Kiely v Kerry County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] IESC 97
• Docket Number: [2014/366],[S.C. No. 366 of 2014]
• Court: Supreme Court
• Date: 17 December 2015

Denham C.J.

O'Donnell J.

McKechnie J.

Clarke J.

Charleton J.

IN THE MATTER OF THE LOCAL ELECTIONS (PETITIONS AND DISQUALIFICATIONS ACT, 1974), AND

IN THE MATTER OF THE LOCAL ELECTIONS FOR LISTOWEL HELD ON 23 ^rd MAY, 2014

BETWEEN

DAN KIELY

PETITIONER/APPELLANT

AND

KERRY COUNTY COUNCIL

RESPONDENT

AND

JOHN BRASSIL, JIMMY MALONEY, MIKE KENNELLY, MICHAEL O'GORMAN AND OTHERS

FIRST, SECOND, THIRD & FOURTH NAMED NOTICE PARTIES & ORS

AND

THE MINISTER FOR THE ENVIRONMENT, COMMUNITY AND LOCAL GOVERNMENT

STATUTORY NOTICE PARTY

[2015] IESC 97

[2014/366]

THE SUPREME COURT

Local elections – Recounts – Legality of conduct – Appellant seeking to challenge legality of how respondent conducted an electoral recount – Whether appellant established a permitted ground of challenge

Facts: The appellant, Mr Kiely, was an unsuccessful candidate in a local election held for the Listowel electoral area of North Kerry. After the eleventh and final count, there were five continuing candidates, none of whom had reached the quota for the remaining four seats. The deputy returning officer who was in charge eliminated Mr Kiely, who was the candidate with the least number of votes at that stage of the count. After a recount was called for and carried out, the result did not change. Therefore, Mr Kiely failed to obtain a seat. By petition he challenged the legality of how the returning officer had conducted certain aspects of the overall count. Having failed in the Circuit Court he appealed to the Supreme Court. Kerry County Council, which was responsible for the conduct of the election, was the respondent in both the petition and in this appeal and represented the deputy returning officer, Mr McMahon. The principle ground advanced by the appellant was based on the fact that unless a ballot paper clearly indicates a first preference, it is not valid; if it does but fails to clearly indicate a second preference or if it also clearly indicates a second preference but not a third preference etc., it remains valid for the first or second preference as the case may be, but thereafter becomes a non-transferable paper. The appellant submitted that to treat a sequence of 3, 4 and 5 or 4, 5 and 6, as equivalent to 1, 2 and 3 is illogical, invalid, unwarranted and against principle. He said it is contrary to the Local Elections Regulations 1995. He also submitted that there was sufficient evidence to indicate that at least some votes with this sequence(s) were marked as valid and thus allowed in by the returning officer. Whilst the number was not precisely known, nonetheless in light of the margins which at the final count separated him from the fourth and fifth candidates, who were elected, and given the importance of any preference in a single transferable system, the appellant submitted that it was probable that if the sequenced votes were discounted, the same would be likely to affect the election result. The respondent submitted that under Article 80(1) of the 1995 Regulations, it is for the returning officer to make a decision as to whether a mark on a ballot paper clearly indicates a first preference.

Held by McKechnie J that the disputed decision involving the sequenced votes was ultra vires the Local Elections (Petitions and Disqualifications) Act 1974 and the 1995 Regulations made thereunder. Consequently, McKechnie J held that the appellant had established one of the permitted grounds of challenge, namely that the election was not completed or conducted in accordance with law (s. 5(1))a) of the 1974 Act). McKechnie J held that as the complaint was confined and the evidence related solely to the papers cast for the Listowel electoral area, he could not see how any Order of the Court should go further than that area. Consequently, he proposed that an order should be made under s. 8(1)(b) of the 1974 Act. McKechnie J held that all the votes cast must, according to s. 8 of the 1974 Act, be counted afresh. Whilst he appreciated that this would affect the randomisation of the papers as arranged from time to time during the original process, he emphasised that this was an inevitable consequence of an entire recount which was legislatively provided for. Accordingly, McKechnie J held that such an order should be made in these proceedings and the matter remitted back to the Circuit Court so that the recount directed could be conducted under its authority and control; once that process has been completed under the direction of the Circuit Court, that court has jurisdiction to make a final order under and pursuant to the provisions of s. 14 of the 1974 Act, which includes a declaration as to the correct result if the outcome so permits.

McKechnie J held that he would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17 ^th day of December, 2015

Introduction:

1 Anyone interested in a democratic system of government will have an interest in the process of democratic elections which in a fundamental way underpins the operation of democracy itself. Not much gives rise to such controversy as disputes on election results: perhaps the more local the election is and the tighter the margin appears to be, the greater intensity that is aroused between the affected candidates and most certainly between their personal supporters. History abounds with examples of late nights, long counts, and multiple recounts, ending either with a generous acknowledgement of defeat or with an over enthusiastic acceptance of victory; or else, as here, with the law becoming involved. Many years on, or even decades later, those involved can vividly recall how a high preference on, say, count 12 was sufficient to accredit victory to their candidate: others will forever believe that it was their man or woman and no other who was deserving of that final seat. However unsatisfactory it is to resort to an election petition, it seems that on occasions it may be the only means of resolving certain difficulties so that the electorate of any given area can be served by all duly elected representatives to the body in question.

2 Throughout the years there have been elections of many different sorts for membership of our national legislature and for membership of more regional or local representative bodies. Whilst there are statutory provisions governing all such elections, there are also constitutional provisions of relevance. For Dáil and Seanad elections one can refer to Article 16 and Article 18 of the Constitution respectively. Some of the matters so specified can be considered as stand alone provisions, whilst the detail of many others is to be regulated by law. It is only necessary to note for our purpose that voting shall be by way of secret ballot and that members of both Houses shall be elected on a system of proportional representation by means of a single transferable vote. (Article 16(5) and Article 18(5) respectively). Given this system of proportional representation, which applies equally to local elections, as distinct from say the first-past-the-post system, one can see how important every single vote and every preference might be, in a closely contested election.

3 For many years the role of local government was not recognised at all in the Constitution, but following the Twentieth Amendment, approved by the people in 1999, a new provision was added to the text. Article 28A(1) and (2) read as follows:-

“1. The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.

2. There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.”

4 It is not in any way necessary to examine these provisions, either as to meaning or scope. Laffoy J. in Ring v. the Attorney General [2004] 2 I.R. 185 at 201 felt that these provisions simply recognised the role of local government rather than guaranteeing it, as did Birmingham J. in O'Doherty v. the Attorney General & Ors [2010] 3 I.R. 482. Whatever the exact designation of this Article, it is however clear that the importance of democracy, through local elections, has been enshrined in our law at constitutional level. Therefore, whilst nothing directly turns on these provisions in this case, the background and context is of itself worthy of note.

The Parties:

5 Mr. Kiely is the petitioner/appellant and, as will appear immediately next, was an unsuccessful candidate in the election, the subject matter of this case. Kerry County Council, which is responsible for the conduct of the election, is the respondent in both the petition and in this appeal and evidently represents the deputy returning officer, Mr. Michael McMahon, who was in charge of the election in question. The first named notice party was a successful candidate in the election and whilst so named has not participated on this appeal. Mr. Moloney and Mr. Kennelly were also successful candidates, but only by a margin which potentially could be affected if the petitioner should be successful in the case. The former has been represented by solicitor and counsel who have made submissions on his behalf to this Court. Mr. O'Gorman is a further notice party who was eliminated from the election on the ninth count. He has also made submissions on this appeal. Finally, though remaining entirely neutral as between the candidates, the Minister for the Environment, Community and Local Government was also represented and oral submissions were made on his behalf...