Hatcher v. Fleeman, 91-CA-1091

• Decision Date: 15 April 1993
• Docket Number: No. 91-CA-1091,91-CA-1091
• Citation: 617 So.2d 634
• Parties: Lewis HATCHER v. W.E. FLEEMAN, Jr.
• Court: Mississippi Supreme Court

Page 634

617 So.2d 634

Lewis HATCHER v. W.E. FLEEMAN, Jr.

No. 91-CA-1091.

Supreme Court of Mississippi.

April 15, 1993.

Eugene A. Perrier, Vicksburg, for appellant.

John L. Maxey, II, Samuel L. Begley, Maxey Pigott Wann & Begley, Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the court:

This appeal arises from the judicial review of an election contest lodged by W.E. Fleeman, Jr. It illustrates the importance of the statutory affidavit required by Miss.Code Ann. Sec. 23-15-573 (Supp.1990), when the name of the person desiring to vote does not appear upon the pollbooks.

Lewis Hatcher appeals from an adverse judgment entered against him on October 15, 1991, in the wake of Fleeman's lawsuit contesting the results of the Democratic Primary election conducted on September 17, 1991, for the post of county supervisor, District 1 of Issaquena County.

Hatcher filed this appeal after the special judge adjudicating a protest filed by Hatcher's opponent, W.E. Fleeman, Jr., ruled in Fleeman's favor. The judge found as a fact and concluded as a matter of law that two ballots cast by voters whose names did not appear on the pollbooks were invalid because the voters failed to vote by affidavit as required by Miss.Code Ann. Sec. 23-15-573. The special judge held that the original certification of the Issaquena County Democratic Executive Committee declaring Fleeman as the nominee of the Democratic Party for the position of supervisor should be reinstated.

Hatcher contends on appeal he was denied due process of law because he received neither process nor reasonable notice of the petition contesting the election, had no opportunity to file an answer or a cross-complaint prior to the hearing, was effectively prevented from attending the hearing in person and presenting his case, and that no attempt was made to constitute a special tribunal to hear the contest. Hatcher further contends that Fleeman failed to carry his burden of proving the two ballots in question were invalid and could not be counted.

After careful scrutiny of the record, we agree with the findings made by the special judge and affirm his decision reinstating Fleeman as the winner of the Democratic Primary for the position of Issaquena County Supervisor, District 1.

FACTS

On September 17, 1991, a Democratic Primary election was conducted in Issaquena County, Mississippi. The two Democratic candidates for the post of Supervisor, District 1, were W.E. Fleeman, Jr., the incumbent, and Lewis Hatcher, the challenger. Fleeman received 87 votes while Hatcher received 86 votes. After canvassing the ballots, the Democratic Executive Committee certified Fleeman as the winner and Democratic nominee by one vote. Two so-called "affidavit ballots," i.e., paper ballots cast by affidavit, were not counted initially because the executive committee was informed the persons casting those ballots had been removed from the voting rolls.

In response to a protest filed by Hatcher, the Democratic Executive Committee was convened on Monday, September 30, 1991. At issue in Hatcher's protest were two ballots cast by Theodore Brooks and James Barnum whose names did not appear on the pollbooks prepared and maintained by the county election commission. One ballot On Wednesday, October 2, 1991, Fleeman, aggrieved over the declaration of a tie after being certified initially as the victor, delivered a written protest to Winfred Wilkinson, Chairman of the Democratic Executive Committee in Issaquena County. After polling members of the committee by telephone, Wilkinson notified Fleeman the committee would not reconvene to consider his written protest.

reflected a vote for Hatcher while the other ballot did not contain a vote for either candidate. After hearing the position of the candidates through their lawyers but prior to opening the ballot box and actually examining the two ballots, members of the executive committee voted seven (7) to four (4) to count the ballots in question. This resulted in a tie vote, 87 votes for Fleeman and 87 votes for Hatcher. Because the committee had already voted to count the ballots prior to independently verifying them, the committee declined to reconsider the matter even after the irregularity was brought to the committee's attention.

The following day, Thursday, October 3, 1991, Fleeman filed in the Circuit Court of Issaquena County his sworn petition contesting the results of the primary election. Fleeman served his petition on Hatcher's wife at 6:15 p.m. on the evening of October 3, 1991.

On Friday, October 4, 1991, the Chief Justice of the Supreme Court entered an order appointing Howard Q. Davis, Circuit Judge, to preside over the election contest. A hearing was conducted in Indianola, Sunflower County, Mississippi, at 3:00 p.m. on Friday, October 4, 1991. Judge Davis explained that time was of the essence and that he had decided to proceed with the case on Friday because the second Democratic Primary election was scheduled to be held the following Tuesday. Due to the exigency of the situation and because his view was that the case would be resolved on issues of law, the special judge declined to continue the cause or have it heard in Mayersville, the county seat of Issaquena County.

The trial court heard the testimony of three (3) witnesses: Mary Vandevender, Circuit Clerk of Issaquena County; Winfred Wilkinson, former Chairman of the Democratic Executive Committee for Issaquena County, and W.E. Fleeman, Jr. who testified in his own behalf. Hatcher's attorney appeared at the hearing, cross-examined Fleeman and his witnesses, and objected to evidence.

Mary Vandevender testified that during a purging of the pollbooks, Brooks was removed from the voting rolls by the Election Commissioners on January 10, 1989, based upon a determination that he had moved from the jurisdiction. Barnum was removed from the rolls on September 6, 1978, because it was believed he had moved. In truth and in fact, neither had moved outside the county. According to Vandevender, appropriate notices were mailed by the Circuit Clerk to Brooks and Barnum informing them their names had been removed from the pollbooks and instructing the two men they could contest this action if they found it to be incorrect.

The testimony of Vandevender and Wilkinson reflected that the ballot box containing the paper ballots of Barnum and Brooks was unsealed at the meeting of the executive committee conducted on September 30, 1991, and the ballots were removed and examined. The two paper ballots were contained inside a brown, unsealed envelope marked with the words "Spoiled Ballots." Neither of the ballots was secured inside an "Affidavit and Ballot Envelope," and the affidavit required by Miss.Code Ann. Sec. 23-15-573 was absent.

Both "affidavit ballots" were placed in a brown, unsealed envelope marked "Spoiled Ballots," written affidavits were not enclosed, and nowhere did the names of the voters in question appear, either on the ballots themselves or on the brown envelope. Further, the "Spoiled Ballots" envelope used was marked with a number four (4), indicating four ballots should have been found once election officials checked its contents. Instead, only the two ballots at issue were found. Thus, the ballots in this case are replete with irregularities indicating that the relevant statute was not followed No evidence of properly executed affidavits was indicated by a review of the record or in reading the minutes of the Executive Committee meeting of September 30, 1991, during which a discussion of the two ballots in question first took place. It seems obvious that if any evidence of properly executed affidavits existed, it would have been discovered and discussed by the committee members, the parties, or their lawyers, since the ballot box was opened and the ballots examined at this meeting. Hatcher submits it is possible that proper affidavit ballot envelopes were never supplied at the place where the two (2) ballots in question were voted. Even assuming this could be proven, however, the fact remains that no written affidavits in any form were executed by the voters involved, much less placed in a correct envelope.

and the votes were correctly found to be invalid by the special judge.

At the conclusion of the hearing, the special judge issued a ruling from the bench followed by a written opinion and order declaring that because written affidavits were not included with either of the ballots in question, the ballots of Brooks and Barnum were invalid and should not have been counted. Accordingly, the special judge reinstated the original certification of the Democratic Executive Committee declaring Fleeman the winner.

Hatcher appeals to this Court and presents two issues for discussion:

I. THE LOWER COURT ERRED IN NOT FOLLOWING THE DICTATES OF SECTIONS 23-15-929, 23-15-931, AND 23-15-935 OF THE MISSISSIPPI CODE ANNOTATED OF 1972 AS AMENDED. THE CONTESTEE WAS DENIED DUE PROCESS OF LAW BECAUSE HE DID NOT RECEIVE PROCESS OR REASONABLE NOTICE OF THE PETITION AND THE HEARING, WAS NOT ALLOWED THE OPPORTUNITY TO FILE AN ANSWER OR A CROSS-COMPLAINT, WAS EFFECTIVELY PREVENTED FROM ATTENDING THE HEARING AND PRESENTING HIS CASE BECAUSE THE HEARING WAS NOT HELD IN ISSAQUENA COUNTY, AND NO ATTEMPT WAS MADE TO CONSTITUTE A SPECIAL TRIBUNAL TO HEAR THE CONTEST. THE CONTESTEE IS ENTITLED TO A NEW TRIAL.

II. IF THE SUPREME COURT FINDS THE TRIAL COURT HEARING PROCEDURE WAS CORRECT OR DID NOT AMOUNT TO REVERSIBLE ERROR, THEN THE CONTESTANT FAILED TO CARRY HIS BURDEN OF PROOF AND THE ORDER OF THE COURT SHOULD BE REVERSED AND THE RESULTS OF THE PRIMARY ELECTION DECLARED A TIE. HOWEVER, PRESUMING THE TWO AFFIDAVIT BALLOTS WERE ILLEGAL, SINCE THE RESULT WAS CHANGED, A SPECIAL ELECTION SHOULD BE ORDERED. IN EITHER CASE, THE CONTESTEE IS ENTITLED TO A SPECIAL ELECTION.

ISSUES

I. Procedural Due Process

Hatcher contends the special judge disregarded...