Harpole v. KCDEC, 2004-EC-00302-SCT.

• Decision Date: 04 August 2005
• Docket Number: No. 2004-EC-00302-SCT.,2004-EC-00302-SCT.
• Citation: 908 So.2d 129
• Parties: Johnny HARPOLE v. KEMPER COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Samuel Tisdale.
• Court: Mississippi Supreme Court

908 So.2d 129

Johnny HARPOLE v. KEMPER COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Samuel Tisdale.

No. 2004-EC-00302-SCT.

Supreme Court of Mississippi.

August 4, 2005.

Gary Street Goodwin, Columbus, attorney for appellant.

Marvin E. Wiggins, Jr., Linda Ann Hampton, attorneys for appellees.

Before COBB, P.J., CARLSON and GRAVES, JJ.

CARLSON, Justice, for the Court.

¶ 1. After his apparent loss in the August 26, 2003, second Democratic primary election for the office of sheriff of Kemper County, Johnny Harpole filed a petition for judicial review in the Circuit Court of Kemper County, Mississippi. Upon a dismissal of his petition by specially appointed Circuit Judge Albert B. Smith, III, Harpole appeals to us. Finding no reversible error, we affirm the judgment of dismissal of the Kemper County Circuit Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Incumbent Sheriff Samuel Tisdale and challenger Johnny Harpole emerged from a four-candidate field in the first Democratic primary to advance to the second primary to determine the Democratic nominee for the office of sheriff of Kemper County. In the second primary, Tisdale received 2,191 votes, and Harpole received 2,151 votes. Thus, on August 27, 2003, the Kemper County Democratic Executive Committee (KCDEC) certified Tisdale to be the Democratic nominee for the office of sheriff. On the same day, Harpole submitted a brief letter to the KCDEC requesting, inter alia, a "manual recount" because of Tisdale's narrow margin of victory and due to his concerns about the integrity of the ballot boxes. In this letter, Harpole also requested the KCDEC to investigate his claim that convicted felons had illegally voted in this second primary election. However, two days later, on August 29, 2003, Harpole, by then represented by counsel, personally delivered a letter to Tisdale, with copies of the letter being delivered to the Kemper County circuit clerk and the KCDEC. In this letter, Harpole notified Tisdale that he was requesting the KCDEC to make arrangements for Harpole and his attorney to examine the ballot boxes from the second primary election, "as soon as possible."

¶ 3. On September 5 and 8, 2003, Harpole and his attorney examined the contents of the ballot boxes and, on September 12, 2003, Harpole, through counsel, filed his contest with the KCDEC. In this petition, Harpole alleged numerous election day irregularities such as (1) votes being cast by convicted felons; (2) sheriff's deputies transporting prisoners to the polls to vote; (3) sheriff's deputies waiting in the polling place while the prisoners voted; (4) the unauthorized counting of affidavit ballots; (5) the voter sign-in lists containing names of deceased persons; (6) the voter sign-in lists allegedly containing numerous signatures in the same handwriting; (7) non-residents voting in the wrong precinct; (8) malfunction of the machine counter; (9) improper actions by the resolution committee, including committee service by Tisdale's relative; and, (10) blatant mishandling of absentee ballots.

¶ 4. In response to Harpole's petition, the KCDEC, through its chair, Earl Thomas, called a special meeting for Monday, September 22, 2003, at 1:00 p.m., at the Kemper County Courthouse, to consider Harpole's contest. The certificate of service reveals that via facsimile transmissions, true copies of this Notice were served upon Tisdale and Harpole's attorney. The record reveals that Harpole's attorney received a copy of this notice at 5:03 p.m. on Monday, September 15, 2003. Thereafter, on September 19, 2003, the KCDEC designated a panel to actually conduct the hearing.¹ By written order, this panel was charged by the KCDEC with the duty of conducting a hearing to investigate each allegation asserted by Harpole. This same order likewise made a preliminary determination that the KCDEC was without jurisdiction to investigate Harpole's claims that Tisdale's deputies improperly transported prisoners to the polls to vote, based on the sheriff being charged by statute concerning the incarceration and transportation of prisoners in his custody. Additionally, the KCDEC made a preliminary determination that it was without authority to investigate Harpole's claims regarding convicted felons being allowed to vote since the Kemper County Election Commission, and not the KCDEC, was charged by law with voter registration and the purging of the voter rolls.

¶ 5. The panel in fact convened as scheduled on September 22, 2003, in the courtroom of the Kemper County Courthouse. In accordance with the prior order, both Harpole and Tisdale were allowed to present evidence and argue their respective positions to the panel, which thereafter issued its written findings to the KCDEC for consideration. On September 25, 2003, the KCDEC met to discuss the findings of the panel and to render a decision. The KCDEC adopted the findings of the panel and determined that most of Harpole's allegations were either without merit or meaningless because the error affected only a small percentage of the total vote. However, the KCDEC did determine that there were material breaches of absentee voter law. In finding that there was no way to differentiate between a legal absentee ballot and an illegal absentee ballot, the KCDEC held that all absentee ballots would not be counted. In making this determination, the KCDEC concluded that there was no evidence of fraud or willful violation of mandatory election statutes. On September 26, 2003, the KCDEC conducted an official recapitulation without the inclusion of any absentee ballots, and this resulted in Tisdale winning the second primary by 159 votes — 2118 votes for Tisdale, and 1,959 votes for Harpole.

¶ 6. On October 9, 2003, Harpole filed his sworn petition for judicial review in the Circuit Court of Kemper County. There were attached to the petition for judicial review (1) a copy of his petition (with attachment) filed with the KCDEC on September 12, 2003; (2) The findings of the KCDEC; (3) the certificates of two practicing attorneys; and, (4) a cost bond. Attached to the petition for judicial review were two oaths/verifications signed by Harpole before a notary public. One oath states that all allegations in the petition for judicial review are true and correct as stated, and the other oath states that the attached document is a true and correct copy of the initial petition filed and served upon the KCDEC.

¶ 7. On October 17, 2003, pursuant to Miss.Code Ann. § 23-15-929 (Rev.2001), Judge Albert B. Smith, III, a circuit judge from the Eleventh Circuit Court District, was appointed to preside over the proceedings in this election contest. Accordingly, Judge Smith promptly entered an order setting the cause for trial on October 29, 2003; however, an agreed order was later entered continuing the case and setting the matter down for trial on December 11, 2003. This order also established various deadlines and pretrial procedures for the parties and attorneys. Likewise, the order directed the circuit clerk to issue process for service on the five county election commissioners to appear and to serve with the circuit judge as a special tribunal according to law. See Miss.Code Ann. § 23-15-931 (Rev.2001).

¶ 8. By December 7, 2003, in addition to various pleadings and discovery documents, there were pending before Judge Smith, Tisdale's (1) motion to dismiss, (2) motion to strike, (3) motion for summary judgment with documentation, (4) amended motion to dismiss, (5) second amended motion to dismiss, and (6) amended motion to strike. By, that time, there was likewise pending before Judge Smith, the KCDEC's motion to dismiss and strike. By order dated December 7, 2003, and entered on December 8, 2003, Judge Smith granted Tisdale's motion to dismiss, finding, inter alia, that the court lacked jurisdiction due to several fatal defects in Harpole's petition for judicial review, and, even alternatively addressing the petition on its merits, that Harpole had failed to sufficiently allege violations and irregularities in the second primary sheriff's election to the extent that the will of the qualified voters was impossible to ascertain. Therefore, Judge Smith dismissed, with prejudice, Harpole's petition for judicial review and certified as "official and final" the results from the November general election for the office of Kemper County Sheriff.² Harpole thereafter filed a motion to reconsider the circuit court's dismissal, and upon Judge Smith's entry of an order denying the motion to reconsider on January 6, 2004, Harpole perfected his appeal to this Court.

DISCUSSION

¶ 9. Harpole claims that the circuit court erred by finding (1) that the special tribunal lacked jurisdiction because of Harpole's failure to allege any act, or failure to act, on the part of the KCDEC so as to allow the special tribunal to undertake a judicial review of the KCDEC's findings; (2) that the special tribunal lacked jurisdiction because the "original contest letter" of August 27, 2003 was not sworn and attached to the petition for judicial review; (3) that Harpole was given the statutory minimum notice of the KCDEC hearing; (4) that Harpole was not entitled to the issuance of blank subpoenas; (5) that the KCDEC had complied with the statutory mandate by designating a panel to conduct an investigatory hearing on Harpole's petition; (6) that the KCDEC had no jurisdiction concerning Harpole's allegations that sheriff's department personnel transported prisoners to the polls to vote; and, (7) that no evidentiary hearing before the special tribunal was necessary to determine the validity of Harpole's claims, such as (a) convicted felons voted, (b) citizens voted outside their precinct, (c) dead persons voted,³ (d) regular, affidavit and absentee ballots were mishandled to the extent that the true will of the voters could not be ascertained, and (e) the KCDEC's investigation was inadequate to disclose the gross election...