Shannon v. Henson

Decision Date03 December 1986
Docket NumberNo. 57220,57220
Citation499 So.2d 758
PartiesJimmy Lee SHANNON v. Charles HENSON.
CourtMississippi Supreme Court

J. Max Kilpatrick, Philadelphia, for appellant.

Edward Blackmon, Jr., Canton, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the court:

I.

This election contest turns on questions of timing and procedure. Were the statutorily prescribed procedures for casting absentee ballots complied with? Was judicial review timely sought? And, to what extent is judicial review of an election contest governed by the pleading and practice provisions of the Mississippi Rules of Civil Procedure?

As explained below, this election contest was brought timely--"forthwith", in the wording of the statute. The rules of civil procedure fill in the gaps left by our statute law but do not operate to thwart today's contest. In the end, thirteen absentee ballots must be thrown out because a statutory procedure designed to assure the integrity of the absentee voting process--that requiring the certificate of an attesting witness--was wholly disregarded.

We affirm the decision of the Special Election Tribunal.

II.

On May 21, 1985, the Democratic Primary Runoff Election was held for the post of Alderman, Ward 4, Philadelphia, Mississippi. The two candidates were Charles Henson and Jimmy Lee Shannon. The Philadelphia Municipal Democratic Executive Committee certified Shannon as the winner by a vote of 291-287. In certifying these results, the Executive Committee counted thirteen (13) absentee ballots, ten (10) for Shannon and three (3) for Henson, and rejected eleven (11) contested ballots. The correctness vel non of the Executive Committee's action regarding the absentee ballots is one of the issues on this appeal.

Aggrieved by this result, Charles Henson contested the election, filing his Notice of Protest with the Municipal Democratic Executive Committee on May 30, 1985. Henson requested a recount of ballots and an opportunity to inspect all ballots. On this same date, Sudie Kay Bassett, chairperson of the Municipal Democratic Executive Committee, notified all parties involved that the requested recount would be held on June 3, 1985. On June 3, 1985, Jimmy Lee Shannon filed his answer to the Notice of Protest previously filed by Henson. Included in this answer was a cross-petition by Shannon alleging that the Executive Committee had improperly counted illegal ballots cast on behalf of Henson and had refused to count legitimate ballots cast on behalf of Shannon. Further, Shannon alleged that the Committee had counted absentee ballots which did not conform to law in favor of Henson. Shannon claimed that all of the illegal ballots should be deducted from the totals in the race.

On that same day, June 3, 1985, the Municipal Executive Committee held the recount as requested by Henson, and also held a hearing on Henson's contest. Neither party was aware that the hearing would be held that day, in addition to the recount. Thus, Shannon's attorney requested a continuance before the Executive Committee proceeded with the hearing. The Committee denied this request and rendered its final decision, reaffirming its May 21, 1985, decision certifying Shannon as the winner.

On June 7, 1985, Henson filed in the Circuit Court of Neshoba County, Mississippi, a Petition for Judicial Review which was set for hearing on August 29, 1985. On the date of this hearing, the Special Tribunal dismissed Henson's Petition without prejudice for failure to comply with Miss.Code Ann. Sec. 23-3-45 (1972).

Henson refiled his Petition for Review on September 13, 1985. Again a Special Tribunal was constituted, Hon. Ray H. Montgomery presiding. Miss.Code Ann. Secs. 23-3-47 and -71 (1972). On November 18, 1985, Shannon filed his answer to this Petition and a Cross-Petition which included two allegations in addition to those that were in his Cross-Petition filed with the Executive Committee back on June 3, 1985, supra. In addition to reasserting his original Cross-Petition claim that certain ballots counted were illegal, Shannon introduced in this cross-petition new allegations that Henson induced voters with alcoholic beverages and that the Executive Committee failed to count six legal ballots on his behalf that would have rendered him the winner.

The hearing was held on December 9, 1985, before a Special Tribunal. 1 After hearing the testimony and reviewing the evidence, the Tribunal ruled that the thirteen (13) absentee ballots counted by the Municipal Executive Committee as part of the totals were not completed pursuant to Miss.Code Ann. Sec. 23-9-413 (Supp.1985) (no certificate of attesting witness) and therefore these ballots should be deducted from the totals. The Tribunal also held that the eleven (11) ballots rejected by the Executive Committee were properly rejected. The Special Tribunal's ruling effectively made Henson the winner by a total of 284-281. Jimmy Lee Shannon thus appeals from this order via a Bill of Exceptions pursuant to Miss.Code Ann. Secs. 23-3-51 and -71 (1972).

III.

A.

Shannon's first assignment of error is procedural in nature. He points to the fact that, before the Executive Committee and before the Special Tribunal, he filed a "cross-petition" alleging irregularities in the election which, if credited, would result in Shannon being declared the winner. Henson filed no answer to either cross-petition. Shannon seizes upon this failure on Henson's part and argues here that he was entitled to judgment on his "unanswered" cross-petition.

In support, Shannon argues that Mississippi law requires an answer to a cross-petition in an election contest. He points to the Mississippi Rules of Civil Procedure wherein we find Rule 8(d) providing that averments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

The question then is whether a responsive pleading was required to the cross-petition. Rule 7(a) provides:

There shall be a complaint and an answer; a reply to a counterclaim denominated as such; ....

If the cross-petition be treated as a counterclaim, then it would seem to be a pleading to which a responsive pleading is required under Rule 7(a).

B.

The failure of Henson to answer the cross-petition before the Executive Committee need not detain us. The Mississippi Rules of Civil Procedure apply only to "civil proceedings" had in a court of record. Rules 1 and 81(a), Miss.R.Civ.P. Proceedings on an election contest before a political party's executive committee are not civil proceedings in a court of record and hence the rules of civil procedure have no application.

Shannon argues further that, if not required by rule of procedure, Henson was required to file an answer to his cross-petition before the Executive Committee by virtue of the statute regulating election contests. He points to Darnell v. Myres, 202 Miss. 767, 32 So.2d 684 (1947) which contains the dictum "the filing of a cross-complaint presupposes an answer." 202 Miss. at 774, 32 So.2d at 686. We fail, however, to find any language, express or implied, in the applicable statute which requires any such answer before the Executive Committee. Darnell certainly may not be understood as a holding to that effect. Further, our attention has been drawn to no rule of the Executive Committee requiring such an answer.

Under the facts of this case it would be particularly inequitable for us to declare Shannon the winner because Henson filed no answer to the cross-petition before the Executive Committee. Shannon's cross-petition was not filed with the Executive Committee until June 3, 1985, the date of the Committee's hearing regarding the election contest. Without contradiction, Henson was not aware until he arrived for the vote recount that the Executive Committee planned to hear his protest that day. As a practical matter, Henson simply had no time to prepare and file an answer. The Executive Committee went ahead and considered the election contest at that time and made its final decision on that date, declaring Shannon the winner. The filing of an answer after that decision would have been a pointless gesture, particularly as Henson just four days later filed his petition for judicial review. We hold that Henson's failure to file an answer to the cross-petition before the Municipal Executive Committee profits Shannon nothing.

C.

The proceedings before the Special Tribunal are another matter. On November 18, 1985, Shannon filed with the Special Tribunal a pleading denominated "Answer, Affirmative Defenses and Cross-Petition." In this cross-petition Shannon alleged that the Executive Committee counted illegal ballots cast in favor of Henson and refused to count legitimate ballots cast in favor of Shannon, collectively in sufficient number that Shannon should be declared the winner. Shannon further alleged that Henson employed intoxicating beverages in the transportation of voters to the polls and thereby successfully induced at least seven voters to vote for him, with the result that there should be deducted from Henson's vote total seven votes. In the prayer of his cross-petition, Shannon asked that he be declared the winner of the Ward 4 Alderman's Race. Henson filed no answer to this cross-petition.

The matter came on for hearing on its merits before the Special Tribunal on December 9, 1985. At 8:50 o'clock that morning, Shannon filed with the Special Tribunal a "Motion for Directed Verdict" asserting his entitlement to judgment in his favor because "Charles Henson has filed no answer to the cross-petition for judicial review." Before the hearing commenced on December 9, 1985, the Special Tribunal heard the so-called motion for directed verdict and overruled it without comment or explanation, at least insofar as the record reflects. ...

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