Forbes v. Bell

Decision Date09 September 1991
PartiesJane B. FORBES, Appellant, v. Henry Denmark BELL, Appellee, and The Hickman County Election Commission, composed of: Eric Coleman, chairman, and Martha Baker, Polly Chesser, Ricky Canady and Sowell Sawyor, members, and The Williamson County Election Commission, composed of: Lillian Peach, chairman, and Ann Thornton, Ruth Edmonson, C.L. McGehee, and Gordon D. Lampley, members, Appellees.
CourtTennessee Supreme Court

Winston Evans, Nashville, Margaret M. Spencer, Franklin, Robert T. Mann, Gainesville, Fla., Larry Helm Spalding, Tallahassee, Fla., for appellant.

Charles H. Warfield, James G. Martin, III, Julian L. Bibb, Nashville, for appellee Bell.

Charles W. Burson, Atty. Gen. and Reporter Michael W. Catalano, Deputy Atty. Gen., Nashville, for appellee Election Commissions.

OPINION

DAUGHTREY, Justice.

This is an election contest arising out of the August 1990 race between Jane B. Forbes and Henry Denmark Bell for the position of Circuit Court Judge in the Twenty-First Judicial District of Tennessee, comprised of Williamson, Hickman, Perry, and Lewis Counties. Forbes filed her complaint and an amended complaint within ten days after the election, as required by T.C.A. § 2-17-105. The trial court denied Forbes's motion to file a second amended complaint outside the statutory ten-day period and dismissed the first two complaints for failure to state a cause of action upon which relief could be granted. Forbes appeals both actions to this Court. For the reasons set out below, we affirm the judgment of the trial court.

1. Effect of Statutory Limitation on Amendment to Complaint

T.C.A. § 2-17-105 is clear and unambiguous in its statement that "[t]he complaint contesting an election under § 2-17-101 shall be filed within ten (10) days after the election." This special statute of limitations has long been strictly applied in election contests, which are purely creatures of statute and were not recognized at common law or in equity. Harmon v. Tyler, 112 Tenn. 8, 83 S.W. 1041, 1044 (1903). The proceedings in an election contest are said to be summary in nature, and the statutory prerequisites are considered jurisdictional. Id. Hence, the court cannot review grounds for invalidating election results unless they have been filed within the statutory period, rules of practice in civil actions to the contrary notwithstanding. Id. Indeed, the legislature has not only reaffirmed but also tightened the time limitation over the years, reducing the original 20-day filing period to the current limitation of ten days. Pub. Acts 1972, Ch. 740, § 1, codified at § 2-17-105.

Because the statute controls, we reject the contestant's argument that the relaxed pleading requirements of the Tennessee Rules of Civil Procedure, specifically provisions regarding the amendment of complaints found in Rule 15, have altered former case law in this respect. As late as 1978, seven years after the civil rules took effect, this Court held in a declaratory judgment action to invalidate the results of an election referendum that the ten-day statutory limitation applies to amendments and exhibits to complaints, as well as to complaints themselves. Dehoff v. Attorney General, 564 S.W.2d 361, 363 (Tenn.1978), citing State ex rel. Davis v. Kivett, 180 Tenn. 598, 603, 177 S.W.2d 551, 553 (1944).

In State ex rel. Davis v. Kivett, this Court reiterated the well-established rule with regard to the statutory limitation in election contests, applying it strictly to those "amended or other pleadings, making new charges on which to contest the election." Id. 177 S.W.2d at 553, quoting Harmon v. Tyler, supra, 83 S.W. at 1044. Of course, if the complainant seeks only to correct technical matters, the court may accept the late filing. Hollis v. Vaughan, 192 Tenn. 118, 237 S.W.2d 952, 953-954 (1951) (amendment "perfecting a statement in a cause of action previously stated" was proper). Amendments that merely allege in more detail grounds already alleged may also be allowed, in the discretion of the trial court. Blackwood v. Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164, 166 (1953).

In this case, Forbes's second amended complaint contains various allegations and grounds for her suit that did not appear in her previously filed complaint or in the initial amended complaint. For example, she attempted to delete paragraphs 3 through 8 of the amended complaint in their entirety and substitute new language. These new paragraphs contain matters not raised in the previously filed pleadings, such as a comparison of the ratio of absentee votes to votes cast in person in Hickman and Williamson Counties; a detailed listing of the alleged irregularities organized by precinct and voter; allegations of irregularities in the manner in which the votes of shut-in or institutionalized persons were cast; allegations of irregularities in the voting of specifically named persons not referred to in the previously filed pleadings; affidavits in support of the previously raised allegations regarding the use of paper ballot and boxes; and allegedly incorrect instructions given to voters by officials regarding whom they could vote for, depending on whether they voted in the Republican or Democratic primary. While these matters might well have been relevant at trial, they were raised too late to be considered in this case. We are thus left to review the propriety of the trial court's action based solely on the grounds stated in the original complaint and the timely-filed amendment to it.

2. Substantive Grounds for Relief

Under Tennessee law, there are two grounds upon which an election contest may be predicated. See generally Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844, 848 (1963). The contestant may assert that the election is valid and that if the outcome is properly determined by the court, it will be apparent that the contestant rather than the contestee actually won the election. The proper relief in this event is a judgment declaring the contestant to be the winner. Alternatively, the contestant may claim that the election was null and void for some valid reason or reasons. The proper relief in that case is to order a new election.

3. Suit to be Declared the Winner

The requirements of a complaint seeking to have an election contestant declared the properly elected party were set out in Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832 (1951), as follows:

When we consider this case from the aspect that it was a valid election and that the petitioner, contestant, had received more votes than the contestee, it becomes necessary for the contestant to show on the face of his petition or complaint that the illegal votes cast should be thrown out and that when this is done that the votes that he received plus the legal votes of which he claims to have been deprived was greater than that of the contest. In making these allegations it [is] necessary that the contestant specifically point out each and every vote that was fraudulently or illegally cast on behalf of the contestant and against him and that the total of these votes when taken from the contestee and added to him would give him a majority.

Shoaf, 241 S.W.2d at 833. See also Blackwood v. Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164, 166 (1953), in which this Court, relying on Shoaf v. Bringle, noted that to sustain a claim of this sort, "the contestant must specifically point out the alleged illegal votes cast for the contestee."

In this case, Forbes has failed to make the allegations necessary to support a claim that she should be declared the winner. She states in her complaint only that "the wholesale disregard of the election laws of the State have resulted in irregularities which have rendered at least 300 absentee ballots in Hickman County and 561 absentee ballots in Williamson County illegal and that but for said irregularities that Forbes, and not the incumbent ("Bell"), is the winner." Nowhere in the complaint or amended complaint, however, is there any indication of the total number of votes which Forbes and Bell received from all four counties in the district. Because Forbes has not provided these figures, we have no way of determining whether the number of allegedly illegal votes equals or exceeds the margin of Bell's declared victory. This omission alone is fatal to Forbes's claim that she should be declared the duly elected winner.

Additionally, as noted above, to be declared the winner, an election contestant must "specifically point out each and every vote that was fraudulently or illegally cast on behalf of the contestee and against [the contestant]." Shoaf 241 S.W.2d at 833. Forbes has failed to identify any allegedly illegal votes counted for Bell and against her. Without this information, we simply have no basis upon which to declare Forbes the duly elected candidate. We must therefore conclude, as to this ground for relief, that the trial court was correct in dismissing the complaint for failure to state a cause of action.

4. Suit to Have the Election Declared Invalid

With respect to election contests seeking to have an election declared invalid, this Court has stated:

Tennessee law empowers a court to void an election on two alternative, but closely related bases. First, "upon a sufficient quantum of proof that fraud or illegality so permeated the election as to render it incurably uncertain, even though it can not be shown to a mathematical certainty that the result might have been different." Emery v. Robertson County Election Comm'n, 586 S.W.2d 103, 109 (Tenn.1979); see also State ex rel Davis v. Kivett, 180 Tenn 598, 177 S.W.2d 551 (1944); Ingram v. Burnette 204 Tenn 149, 316 S.W.2d 31 (1958). Secondly, where some ballots are found to be illegal, [and] the number of illegal votes cast is equal to, or exceeds the margin by which the certified candidate won. Emery v. Robertson County Election Comm'n, supra; Hilliard v. Park, 212 Tenn 588...

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