Wilbourn, In re

• Decision Date: 26 November 1991
• Docket Number: No. 91-M-1167,91-M-1167
• Citation: 590 So.2d 1381
• Parties: In re Hershel WILBOURN and the Hinds County Election Commission, Petitioners.
• Court: Mississippi Supreme Court

Page 1381

590 So.2d 1381

In re Hershel WILBOURN and the Hinds County Election Commission, Petitioners.

No. 91-M-1167.

Supreme Court of Mississippi.

Nov. 26, 1991.

Michael S. Allred, Thomas Price Alston Jones & Davis, Natie P. Caraway, Wise Carter Child & Caraway, Jackson, Weaver E. Gore, Jackson, for petitioners.

John L. Walker, Walker Walker & Green, Sorie Tarawally, Owens Law Firm, Jackson, Tyree Irving, Greenwood, Tylvester Goss, Davis Goss & Williams, Jackson, for respondent.

ORDER

This matter came before the en banc conference on the Petition for Extraordinary Writ filed by Hershel Wilbourn and the Hinds County Election Commission pursuant to Miss.Sup.Ct.R. 21. By Order of November 20, 1991, response was called for from Respondent Peggy Hobson. This Petition requests this Court to issue a writ of mandamus or prohibition to Circuit Judge James Graves commanding him to dismiss or dissolve the TRO entered by him in this matter on November 15, 1991, and to refrain from entering any other injunctive order in this matter which would prohibit the Election Commission from certifying the winner of the Hinds County Supervisors Election and reporting the results to the Secretary of State, as required by law, so that whichever candidate is aggrieved of the Commission's results can timely file an election contest as provided by statutory procedures.

The General Election of November 5, 1991, included a race for Hinds County Supervisor, District 3. Petitioner Hershel Wilbourn and Respondent Peggy Hobson were candidates in that race. After the election, the Hinds County Election Commission met to canvass the results, including this Supervisor's election, pursuant to Miss.Code Ann. Sec. 23-15-601 (1972). The initial vote count by the Commission indicated that Peggy Hobson received 5,358 votes and Hershel Wilbourn received 5,355 votes. On November 8, 1991, the Commission declared, but did not yet certify, Hobson the winner by 3 votes. This count reflected a resolution of dispute over certain affidavit ballots in favor of counting them.

On the morning of November 15, 1991, the 10th day after the election and, under Miss.Code Ann. Sec. 23-15-601 and Sec. 23-15-603, the day the Commission should have certified a winner and reported the results to the Secretary of State, the Election Commission met in executive session to reconsider whether or not to count the affidavit ballots in question. Their reconsideration resulted in their voting not to count the affidavit ballots. Apparently, this would have resulted in Hershel Wilbourn winning the election.

In the afternoon of November 15, 1991, the Commission met in open session to hear arguments of counsel for the candidates. When the Commission revealed its executive session meeting and its decision not to count the affidavit ballots in question, Peggy Hobson objected to the Commission's actions taken in closed session. Therefore, the Commission, in open session, reconsidered the affidavit ballots again, and voted once again not to count them.

The Commission then stated that while it wanted to recanvass and recount the votes based on this decision not to count the affidavit ballots, it could not do so because of an order entered by Chancellor Chet Dillard on November 7, 1991, in response to a motion filed by Wilbourn, impounding the ballots, affidavits and other documents relating to the election pending Wilbourn's election contest. Wilbourn's attorney declared that he would file a motion to lift this order so that the Commission could recanvass and recount, which he did, and an order lifting the November 7 order was entered at 4:06 p.m. Friday, November 15. The Commission, however, adjourned at 2:00 p.m. without certifying a winner and without reporting results to the Secretary of State.

At 4:50 p.m. November 15, Hobson filed a complaint in Hinds County Circuit Court, Peggy Hobson v. Sue Sautermeister, Ruth Shirley, Homer Edgeworth, Robert Lilley, Betty Hunt and Herschel Wilburn [sic], No. 91-69-334, and a Motion for TRO and Preliminary Injunction to enjoin the Election Commission from certifying anyone other than Peggy Hobson as the winner of the Supervisor District 3 race. Hearing was held on the Motion for TRO on Friday, November 15, 1991, at 5:00 p.m. Request for the hearing to be transcribed was overruled because there was no court reporter available. Their motion that Judge Graves recuse was overruled, and Judge Graves declined to rule at that time on their motion for the other 3 Hinds Circuit Judges to recuse.

At the conclusion of that hearing, Judge Graves entered a TRO enjoining the Election Commission from taking any further action in the Hinds County District 3 Supervisor's race pending hearing on the motion for preliminary injunction within 10 days. Hobson was required to post a $100 bond.

On Monday, November 18, 1991, Hobson filed an Amended Complaint seeking, by way of Declaratory Judgment pursuant to MRCP 57, to compel the Election Commission to count the problematic affidavit votes and certify her as the winner and so report to the Secretary of State. In the alternative, the Amended Complaint seeks to have the circuit court declare that the problematic ballots should be counted, that the decision of the Election Commission not to count them is a change in voting procedures which has not been pre-cleared under the Voting Rights Act, and that the actions taken by the Election Commission in closed session resulting in a decision not to count the ballots was a violation of the Open Meetings Act. The Amended Complaint does not name Wilbourn as a defendant. On Tuesday, November 19, 1991, Wilbourn filed a Motion to Vacate and Set Aside the TRO, the Commission filed a separate Motion to Dissolve the TRO, Judge Graves set a hearing date on "all motions pending" for Friday, November 22, 1991, at 2:00 p.m.

On Wednesday, November 20, 1991, Wilbourn and the Commission filed this Petition in this Court. A five-member panel of this Court issued an order calling for a response to the petition and staying proceedings in the trial court pending consideration of this petition by the en banc conference.

The effect of the TRO was to prohibit the Hinds County Election Commission from certifying the winner under Miss.Code Ann. Sec. 23-15-601:

and the commissioners of election shall canvass the returns, ascertain and declare the result, and, within ten (10) days after the day of the election, shall deliver a certificate of his election to the person having the greatest number of votes for ... board of supervisors....

The 10th day after the election was November 15, 1991, and the Commission appeared ready to recanvass and possibly certify a winner after the open session consideration of the questionable affidavit ballots and vote by the Commission not to count them. However, because of the earlier order issued by Chancellor Dillard, and later because of the TRO, the Election Commission has not timely certified a winner.

Further, the Commission has not reported and delivered the returns to the Secretary of State as provided by Miss.Code Ann. Sec. 23-15-603:

The commissioners of election shall, within ten (10) days after the general election, transmit to the Secretary of State, to be filed in his office, statement of the whole number of votes given in their county for each candidate for any office at the election....

Again, the 10th day fell on November 15, 1991. With issuance of the TRO on the evening of November 15, the Commission had no more opportunity to try to comply with this statute.

Another potential problem with the TRO is that the provisions for a candidate challenging the manner or results of the election require that such election contest be filed within 20 days after the election, pursuant to Miss.Code Ann. Sec. 23-15-951. The 20th day falls on November 25, 1991. Because no winner has been certified and reported to the Secretary of State in this election, the candidates do not know which one of them should file a contest such that this deadline can be met.

Early on, this Court stated this doctrine: "It is not the policy of this state to have elections and other political matters of government reserved to legislative discretion to be interfered with by the judges and officers of the judicial department of the government ... but the inclination of judicial thought in this state is that elections of all sorts are not to be interfered with by the courts." Gibbs v. McIntosh, 78 Miss. 648,...