Pegram v. Bailey, 96-CA-00065-SCT.

• Decision Date: 08 May 1997
• Docket Number: No. 96-CA-00065-SCT.,96-CA-00065-SCT.
• Citation: 708 So.2d 1307
• Parties: William "Billy" PEGRAM v. Wayne BAILEY.
• Court: Mississippi Supreme Court

708 So.2d 1307

William "Billy" PEGRAM v. Wayne BAILEY.

No. 96-CA-00065-SCT.

Supreme Court of Mississippi.

May 8, 1997.

Webb Franklin, Lott Franklin Fonda & Flanagan, Greenwood, for appellant.

M. Lee Graves, Jr., Clarksdale, for appellee.

Before PRATHER, P.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

This case comes before this Court on appeal as a result of an election contest brought by Wayne Bailey, a candidate for the office of Supervisor of Beat Five, Tunica County, against William "Billy" Pegram, a candidate for the same office, regarding the election of Tuesday, August 29, 1995, in the Democratic Primary run-off. The Tunica County Democratic Executive Committee (DEC) held an election run-off on August 29, 1995, which resulted in a tie vote between the two candidates. Pursuant to Miss. Code Ann. § 23-15-601 (1972), the DEC drew lots and Pegram was selected by lot as the winner of said election. The DEC then certified Pegram as the winner of the Democratic Election Primary. No other candidates qualified to run for the office in the Republican Primary or in the general election.

Bailey filed a petition contesting the primary election with the DEC, and a hearing was held by the DEC on Tuesday, September 28, 1995, wherein the DEC reaffirmed the certification of Pegram as the winner of the election. On October 4, 1995, Bailey filed his petition for judicial review in the Circuit Court of Tunica County. As a result of his filing Judge Frank A. Russell of the First Circuit Court District of Mississippi was designated to hear and determine the election contest. Judge Russell entered his order on November 20, 1995, setting the Petition for Judicial Review for hearing on December 6, 1995.

On December 6, 1995, a trial on the issues was heard before Judge Russell with all five of the duly elected and qualified election commissioners of Tunica County sitting as advisors to the Court. At the trial Bailey alleged that four absentee ballots were improperly rejected by the election officials and urged the court to overturn the DEC's decision and count the four rejected votes. Pegram prevailed at the trial as to three of the questioned ballots. The court, in its opinion of December 22, 1995, found for Bailey as to the absentee ballot of Betty W. Hall. It directed the DEC to reconvene, open, and count the vote of Betty W. Hall.

After the judge issued his Order, the election commissioners, who sat as advisors to the court during the trial, filed their dissent to the court's Order and Opinion. Therein they all agreed that the proof adduced at the trial conclusively showed that the signatures in question did not match and that the absentee ballot of Betty W. Hall should not be counted. Also after the judge entered his order and opinion, Pegram filed a sworn motion for a new trial based on newly discovered evidence. Pegram also filed a motion requesting the lower court to stay its Order, and to grant him an appeal with supersedeas on December 28, 1995. The lower court entered its Order denying both motions at 4:45 p.m. on the same day.

In accordance with the judge's original Order, the DEC convened at 7:00 p.m., opened the ballot of Betty W. Hall, declared that it was a vote for Bailey, and telephonically notified the court of its action. At 7:15 p.m., the court entered its Final Order declaring Bailey the winner of the election and declaring that he be sworn in for a term of 4 years beginning on the first Monday of January, 1996. The next morning at 10:00 a.m., Bailey was sworn in to serve as directed by the court.

On January 26, 1996, Pegram filed his Motion to Stay in this Court asking for his appeal to be granted with supersedeas vacating the Final Judgment of the lower court and directing reinstatement of the certification of the DEC declaring him the winner of the election, and further requesting that he immediately be sworn in to serve in that capacity pending the appeal. Alternatively, he requested the Court grant his appeal with supersedeas staying the Final Judgment of the lower court and directing that the office of Tunica County Supervisor District Five be declared vacant pending the appeal. On March 22, 1996, this Court entered its Order denying the Motion for Stay and directing that this case be advanced on the docket for expedited consideration.

STATEMENT OF THE FACTS

The parties prior to trial stipulated as to most of the facts surrounding this case. Counsel for each side also agreed that the matter would be tried without expert testimony. The parties agreed that this would lessen expenses and expedite a resolution to this case.

The vote in the election for Supervisor of District Five resulted in a tie with each candidate receiving 262 votes. The DEC resolved the tie in compliance with Mississippi law by following the statutorily prescribed procedure of drawing lots. Pegram prevailed in the draw and was certified to be the winner of the election by the DEC.

There were originally four absentee ballots which were challenged by Bailey. However, during the course of the trial, Bailey failed to present any evidence on two of the four contested ballots, thereby electing not to contest the other two ballots. The Court only heard testimony and received evidence concerning two of the absentee ballots which had been rejected by the election managers and the DEC. The failure of the signatures on the absentee ballot application and the ballot envelope to correspond was the reason cited for the rejection of the ballots.

Bailey contended that there were no signature differences; therefore, the absentee votes should have been counted. Pegram argued that the signatures were different and the DEC correctly excluded the ballots from the count.

The first contested ballot was that of Bennie Frazier, a 90 year-old blind man, who testified that he did not sign his name on the application or the ballot envelope. He testified that his daughter, Everlean Jones, signed all of his ballot materials. Mrs. Jones corroborated this by her testimony. The application signature and the signature of the absentee ballot envelope was compared, and a difference was found to exist. There was an "X" before the signature of Bennie Frazier on the application, and the absence of an "X" on the absentee ballot envelope. Mrs. Jones offered an explanation for the "X" by stating Bailey had marked the signature line to indicate where the voter should sign the ballot envelope. The DEC printed "rejected, signature difference" on the outside of the envelope. The judge, along with all five election commissioners concurring, found from all of the evidence and testimony that there was in fact a signature difference with respect to the vote of Bennie Frazier. In its Order sustaining the DEC decision, the court concluded Frazier's ballot was properly excluded.

The other contested ballot, which is the one raised on appeal, was supposedly cast by Betty W. Hall. At the time of the trial she was 92 years-old and confined to a wheel-chair. The lower court concluded that there were no signature differences on the application for absentee ballot pertaining to Mrs. Hall's vote and the ballot envelope, and directed that Mrs. Hall's vote be opened and counted. When counted, the vote was for Bailey. With the inclusion of Mrs. Hall's ballot, Bailey received 263 votes and Pegram received 262 votes. Based on the new vote totals and pursuant to the court's Order, Bailey was sworn in to serve a term of 4 years as Supervisor of District Five of Tunica County.

Aggrieved of the lower court's decision, Pegram appeals to this Court raising the following assignments of error:

I. WHETHER THE TRIAL JUDGE ERRED IN FINDING THE SIGNATURES OF BETTY W. HALL ON HER BALLOT APPLICATION AND BALLOT ENVELOPE MATCHED.

II. WHETHER THE TRIAL JUDGE ERRED BY FAILING TO GRANT PEGRAM A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

DISCUSSION OF ISSUES

The trial judge found the signatures of Betty W. Hall to be the same on the application for the absentee ballot and the envelope containing the ballot itself. The signatures in question have been appended to this memorandum as "Appendix I."

Several persons who were actively involved in the vote counting process of the election had to make a determination as to whether the signatures corresponded. At each stage of the process, all who were officially called upon to make such determination found in favor of Pegram, except the trial judge. He found that the signatures did correspond.

According to Miss. Code Ann. § 23-15-639, after the polls close, the precinct election managers review the absentee ballots to determine if the signatures on the application correspond with the signature on the envelope containing the ballot. The poll workers at the Two Mile Lake precinct in Tunica County, first made the determination that the two questioned signatures of Hall did not match. Therefore, the poll workers marked across the face of the envelope "rejected-signature differences" pursuant to Miss.Code Ann. § 23-15-641. The next day the DEC met to canvass the votes and to certify the election. Joe Eddie Hawkins, chairman of the DEC, testified that there were either 16 or 17 of the total 27 members of the DEC present during this proceeding. Both candidates were present at this meeting. During the meeting Mrs. Hall's ballot and application were passed around the Committee for observation by all in attendance. This was done in order to ensure that all were in agreement that the signatures were not the same. Hawkins further testified that he did not recall any of the DEC members present at the meeting voting to count the ballot.

Later Bailey filed a petition with the DEC, pursuant to Miss. Code Ann. § 23-15-921, to have the decision not to count Mrs. Hall's ballot reviewed. A hearing was held before the DEC where Bailey's attorney presented evidence. A majority of the DEC was...