Whorton v. Gaspard, s. 5-3628
| Decision Date | 21 February 1966 |
| Docket Number | Nos. 5-3628,5-3629,s. 5-3628 |
| Citation | 240 Ark. 325,399 S.W.2d 680 |
| Parties | Charles WHORTON, Jr., Appellant, v. Joseph B. GASPARD et al., Appellees. Joseph B. GASPARD et al., Appellants, v. Charles WHORTON, Jr., Appellee. |
| Court | Arkansas Supreme Court |
Leon Catlett, Little Rock, W. Q. Hall, Huntsville, for appellant.
Bob Scott, Rogers, for appellees.
On October 21, 1965 Joseph B. Gaspard and Otto Smith (appellees and appellants respectively in the above numbered cases, and hereafter called 'petitioners') filed a Motion asking this Court to require Charles Whorton, Jr. (County Clerk of Madison County and a party in the above numbered cases), Alton Johnson (chairman of the election commission of Madison County), and Doyle Faubus (secretary of said commission) to show cause why they should not be cited for contempt of this Court for failing to comply with the Order of this Court issued April 19, 1965. At times we will refer to Whorton, Johnson, and Faubus as 'respondents'.
A brief mention, in chronological order, of the several incidents leading up to this litigation will, we hope, help to a clarification and better understanding of the issues here involved.
On November 3, 1964 a general election was held in Madison County--hereafter often referred to as the 'election'. Twenty days later petitioners asked Whorton for permission to copy certain records pertaining to the election. This request was denied.
On November 25, 1965 petitioners filed suit in chancery court requesting the court to compel Whorton to permit them to copy 'the lists showing who had voted * * *' in the election. The request was granted by the trial court. On appeal to this Court by Whorton, the trial court was affirmed. That case may be referred to as No. 5-3628 (Whorton v. Gaspard, 239 Ark. 715, 393 S.W.2d 773)
A short time after the above mentioned suit was filed in chancery court petitioners filed another suit in the same court to compel Whorton to let them copy '* * * the list of applications for absentee ballots, the individual applications for absentee ballots and the accompanying absentee voters statements * * * for the election.' This request was denied by the trial court. Upon appeal by petitioners to this Court we reversed the case. That case may be referred to as No. 5-3629 (Gaspard v. Whorton, 239 Ark. 849, 394 S.W.2d 621).
On March 3, 1965, and during pendency of appeal in cases No. 5-3628 and No. 5-3629, petitioners filed in this Court a 'Motion to Consolidate and Advance' the above cases. In the alternative, petitioners asked that Whorton be required 'to retain custody of all records pertaining to * * *' the election, and that he be enjoined from destroying said records.
Pursuant to the above Motion, and on April 19, 1965, this Court entered the following order:
The Order makes it clear that it applies also to case No. 5-3628.
In the Motion for Citation filed on October 21, 1965, the petitioners, in substance, made the following allegations:
(a) Whorton delivered all ballot boxes, 'containing the ballots and copies of the persons voting, and all other records and papers relating to the General Election held November 3, 1964' to Johnson and Faubus.
(b) Said ballot boxes contained 'the ballots and copies of the lists of persons voting * * *' in the General Election, and that said boxes were delivered to Johnson and Faubus to be destroyed by fire 'in willful disobedience' of said order of April 19, 1965.
(c) On June 21, 1965 the said ballot boxes were destroyed by fire by Johnson and Faubus; that they were aware of said Order of April 19, 1965 at the time they burned the ballot boxes.
Attached to the Motion, as an exhibit, is what appears to be a photostatic copy of a written instrument which read:
'June 21, 1965
We the undersigned members of the Election Commission of Madison County Ark. do hereby agree to destroy the ballots of the last Election by burning them. Except I Dotson Collins vote against the destruction of ballots for this reason. I am afraid there might be a restraining order on said ballots. If I knew there was not a restraining order on ballots then I would vote for destroying said ballots.
Dotson Collins
Alton Johnson'
To the above Motion Whorton, on December 13, 1965, filed his separate response stating, in substance:
Denies that the Order of April 19, 1965 was correctly described by petitioners--that it speaks for itself; denies that he delivered ballot boxes to Johnson and Faubus; but that they removed them in February, 1965, for which he has a receipt; he learned that the boxes were later destroyed, but doesn't know when; that such action was beyond his control; that he had nothing to do with the destruction of any records in his office; that he now has 'all records, ballots and papers' in his office which he had when our Order was issued on April 19, 1965, and; he denies all other allegations in the Motion. The response is verified.
On January 3, 1966 Johnson and Faubus filed a separate demurrer to the Motion, together with briefs in support thereof, but we forego consideration of the same in view of the decision we hereafter reach.
Motion for Summary Judgment.
On January 10, 1966 Whorton, Johnson and Faubus filed a Motion for Summary Judgment, with affidavits by each attached. On January 21, 1966 the petitioners filed a response together with an affidavit in support by Dotson Collins, who, for approximately four years, has been Chairman of the Madison County Republican Party, and a member of the election commission. The affidavits, in material parts, are set out below:
Whorton:
On the nights of 13th and 14th of January, 1965 my office was broken into by an unknown party or parties; they removed all records pertaining to the absentee ballots, and the list of applications for absentee ballots, including voters' statements; I had no control over the Election Commissioners as to destruction of ballot boxes, and; the ballot boxes were left in my office by the precinct officials, and I turned them over to the Election Commission on February 23, 1965.
Johnson:
On June 21, 1965 the Commission by a majority vote destroyed the ballot boxes, as required by Ark.Stat. Sec. 3-1013 (Repl.1956); no contest involving the 1964 General Election had been filed at that time; I do not believe the Commission destroyed any envelopes containing the list of applications for absentee ballots, etc., as alleged in the Motion, which were never in the possession or control of the Commission, but they had been removed by theft from the County Clerk's office.
Faubus: (Same as Johnson)
The affidavit by Dotson Collins (in support of the petitioners) was, in essence, as follows:
(a) As a member of the Election Commission I assisted in the General Election; the election officials 'delivered their election paraphernalia to Whorton'; included therein were ballot boxes, stub boxes and summary sheets showing the results of said election * * *. 'I know that some of the ballot boxes contained a copy of the list of persons voting * * * and I believe all boxes contained such a list * * *' as was the custom;
(b) Late in the evening on June 21, 1965 I received a telephone call from Doyle Faubus, asking me to attend a meeting at the court house; I attended, and first learned Whorton had turned the ballot boxes over to Johnson and Faubus; I also learned they desired to destroy the boxes and election paraphernalia; I objected because I had heard there was a Court Order restraining such action; Att'y Hall, who was consulted over my objections said he didn't believe there was any such order; I asked for a delay of 24 hours to consult Judge Butt, but the others would not agree; we all signed the statement showing my objections.
(c) I have never known before of the Clerk giving the ballot boxes or any election records to the Commission until they were to be destroyed.
After a careful review of the pleadings, exhibits, and the contents of the affidavits heretofore summarized, we have reached the conclusion set out and explained below.
Re: Charles Whorton, Jr. It clearly appears that this Court would not be justified in holding Whorton in contempt of the Order of this Court entered on April 19, 1965. The Order, beyond doubt, is prospective only. It provides 'that no litigant will destroy, or allow to be destroyed * * *' etc. We find nothing to justify a finding that Whorton did anything in violation of the Order after it was issued on April 19, 1965. To the contrary, it is uncontradicted that in January 1965 someone, unknown to him, took from his office all records pertaining to the absentee ballots and the list of applications, and; that on February 23, 1965 he turned over to the election commissioners the ballot boxes. We find nothing to show that Whorton had anything to do with destroying the ballots on June 21, 1965.
If there does exist any real likelihood it could be proved that Whorton is mistaken, or that he has deliberately misrepresented the facts, we fell it was incumbent on the petitioners to so state. This they have not done. In fact no such allegation is in petitioners' affidavit. Regardless of any suspicion that may exist as to the impropriety of Whorton's actions herein complained of, that fact alone does not justify this Court in finding him guilty of contempt. The rule which we think is applicable to this case is very well stated in 12 Am.Jur.--Contempt--s 74 as follows:
'An adjudication of contempt is improper where there is no material evidence to connect the alleged contemner with the acts charged and ...
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