McCreary v. Martin

This is an appeal by Rick McCreary, unsuccessful candidate for the Democratic nomination for the Commission Chair of Lamar County, from an order of the Superior Court of Lamar County, inter alia, dismissing his petition to contest the primary election. For the reasons which follow, we conclude that the appeal is properly dismissed as moot. On July 31, 2006, McCreary filed a petition to contest the July 18, 2006, Democratic primary election in which he was one of two candidates ultimately seeking to run for the Lamar County Commission Chair and in which he came in second. The petition was filed against Kathy Martin, as Election Superintendent for Lamar County, Bobbie Burnette, as Voting Registrar for Lamar County, Bobby Burnette, as Lamar County Commission Chair and Democratic candidate for re-election, and Jay Matthews, as Republican candidate for Lamar County Commission Chair collectively “respondents”. On August 10, 2006, respondents moved to dismiss1 the petition on the grounds that McCreary failed to properly verify his petition because his affidavit was insufficient under OCGA § 21-2-524 d2 and failed to comply with the statutory procedures for serving the State Election Board; the motion further asserted that Bobbie Burnette, in her capacity as Voting Registrar and Bobby Burnette, in his capacity as Chairman of the Lamar County Commission, were improper party defendants under the Georgia Election Code, OCGA § 21-2-1 et seq. On August 16, 2006, McCreary filed a motion for leave to file an amended petition and amended verification.

Following a hearing, on August 28, 2006, the superior court issued an order granting the motion to dismiss the petition, dismissing Bobbie Burnette and Bobby Burnette as improper party defendants, denying McCreary’s petition for leave to amend, and directing that McCreary pay all costs in accordance with OCGA § 21-2-529.3 The superior court found that McCreary’s attempt to amend his petition was untimely and that his failure to properly verify his petition and his failure to properly effectuate service on the State Election Board required dismissal of his petition.