Lewis v. Griffith

Decision Date21 September 1995
Docket NumberNo. 93-CA-01426-SCT,93-CA-01426-SCT
Citation664 So.2d 177
PartiesCharlie L. LEWIS v. Wayne GRIFFITH, Town of Hickory and Municipal Election Commission of the Town of Hickory.
CourtMississippi Supreme Court

J. Daryl Byler, Meridian, Fenton B. DeWeese, Philadelphia, MS, for Appellant.

George S. Monroe, II, Newton, MS, for Appellee.

En Banc.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

On June 28, 1993, Charlie L. Lewis, a candidate for mayor of the Town of Hickory, Mississippi, timely filed a Petition for judicial review pursuant to § 23-15-951 of Mississippi Code Annotated in the Circuit Court of Newton County. The petition named Wayne Griffith, his opponent in the mayoral race, as the Contestee, and set forth the following three allegations: 1) a "spoiled ballot" had been incorrectly counted; 2) an absentee ballot was improperly denied to Ms. Rita Fielder; and 3) that these discrepancies were outcome determinative, such that the election was tainted.

On July 19, 1993, the Town of Hickory and the Municipal Election Commission, by and

through their legal counsel, George S. Monroe, intervened and requested that they also be named as defendants/contestees in the cause. Circuit Court Judge Marcus Gordon signed an agreed Order to this effect on July 27, 1993. A trial date of December 1, 1993, was thereafter agreed upon by all interested parties.

Griffith and the Town of Hickory (hereinafter "Contestees") filed their answer on September 16, 1993, which answered all allegations raised by Lewis.

After seeking and obtaining leave of the court, Lewis amended his petition, alleging that during the course of the mayoral election, three absentee ballot applications were improperly handled in violation of Miss.Code Ann. §§ 23-15-715 to -755 (1990).

Thereafter, on November 19, 1993, Contestees filed their amended answer, denying the additional allegations. In addition, Contestees moved to strike paragraph V of Contestant's amended Petition and requested that the court grant partial summary judgment in their favor. On November 29, 1993, Judge Gordon granted partial summary judgment, causing paragraph V of Lewis' amended Petition to be stricken. As such, the issue of the Town Clerk's handling of the absentee ballots did not go forward for trial.

The trial proceeded on December 1, 1993, with all parties present. After hearing all the evidence and witnesses' testimony, Judge Gordon sustained Contestee's motion for directed verdict to dismiss paragraphs III and IV of Lewis' Petition. 1 Therefore, the only issue presented for jury consideration was the one pertaining to the handling and counting of the alleged "spoiled ballot." The jury returned a verdict in favor of Wayne Griffith.

Aggrieved by both the actions on the part of Judge Gordon and by the jury verdict, Charlie L. Lewis [hereinafter Contestant] prosecutes this appeal and assigns the following errors:

I. WHETHER THE HICKORY TOWN CLERK'S HAND-DELIVERY OF THREE ABSENTEE BALLOTS TO HER ABLE-BODIED RELATIVES IN THEIR HOME AFTER THE TOWN HALL WAS CLOSED FOR THE WEEKEND, AND HER SUBSEQUENT RETURN OF THOSE BALLOTS TO TOWN HALL AFTER THE DEADLINE FOR RECEIVING ABSENTEE BALLOTS FROM VOTERS WHO APPEAR IN PERSON, VIOLATES THE ABSENTEE VOTER LAWS OF MISSISSIPPI, THUS VOIDING THOSE THREE BALLOTS FOR PURPOSES OF THE HICKORY MUNICIPAL ELECTION HELD JUNE 8, 1993?

II. WHETHER THE HICKORY TOWN CLERK'S HAND-DELIVERY OF THREE ABSENTEE BALLOTS TO HER ABLE-BODIED RELATIVES IN THEIR HOME AFTER THE TOWN HALL WAS CLOSED FOR THE WEEKEND, AND HER SUBSEQUENT RETURN OF THOSE BALLOTS TO TOWN HALL AFTER THE DEADLINE FOR RECEIVING ABSENTEE BALLOTS FROM VOTERS WHO APPEAR IN PERSON, VIOLATES PUBLIC POLICY AND STANDARDS OF FAIRNESS AND CREATES A SPECIAL CLASS OF VOTERS, THUS VOIDING THOSE THREE BALLOTS FOR PURPOSES OF THE HICKORY MUNICIPAL ELECTION HELD JUNE 8, 1993?

III. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING CONTESTEE'S MOTION FOR SUMMARY JUDGMENT AS TO PARAGRAPH V OF CONTESTANT'S AMENDED COMPLAINT?

IV. WHETHER THE TRIAL COURT ERRED IN GRANTING CONTESTEE'S MOTION TO DISMISS PARAGRAPHS III AND IV OF CONTESTANT'S AMENDED COMPLAINT AFTER HEARING TESTIMONY

OF HOW RITA FIELDER WOULD HAVE VOTED?

At the outset, we note that the trial court first adjudged each of the four issues presented to be questions of law, and not proper for jury resolution. As will be set out in the discussion that follows, we do not disagree with this aspect of the case. The only issue that was proper for jury resolution was the allegation concerning the "spoiled ballots" and it was indeed presented to the jury. The remaining allegations concerning the Town Clerk's handling of the absentee ballots was a question of law that was not proper for the jury. The trial court correctly assumed control over these issues. However, upon closer scrutiny, we find that the trial court incorrectly applied the relevant statutes pertaining to absentee ballots.

STATEMENT OF THE FACTS

A municipal election was held in the Town of Hickory on June 8, 1993. Charlie Lewis and Wayne Griffith were the two candidates running for the office of mayor of Hickory. The Municipal Election Commission certified the results of said election on June 8th, finding and declaring Griffith the winner of the race, with a total of 116 votes, to Lewis' 115 votes.

The Petition, thereafter filed by Contestant, alleged the following violations of the provisions governing municipal elections:

1) Contestant inquired about absentee ballots on June 1, 1993 and was informed that they were not yet available, in violation of Miss.Code Ann. § 23-15-649.

2) Contestant requested that his sister, Ms. Rita Fielder (who was hospitalized at that time) be sent an application for an absentee ballot, but that while four members of the Caucasian race received such ballots, Ms. Fielder did not.

** In his amended petition, Contestant further alleged that three of the four other absentee ballots were invalid because the town clerk, Marie Childress, improperly delivered them by personally delivering the ballots to the respective homes and bringing them back to city hall and that the three ballots were cast by relatives of Childress.

3) That on the day of the election (June 8th), a "spoiled ballot" was thrown out due to irregular markings, but the same ballot was thereafter counted in favor of Contestee the next day (June 9th).

4) The election commission, in spite of these irregularities, certified the vote as 116 to 115, in favor of Contestee.

5) Had Fielder been permitted to vote and the "spoiled ballot" not counted, the results and outcome of the election would likely have been different.

The petition prayed for permitting Ms. Rita Fielder's vote to be counted, discounting an alleged "spoiled ballot," or alternatively, that a new election be ordered.

The answer, filed by Contestee and the Town of Hickory, denied all violations asserted by Contestant, stating in part as follows:

1) That Contestant inquired about the absentee ballots on or about May 24, 1993, rather than June 1, 1993. The ballots were not ready at the time Contestant inquired and that there was no violation of § 23-15-649, at the time the ballots were requested.

2) That Contestant requested an absentee ballot for Ms. Rita Fielder on June 1 or 2, 1993, and was advised that such ballot would be sent to Fielder.

3) That Fielder was mailed an absentee ballot to her resident address shown by the land records of the Town of Hickory, but said ballot was never returned to the City Clerk or Assistant City Clerk. Further, no official for the Town of Hickory was notified that Fielder did not receive her absentee ballot until after the election. Finally, it was admitted that four other absentee ballots were sent to members of the Caucasian race who requested them.

In the amended answer, Contestee and the Town of Hickory admitted that three of the four absentee ballots in question were personally delivered by the city clerk Childress, only after each voter had executed an application for the absentee in the presence of the municipal clerk. They further admitted that the ballots were executed in secret and returned 4) The ballot in question was not counted on the day of the election. However, the ballot was later counted by the election commission, after the attorney for the Town of Hickory recommended that it be counted as the markings could "reasonably be determined."

in a sealed envelope, with the requisite affidavit to the clerk, in accord with § 23-15-17. It was also admitted that the three ballots were executed by relatives of the clerk, but that all statutory requirements for executing these ballots had been duly complied with.

On November 19, 1993, Contestee and the Town of Hickory moved for partial summary judgment. The motion averred that Contestant's allegations were not supported by the election provisions set forth in the Mississippi Code, and that the election code permitted Childress, as the Town Clerk, to deliver the absentee ballots to three of her relatives. A hearing on the motion for partial summary judgment was had on November 29, 1993. Mrs. Marie Childress testified that she, as the Clerk for the Town of Hickory, delivered applications and absentee ballots to three of her relatives the Friday before the upcoming election on Tuesday. The three relatives of the town clerk included her son, daughter-in-law and granddaughter. Childress' son and his wife were living in Tunica, allegedly did not have a mailing address and, therefore, came home to vote. Similarly, Childress' granddaughter was attending Mississippi State University, did not have a mailing address, and came home to vote. Childress took the applications and ballots home with her from the Town Hall, and according to Contestee, the three family members executed their votes and Childress "did exactly what she would have done in City Hall." The Contestees argued that had...

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