Deaton v. Little
| Decision Date | 24 October 1969 |
| Parties | Troy DEATON, Appellant, v. J. Floyd LITTLE, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Arthur L. Brooks, Jr., Lexington, William P. Bach, Jackson, for appellant.
Jackle Franks, Jackson, H. M. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellee and cross-appellant.
As in Watts v. Fugate, Ky., 442 S.W.2d 569, an election for the office of member of the Breathitt County Board of Education has generated an election contest action in which legal problems are raised that necessitate a re-examination by this court of our law relating to election contests.
On the basis of the offical returns, Troy Deaton defeated J. Floyd Little by a plurality of 21 votes at the November, 1968, election for the office of school board member. The term of this office is for four years commencing in January of 1969. Deaton was certified as the winner of the election. Little, as contestant, filed an election contest action pursuant to KRS 122.070 against Deaton, as contestee. Little asked that it be adjudged that he, not Deaton, had been legally elected to the office. Little alleged that specifically named persons had voted for Deaton, but that they were disqualified voters and that these illegal votes should be deducted from Deaton's total vote; it was also alleged by the contestant that the vote cast in a specifically named precinct should be eliminated from consideration because of general illegal voting and other violations of election laws in the conduct of the election at this precinct. Deaton filed an answer and countercontest in which he alleged that specifically named persons were disqualified voters and had voted for Little, and he asserted that these votes should be deducted from Little's total vote. Deaton sought judgment that he, not Little, had been legally elected to the office.
As the result of a trial in open court at which both parties introduced their evidence, the trial judge first decided that Deaton, the contestee, was the winner by a plurality of one vote; however, after both contestant and contestee had moved for amended findings, the judge then decided that Little, the contestant, had been elected by a plurality of two votes. Thereupon judgment was entered declaring Little the legally elected board member. Deaton appeals, asserting that the judge erred in deducting the votes of specified voters from his total and also erred in failing to deduct the votes of other specified voters from the contestant's total. Little cross-appeals and argues that the judge should have deducted more votes from the contestee than he did; that error was committed in deducting from contestant's total certain votes, and that another prejudicial error occurred when the trial court struck from contestant's pleading a paragraph which sought to eliminate the vote of Vancleve precinct No. 3 from consideration in determining the results of the election. Little, therefore, urges that he should have been declared the victor by a wider margin. We have decided that neither the contestant nor the contestee can be said to have been elected by a plurality of the legal votes cast. The office that is the subject of this litigation is vacant by operation of law.
According to statutory procedure the contestant introduced his evidence in chief first. He first called some of the persons specifically named in his pleading and undertook to establish that each of them was a disqualified voter who had voted for the contestee. He then called persons specifically named in the pleading of contestee as disqualified voters who had voted for the contestant, and undertook to prove only that they had voted for the contestee; he pointedly did not attempt to prove that they were disqualified or illegal voters. After completing this maneuver the contestant announced closed and moved the court to be permitted to withdraw from his pleading the names of all persons alleged to be illegal voters whom he had not introduced as witnesses. The trial court at this point overruled his motion. The contestee thereupon moved the court to be permitted to withdraw from his pleading the names of all witnesses whom he had specified in the pleading whose votes were 'not in issue.' In an exchange at this point in the proceedings between counsel for the contending parties and the trial judge, there is only one impression that emerges clearly--the attorneys were confused.
Although counsel for the contestee stated that he wanted to withdraw the names of 'specific witnesses,' he was not afforded the opportunity to name them because counsel for the contestant convinced the trial judge that the names could not be withdrawn over his objection; the contestee, however, made no avowal specifying the names he desired to withdraw. The contestee then introduced his witnesses and in the course of his evidence proved to the satisfaction of the trial judge that one of the voters named by the contestant in his pleading was an illegal voter who had voted for Little. The name of this voter is Margaret Deaton, but she was one of contestant's specified, but uncalled, voters whose names the contestant had claimed the right to withdraw. Finally, the evidence was completed, and the trial judge concluded that he had erred in some of his rulings during the trial.
The trial judge in his written opinion resolved the pleading and procedural problems in this manner: The contestant's action in calling persons named as illegal voters in the contestee's responsive pleading was sustained; however, the contestant was required to prove in each instance that such voter was disqualified and had voted for the contestee before the vote was deducted from the contestee's total; the contestee was denied the right to withdraw the names of voters specified in his pleading whose testimony had been introduced by the contestant, but the contestant's withdrawal of names of voters specified in his pleading prior to the introduction of their testimony by the contestee was declared effective, thus reversing a prior ruling. The effect of the last decision was that the proved illegal vote of Margaret Deaton for the contestant was not deducted from the contestant's total.
In regard to the trial judge's resolution of the pleading and procedural issues, the contestee argues that he was prejudiced in not being permitted to withdraw his pleaded names of voters whose testimony the contestant introduced, while the contestant was permitted to effectively withdraw pleaded names, thereby precluding contestee upon a proper showing from having the votes deducted from contestant's total. In other words, the contestee argues that the sword should have two edges. The contestant insists that he was prejudiced because he was required to prove that the voters alleged by the contestee to be disqualified were in fact illegal voters. The contestant urges that their disqualification had been admitted by the contestee's pleading, and therefore all that should have been required was proof that such voters in fact voted for the contestee in order to cause these votes to be deducted from the contestee's total.
We are faced with practical problems of conflicting policy considerations, evidenced by confusing statements of dictum in prior opinions, in our effort to ascertain the correct mode of procedure in the situation presented by this case. It may well be argued that in election contest cases dealing with alleged illegal voters, it places the pleader in a dangerous position to deny him the right to withdraw the names of alleged illegal voters from his pleading where his adversary has the opportunity to induce them to falsely testify that they voted for the pleader. On the other hand, it appears contrary to accepted principles of justice to permit a litigant in an election contest case to use a procedural maneuver to deny to his adversary and the court an opportunity to determine the truth concerning the legality of the vote for either contending candidate.
The fundamental difficulty lies in the assessment of the credibility of the witness. This determination of credibility must be made in the context of deciding whether to believe the statements of a witness who admits that although he was disqualified to vote he, nevertheless, voted. The character of the disqualification; the existence or opportunity of actual knowledge by the voter of the disqualification; the interest of the witness in the cause of the adversary--all these are elements to be considered in the determination of credibility. We are persuaded that each litigant must be afforded an equal opportunity to develop the truth and the problem of credibility must be left to the determination of the fact finder--the trial judge.
In May v. Drake, 309 Ky. 819, 219 S.W.2d 31, we recognized the problem of the confusing statements of dictum in opinions prior to that case. We characterized some of those prior statements as no longer binding, and ...
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