraordinary writs and entertain actions

in its original jurisdiction, this Court's primary function is to act as an appellate court to review

appeals from the trial courts.” Key v. Currie, 305 S.C. 115, 116, 406 S.E.2d 356, 357 (1991). This

matter can and should be heard by the circuit court with appellate review to this Court if it is

determined that any issue raised in the Petition is not moot. Therefore, David’s Petition should be

denied.

III. David’s Petition and Motion Fail to Set Forth Public Importance Such that
this Court Needs to Take this Case in its Original Jurisdiction.

David’s Petition and Proposed Complaint set forth in only a conclusory manner that this

issue is of public importance such that the Supreme Court needs to address it. For example, it

claims the emergency meeting during which the Commission was dissolved was improper, but

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ignores the fact a closed executive session may be perfectly appropriate when “A public body may

hold a meeting closed to the public” for the purpose of “appointment . . . demotion . . . or release

of . . . a person regulated by a public body.” S.C. Code Ann. § 30-4-70(a)(1) (2007). See, e.g.,

Compl. ¶¶ 49-50. The person(s) at issue in such a closed hearing do have a right—if it involves

an adversarial hearing—to demand it be open to the public; however, evidence helpful to resolve

this claim would more appropriately be entered into a record before a circuit court. The allegations

in the Complaint filed with the Petition are insufficient to justify action by this Court at this time.

Election challenges are not uncommon in South Carolina. See, e.g., Odom, 440 S.C. 367,

891 S.E.2d 663; George v. Mun. Election Comm’n of City of Charleston, 335 S.C. 182, 183, 516

S.E.2d 206, 207 (1999); Taylor v. Town of Atl. Beach Election Comm’n, 363 S.C. 8, 609 S.E.2d

500 (2005); Broadhurst v. City of Myrtle Beach Election Comm’n, 342 S.C. 373, 537 S.E.2d 543

(2000); Odom v. Town of McBee Election Comm’n, 427 S.C. 305, 307, 831 S.E.2d 429, 430 (2019).

This matter should be resolved in the same way as other election disputes, before a circuit

court. If every election dispute was brought to the Supreme Court because an election related to

the public interest, the circuit court’s ability to hear an appeal of an election dispute would be

obviated. And, if a circuit court’s decision is unsatisfactory, the General Assembly has provided

that this Court will nonetheless have the opportunity to review the decision with a fully developed

record through the appropriate standard of review.

IV. David Has Not Demonstrated Any Lawful Basis for The Supreme Court to
Take Action On His Motion For Emergency Relief And Now Cannot
Demonstrate Any Legal Basis for Action as the Motion Has been Rendered
Moot.

Finally, as with David’s other claims for relief, the Motion for Emergency Relief has been

rendered moot for the same reasons as his Petition. Alternatively, if any issue is not moot, the

Motion is more properly presented before a circuit court. It seeks nothing more than a preliminary

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or temporary injunction, but fails to meet the standard any court would employ when issuing such

relief. To properly make that showing, a plaintiff or movant is required to show: “(1) he would

suffer irreparable harm if the injunction is not granted; (2) he will likely succeed on the merits of

the litigation; and (3) there is an inadequate remedy at law.” Greenville Bistro, LLC v. Greenville

Cnty., 435 S.C. 146, 160, 866 S.E.2d 562, 569-70 (2021). David has failed to argue on those

grounds nor does he address any facts beyond conclusory statements. See Mot. for Emergency

Relief. The difficulty of properly judging the merits of David’s claims reflects the lack of factual

background here, further demonstrating why action by this Court is unnecessary, premature, and

improper. For this reason and many others addressed, David’s Motion should be denied.

CONCLUSION

For the reasons set forth in this Return, Respondents respectfully request this Court deny

David’s Petition for Original Jurisdiction and Motion for Emergency Relief.

Respectfully submitted,

s/ Joseph D. Dickey Jr.

Joseph D. Dickey Jr. (S.C. Bar No. 100064)
Eugene H. Matthews (S.C. Bar No. 10193)
Carmen Vaughn Ganjehsani (S.C. Bar No. 73515)
Benjamin P. Carlton (SC Bar No. 101142)
Ashwin R. Sanzgiri (S.C. Bar No. 105198)
RICHARDSON, PLOWDEN & ROBINSON, PA
1900 Barnwell Street (29201)
Post Office Drawer 7788
Columbia, South Carolina 29202
(803) 771-4400

jdickey@richardsonplowden.com
gmatthews@richardsonplowden.com
cganjehsani@richardsonplowden.com
bcarlton@richardsonplowden.com
asanzgiri@richardsonplowden.com

ATTORNEYS FOR TOWN OF ATLANTIC BEACH,

SOUTH CAROLINA, JAKE EVANS, JOSEPHINE

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 ISOM, JACQUELINE GORE, TOWN OF ATLANTIC
BEACH MUNICIPAL ELECTION COMMISSION

December 4, 2023.

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