Rives v. Pettit
| Decision Date | 15 January 1974 |
| Parties | Robert C. RIVES et al., Appellants, v. H. Foster PETTIT, Appellee. James G. AMATO, Appellant, v. H. Foster PETTIT et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
E. Lawson King, Fayette County Atty., Joseph B. Murphy, Frank G. Dickey, Jr., Asst. County Attys., Lexington, for appellants, Robert C. Rives and others.
Earl S. Wilson, J. Montjoy Trimble, Harry B. Miller, Robert M. Odear, Lexington, for appellant, James G. Amato.
F. Selby Hurst, Foster Ockerman, Rufus Lisle, Arthur L. Brooks, William R. Bagby, Lexington, for appellee.
At the general election held on November 6, 1973, James G. Amato and H. Foster Pettit were the candidates for mayor of the new Lexington-Fayette County Urban Government. 1 Except for absentee ballots, all voting was done by use of voting machines pursuant to KRS Ch. 125. According to the official count the total vote in the mayor's race was 20,397 for Amato and 20,285 for Pettit, a difference of 112. The court in Aylesford precinct, which is of central importance to this case, was 156 for Amato and 73 for Pettit, a difference of 83. The absentee ballot count was 255 for Pettit and 190 for Amato, a difference of 65.
Within 96 hours after the close of the polls Pettit requested a recanvass of the machines in all precincts. 2 Cf. KRS 125.190. When the Aylesford machine was opened during the recanvass the names of Amato and Pettit as they appeared on the face of the ballot in the front of the machine were found to be in reverse order from that which had been determined in the pre-election drawing for position and shown on the official sample ballot, and in reverse order from their respective positions as they had been arranged on the print-out sheet, in the rear of the machine, upon which the totals of their votes were recorded. 3 In other words, and it is beyond dispute, if this was the condition of the machine while it was being used during the election all the votes cast for each of these two candidates 4 according to the face of the ballot were registered for the other and so recorded on the print-out sheet at the end of the day.
Evidently upon the assumption that their authority or duties in a recanvass did not extend beyond verifying the figures shown by the mechanical counters in the rear of the machines, or because of uncertainty in this respect, the election commissioners declined to change the count for Aylesford precinct and upon completion of the recanvass proceeded to certify the result of the election in accordance with the original count. 5
On November 14, 1973, Pettit brought two actions in the Fayette Circuit Court, Nos. 73--2561 and 73--2562, to which we shall refer as 2561 and 2562. Except for the portions relating to the relief sought the complaints were identical. 6 In 2561 he simply demanded a recount under KRS 122.100. In 2562 he demanded that the election commissioners be required to correct their certification and to issue a certificate of election to him. In the body of each complaint he alleged that there had been a mistake in setting up the Aylesford machine, resulting in an erroneous reversal of the votes recorded for him and Amato in that precinct, correction of which would result in Pettit's election by majority of 54 votes, and that after discovering the error during the recanvass the election commissioners had refused to correct it.
KRS 122.100, the recount statute, requires the circuit court, immediately upon notification by the clerk, to order all the 'ballots, boxes and all papers pertaining to the election' transferred to the circuit court 'and fix a day for the recount proceedings to begin.' On the day thus fixed the court 'shall proceed to recount the ballots if their integrity is satisfactorily shown and shall complete the recount as soon as practicable . . . and direct the election commissioners whose duty it is to issue the certificates to issue the same to the party entitled thereto as shown by the recount.' It is further provided by subsection (3) of this statute that if a recount proceeding is prosecuted in a contest proceeding it shall not await completion of the contest. 7
In compliance with the statute the trial court in this case at once caused all of the election equipment (including the voting machines) and materials to be transferred to and secured in the custody of the circuit court and fixed a time for beginning the recount. On December 5, 1973, a judgment was entered in 2561 declaring Pettit the winner of the election by a vote of 20,368 to 20,314 8 and directing the issuance of a certificate of election to him. Amato and the other defendants appeal from that judgment. 9
On the same day the judgment was entered in 2561, and in the same action, Amato filed an answer and counterpetition in which, among other things, he pleaded waiver and estoppel against Pettit and, in the alternative, asserted a contest in which he demanded that all of the absentee ballots and all of the Aylesford votes be eliminated on grounds of certain irregularities hereinafter mentioned. 10 At the same time Amato filed a similar pleading in 2562, in which he also asserted the pendency of 2561 as a bar to 2562.
On December 6, 1973, Pettit filed an amended complaint in 2562 'in order to perserve his grounds of contest in the event such judgment in the recount proceedings should be appealed and be reversed on appeal,' etc. A sharp issue having arisen during the recount hearings with respect to the applicability and effect of KRS 61.060, which provides that no fact officially certified as required by law may be questioned except in a direct proceeding against the certifying officer or his sureties or upon an allegation of fradu or mistake on his part, Pettit's amended complaint in 2562 alleged in particular that any certificates the election commissioners or the county clerk had issued to the effect that the Aylesford voting machine was properly set up were erroneous and the result of mistake on the part of the officers so certifying. Other pleadings, counter-pleadings, motions and amendments followed in due course but need not be enumerated here.
On December 11, 1973, the trial court entered an order recognizing that Amato had asserted a timely election contest in Pettit's recount proceeding (2561) and consolidating that phase of 2561 (Amato's contest) with 2562 (Pettit's contest and Amato's countercontest) for purposes of trial. The consolidated contest proceedings culminated on December 28, 1973, in a judgment for Pettit, from which Amato appeals. The two appeals 11 have been consolidated for consideration and disposition by this court.
What has been recited thus far is intended to delineate the course of the pleadings. It is necessary to understand also how the evidence was developed and treated.
At the beginning of the hearings the trial court determined that 2561 was properly a recount proceeding under KRS 122.100, that 2562 was a contest suit under KRS 122.070, that the evidence to be heard in the recount inquiry would be confined to the integrity of the voting machines 12 from the time they were first opened on election day (plus, of course, if the integrity should be established, a recount of the votes), that in order to obviate unnecessary duplication the testimony received with respect to the recount would be treated as evidence in the contest action as well, but subject to the right of the parties to produce other and further evidence in the latter, and that the two actions would thereafter be consolidated for that purpose. 13
After all the witnesses for both sides had testified and the parties had announced closed, the trial judge, over objection by the defendants (because plaintiff's motion for an inspection of the machines came after his counsel had announced closed), proceeded in the presence of counsel for the respective parties to inspect the voting machines at their place of storage and to dictate his observations for transcription as a part of the evidence to be considered in arriving at his judgment. In the course of examining the Aylesford machine he observed, among other things, that the ballot strips in the face of the machine occupied the horizontal rows in the following order, beginning at the bottom: G, E, F, D, C, B and A (that is to say, the E and F strips were in reverse order from what they should have been). He found also that when he activated the voting levers on the fifth and then the sixth horizontal rows (from the top) in column 18 of the machine the votes were registered for 18E and 18F, in that order, as permanently lettered in the back of the machine.
Previous to the conclusion of other testimony the trial court had also examined and counted the absentee ballots. He found that some had been illegally cast, but they could not be identified and were not sufficient in number to affect the result of the election.
After the judgment of December 5, 1973, had been entered in the recount proceeding, counsel for Amato took the position, as set forth in a written statement reiterating their previous objections and motions, that the publicity given by the local news media to the opinion issued by the trial court with the judgment had effectually 'destroyed . . . the possibility of successful investigation of a precinct in which Plaintiff had already procured affidavits of 125 voters but only used 30 of them as witnesses,' etc., and closed their case without taking further evidence. The trial court thereupon entered a 21-page opinion addressed to the contest aaspects of the case, and in the judgment of December 28, 1973, adopted the opinion as its findings of fact and conclusions of law.
We shall not attempt to recapitulate the evidence. It is clearly sufficient under CR 52.01 to sustain the trial court's findings of fact, which were substantially as follows:
A. In the recount case (2561).
None of the voting machines had been altered or changed in any...
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