Misso v. Oliver

• Decision Date: 11 January 1996
• Docket Number: No. 94-CA-01054-SCT,94-CA-01054-SCT
• Parties: Kenneth C. MISSO v. William "Boo" OLIVER.
• Court: Mississippi Supreme Court

Page 1366

666 So.2d 1366

Kenneth C. MISSO v. William "Boo" OLIVER.

No. 94-CA-01054-SCT.

Supreme Court of Mississippi.

Jan. 11, 1996.

James M. Ward, Ward & Williamson, Starkville, for Appellant.

Ellis Turnage, Cleveland, for Appellee.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

This is an appeal and cross-appeal taken from the September 23, 1994 judgment of the Circuit Court of Noxubee County. On November 3rd and 5th the election commission met and canvassed the returns of a special election for supervisor in Noxubee County. The election commission decided to open sealed ballot envelopes and count these contested votes, which changed the outcome of the election, making William "Boo" Oliver (Oliver) the winner over Kenneth C. Misso (Misso). On November 19, 1993, Misso contested the official results of the November 1993, special election for district 2 supervisor in Noxubee County. After the circuit judge heard and denied various pretrial motions, the case was tried before a jury on September 21, 1994. The jury returned with a verdict stating that they could not determine who received the most legal votes. The circuit judge ordered that the election and certification of Oliver be vacated and that the board of supervisors declare a vacancy. Later, the supervisors appointed Oliver to the vacated position.

FACTS

A special election was held for supervisor in District 2, County of Noxubee on November 2, 1993. Thereafter on the 3rd and 5th of November the election commission met in Noxubee County to canvass the returns. The election total as certified by the managers of the election, prior to the canvass by the election commission, was 624 Misso and 611 Oliver. In the election boxes presented to the election commission there were twelve rejected or challenged ballots. Those rejected and challenged ballots bore the signature of the election manager and the name of the voter on the outside of a sealed strong envelope. On the day of the canvass the election commission opened these twelve ballots At the time, and during the counting of the election returns, representatives of the Attorney General's office advised the commission that under Miss.Code Ann. § 23-15-579 (1991) the decision of the managers of the election to challenge or reject the ballot was a decision and action over which the election commission had no authority. However, the election commission's own attorney advised the commission differently, stating that the decision to recount was within the commission's authority. The relevant code sections, Miss.Code Ann. § 23-15-579 and § 23-15-601 (1991), provide no absolute guidance on the subject.

ruled on the challenges to those ballots and decided to count them all in a contested vote of 3-2 by the election commission. All twelve votes went to Oliver, and after the recount the total was 632 Misso and 640 Oliver.

On November 19, 1993, Misso filed a Complaint asking the court to determine whether the election commission had the authority to open the twelve challenged or rejected ballots in the November 3 special election. The case was tried before a jury on September 21, 1994.

In Misso's case-in-chief, he testified and then presented the testimony of Carolyn Pugh, an election commissioner of Noxubee County. Ms. Pugh testified that the election commission had not opened challenged or rejected envelopes in the past, and that this policy was codified in the Election Code Handbook. It was her understanding that the authority to decide the challenges resided in the election managers.

Next, both parties stipulated that the next witness' testimony would be cumulative. That witness was Ms. Mary Allsup, who is also an election commissioner.

After the stipulation, Misso rested his case-in-chief. Oliver then moved for a directed verdict. He stated that because no evidence had been produced by Misso in regard to the legality or illegality of the twelve votes, he was entitled to a directed verdict. Misso countered by stating that this was not the issue before the court, but rather, the ability of the election commission to go behind the returns and determine the legality or illegality of the votes. The lower court denied the directed verdict.

During Oliver's case-in-chief, the circuit clerk of Noxubee County testified that according to the official county voting records maintained in his office, each of the twelve voters who cast the twelve challenged ballots were duly registered and qualified electors of one of the five voting precincts which comprise supervisory district 2 of Noxubee County. After Oliver presented his case-in-chief, and at the close of all evidence, Oliver renewed his motion for a directed verdict and the court again denied his motion.

What seems to be a major point of confusion by both parties in the lower court, was what was the actual issue before the lower court. Misso presented the issue to the lower court, in his complaint, and at trial, as the authority of the election commission to open the rejected or challenged ballots. Oliver, on the other hand, presented the issue to the lower court as whether the twelve rejected or challenged votes were legal (and should have been counted) or illegal (properly rejected or challenged). Both parties were working under a different assumption, and presented the issues to the lower court as such. Given these facts, it is not hard to understand the confusion the jury must have felt in coming to its decision, which in fact was no decision at all. "We, the Jury, cannot determine[ ] which candidate received the greatest number of legal votes at the Noxubee County Special Election held on November 2, 1993, for District 2 Supervisor." The circuit judge ordered that the election and certification of Oliver be vacated and that the board of supervisors declare a vacancy. The supervisors appointed Oliver to the vacated position. Misso, aggrieved of the lower court's ruling, appealed to this Court. Oliver cross-appealed.

INTRODUCTION

As an initial matter, this Court notes that since this appeal has been filed this case Unfortunately, it is a fact of life that the appellate process normally takes longer than the electoral process. As a result, election cases often present questions "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).

has become moot as to the litigating parties. Since the filing of this appeal the general election for Noxubee County, District Two Supervisor has been held, and a new Supervisor elected. This case is moot because even if Misso persuades us that the trial court erred, it is impossible to reinstate Misso, or hold another special election, since the general election has since been held. Like numerous other election cases in which review is sought through direct appeal, this one is moot in terms of this Court's ability to afford specific relief to the appellant.

This Court adopted the doctrine of "capable of repetition yet evading review" as an exception to the mootness doctrine in Strong v. Bostick, 420 So.2d 1356, 1359 (Miss.1982). In Strong this Court set forth this exception and "noted that it is limited to situations where (1) the action complained of is too short in duration to be fully litigated before its expiration and '(2) [t]here [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.' " Mississippi High School Activities Assoc., Inc. v. Coleman, 631 So.2d 768, 772 (Miss.1994) (quoting Strong, 420 So.2d at 1359 (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975))). Since the Strong decision the exception to the mootness doctrine, "capable of repetition, yet evading review" has undergone some expansion. In Coleman this court noted that subsequent to the Strong decision this Court has applied the "first prong, as though it were two separate prerequisites to be met before the exception may be applied, to wit: (1) the duration of the challenged action must have been short and (2) the time required to complete an appeal is lengthy." Coleman, 631 So.2d at 773 (citing M.A.C. v. Harrison County Family Court, 566 So.2d 472, 474 (Miss.1990)) (footnote omitted). The Coleman Court also noted that in Pascagoula Sch. Dist. v. Doe, 508 So.2d 1081, 1084 (Miss.1987), "this Court simply found the case not moot, without a discussion of whether the same party would be subject to the same action again." Coleman, 631 So.2d at 773. In the case sub judice the complained of action will certainly recur, however, the appellant Misso will probably not be subject to the same action again.

The case at hand falls directly in the exception for mootness cases, or the "matters of public interest exception" pronounced in Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372, 376 (1944), which stated:

[T]hat there is an exception to the general rule as respect[ ] [to] moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.

Because this case will control future elections and the need for resolution reflects a continuing controversy in the election area and this appeal is one of public interest this Court will entertain this appeal.

Misso's submitted brief cites four issues presented for appellate review. Yet, according to Misso, "for the sake of brevity," his brief addresses only one of the four issues: the circuit court's denial of his motion for summary judgment. His brief then goes on to discuss the issue of whether the board of election commissioners has the authority to canvass the returns and make a determination to count or not count challenged ballots.

This Court has held that "a complaining party has 'an affirmative duty to specifically address the issue and provide authoritative support for its position.' When the party...